Techdirt. Stories filed under "dajaz1"

Tell The White House To Stop Illegally Seizing & Shutting Down Websites

Mike Masnick — Mon, 11 Jun 2012 08:21:00 PDT

While the public got reasonably upset about SOPA's overreach, and the possibility that it would be used to shut down websites with no due process, what they miss is that the federal government has been pretending that it already has that right under the last change to copyright law -- the ProIP Act (not the same as the Protect IP Act, which was the Senate's counterpart to SOPA). The ProIP Act was filled with a ton of bad ideas. An outcry (much smaller than SOPA) at least stopped some of the very very worst parts of the original ProIP Act from being enacted, but there were still plenty of "easter eggs" from the entertainment industry. One of them was the expansion of "civil forfeiture proceedings," to also cover:

(1) CIVIL FORFEITURE PROCEEDINGS-
(A) The following property is subject to forfeiture to the United States:
' (i) Any copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in violation of section 506(a) of title 17, any plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be made, and any electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords.

`(ii) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of a violation of section 506(a) of title 17.

`(iii) Any property used, or intended to be used, to commit or facilitate the commission of a violation of section 506(a) of title 17 that is owned or predominantly controlled by the violator or by a person conspiring with or aiding and abetting the violator in committing the violation, except that property is subject to forfeiture under this clause only if the Government establishes that there was a substantial connection between the property and the violation of section 506(a) of title 17.
`(B) The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section.

This was tucked in at the very end of the bill, and it's almost too clever for its own good. Notice how part (i) talks about "phonorecords" and them being "manufactured" and such. That quickly gets people thinking that this is merely about extending seizure and forfeiture laws to things like CD and DVD burners. In fact, when I asked about this particular section back in 2007, I was told exactly that: that it had little to do with the internet, but was really about seizing disc burners. The only areas where they were talking about the internet was in cases involving hard drives full of infringing material.

The only person I saw actually highlight just how worried people should be about this section was famed copyright legal scholar, William Patry, who explained just how "gluttonous" this move was by the entertainment industry:

The idea that criminal forfeiture provisions, drafted to reach major drug traffickers like the Columbian cartels, should be inserted into civil copyright tort provisions with a preponderance of the evidence burden, is mind-blowing. The capacity – if not intent – of these provisions for profound mischievousness is obvious: in addition to the gluttonous statutory damages that would be available, content owners now want to defendants to forfeit their computers, their cars, and their homes: all of these can be said to have been used in the commission of infringement (say defendant uses his phone to call someone else involved in the infringement and says “meet me at 11 at Moe’s).

But the bill goes even further: it is not only property actually used that is subject to forfeiture, property that wasn’t used but was “intended to be used” can also be seized. Say, a defendant intended to use his car to transport a computer used in connection with infringement, civil infringement, but decided to take his wife’s car instead. Under the bill, both cars, the computer, and the house where the cars and the computer are stored can be forfeited. But there is more: the bill also includes property “derived from any proceeds obtained directly or indirectly” as result of civil infringement. A television, children’s toy, anything that a defendant owns could fall within this: how could one disprove that any property purchased in the relevant time period was not indirectly derived from infringement. Is even gluttony enough to describe this?

But here's the thing: Patry underestimated how this would be used. He expected it would be used to harass people by seizing other physical property. He never imagined that it would be used to censor websites by "seizing" their domains. No one discussed that at all. In retrospect, however, it now seems clear that this was the intent all along. This little section was a big part of why the entertainment industry wanted ProIP so badly -- and it likely put in some of the other ridiculous ideas to throw people off the scent. If so, it worked.

Not long after ProIP was officially signed into law, Immigrations and Customs Enforcement (ICE), a division of Homeland Security, in partnership with the Justice Department, began one of the most shameful operations by the US government: a widespread campaign to seize and censor websites, pointing to this clause as the "legal cover," despite the fact that such censorship is almost certainly a violation of both the 1st and 5th Amendments. Called "Operation in Our Sites," ICE has been seizing (and in some cases forfeiting -- which, in this context, means keeping, as "seizure" is supposed to be a temporary process) website URLs on very little legal basis, without any adversarial hearing -- indeed, without even providing notice to those who own the sites often until weeks or months later. This began in June of 2010, with ICE announcing its first round of illegal seizures directly from Disney's headquarters, not even trying to hide that they were censoring websites at the urging of Hollywood. As we said at the time, imagine the outcry if the FTC announced Google antitrust charges from Microsoft's headquarters. People would go nuts.

Of course, as we've since learned, the whole process was corrupt. In one case, that of hiphop blog Dajaz1, the Justice Department refused to let the site have its day in court, passing a series of totally secret "extensions" while waiting for the RIAA to provide "evidence" it never could provide (because it didn't exist). Eventually, after having shut down and censored a publication for over a year, the government quietly just handed the domain back without even so much as an apology. To this day, the Justice Department has been dodging questions about this domain.

