Last week, the U.S. Department of Homeland Security seized over 80 websites for alleged copyright and trademark violations. Caught up along with many sites alleged to be selling counterfeit clothing and other products were five entertainment websites, including the popular hip-hop blogs OnSmash.com and dajaz1.com. All that remains on their homepages is a stern notice from the government threatening steep fines and prison time under federal statutes. Why were these sites shut down by Homeland Security? We spoke with Erik Barnett, assistant deputy director of U.S. Immigration and Customs Enforcement, to find out.
“One of our responsibilities [at Homeland Security] is the protection of copyright and trademarks,” he says. “We’ve been doing this frankly for about 40 years at least, when we were the U.S. Customs Service. Of course, back then, it was seizing container loads of mostly luxury goods that were coming into the United States, mostly from China. Like a lot of crime over the last 10 to 15 years, this has now transitioned from flea markets and small vendors to the Internet.”
That analogy might perhaps apply to alleged counterfeiters like burberryoutletshop.com or nfljerseysupply.com, but clearly OnSmash and dajaz1 were not selling fake luxury goods. These weren’t knock-off handbag warehouses — they were prominent parts of a cultural scene. In many cases, the sites have said that record labels gave them tracks to post for promotional purposes. And per TechDirt, no less a recording artist than Kanye West linked approvingly to OnSmash just weeks ago.
But Barnett, while declining to discuss specific sites, maintains that his office has reason to believe copyright laws were broken. “In general, what we can say is, there are specific complaints from rights holders that these sites were infringing on copyrights,” he says. “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.”
Homeland Security made its move after an undercover investigation that lasted about 90 days. The websites’ owners were given no advance notice that they were at risk. “I mean, when we’re conducting criminal investigations, we don’t notify criminals that you need to abate your criminal conduct or there’s going to be an enforcement action against you,” says Barnett. He is not particularly sympathetic to bloggers who might feel that the shutdowns have damaged their livelihoods without due process. “I understand that this is a question that gets raised,” he says. “But from a law enforcement agency standpoint, there’s criminal activity. The process that’s set up to address that is a law enforcement agency investigates, which is what Homeland Security Investigations does. The Justice Department determines if the elements of the criminal statute have been met. And then a judge determines if the enforcement action that’s proposed — in this case, a seizure warrant — is appropriate. So that’s the process.”
Nonetheless, Homeland Security’s actions already have many in the tech community up in arms. The Electronic Frontier Foundation warns that “these seizures may be just a short preview of the kind of overreaching enforcement we’ll see if the Congress passes the Combating Online Infringement and Counterfeits Act (COICA),” a major new piece of legislation that was just placed on the Senate’s calendar.
In the meantime, suspects convicted under the current investigation could face penalties between five and 10 years in prison. Bloggers have the option of filing court petitions to get their sites back, but Homeland Security confirms that none have done so yet. “It is not in any way prohibited for the property owner to say, ‘Wait a second, you’re wrong,’” says Barnett. “That’s something that they could start yesterday, really, if they want to.”
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