Domain Privacy Service Can Be Liable Under the ACPA

The wrong approach for a domain privacy service.

The Central District of California just issued this thoughtful, reflective, and lengthy opinion in a case two of my Los Angeles partners and I are working on.

Web hosting company, Solid Host, took the position that a domain privacy service should be held responsible for the actions of one of its customers, when that customer was a hacker who stole a Solid Host’s domain name, and the privacy service took a “not our problem” approach to the theft.

From a trademark practitioner perspective, the really interesting part is that the court sustained the viability of a claim that a privacy service may be contributorily liable under the ACPA for its customer’s actions.

While this is not a final ruling in the case, the theory that a privacy service can be held liable for the actions of its customers has passed its first test, and got past the privacy service’s motion to dismiss.

See Solid Host v. NameCheap, et.al.

The Legal Satyricon Named Among Top 50 Internet Law Blogs!

by Jason Fischer

Justice City, USA published their list of Top 50 Internet Law Blogs, and The Legal Satyricon was recognized as a niche blog for writers who like to argue with each other:

The only common thread among the writers on this blog [is] that none of them take each other too seriously, and they are committed to fostering wide open and robust debate.

A few other notable favorites made the list: The TTABlog, Bag and Baggage, Erik J. Heels, Likelihood of Confusion, Technology and Marketing Law Blog — to name just a few.

Thanks for the mention, Justice City, USA. As a token of our gratitude, please enjoy this awesome montage of Check Norris kicking ass (we Satyriconistas like to watch it before doing battle with one another):

When “Support” is Really a “Tantrum”

Facts are sexist!

Ann Bartow posted a piece over at Feminist Law Professors that started out seeming to be a rather nice bit supporting Prof. Mark Lemley, one of the attorneys representing Brittan Heller and Heide Iravani in the AutoAdmit suit, — and a defendant in Anthony Ciolli’s countersuit — a case that the Eastern District of Pennsylvania has allowed to go forward — in part.

Bartow writes:

Mark Lemley got involved with this case, in my opinion, because he is a progressive, good-hearted, moral and generous person. (source)

I can’t be sure why Lemley got involved in that case. I directly asked him that question, and he didn’t answer me. Nevertheless, I believe that Prof. Bartow’s assessment of him is accurate. He does seem like a genuinely good-hearted, generous, and moral person, and I have never heard a single person say otherwise. His involvement in the case did puzzle me, which is why I asked him about it. While his silence was disappointing, I can understand that for liability reasons, it was better that he not reply.

I suspect that he got bamboozled into the case — that he wasn’t told the whole truth until he was already waist deep in the muck, and then it was too late to back out gracefully. Accordingly, I think it is kind of nice that Bartow supported Prof. Lemley. Hell, the man was one of my heroes before I saw the Auto Admit case with his name on it. I still reverently respect him and personally like him, and a part of me hopes that he can disprove the allegations against him. However, if the allegations do stick, like him or not, adults must answer for their actions.

Regardless of Lemley’s motivations, Prof. Bartow’s piece is not at all about supporting Lemley. Behind all of her compliments for him, this post is just Bartow’s latest anti-free-speech diatribe (see commentary on a previous one here), further demonstrating that second-wave feminists have turned the Auto Admit case into their cause-celebre. They just can’t wrap their heads around the fact that sometimes, occasionally, the poor female victim(s) can lie, be spiteful, be unethical, be misled, or just plain wrong. Or, if they can wrap their heads around it, they would rather set themselves on fire than admit it.

