We've covered how Rep. Zoe Lofgren is one of the only Representatives in Congress (along with Senator Wyden on the other side of the Capitol building), who appears to actually be concerned
that Homeland Security's Immigration and Customs Enforcement (ICE) group is seizing web domains on questionable authority, without due process, and likely in violation of basic First Amendment rights against prior restraint. Of course, even with just one Congressional Rep. speaking out about this, apparently the RIAA wishes to stomp out any dissent. Yesterday, they sent Rep. Lofgren an unsolicited letter in response to her comments. You can see the full letter embedded below, but let's go through a few of the "highlights."
Online theft, particularly through websites dedicated
to infringing our rights, is a terribly important issue for those who invest in the artists and
music that entertains the world. Online theft has cost our industry, the broader entertainment
community, and our economy billions of dollars and thousands of jobs.
Note the claim about the lost jobs and losses to the economy. These are the same claims that have been repeatedly debunked in the last few months. There are no direct losses from infringement. There is only the industry's failure to adapt with new business models for a changing market. Of course, even if we're feeling generous, and grant the RIAA's premise that there have been billions in losses here, is that really an excuse for ignoring due process and the First Amendment? Seems like an odd argument.
I would like to take this opportunity to respond to the reference in your comments at
the hearing to a New York Times article regarding a site implicated in the U.S. Immigration
and Customs Enforcement’s (ICE) domain name seizures that claimed it received some music
directly from a record label. The implication of the article was that any action against this or
similar sites would be inappropriate given its distribution of some potentially authorized content.
Actually, this paragraph is quite misleading on a variety of points. First of all, no one has implied that "any action" against these sites would be "inappropriate" just
because they published some authorized content. If it's true that they were distributing unauthorized content in violation of the law, then action could very well be appropriate. What we're questioning is the type
of action. That is, no actual lawsuit has been filed on the sites named in that NY Times article. Instead, the sites were simply seized with no due process, and in violation of the higher standard for the seizure of content found in Fort Wayne Books v. Indiana
Secondly, I've seen
the evidence. The same evidence the NY Times saw. It wasn't just that there was "some" authorized content, but that every single song
that ICE used to claim probable cause of criminal
infringement was authorized.
Furthermore, according to the affidavit for seizure, it appears that ICE relied solely
on a false claim from the RIAA's own Carlos Linares that the four songs in question were, in fact, unauthorized. It's rather odd that the RIAA's letter makes no mention of this. It also fails to mention that one of the songs named was not by an artist signed to an RIAA label -- and yet Linares allegedly still had no qualms about claiming it was infringing, despite no right to speak for that artist. Seems like a pretty big oversight for the RIAA to skip that point.
The First Amendment serves as a safeguard for free expression but not as a shield for
illegal behavior. If, as the U.S. Supreme Court has stated, "neither the press nor booksellers
may claim special protection from governmental regulations of general applicability simply
by virtue of their First Amendment protected activities," then neither should sites dedicated to
theft just because they also host online conversation. The fact is that these sites are welcome
to limit their offerings to only authorized material (including any music provided by a rights
holder) and to public discourse. But no one should be allowed to continue to engage in illegal
activity while hiding behind a facade of legitimacy
Once again, the letter presents a gross misrepresentation of what actually is going on. No one -- no one -- is claiming that these sites get any "special protection" because they "also host online conversation." We're saying they get the same First Amendment protections anyone else gets -- which means that if you believe they infringe, you sue them. You don't just have the government seize their property. On top of that, you especially don't have the government seize their property based on four songs that were actually authorized.
Also, it's rather amusing that the RIAA's letter "quotes" the Supreme Court but is quite careful not to either name the case it's quoting, or to put the quote into context. That's because it knows doing either of those things would undermine its argument here entirely. First, the quote itself comes from Arcara v. Cloud
, the one
case that supporters of this kind of censorship keep hanging their hats on. Of course, Arcara doesn't apply here
, as we've discussed repeatedly. The ruling in Arcara is explicit: it only applies to crimes that "manifest absolutely no element of protected expression." But speech on websites is protected expression.
Makes you wonder why the RIAA would leave out the fact that the very case they're quoting explicitly
says it does not apply to the situation we're discussing. Funny, huh?
As for the claim that sites shouldn't be allowed to "engage in illegal activity while hiding behind a facade of legitimacy" -- we agree. But, no one is claiming that here, other than the RIAA. The problem is that no one has shown that illegal activity occurred. Instead, all they showed was that the RIAA appears to have said
the songs were infringing, when they were all sent by representatives of the copyright holder.
It all sort of makes you wonder if the RIAA's response here is even more about covering its own hide from the fact that it may have made false representations to federal officials in a criminal investigation.
