Documents unsealed this week reveal that the year-long delay in returning the seized Dajaz1 domain name occurred in part because the government was waiting for copyright holders, including the Recording Industry Association of America, to provide more information. The documents were released in response to a joint request from the Electronic Frontier Foundation, the First Amendment Coalition and Wired (which shares a parent company with Ars). The documents raise fresh questions about the domain seizure process created by Congress in the 2008 PRO-IP Act.

Dajaz1.com was (and is) a popular hip hop music blog. In its application to seize the site's domain name, the government cited four links to allegedly infringing songs hosted on cyber-locker sites. Dajaz1's attorney says the site complied with the DMCA takedown process, and has also suggested to Ars that some of the music was leaked by agents of the music labels themselves in an effort to create "buzz" for forthcoming albums.

After Dajaz1 filed a request to get the seized domain back in early 2011, the government had until May 16 to either return the domain or file a formal forfeiture request. Instead, the government filed for a series of three 60-day extensions in mid-May, mid-July, and mid-September, respectively. These extension requests—like all the documents in the case—were filed under seal and were not even available to Dajaz1 or its lawyer.

But after the Dajaz1 domain was finally released back to its owner, EFF and its partners pressured the government to unseal the documents in the case. Rather than trying to defend the secrecy of the documents, the government gave in and agreed to have them released, which occurred this week.

The first extension request, dated May 9 doesn't give any details on the reasons for the delay, stating only that "the investigation is still ongoing," and that "the disclosures that would be required" to litigate the case "would have an adverse effect on the related criminal investigation."

On July 14, the government filed a second requested extension. This one had a bit more detail about the investigation, stating that the government was "locating records" of infringing material, "identifying revenue associated with the DAJAZ1.com website," and identifying "associates and business partners." The government said it had supplied "a sampling of content" from the Dajaz1 website for "rights holder evaluation" but that those unnamed rightsholders had yet to respond.

The final extension request, dated September 8, tells much the same story:

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 [the government]. 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.

The request doesn't elaborate on what the government's "outstanding questions" were. But given that the seizure was more than 9 months old at the time, the RIAA should have had plenty of time to answer them. (Indeed, the group apparently pushed for the domain to be seized in the first place.) The government would hold the domain for another three months before finally returning it in December with no charges being filed.

The RIAA declined to comment for this story, directing us to a comment they made last year, in which they stated that Dajaz1 "specialized in the massive unauthorized distribution of pre-release music—arguably the worst and most damaging form of digital theft."

Due process questions

The Dajaz1 incident raises serious due process concerns. The government should be able to get its ducks in a row—including getting "outstanding questions" addressed by rightsholders—before seizing a domain name. If rightsholders haven't provided enough evidence against a domain to justify forfeiture, that's a good reason to not to seize it. The documents suggest that rather than exercising independent judgement about which sites to target, the government was outsourcing a significant portion of the decision-making process to the major labels.

The documents also underscore why it's a bad idea to allow the government to seal the documents in domain seizure cases, even after the seizure has been made. Had the government's requests for extensions been publicly available from the outset, Dajaz1's lawyers and public interest groups would have had the opportunity to point out how flimsy was the rationale for continuing to hold the domain. And concerned members of the public would have had the opportunity to pressure the government to drop the case. But because the process was shrouded in secrecy, there was little opportunity for debate either in the courtroom or in the court of public opinion.

The Dajaz1 story also strengthens the case for reforming the 2008 PRO-IP Act to require an adversarial proceeding before domain names are seized. If the judge had heard Dajaz1's side of the story before allowing its domain to be seized, he might well have realized that the case had problems. And the government, expecting to have to defend its actions in a public proceeding, might have thought twice about trying to seize a domain before it had done its homework.