These last few weeks, we have heard a lot of talk about WikiLeaks, and government action to shut down their website. But what has surprised me is how little talk there has been about the Department of Homeland Security's seizure of 82 domain sites for alleged piracy and counterfeit. Wired had the story here which gives a detailed list of the sites. Now it appears a lot of them were selling counterfeit handbags, sunglasses, and so on for which they look to have a case. However, a series of hip hop sites were also taken down, which brings us to why I find this government action so troubling. Below the fold, I will fill in some gaps to this story.
Remember this from that long ago 2008 campaign?
Will.i.am of the very successful Black Eyed Peas who has sold millions of copies of CDs put together this black and white video sampling Barack Obama's speech "Yes We Can" into a song that includes countless cameos by actors and musicians. Looking at the video, I see that more than 21 million people have viewed it on You Tube. Call it another hit from Will.i.am, although generously given away for free on the internet. I was inspired by that video at the time, but I didn't realize the alliance it actually symbolized: that the recording industry would find an ally in the White House, or more specifically the Justice Department.
In short, Justice is loaded with former RIAA lawyers:
Obama Taps 5th RIAA Lawyer to Justice Dept.
Monday’s naming of Ian Gershengorn, to become the department’s deputy assistant attorney of the Civil Division, comes more than a week after nearly two-dozen public interest groups, trade pacts and library coalitions urged the new president to quit filling his administration with lawyers plucked from the Recording Industry Association of America.
Yes the same RIAA who sued fans for file sharing, oftentimes in error. The attorney appointed in April represented the RIAA against Grokster, and is now in the "DOJ Federal Programs Branch", which:
just told a federal judge the Obama administration supports monetary damages as high as $150,000 per purloined music track on a peer-to-peer file sharing program.
Anyone else find it creepy that someone so biased is in such a position? Here are the other four:
*Donald Verrilli, associate deputy attorney general — the No. 3 in the DOJ, who unsuccessfully urged a federal judge to uphold the $222,000 file sharing verdict against Jammie Thomas.
*Tom Perrilli, as Verrilli’s former boss, the Justice Department’s No. 2 argued in 2002 that internet service providers should release customer information to the RIAA even without a court subpoena.
*Brian Hauck, counsel to associate attorney general, worked on the Grokster case on behalf of the record labels.
*Ginger Anders, assistant to the solicitor general, litigated on the Cablevision case.
The Justice Department certainly has made a lot of noise in support of the file sharing lawsuits, but given that the RIAA has decided to end suing individuals (because they were a P.R. disaster, extremely costly, and did not slow down the rate of illegal downloading: a TOTAL failure, if you will), it didn't seem so bad at first. However, we now know what the RIAA wants to do instead of suing fans -- they want the government to help them. They have already been busy in Europe where France passed a three strikes and you're out law, and now we have this DHS action. So why is the DHS action disturbing?
There was basically no due process. No notice was given, no legal action: they just seized the sites. Says Mashable:
Yesterday, we reported that the Department of Homeland Security’s Immigration and Customs Enforcement office had seized Torrent-Finder.com, a site that linked to other sites that hosted and shared torrent files of copyrighted material. The news itself was not too unusual; what struck us as out of order was that the site had been shut down without the owner being notified and without a court conviction or, to our knowledge, any other legal proceedings.
...
The Department of Homeland Security (DHS) is seizing sites directly from ICANN because of complaints filed against them; the agency is not doing so under the auspices of the Digital Millenium Copyright Act (DMCA) or a more recently introduced, so-called "censorship" bill, the Combating Online Infringements and Counterfeits Act, or COICA, which was created specifically to address the issue of piracy.
...
What we can’t debate is that the government has a right to enforce its own laws. If copyrights are being infringed upon and goods are being counterfeited, the government does have the authority to put a stop to those activities.
But when legislators have taken great pains to construct and pass laws that create procedures for dealing with these exact issues, it does seem a bit off that none of those procedures were used.
COICA is a bill authored (sadly) by Sen. Patrick Leahywhich would make seizing sites easier, and for which groups like the Electronic Frontier Foundation vehemently oppose. It passed the Judiciary Committee in late November unanimously. Yes, you heard that right: one thing for which there is major bipartisan support is for the government to turn internet sites into this picture. This is precisely what happened to Kevin Hofman, owner of the hip hop site smashon.com, as reported today in the New York Times:
Thanksgiving Day had barely begun when Kevin Hofman’s BlackBerry buzzed. It was one of the technical operators of OnSmash.com, Mr. Hofman’s popular hip-hop blog, telling him that the site had gone mysteriously blank just after midnight.
...
OnSmash.com and the handful of other music blogs shut down by the government post brand-new songs and videos without licenses, but much of that material is often leaked to them by managers, music labels and even the artists themselves.
As a result, these sites have a complex symbiosis with the music business. While the Recording Industry Association of America wants to shut them down, the rank and file of the record labels — particularly in hip-hop circles — uses them as marketing tools and publicity outlets.
Yes, you heard that right. Music labels and artists USED OnSmash.com as a promotional vehicle, were in constant contact with them, and they fed mp3s to the music blog to post! Oh, wait, what's this? Is that a Twitter status update from ...
@kanyewest
Kanye West
http://videos.onsmash.com/... Kid Cudi trailer for Man On The Moon
3 Nov via web Favorite Retweet Reply
Retweeted by MartinMark and 85 others
Sorry, folks. Yu're not going to see Kid Cudi, but rather, well, the Department of Homeland Security notice. Say what you will about Mr. West, he is very much a creature of the major label system who just sold half a million copies of his latest album in the first week. Not exactly a pirate or pirate enabler. So what gives?
Here is my theory. The RIAA remains a lobbyist outfit that is as incompetent as it is arrogant. Doubling the problem? The Justice Department is now full of folks who are friendly with the RIAA. Hey, these are their pals. So when the RIAA whispers complaints to the federal government, it seems the government didn't check the situation out very thoroughly, because they trust the RIAA. Meanwhile, there is profound disagreement within the music industry on what their business model should be, so this music blog gets shut down on account of that confusion! You know, in spite of my distaste for the RIAA, I actually am in favor of paying for music, and am saddened by so many people freeloading off artists' blood, sweat, toil and tears. But I also expect my government to respect the rule of law, and respect a free and open internet. Seeing as they:
For now the seized domains are in legal limbo. David Snead, a lawyer specializing in Internet cases who is representing the owner of torrent-finder.com, speculated that it might be 30 to 60 days before he would be able to see a seizure order. "The government is providing zero information to help us determine what he is being charged with," he said. "It’s a black hole."
are providing the public with no information (what is this a terrorist investigation??), I find this story quite disturbing and worthy of more attention. We the people deserve an explanation.