The following comes from Electronic Frontier Foundation (EFF) attorneys Corynne McSherry and Cindy Cohn. The team just forced the disclosure of court documents that expose outrageous details about the seizure and near-destruction of hip-hop blog Dajaz1.com by the US Government and RIAA. Proper legal processes seem completely absent in this picture - and worse, label reps themselves may have supplied Dajaz1 with promotional, leaked, and ultimately, 'infinging' materials.
The site has since gone back online after being blacked-out for more than a year. But as anyone with any (online) business understands, missing a year is essentially the same as being put out of business. You have to start over.
After a year-long seizure and six more months of secrecy, the court records were finally released concerning the mysterious government takedown of Dajaz1.com – a popular blog dedicated to hip hop music and culture. The records confirm that one of the key reasons the blog remained censored for so long is that the government obtained three secret extensions of time by claiming that it was waiting for 'rights holders' and later, the Recording Industry Association of America, to evaluate a 'sampling of allegedly infringing content' obtained from the website and respond to other 'outstanding questions.'
In other words, having goaded the government into an outrageous and very public seizure of the blog, the RIAA members refused to follow up and answer the government's questions. In turn, the government acted shamefully, not returning the blog or apologizing for its apparent mistake, but instead secretly asking the court to extend the seizure and deny Dajaz1 the right to seek return of is property or otherwise get due process. The government also refused to answer Congressional questions about the case. ICE finally released the domain name in December of 2011, again with no explanation.
It's not hard to guess what some of the unanswered 'outstanding questions' might have been. Dajaz1.com, was seized with much fanfare by the Immigrations and Customs Enforcement (ICE) division of the Department of Homeland Security over the 2010 Thanksgiving weekend. It was widely reported at the time that Dajaz1 should never have been targeted, that much of the blog’s content was lawful, and that many of the allegedly infringing links were given to the site's owner by artists and labels themselves – including Kanye West, Diddy, and a vice president of a major record label. So, at a minimum, we imagine the government was asking the RIAA to provide some evidence that the seizure was justified in the first place.
EFF teamed with the California First Amendment Coalition, represented by Josh Koltun, and our efforts were joined by Wired, in seeking the unsealing of the court records. Confronted with the prospect of having to defend the ongoing secrecy in court even after had it returned the domain, the government agreed to allow the records to be unsealed.
Now that the full court records are out, this seizure raises critical questions about the government’s use of its new powers to shut down lawful speech in the form of domain seizures for alleged copyright infringements. It also demonstrates the basic unfairness of the processes and secrecy invoked here and possibly in hundreds of other domain name seizures across the country. For nearly a year, the government muzzled Dajaz1.com – denying the blog's author the right to speak and the public's right to read what was published there – and then compounded matters by claiming extreme secrecy and blocking the Dajaz1 and the public's access to information about the case.
Equally troubling, the records confirm what was already suggested by the initial affidavit used to obtain the seizure order: that ICE, and its attorneys, are effectively acting as the hired gun of the content industry at taxpayers' expense. Instead of relying on rightsholders to determine whether a seizure was appropriate, the government should have been conducting its own thorough investigation. If it had acted in anything like good faith, it could have determined that the site wasn't a proper target even before the seizure, or at least could have discovered and rectified the mistake before a year had passed.
The whole story is, in a word, appalling. The only silver lining? US taxpayers and their representatives have an object lesson, if one were needed, in why the government should not be granted new IP enforcement powers and why we need to reconsider the inclusion of copyright infringement as a basis for civil seizure and forfeiture. And in the short term, maybe when Hollywood comes knocking again, ICE will remember that the RIAA isn’t such a reliable crime-fighting partner after all."
AA Friday, May 04, 2012
You had me until the last paragraph - the conclusions are not supported by the evidence.
This is a very poor showing by both the ICE and the RIAA. But that doesn't mean we should abandon the principles that underlie enforcement of online copyright infringement. It means we need to point out this example, shame both the ICE and the RIAA into doing their due dilligence before pulling the trigger.
If anyone is familiar with the recent abomination by the DEA in San Diego - a college student taken into custody with a group of people on 4/20 was put in a holding cell and forgotten for 5 days, only found on the 5th day on the verge of death. He was never "booked" and never charged, and should have been released that day. It was a terrible instance of human rights abuse. The DEA has been publicly shamed and is currently reforming its procedures and will probably owe the individual quite a bit of cash.
