Last year, more than 70 domains were seized by the Department of Homeland Security for copyright infringement and replaced with layered 1990s drop-shadow graphics so eye-bleedingly bad they may have violated the Geneva Convention. Some of those seizures were as legally questionable as the government’s design sensibilities, targets of the copyright industry rather than real criminals. Rather than get shy about extralegal crackdowns, the New York DHS decided to double down.
In early March it arrested one of the admins of a seized site, Brian McCarthy, for criminal copyright infringement. McCarthy ran Channelsurfing.net, which hosted no content of its own: It was a collection of links to sporting events hosted or streamed from elsewhere. No one claims McCarthy copied or distributed anything. Nevertheless, the government maintains that creating a linking website can carry a five-year sentence. What insanity is next? Page curl? The blink tag?
The idea is that he was inducing others to infringe, something the courts came up with as a civil law asterisk to copyright in 2005. It matters that McCarthy made a few thousand dollars every year from ads, and that he ran what was essentially a small business. But there’s no direct law that makes linking to or inducing use of copyrighted material illegal. Such a bill even came before congress, and failed.
The court’s interpretation was strictly about civil liability, which can only result in losing money. Arrest and jail takes criminal prosecution—a much higher standard. There’s never been a case of criminal copyright inducement, until the DHS filed its case in New York. Investigators just made up a law the MPAA wanted. I don’t want to imply that the New York DHS is a corrupt wing of enforcement for commercial copyright interests that is inventing criminal law to enforce an outdated business model... Oh wait, actually, I do.
It turns out the entertainment industry helped the DHS make its lists, and the agency even announced a raid last year from Disney headquarters, on a stage next to MPAA executives. So keep an eye out for Hollywood’s finest, coming guns drawn to a doorstep near you.
Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.