And while Dajaz1 gets most of the attention, it's worth remembering that over 700 websites have been illegally censored in this manner, and we don't know how many of them are trying to get their domains back, because the government continues this very secretive process. In fact, from what we do know, two other websites that were seized in the same round as Dajaz1 and have been trying to get their domains back ever since are still being held hostage by the government. Yes, these sites have been censored for over a year and a half now.

For all the talk and worries about SOPA, it's important to realize that the thing people were most scared about -- that the law would be used to censor websites the entertainment industry just doesn't like -- is already a reality, and it came via ProIP and is happening now under the name "Operation In Our Sites."

Last week, a White House petition was set up, calling for the White House to put an end to Operation In Our Sites. To date, the administration has done everything possible to hide from the fact that it's censoring websites, while playing up claims that it's "stopping piracy." This needs to stop. Signing the petition is one step in making that happen, along with actually holding the White House responsible for the fact that it is censoring and shutting down websites, even while it's telling the rest of the world that they need to stop censoring the web.

Please pass the story around to others, so that they recognize what's already being done by the US government to censor websites under the guise of copyright law.

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Congress Begins To Wonder Why ICE & DOJ Censored A Popular Hip Hop Blog For A Year

Mike Masnick — Wed, 9 May 2012 08:32:00 PDT

We already discussed the RIAA's attempt to downplay its role in helping the feds seize and censor the popular hiphop blog Dajaz1.com. It seems the feds are also trying to brush this off as if it's nothing important. According to a comment they gave Ben Sistario at the NY Times:

Ross Feinstein, a spokesman for Immigration and Customs Enforcement said Sunday that government officials had followed all proper procedures in the case of Dajaz1, which was one of more than 760 sites seized.

That really makes you wonder. How is it possible that they could have followed "all proper procedures" when the end result is that they stopped a popular blog from publishing for well over a year, without ever actually filing a lawsuit? If that's the "proper procedure" then the procedure is what most people call "unconstitutional."

Thankfully, it appears some are noticing this. Senator Ron Wyden clearly understood what's going on and told Techdirt:

"The domain name seizures show that some agencies in the Obama administration care more about the interests of Hollywood studios and the big record labels than due process, transparency, and accountability. It is hard to believe that ICE and DOJ had Dajaz1's Fifth amendment rights in mind when they seized their property and held it for more than a year without ever being able to build a case."

Rep. Zoe Lofgren spoke out about the case to Politico, pointing out that the seizure appears to break the law:

"A blog has the same protections as a newspaper or magazine, and yet ICE saw fit to seize this site for over a year for dubious reasons," Lofgren told MT. "It's an outrageous abuse of First Amendment and due process rights, raising serious questions about why the Department of Justice allowed this seizure to continue when the government clearly did not have probable cause."

Indeed. With Wyden concerned about the Fifth Amendment and Lofgren concerned about the First... I'm guessing that this isn't the end of the discussion around this particular seizure.

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RIAA Tries To Downplay Its Role In The Feds' Unjustifiable Censorship Of Dajaz1

Mike Masnick — Tue, 8 May 2012 08:14:00 PDT

Last week, we had the story about the unsealing of the court records in the Dajaz1.com case. That revealed that the main reason why the feds (almost certainly illegally) held onto the domain name for over a year was that ICE had asked the RIAA for the evidence it needed (i.e., that Dajaz1 actually infringed -- criminally -- on its members' copyrights), and the RIAA had taken its sweet time responding.

Ben Sisario, over at the NY Times, has an article noting the official RIAA statement on the matter. Both Ben and the RIAA itself were kind enough to send me the full RIAA statement:

"We referred this particular site to ICE for investigation because of its long history engaging in the unauthorized distribution of copyright content prior to its commercial release. ICE conducted its own independent investigation of the site and ICE along with the Justice Department concluded that there was a basis for seizing the domain name. Rights holders and the RIAA were requested to assist law enforcement and made every attempt to do so in a complete and prompt manner. As we stated previously, we were disappointed with the decision to not seek forfeiture but we respect that this is a judgment that properly lies with the government."

For what it's worth, I also asked the RIAA if it could provide me the date on which it actually responded to ICE's questions, and I was told, politely, that the RIAA had "nothing further to add for now."

Beyond that, however, the RIAA's statement is ridiculous. First, it admits that it was the one who told ICE to seize this domain -- as had been suspected all along, but now has been admitted. At the very least, this raises significant questions about the all-too-close relationship between the federal government and the RIAA. The RIAA claims that "ICE conducted its own independent investigation," but that's clearly untrue. In both the original affidavit and the unsealed documents last week, ICE makes it clear that it relied heavily on the RIAA's statements. As we noted soon after the affidavit came out, ICE's "investigation" consisted of downloading four songs and asking Carlos Linares, the VP of Anti-Piracy Legal Affairs for the RIAA, if they were infringing. He said yes, and that was good enough for ICE to move forward with the seizure. Of course, as we pointed out, on one of the songs, Linares had no right to speak for the artist, since it wasn't even an RIAA artist. On the other songs, it appeared that the RIAA did not check with the labels' own promotions people who had sent the tracks.