Bartow writes:

[I]t seems pretty obvious to me why Anthony Ciolli was named in the original law suit. ISP immunity under Section 230 does not apply to the authors of contested material. Ciolli was clearly posting comments at the AutoAdmit discussion board under at least one pseudonym, “Great Teacher Onizuka.” The plaintiffs had every reason to suspect that he was posting under others as well, and that he could have been personally responsible (and liable) for some of the actionable material. They could not rule him out without conducting discovery in the context of litigation, and they could not do a thorough investigation of the matter unless Ciolli was a named party. Once the plaintiffs knew either that Ciolli was not a bad actor or that they would be unable to prove that he was a bad actor, they dismissed him. Any competent lawyer would have done the same thing. This is Civil Procedure 101. (emphasis added)

Ciolli was “clearly” posting under a pseudonym. Was he? Was it clear? Was it about the girls? Was it negative? Then why include this?

Lets teach Prof. Bartow a little bit about Civil Procedure. Or, better yet, lets teach everyone else about it, because I can’t see Bartow getting off her shrill perch — but I’d rather not let people in the blawgosphere be misled.

Even if Ciolli were not a defendant, the plaintiffs would have had every right to subpoena and depose any person who may have possessed relevant information. In fact, after Ciolli was dropped from the case, Heller and Iravani’s lawyers did, indeed, take his deposition to make sure that they did not leave any stones unturned. Any competent law professor would know that this was not only possible, but proper. Any competent blogger would have at least read Ciolli’s complaint to find that fact. But, lets not let a pesky thing like the facts get in the way of a Dworkin wanna-be’s tirade.

If the reason Heller & Iravani sued Ciolli was because he “might have” posted under multiple personas, then why did they not name each and every moniker on Auto Admit? Everyone on Auto Admit could have had multiple monikers. In fact, law professor Brian Leiter is rumored to have posted on Auto Admit under the name “Tokyo Rose.” I posted on AutoAdmit under my real name. Why not name me? By Bartow’s post-hoc rationalization, Leiter and I both could have been one of the defendants until we were ruled out in discovery, no? Furthermore, if there was ever a suspicion that Ciolli used another moniker, then why wasn’t that allegation ever made, on information and belief, in the complaint?

I’ll tell you why not, because the Plaintiffs’ own published statements contradict Bartow’s made up “facts.” The “theory” that Mr. Ciolli was another pseudonymous poster never arose until Heller & Iravani’s lawyers started grasping for a way out of possible sanctions, and their cheerleaders started to see their lovely pre-packaged daydream unravel.

A competent attorney does not file suit against each and every person who could hypothetically be a defendant. (As in if the facts and the law were stretched like a goatse about to snap). If that were the case, then every lawsuit would name hundreds of defendants, including people who did nothing wrong, and let discovery sort out who was actually liable. Meanwhile hundreds of additional defendants would need to report that they were defendants in civil actions and live under the cloud of litigation while plaintiffs took their own sweet time figuring out if they had sued the right person. No, it doesn’t work that way and Professor Bartow should know that.

Bartow then throws out her own “theory.”

My theory on why Ciolli is suing Lemley and the plaintiffs? To scare away other potential plaintiffs, and to discourage other lawyers from representing them.

To scare other potential plaintiffs who might bring a lawsuit against him? I should hope so, since pages 23-29 of this decision make it pretty clear that Ciolli has brought a proper claim for wrongful initiation of civil proceedings against Iravani and her attorneys. Ethics and judgment are supposed to discourage lawyers from bringing baseless claims. It is a shame when someone must file suit in order to “scare” potential plaintiffs from abusing the courts and filing frivolous claims for an improper purpose.

The AutoAdmit case has been shown to be more of a shakedown, legal extortion, than a suit calculated to vindicate any real legal interests. While some might point out that over-inclusiveness and scattershot complaints are more common than I might like, the fact is that Bartow’s post is less about backing a nice guy – and more of a way of backpedaling and acting as an apologist for misuse of the legal system. Ethics matter, and the reason that so many lawyers miss that lesson is professors like this seem to disagree.

