If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?

from the questions,-questions dept

The details of Homeland Security’s domain name seizures keeps looking more and more questionable. Early on, people were scratching their heads over the seizure of torrent-finder.com, which was a pure search engine, but the deeper that people are looking into the domains involving copyright claims (many of the seized domains were apparently about trademark/counterfeiting rather than copyright), the more questionable the whole situation looks. Torrent-finder was just the start. Two more of the seized sites, RapGodfathers and OnSmash are popular hip hop blogs. In fact, both sites note that labels and artists regularly send them their own music, and both sites note that they comply with the DMCA in taking down files based on takedown notices. Even more damning, top artists like Kanye West clearly appreciate sites like this. Just a few weeks ago, Kanye West linked to OnSmash via his Twitter feed.

It really looks like Homeland Security/ICE may have seriously screwed up here. Whether or not seizing domains in general like this is even legal is an open legal question — and blatantly seizing domains with tons of legit content that the industry and artists regularly used themselves seems like a test case the government doesn’t want just waiting to happen. Hopefully the folks behind both blogs have already gotten in touch with various civil liberties/free speech lawyers who can help make them into perfect test cases to show that the government can’t just seize web sites without due process.

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Comments on “If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?”

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86 Comments
Hephaestus (profile) says:

Re: problematic

“Domain seizures will prove problematic to the democratic process. I’m sorry to see we have come to this point. “

Max its not at all problematic. It is just a short term inconvenience.

For the past year one of my themes here on techdirt has been, the more repressive the government and the ISP’s get online the faster people will adapt and create work arounds. DSL reports points us to Pirate Bay Founder Eyes Decentralized P2P DNS – In response to government’s recent domain seizures. Where he plans to create a p2p dns sytem based on the .p2p upper level domain. That or something like it will fix domain seizures issue.

Let me rephrase this for you … “There are more productive solutions available but if the “community” doesn’t support them and just continues to whine and complain”

There are more profitable solutions available to those of us who feel entitled but the “pirates” just want free stuff and continue to steal our IP.

“we can expect more of this……..”

Yes we can. The internet will adapt faster than government or the content industry. Expect to see more work arounds, and greater encryption usage.

I have been expecting something like this for a couple years. It is a pivotal point that will end government monitoring of its citizens, increase free speech, and actually promote the arts and the sciences.

straw meet camel … I’m on a horse … ๐Ÿ™‚

Hephaestus (profile) says:

Re: Re: Re: problematic

“Been hearing promises of something like this for a while.

Still nothing.”

In situations like this it is always a gradual encroachment, followed by one or more events happening at the roughly same time, that triggers a response.

For ten years we have been hearing about RIAA, MPAA, etc, pushing people around and pushing the boundries. We are in an economic down turn that everyone knows is going to get worse because of the president of the US. We have politicians talking about assasinating Assange, or illegally arresting him and bringing him to justice. Then there are ACTA, COICA, the DEA, HADOPI. And naked airport scanners.

Camel meet straw …

The Confiscation of Domains.

A line from star trek TNG came to mind when I heard the news, “This Far, No Further”.

I’m on a camel ๐Ÿ™‚

Hephaestus (profile) says:

Re: problematic

Oh and I forgot it is called a Cascade Failure in case you are wondering.

“This failure process cascades through the elements of the system like a ripple on a pond and continues until substantially all of the elements in the system are compromised and-or the system becomes functionally disconnected from the source of its … “

Dark Helmet (profile) says:

Re: Re: Re: problematic

Max…partner…no one is telling creators they should ONLY sell ads and tshirts. Those things can be PART of a business model, but all of one. Besides, asking questions like “Do you have a better way to monetize creativity (except all of the ways I don’t like and don’t want to do)” is kind of silly.

Do you have a better way to monetize IT consulting that doesn’t involve me doing all the work I don’t want to do?

Dark Helmet (profile) says:

Re: Re: Re:3 problematic

“So, does that mean you would do IT consulting free (as that would fall under an intellectual process) and then sell advertising and t-shirts to those clients to feed your family?”