That said, the really ridiculous claim here is that the RIAA helped in a "complete and prompt manner." If that were true, then 10 months after the domain was seized, ICE wouldn't be whining to a judge that it needed to censor the blog for another two months because the RIAA wasn't responding or providing the necessary evidence. It's hard to square the RIAA's statements with the government's.

Dajaz1's lawyer, Andrew P. Bridges, however, had a few things to add, and responded, in detail, about how ICE's original claim to being able to seize the domain in the first place was clearly against what the law allows:

The owner of Dajaz1.com appreciates the fact that the United States Government, on studying the matter further with all the information the RIAA could furnish, determined that there was in fact no probable cause to seek a forfeiture of the domain it had seized and held for a year.

That exoneration, however, did not remedy the harms caused by a full year of censorship and secret proceedings — a form of “digital Guantanamo” — that knocked out an important and popular blog devoted to hip hop music and has nearly killed it.

The original seizure was unjustified. The delay was unjustified. The secrecy in extensions of the forfeiture deadlines was unjustified.

Five details are notable here.

First, the seizure occurred pursuant to language the PRO-IP Act authorizing seizures of property used in connection with the making of, or trafficking in, “articles” in violation of copyright law. In that context, “articles” are physical items. The law does not authorize seizure of domains that link to other sites. So from the beginning this seizure was entirely legally unjustified, no matter what the allegations about infringement.
SEC. 2323. FORFEITURE, DESTRUCTION, AND RESTITUTION.
(a) CIVIL FORFEITURE.-
(1) PROPERTY SUBJECT TO FORFEITURE.-The following property is subject to forfeiture to the United States Government:
(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

Second, seizing a blog for linking to four songs, even allegedly infringing ones, is equivalent to seizing the printing press of the New York Times because the newspaper, in its concert calendar, refers readers to four concerts where the promoters of those concerts have failed to pay ASCAP for the performance licenses.

Third, RIAA’s grand and sweeping attacks on dajaz1.com suggest that RIAA’s powers of demonization far exceed its ability to substantiate its malicious statements with specific and credible facts.

Fourth , when I explained that the blog publisher had received music from the industry itself, a government attorney replied that authorization was an “affirmative defense” that need not be taken into account by the government in carrying out the seizure. That was stunning.

Fifth, when discussing the secret extensions with the U.S. Attorney’s office in Los Angeles, I repeatedly asked the government attorney to inform the court that my client opposed any further extensions and asked for an opportunity to be heard. Not once did the government reveal those requests or positions to the court. The government should be embarrassed for keeping that information from the court.

This entire episode shows that neither the government nor the recording industry deserves any additional powers with new so-called “antipiracy” legislation, especially in the context where copyright law has been expanded and new anti-piracy remedies have been crafted ***16 times*** since 1982. This episode shows that the copyright establishment and the government are very much the “rogues” that deserve to be reined in.

That's a pretty meaty response, especially given the weak statement from the RIAA. All five of those points could be worthy of separate posts, delving into the details. For now, however, I'll just focus on two of the points. First, the fact that the government thinks that the use of authorized works is merely a defense to accusations of copyright infringement suggests a DOJ that is out of control with power, and completely out of touch with both the basics of the First Amendment and the Copyright clause, both of which would disagree with the government's statements here. There are already civil cases on the books, stating that claims need to take into account legitimate uses of the work before filing suit. However, in this case, it's even worse, because we're talking about a criminal issue, where (1) the presumption of innocence is supposed to be in effect and (2) for criminal infringement the behavior must be willful. As such, the fact that the tracks were authorized is not a defense, it's a key part of the question of willfulness. The government must consider that information prior to shutting down a site.

The second point is Bridge's comment about the RIAA's "power of demonization" and failure to actually deliver. This is a really important point, because it demonstrates just how much ICE and parts of the DOJ appear to be captured by this private entity with a history of hysterical overreactions. If the feds were truly independent, none of this would have happened. Instead, the feds appear to have relied heavily on what quickly became clear were... well, let's just say "misguided" claims by the RIAA. We detailed how misguided the claims were just weeks after the seizure. From the evidence shown so far, it appears that rather than admit that it screwed up, ICE and the DOJ simply went running to the RIAA again, asking for more help in getting them out of the mess they had caused. And the RIAA couldn't deliver.

It's truly amazing that ICE and the RIAA still can't even admit how wrong they were here, let alone give an apology to Dajaz1.com. I guess that would be tantamount to admitting just how badly they violated the site's free expression and due process rights.

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Judge Lets Feds Censor Blog For Over A Year So The RIAA Could Take Its Sweet Time

Mike Masnick — Thu, 3 May 2012 16:08:16 PDT

You may recall a few months ago, that we broke the story about how the US government seized and censored the hiphop blog Dajaz1.com for over a year, before suddenly giving it back with no explanation or apology. Among the many problems with the government's actions, the really crazy part was the fact that despite a legal requirement to either give the "seized property" back by May 15th or file a case for forfeiture against the site, the government appeared to do absolutely nothing. When Dajaz1's lawyer, Andrew P. Bridges, asked the government about this, he was told that the government had filed for and received an extension, though no one had bothered to inform Dajaz1 or Bridges, or even allowed them to see the filing, the order or to speak to the judge. This "secret" extension process supposedly happened two more times, and all of it was "under seal," so even when the domain was given back, all we had to go on was claims from Dajaz1 that it had really happened.

