Stepping Up The Action: When DMCA Isn't Enough
I take it back: you might get sued if you do a Craigslist Experiment. And watch out, DMCA is just the beginning. The complaint against me follows up on the classic tactic originated by DMCA: chill free speech by claiming copyright infringement.
A Little Bit of History Before We Begin
You hit ball to my side of table! Now I hit back! That's the way DMCA goes, jive sucka.
However, additionally under DMCA procedure I have the opportunity to refute his DMCA claims by filing a counter notification. After that, the complainant has 14 days to file for an injunction to keep the allegedly offending material down. If he doesn't, I am free to resume my use of the material. Obviously, I never heard back from the complainant after 14 days, so I resumed my use of the photo.
Fast forward to 18 months later when I get an anonymous tip that I'm being sued for $75,000 in copyright infringement and unspecified damages for invasion of privacy. Interesting. Then I checked out the details of the case, and it got just plain bizarre.
Suing You King George Style
King George commands you to appear before the Royal Court, 5,000 miles away, by tomorrow morning. Good luck with that.
Maybe, maybe not. Civil procedure on jurisdiction is usually clear, but there are exceptions to the rules. In this case, Doe argues that since I attended Lulzcon, and alleges that I spoke specifically about him, that I have availed myself to the jurisdiction of the court there. We'll see about that.
Suing someone in a distant court is what's called doing a "King George," named for King George III of England who would charge his subjects with a crime and require them to make appearance before him in his court. Usually, these subjects would be in distant lands and had no opportunity to defend themselves against the King's frivolous and usually fraudulent charges. However, the King would summarily find his subjects guilty because they did not appear before him as required.
Looks like John Doe is running the same tactic here.
The Standard Copyright Whining
There's no surprise here, so I won't go into many details: Doe has a copyright on his personal photo. Yes, he does. It's federally registered. You can look it up. He's arguing that his copyright gives him unilateral power to control how that photo is used. Hmm, where have we heard this argument before?
Fair use is a slam dunk in this case.
EFF Up Your Chances of Getting Good Representation
The EFF: standing up for your rights. As long as we're all friends.
Seriously?
The EFF, guardians of civil liberties and individual rights in the Internet age, are working with a law firm that is trying to chill my free speech using tactics worthy of the RIAA? Are you fucking kidding me?
I like the EFF. No, actually, I fucking love them. Everywhere you go online, the EFF stands up against legal pitbulls trying to intimidate individuals from standing up for their rights. They fight for anonymity, whistleblowers, protection against censorship and a lot more. Why, why, why would they choose to work with a firm that uses the very tactics and philosophies they fight?
I think this is a mis-step for the EFF. I donate to them. I will continue to donate to them. But I'm shaking my head at this one.
Tort and Re-tort Sitting on a Fence: Are They Private?
Lastly, the privacy complaint is an interesting one, even though I don't think it holds up. Privacy laws have a lot of tort reference to them. That is, there aren't a lot of specific civil codes. You just have to sort of figure it out, or cite a helluva lot of precedent.
I'll be curious to see where this part of the complaint goes, if it goes anywhere.
Let Me Introduce You To My Amazing Lawyer
I'm not only the President, I'm also a client! (That's a joke, moron.)
You do have the various branches of the ACLU who are too busy handling life & death crusades to think about my first world problems. That's ok. I don't know if I want to turn to their Chicago office who said that handling e-mail was "too complicated, could you please send us a fax."
The groups who are versed in what to do, like the Stanford Fair Use Center, and the ACLU of Northern California are overwhelmed handling these kinds of cases. Now you're beginning to understand the scope of this issue. This isn't a couple of guys having a pissing match in court. This is a broad method of attack adopted by those who seek to permanently silence or stop anyone they perceive as even the slightest threat. And they get away with it because defense is costly and/or time-consuming. Most people simply give up and roll over. Except me. I absolutely will not allow another copyright abusing precedent to happen here.
So here I am, going Pro Se on this. This is going to be fun.
The Conclusion
Defend yourself or GTFO!
