Spain

United States v. Puerto 80 Projects, S.L.U.

Threat Type: 

Police Activity

Date: 

01/31/2011

Party Receiving Legal Threat: 

Puerto 80 Projects, S.L.U.

Type of Party: 

Government

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court, Southern District of New York

Case Number: 

11-cv-3983

Legal Counsel: 

Durie Tangri LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Puerto 80 is a solely-owned limited liability company based in Arteixo, Spain. The company operates a website entitled Roja Directa, which provides a chronological listing of sporting events with links to websites that are streaming live broadcasts of those events over the Internet. The website also operates a series of message boards and a small blog.

On January 31, 2011, an agent with the United States Department of Homeland Security, Immigration and Customs Enforcement division, filed an affidavit for a warrant to seize several domain names, including rojadirecta.org and rojadirecta.com. Using a recently-modified civil forfeiture law passed in 2008, the agent alleged that these domain names were property used for the commission of criminal copyright infringement, and thus subject to seizure. According to the United States, Roja Directa linked to websites streaming sporting events, the copyrights of which are owned by the NFL, NBA, NHL, and WWE. These organizations did not license the webcasts. This seizure was part of a larger IP enforcement campaign called Operation in Our Sites, which began in June of 2010 and continues today.

A federal magistrate judge issued a warrant for the seizure of the domain names. This order applied specifically to the URLs only, and not the servers which contain the Roja Directa website. The warrant ordered the domain name registries for the ".com" and ".org" top level domains, as well as Puerto 80's registrar for "rojadirecta.com" and "rojadirecta.org," to transfer ownership of the domain name to the United States, who then displayed a page informing the public that the domain name had been seized.

According to Puerto 80, the company attempted to negotiate with the United States for the return of the domain names, but reached no agreement. On June 13, 2011, Puerto 80 filed a petition for release of its seized property pursuant to 18 U.S.C.§ 983(f) in the United States District Court for the Southern District of New York. Puerto 80 argued that linking to other websites does not constitute criminal copyright infringement, there is no risk that evidence will be unavailable should the government decide to initiate a forfeiture proceeding, and the restriction of the expressive content of the website before an adjudication of whether the content was infringing was a prior restraint of speech. The United States filed a memorandum in opposition, arguing that the actions of Puerto 80 constituted criminal copyright infringement, to release the domain name would allow continuation of that infringement, and the domain name seizure was not a prior restraint because Roja Directa was able to move the websites to new domains housed outside of the United States.

On August 4, 2011 the district court denied Puerto 80's petition for release.The court did not find the hardship necessary for a § 983(f) dismissal, and suggested that the First Amendment arguments were best left to a motion to dismiss against the forfeiture complaint. Puerto 80 filed an appeal to the United States Court of Appeals for the Second Circuit on August 18, 2011, and shortly thereafter filed a motion for expedited appeal, which the Second Circuit granted.

Puerto 80 filed its opening brief to the Second Circuit on September 16, 2011. The United States filed a response brief on November 15, 2011. The court also accepted an amicus curiae brief from the Electronic Frontier Foundation, filed on November 22, 2011.

Puerto 80's reply brief to the government's response is due on December 6, 2011, with argument before the Second Circuit slated for the week of December 19th.

Content Type: 

Subject Area: 

Jurisdiction: 

Universal Communication Systems v. Lycos

Threat Type: 

Lawsuit

Date: 

07/02/2004

Party Issuing Legal Threat: 

Universal Communication Systems, Inc.; Michael Zwebner

Party Receiving Legal Threat: 

Lycos, Inc.; Terra Networks, S.A.; Roberto Villasenor; John Does (1-8)

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida; United States District Court for the District of Massachusetts; United States Court of Appeals for the First Circuit

Case Number: 

1:04-cv-21618 (first Fla. action), 1:05-cv-20149 (second Fla. action), 1:05-cv-10435 (first Mass. action), 1:05-cv-11172 (second Mass. action); 06-1826 (appeals)

Legal Counsel: 

Daniel Cloherty, David Bunis, Rachel Zoob-Hill (Dwyer & Collora) (for Lycos); Thomas Rohback, James Reardon (LeBoeuf, Lamb, Greene & MacRae) (Terra Networks)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Injunction Denied

Description: 

Universal Communication Systems ("UCS") and its CEO, Michael Zwebner, sued Lycos, its Spanish parent company Terra Networks, and several anonymous users of Lycos's Raging Bull forum after the anonymous users created a forum about UCS and criticized the company there. UCS sought an injunction requiring Lycos to delete the UCS forum and to prevent it from ever being recreated.

