In the early hours of Thanksgiving Day in 2010, all the music at OnSmash.com, a popular hip-hop blog, disappeared. In place of its usual feed of videos, song links and industry gossip, the site displayed a seizure notice from the federal government, a result of a raid of dozens of websites suspected of trafficking in counterfeit goods and pirated content.
The site stayed that way for nearly five years. But a few weeks ago, after lobbying the government for its return and paying a $7 (roughly Rs. 460) fee, Kevin Hofman – a rank-and-file record label employee who ran OnSmash, first as a hobby and later as a full-time job – finally got it back, with little explanation and without ever being formally charged with any wrongdoing.
What happened was just one confusing chapter in the long history of conflict between the entertainment industry and the Internet.
At its peak, OnSmash was part of a network of blogs on the leading edge of online music promotion, stirring up fans with fresh material that, Hofman said, was more often than not supplied directly by artists and record labels hungry for the exposure. The site’s popularity and influence earned it laudatory notice in Vibe magazine and approval from rap stars like Kanye West and Rick Ross.
“There was never a plan to undermine the music business,” Hofman, 40, said during a recent interview in New York. “The music business was something that I was always either an employee of or actively trying to support. That’s why the whole seizure was so devastating to me.”
The government contended that OnSmash and a handful of other sites were circulating unauthorized material at the expense of the major record labels. An affidavit by a federal agent, released as part of a seizure warrant for the site’s web domains, specified numerous “pirated” songs found on the sites. As part of the investigation, the agent had confirmed with the Recording Industry Association of America, the labels’ trade group, that the songs were used without permission.
Yet that characterization was quickly disputed, and the takedowns – handled by the Immigration and Customs Enforcement unit of the Department of Homeland Security – became the focus of a wider debate over the policing of the Internet.
The seizures, which also claimed the hip-hop sites Dajaz1.com and RapGodFathers.com, came shortly after the music industry abandoned its unpopular strategy of suing individual listeners over piracy, which remains a concern in the industry over the effect on sales. Soon came the large-scale lobbying wars over the Stop Online Piracy Act and the Protect IP Act – two failed bills in Congress that pitted Hollywood against Silicon Valley – as well as the continuing prosecution of Kim Dotcom and the file-sharing site Megaupload.
“The Internet is still locked in a battle royal with Hollywood and its allies,” said Peter Eckersley, chief computer scientist for the Electronic Frontier Foundation, an advocacy group that is supported by technology companies and often squares off against the entertainment business over copyright issues.
In the face of all this, the fate of a handful of music blogs largely faded into the background. But for Hofman and others, the episode has had lasting consequences. After OnSmash was seized, Hofman started FreeOnSmash.com as a replacement, but its traffic and advertising revenue were a fraction of what he had once had. Even worse, Hofman said, was the “black cloud” of suspicion that surrounded him in the industry.
“When I went to album release parties,” he said, “people looked at me like they had seen a ghost.”
Corporate sponsorship of live events, once an important part of the site’s business, also dried up, he added.
Suing for the return of OnSmash would have been expensive and risky, so Hofman pursued an “offer in compromise” with the government – submitting a petition for the site’s return, and paying what the government determined to be its appraised value: $7.
In March 2012, Craig Trainor, Hofman’s lawyer, submitted a 66-page memorandum of law outlining their case. Rather than a rogue site that hurt music labels, Trainor argued, OnSmash was “an indispensable forum for hip-hop fans, a marketing vehicle for record labels and artists, and a generator of protected speech.” He also noted that Dajaz1.com had been returned to its owner after about a year.
The OnSmash case dragged on for another three and a half years until October, when – with a five-year statute of limitations on the seizure looming – the government notified Trainor that OnSmash would be returned. Paperwork with his web host took another month or so, Hofman said, and he finally got the site back in November.
When asked about the return of OnSmash and another site, Torrent-Finder.com, which was seized in the 2010 raid and also returned to its operator this fall, Matthew Bourke, a spokesman for the National Intellectual Property Rights Coordination Center of Immigration and Customs Enforcement, said that after working with the Justice Department, “it was determined there was not enough evidence to seize the websites.”
Jonathan Lamy, a spokesman for the recording industry association, said he welcomed the return of the sites, as long as they played by the rules.
“If the managers of some of these sites now seek to have the domain name returned because they wish to become legitimate operators, that’s a success,” he said.
In recent months, the music industry has successfully shut down unlicensed sites like Aurous, Sharebeast and RockDizMusic.
Hofman, whose day job is managing digital accounts for musicians, has already restarted OnSmash, but he said he was aware of the challenges he would face. The site has lost most of its momentum, and blogs – once at the forefront of online music promotion – have largely been superseded by social media. He noted one advantage: By embedding links from sites like SoundCloud and YouTube, where artists and labels post songs directly, there is no more gray area concerning the source of the music.
“The plan now,” Hofman said, “is to do my best to pick up the pieces.”
