ICE Admits To Returning Domain While RIAA Threatens Dajaz1 With More Legal Actions

from the oh-really? dept

Fri, Dec 9th 2011 11:32am — Mike Masnick

The continuing saga of the Dajaz1 censorship is unfolding in interesting ways. While some of us thought that both ICE and the RIAA owed Dajaz1 a pretty big apology for wrongly seizing and censoring the site for a year, all while denying due process, those two organizations apparently have other ideas. ICE gave an almost content free statement to Tim Lee:

ICE spokesman Ross Feinstein told Ars that "the government concluded that the appropriate and just result was to decline to pursue judicial forfeiture."

So what took so long? Feinstin wouldn't elaborate on why the domain was seized or why the government had changed its mind.

If the "appropriate and just result" was not to pursue forfeiture... then it seems quite reasonable to ask if the actual "appropriate and just" thing would have been to have never seized the domain in the first place. Or to have given it back when asked.

Meanwhile, we'd already noted a weird statmenent from the RIAA on the subject, but the organization issued a more detailed response to Jon Healey from the LA Times:

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.

Note the lack of an apology for taking away their property on no legitimate basis for over a year. Even if we grant the RIAA their premise that the site infringed (which we don't), does it still make it right that the domain was completely censored for a year, and that the government tried very hard to avoid having to give it back? How can the RIAA not apologize for such a situation?

Even more to the point, though, is the fact that the RIAA still insists the site was illegal, even after all of this. It seems to be issuing a threat to figure out yet another way to get a bite at this apple, despite it being rejected. And now you know why the RIAA supports SOPA and PIPA. Under those laws, it would be that much easier to knock out competition and innovation.

Of course to understand some of the details of how these blogs work, and why the RIAA is being misleading, at best, there's a great and insightful comment from R.K. Udeshi on Hacker News, who explains:

If you're not familiar with hip-hop music blogs like the one cited in the article, please visit http://nahright.com or http://missinfo.tv to get a better idea of what they look like (since dajaz1.com doesn't seem to be back up yet, understandably).

Almost every track posted to sites like these are released by the artists themselves (or by their labels). Many hip-hop blogs (including the two I linked) will not post songs if they weren't legitimately authorized by the artists (e.g. if a track was stolen and leaked on the web).

Something you won't ever see are full albums. These sites aren't designed to replace album sales, they actually encourage them. They will only link to individual songs or freely released mixtapes.

(Also, you'll note that a lot of the music posted is from unsigned artists. A lot of newer rappers actually rose to prominence after having their music posted on these sites.)

There are many, many sites that willingly infringe on copyright and the government has good reason for shutting down. This was not one of them.

That makes the point quite succinctly. These blogs are the new radio, and there's a total disconnect between the lawyers and the marketing folks. Of course, it's one thing for there to be confusion between two parts of a company... and quite another for that disconnect to lead to outright censorship and denial of due process.

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Filed Under: censorship, doj, domain seizure, homeland security, ice
Companies: dajaz1, riaa

48 Comments

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Anonymous Coward, 9 Dec 2011 @ 11:49am

This shows another problem with SOPA/Protect IP that hasn't been mentioned before, no double jeopardy protection.

There's nothing to stop a bunch of copyright holders from getting together and one by one getting a site they all don't like pulled/cut off from ad revenue for nonexistent infringement, then have another copyright holder falsely accuse once the previous charges are dismissed, and so on.

Ganging up on victims with lawsuits has been done before. There's been cases where 10+ trolls file near simultaneous and near duplicate lawsuits against the same person to put them out of business.
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Anonymous Coward, 9 Dec 2011 @ 11:50am

"Almost every track posted to sites like these are released by the artists themselves (or by their labels). Many hip-hop blogs (including the two I linked) will not post songs if they weren't legitimately authorized by the artists (e.g. if a track was stolen and leaked on the web). "

That seems to be a less than honest statement. When one of these sites was shut down and we checked the Google cache of the sites, it was easy to find "user generated content" of remixes and other infringing materials as a key part of the sites.

There seemed to be plenty of less than "authorized" material kicking around.
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weneedhelp (profile), 9 Dec 2011 @ 11:50am

oes it still make it right that the domain was completely censored for a year
Censored nothing, their online voice was stolen. It was theft. No different than taking your house for a year and then saying here, we cant find anything to railroad you on so move back in.

Before the greedtards chime in with compairing it to file sharing, no one copied their house and used it elsewhere.
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weneedhelp (profile), 9 Dec 2011 @ 11:55am

Re:
""user generated content" of remixes"
Again greedtards dont believe in fair use.

