Is Your Domain Safe from Seizures for Copyright Infringement?

Maybe your company has a website that hosts user-generated content—perhaps a discussion board or a place where customers can post comments about your products or services. If so, imagine coming to work one day and finding your website replaced by a banner saying Immigration and Customs Enforcement (ICE) has seized your domain name due to copyright violations.

Is that scenario likely? Probably not. But in the past year, ICE has seized more than 110 domain names for alleged copyright infringement, which has critics questioning where the line between infringing and noninfringing sites is. “If [websites] have some user-generated content, they have to at least ask the question,” says David Sohn, senior policy counsel at the Center for Democracy and Technology, an online civil liberties group that has criticized the ICE seizures.

So far, most domains seized in the ICE raids appear to have been engaged in music and movie piracy or the sale of counterfeit products. In February, ICE seized Mooo.com, a free DNS hosting site, on the grounds that it was hosting a child pornography website. In the process, it temporarily shut down another 83,000 sites that used Mooo.com’s services. In a handful of copyright-related seizures, including a hip-hop music site and a BitTorrent search engine, site owners have questioned whether the seizures were legitimate.

Sohn says the problem is the process. ICE can go to a court, show evidence of copyright infringement and request an order allowing it to seize the domain, all without notifying the owner of the domain name. While ICE Director John Morton has defended the seizures, saying the sites seized were “all knowingly engaged in the sale of counterfeit goods,” several lawmakers are pushing for legislation to formalize the ICE seizure process.

Legitimate websites shouldn’t be worried, says Stefan Mentzer, an intellectual property lawyer for White and Case in New York. ICE has generally targeted foreign websites engaged in criminal-level copyright infringement, he says. The Digital Millennium Copyright Act’s safe-harbor provisions should protect corporate sites with user-generated content from copyright infringement claims as long as they quickly remove the infringing content.