Rojadirecta Sues US Government, Homeland Security & ICE Over Domain Seizure - Techdirt

Puerto 80 does not host any infringing material on the websites which operate under the subject domain names... In the same way a search engine or other site which aggregates links to existing material on the Internet, Rojadirecta provides an index of links to streams of sporting events that can already be found on the Internet through a search for those sites or simply by typing the URL for the site directly. Id. Such activity does not constitute direct copyright infringement, much less criminal infringement. See supra, at note 8. Indeed, United States Senator Ron Wyden (D-Or) made this point in a letter he wrote to ICE Director John Morton and Attorney General Holder expressing concern over the government?s seizure of the subject domain names....

Puerto 80?s operation of the Rojadirecta site does not constitute contributory infringement because the subject domain names are capable of?and are, in fact, used for? substantial non-infringing uses. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, reh?g denied, 465 U.S. 1112 (1984); Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481, 517-18 (S.D.N.Y. 2010) (summary judgment inappropriate where material fact existed as to whether file-sharing program, which was ?used overwhelmingly for infringement,? is ?capable of substantial non-infringing uses.?).

Nor is Rojadirecta a site devoted simply to linking to such streams. In addition to providing a forum for discussion on sports, politics, and a variety of other topics, the Rojadirecta site enables users to post links to authorized sports broadcasts. For example, on Saturday, February 12, 2011, the Rojadirecta site (hosted on the rojadirecta.es domain name) provided a link to ?9:30am Hockey (NHL): Los Angeles ? Washington.?... Clicking on this link opened a new window for the Yahoo! sports website for the National Hockey League, and provided a live stream of the match between the Los Angeles Kings and Washington Capitals. Id.

Nor does Puerto 80?s operation of the Rojadirecta site constitute vicarious liability because it does not have ?a right and ability to supervise that coalesce[s] with an obvious and direct financial interest in the exploitation of copyrighted materials.? Softel, Inc. v. Dragon Med. & Sci. Commc?ns Inc., 118 F.3d 955, 971 (2d Cir. 1997) (quoting Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (emphasis added)). Puerto 80 does not receive any revenue that is derived from specific content hosted on, or streamed by, the sites to which it links.... In other words, Puerto 80 does not receive any revenue from any site to which a user can link from the subject domain names based upon the content of that site. Id. To the extent there is any site to which Rojadirecta links that contains infringing material, Puerto 80 receives no specific financial benefit from a user clicking through to that site and viewing such content.... Because Puerto 80?s revenues are not tied to whether or not infringing material is linked to or accessed, the government cannot show that Puerto 80 has a ?direct financial interest in the exploitation of copyrighted materials? which ?coalesce[s] with? any right or ability to supervise what is linked to on the site. See Artists Music, Inc. v. Reed Publ?g (USA), Inc., Nos. 93 civ. 3428(JFK), 73163, 1994 WL 191643, at *6 (S.D.N.Y. May 17, 1994) (direct financial benefit not established where defendant leased space at a trade show for a fixed fee to exhibitors who played infringing music, but defendant?s revenues were not dependant on whether exhibitors actually played music or what they played); Viacom Int?l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 521 (S.D.N.Y. 2010) (in DMCA safe-harbor context, ?financial benefit directly attributable to the infringing activity? not established ?where the infringer makes the same kind of payment as non-infringing users of the provider?s service?) (quoting Senate Judiciary Committee Report and the House Committee on Commerce Report, H.R. Rep. No. 105-551, pt. 2 (1998)).

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