DHS abruptly abandons copyright seizure of hip-hop blog
U.S. government's high-profile attempt to shut down DaJaz1.com ends with Homeland Security abandoning the case, which it had tried to conduct in secret.
Declan McCullaghFormer Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
A bizarre attempt by the U.S. Department of Homeland Security to seize the domain name of a hip-hop blog accused of copyright infringement ended today with the government abruptly abandoning the lawsuit.
Government officials initially trumpeted the seizure of the music blog, DaJaz1.com, and 81 others as an example of the law prevailing over pirates. Attorney General Eric Holder warned at the time that "intellectual property crimes are not victimless," and Immigration and Customs Enforcement (ICE) director John Morton proclaimed that "today, we turn the tables on these Internet thieves."
The only problem? It turns out that Holder's and Morton's claims appear to have been, well, exaggerated.
That started to become apparent when Dajaz1's editor, who's known as Splash, showed The New York Times e-mail messages from record label employees sending him unreleased songs. ICE had claimed that the music was "unauthorized."
Then ICE treated the case as practically top-secret, filing all the court documents under seal, says Andrew Bridges, a partner at the Fenwick and West law firm in San Francisco who's representing Dajaz1 pro bono.
"They kept getting extension after extension from the court under seal without showing me any papers whatsoever," Bridges told CNET today.
What's unusual here is that normally U.S. law strongly discourages efforts to censor Web sites before a full trial can be held. That's called "prior restraint," and the U.S. Supreme Court ruled in the Pentagon Papers case that even top-secret national defense information did not qualify for temporary, pre-trial censorship.
But in the DaJaz1 case, a series of allegations of dubious reliability offered in an ICE affidavit were enough to censor a popular music blog--which had been featured on MTV News a few months earlier--for over a year.
In fact, the four songs listed by newly-minted ICE agent Andrew Reynolds in the affidavit--by Jamie Foxx, Chris Brown, Nelly, and Reek Da Villian--all appear to have been sent to DaJaz1 for promotional purposes. (There's a parallel: Court documents in Viacom's lawsuit against Google showed that studio representatives surreptitiously uploaded copyrighted clips to the video sharing site for promotional purposes.)
Making the case even more unusual, Bridges said, is that routine procedural documents were all kept under seal. "Why did the government feel the need to keep secret the fact of its repeated extensions of time to file the forfeiture proceeding?" he asked.
Homeland Security did not respond to CNET's request for comment.
ICE had accused DaJaz1 of linking to pirated songs. In the DeCSS case in 2002, a federal appeals court in New York ruled that linking to copyright-infringing material was illegal. But, Bridges says, in the Ninth Circuit, which includes California, "a link does not violate copyright law."
The Recording Industry Association of America sent CNET e-mail about DaJaz1 saying:
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.
An earlier version of DaJaz1, captured by Archive.org, includes links to copies of music on Web sites including Zshare.net, a free file-hosting service.
The Dajaz1 Web site, back in the hands of its rightful owner, is now sporting a temporary note saying it will return "shortly." It also features a video critical of the Stop Online Piracy Act, or SOPA, which would give copyright holders and the Justice Department far more power to delete allegedly infringing Web sites from the Internet.
Victoria Espinel, the White House's Intellectual Property Enforcement Coordinator, told a congressional committee in March that the domain name seizures provide Americans with adequate due process rights.