In large part, that is EXACTLY what I do. I offer my (or rather, my company’s) expertise and insight in divising a technology strategy, and then sell the physical technology and ongoing support (which involves remote/onsite engineers, software, and other physical “entities”) around it. I/we offer our customers “free” advice all the time, because we know that if we don’t, others will.

And yet, GASP!, we all make a pretty good living at it. I expect creators (of which I am one as well: writer) to do the same….

Dark Helmet (profile) says:

Re: Re: Re:5 problematic

“Aren’t books, recordings, software discs etc. equal to “the physical technology” that you speak of?”

Of course they are. PHYSICAL books are. PHYSICAL recordings are. Software discs are. I don’t hear a great deal of complaining about people pirating physical items (ones that can be deprived).

But note what I said: we offer our strategic advice (and this is no small thing, mind you; it’s often a detailed report and assessment that takes a good deal of work to create) for free because we know that even if we don’t, others will. And because we know how to sell other things around that free but valuable offering, we do just fine….

Hephaestus (profile) says:

Re: Re: Re:3 problematic

“So, does that mean you would do IT consulting free (as that would fall under an intellectual process)”

Actually thats a fail logically. Its infinite once (mp3, e-book, mpg, etc) created -vs- scarce resource talent. But I would sell tee shirts to make a couple extra bucks. ๐Ÿ™‚

If you are talking about software I created outside of contract then yes I would give it away free and consult on the installation, configuration, etc.

Anonymous Coward says:

Re: Re: Re: problematic

You are a bit off topic for this particular blog post but dead on for the majority of the other discussions.
I fully agree that the copyright system is important. I agree that we need to incentivize people to continue to create. Frankly, people do make a living off their creative works. Accordingly, copyright is a useful tool for accomplishing that. You and I may strongly disagree on the implementation of copyright I suspect.
But, to remain on topic, as much as I can anyway, isn’t the real topic here about DHS not following the due process of law, which we all depend upon, to seize the websites? My concern isn’t what the websites were about so much as how the government took control of them. For me the ideals of what America is based on trumps all other concerns.
Then we can go back to our usual sarcastic, inane and nasty remarks to each other.
At least we have this blog where we can argue about copyright and related things. At least until DHS grabs this one.

Hephaestus (profile) says:

Re: Re: Re: problematic

“The question is, do you have a better way to monetize creativity and human intelligence that doesn’t force intellectuals to sell advertising and t-shirts to survive?”

Do I have a way for big content to survive. No, its just not possible. People who are artists have had a 400 year ride, it has come to an end. Sorry to tell you that but everything points to it.

“A copyright system is critical to our capitalist economy.”

Actually its not. Everywhere you look in the open source and creative commons arena you see proof to the contrary. Copyright is only critical to maintaining monopoly rents. Economically speaking as supply approaches infinite cost approaches zero. That is where we are heading. Again the trends are there and will continue towards zero.

Karl (profile) says:

Re: Re: Re: problematic

A copyright system is critical to our capitalist economy.

Any studies to back that up? Because Mike’s pointed out tons and tons of industries (e.g. database industries) where IP laws hindered the industry in question. And wherever you see an industry that does not have copyright protection (e.g. fashion), it’s competitive and thriving.

It’s certainly not true for artists. They’ve always made their money “selling” things that don’t depend on copyright: e.g. endorsement deals, live performances, unique works of art, or “advertising and T-shirts” as you bluntly put it.

In the meantime, the way copyright’s legal process is set up, it does almost nothing to protect everyday artists from being exploited. If you’re an average artist, you’re likely to find copyright more of a hinderance than a benefit.

Anonymous Coward says:

Murky waters

Maybe Kanye West saw value in RapGodFathers, but the invisible hand of the IP-enforcement-market didn’t.

On another note, I read in an DoJ press release that “Operation In Our Sites 2.0” goes through the laborious process of acquiring goods from each of these domains then (perhaps subjectively) determines authenticity of the product.