The good folks over at Wired, the EFF and the California First Amendment Coalition sprang into action and filed with the court to have those documents unsealed. And while the court agreed to unseal the documents back in March (and then ordered them unsealed "immediately" on April 5th), the documents finally were unsealed yesterday.

The documents are embedded below, and there's really not that much there. Basically, the government keeps asking for an extension, insisting that it's in the middle of an important "criminal investigation" and needs more time. It claims, without anything to back this up, that actually doing what the law requires (giving the domain back or filing for forfeiture) would mean alerting those who were being investigated what was up, and might cause them to make a run for it or to destroy evidence. They provide no evidence to support this, and since Dajaz1 was never informed about any of this... they had no chance to refute these ridiculous claims by the government.

The only point that's brought up to explain the delay is in an affidavit from ICE Special Agent Andrew Reynolds, the slightly befuddled recent college grad who was in charge of the original error-riddled investigation, in which he notes repeatedly that the RIAA has not gotten back to him about whether or not their rights have been violated.

A sampling of content obtained from the DAJAZ1.com website and its purported affiliate websites was submitted for rights holder evaluation and has yet to be returned to HS, SAC/LA. Additionally, a representative with the Recording Industry Association of America (RIAA) has stated that he will provide a very comprehensive statement to ICE's and CBP's outstanding questions, in coordination with corresponding rights holders, which will be forthcoming in approximately 30 days.

That was Reynolds statement on September 7th, 2011. Remember, thanks to Agent Reynolds, Dajaz1.com was seized on November 24th 2010. So we're talking 10 months later, and he's claiming that the RIAA still hasn't gotten back to him over whether or not the tracks were actually infringing or with answers to ICE's questions?!? And yet, in the original filing, Reynolds stressed the importance of completely taking away and censoring this website as quickly as possible because of all the harm it was causing. Yet, the RIAA gets to wait 10 months and never actually confirm that anyone's rights were violated? Perhaps the RIAA's reticence to respond was because it started discovering that the songs in question were actually handed over by official representatives of the labels or the musicians. Of course, that's no excuse for ICE to continue to hold onto the website in question. Just because they totally screwed up and rushed in to censor, doesn't mean they get to drag their feet in admitting error.

Either way, this is pretty crazy. Basically the documents show that the feds seized first, and then sat around waiting for the RIAA to actually provide evidence.... evidence that appears to have never showed up. As the EFF's Cindy Cohn told Wired:

“Here you have ICE making a seizure, based on the say-so of the record company guys, and getting secret extensions as they wait for their masters, the record companies, for evidence to prosecute,” Cohn said in a telephone interivew. “This is the RIAA controlling a government investigation and holding it up for a year.”

Even more troubling, however, is that the repeated requests for extension do not (at all) address the key First Amendment issues about the fact that a news publication was completely shut down based on these accusations. The law is pretty clear that the burden for shutting down a publication is pretty damn high, and nothing in the filings comes anywhere close to meeting that burden. Even worse, the judge in the case, Margaret M. Morrow, just rubber stamps the request allowing them to move forward at will. She does not appear to ask any questions. She does not appear to even be curious about the fact that an entire website was shut down and censored without meeting the clear burden under the law. It's just "request granted," basically.

Not only that, but with the last two extensions, she granted them late. That is, they were both granted after the deadline, by which the government legally had to give back the domain. The first extension needed to be in place by May 15th, and indeed, was granted on May 13th. But after that, perhaps, someone realized that without anyone on the other side even having to know about this, they could take their time. The first extension only went until July 15th. But the second extension wasn't granted until July 18th. Legally that seems to mean that the government illegally held the domain for those three days when it had no right to do so. Similarly, the second extension expired on September 13th. But the judge didn't sign the next extension until September 19th. Again, it would appear that the government was then holding onto property it had no legal right to for about a week after the earlier extension expired.

Either way, for all the promises of a big criminal investigation that was going to turn into a big criminal lawsuit just as soon as the RIAA got back to Special Agent Reynolds, it appears the whole thing fizzled into absolutely nothing, leading the government to quietly hand the domain back to Dajaz1 in December... almost exactly a month after the final extension expired on November 11th. There isn't much enlightening in the unsealed documents other than a pretty clear reminder that the feds seized and censored a website on questionable legal reasoning and then refused to give that website the ability to have its day in court to protest that First Amendment violation.

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50 Cent Sued Over Infringing Sample; When Will Hip-Hop's Stars Speak Up About Copyright?

