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 | Comments (22) | Permalink (4,398) ]
What, Me, Infringing Monopoly®?
Remember my LJopoly/Lulzopoly boards? They were pretty popular. Even LiveJournal founder Brad got a kick out of them. Not everyone is a fan, however.
Hasbro's legal team is hot on my trail and determined to get me to take down my "offending material" or suffer the consequences. Do they have a case? I don't think so, but read their letter for yourself:
Mr. Jason Fortuny
www.rfjason.com
Re: Infringement of MONOPOLY® Property Trading Game Copyrights and Trademarks
Dear Mr. Fortuny:
We are counsel for Hasbro, Inc. ("Hasbro"), the owner of the copyrights and trademarks for the MONOPOLY® property trading game. We recently became aware of your "Lulzopoly" and "LJopoly" games at http://rfjason.livejournal.com/616587.html and on your site at www.rfjason.com, which contain elements and images obviously copied from the MONOPOLY® property trading game. Specifically, the appearance of the game boards, the title deed cards, the distinctive property squares and the game money are obviously copied from the MONOPOLY® game. The "LJopoly" game board also copies the distinctive MONOPOLY® corner squares.
The MONOPOLY® property trading game as a whole, as well as specific elements and characters, such as the property squares, the corner squares and the design of the title deed cards, are the copyrighted property of Hasbro. Hasbro also owns the trademark rights to the numerous elements of the MONOPOLY® property trading game, including the property squares, corner squares and title deed cards, that have achieved source-identifying significance.
Your unauthorized use of the MONOPOLY® game board and game elements constitutes copyright infringement in violation of 17 U.S.C. § 501. Your unauthorized use of the property squares, corner squares and title deed cards also violates the federal trademark laws, including 15 U.S.C. §§ 1114(1) and 1125(a), by creating a likelihood of confusion with respect to Hasbro's authorization or sponsorship of or association with your activities. The unauthorized use of these MONOPOLY® marks is also likely to dilute their distinctive qualities in violation of 15 U.S.C. § 1125(c).
We therefore demand that you immediately cease and desist from any further use of the MONOPOLY® property trading game, that you remove the infringing elements and images from your game and from your website, and that you provide us with a written assurance that in the future you will refrain from any further unauthorized use of the elements and characters of the MONOPOLY® property trading game.
Please confirm to me as soon as possible, and in any event within ten days, your agreement to the above. This letter does not purport to be a complete statement of the facts or the law and is without prejudice to Hasbro's legal and equitable rights.
Sincerely yours,
Carin G. Reynolds
Patterson Belknap Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036-6710
tel: 212.336.2104
fax: 212.336.2277
cgreynolds@pbwt.com
Hmm. It's obviously not a DMCA request, which would have been the smart route if I were actually infringing any copyright. I'm more scared of getting sued by Encyclopedia Dramatica since I used several of their visual trademarks in Lulzopoly - still just $20!!!. If you look closely at the language, it reads like an intimidation note rather than anything legally enforceable.
And we all know how I respond to intimidation.
Related Links
[ threats, opoly published on 2008-02-07 | Comments (6) | Permalink (2,636) ]
Continued: US Bank Screw-You-Overdraft Protection (Part 2)
On the same day of my bad experience at US Bank, I wrote a letter to the branch manager, Jamie Cox, the 24 hour banking management office, and Richard K. Davis, US Bancorp CEO.
It took a few days, but Andre the assistant branch manager called me with the following "apology":
I did not accept his apology and I got off the phone as quickly as possible. I didn't mention to him that he failed to reverse my incorrect overdraft fee, only because I knew, based on my latest experience with him, that he had no intention of rectifying his mistakes or behavior.
To add insult to injury, the branch manager also called to "apologize" that I felt I had a bad experience, and then proceeded to back up Andre's position and actually offered to close my account over the phone, and bordered on insistent when I said I'd take care of at my own convenience.
Wow.
But, then I got a letter from the CEO office. The photo of the letter is here, and the text is below:
Dear Mr. Fortuny:
Thank you for your letter addressed to Mr. Richard K. Davis, Chairman, President and CEO of U.S. Bancorp. I have been asked to provide you with a response on behalf of Mr. Davis and the other recipients of your correspondence.
Foremost, please accept our sincere apologies for the service experience provided at U.S. Bank's Kirkland branch office. We are troubled by any instance when a customer feels that our personnel failed to deliver on our commitment to service, and your letter clearly details an experience that was not favorable. Our office has provided a copy of your complaint to Mr. Derek Pender, Bellevue Metro District Manager, and we understand that Jamie Cox has recently been in contact with you about this matter.
U.S. Bank makes every effort to ensure that our employees have the tools and support necessary to promptly and accurately address the questions and concerns our customers may pose, and we regret that your visit to the branch did not leave a more favorable impression of our products and services.
As you may already be aware, U.S. Bank has honored your request to opt out of our general overdraft limits for your account, and this designation will remain in effect unless you inform us otherwise. However, we request that you immediately return the original copy of our internal procedure for this service. Please return this document to my attention at our letterhead address. The documentation for U.S. Bank's policies and procedures is proprietary information, and you are hereby notified to not copy or disseminate this procedure.