Anyway. I know a lot of other people will look at this issue and have a fair amount of anger at how civil law works. Lack of personal jurisdiction? Frivolous copyright complaints? A John Doe accuser? No lawyer to take the case? Shouldn't the judge toss this one out? Not until both sides have made their arguments. Cvil law differs from criminal law. In Criminal law, the system ensures fairness by giving maximum protections to those accused against the maximum power of government. Civil law, on the other hand, has a more caveat emptor flavor: if you can't fight off the sharks, don't go swimming in the water. And I think that's exactly the way it should be.
But, this is a clear cut example of the floodgate copyright law abuse has opened. Saying or displaying anything about someone? Watch out first for your DMCA threat, then your lawsuit. But, whatever you do, don't roll over and take it. These are your rights at stake. It's up to you to defend them.
That having been said, unless you're an actual lawyer, you most likely don't have a clue what you're talking about. So shut the hell up. I've had all the casual (and utterly wrong) advice/toldyaso's I can stand.
Related Links
[ craigslist, threats, dmca published on 2008-06-01 | Permalink (4,399) | ]
22 Comments
Enjoy paying this dude $75,000. Dick move=you go to court and lose.
CK:
I agree partially, which is to say, I disagree somewhat. You are right on several counts, but I think it is a mistake to assume that this man is a money grubber solely.
Frankly, going after the money is the only recourse he has under our system. What other redress of grievance for these actions can he take? His trust was violated and he could, seriously, face social and financial crisis as a result.
This is the sort of thing that prospective employers could find and decide to move on to the next guy. He would never know, but its become more and more apparent that employers do that, and more and more services are creeping up to sell making it easy to do.
Never mind just employers. Family, spouses family. Even a spouse who knew and consented might be embarassed if their family were to find out. As a person who knows several people in open relationships, I know most don't share that part of their life with their mother and father. Should he just drop it and walk away? Frankly, I think that if he has no legal standing to sue and win, then the law needs to be fixed.
This stunt was irresponsible and I have no qualms with some manner of redress of grievance being awarded. Something small like $20 grand seems appropriate. not enough to get rich off of, but enough to make him feel it for 2 or 3 years while he pays it off.
Frankly I think the ONLY time something like this is appropriate is when BOTH of the following criteria are met 1) The person is already "in the public eye" (celebrities, elected officals etc) AND 2) The personal details being disclosed directly contrast the persons public statements and positions. (like the outing of gay congressmen who denounce homosexuality; or District Attorneys who visit prostitutes)
Otherwise its both in serious bad taste AND exposes the person whose details are made public to a form of public humiliation and ALL of the reprecussions of that humiliation, including potential job loss.
-Steve
Let's set aside the legal quandry for the time being - you are easily the biggest douchebag in the universe for doing this. And apparently, gay.
I came across this on KOMO's site and found my way here. While I agree with your points on free speech in general what you did in this case was just wrong. Just because a rule isn't written down in the books doesn't mean it isn't a rule. In other words, it was wrong what you did and it doesn't need to be written down in the books for that to be so. So....you deserve everything that is coming to you. You have the audacity to be pissed off saying you aren't being treated fair. One of the previous comments stated that the guy really doesn't have any other recourse other than to take your money as payment for the problems you caused and will cause and that person is right. As the old saying across multiple cultures go....what goes around comes around. You defintely are the biggest douchebag, jackass, asshole....there is for what you did. Our legal system is far from perfect so I hope they take your ass to the cleaners.
Jason,
This whole lawsuit bullshit really sucks, not only for you but for free speech.
I wish I could help...but since I can't, I just have to wish you good luck and return to shutting the fuck up now.
Filling a very public lawsuit on the grounds that your life was ruined by publicity strikes me as having that particular brand American brand of cognitive dissidence.
Enjoy sleeping in the bed you made. You can whine and cry all you want about how unfair it all is, about how your free speech is being trampled ... but don't forget that you made the choice to intentionally and maliciously deceive these people. Call it an experiment, call it a joke, try to make it some kind of constitutional issue --- but the fact remains that you lied to this guy, and totally fucked him over. And now he's going to fuck you back.