As notable First Amendment scholar, Floyd Abrams, stated last month in a letter to the Senate Judiciary Committee with reference to such
seizures, "Copyright violations are not protected by the First Amendment. Entities 'dedicated
to infringing activities' are not engaging in speech that any civilized, let alone freedom-oriented,
nation protects. That these infringing activities occur on the Internet makes them not less, but
I am not familiar with the specifics of Abrams' claims, but I will argue that he is being misleading here as well (or the RIAA is being misleading in how it is quoting him). Oddly, we also just had to debunk
Abrams' false claims about Wikileaks, in which he incorrectly claimed that Wikileaks had done things it had not. It appears that, once again, Abrams has been speaking without full knowledge of what's going on. First of all, no one is claiming that copyright violations are protected by the First Amendment. We're claiming that the the non-infringing speech is protected by the First Amendment
. Furthermore, Mr. Abrams' claim that such sites are somehow not engaging in speech, suggests a near complete level of ignorance of how some of these sites functioned -- and the FACT
that the labels themselves relied on these sites as part of their promotional strategies. If it were actually true that this was some sort of horrible, dangerous site that no civilized nation would protect... why were the labels using them to promote works?
Either way, the larger point is that Abrams and the RIAA appear to be playing a cheap game of misdirection here by focusing only on the claims of infringement and by ignoring the massive amounts of non-infringing speech. And, in the specific case of Dajaz1, the government has failed to prove any
infringement. So, can the RIAA and Abrams explain how it is acceptable for the RIAA to falsely claim infringement, have a site shut down... and then pretend the site was dedicated to infringement?
Assuming the site referenced in the New York Times article you cited actually received
some authorized copies of legitimate material doesn't excuse the criminal activity of making
available thousands and thousands of copies of unauthorized material. In the physical world,
if the government seizes a shipment of thousands of boxes of illegal goods, and the distributor
of the illegal goods tries to cover itself by including a small portion of lawful goods on top, the
seizure would not be improper.
This is partially true, but mostly misleading. The big problem, of course, is that the government failed to show any
criminal activity on the part of Dajaz1. So, it's hard to see how they can claim seizing is okay. Separately, once again, when a seizure involves speech
-- even speech that is unprotected, such as obscenity -- the law is quite clear (though the RIAA ignores this) in a whole bunch of cases, that a higher standard must be met to avoid prior restraint. No such bar was met.
Some have opposed recent seizures based on the claim that "they are ineffective anyway
because the sites just pop right back up." Follow-up to the seizures that have occurred thus far
indicate the opposite -- recidivism is low.
First of all, I haven't actually seen this claim made anywhere seriously, so I'm not even sure why the RIAA is bringing it up. But, more importantly, the claim that recidivism is low also appears to be (yet again!) misleading in the extreme. It may be true that there has been a low level of recidivism in the domains seized for trademark infringement/counterfeiting (still the majority of seizures). On that front, I haven't been following things as closely. However for the domains seized around copyright claims, a large majority of them came back online quite quickly, with most of the rest showing up soon after.
Finally, claims regarding a lack of due process under U.S. statutory procedure remain unfounded. The sites targeted by the government are reviewed by investigators, U.S. Attorneys,
and judges. There is a thorough analysis and prosecutorial discretion is exercised by several
parties. There has been no rush to judgment.
This one makes me laugh because the RIAA completely ignores the very case that Lofgren so importantly highlighted: the mistaken and illegal seizure of 84,000 innocent sites. They all went through that same "review." And it didn't work. That's because it's not an actual review and it's not actual due process. Having only one side (the government) "review" (really: rubber stamp) things is not due process. Due process means that the accused should be allowed a chance to respond before any protected speech is blocked. That's fundamental to US Constitutional law, and it's troubling that the RIAA would ignore that.
And, as you noted at the hearing, an aggrieved
party can always challenge a wrongful seizure under due process provisions set in statute –
although it is noteworthy that so far none of the hundred sites seized for conducting illegal
activity has chosen to do that.
Due process does not mean the government seizes and then if you don't like it you get to protest later. As for the claim that none of the sites have yet chosen to take legal action, that's again incredibly misleading. First of all, the government did not even provide most of the sites with the necessary information until months
later, and then many have spent the last few weeks scrambling to find lawyers willing to take on the US government on a pro bono basis (because, despite claims to the contrary by the RIAA, these sites are not huge moneymakers). That's not easy. However, I am aware of a few sites who have secured representation and are currently "discussing" these issues with the government. I'm sure the RIAA is aware of this as well, so it's misguided to pretend that they've all just gone away silently.
It's noteworthy, too, that the letter is signed by Mitch Glazier for the RIAA. Glazier, of course, is infamous
for his supposed role in sneaking a clause into an unrelated bill -- literally in the middle of the night -- while he was a Congressional staffer, which would have removed an important right of artists to reclaim their copyrights from record labels. Months later, he was hired by the RIAA for a salary around $500k per year -- a job which he retains today. For Mitch Glazier, of all people, to write a letter to a Congressional Representative, pretending to represent the best interests of artists
, is pretty laughable.
Either way, almost nothing in the letter is accurate or honest, and none of it
answers the key questions being raised by Rep. Lofgren. It most certainly does not explain why ICE is involved in what should be a civil matter. It does not explain why there is no adversarial hearing, despite it being entirely appropriate (as the mistaken seizures have shown). It does not explain why the RIAA stated that these files were infringing when the evidence shows that they were not (and with at least one file, the RIAA had absolutely no right to speak for it).
All in all, the entire letter seeks to avoid the important issues and focus on claims that haven't actually been made. I fully expect Rep. Lofgren will give it all of the attention that such a letter deserves.