We appreciate that you took the time to share your concerns, and look forward to the opportunity to better meet your expectation in your future.
Sincerely,
William Williamson
Executive Communications
for Richard K. Davis
Chairman, President and CEO
U.S. Bancorp
cc: Derek Pender, Bellevue Metro District Manager, Jamie Cox, Branch Manager, Kirkland Office
Frankly, I like the apology. It's to the point and it comes from the CEO's office. I do not like this demand to return the OBP procedure document. Hmm. Just how do I inform Mr. Williamson that his precious super secret document is already all over the internet and I intend on making it even more all over the internet just because of his demand?
That's it for this chapter, but I suspect it's not over.
As for the overdraft protection, it took two weeks, but I finally got a confirmation letter confirming that courtesy overdraft protection is removed from my account. Fantastic.
Oh, btw, if you want to write a letter to US Bancorp CEO Richard K. Davis, here's the address that actually got me a response:
US Bancorp, The Office of the Corp. Secretary
Richard K. David, Chairman, President & CEO
800 Nicollet Mall
Minneapolis, MN. 55402
Related Links
[ banking, threats published on 2008-02-06 | Comments (1) | Permalink (3,436) ]
Don't Tread On Me (Or, how I learned to stop worrying and ignore DMCA threats.)
So, the closest thing I've received to legal action was a DMCA request two weeks ago from the lawyer of this guy, one of our favorite Craigslist Experiment responders:
zaarra@pobox.com "Ok, this is a reality check. If you are real, then we're good to go, because I am too. I'll give you exactly what you need. I'm an experienced smart creative Dominant and will take you down just the way you like it. Z"
Nice, yes? I thought so, too. Oh, by the way ED, if you're reading this, you can safely put his stuff back up on the list of responders. Good times.
So, what is DMCA, you ask? Simple, it's a legal system originally designed by big business to squash illegal file trading by going after those who casually post copyrighted material. It has seen been expanded to protect the rights of emo bitches who make shitty icons for LiveJournal, etc.
How Stuff Works: DMCA Edition
I'm posting your copyrighted work on my site? No problem! Have your lawyer draft a "takedown" letter to my webhost, claiming copyright infringement, referencing the DMCA (Digital Millenium Copyright Act).
Ignore the fact that you have no claim to copyright whatsoever. That's not important. What is important is that you take the cheapest route to intimidation possible. Either that, or you realize that you don't have shit for a case and pray to God that I don't know how to deal with a DMCA request. (Like 10 Zen Monkeys)
When your lawyer is done, the letter might look something like this:
Make sure to include pages and pages of pointless whining. Your attorney who has only had her license for about 6 months probably told you that was a good idea and it would help your case.
Then, in a couple of days I will receive an e-mail that looks something like this:
Hello,
We have received a formal DMCA (Digital Millennium Copyright Act) notice regarding allegedly infringing content hosted on your site. The specific content in question is as follows:
http://www.rfjason.com/temp/zaff1-300.jpg
The party making the complaint (Heidi I. Schmid, Attorney at Law, hschmid@muddlawoffices.com), claims under penalty of perjury to be or represent the copyright owner of this content. Pursuant to 17 U.S.C. § 512(c), we have removed access to the content in question.
http://www.loc.gov/copyright/title17/92chap5.html#512
If you believe that these works belong to you and that the copyright ownership claims of this party are false, you may file a DMCA counter-notification in the form described by the DMCA, asking that the content in question be reinstated. Unless we receive notice from the complaining party that a lawsuit has been filed to restrain you from posting the content, we will reinstate the content in question within 10-14 days after receiving your counter-notification (which will also be forwarded on to the party making the complaint). This response can be sent directly to me at ****@dreamhost.com.
In the meantime, we ask that you do not replace the content in question, or in any other way distribute it in conjunction with our services. Please also be advised that copyright violation is strictly against our Terms and Conditions, and such offenses risk resulting in immediate disablement of your account should you not cooperate (not to mention the legal risk to you if they are true).
http://www.dreamhost.com/tos.html
We also ask that if you are indeed infringing upon the copyright associated with these works that you delete them from your account immediately, and let us know once this has been done. We also ask that you delete any other infringing works not listed in this takedown notification, if they exist.
If you have any questions, please don't hesitate to let us know.
Thanks!
Now, you probably weren't counting on the fact that I'm no stranger to DMCA and I know how to respond to one. For those of you who have never had to reply to a DMCA takedown notification, you will want to research DMCA COUNTER NOTIFICATION PROCEDURE.
This is the really great part. The counter notification basically says "you're a liar liar pants on fire" and adds that if you don't respond within 14 days, I get to put my shit back up.
I send the counter notification to my webhost, who then notifies your attorney, and your attorney notifies you and follows up with something like "this will cost thousands of dollars to follow through." And then you swallow, and smack your forehead, and you don't repond within the alloted 14 day period specified in the counter notification and my shit goes back up.
And that's the way it goes! Thanks for playing. All contestants on the RFJason Show get "The Craigslist Experiment" home game and free turtlewax.
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