RojaDirecta: Incoherent US Internet Law

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When we last checked in on RojaDirecta, they had sued the US government for illegally seizing their US domain without due process of law. I won’t get too legalese on you, but there are two issues: (1) The government taking away the domain, and (2) The government wanting to force Roja to forfeit the domain for all time. At this stage, justice has been blind in the worst sense of the word. The Judge ruled against RojaDirecta by claiming that losing their domain name was not a “substantial hardship.” What made the hardship so unsubstantial? The Judge reasoned, as I noted in my last post, that Roja could easily set up their site on a new domain (and has done so). Roja has filed an appeal.

In the meantime, I will tear to shreds the Judge’s ignorant and backwater reasoning.

Let’s just forget about the legality and copyright question for now. Remember, the legal question is narrow: can the government size an item of value with no notice and no due process? I begin with some basic premises. If the government seized your house with no notice, that would violate your rights. If the government seized your business with no notice, that would violate your rights. Lastly, if the government seized your land with no notice, that would violate your rights. In all those cases, you can easily buy a new house, start a new business, and even purchase new land. A court would probably find seizure of those items to be a substantial hardship. Is it easier to start a website than a restaurant? Yes. However, here’s the dilemma.

All websites compete for traffic via search engines, and your domain name accrues a higher ranking as time passes. Websites get rankings by “key words” that people search for. This is known as “page rank.” An entire industry exists for folks that buy and sell old or expired domains based on their page rank. They have economic value because they attract a lot of eyes. Also, when somebody clicks on an ad at your site, your page rank plays a role in how much you get paid. The judge was right that Roja could take the backup files for their site and put them on another domain. However, in search engine terms, that puts them way behind the competition. It also erases years of work to attain a good ranking.

Also, in the internet rat race for eye balls, the ease of replication means fiercer competition. RojaDirecta has to compete with lots of other sites that can offer similar content. Thus, page rank is even more essential. RojaDirecta was smart and diversified its traffic flow to include Twitter and Facebook. However, I’m confident that their new domain’s initial traffic was a drip in the bucket compared to the prior domain. I’m also confident that even if the new domain is getting lots of hits, the older domain would be attracting even more eyeballs. For those of you already bored to tears with the SEO talk, the bottom line: online domains have economic value and potential. The government has no business seizing them without due process.

Remember: the ultimate issue of copyright infringement is not relevant – what’s important is that the government give notice before taking something. Websites have value. Duh. Otherwise Amazon and Ebay would not be valued in the billions.

However, to be honest, what really angers me is that RojaDirecta already fought and won the copyright infringement battle in Spain. Several years before the US government even dreamed of seizing domains, RojaDirecta won a very public trial in Spain. The allegations of copyright infringement failed miserably. But, you say, the US has different laws than Spain. We need to do things our way in ‘Merica! Well, unfortunately for abrasive unilateralists, the US has signed numerous agreements on intellectual property with Spain and other European nations. Surely in a time of increased international commerce we should be respecting those agreements, not tossing them out the bus?

At least RojaDirecta has appealed the first disastrous decision and is still battling the second part. This seizure of RojaDirecta reeks of the John Edwards trial: an incompetent government that is overreaching to the benefit of nobody. I shudder to think that my tax dollars are paying for this crap (and I’m a bleeding heart liberal). Here’s hoping that Roja keeps fighting the good right!

And, of course, be sure to check out their new domain here.

H/T to TechDirt

Check out the legalese for yourself at Justia

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