Mixes may have been fair use and appears to be as the charges were dismissed.

"There seemed to be plenty of less than "authorized" material kicking around." - Apparently not assclown.
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Jay (profile), 9 Dec 2011 @ 12:01pm

Re:
There's also the fact that companies can just pile on financial pressure through expensive lawsuits.

Sony did this with Bleem 20 years ago. So it seems that the RIAA is doing everything it can to make everyone seem like a pirate.
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Ima Fish (profile), 9 Dec 2011 @ 12:02pm

"These blogs are the new radio"

While I completely understand what you're saying, rap blogs are the new way to promote rap music. However, the problem with the radio analogy is that radio does pay royalties to song writers and publishers. Blogs do not. Nor should they.
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Anonymous Coward, 9 Dec 2011 @ 12:07pm

Re: Re:
I don't think that remixes are ever "fair use". Do you have an example of a ruling in this regard?
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Anonymous Coward, 9 Dec 2011 @ 12:08pm

Re:
Why not? If they make their living off of playing the music, if that is their content, then should they not be held to the same standards as other "online radio" sites?
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Travis, 9 Dec 2011 @ 12:12pm

WTF?!
When the hell will the RIAA have it's powers stripped and it's organization disbanded? They do NOTHING to protect the artists or the recordings, their sole mission seems to be pissing EVERYONE off. Why are these asshats still around?!
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Anonymous Coward, 9 Dec 2011 @ 12:13pm

Re: Re:
That's the thing too, maybe there "seemed to be plenty" but there wasn't. And instead of documenting the instances and bringing about real charges of real crimes, they instead went on the assumption that "oh, it must be illegal, b/c..." and took the site down. I can tell you right now if you raid a home where you think there are crimes with no proof and no compelling evidence, there are going to be lawsuits as soon as you return the property.
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bob, 9 Dec 2011 @ 12:15pm

What rich irony!
Note the lack of an apology for taking away their property on no legitimate basis for over a year.

If the RIAA is correct that the site was posting prereleased music without permission, then it sure sounds like turnabout is fair play.

Oh wait. I forgot. The hard work of musician, singers and producers doesn't lead to "property". Nope. They're not entitled to control what happens to their work. I'm soo stupid. This isn't rich irony at all.
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Matthew A. Sawtell, 9 Dec 2011 @ 12:16pm

Love or Hate it - Precedence has been set
Beyond the usual spin in the papers and flaming on the Internet - Precedence in two ways has been set:

1) Sites can be taken away by Government for more than questionable reasons.

2) Sites can be released back from the Government for more than question reasons.

While damage has been done, in all so many ways, the ability to collect for damages appears to be have opened (i.e. lawsuit filed against RIAA by the owners of Dejaz1). Or... has there be any law enacted by Congress to cover companies or organizations like the RIAA to exonerate from prosecution?
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Adam J, 9 Dec 2011 @ 12:16pm

EFF needs to get on this sh*t and file some Freedom of Information requests. ;)
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Gwiz (profile), 9 Dec 2011 @ 12:18pm

Re: Re:
Why not? If they make their living off of playing the music, if that is their content, then should they not be held to the same standards as other "online radio" sites?

On the other side of that coin, shouldn't the content owners be paying them for the promotion that they are currently getting for free? Especially if they are the ones sending in the mp3's to get them promoted?
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Anonymous Coward, 9 Dec 2011 @ 12:19pm

Real reason for these laws
As mentioned in the third quote...

"A lot of newer rappers actually rose to prominence after having their music posted on these sites."

This is what really scares the hell out of the **AA's.... It's not necessary to spend millions on promotion/marketing if independent artists have music that people actually want to listen to, all that's necessary is to put the music on the internet and let people hear it. Now why would they want to stop promoting artists?

Even their new 'reality show cookie cutter formula' stars (aka American Idol, X Factor, Can you Duet, etc) are finding competition from 'young whipper snappers' who are embracing the FREE promotion and marketing tool that the internet is.

Having a promotion and marketing tool that doesn't require the artists to sign over their copyrights, first born child, and all personal income for the next 20 years just to 'signed' can be an amazing thing for those willing to use it, and a nightmare for those not 'signing' the artists anymore....
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Loki, 9 Dec 2011 @ 12:21pm

(Also, you'll note that a lot of the music posted is from unsigned artists. A lot of newer rappers actually rose to prominence after having their music posted on these sites.)

