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

from the another-day,-another-set-of-mistakes dept

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,, 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.

  1. 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.

  2. 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.

  3. 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.

  4. 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, 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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Comments on “More & Bigger Mistakes Discovered In Homeland Security's Domain Seizures”

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Anonymous Coward says:

I’m a bit at a loss here, not a lawyer, not fully versed in copyright law, so I’m confused on a certain point.

I (incorrectly?) was under the impression that the determination of true infringement could only be determined by a judge and/or jury. If this is true, how can any accusation of infringement – from this situation to YouTube takedowns – result in any action at all until it’s been determined in court?

I understand that there is the DMCA notice/takedown/repost process, which explains the YouTube actions to a point. But how can these seizures fly at all when there was no adherence to the DMCA?

Guh…not explaining very well. Yes, I am aware that the seizures are part of a criminal case, not a civil case, but isn’t the determination by a court that infringment actually occurred still to be done first?

Marcus Carab (profile) says:

Re: Re: Re:

Wow, you really have no actual points to make do you?

Here is a commenter who was asking a simple, honest question based on their understanding of a law. Their mind is clearly not yet made up, and they are interested in gaining more insight into the situation. Now, obviously your answer to his question would be different from mine, or from Mike’s – but you didn’t even give him an answer.

You had a great opportunity here to actually lay out your reasons for why you think these seizures make legal sense – but you have no reasons. Even when dealing with an open-minded, straightforward question you can’t provide a constructive answer. All you can do is sling mud and insist Mike has some sort of “pro-piracy agenda” and try to convince them not to listen to the thorough, rational answers they will no doubt be provided by the community here.

Seriously, bring something even vaguely intelligent to the table, please.

Mike Masnick (profile) says:

Re: Re:

I (incorrectly?) was under the impression that the determination of true infringement could only be determined by a judge and/or jury. If this is true, how can any accusation of infringement – from this situation to YouTube takedowns – result in any action at all until it’s been determined in court?

That’s a big part of the question. DHS’s position on this is that it has the right to seize property that was used in a crime. While some question how this is legal, it’s well established in the courts that in many cases, yes, DHS (and other law enforcement) can seize property without any trial. The main *reasoning* behind this was to get evidence and/or prevent the destruction of evidence, but some suggest alternative explanations as well, such as preventing additional criminal behavior. It’s not clear that lives up to legal scrutiny, however, since criminal behavior should only be determined after a trial.

So, the real answer is that it’s a fuzzy part of the law that law enforcement has been expanding as much as possible.

Yes, I am aware that the seizures are part of a criminal case, not a civil case, but isn’t the determination by a court that infringment actually occurred still to be done first?

That’s the legal question we’re hoping to be tested in court.

uRconfused says:

Re: Re:

It doesn’t seem that you are really versed in anything relating to the law or copyright infringement. Only need probable cause to seize something, similar to a person being arrested. Once that occurs in both civil or criminal cases, then it undergoes the judicla process (court) to determine whether the government can prove it case beyond a reasonable doubt!!

nasch (profile) says:

Re: Re: Re:

Once that occurs in both civil or criminal cases, then it undergoes the judicla process (court) to determine whether the government can prove it case beyond a reasonable doubt!!

Unless it’s a civil case, where they need only meet the preponderance of the evidence standard. And if they’ve seized your property, the government’s action is against your property and not you, so you’re a third party in the action. I don’t know exactly the implications of that but I believe you will not get all the same protections you would if the government were suing you.

There are legitimate reasons for seizure and forfeiture, but it’s also massively abused, and to me it’s not clear why seizing a domain is necessary or useful.

Anonymous Coward says:

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.

Is this claim based on actual statistical evidence? (I agree that few copyright infringement cases I see in the news seem to be “black and white” cases, but this could be easily explained by selection bias.)

Marcus Carab (profile) says:

Re: Re:

I’m not sure about statistics, but it is true that among lawyers and legal experts its widely agreed that copyright is one of the most complex and difficult-to-navigate fields of law in the U.S.

Simply determining the copyright status of a work (let alone determining whether another work infringes) is often extremely difficult.

Anonymous Coward says:

Re: Re: Re:

“It is rather for us to be here dedicated to the great task remaining before us?that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion?that we here highly resolve that these dead shall not have died in vain?that this nation, under God, shall have a new birth of freedom?and that government of the idiots, by the idiots, for the idiots, shall not perish from the earth.” – Abraham Lincon

Anonymous Coward says:

Re: Re: Re: Re:

I’m not sure what your point in quoting from the Gettysburg address was. But it brings up a tangential point of my own…

It’s been a century and half since the American Civil War, but all of you learned that Abe Lincoln was assassinated.

Similarly?although I do not mean to compare their moral character?but similarly, a century and some before the U.S. Constitution and its Bill of Rights were enacted, an English king by the name of Charles I lost his head.

That historical fact, and the historical events surrounding it, were all well-known to the founders who wrote our Constitution and its Bill of Rights.