I only hope that more of the victims of your pathetic little game join in the feeding frenzy, and that you learn the single most important lesson the world has to offer: CHOICES HAVE CONSEQUENCES. Act like a sniveling little douchebag, and get treated like a sniveling little douchebag.
I hope more people will sue you. You're just a fucking troll. Maybe Craigslist's staff should/will jump in the lawsuit.
Who's fucked now? HAHA.
Its interesting that free speech applies to those who do atrocious things, but not to the person who shows exposes those people's true colors. After reading the comments I puked in the toliet and threw out my SI swimsuit mag...
Losing this lawsuit would be far less than you deserve.
Just for the record: I've never heard of you before, and I don't care enough to hate you. If it makes you feel better, you can pretend that everyone who disagrees with you is a "hater".... but that's not going to help you in the long run. Neither is your obvious sense of entitlement. Trust me when I say that judges don't like that, but they do love to make merry sport of self-righteous punks. (Or don't trust me; you'll see for yourself soon enough.)
Personally, I think the whole thing is hilarious. Your original prank was mildly amusing (if nowhere near original), and the fact that you're getting nailed for it is even funnier. But the funniest of all is your Righteous Indignation at the whole thing.... the poor widdle troll got caught, and now he's the Great Culture Warrior who's fighting for the freedom of all trolls to pull moronic pranks. Comic gold!
As another commenter said: what goes around comes around. Don't dish it out if you can't take it. You wanna pull pranks like your "Craigslist Experiment?" Fine. But don't act all surprised when the victims fight back. After all, isn't that what you're all about: "Defending yourself?" Do you think you're the only one who's going to push back when someone pushes them?
Hi,
First off, I want to say, THIS IS NOT A THREAT. I have not been involved in any of your completely distasteful "experiments" and have no reason to threaten you.
That said, I think you should probably stop to consider that being sued is probably small beans. For example, let us look at your treatment of the Megan Mier tragedy.
While you have every right to say what you want, and I would die to defend that right, others have every right to correct moral incompetence. You see, there is and always will be a difference between what is legal and what is right.
What am I saying? Well, just that if I was in a state of extreme emotion (as one might be had a family member killed themselves) your completely insensitive nature may just be enough to push me over the line into a physical action.
In other words, I think your actions and lack of any thought for the well-being of others will probably result in your getting injured or killed.
Once again, please do understand that this is not a threat. I wish you well and hope you have the intelligence to seriously consider the life you are creating.
You deserve it, asshole.
Stephen C - well put m8 you have some fine points.
This isn't at all about YOUR case, but I think you wildly misinterpreted legal trickiness into believing that the ACLU must be technologically incompetent, and I want to keep that opinion from spreading to more people.
MOST attorneys don't accept official emails from the public (which doesn't mean they wouldn't necessarily communicate that way with an established client in some cases.) There are a ton of rules they have to follow that email makes difficult. For instance, email has no guarantee of delivery. Accepting email for notifications opens them up to a complaint that an email was legitimately sent which they never received. (Unlike a fax, which will generally fail immediately if it hasn't gotten to the receiving fax machine.) And there's CERTAINLY no guarantee of WHEN - it might take 5 days for an email to fail and bounce, even under normal conditions.
The chances of not getting a particular email are also quite high - and there are many, many types of communication an attorney might get which legally require certain responses. And which an adversarial attorney might choose to purposefully send through email BECAUSE it was less reliable, if that option was open.
There's more, but I think that's enough to give you a sense. And it's compounded by the fact that there isn't established precedents about what IS an ok use of email, because it's simply newer.
I don't KNOW that the ACLU is technologically competent, but you've offered zero evidence on that point.
@ACLUDefender:
That's straight up a bunch of bunk. The ACLU of Northern California and the ACLU of Washington both accept e-mail as forms of communication. They also have very professional phone people who pick up within one or two branches of the phone tree. Even though they couldn't help me, they were a pleasure to work with.
The ACLU of Illinois, on the other hand, sounded like a backwater Salvation Army by comparison. I felt embarrassed for them. Just call them up and listen to their voicemail system. It's a joke. You can't even get through to a person. You have to leave a message and wait up to 10 days for them to get back to you. The more I tried to explain my situation, the more the intake clerk (who sounded like a retired grandmother) got confused.