Leigh Beadon — Mon, 23 Apr 2012 13:31:00 PDT

The folks at dajaz1, who know better than anyone how copyright stifles culture and free speech, send in the news that Robert Poindexter of The Persuaders is suing 50 Cent for copyright infringement over a sample on a free album he released in 2009. This is likely to end in settlement, with a payout to Poindexter, because 50 Cent isn't offering any defense beyond the fact that the album was free. Unfortunately, this carries little to no legal weight. The courts have been unkind to sampled music over the years, as detailed in the excerpt we posted (part 1 and part 2) from this month's book club feature, Copyfraud. But, as dajaz1 explains quite clearly, sampling and remixing on free albums and mixtapes has always been an essential part of hip-hop, and is even embraced by labels:

This has been happening for many years on mixtapes and it’s quite common so 50′s attitude on this not shocking. Its the same attitude of every artist in urban music and it’s been like that from jump. In fact that’s why mixtapes are given away for free and not sold commercially. To put a bar code on a tape or sell it commercially violates many laws, but to give it away for free under the guise of “promotional use” has been the name of the game for decades and largely considered ok. This type of stuff is why these labels suddenly calling websites like us “rogue” for releasing them or trying to shut people down or put them in jail for making, releasing, or offering them for download has always been ridiculous. The attitude 50 is taking here is the same one every urban artist operates under and the promotional department of the major labels have been looking the other way on for years. Hell the major labels have been active participants. If you can’t clear the song you throw it out on a mixtape, or for free to radio mixshows and the blogs/internet as a freestyle/remix. Every major label artist that has made it in the rap genre has utilized these tactics so a loss in this case could be devastating not only to rap as a genre but the labels as well.

This is just another example of how copyright is totally out of sync with reality. This kind of activity is indispensable to culture, and it doesn't stop no matter what the law says—but it does get stifled, and driven underground, which is the opposite of what copyright is supposed to accomplish. As the chapter we posted from Copyfraud notes, several albums that are widely considered to be classics and important moments in music history (like Paul's Boutique or It Takes A Nation Of Millions To Hold Us Back) would be almost impossible to legally release today. Meanwhile, highly acclaimed mashups like The Grey Album are praised by the musicians whose work has been mashed, but are technically illegal and exist only as bootlegs by the grace (read: fear of bad publicity) of the record labels.

The big question is: can artists like 50 Cent do something about this? Hip-hop is one of the most popular and influential genres of music in the world, and its superstars command huge audiences. Most hip-hop fans don't realize that the genre is a legal minefield that exists because most artists cross their fingers and ignore the law entirely, while a rich few pay obscene royalties and settlement fees. Someone like 50 Cent is in the perfect position to raise more awareness of broken copyright law, and I hope that this attack on the lifeblood of hip-hop culture spurs him to do so.

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RIAA Doesn't Apologize For Year-Long Blog Censorship; Just Stands By Its Claim That The Site Broke The Law

Mike Masnick — Thu, 8 Dec 2011 13:08:29 PST

Following our story this morning about the government censoring a popular blog for over a year and denying them basic due process, before finally failing to find probable cause and returning the domain, it appears that the RIAA is trying to quickly absolve itself of responsibility for the whole thing. As we noted in our post, the government relied on an executive at the RIAA to claim that the works it used as evidence to seize the domain were infringing -- despite the fact that the RIAA was in no position to know if the rightsholders had authorized the music sent to the site (and, in one case, despite the fact that the musician was not affiliated with the RIAA).

News.com now has a story about the whole mess as well, with a quote from the RIAA that ignores the lack of due process, the lack of probable cause, and just sorta shrugs its shoulders with a "well, we thought it was infringing."

For a year and a half, we monitored the site, identifying instances where its operators had uploaded music to unauthorized file-sharing services where the recordings could be freely downloaded -- music that artists had created with the expectation that they would have a chance to sell before it was leaked. Dajaz1 profited from its reputation for providing links to pre-release copies, and during that time nearly 2300 recordings linked to the site were removed from various file-sharing services. We are unaware of a single instance where the site operator objected by saying that the distribution was somehow authorized.

I'm not even entirely sure what that means. Considering that the music was sent by representatives of the label itself for the express purpose of having it promoted, it's unclear how or why the RIAA believes Dajaz1 was infringing. And whether or not Dajaz1 objected to the RIAA throwing around DMCA notices really has nothing to do with what happened to the site. If there really was such evidence, wouldn't the government have actually used it in court, rather than stalling for a year and finally admitting that there was no probable cause?

Either way, this response from the RIAA appears to ignore the horror that they helped allow the US government to flat out censor a web site that was used to promote their works. You'd think they'd be a little more careful and at least apologize. Either way, the RIAA might want to reconsider claiming that freedom of speech is a core RIAA value. Its "statement" here certainly suggests otherwise.

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Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details...

Mike Masnick — Thu, 8 Dec 2011 08:29:07 PST

Imagine if the US government, with no notice or warning, raided a small but popular magazine's offices over a Thanksgiving weekend, seized the company's printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine's lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that's a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.

But, in a story that's been in the making for over a year, and which we're exposing to the public for the first time now, this is exactly the scenario that has played out over the past year -- with the only difference being that, rather than "a printing press" and a "magazine," the story involved "a domain" and a "blog."

