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by Aaron Thalwitzer

The next time you link to a video could be your last.

The Department of Homeland Security (DHS) is now criminally prosecuting merely linking to copyrighted material.

See the case of Brian McCarthy’s domain, channelsurfing.net. In late January, DHS and Immigration Customs Enforcement (ICE) seized his site and replaced it with an ominous warning: “This domain has been seized by ICE - Homeland Security Investigations, Special Agent in Charge, New York Office.”

The government commented on the case, saying:

That eagle means business.

It is unlawful to reproduce copyrighted material, such as movies, music, software or games, without authorization… First-time offenders convicted of a criminal felony copyright law will face up to five years in federal prison, restitution, forfeiture and fine.

That’s akin to saying, “breaking the law is illegal.” But of course it’s unlawful to reproduce copyrighted material. This is a new level of prosecution – the Feds aren’t going after those who merely reproduce content, but rather someone who showed others where to find it, and put him away for 5 years for doing so.

Let me be crystal clear: profiting from someone else’s copyrighted work without their permission is not okay. My gripe is with DHS’ law enforcement strategy and the arbitrary nature of this prosecution.

This is like when the government is targeting the street level dealer instead of the kingpin. Actually, no, that’s not quite right it. This is like going after the guy who has directions to the street corner where you can buy a dimebag.

The criminal complaint acknowledges that agents knew that McCarthy was only running a “linking website.” Special agent Daniel Brazier wrote in the complaint:

Based on my participation in the investigation leading to the February 2011 Seizure, I know that Channelsurfing.net was a ‘linking’ website . . . Based on my training and experience, I know that ‘linking’ websites generally collect and catalog links to files on third party websites that contain illegal copies of copyrighted content, including sporting events and Pay-Per-View events.

Special Agent Brazier described 17 copyrighted sports programs he watched when he “clicked on links” at channelsurfing.net.

The complaint alleges that McCarthy engaged in the “reproduction and distribution” of copyrighted material, it does not state that he actually reproduced the specified broadcasts.

By now, you’re thinking what I’m thinking. What about YouTube? The world’s largest video sharing website surely has millions, probably billions of links directing people to copyrighted material. Probably, some will be prosecuted, or at least threatened. This strategy is irrational and ineffective at achieving the only legitimate goal of criminal prosecution: justice. The Internet has too many redundancies. Links are too easy and too many to control (except, sort of, if you’re China, or maybe North Korea). And McCarthy is more likely to be martyred than shunned by the Internet going public (i.e. nearly everyone).

The next question is whether this type of selective prosecution is legal.

The government has few restrictions on who it chooses to prosecute. It cannot selectively enforce laws or prosecute criminal laws against a particular class of persons while simultaneously failing to administer criminal laws against others outside the targeted class.

The U.S. Supreme Court has held that selective prosecution exists where the enforcement or prosecution of a criminal law is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the administration of the criminal law amounts to a practical denial of equal protection of the law. See United States v. Armstrong, 517 U.S.___, 456 (1996); quoting Yick Wo v. Hopkins, 118 U.S. 356 (1886). Specifically, police and prosecutors may not arrest or criminally charge a person based on “an unjustifiable standard such as race, religion, or other arbitrary classification.” Armstrong, quoting Oyler v. Boles, 368 U.S. 448 (1962).

In Armstrong, alleged crack dealers argued that they were prosecuted because they were black.

From what I now observe, no class exists that distinguishes owners of ‘linking’ websites from owners ‘reproducing’ websites. Except for one. Surely it takes greater resources to store, send, and receive large amounts of data than to merely type a store a link to such data. Were I defending McCarthy, I would investigate whether linkers fall into a different economic class than reproducers. I do not know whether this argument has any teeth, factually. But it provides a good faith starting point.

Justice Stevens’ dissent in Armstrong provides a starting point for investigation. He noted that nearly all people convicted for dealing crack were black, and shows concern with the disparity between federal crack and powdered cocaine sentences and wonders about the relationship between these facts.

I wonder whether an analogous pattern will emerge in copyright prosecutions. Or perhaps it already has. Regardless, this sort of prosecution demonstrates a major shift in the way the government polices the Internet.