Ciolli had some pretty damning evidence to present in his case. Unfortunately for him, the E.D. Pa. ruled that it was excluded by FRE 408. Lets sit back and see if Ciolli’s lawyer in that case can find an alternate way of getting the information before the court. If he can, I’d imagine that Ciolli will prevail — which will probably give Bartow an excuse to blame it on the “patriarchy,” because in Bartow-world, the only women who are ever wrong or ill-motivated are those who disagree with her.

Goldman Sachs Tries To Bully Blogger

I've got news for you: the Supreme Court has roundly rejected prior restraint!
So Goldmansachs666.com will remain up as this case slowly winds its way through the courts like the man in the black pajamas wound his way through the jungles of 'Nam.

Michael Morgan is a Florida blogger who is a little bit upset with Goldman Sachs and its business practices. To voice his displeasure, he registered the domain name goldmansachs666.com and goldmansachs13.com and forwarded them to his blog on the financial giant.

Naturally, Goldman Sachs doesn’t like to be criticized. Who does? Nevertheless, I fail to see how they could have perceived Morgan as a threat to their financial well being or anything else. The fact is, Mr. Morgan’s blog just isn’t that good. The layout is visually painful. The writing isn’t engaging. After muddling through it for about 15 minutes, I still don’t really get what all the fuss is about. In other words, Morgan’s blog was destined for the blogger derelict heap. Morgan has a full time job, had very few readers, and probably would have either gotten bored with his griping, or his blog would have been ignored to death.

With Morgan’s blog plodding along in obscurity, enter John A. Squires of Chadbourne and Parke, LLP. Now this guy has an impressive background: He was top of his class in law school, on his law school’s moot court team, on law review, and an Order of the Coif inductee. Sounds like a pretty smart guy, no? Smart enough to become co-chair of the intellectual property practice at a major law firm. Smart enough that he “is widely recognized in both the financial services and technology sectors as one of the country’s top experts on the issue of patent-eligible technologies.”

Goldman Sachs' demand letter
Click to enlarge

Nevertheless, he put his name to one of the dumbest trademark demand letters I have ever read. Go ahead, click it. If you practice trademark law, don’t drink any liquids while reading or you’ll shoot them out your nose as you’re laughing and then you might have to change your shirt.

This letter seems to anecdotally confirm two things I’ve preached for years:

1) Patent guys don’t necessarily know trademark law,

2) A lawyer who doesn’t understand public relations is only half a lawyer.

I’m just guessing here, but I’m reasonably certain that Mr. Squires did know better. This demand letter just screams “reluctantly written to shut a client up.” Patent lawyer or not, the guy had to know that his trademark claims were just plain stupid. If goldmansachs666.com creates confusion in the marketplace, then I guess that I had better stop calling my balls my “nutsack,” because someone might come along and expect them to sweat stock options.

Personally, I would never have affixed my signature to this piece of dung. I’ve learned the art of “client control.” That’s when you tell someone “my credibility is worth more than what you want to pay me to write this unsupportable demand letter.” Sadly, many lawyers never learn this skill. I’m certain that some tool at Goldman Sachs told Squires “I don’t care if we can’t back the claims up, just send the letter to try and scare this little mouse of a blogger.” (Or maybe I’m just inclined to give the lawyer the benefit of the doubt).

Although I would love to say that I would continue to that same big shiny set of brass balls if my client were a gazillion dollar financial powerhouse that shits rubies, I won’t judge Mr. Squires until I walk a mile in his Bruno Maglis — especially since I’m 98% certain that somewhere, he has an email to his client telling them that the claims in the letter are just one molecule away from being pure pharmaceutical-grade fecal goodness.

At least I hope so… because the mouse, he bite.

Squires’ letter ends with a threat that if Morgan doesn’t confirm, in writing, that he will stop using the words “Goldman” and “Sachs,” they just might sue him. Well, April 18 is a Saturday, Walter Sobchak doesn’t roll on Shabbos, and Mike Morgan did respond in writing — with a lawsuit of his own.