It is interesting to note that the decrease in MySpace's (which was, at least in part, initially designed to promote independent artists and labels) active usage occurred around the time the entertainment industry started plastering the musicians, movies and offering all over the site (and making it more difficult to find independent offerings).

eMusic's membership has been flat for several years now, and while I read their earning are up 22%, the almost 50% price increase a few years ago suggest people are buying less not more music (though I don't have figures). I never hear any news about it anymore, and nobody I know uses the service anymore (again trying to find independent stuff now is a major pain in the ass now that the major labels plaster their stuff all over the place).

IT would be very interesting to find out if Dajaz1 was producing more successes from independent artists using their site, than the push the major labels were getting by "leaking" their stuff as it is abundantly clear (besides just the MySpace and eMusic examples) that the major labels will spare no effort to limit all channels for any artist they themselves don't own/control and can't profit from.
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Anonymous Coward, 9 Dec 2011 @ 12:26pm

Re: What rich irony!
The government, even the arm that is devoted to ardently defending the 'rights' of the RIAA, literally just said 'No, we cannot build a case at this time. We're out.' and your response is 'but what if the RIAA is correct, then it's totally fair!'

"I'm soo stupid. This isn't rich irony at all."

You sure hit the nail on the head with that one.
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Anonymous Coward, 9 Dec 2011 @ 12:26pm

Re:
How would you have any idea by looking at a post and proclaiming something to be obviously infringing. In hip hop remixes are part of the promotional landscape and is often sent to outlets by the labels themselves. The labels often release the instrumentals of popular songs specifically for this purpose.

You cannot just look at a blog post and say something is obviously infringing, nor can you know what authorization was received behind the scenes.
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Anonymous Coward, 9 Dec 2011 @ 12:27pm

Re: Re:
Radio pays a few cents everytime it plays a song whether 1 person is listening or 10 million. The RIAA would want these sites to pay per listen.
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Mike Masnick (profile), 9 Dec 2011 @ 12:32pm

Re:
That seems to be a less than honest statement. When one of these sites was shut down and we checked the Google cache of the sites, it was easy to find "user generated content" of remixes and other infringing materials as a key part of the sites.

The site you are talking about was a forum site. The site that guy is talking about were the blogs. The two are separate and distinct. Do not mix them up.
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Anonymous Coward, 9 Dec 2011 @ 12:33pm

Re: Re: Re:
You're missing the point first of all. Fair use is an affirmative defense and you'd need an adversarial hearing to determine if it applies, otherwise who would raise said defense. In the absence of an adversarial hearing there's no telling if the uses were fair or not.

Second, fair use is a case by case thing. Obviously a judge would look at past case law to render a verdict but they would also listen to the track. Nowhere is it written that called something a 'remix' automatically means it is not fair use. That would be absurd.
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Chosen Reject (profile), 9 Dec 2011 @ 12:34pm

Re:
The RIAA claims to have over 2,300 instances of dajaz1.com blatantly committing copyright infringement. They then pick 4 of these, and those 4 are shown to not actually be copyright infringement, with one not even being under the purview of the RIAA. Surely if they wanted the site to get seized they would have done at least a half decent effort at picking out instances that actually were copyright infringement. Even if they picked them out at random they should have done better than that.

The fact that they weren't able to pass on even one valid instance to ICE indicates that they are liars. That you agree with their lies indicates complete stupidity on your part, or that you are complicit in their lies. Which one is it?
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Mike Snoop Doggy Jackson-Osmond, 9 Dec 2011 @ 12:45pm

I think the real (unwarranted) beef the RIAA has here is that this site was linking to music that the RIAA had no control over and was not profiting from. The RIAA believes that if you want to distribute music (as an artist or anyone else) you have to go thru the RIAA, no matter what, weather you have a contract or not. In other words, the RIAA wants complete control over all music distribution� If you want your music out there, you go thru the RIAA � or else. And of course ICE is now the lap dog enforcement arm of the MPAA and the RIAA courtesy of you and me, the taxpayer.
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The eejit (profile), 9 Dec 2011 @ 12:51pm

Re: What rich irony!
Then why the fuck didn't the RIAA use them as evidence for the forfeiture proceedings?

Oh, wait, that's right, they committed one act of copyfraud and gave three legitimately-used files as "evidence of massive infringement."

So, if they actually had evidence, there could have been a civil proceeding, as is the case under current law.
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Marcus Carab (profile), 9 Dec 2011 @ 12:55pm

Re: Re:
This is the real point. It's impossible to believe their assertion that the majority of content was infringing when EVERY SINGLE EXAMPLE they chose for their affidavit turned out to be authorized. (IIRC it was more than 4, too - 7, I think)
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Anonymous Coward, 9 Dec 2011 @ 12:57pm

Did the LA Times allow Mike Masnick or anyone to respond to the RIAA's claims, or did it merely make a one sided statement without the opportunity for a response?