There are so many things about this story that are crazy, it's difficult to know where to start, so let's give the most important point first: The US government has effectively admitted that it totally screwed up and falsely seized & censored a non-infringing domain of a popular blog, having falsely claimed that it was taking part in criminal copyright infringement. Then, after trying to hide behind a totally secretive court process with absolutely no due process whatsoever (in fact, not even serving papers on the lawyer for the site or providing timely notifications -- or providing any documents at all), for over a year, the government has finally realized it couldn't hide any more and has given up, and returned the domain name to its original owner. If you ever wanted to understand why ICE's domain seizures violate the law -- and why SOPA and PROTECT IP are almost certainly unconstitutional -- look no further than what happened in this case.

Okay, now some details. First, remember Dajaz1.com? It was one of the sites seized over the Thanksgiving holiday weekend back in 2010 -- a little over a year ago. Those seizures struck us as particularly interesting, because among the sites seized were a bunch of hip hop blogs, including a few that were highly ranked on Vibe's list of the top hip hop blogs. These weren't the kinds of things anyone would expect, when supporters of these domain seizures and laws like SOPA and PROTECT IP talk of "rogue sites." Blogs would have lots of protected speech, and in the hip hop community these blogs, in particular, were like the new radio. Artists routinely leaked their works directly to these sites in order to promote their albums. We even pointed to a few cases of stars like Kanye West and Diddy tweeting links to some of the seized domains in the past.

In fact, as the details came out, it became clear that ICE and the Justice Department were in way over their heads. ICE's "investigation" was done by a technically inept recent college grad, who didn't even seem to understand the basics of the technology. But it didn't stop him from going to a judge and asking for a site to be completely censored with no due process.

The Dajaz1 case became particularly interesting to us, after we saw evidence showing that the songs that ICE used in its affidavit as "evidence" of criminal copyright infringement were songs sent by representatives of the copyright holder with the request that the site publicize the works -- in one case, even coming from a VP at a major music label. Even worse, about the only evidence that ICE had that these songs were infringing was the word of the "VP of Anti-Piracy Legal Affairs for the RIAA," Carlos Linares, who was simply not in a position to know if the songs were infringing or authorized. In fact, one of the songs involved an artist not even represented by an RIAA label, and Linares clearly had absolutely no right to speak on behalf of that artist.

Despite all of this, the government simply seized the domain, put up a big scary warning graphic on the site, suggesting its operators were criminals, and then refused to comment at all about the case. Defenders of the seizures insisted that this was all perfectly legal and nothing to be worried about. They promised us that the government had every right to do this and plenty of additional evidence to back up its claims. They promised us that the government would allow for plenty of due process within a reasonable amount of time. They also insisted that, after hearing nothing happening in the case for many months, it meant that no attempt to object to the seizure had occurred. Turns out... none of that was true.

What happened next is a story that should never happen in the US. It's like something out of Kafka or the movie Brazil, but it should never have happened under the US Constitution. First, you have to understand the two separate processes: there's seizure and then there's forfeiture. Under the seizure laws, the government has 60 days from seizure to "notify" those whose property it seized (imagine having the government swoop in and take away your property, and not even being told why for two whole months). Once notified, the property owner has 35 days to file a claim to request the return of the property. If that doesn't happen, the government can effectively just keep the property, so it tends to rely on intimidation and threats towards anyone who indicates plans to ask for their property back (usually in the form of threatening to file charges). However, if such a claim is filed, the government then has 90 days to start the full "forfeiture" process, which would allow the government to keep the seized property and never have to give it back. If the claim to return the property is filed and the government does not file for forfeiture, it is required to return the property. Thus seizures are supposedly used as a temporary part of the investigation, to stop criminal activity or to prevent the destruction of evidence. However, that's not how things always play out in real life.

As we'd heard with a number of domain names that had been seized, the government began stalling like mad when contacted by representatives for domain holders seeking to get their domains back. ICE even flat out lied to the public, stating that no one was challenging the seizures, when it knew full well that some sites were, in fact, challenging. Out of that came the Rojadirecta case, but what of Dajaz1?

After continuing to stall and refusing to respond to Dajaz1's filing requesting the domain be returned, the government told Dajaz1's lawyer, Andrew P. Bridges, that it would begin forfeiture procedures (as required by law if it wanted to keep the domain). Bridges made clear that Dajaz1 would challenge the forfeiture procedure and seek to get the domain name back at that time. Then, the deadline for the government to file for forfeiture came and went and nothing apparently happened. Absolutely nothing. Bridges contacted the government to ask what was going on, and was told that the government had received an extension from the court. Bridges, quite reasonably, asked how that was possible without him, as counsel for the site, being informed of it or given a chance to make the case for why such an extension was improper.

He also asked for a copy of the the court's order allowing the extension. The government told him no and that the extension was filed under seal and could not be released, even in redacted form.

He asked for the motion papers asking for the extension. The government told him no and that the papers were filed under seal and could not be released, even in redacted form.

He again asked whether he would be notified about further filings for extensions. The government told him no.

He then asked the US attorney to inform the court that, if the government made another request for an extension, the domain owner opposed the extension and would like the opportunity to be heard. The government would not agree.

And file further extensions the government did. Repeatedly. Or, at least that's what Bridges was told. He sent someone to investigate the docket at the court, but the docket itself was secret, meaning there was no record of any of this available.