Morgan probably figured that if Goldman Sachs wasn’t bluffing, they would file suit against him in New York. Morgan lives in Florida, and would likely rather just have it out in Florida than travel to New York. So, given that there was a bona fide legal question — created by Squires’ dumb letter, Morgan had the right to file suit to just get the whole thing over with. Naturally, Goldman Sachs probably isn’t too worried about the financial consequences of this suit. The most that Morgan will win is a piece of paper that says he has the right to use the words “Goldman” and “Sachs” to criticize Goldman Sachs. But what a piece of paper it will be.

More importantly, now that he has filed suit, a lot more people are going to take note of this dispute. I’ve been following it for a little while myself, and until I received a copy of Morgan’s complaint, I didn’t really find it interesting enough to write about. Guy gripes. Company whines. Dumb demand letter. Yawn. Happens every day.

What doesn’t happen every day is that the griper has the coglioni to tell one of the biggest financial institutions in the world “You wanna step outside? Fine, lets go.“

So now what happens?

Hopefully, Mr. Squires tells his client “I told you so,” and keeps a copy of the memo he sent them telling them that this was all a really dumb idea and that they should have just ignored Mr. Morgan’s blog. If he didn’t tell them so, then someone at Goldman Sachs should re-think how they choose their attorneys.

Once that is all settled, Goldman Sachs should just gracefully back away from this — issue a statement that they reconsidered their position, and it all goes away. The first rule of getting out of a hole is to stop digging. However, I predict the opposite will happen: Goldman Sachs will dig in, the Spin Doctors song “Little Miss Can’t Be Wrong” will be played over the PA system at Chadbourne and Parke, and we will see both an answer and a counterclaim that will be just one hair shy of being frivolous enough to warrant sanctions because some nitwit will think that it will scare Morgan into submission… and the case will draw even more attention to this once-obscure blog.

And then we’ll see if Mr. Morgan’s reporting on Goldman Sachs’ misdeeds grows any legs. He already has a conference call scheduled to gather the volunteers who have rallied to his side.

Save Cynthia Logan

If Def Leppard were around today, maybe they would name their album 'Sexting'

I have great compassion for Cynthia Logan, but she must be stopped. Well, more to the point, it is time to save her from those who are exploiting her for their own gain.

Cynthia Logan is the mother of Jessie Logan. Jessie Logan made what some might call a “bad decision.” She took sexually provocative photographs of herself and sent them to her high-school boyfriend. When the two of them broke up, he childishly sent them to all his buddies, and they forwarded them, and so on. Jessie recently took her own life, and as often happens her mom has been making the talk show circuit calling for “tougher laws.”

Jessie’s parents are attempting to launch a national campaign seeking laws to address “sexting” – the practice of forwarding and posting sexually explicit cell-phone photos online. The Logans also want to warn teens of the harassment, humiliation and bullying that can occur when that photo gets forwarded. (source)

I don’t want to cause any pain to the Logans, but lets assign blame where it is due before we start running off at the mouth that we should add new laws to the web of idiotic laws we already have. Why would Jessie be so despondent? Was it really all about “sexting?” Is the “sexting can kill” statement a whole lot of BS? Parry Aftab says that Sexting Can Lead to Death! On the other hand, Dr. Marty Klein tells us “Sexting” Can’t, Repeat, Can’t Kill Anyone.”

For the record, I’m going with the Doctor over the lawyer on this one.

What gets conveniently buried in this story is that just before Jessie Logan committed suicide, she attended the funeral of a 16 year old classmate who took his own life. What is completely omitted from the coverage is any call for personal responsibility — or perhaps any mention that our society’s absolute paranoia and erotophobia might have contributed to Jessie’s death. Why? Because the “fear of sex for profit” industry wouldn’t have anything to sell if those factors were taken into account.