Anonymous Coward says:

Re: Re: Re:5 Re:

It’s not a matter of being intentionally vague. The problem is rather that the subject is simply too big to fit into a reasonable comment.

I can tell you that the 1662 Licensing Act was the direct predecessor to the Statute of 8 Anne. And that statute, in turn, led directly to the first U.S. Copyright Act ?just for instance? but I’m still working out how to fit the meaning of those factoids into a comprehensible narrative shorter than book-length.

Jason says:

Re: Re: Re:6 Re:

I see, the trouble is that you’ve reached the comment section.

Allow me to point you to the reference section. Here at Techdirt, we make extensive use of the reference section when posting comments.

If you should have a comment that requires significant background material, simply include this information in the reference section and then reference the material by name in the body of your comment.

This allows you to keep your comments short, and as you suggested to someone else earlier, more to the point. Hope this helps 🙂 lolz ttfn.

Anonymous Coward says:

Re: Re: Re:3 Re:

Recently, in Eldred v Ashcroft, Justice Ginsburg quoted from Justice Holmes. She wrote:

To comprehend the scope of Congress? power under the Copyright Clause, ?a page of history is worth a volume of logic.?

On a similar line, Holmes is also remembered for:

The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

Doug (profile) says:

Where do all the Anti-Big-Government types stand on this?

It’s strange that the people who stomp their feet and foam at the mouth against Big Government are usually cheerleaders for the Dept of Homeland Security. It was marketed by Bush-Cheney Inc.? as being not another big government bureaucracy, but a small department that would coordinate and consolidate the efforts of existing agencies, improve communication and information sharing, reduce redundancies and make them more efficient and effective. That sales pitch was soon forgotten as it turned into a huge, bloated, money sucking monster that continues to reach deeper and deeper into people’s lives, doing things that are clearly not aimed at public safety (or defending what Bush somewhat creepily called, “the homeland”).

When are the people who go full retard when welfare moms use food stamps to buy candy going to wake up and smell the boondoggle?

Hephaestus (profile) says:

“In multiple cases, the blogger notes that he will not post links to too many tracks from an album”

I know why, pretty much any album has all its songs in various forms given to bloggers for distribution. If you do a search on bing or google for “promotional music” and “Artist name” and “Album Name” you can find all the songs as promotional music. So in order to not attract the attention of the record labels, and help the artists out, he probably doesn’t do full album links even though they are easy enough to find doing promotional searches.

Mr. LemurBoy (profile) says:

Re: Re:

4 items are cited because those are the 4 items the agent used to justify the seizure without any adversarial hearing. The importance of this story isn’t the number of items overall, it’s that these specific items were used to justify what should be unjustifiable using these items.

And how is providing a link to a song released for free ‘working without permission, or working outside of the limits of what is normally permitted’? Last time I looked, linking to freely released content was pretty normal.

Anonymous Coward says:

Re: Re:

> The usual question: You site 4 items. How many total offending items? What is the error rate?

4 items were listed by ICE. All 4 were wrong. Error rate: 100%

>In each case too, it looks like there may be someone either working without permission, or working outside of the limits of what is normally permitted.

Clearly, you’ve never worked in the music business on the promotions side. None of this was done without permission or “outside the limits of what is normally permitted.” This is exactly how music promotions works these days – especially in the hip hop world – and is done with full understanding by the labels in question.

Marcus Carab (profile) says:

Re: Re:

The usual question: You site 4 items. How many total offending items? What is the error rate?

I think you are getting a little confused. Yes there were more domains seized, but this affidavit is specifically about the four blogs, which are the most contentious seizures here. So if these 4 are errors (and I’m not saying that’s entirely confirmed yet) then the error rate for this particular portion of the seizures is 100%

But even if this were only a slice of the pie and the error rate were 10%, or 1%, or .1%, that still makes this a free speech issue that should have received more scrutiny than it did.

PaulT (profile) says:

Re: Re:

So, the blogs were meant to magically know whether these tracks were infringing, even though the people involved in promoting them had apparently given them permission? Even if there was someone “working without permission”, how in blue blazes were the blogs meant to know that?

Think about that, and you might see the problem here…

Actually (profile) says:

Re: Re: Re:

Then expand on that further by saying the blogs would be acting with the belief that it was authorized by the copyright holder, and then complied with any and all DMCA notifications, C&D’s, or even quick emails asking nicely and you really see the issue. If that is the law as it is written what did the blogs do that was illegal?

Jesse Townley (profile) says:

A2IM Indy music group joins in...

After I read this blog post, I got the following e-mail from A2IM, American Association of Independent Music, an umbrella group for non-major labels & publishers. Some of our friends & allies are a part of this organization (we’re not) but e-mails like this make me pretty unwilling to join up.