Trust me, this has nothing to do with attorney rules of receipt. (By the way, I've never had a problem of an attorney receiving information from me by e-mail.) My comments were about an ACLU branch office not having its act together.
So, I'm wondering if you could provide us an update on where you are with this, and additionally, would you like to be mutual friends on LJ? It appears we have several folks in common.
I have no issue with you exposing those perverts (especially given how violently most of them thought/ spoke about women), but I have to wonder why you didn't expect something like this? If I were one of those individuals, and I had the contact information of other potential plaintiffs readily accessible to me (by your own posting of it) I would have contacted each one and encouraged them to file a class action to drum up even more damages. I expected someone to file suit when I first heard of the story...
That said, please please hire an attorney. Your chances of winning pro se are slim, even if the law is actually on your side, as you believe. Quite honestly, your talk of needing a "helluva lot of precedent" clearly indicates that you'd be lost putting this case together yourself. Very very few cases are argued on anything other than precedent. And there's a system for researching and arguing that "precedent." There's a reason law school costs lots of money and the process is arduous; not everyone can be a lawyer. That's ok, and it's no slight to your intelligence. It takes lots of practice to stand a fighting chance against an attorney with even a year of experience, let alone perhaps 30.
A reputable attorney wouldn't even let you testify in court if he knew what he was doing, and as pro se, you will be presenting yourself to the court repeatedly. Thus, not only may your success rely on the judge/ jury's perception of you, but there's a good chance that you will slip up and make a procedural error or misstatement and jeopardize your case. An attorney has a greater chance of successfully pursuing the case's removal to Washington state court by challenging diversity jurisdiction.
I suppose you can be stubborn and insist you're just as good as an attorney, but I'd really not wager at least $75,000 (quite possibly more if plaintiff's attorney's fees are assessed against you or if damages are modified) on your capability to argue a constitutional law case with what I'm assuming is no legal training whatsoever. Most pro se cases go terribly terribly wrong. In this admittedly small sample, only 13% of pro se defendants were successful. http://www.med.wright.edu/psych/forensic/fool(summary).pdf. And that was in criminal cases, where the prosecution's burden is the highest (beyond a reasonable doubt) and thus, all a defendant must do is show a reasonable doubt. You will have a much harder task. Please retain an attorney, one who practices primarily copyright and privacy law. (They exist; every big firm will have several with decades of experience.) Or ignore my advice. In which case, best of luck.
This blog comment is in no way, shape, or form to be interpreted to constitute legal advice. This blog author is not an attorney, and has not made any such representation. This blog author does not provide legal advice, and suggests that if you would like legal advice, you consult an attorney. This blog comment is not a substitute for the advice of an attorney. kthx
lol @ class action.
Hey, I'd lol. Your life is good internet.
here's my legal advice. bend over, grab your ankles and get ready. also, i think you are an asshole
WhatRumors.com
I'm a college student currently studying pre-law - if there's anything I can offer from my vast (/sarcasm) legal knowledge base I'd be glad to help out m8.
This is an absurd situation where a harmless (and quite hilarious) "experiment" is being turned from a shrug-it-off-to-making-a-bad-decision is being turned into a malicious money-grabbing free for all.
From what I see you have devised some sound and clever defense measures - or perhaps the absurdity of John Doe's claims are that easy to shred apart.
If I could offer you a piece of advice - take a step back and look at the emotional basis of John Doe's claims:
Yes - John Doe was probably emotionally damaged as a result of this social experiment and is deserving (to a degree) of our sympathy, as this seems to be what his entire claim centers around.
We're all very sympathetic towards John Doe and his woeful decision to reveal himself as a misogynistic casual encounter-seeking CraigsList user.
But John Doe doesn't want your sympathy or apology - he wants your money.
I see this fact as a fairly integral part of defending yourself through this ordeal.
As a strong proprietor of free speech and freedom of expression, I wish you the best of luck and hope this absurd situation is cleared up without much loss on your part.