This Paper examines three specific harms resulting from Operation In Our Sites, and three ways in which the enforcement sweep could be changed to better balance the interests of intellectual property enforcement and free expression. By removing content from the Internet before being fully adjudicated as infringing, the civil forfeiture remedy works a prior restraint of speech. To avoid this, this Paper urges Congress and the courts to institute the same procedural First Amendment protections in place in the area of obscenity to copyright infringement. Secondly, the alleged infringement here appears to be conducted by third parties posting material on the websites. By keeping website owners out of the dispute process, this remedy disrupts the cooperative spirit sought to be instilled by the Digital Millennium Copyright Act’s inclusion of statutory safe-harbors for online service providers. To reinstate this cooperative spirit, agents should be required to attempt in personam contact against the website owners before proceeding against the websites in rem. Finally, by targeting website domain names instead of actual content servers, Operation In Our Sites has not effectively disrupted the activities of the targeted websites. In fact, many websites have grown in popularity since this enforcement sweep began. Due to the dubious efficacy of targeting domain names, this remedy should be reserved for situations where there exists some other extrinsic reason to believe that the enforcement tactic will work.
To download and read this paper by Andrew Sellars in full, go to:
ssrn.com/abstract=1835604
