In U.S. Crackdown on “Pirate” Sites, It’s Sometimes Difficult To Determine Who’s a Pirate

Waleed A. GadElKareem says Torrent-Finder.com is one of many search-related projects he's working on

Late into the night at the end of November, a text message woke up Waleed A. Gad El Kareem, an open-source web developer in Alexandria, Eygpt. The 31-year-old developer had set up an alert to tell him whenever his site Torrent-Finder.com was inaccessible online.

“I waited for it to come back, and it didn’t so I called [domain name provider] GoDaddy,” he recalled in an interview. “They had no idea about it.”

“After a few hours of the downtime, I saw that the domain name servers were being changed,” he continued. “I thought somebody was stealing my domain. I sent a complaint to ICANN, because I didn’t know what was going on.”

The next day, El Kareem found a seizure notice in place of where the front page of his web site used to be. He says he then started to read stories in the media about the domain name seizures and realized what was going on.

TorrentFinder had been fingered as one of 82 web sites by the U.S. Department of Homeland Security’s Immigrations and Customs Department as a web site whose purpose was dedicated to infringing upon copyrights.

But El Kareem, and the operators of four other music-related web sites whose domain names have been seized, dispute their unilaterally-designated status as “pirate sites,” a designation that the federal law enforcers in the Obama administration had arrived at after perusing the sites and talking to the Motion Picture Association of America and the Recording Industry Association of America.

The dispute is newsworthy because the law enforcement initiative marks a new, emerging prophylactic approach to enforcing copyrights online. Many legal observers and internet engineers worry that the legal cross-fire between the law enforcers and the scofflaws will put many web businesses on financial life-support.

It’s also an issue worth examining because Congress is likely to re-consider legislation next year that would reinforce and expand the reach of these kind of domain name crackdowns.

The Senate Judiciary Committee has already fast-tracked the legislation and approved it during the lame-duck session of congress. Sen. Ron Wyden, D-Oregon, has threatened to block it if it reached the senate floor.

In its affidavit for a seizure warrant, the U.S. Attorney’s office for the central district of California mentioned several searches its investigator performed for torrents of copyrighted movies through Torrent-Finder.com as evidence of the web site’s culpability under U.S. law.

The investigator found links to other sites that served as links to torrents for illegal free movies online. He also found torrents of camcorded versions of the movie “The Town.”

A search on Torrent-Finder.info, the alternative site that El Kareem quickly established a few hours after it became apparent that he wasn’t going to get the dot com domain back anytime soon, shows that torrents of Hollywood movies are still out there thriving on several people’s computers.

El Kareem freely admits that he makes his living income through the banner ads that appear on the web site: Nevertheless he is outraged by the seizure because he says that Torrent-Finder was part of an ongoing experiment in aggregated search he was conducting. The site can be used for many different kinds of searches, and the fact that people can find pirated content through Torrent-Finder doesn’t make the site one that is dedicated to piracy, he argues.

While many of the other 82 domains were sites selling counterfeit goods in overseas countries, Torrent-Finder.com is a search engine project that enables people to find torrents of movies, music, software and any other kind of media. El Kareem’s lawyer says that many people use the site to exchange files of large open source programs. The operators of the other music sites say that they were leaking pre-release music as a way of promoting artists’ new tunes.

David Snead, El Kareem’s lawyer in the United States, says that rights holders should use the take-down provisions of the Digital Millennium Copyright Act, which involves the notification of a web site’s owner of the infringing material, and which provides for a back-and-forth between the rights-holder and the web site operator about the allegedly infringing material.

Instead, under this process, and the more draconian domain-name blocking regime envisaged under the Combating Online Infringement and Counterfeits Act under consideration in congress, law enforcers get to decide which domain names get to be blocked on a temporary basis and the target has to fight the designation in court.

“Ultimately what I think we’re talking about is whether we should trust the government to be able to shoot first and ask questions later when it comes to technology they likely do not have the capabilities to understand,” said Christian Dawson, chief operating officer of ServInt, a U.S. web hosting company.

But Chun T. Wright, a Washington, D.C. attorney who has spent a lot of time hunting down intellectual property pirates online, says that the DMCA only applies to the United States, which is a problem since many of the pirates and their hosting companies are located outside of the U.S. In addition, the DMCA isn’t effective against file-sharing systems, she argues.

“Rightsholders and the government  have been playing whack-a-mole with their hands tied behind their back trying to shut down these rogue sites, and it’s not working,” she said.

The cases in point are the web sites whose domains ICE had seized on CyberMonday. Many of them, including Torrent Finder, have moved to other top level domains. Torrent-Finder has moved to Torrent-Finder.info, which is a domain administered by  Afilias in Ireland, and thus out of the reach of U.S. law enforcement authorities — for now.