So, following your logic, we shouldn't give the government the power to enforce drug trafficking and crime because this abomination "is what happens when you give the government that power". Totally wrong and off base.
To the EFF - don't let the good you do be overshadowed by the extremism in your politics. Help these cases - they need you, and greatly. But stay in that area. Drawing conclusions and philosophizing about what the government should or shouldn't do isn't a good look for you.
@marvbarksdale Friday, May 04, 2012
It seems 'AA' should probably take their own advice and leave the legal philosophizing to someone else.
The analogy between DaJaz1 and the 4/20 story is flimsy at best, considering that copyright violations are infringements on the rights of other entities, versus drug offenses which are related to the abuse of governmentally identified controlled substances. Clearly the government should have broad powers in enforcing drug related crimes, as it is the government that classifies these activities as violative in the first place.
Unlike drug crimes, violations of copyright are brought by other citizens (i.e. rightsholders) not governmental agencies, so obviously the process of enforcement must involve independent investigation and a balancing of equities. What the EEF, Rep. Zoe Lofgren (D-CA), and most logical individuals, are saying is that ICE should not have the authority to essentially size a domain name without due process; especially when you consider the unsettled nature of copyright law created by the modern state of the internet.
I salute the EFF for fighting the good fight for unfairly persecuted websites like DaJaz1, and fully agree with reconsidering whether civil seizure is an appropriate remedy for online copyright infringement all together, or at least until we address many of the unsettled copyright issues created by online share-culture.
Hurricane Head Friday, May 04, 2012
Fanstic and balanced post AA.
It's like the China scare on rogue sites blocking. If we block sites we're like China? Well, China as prisons and we have prisons. Should we close our prisons so that we're not like China too.
The extremist rheteric in these conversations will lead to worse outcomes than measured and thoughtful cooperation to serve and balance the needs of all stake holders.
TC Wednesday, May 09, 2012
Some valid points but ...
Why do the EFF never go after the Tech Companies like Google. Who routinely delist sites from their search engine? Not listed in the search engine, you might as well be not have a web prescence. I'm not sure what's worse the government, who we've at least superficially voted for or private corporations who we have had no say in their dealings.
Last year alone Google made 11 million sites disappear on a whim, removing the .co.cc domains from its search index because the sites were deemed by Google to be “spammy”. Where was the "due process"?
Or the the $500,000,000 Cost to Artists of Google’s Five Million DMCA Notices
@AsceticJunkies Friday, May 04, 2012
Your daily dose of RIAA/major label bullshit, wrapped in a DHS tortilla.
@madktc Friday, May 04, 2012
I'd like a comprehensive complete list of the companies and individuals that support the RIAA financially.
@AlfredSpellman Sunday, May 06, 2012
An outrageous abuse of government power.
Central Scrutinizer Sunday, May 06, 2012
Nothing to see here. Everyone move along. Just music industry and govenment working together to bring you a better tomorrow.
Arthur J. Owens Monday, May 07, 2012
This is an important story, but the reporting was a bit lazy. The third paragraph begins with "It's not hard to guess..." and ends with "So, at a minimum, we imagine..." I think a lot of us readers would like to see more solid journalism and less commentary. It is called, after all, Digital Music News, not Digital Music Commentary.
Furthermore, any blog/website that assumes they have clearance to post music on their site simply because it was submitted by an artist, a publicist, or even the artist's promotional team at a major label needs to review that policy with counsel. When the legal team from the RIAA or a major label comes knocking, they will scoff at such an explanation unless you have some kind of confirmed direct license or release. Different departments at the majors work at cross purposes all the time. It's up to those of us who have to work with them to tighten up our game.
Evan_Guerin Monday, May 07, 2012
Here's an idea, read the article before critizing it. The first paragraph was the article that introduced a letter from the EFF. The remainder of the print was the content of that letter, hence the quotes.
And sure it makes sense to do a more thorough analysis of the 'legality' of the music that was submitted to you. However, maybe everyone should just stop working with the labels if their product just gets you into sticky legal situations.
In a business that revolves around exclusivity and timeliness for releases, doing that due dilgence costs time and prevents the early access that was the reason for the leak. If you don't want guerilla marketing then don't give it out. It's really that simple.
@forcemm Monday, May 07, 2012
Thank you RIAA for creating valid arguments to music pirates. Please get a clue so we can save our biz.
@vip2live Tuesday, May 08, 2012