See, here on Techdirt, comments are open so IP extremists can come here and defend their position. What about the L.A. Times? Is it true that the pro - IP position is indefensible in the face of scrutiny and so scrutiny needs to be censored where possible?
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Marcus Carab (profile), 9 Dec 2011 @ 1:01pm

Re: What rich irony!
If the RIAA is correct that the site was posting prereleased music without permission, then it sure sounds like turnabout is fair play.

And yet, in any and all legal terms, the RIAA was NOT correct. Because if they were, the government could have built a case against Dajaz1. You can't have it both ways - abandon the case and give back the domain, while also claiming that you were totally right all along.
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Anonymous Coward, 9 Dec 2011 @ 1:03pm

Re: Re:
Broadcasting monopolies should be abolished. It is wrongful for the government to grant a monopoly on both content (through IP laws) and distribution (through broadcasting monopolies). Not only has my right to freely broadcast been stolen from me (I've been wrongfully deprived of it) but, on top of that, my right to freely do what I please to that which is broadcasted has also been stolen from me.

Broadcasters have a special privilege. They have the special privilege of exclusive broadcasting. That's a privilege that infringes on my rights. Internet users don't have that privilege because starting a website and playing music on it doesn't infringe on someone else's right to do the same.
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Kevin H (profile), 9 Dec 2011 @ 1:05pm

Re: Re: Re: Re:
You mean you actually get to go to court and defend yourself? Thats crazy talk.
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Anonymous Coward, 9 Dec 2011 @ 1:05pm

Re: WTF?!
Never.
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Glenn, 9 Dec 2011 @ 1:07pm

Have we forgotten so soon?
Once the RIAA decides that it's right (which it always is of course), it will never ever admit to having been wrong (which it always is actually). Just do what I do (for well over a decade): never again buy anything from an RIAA member. Period. And never download either (legally or otherwise). Treat them and their product like the POS they are. (And the MPAA is following close in their footsteps.)
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Kevin H (profile), 9 Dec 2011 @ 1:08pm

Re: WTF?!
As soon as the old guard of content gate keepers finally finish their slow walk to death. The RIAA will remain a viper in our world till they can finally be defunded by what remains of the recording industry (note. Did not say music industry)
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Anonymous Coward, 9 Dec 2011 @ 1:15pm

Re: Re: Re:
and broadcasters shouldn't have to pay any royalties and everyone should be free to broadcast however they please. Though I don't mind leaving a few exception frequencies for things like government ran emergency broadcasting frequencies, GPS frequencies, and cell phone use (emergency call) frequencies (I'm actually not sure how cell phone frequencies should be handled, they seem to already be used way more efficiently than broadcasting frequencies since those frequencies can be dynamically allocated to various devices across different areas and so their use means someone is using them within the area).

But, as far as radio and television, everyone should be free to use and broadcast on those frequencies as they please and everyone should be free to record, remix, and distribute whatever is broadcasted on those frequencies as they please. Television and radio monopolies are a terribly inefficient use of spectra since entire areas where not a single person is watching or listening to a particular broadcasting station can be denied other uses of its frequency for no good reason. What a waste.
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Anonymous Coward, 9 Dec 2011 @ 1:19pm

Re: Re:
If you remember, we looked at both. The blog sites often linked to (or included in their site) remix songs and videos as blog posts. You can't tell me that they though all of them were legal and approved.
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Anonymous Coward, 9 Dec 2011 @ 1:21pm

Re: Re: Re:
No, the content owners shouldn't be "paying for promotion" because they don't get to choose when they get played, and the stations / sites sell advertising beyond that.

If the content owners want exposure, they just open their own sites and let people stream the music there. They don't need a third party to do it for them and profit from it both ways.

Your logic makes no sense.
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MonkeyFracasJr (profile), 9 Dec 2011 @ 1:24pm

^THIS!^
^THIS!^
^THIS!^
^THIS!^
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Anonymous Coward, 9 Dec 2011 @ 1:25pm

Re: Re: Re: Re:
(not to mention, two way communication is more efficient than one way broadcasting since two way communication can happen simultaneously providing for more net bandwidth transfer than one way broadcasting. The use of directional antennas and bandwidth allocation across different areas also provides for way more efficiency than a simple very widely held broadcasting monopoly does since a broadcasting monopoly results in many areas being denied use of a frequency that isn't otherwise being used during various time frames. Broadcasting monopolies are a terrible use of spectra and should be abolished. Perhaps a system where people can request a station that they want to listen to and have bandwidth allocated to that station within their area and if others in the area want to listen to that same station they can simply tune into it without having any more bandwidth allocated to it. This will give people a wider selection of stations to listen to. Perhaps a system where anyone can start their own radio station online and have an address that people can program into their radios to request).