The government was required to file for forfeiture by May. The initial (supposed) secret extension was until July. Then it got another one that went until September. And then another one until November... or so the government said. When Bridges asked the government for some proof that it had actually obtained the extensions in question, the government attorney told Bridges that he would just have "trust" him.

Finally, the government decided that it would not file a forfeiture complaint -- because there was no probable cause -- and it let the last (supposed) extension expire. Only after Bridges asked again for the status of the domain did the government indicate that it would return the domain to its owner -- something that finally happened today. Dajaz1.com is finally back in the hands of its rightful owner. This is really quite incredible, considering the "rush" with which it seized these domain names, claiming the urgency in stopping a crime in progress. But, of course, after realizing that it had no evidence to suggest a crime was ever in progress - there was absolutely no urgency to correct the error.

The level of secrecy in this case makes it sound like a terrorist investigation, not the censorship of a popular music blog. Normally, when there's a lawsuit, the docket is available on PACER. Even in cases where things are filed under seal or everything is redacted, there's at least a placeholder for them in PACER. This case does not exist anywhere that anyone can find. The docket was apparently kept hidden in a judge's office in Los Angeles the whole time. No one knew this was going on, other than the US Attorney and the representatives of Dajaz1 (who still never saw the docket or the extension orders).

Let's just take stock here for a second. We have the government clearly censoring free speech in the form of a blog that discussed the music world and was widely recognized for its influence in promoting new acts. The government seized the blog with no adversarial hearing and no initial due process. Then, rather than actually provide some sort of belated due process in the form of an adversarial hearing, it continued to deny any and all due process by secretly (even to Dajaz1's own lawyer) extending the seizure without any way to challenge those extensions. All in all, the government completely censored a popular web site for over a year, when it had no real evidence for probable cause of infringement, as it had falsely claimed in the original rubber stamped affidavit. As we noted in reviewing the affidavit, the case had been put together by folks who clearly did not understand the law, the site or the music space. But to then double down on that and continue to hold the domain for a year in secret? That just compounds the error and takes it to new extremes.

This was flat out censorship for no reason, for an entire year, by the US government... Everyone should be horrified by this. It also shows what a joke the claims of supporters are that since "a judge reviewed the affidavit," there's due process. Without the other party, there is no real due process. Not only that, but the government made sure, at every step of the way, that the other party was not heard. That's horrifying. It wasn't just an act of omission in leaving out the party, but actively preventing the party from being heard.

And yet the feds and private companies continue to say we should just "trust them" to get these kinds of things right? Even more bizarre, they want to expand their ability to do this incontestable censorship through laws like PROTECT IP and SOPA? If anything, this massive screwup on the part of ICE, the Justice Department and the RIAA should lead us to go in the other direction. ICE and the DOJ should be investigated and reprimanded, if not directly penalized, for clear First Amendment violations, while the ICE program for seizing domains should be dismantled. John Morton, who led ICE's domain seizure program, should tender his resignation or be fired. Victoria Espinel, the Intellectual Property Enforcement Coordinator, who defended these seizures to Congress, should issue a public apology, and begin a process to revamp the government's role in such enforcement actions (and consider tendering her resignation as well). The federal government should issue a huge apology to the operators of Dajaz1 and make it clear that it will no longer take such drastic censorship actions. The RIAA should be investigated for providing claims about the site that were not true, and which it had no right to make.

If Congress needs to do anything, it should be to investigate the lawless, unconstitutional, cowboy censorship and blocking of due process by both Homeland Security and the Justice Department. The last thing it should be doing is allowing more such actions. This whole thing has been a disgrace by the US government, starting with a bogus seizure, improper and illegal censorship, followed by denial of due process and unnecessary secrecy. Dajaz1 is currently reviewing its options in terms of whether it can or should take further action as a result of this, but at least it has its domain back. And people wonder why we're so concerned about these seizures and new proposals to further such censorship.

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More & Bigger Mistakes Discovered In Homeland Security's Domain Seizures

Mike Masnick — Wed, 22 Dec 2010 09:56:39 PST

We've been covering the ridiculous domain name seizures by Homeland Security's Immigration & Customs Enforcement (ICE) group over the last few weeks, and it seems that nearly every day we come across more info that makes the seizures look like a bigger and bigger mistake. We already noted how strange it was that a group of the seized domains were hiphop blogs and forums that were regularly supported by some of the leading stars in hiphop. Furthermore, we discussed how the specific affidavit that was used to show "probable cause" to get the warrant to seize these domains was full of technical and legal errors, was written by a guy who just graduated college, Agent Andrew Reynolds, and seemed to rely heavily on MPAA and RIAA claims.

With one specific site, dajaz1.com, we noted that the songs used by Agent Reynolds to support his claims, had actually been sent by the artists or record label representatives themselves. Dajaz1 is a blog, not a forum. Agent Reynolds called it a "linking site" which downplays and/or ignores the fact that there is a lot more on the site than just links.

I've now seen the specific email and other evidence as well, and it certainly looks like dajaz1 was asked to promote all four songs that Agent Reynolds listed by the artists or representatives of the artists. There were four songs listed in Agent Reynolds' affidavit, and in each case it appears that the songs were sent by official representatives for the specific purpose of promoting them.