“During the course of the operation, federal law enforcement agents made undercover purchases from online retailers suspected of selling counterfeit goods. In many instances, the goods were shipped directly into the United States from suppliers in other countries using international express mail. If the goods were confirmed as counterfeit or otherwise illegal, seizure orders for the domain names of the websites that sold the goods were obtained from U.S. magistrate judges.”

Source: http://www.justice.gov/opa/pr/2010/November/10-ag-1355.html

In addition to acquiring the item, it would be good to know what, if any, techniques the DoJ, DHS and ICE used to determine if the items sold were even subject to US copyright law.

What due diligence did DoJ, DHS and ICE use to determine the products/services offered on the website/s in question acquire any necessary licensing paperwork (if necessary). Were the copyrights registered with the Library of Congress? Do the products sold qualify as derivative works not subject to copyright law?

Some of this may not apply to other sites, but I think it’s a reasonable request to ensure due process was followed.

Karl (profile) says:

Re: Re:

Quasi-Fascist state. Exactly what the conservatives wanted.

Sadly, this particular issue has nothing to do with “liberals” and “conservatives.”

Sure, things have gotten worse under the Obama administration (due in no small part to Joe Biden, I think). But it was the Bush white house that signed the PRO-IP act into law, and if you look at the Senate voting records, the worst laws were approved by Dems and Repubs pretty much equally.

Anonymous Coward says:

Re: Re:

I do. As you might in a big picture way. It’s about the government acting in the way we designed it to. Fair use of due process.
It’s easy to not look past the smaller issue of protecting copyright. It’s harder to see the bigger picture of the government acting without concern for our rights.
This issue shows a trend to ignore the due process of law, on which we as individual depend upon to be treated fairly by the courts, etc.
Protecting a business, while admirable and understandable, is not really the job the citizens assigned to the government.
This issue appears to be about stopping infringement and copyright. It’s really about what actions the government is willing to take, despite throwing out the freedoms that we are supposed to be worried about.
So, as this issue unfolds in undesirable ways, I care.

Don (profile) says:

What's Homeland Security's purpose again?

I thought that Homeland Security’s purpose was to protect the United States against terrorist actions and essentially protecting the lives of the people living within the U.S.

Why is HS getting involved in copyright and mundane issues like that.

As for Kanye West, have you read his tweets, if that is any indication, he is the most self-absorbed person in the world. The guy has tunnel thinking and I wouldn’t put too much into what he says.

MrWilson says:

Re: Re: What's Homeland Security's purpose again?

“Masnick should have made that clear all along, but this blog isn’t about factual news, it’s about opinion.”

This isn’t a news site in the sense that you can expect Mike to dumb everything down and re-explain things that have already been explained elsewhere. Interested readers have the benefit of being able to click the provided hyperlinks or googling the issue. To expect him to make clear what people who are already following the topic are aware of would require him to repost other articles in this article and that would definitely make it tl;dr. People need to learn to be more information literate.

Karl (profile) says:

Re: Re:

you might want to check their ‘download’ page before you suggest they’re all squeaky clean in this…

According to the site owners, they’ve always taken down such content if they receive a DMCA notice. If that’s true, then they’re obeying the law 100%.

Merely having downloads – even of copyrighted content – means nothing, because there’s no way for us (or them) to know if that content was approved by the copyright holders. By default it’s free expression; it only ceases to be that when the rights holders decide to take action.

average_joe says:

Re: Re: Re:

According to the site owners, they’ve always taken down such content if they receive a DMCA notice. If that’s true, then they’re obeying the law 100%.

That makes no sense. You can comply with takedown notices yet still be guilty of criminal copyright infringement. The one’s got nothing to do with the other.

average_joe says:

Re: Re: Re:2 Re:

Can you please elaborate? I was under the impression that section 230 of the DMCA said that if you complied with takedown notices then you were not punished for the actions of your users.

You’re mixing up a couple of different things.

Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. 230, gives providers of interactive computer services safe harbor from liability for the posts of their users. For example, if I post something defamatory on techdirt, techdirt can’t be held liable for my defamation. Section 230 specifically does not apply to intellectual property laws, nor does it apply to criminal liability. In short, it doesn’t apply here.

Section 512 of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. 512, provides safe harbor to online service providers from liability for the copyright infringement of their users, but only if the providers follow certain procedures. For example, if I post copyrighted material on techdirt, techdirt can’t be held liable if it follows the procedures.

However, DMCA safe harbors do not shield those operators who themselves take part in or have knowledge of the infringement. You can’t just set a website with a proper DMCA agent, use it to commit or help to commit criminal copyright infringement, and then claim that your compliance with the DMCA shields you from liability. It simply doesn’t work that way. You lose your eligibility for the safe harbor, you are not shielded from liability, and your domain name is subject to seizure.

The Infamous Joe (profile) says:

Re: Re: Re:3 Re:

Ah, thanks for the clarification.

However, DMCA safe harbors do not shield those operators who themselves take part in..

I must have missed this part in the story. Was there proof that this was happening? Does it even require proof– or like everything else regarding IP, does it only require an allegation?

…or have knowledge of the infringement.

I was under the impression (from what little I know of Viacom v. Youtube) that knowing there is infringing material in the meta sense (e.g., Youtube almost definitely has infringing material on it right now, but I’m not sure what) is not enough to lose your safe harbors. I thought it was determined that the service provider needed to know about specific instances of infringement and do nothing to lose those safe harbors. Further, if this site did adhere to DMCA takedown requests (the only *real* and legally binding way to know if something you host is infringing) then it stands to reason that they still have their safe harbors, and are therefore, as the poster you replied to said, 100% legal.

Am I incorrect in my logic and/or understanding of these things?

average_joe says:

Re: Re: Re:4 Re:

I must have missed this part in the story. Was there proof that this was happening? Does it even require proof– or like everything else regarding IP, does it only require an allegation?

I think all we know is that the prosecutor presented probable cause to a judge and the judge signed the warrant. Exactly what proof their investigation uncovered is anyone’s guess.

I was under the impression (from what little I know of Viacom v. Youtube) that knowing there is infringing material in the meta sense (e.g., Youtube almost definitely has infringing material on it right now, but I’m not sure what) is not enough to lose your safe harbors. I thought it was determined that the service provider needed to know about specific instances of infringement and do nothing to lose those safe harbors. Further, if this site did adhere to DMCA takedown requests (the only *real* and legally binding way to know if something you host is infringing) then it stands to reason that they still have their safe harbors, and are therefore, as the poster you replied to said, 100% legal.

Am I incorrect in my logic and/or understanding of these things?

I think the argument simply is that the sites were being used to commit criminal copyright infringement, and the safe harbors do not protect criminals.

average_joe says:

Re: Re: Re:6 Re:

non-responsive

I’m trying to respond, it’s just hard to say anything in particular when we don’t know what the fed’s investigation of these sites turned up.

I’m wondering now if the feds can seize a site where they find criminal infringement even if they don’t suspect the site’s operators of being involved in the crime. I’m inclined to think that they can. Not really sure though…

Dark Helmet (profile) says:

Ahem, pardon me, let me through, please....

“If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?”

Whoa, whoa, whoa. Look, United States government, I’m really happy for you, and I’mma let you finish….but Hitler’s National Socialist Party had one of the greatest infringements on civil liberties of all time!!!

Free Capitalist (profile) says:

Re: Re:

I think many of us are still left wondering, even in the case of the criminal counterfeiting operations, whether due process was even considered before executing the seizures.

I realize there is a precedent for property seizures without due process which came from our infamous “war on drugs”, but didn’t we need to write a special laws specific to drug offenses to allow this circumvention?

What guidelines were used to affect these censors and under which civil or criminal code are the name seizures permitted?

Gwiz says:

Re: Re:

Not that it will have any significant impact on the comments here, but it is worthwhile to note that the majority of the domain names are associated with off-shore companies that sell counterfeit goods online.

