Alex Goldman is a producer for On the Media. One time he got run over by a car.
Operation In Our Sites Misses its Mark (UPDATED)
Thursday, December 08, 2011 - 04:31 PM
This weekend, we will be airing an interview with Mark Lemley, who is representing a website called Rojadirecta that had its domain name seized by the US government for copyright infringement in February of this year. But several blogs are reporting today that the Justice Department, which has worked with the office of Immigration and Customs Enforcement (ICE) on a domain name seizure operation known as Operation In Our Sites, has returned a mistakenly seized domain after a year of legal wrangling.
dajaz1.com, a hip-hop website, was originally seized by the government in November of last year, because the government claimed that it frequently shared unauthorized copyrighted material. However, the owner of the website, who goes by the moniker Splash, shared emails with the New York Times which showed that songs he posted were given to him by record companies for promotional purposes.
When the website tried legal channels to get the website back, they came up against what TechDirt's Mike Masnick compares, in a lengthy post about the website, to "Something out of Kafka or the movie Brazil. As the website Torrentfreak tells it:
After initially ignoring requests from DaJaz1 lawyer Andrew P. Bridges to return the domain, the U.S. government indicated it would begin the necessary forfeiture procedure. Bridges said he would submit a forfeiture challenge, but the deadline for the government to file apparently came and went with no visible action.
Bridges was told that extensions to file for forfeiture had been granted to the government. However, the lawyer questioned how this had been possible without him being informed and given the chance to contest. He asked for copies of the documentation requesting the extension and the court’s documentation granting it, but on each count he was denied and told the papers were under seal.
Incredibly, he was then told that he wouldn’t be informed of future extensions nor given a chance to contest them either, which was problematic since extension after extension was apparently granted. However, nothing could be officially confirmed by Bridges since the official paperwork remained secret.
According to Masnick, the government made fighting forfeiture all the more difficult by sealing even the most routine government documents, refusing to share them with Dajaz1's lawyer, Andrew Bridges:
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.
Supporters of ICE's domain seizures say that they have built-in due process protections. Victoria Espinel, the United States Intellectual Property Enforcement Coordinator for the Office of Management and Budget, testified before congress that she believed Operation In Our Sites provided adequate due process protections earlier this year.
The Immigrations and Customs Enforcement office couldn't be reached for comment, but (see update below) the Recording Industry Association of America gave a statement to CNET, implying that it still believes that Dajaz1 broke the law:
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 2,300 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.
"With today's news of how the government seized Dajaz1's website with no notice, no chance to be heard and questionable evidence -- and then spent over a year actively denying the site owner's their day in court, suggests serious constitutional questions about the US government's actions," Techdirt's Mike Masnick told us over email. "Their efforts appear to violate both our free speech rights and due process rights in such extreme and shocking ways that it appears the entire ICE/DOJ program should be investigated and rethought."
We'll be discussing due process and ICE's Operation In Our Sites campaign on the show this weekend, so tune in to hear Bob's conversation with Mark Lemley about Rojadirecta.
UPDATE: On the morning of December 9th, the day after this article was posted, ICE sent us the following statement regarding the seizure of dajaz1.com:
Operation In Our Sites utilized the civil forfeiture statute provided by Congress for intellectual property theft to seize domain names of 350 separate websites engaged in copyright or trademark violations. In each instance, ICE, working with our partners at the Department of Justice, demonstrated the requisite probable cause to a federal magistrate judge to justify the seizure of the website. This process is the same that federal law enforcement uses for seizures of all types. During the subsequent forfeiture process, law enforcement continued not only to investigate potential criminal wrongdoing, but to objectively consider all applicable evidence resulting from the ongoing investigation. The goal of every law enforcement operation is to ensure a just result. In the case of this domain name — out of 350 seized — the government concluded that the appropriate and just result was to decline to pursue judicial forfeiture.