In its original complaint, filed in federal court in Florida, UCS invoked claims of consumer fraud under Massachusetts law, dilution of trade name under Florida law, and a federal "cyberstalking" statute. Lycos moved to dismiss UCS's claims or, alternatively, to transfer the case to Massachusetts federal court.  UCS moved for a preliminary injunction, which the court denied.  UCS amended and resubmitted its motion for a preliminary injunction.

Before ruling on the motions before it, the court stayed discovery in the case.  UCS, however, initiated a new, second action in Florida federal court, which made largely identical claims. Lycos moved to consolidate the two cases.  The court instead granted Lycos' earlier motion to transfer the venue of the first action to Massachusetts.  The court hearing the second action soon transferred it to Massachusetts as well, and the Massachusetts court consolidated the two cases. 

At this point, UCS's complaint alleged four causes of action: (1) violation of Florida securities laws; (2) violation of a federal criminal statute prohibiting harassing communications (47 U.S.C. § 223); (3) trademark dilution under Florida law; and (4) violation of a Florida "cyberstalking" statute. In Massachusetts, Lycos moved to dismiss the claims against it, arguing that it was protected from liability for third party content under section 230 of the Communications Decency Act ("CDA 230"). Terra also moved to dismiss, claiming that the Massachusetts federal court had no jurisdiction over it, but even if it did, UCS had not shown Terra liable for the acts of its subsidiary.

The Massachusetts district court granted both motions, ruling that CDA 230 barred the Florida securities and cyberstalking claims, that the Florida dilution claim was a defamation claim in disguise and thus also barred by CDA 230, and that 47 U.S.C. § 223 did not create a private cause of action.

UCS moved to file an amended complaint against Lycos and Terra, but the court denied the motion, ruling that the defendants would still be immune from the claims in the proposed amended complaint.  The court, however, did allow UCS to add the anonymous forum users to the lawsuit.  UCS filed its amended complaint with claims of fraud against the users, and moved for entry of separate and final judgment, so that it might withdraw its claims against Lycos and Terra while retaining its new claims against the anonymous posters.  One of the anonymous posters, Roberto Villasenor, answered UCS's complaint and filed counterclaims against UCS, as well as crossclaims against the other posters. The Massachusetts court denied UCS's motion for entry of separate and final judgment, finding that it lacked jurisdiction over Villasenor and the other anonymous posters.

UCS appealed these decisions to the Court of Appeals for the First Circuit.  The First Circuit affirmed the lower courts rulings and dismissed the case.  It decided that CDA 230 granted immunity to Lycos and Terra on the Florida securities and cyberstalking claims.  It also affirmed that 47 U.S.C. § 223 did not create and private cause of action and that use of UCS's name in the Raging Bull forum did not create trademark liability. Finally, it agreed that, without the claims against Lycos and Terra, the court lacked jurisdiction to hear UCS's claims against the anonymous users.

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

U.S. Treasury Department v. Marshall

Threat Type: 

Other

Date: 

10/01/2007

Party Receiving Legal Threat: 

Steve Marshall

Type of Party: 

Government

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Concluded

Description: 

Steve Marshall, an English travel agent operating out of Spain, had approximately 80 of his websites shut down as a result of the U.S. Treasury Department's placing them on its blacklist. Many of the sites discussed Cuba, some offering commentary about Cuba, and others offered online travel services to European tourists interested in travelling to Cuba.

According to the Treasury Department, the websites were added to the U.S. Treasury Department's Blacklist because they breached the U.S. trade sanctions with Cuba by enabling U.S. citizens to travel to Cuba.  Treasury claims that its action was part of a broader effort to prevent tourist dollars propping up the "oppressive" Castro regime.

Marshall's US-based domain registrar eNom, Inc. disabled the domains in October 2007 when it was contacted by Treasury and informed of the blacklisting. Marshall reports that he has chosen to put the sites up using new, non-U.S.-registered sites.

There is some dispute over whether Marshall's company helped U.S. nationals to evade U.S. government travel restrictions. According to Treasury, it targeted U.S. citizens (see Press Release). According to Marshall, who is quoted in the New York Times, he is not interested in American tourists: "They can’t go anyway."

Subject Area: 

Jurisdiction: 

Content Type: 

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