Deuces, by Chris Brown

This song was released for free by Chris Brown, as a part of a mixtape entitled Fan of a Fan -- apparently released as part of the effort to rehabilitate Brown's reputation, following the incident with Rihanna. It was only after the song was released free, and a bunch of (you guessed it) hiphop blogs and forums started promoting it, that his label, a subsidiary of Sony Music decided to release it commercially. That song was sent directly to dajaz1 from someone at Brown's record label, using an email from the record label, and it's clear from the email that the sender is urging the recipient to spread the songs.
Long Gone, by Nelly

This song was sent directly by a VP at the record label, who was thanked in the blog post on the website, which linked to where the song could be downloaded. A simple search by Agent Reynolds of the person thanked on the blog posting (which I did) would quickly uncover the fact that the person was a VP at the record label.
Fall For Your Type, by Jamie Foxx

This song was sent directly by a known promoter of music, who has worked with the major record labels. The email clearly suggests that it is promoting the song for the rightsholder, and directly encourages the recipients of the email to download and share the song.
Mechanics, by Reek Da Villian

This one's interesting, since Reek Da Villian is not signed to a major record label, but is an artist whom Busta Rhymes has taken under his wing, and has been supporting and promoting for a while now. That song was apparently sent directly by Busta Rhymes -- though I did not see that email. However, considering that his work is not represented through an RIAA affiliated label, it seems odd that Reynolds would rely on an RIAA representative to later claim that this file was infringing. There's even a sort of odd admission of this in Agent Reynold's affidavit, where he notes:
"Based on my review of public record listings, as well as conversations with RIAA representatives, I know that as of October 26th, 2010, all of the above referenced songs were determined to be "Pre-release" or not yet released for purchase to the general public, three were copyrighted, and the copyright holders did not authorize their third party distribution over the Internet by DAJAZ1.COM or any other website."
Note that he says all were pre-release, but only three were copyrighted. Of course, this is another example of where Agent Reynolds shows his confusion about the law. All new and original creative works in the US when set in fixed format are automatically covered by copyright (technically "copyrighted" is not a verb, also). What Agent Reynolds probably meant, but got wrong, was that the Reek Da Villian song was not registered (which is not required to be covered by copyright). Still, if we assume that he believes what he wrote, how is it copyright infringement when Agent Reynolds himself admits that one of the songs is supposedly not covered by copyright? And why would the magistrate judge allow that?

So that's that. The four songs used by Agent Reynolds to support the domain name seizure of dajaz1.com, all appear to have been sent for the purpose of promoting in this manner. The Dajaz1 site was quite popular with DJs, and was regularly used by labels, artists and promoters as a way to get their music out to those DJs. It does not appear that Reynolds checked into any of this. Instead, he simply asked Carlos Linares, the VP of Anti-Piracy Legal Affairs for the RIAA, who claimed that all four songs represented "pirated songs" that were "unauthorized copies of rights holder's works," even though there are questions about whether or not he actually knew that for a fact, or even had the right to speak for some of the artists/songs in question.

On top of that, if you dig into the dajaz1 website, you quickly see that it is not at all focused on just offering up as much as possible to download. In multiple cases, the blogger notes that he will not post links to too many tracks from an album, suggesting that the site is not at all focused on getting as much infringing material up as possible, as implied in the affidavit. If that was the goal, why would it specifically refuse to post links to more than just a few songs?

Separately, the person I spoke with from dajaz1 claims that, contrary to Agent Reynolds' assertion that the site had signed up for a Valueclick advertising account, no such account was actually set up. He claims he's willing to state that under oath. Agent Reynolds' claims that the account was set up using an email address that was associated with the site. I'm not sure who's right in this instance, but the whole thing does seem questionable.

The further you dig into this, the deeper you get into just how ridiculous the music industry works these days -- with various subsidiaries and independent promoters and DJs and mixtapes, and all sorts of stuff that the labels very specifically support with one hand, while pretending to be above all that with the other. There are more details that I'm still researching, but some of it suggests that the last thing the major record labels want is for this to go to court, because it'll expose all sorts of things that the labels are doing that they probably don't want exposed.

Either way, even if we go with Occam's Razor and assume that these four cases are examples of the left hand (lawyers) not knowing what the right hand (promotions/marketing) was doing, it highlights why it's a total mistake (and probably a violation of the law) for Homeland Security to have simply seized these domains without an adversarial hearing -- or any contact with the sites in question themselves. Some of our commenters have insisted that all of these sites were "obviously criminally infringing," but the evidence suggests an extremely different story. And it's that sort of thing which is why we're supposed to have due process in the US before we shut stuff down or seize things.

Contrary to what some believe, copyright infringement is rarely a "black and white" case -- which is why we have trials to determine whether or not something is actually infringing. This is even more true in cases of criminal copyright infringement, which has a much higher bar to prove. So it's beyond baffling that Homeland Security and the magistrate judge who approved these seizures felt that it was simply okay to seize them prior to any adversarial hearing, where much of these details might have come out.

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