The emergency broadcasting station can be used to broadcast things like emergencies, weather, general news, time of day, etc... just general information that people should know.
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Marcus Carab (profile), 9 Dec 2011 @ 1:28pm

Re: Re: Re:
You can't tell me that they though all of them were legal and approved.

Honestly, I wouldn't have thought so either. But since the DOJ couldn't even come up with a single example of an actual infringing track for their affidavit, I think it's clear that in fact the majority of them WERE legal and approved.
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Marcus Carab (profile), 9 Dec 2011 @ 1:29pm

Re: Re: Re: Re:
No, the content owners shouldn't be "paying for promotion" because they don't get to choose when they get played, and the stations / sites sell advertising beyond that.

If the content owners want exposure, they just open their own sites and let people stream the music there. They don't need a third party to do it for them and profit from it both ways.

Might want to read up on the history of a little something called "payola". The content owners spent a lot of money doing exactly what you claim they shouldn't and wouldn't do.
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Gwiz (profile), 9 Dec 2011 @ 1:39pm

Re: Re: Re: Re:
No, the content owners shouldn't be "paying for promotion" because they don't get to choose when they get played, and the stations / sites sell advertising beyond that.

So, the content owner or their agent physically sending the mp3's to these blogs for promotional purposes isn't their choice? Is someone forcing them at gunpoint or something?

And then you go on to say my logic makes no sense. Interesting.
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ltlw0lf (profile), 9 Dec 2011 @ 2:32pm

Re: Re: Re: Re: Re:
You mean you actually get to go to court and defend yourself? Thats crazy talk.

Certainly is when the majors get their way. I expect a moment of "Let them eat cake" too -- but they have to remember the last time it happened that way, it didn't turn out too well for the ones who uttered those words, and most of them lost their heads after they ate their words.
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Anonymous Coward, 9 Dec 2011 @ 5:09pm

How can the RIAA not apologize for such a situation?

A complete lack of empathy, decency, and humanity. I suppose you could say they sold their souls for money.
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Anonymous Coward, 9 Dec 2011 @ 6:44pm

Re: Re:
"Why not? If they make their living off of playing the music, if that is their content, then should they not be held to the same standards as other "online radio" sites?"

Interesting thought.

The difference between online radio and what would occur with blogs is the music would be on demand. If it was that simple I think most legit music bloggers would be content with that.

I've seen some sites pay money to get the exclusive first release, only to have the RIAA or the IFPI turn around and take it down on a copyright claim within a few hours.

As long as the RIAA and the IFPI are around to undermine the efforts and attempts by everyone to find a happy medium no progress will be made. Why would any blogger pay for the rights to premiere an exclusive when they're gonna take your money, then take it down?
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Anonymous Coward, 10 Dec 2011 @ 12:27am

Re: Re: Re: Re:
Sure, go ahead and open your own site. The problem with that is it takes time and commitment to build a community. That takes money. The blogs are offering their community to the artists for free. You want them to pay the artists on top of that, for giving away a valuable resource. I'm afraid I do not follow your own brand of logic.
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PaulT (profile), 10 Dec 2011 @ 1:10am

Re:
"we checked the Google cache of the sites"

Who are "we"?

Citation?
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PaulT (profile), 10 Dec 2011 @ 1:26am

Re:
"Blogs do not. "

...because apparently they play the music freely given to them by content owners. Why does this not make them radio? Is a radio station that plays only CC licensed music without paying royalties also not radio somehow?

This isn't a criticism by the way, not really anyway, but I just wonder what distinction you're trying to make.
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PaulT (profile), 10 Dec 2011 @ 1:39am

Re: Have we forgotten so soon?
"never again buy anything from an RIAA member. Period."

Yep, but as I've said before this will just lead them to assume piracy is responsible for their losses and try to pass even more draconian laws on their behalf...
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nepr, 8 Sep 2012 @ 3:11am

dajaz1
Its disgusting that it took so long for the dajaz1 debarcle to conclude, it should never have been seized in the 1st place. I know if i owned dajaz1 id be looking for some heavy duty compensation.
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