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When Immigrations & Customs Enforcement agents seized 82 web domain names over the Thanksgiving weekend, it was an unprecedented event-not just because of the scope of the seizures, but also because the web sites grabbed included a search engine and some well-known music blogs. That’s outside the scope of the intellectual property issues ICE has traditionally dealt with, which involve counterfeit goods.
An ICE spokeswoman said the websites in question are all part of an ongoing criminal investigation, but refused to talk about the seizure of specific websites.
But we’ve gotten ahold of parts of the affidavit [PDF] that the government used to get its seizure warrant, and it lays out the reasoning behind the government’s move.
In the past week, new questions have been raised about the seizure of the music sites, some of which were well-known among hip-hop aficionados and had gained acceptance by artists as well. Kanye West, for example, linked to OnSmash in one of his recent tweets. Kevin Hofman, the owner of OnSmash.com, spoke to a New York Times reporter and said much of the music he linked to was leaked to him by recording companies themselves.
The affidavit, filed in Los Angeles federal court, deals with the seizure of five of the 82 web domains-torrent-finder.com, which is a BitTorrent search site, and the four hip-hop music blogs, RapGodFather.com, RMX4U.com, Dajaz1.com, and OnSmash.com.
The affidavit shows:
» The Motion Picture Association of America, a trade association representing movie studios, was closely involved with the seizures of the five sites in question, which is a coup for the MPAA. It has taken legal action against other BitTorrent search sites, including a Canadian site, IsoHunt. But it has had to go through a lengthy civil litigation process. Even when the MPAA won in December 2009, IsoHunt still had the right to appeal the ruling, and it has continued to operate throughout the years-long legal battle. By engaging Customs and Homeland Security officers to seize web-domain names, the MPAA has found a shortcut to what might have otherwise been a drawn-out and expensive legal battle.
The government’s justification for seizing the sites relied on MPAA numbers about the economic importance of the movie industry and MPAA testimony about how piracy hurts its income. In the case of Torrent Finder, the U.S. attorney relied on MPAA representatives’ testimony to determine that the site was breaking copyright laws, even though Torrent Finder advertised itself as a “100% legal website.”
An MPAA spokesperson declined to comment on the organization’s involvement in the seizures of Torrent Finder and the music blogs. “Like any rightsholder, we investigate cases of theft of our intellectual property,” said MPAA spokeswoman Elizabeth Kaltman. “We report that to the authorities and they decide what appropriate action should be taken.”
The MPAA isn’t the only entertainment industry trade group involved in the seizures; earlier this week, the Recording Industry Association of American confirmed to The New York Times that it had helped ICE with selecting which sites to go after.
» The ICE agent who signed the seizure order used the sites to download copyrighted material, including a copy of the recent movie “The Town” captured with a camcorder in a movie theater, and reviewed it with an MPAA investigator. His acquisition of copyrighted movies and music formed the main basis of the evidence used to get the seizure warrant, even though at least two of the sites had disclaimers-mentioned in the affidavit-saying they did not host any copyrighted material, but rather simply linked out to it.Â
The agent wrote: “I believe that each of these websites are actively facilitating the distribution of pirated content. Based on the investigation, it appears that website administrators and/or representatives from each of these five websites supply access to, and advertising for, the pirated content via their websites and/or provide access for any Internet users to download such pirated content.”
» Online advertising company ValueClick (NSDQ: VCLK) provided ICE agents with information about the money it paid to Torrent Finder in return for ads hosted on the Torrent Finder site. ValueClick paid the site more than $15,000 from March 2008 to February 2009. Using estimates based on an online web-valuing service, the agent claims that Torrent Finder had more than 100,000 daily page views and an estimated worth of $373,678.
The attorney for Torrent Finder, David Snead, says his client’s website was simply a search engine-it doesn’t provide any torrents itself, nor does it encourage others to download copyrighted material.Â While the government won’t speak about the specific seizure of Torrent Finder or the music sites, it has defended the overall operation as necessary, saying that websites that offer illegal copies of music and movies harm the economy, hurt innovation, and costs Americans jobs.
Torrent Finder and at least one of the music sites, OnSmash, have already hired lawyers to help defend themselves against ICE allegations.Â But so far the attorneys say they haven’t gotten very far even getting basic information about the seizure. Torrent Finder attorney Snead says he only received a copy of the affidavit on Friday. Craig Trainor, who represents OnSmash, says he still doesn’t have a copy of the affidavit justifying the seizure of his client’s site.Â
» Read the seizure warrant and partial affidavit [PDF]