Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet (51 page)

Moreover, these sites’ operators weren’t just facilitators for the culture—they were enmeshed in the business of rap. For the editors of Dajaz1, On Smash, and Rap Godfathers, new music “leaks” were no longer dripping from obscure and unnamed sources; leaks had become stock in trade for label employees and artist management, who maintained close and generally above-board contact with editors. Some of the allegedly infringing material on Dajaz1 had even been supplied directly by Kanye West, Diddy, and an unnamed vice president of a major label. As Kevin Hofman, editor of OnSmash, told the
New York Times
after the seizure, “I see myself as a legitimate source of content online, and I have no reason to believe that I was ever perceived as otherwise.” He continued, saying of Kanye West, “If what I’m doing is so wrong and is harming the artist, then why is he retweeting stuff to two million-plus people?”

Though Rap Godfathers and On Smash were quickly back online at different URLs (
RapGodfathers.info
and
FreeOnSmash.com
), Dajaz1 had only just started its year-long odyssey. The affidavit that accompanied the application for a seizure warrant, by Homeland Security Investigations special agent Andrew Reynolds, stated that a page on Dajaz1, titled “MP3 Downloads,” had “links for numerous pirated songs,” including Jamie Foxx’s “Fall for Your Type,” Nelly’s “Making a Movie,” and T.I.’s “Ya Hear Me.”

Reynolds submitted samples of these songs to Carlos Linares, vice president of antipiracy legal affairs at the RIAA, who confirmed “that the pirated songs were unauthorized copies of rights holder’s works.” This, along with a variety of pedestrian factual notes on the ownership, operation, and technical aspects of Dajaz1, made up the bulk of the affidavit’s section on Dajaz1. The seizure warrant was issued on the same day.

Following the domain seizure, ICE initiated administrative forfeiture proceedings against Dajaz1. Mike Masnick, of the blog Techdirt, explained the ins and outs of seizure and forfeiture law:

Under the seizure laws, the government has sixty days from seizure to “notify” those whose property it seized. … Once notified, the property owner has thirty-five days to file a claim to request the return of the property. If that doesn’t happen, the government can effectively just keep the property. … However, if such a claim is filed, the government then has ninty days to start the full “forfeiture” process, which would allow the government to keep the seized property and never have to give it back. If the claim to return the property is filed and the government does not file for forfeiture, it is required to return the property.

At a certain point within the provided sixty days, Dajaz1 was informed of the administrative forfeiture proceedings. Dajaz1’s editor Andre Nasib (commonly known by his online nickname, “Splash”) and lawyer Andrew P. Bridges responded with a claim requesting the return of
Dajaz1.com
, thereby
moving the case to a U.S. attorney’s office in California for judicial forfeiture proceedings. The government then had ninety days to file a complaint for forfeiture of the property; yet the time period passed and Nasib and Bridges heard nothing. After querying the court, Bridges was informed that the prosecutors had filed for the first sixty-day extension. When he asked for records of the court’s decision to grant the extension, he learned that they were sealed. As were the request for the extension and the docket itself. Bridges asked the prosecutors to inform him if they decided to file for another extension; they refused. The three extensions were filed and approved with no information available to Dajaz1.

During the third extension of sixty days, sometime in September or October 2011, the government finally decided to not file a complaint, ending the forfeiture proceedings. Yet even after this final extension expired, no notification was given to Dajaz1; Bridges had to ask what the status of the case was before being informed that
Dajaz1.com
would be returned to Nasib. It was returned with no explanation from the U.S. attorneys, and none of the proceedings related to the case were public until April 2012. As Bridges told the
New York Times
when
Dajaz1.com
was finally returned, “I have never seen a piece of paper in this case, period.”

The three requests for extensions are nearly identical, with only the last few paragraphs differing. Each extension requests notes that “further criminal investigation” is appropriate and claims “the filing of the complaint would have an adverse effect on a related criminal investigation.” The first extension does not go beyond these bland assertions; the third has the fullest detail, with the explanatory declaration by Special Agent Reynolds noting, “A sampling of content obtained from the
DAJAZ1.com
website and its purported affiliate websites was submitted for rights holder evaluation and has yet to be returned to HSI, SAV/LA. Additionally, a representative with the Recording Industry Association of America (RIAA) has stated that he will provide a very comprehensive statement to ICE’s and CBP’s outstanding questions, in coordination with corresponding rights holders, which will be forthcoming in approximately 30 days.”

There is no evidence that the “rights holders” or the RIAA ever responded to the the HSI’s queries. All of the songs described as pirated in the original affidavit were ultimately revealed to have been sent to Dajaz1 by the artists or labels. No specific crime was ever publicly alleged by the U.S. attorneys’ office. For over a year, the government held
Dajaz1.com
, suppressing entirely lawful speech and with no effort made toward having due process in the case. Throughout and beyond this year, hundreds more domain seizures were initiated under Operation in Our Sites, with over ten total phases conducted by summer 2012 (when the use of the term phase with regard to the operation seems to have ended). Despite the debacle surrounding Dajaz1—about which the government still has not commented, despite public pressure from some members of Congress—Immigrations and Customs Enforcement and the Department of Homeland Security seem to believe the strategy to be working; after the July
2012 Operation in Our Sites seizure, ICE released a press release highlighting some metrics of its success:

Julia O’Dwyer is the mother of Richard O’Dwyer, the proprietor of the website TVShack. net. TVShack indexed links to media—including some copyrighted video streams-housed on other sites. On June 30th, 2010 United States law enforcement agencies seized
TVShack.net
and several other domains that were accused of violating United States copyright laws. In May of 2011, O’Dwyer was charged with conspiracy to commit copyright infringement and criminal infringement of copyright, and the United States government initiated the extradition process. Wikipedia cofounder Jimmy Wales initiated a series of public petitions in support of O’Dwyer’s cause. They were signed by hundreds of thousands of people across the globe, including more than eighty thousand Demand Progress members. As of late fall of 2012, just after this interview was conducted, O’Dwyer had agreed to a “deferred prosecution” agreement that will let him avoid jail time
.

