Judge says domain name loss is not a "substantial hardship"

By Timothy B. Lee

A federal judge has rejected a petition by the Spanish company Puerto 80 for the return of the domain names Rojadirecta.com and Rojadirecta.org. The US federal government seized the domains earlier this year, arguing that they were primarily used to provide links to infringing sporting content.

Puerto 80 says that after weeks of playing phone tag with federal officials, it was told that it could only have the domain names back if it agreed not to "link to any U.S. content anywhere on its sites anywhere in the world." Since this demand clearly exceeded what was required of it under copyright law (and arguably violated the First Amendment), Puerto sued for the return of the domain names.

Under federal law, the owner of seized property can seek its return if the government's continuing to hold it would cause a "substantial hardship" to its owner. Puerto 80 pointed not only to the loss of traffic since the seizure, but also to the infringement of its First Amendment rights. It also pointed out that its activities had already been ruled legal by the Spanish courts.

But Judge Paul Crotty was unconvinced. He replied that Puerto 80 had registered alternative domains like rojadirecta.me and rojadirecta.es, and that Rojadirecta can use its "large Internet presence" to "simply distribute information about its new domain name to its customers."

And he rejected Puerto 80's First Amendment claims because the "main purpose" of the website is to "catalog links to copyrighted athletic events." He wrote that "Puerto 80 may certainly argue this First Amendment issue in its upcoming motion to dismiss, but the First Amendment considerations discussed here certainly do not establish the kind of substantial hardship required to prevail on this petition."

But the Electronic Frontier Foundation's Corynne McSherry says that the Supreme Court has ruled otherwise. "We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means," the high court wrote in 1976.

"A mere finding of 'probable cause' does not and cannot justify a prior restraint," McSherry writes. "How the court believes that the seizure satisfies the First Amendment in this regard is a mystery."