Federal authorities who seized a popular hip-hop music site based on assertions from the Recording Industry Association of America that it was linking to four “pre-release” music tracks gave it back more than a year later without filing civil or criminal charges because of apparent recording industry delays in confirming infringement, according to court records obtained by Wired.
The Los Angeles federal court records, which were unsealed Wednesday at the joint request of Wired, the Electronic Frontier Foundation and the First Amendment Coalition, highlight a secret government process in which a judge granted the government repeated time extensions to build a civil or criminal case against Dajaz1.com, one of about 750 domains the government has seized in the last two years in a program known as Operation in Our Sites.
Apparently, however, the RIAA and music labels’ evidence against Dajaz1, a music blog, never came. Or, if it did, it was not enough to build a case and the authorities returned the site nearly 13 months later without explanation or apology.
Cindy Cohn, the EFF’s legal director, said the site’s 13-month seizure by the Immigration and Customs Enforcement bureau highlights the RIAA’s influence over the government. President Barack Obama has tapped at least five former RIAA attorneys for senior positions in the Justice Department.
“Here you have ICE making a seizure, based on the say-so of the record company guys, and getting secret extensions as they wait for their masters, the record companies, for evidence to prosecute,” Cohn said in a telephone interview. “This is the RIAA controlling a government investigation and holding it up for a year.”
ICE, a branch of the Department of Homeland Security, has the power to seize web domains engaged in infringing activity under the same forfeiture laws used to seize property like houses, cars and boats allegedly tied to illegal activity such as drug running or gambling. But seizing a domain name raises First Amendment concerns — though nothing in the court records show that the government or the court was concerned about the prolonged seizure of the site that is akin to an online printing press.
In the Dajaz1 case, the authorities seized the site in November 2010 on the word of the RIAA that four songs linked to on the site were unauthorized, the records show. Yet nearly a year later, in September 2011, the government was secretly seeking yet another extension to build its case, ostensibly because it was still waiting for the recording industry to produce evidence, the records show. All the while, the site’s owner and his attorney were left out of the loop, as the court record was sealed from them and the public. The Dajaz1 site was redirected to a government landing page saying it was seized by customs officials.
On Sept. 7, 2011, about 11 months after the government seized Andre Nasib’s site, a Department of Homeland Security agent wrote a declaration to U.S. District Judge Margaret Morrow of Los Angeles, explaining the reason for seeking a third time extension to build a case. The agent said “a sampling of content obtained from the Dajaz1.com website and its purported affiliate websites was submitted for rights holder evaluation and has yet to be returned.”
The agent, Andrew Reynolds, wrote virtually the exact same sentence in a July 13, 2011 declaration (.pdf), in which the government sought its second extension of time to build a case.
However, Reynolds’ declaration in September for the first time mentioned the RIAA by name.
“Additionally, a representative with the Recording Industry Association of America (RIAA) has stated that he will provide a very comprehensive statement to ICE’s and CBP’s [Customs and Border Protection's] outstanding questions, in coordination with corresponding rights holders, which will be forthcoming in approximately 30 days,” Reynolds wrote. (.pdf)
Other than the unsealing orders won by Wired, EFF and the First Amendment Coalition, that Reynolds filing was the last one in the case — meaning the record does not say whether the RIAA or other industry players ever produced the promised report.
The Los Angeles federal prosecutor in the case, Steven Welk, did not respond for comment. Welk’s office agreed to unseal the documents, but said that it did so without conceding there was any First Amendment or common law necessity to do so. In December, when the site was returned, the authorities said it was “the appropriate and just result.”
The RIAA declined to comment on the unsealed documents, which Wired provided to it for review.
Instead, the industry lobbying group pointed Wired to its statement in December, when Dajaz1 was returned:
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. [...]
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.
Dajaz1′s owner, Nasib, of New York, declined comment through his attorney, Andrew Bridges.
In December, Nasib told The New York Times that the recording industry offered him the four songs that were at the center of the case against him.
“It’s not my fault if someone at a record label is sending me the song,” the paper quoted him as saying.
The site’s seizure was based on an affidavit (.pdf) from Reynolds, who said he streamed or downloaded four songs hosted in cyberlockers — filezee.com and usershare.net — that were linked on Nasib’s site. The songs in question were “Deuces” by Chris Brown; “Fall for Your Type” by Jamie Foxx; “Long Gone” by Nelly and “Mechanics” by Reek Da Villian. Reynolds, in his seizure affidavit, wrote that he consulted with “RIAA representatives” when drafting the affidavit to verify that the songs were unauthorized.
Bridges said in a telephone interview that Nasib’s site, which is now up and running again, should never have been seized.
“To begin with,” Bridges said, “I don’t think there was any evidence of criminal copyright infringement.”