Anyone who’s ever posted a link online without thoroughly investigating its providence should be concerned about the fate of a British student who is facing extradition and a ten year prison sentence in America—despite the fact that the crimes U.S. prosecutors allege he is guilty of were not committed on U.S. soil or servers and are not considered by experts to be against the law in the UK.

Richard O’Dwyer, a 24-year-old from Chesterfield, England, founded
TVShack.net
in December 2007 while studying for a degree in computer science at Sheffield Hallam University. The site, which O’Dwyer started as a hobby, was essentially a boutique, entertainment-oriented search engine, which provided users with links to streaming movies, TV shows, documentaries, anime, and music.
TVShack.net
hosted no content on its servers, it merely pointed users in the direction of third party sites that did.

Without warning, on June 30, 2010, the
TVShack.net
domain was seized by U.S. Immigration and Customs Enforcement [ICE] and a boilerplate copyright notice was posted on the site. Since Richard wasn’t operating from within the U.S., he wasn’t alarmed by this setback. Unperturbed, he switched over to TVShack.cc—a Top Level Domain based in the Cocos Islands (an Australian territory)—and soon had the website back up and running.

Richard continued to run TVShack.cc unimpeded, until one day when he got a rather unexpected knock at the door. The very long arm of the law, in the form of two American ICE officers, had come a-calling at his university accommodation in the North of England, accompanied by an escort of Her Majesty’s boys in blue. Richard was arrested, but the investigation in the UK was subsequently dropped.

However, the Southern District Court in New York is attempting to prosecute Richard on one count of conspiracy to commit copyright infringement and one count of criminal infringement of copyright. The application of existing intellectual property law in this way stretches it far beyond the boundaries—and borders—that lawmakers could possibly have originally envisioned. Furthermore,
the U.S. Government’s determination to prosecute this test case—at the MPAA’s behest—is chilling when you consider how it may affect the very fabric of the web.

Even though Richard has committed no crimes that the British legal system is remotely interested in prosecuting, on January 13, 2012, a UK magistrate ruled that Richard could be extradited to America to face charges there. The judge was acting under the auspices of the highly contentious Extradition Act of 2003, a lopsided piece of legislation that was drafted in the wake of 9/11 and was sold to the public as an anti-terrorism measure.

Richard, and his mother Julia, a National Health Service nurse, are currently in the process of appealing this autocratic extradition ruling. As the legal process sluggishly moves towards a seemingly inevitable conclusion—since very few extradition requests from the U.S. are declined—Richard is attempting to keep his head focused on his studies and his e-books. I therefore spoke with Julia, who has been spearheading the fight to keep Richard in the UK, about her son’s situation and the implications it could have for all webmasters and denizens of the net.

Nicole Powers:
Were you aware at the time that Richard was doing this website?

Julia O’Dwyer:
Well I knew he had a website, but he was at university. He wasn’t actually living at home all the time, so I wouldn’t be seeing him working on it that often because he wasn’t here. He would come home every few weeks or at the end of the university term. I knew he’d got a website. I didn’t really know the details of it … he did the website as a hobby. That’s all it was. One of his mates made a suggestion to him and he said, “Alright, I’ll do that.” So he did it.

NP:
Had your son ever been in trouble before?

JD:
No, no, never.

NP:
When did you first realize something was wrong?

JD:
I think it was in the summer of 2010. He was actually at home because it was the college holidays. I remember him saying, “Somebody’s taken down my website.” He was here in the room with me and he was like muttering away [saying], “Well, I’ll fix that.” America had put on this big red banner that is still on the website onto his original domain name, so he just fixed it and got it up and running on a new domain name. I can remember him saying, “America has nothing to do with me.” That was the end of it. He had it fixed and up and running again within a day or two.

NP:
I’ve seen the banner. It just looks like one of those standard notices that you see and ignore at the start of a DVD. Aside from that, at the time, did anyone from the U.S. government contact him?

JD:
Nobody had contacted him at all. He’d said he’d had a couple of takedown requests, which were not correctly formatted, so that meant he couldn’t find the links that they were trying to refer to. He had a takedown request to remove a link from a British film company, and he complied with that request. But apart from those, there was no correspondence or communication from anybody in
America to Richard about his website. All his mail would come to this address. When he’s at university, because he changes accommodation every year on the course, he always gives his home address as his mailing address. I know that nothing came here because I always open the mail in case there’s anything urgent … so I can safely say that no correspondence came to this address, and they did have this address because his domain was registered in his name with his home address. After they took down his first domain name in July we never heard anything from anybody until the police arrived in November wanting to question him about his website … that very same day he closed down the domain name and any of his email addresses that were associated with that website

NP:
So before the police knocked on his door, he had no way of really knowing what he’d done wrong.

JD:
I think he just thought, well I’m not in America; I’m not subject to the laws of America. That’s how he would think. That’s why he said, “They’re nothing to do with me, so I’ll fix it.” Which he did. Then they didn’t like that so they came after him.