I replied to the e-mail and specifically mentioned this news item & sent along the link. Hope it helps A2IM stop trying to be a runty version of the RIAA…

“To Independent Labels, Creators & Service Providers who rely upon music having value:

For years we have called on government to help fight Piracy, including those websites that promote the devaluation of music and disregard the rights of creators by leaking music early and without permission. Both the Obama Administration and the Congress have started to provide creators much needed support in recent months. The U.S. Immigration and Customs Enforcement (ICE) Agency has taken aggressive action against infringing websites, recently seizing the domain names of 82 sites. Since then ICE, and its Director John Morton, have been taking heat in the blogosphere and in some print media for their actions. It is imperative that the music community let the Administration know just how vital ICE’s actions are, and how much we appreciate them.

We need to show them some love for their action! PLEASE send a note to John Morton thanking him for what he’s doing.

This letter, which also highlights a recent A2IM press statement, was sent to the Obama administration by A2IM today. They need to hear from our members across the country now!

Use the A2IM letter as a guide, but please personalize your letter, and write to:

Mr. John T. Morton
Director, United States Immigration and Customs Enforcement
U.S. Department of Homeland Security
Washington, D.C. 20528

Care of:

And express your support for the current actions of U.S. Homeland Security detailed in the attached link press release and please copy: This is important so let’s get to work!

Best and happy holidays to all!

The A2IM team

Jesse Townley (profile) says:

Re: A2IM Indy music group joins in...

This was my reply:
Jim & Rich-
Not to be rude, but really? Really?

The URLs that ICE removed from circulation were badly targeted and at least in some cases, completely and utterly against record labels’ & artists’ promotional interests.

See this explanation of the half-assed affidavit against DaJaz1:

Seems like of the 4 songs that “caused” ICE to harass the site, 3 were sent by the record labels specifically to promote the songs and the 4th was sent by the artist’s mentor to promote the song (the artist is not on an RIAA-affiliated label).

This flies directly in the face of record labels trying to be flexible & USE blogs for promotion, which all of us smart ones are doing (among many other things).

If all A2IM is trying to do is be a runt RIAA, complete with the willful blindness & strategic missteps of that larger organization, why would other independent labels like Alternative Tentacles bother joining?

Sorry, but this rah-rah celebration of FBI/ICE/RIAA idiocy is really disappointing from a group that claims to represents so many key indie labels.

Jesse Townley

Jesse Townley (profile) says:

Re: Re: Re: A2IM Indy music group joins in...

I actually just got off the phone from an hour-long conversation with Jim/A2IM. He made the effort to call me, and while he certainly stood his ground he also stressed that they want other labels involved & running for their board of directors to make sure that they’re not top-heavy with old-guard record business people. Flattering, to be sure.

It’s impossible to summarize our long-winded conversation here, so I’ll highlight one key point where we disagreed. He said that government pressure is needed to force people to the table- the recent attempt at setting performance royalty rates for radio that’s been sunk by the end of the Congressional term is one example. In this one, Congress said to the National Association of Broadcasters (NAB) that they needed to negotiate w/ the RIAA, A2IM, & music publishers or Congress would get involved & whatever came out of that would be much much worse than an internal industry agreement.

I pointed out AT’s very negative history with this approach. First, there was the Parents Music Resource Center (PMRC), which pitted Tipper Gore (wife of former VP Gore) & other jerks against everyone from Dee Snider, Frank Zappa, and my boss & AT’s owner, Jello Biafra, trying to force the music industry to self-censor and if the industry didn’t do it, then the government would. Second, at around the same time, Jello’s house, our distributor, and a L.A. record store were all raided for “peddling obscenity,” a.k.a. selling Dead Kennedys “Frankenchrist” which had an HR Giger insert. We went through a hellacious legal process that ended with our right (& everyone’s right) to put out challenging and edgy art confirmed by the jury.

We have a very strong aversion to heavy-handed government intervention in the arts, to put it mildly.

P.S.- We are also fully engaged in selling music & music-related products to our fans & customers. We do a fair amount of digital promotion, which includes giving away some tracks for free. It seemed that Jim was aware of a huge grey area between super-pirates & the RIAA, but our discussion kept on getting caught up in there just being “2 sides.”

Jesse Townley (profile) says:

Re: Re: Re:3 A2IM Indy music group joins in...

I want to be clear- the conversation was pretty wide-ranging and while there was some agreement, there was also a fair amount of disagreement.

Also, this was all between myself and him, and my statements here & in my conversation with Jim represent only my own opinion, not that of Alternative Tentacles Records or Jello Biafra. Jello can & will speak for himself if he wants to.

It WAS a friendly discussion. I was happy to have an in-depth conversation with someone who’s also put a lot of time into these issues, even if I think he leans towards too much towards erring on the side of restriction rather than creative freedom.

What’s the cliche? “Some of my best friends…?” Ha ha ha…

Jesse Townley/General Manager/ATR

basasa says:

Re: Re: A2IM Indy music group joins in...

“Seems like of the 4 songs that “caused” ICE to harass the site, 3 were sent by the record labels specifically to promote the songs and the 4th was sent by the artist’s mentor to promote the song (the artist is not on an RIAA-affiliated label).”

It seems pretty clear that the seizures (apart from the stupid piracy fighting enterprise) are also attempting to bust the competitors who are actually adapting.

How could an “Association of Independent Music” join the big labels against the small ones?!

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