Government Seizures Of Music Blogs

‘Cyber Monday’, the epic Post-Thanksgiving online shopping day, was more of a “Black Monday” this year for the hip-hop blogging community

Robert Litowitz & Dana Nicoletti 05/02/11 Musicdish.com

‘Cyber Monday’, the epic Post-Thanksgiving online shopping day, was more of a “Black Monday” this year for the hip-hop blogging community. On November 29, 2010, U.S. Immigration and Customs Enforcement (ICE), under the umbrella of the Department of Homeland Security, seized control of 82 domain names in an effort to crack down on alleged illegal Internet counterfeiting activity. ICE’s digital raids occurred instantly, and without notice or warning to the domain owners. Most of the seized sites sold counterfeit merchandise or provided file-sharing services, but the domain names for three popular hip-hop music blogs were also frozen for allegedly trading in pirated content. These blogs – RapGodfathers.com, DaJaz1.com, OnSmash.com, and rmx4u.com – regularly receive “leaked” songs directly from artists and music companies. Did the government overstep its bounds, interfere with legitimate music marketing, and violate due process?  Or do these sites really pose an ominous threat to the nation’s economy and vital interests, thereby trumping all other concerns?

The November seizures were the latest step in ICE’s “Operation in Our Sites,” an enforcement campaign targeting Internet counterfeiting and piracy. After the seizures, an ICE spokesperson stated that counterfeit and pirated goods, “present a triple threat to America. They rob Americans of jobs and their innovative ideas; fuel organized crime; and create a serious public-safety risk to consumers.” According to the White House’s 2010 Joint Strategic Plan on Intellectual Property Enforcement, intellectual property seizures increased over 50% this fiscal year.

Some have wondered how the federal government obtained the authority to seize these domain names without first giving notice to the site owners. Under the Prioritizing Resources and Organization for Intellectual Property Act of 2008, the Department of Justice can obtain a court order to seize a domain name or any other property used “to commit or facilitate” copyright or trademark infringement. To do so, federal prosecutors must convince a federal magistrate judge, through affidavit and other evidence, that there is probable cause to believe the law has been violated (similar to the requirements in order to obtain a search warrant). No counter-evidence from the domain owner in question is heard, and the judge can then order the seizure without giving advance notice to the site owner. The owner can only try to reclaim the domain name at a later administrative hearing. Additionally, under the proposed Copyright Online Infringement and Counterfeits Act (“COICA”), government authorities would be allowed to create Internet blacklists of sites suspected of engaging in “infringing activity.” The bill is stalled for now, but could be resurrected by Congress later this year.

How does this all tie in to the music industry? Several of the seized domains belonged to hip-hop music blogs that regularly received intentionally leaked mp3 files from record labels, managers, and artists. Although the Recording Industry Association of American (RIAA) wants to eliminate this practice, the bloggers and some in the industry consider it a vital marketing tool and angrily protest being characterized as music pirates. In a December New York Times interview, Kevin Hofman of OnSmash.com argued that the term “leak”, to those in the know, is regularly thrown around in record label marketing meetings as a positive activity, as in “Hey, can you leak this to the blogs?” A manager representing hip-hop clients such as Lil Jon and Talib Kweli agreed, saying that the industry and his artists “don’t have any issues with most of these sites,” because listeners go straight to the blogs when they want to hear new music ─ a practice avidly supported and encouraged by the industry.

Four months after the seizures, these domain names are still in limbo. Several of the sites were reposted hours after the seizure at slightly altered domain names (for example, RapGodfathers.com now operates at RapGodfathers.info), typically hosted outside of the U.S. In a social media effort to fight back, OnSmash started a #FreeOnSmash campaign on Twitter, asking artists who supported the site to e-mail and tweet their dismay with the situation. However, the owners of these domains could face a long, expensive process in court in order to get their original domain names back.

ICE’s opening blast on Cyber Monday cast a chill over the hip-hop industry. But while the cyber-raids made headlines, it remains to be seen whether they will boost the U.S. economy, revive the flagging music business, or do anything to deter copyright infringement.

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