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Should the feds have more power to seize domain names?

Dajaz1 logo
Before Congress gives the Justice Department more power to seize domain names, maybe it should consider what the government does with the power it already has.

Lawmakers are considering bills in the House and Senate that would authorize the DOJ to seek court orders seizing the domain names of online piracy hotbeds based outside the United States. One concern about the measures is that they don't do enough to protect the due-process rights of site operators.

At least the bills require the DOJ to sent a notice to the registrant of a site -- which may simply be a hosting service, not the site's actual owner or operator -- before moving to seize its domain. A law already on the books allows the Department of Homeland Security to seize domains with no advance notice at all.

Mike Masnick at TechDirt offered a chilling tale Thursday about a hip-hop DJ's blog, Dajaz1.com, whose domain was seized last year by Homeland Security's Immigrations and Customs Enforcement division. The site was knocked offline after a federal magistrate in Los Angeles approved a seizure warrant sought by an ICE agent, who offered evidence that Dajaz1 published links to four songs before they had been officially released. The Justice Department secretly obtained a series of delays that kept Dajaz1 from contesting the seizure in court. Then, suddenly, the feds told the site's Bay Area lawyer, Andrew Bridges, that they weren't going to confiscate the domain after all; it went back online Thursday morning.

In short, the feds seized the site without giving Dajaz1 a chance to defend himself. Then the DOJ held onto the site for months while denying Dajaz1 his day in court. Even if the guy did everything ICE accused him of doing, in this country he still deserves a chance to defend himself.

Bridges said that under the law, the feds should have either returned the domain or filed a lawsuit against Dajaz1 within 90 days of him contesting the seizure. Instead, Bridges said in an interview, a DOJ attorney in Los Angeles filed repeated requests to extend the deadline for bringing suit. But he did so secretly -- "under seal," in court parlance -- so Bridges had no say in the matter. In fact, Bridges said, he's never seen any of the court filings associated with the requests; the only reason he knows about them, he said, is because Steven R. Welk, the head of the DOJ's asset forfeiture unit in Los Angeles, told him about them.

I sought a response from Thom Mrozak, a spokesman for the U.S. attorney in Los Angeles, but didn't hear back.

To me, the main issue here isn't whether Dajaz1 was a good guy or a bad guy. It's whether operators of allegedly infringing sites have due-process rights, and if they do, how do you balance them against copyright owners' ability to stop infringements. And I don't see how the DOJ can justify preventing Dajaz1 from contesting the seizure of his domain name for nearly a year. That's not the right balance.

As to the question of whether Dajaz1.com was a piracy hotbed, Masnick contends that at least three of the four songs cited in the ICE warrant had been provided by labels or by the artists themselves, who were apparently hoping to promote new releases on the DJ's blog. The Recording Industry Assn. of America hotly disputes the assertion, however, that Dajaz1 was an artist-friendly promotional outlet. Here's a statement it issued Thursday:

We understand that a decision was made that this particular site did not merit a criminal forfeiture proceeding.  We respect that government agencies must consider a range of technical issues when exercising their independent prosecutorial discretion.  Criminal proceedings are not always brought, for a variety of appropriate reasons. 

With respect to Dajaz1, we would note that this particular website has specialized in the massive unauthorized distribution of pre-release music -– arguably the worst and most damaging form of digital theft. 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.

If the site continues to operate in an illegal manner, we will consider all our legal options to prevent further damage to the music community.

We are aware of statements by the site operator that suggest that music companies themselves were the source of at least some of the thousands of recordings available on Dajaz1.  Even assuming this to be accurate, it does not excuse the thousands of other pre-release tracks also made available which were neither authorized for commercial distribution nor for uploading to publicly accessible sites where they were readily downloadable for free.

Again, I'm not taking sides on that issue. But the questions about the provenance of the four tracks used to justify the seizure makes the delay in Dajaz1's day in court more unseemly.

RELATED:

A bipartisan alternative to the Stop Online Piracy Act

Piracy vs. an open Internet

Technology: A bipartisan attempt to regulate the Internet?

Seizing domain names without the Protect IP Act

-- Jon Healey

 

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The Opinion L.A. blog is the work of Los Angeles Times Editorial Board membersNicholas Goldberg, Robert Greene, Carla Hall, Jon Healey, Sandra Hernandez, Karin Klein, Michael McGough, Jim Newton and Dan Turner. Columnists Patt Morrison and Doyle McManus also write for the blog, as do Letters editor Paul Thornton, copy chief Paul Whitefield and senior web producer Alexandra Le Tellier.



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