This may very well be true….but have any of these domain names been found guilty in a court of law of selling counterfeit goods online?

Therein is where the problem lies…seize the domain name and then the domain name owners have to prove their innocence to get it back. That’s backwards to me.

Gwiz says:

Re: Re: Re: Re:

People are arrested and property seized before a trial all the time.

I think property should be seized when there is a chance of destroying evidence prior to trial ONLY. I happen to disagree with the practice of asset forfeiture for fundraising. And just because it happens all the time does not make it right.

What makes you thnk the Internet should be immune to that and get special treatment?

Never said that it should….what’s your point?

Karl (profile) says:

Re: Re: Re: Re:

People are arrested and property seized before a trial all the time.

This isn’t about seizing “property,” it’s about quashing potentially protected speech.

For example: If you tried this with a record store that sold bootleg copies of live shows, it would be unconstitutional. Sure, you can seize the bootlegs themselves; but without an adversarial hearing, you can’t shut down the entire store.

TPBer (profile) says:

Hindsight

Last week, on Monday I had my non public, InMotion ftp server gone thru with a fine tooth comb. I received an email claiming I had placed multiple copyrighted works and commercial software in a publicly available folder. It also stated if I did not remove the content in question that my account would be canceled.

My site has never been public and the software files were BU of my originals, and the content was a few episodes of “Sons of Anarchy”, how fitting.

I attempted to comply and my account was already shutdown. I was able to get i touch with a support person and finally after 2 days they gave me access and I removed all content for now.

This was all in the name of routine system maintenance, i have had this account for 1.5 years with some of the original SOA DL and they never bothered. They had clear warning Homeland Security sweep.

Rekrul says:

Re: Hindsight

Last week, on Monday I had my non public, InMotion ftp server gone thru with a fine tooth comb. I received an email claiming I had placed multiple copyrighted works and commercial software in a publicly available folder. It also stated if I did not remove the content in question that my account would be canceled.

My site has never been public and the software files were BU of my originals, and the content was a few episodes of “Sons of Anarchy”, how fitting.

Honestly, I don’t know people trust online sites to serve as backups. At the very least, you should encrypt anything you put on there.

Anonymous Coward says:

Kanye West the jackass that likes to use the race card every chance he gets?

* On September 2, 2005-A Concert for Hurricane Relief-“George Bush doesn’t care about black people.”, the race card bomb.

*November 2, 2006-MTV Europe Music Awards-Interrupts the awards to say he should be the winner.

* September 9, 2007-2007 MTV Video Music Awards-Insinuates that his race was to blame for not being chosen to open the ceremony. “Maybe my skin?s not right.”

* September 11, 2008-Los Angeles International Airport-Assaulted a photographer breaking his camera.

* November 14, 2008-Hotel in Gateshead-Assaulted another photographer.

* September 13, 2009-2009 MTV Video Music Awards-The microphone incident, for which he had to bend backwards to try and make it right.

complexity (user link) says:

Read the story?

Before you make the same old tired arguments, do you mind reading the freaking story?

“Two more of the seized sites, RapGodfathers and OnSmash are popular hip hop blogs. In fact, both sites note that labels and artists regularly send them their own music, and both sites note that they comply with the DMCA in taking down files based on takedown notices. Even more damning, top artists like Kanye West clearly appreciate sites like this. Just a few weeks ago, Kanye West linked to OnSmash via his Twitter feed. “

Pete says:

seriously chilling.

This is kinda surreal – “Department of Homeland Security” – picture “Ministry of Homeland Security” proudly drilling in Red Square in 1971.

Seizing… what are effectively… modern-day newspapers? No one finds that absolutely terrifying? That’s the kinda s*** you expect out of Iran when some students are demonstrating for democracy and human rights. “Iranian officials seized 41 blog domains wednesday, in a move to bla bla bla.”

No, it’s “United States Officials seized x blogs bla bla bla.”

When the hell did this happen? See you all in the internment camps, assuming the enforcement squads don’t just put a bullet into me on the way.

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