Forfeiture of Pirate Bay’s .se Domains: Three Quick Questions


Yesterday a Swedish trial court in Stockholm issued a significant ruling touching on several hot-button legal issues in the domain name community. We’re trying to peel this onion today and it has been slow going. This much is somewhat certain:

The court held that domain names in the .se country-code top-level domain are property.

The court held that the domain names piratebay.se and thepiratebay.se are property subject to forfeiture because they were used to facilitate defendant Pirate Bay’s multiple acts of criminal copyright infringement.

The court held that Punkt SE, the .se registry operator, is not criminally liable for aiding Pirate Bay’s unlawful activities. Special prosecutor Frederick Ingblad’s decision to prosecute a domain name registry for a registrant’s unlawful acts is unprecedented.

Beyond this, not much more is certain. Unfortunately...

  • the [court opinion](http://pub.bna.com/eclr/stockholm-piratebay-ruling.pdf) is in Swedish;
  • the case raises more than one novel legal issue;
  • the reporting I've read online describes Punkt SE both as a registry (it is the registry operator for the .se ccTLD) and a registrar (which it may have been at one point in time, though Punkt SE now sells domains through a network of registrars); and
  • none of the reports I've read describes _why_ Punkt SE was found to be not liable for Pirate Bay's criminal activity.

Torrent Freak has the first and best account so far, Key Pirate Bay Domains Must Be Seized, Court Rules | TorrentFreak. Lawyers are going to be unsatisfied because there is no explanation of what Punkt SE allegedly did wrong or why the court ruled the way it did.

The headline on a statement released by Punkt SE (.SE acquitted – domain names not to be forfeited by the foundation | .SE) states that the two Pirate Bay domains will “not be forfeited by the Foundation,” though the text of the release states, to the contrary, that Punkt SE has lost control over the domains:

“We are pleased that the city court ruled in our favor and agreed with our argument that, in our role as the top-level domain administrator, it is not our responsibility to decide on what is or is not unlawful in specific cases” says Elisabeth Ekstrand, Senior Legal Counsel at .SE.

In its ruling to the domain owner in this case, the city court decided that the right to these two domain names was to be forfeited. The domain names are also to be transferred to the state, something that has never previously been tried.

There are three questions here that should concern registry operators and registrars.

First, what are the consequences of broad acceptance of the principle that domain names are property subject to forfeiture?

If courts treat domain names the same way they treat typical criminal forfeiture targets (guns, cars, cash etc.), then the effect will be to prevent registrars from selling the domains again. This might not seem too terribly bad in the case of thepiratebaypunkt.se. But what if the criminal activity had occurred at a website located at freemusic.se? Shouldn’t that name again be made available for registration, pointing to a lawful website?

Second, did the court rule categorically that registries/registrars are not liable for unlawful activities taking place on websites located at a domain name they sold or control? Or did it hold that registries/registrars could be liable but not under the facts of this case?

Earlier this year, prosecutor Ingblad told our reporter that the issue of whether or not Punkt SE was responsible for Pirate Bay’s obvious acts of copyright infringement was in play. “Punkt.se is opposing the forfeiture request, as it believes that it has the right to continue to lease and charge fees for these domain names,” he said. “It does not want to take any responsibility for the activities of the sites to which these domains refer to.”

So...did the Stockholm court accept Punkt SE’s apparent contention that it has no responsibility to police websites for unlawful activity? An attorney for Sweden’s Rights Alliance, a copyright enforcement group, doesn’t think so.

In a statement to us, Rights Alliance attorney Sara Lindback said that the ruling demonstrated that the domain registries could potentially be subject to copyright enforcement action in a similar way as ISPs and advertisers.

Hmmm. The reasons why the Stockholm sided with Punkt SE are important. And we don’t yet know these reasons.

Third is the question of whether domain names are “property” or merely a contract for services.

As Prof. David Post noted in a recent blog post on a judgment creditor’s attempt to levy on the .ir, .sy, and .kp ccTLDs, U.S. law enforcement officials consider domain names to be property subject to forfeiture.

And at least one court agrees that domain names are property. See Sprinkler Warehouse, Inc. v. Systematic Rain, Inc., No. A14-1121 (Minn. Ct. App., Feb. 2, 2015).

The issue is important because if domain names are merely contracts for services, then registries/registrars, and the Internet Corporation for Assigned Names and Numbers, are firmly in control of the domain name system. To the extent that domain names are considered to be “property,” there are legal strings attached because the disposition of domain names would be subject to each nation’s conception of property rights.

Also important to the “is it property?” inquiry is the question of whether there is a meaningful difference between generic top-level domains and country-code top-level domains, the latter being closely managed by national governments in many instances.

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