On Monday, Nov. 29, federal authorities seized 82 websites which, they allege, were involved with the illegal sale and distribution of counterfeit goods and copyrighted material. Where once online visitors found fully functional sites, they are now greeted by a graphic floating on a red sea of the word “seized.” The image has three law enforcement badges at the top and a legal statement explaining that the site’s domain name had been taken over in accordance with a warrant.
Spearheaded by U.S. Immigration and Customs Enforcement (ICE), the seizures were the result of a 90-day investigation and were announced on Cyber Monday, the Internet shopping equivalent of Black Friday, to send a message to other would-be copyright infringers and shoppers who would buy from these sites. While 77 of the sites were targeted for allegedly selling illegal imitations of physical products (a selection of the sites have such names as cheapscarfshop.com, louis-vuitton-outlet-store.com, timberlandlike.com and golfactoryoutlet.com), several websites caught in the raid were not attempting to attract holiday bargain hunters.
The Electronic Frontier Foundation (EFF), a digital rights watchdog and advocacy organization, issued a press release shortly after the seizures pointing out that certain shuttered sites, such as OnSmash.com and RapGodfathers.com, were dedicated to promoting rap and hiphop through news and forums. They’re frequented by large communities of fans who use the sites’ forums to review music and share information about favorite acts. In many cases, downloadable files and links to content are provided by the recording industry or independent artists looking for promotional opportunities. According to the owners of these sites, they regularly issue copyright infringement notices or remove links when users break the rules. None of the seized sites’ owners were warned prior to being taken off line, given specific reasons for the seizures, or offered any clear recourse to contest the seizures.
Far from being simply an index of links or files, not only did these rap and hiphop sites offer regularly updated music, news and information, but they had robust user forums. At least one seized site, RMX4U, contained tens of thousands of reader-initiated conversation threads with hundreds of thousands of posts. In effect, the seizures censor the speech that once flowed there freely.
In a CNN interview, Erik Barnett, assistant deputy director of ICE, explained the department’s reasoning behind the seizure of sites such as OnSmash: “In general, what we can say is, there are specific complaints from rights holders that these sites were infringing on copyrights. Really, what we’re talking about is the crime of theft& They could have had, as you say, maybe some labels that gave some work of artists. But in the larger picture, they had hundreds if not thousands of songs, movies, software titles available that the true copyright holder, therefore the victim, was not receiving any payment for.”
By this logic, every music store in the country selling second-hand CDs and DVDs should be shut down and their employees sent home. But, of course, he’s referring to digital copies of media—a format which the ICE treats differently than physical media, even though “stealing” a digital document leaves the original wholly intact. The complaining copyright holders may feel the government has been responsive to their needs, but it’s unclear how this police action (or the three months of investigation that led up to it) protects anyone else’s rights or makes the Internet a safer place to do business.
While Barnett uses words such as “theft” and “victim” to describe the scenario he confronts (even before a jury has decided anyone’s guilt), it’s not clear how the techniques he employs will actually get the copyright holders paid.
The ICE did not confiscate the sites’ equipment or the digital devices in which they were stored; it simply made it impossible for visitors who typed in their domain name (such as “OnSmash.com”) to locate the site. Hours after they had been seized, many of the sites became available under different names.
The Domain Name System (DNS) that keeps track of the names of sites across the World Wide Web was built to be a non-political tool, allowing the Internet to thrive. The EFF release warned that “[i]f the United States government increases interference in critical DNS infrastructure to police alleged copyright infringement, it is very likely that a large percentage of the Internet will shift to alternative DNS mechanisms that are located outside the U.S. This will cause numerous problems—including new network security issues, as a large percentage of the population moves to encrypted offshore DNS to escape the censoring effects” of the techniques the U.S. has taken to employing.
The problem only shows signs of getting worse. On November 18, the Senate Judiciary Committee approved the bill known as the Combating Online Infringement and Counterfeits Act (COICA) which, the EFF states, gives the “government dramatic new copyright enforcement powers, in particular the ability to make entire websites disappear from the Internet.” Should the bill pass in Congress, instead of protection from this seize-first-prosecute-later approach, the government will have legislated law enforcement’s ability to blacklist and silence entire sites without a trial.