The fact is that every damn kid thinks about suicide — it is a normal part of teenage hormone-driven angst – and teens require advanced parenting. Teen suicide doesn’t need an engine like “sexting,” and Jessie Logan is unfortunately not special. She’s just one of many teenagers whose parents didn’t see the warning signs and now they are looking to find someone, anyone, but themselves to blame — an eminently normal and forgivable reaction. I’m not saying that Jessie’s parents are to blame. They are as blame-worthy and blame-less as any parent of a teenager who commits suicide. They are blame-worthy for not seeing the signs, but blame-less because frankly, they can be almost impossible to interpret until after the fact – as virtually any parent or friend of a teenager who has taken his or her own life will tell you.

Do we need new laws? Is “sexting” really “dangerous” as those in the fear-mongering industry want us to believe? No, it sure isn’t. Lesson 1 is to communicate with your children about the over-arching issue here — teen suicide. When I was a kid, my parents suggested that if I ever wanted to kill myself, I could just decide to fuck my life up instead. I always kept that in mind as a backup plan.

Lesson 2 is to teach your kids to either not sext, or if they want to be comfortable with their sexuality and do so — to be prepared for the consequences. If those consequences arise, they just might need to understand that high school is only four years long, and once they get to college they can be whoever they want to be. I know a lot of girls who got tagged with the “slut” or “whore” label. You know how they dealt with it? Some reinvented themselves when they left for college. That’s part of the wonder of going away to college. Some just reinvented themselves in high school, turning Goth or some such silliness. Others reveled in the label and enjoyed their youth in a shower of promiscuity. Lets face it, sluts have more fun, and usually those doing the taunting are at their life’s unhappily low peak. You want proof? Go to your next high school reunion and look where the bullies are today.

Jessie Logan’s epitaph should not be written by the fear-mongering industry. If it is, there will be more Jessie Logans, they’ll just use stupid 18 year old logic to make permanent decisions about another temporary problem. But, if her epitaph is written by the fearmongers, we’ll have exactly the same number of teen suicides, but at least one more dumb law that encroaches on our liberties.

The bigger problem is the fact that the “fear of sex” business, both the right-wing religious nuts and the left-wing “junior anti-sex league” types has turned any exposure of a healthy interest in sexuality into something that an 18 year old girl needs to fear and be ashamed of in the first place. Instead of running around the country with shrill “warnings” about the “danger” of sexting — maybe Cynthia Logan’s message should be to tell kids that their interest in sex is normal and that there are options to suicide.

Losing a family member does not make you an authority on anything except grief. Cynthia Logan has the right to lecture on how to cope with losing a daughter — but losing a child does not give anyone the mental capacity to draft laws nor to lobby for other fools to draft them. In fact, it does the opposite.

Cynthia Logan should be forgiven for reacting foolishly. Any mother who loses a child shouldn’t be expected to think clearly. However, it is clear that she’s being exploited by people with a vested financial and political interest in fear mongering. It is up to us to stop that exploitation.

Ruling on Motion to Dismiss in Ciolli v. Iravani

In the continuing saga of the Auto Admit case, the Eastern District of Pennsylvania has ruled on the defendants’ motion to dismiss and motion to strike.

Jurisdiction

Defendants Ross Chanin, ReputationDefender, Mark Lemley, and Heide Iravani asserted that they lacked the minimum contacts required for the exercise of personal jurisdiction over them in Pennsylvania. (Op. at 17) However, the Court held:

[Ciolli] presented sufficient factual allegations to demonstrate the need for jurisdictional discovery in this case. Defendants Chanin, ReputationDefender, Lemley, and Iravani have all admitted to, and Plaintiff has alleged the existence of, some contact with Pennsylvania that potentially supports the exercise of personal jurisdiction. Plaintiff should have the opportunity to investigate the extent of these contacts and their relation to his claims. (Op. at 22)

Defendant’s Rosen & Associates and David Rosen did not challenge the Court’s jurisdiction.

Motion to Dismiss for Failure to State a Claim

The Court granted some of the defendant’s motions to dismiss on some counts, but denied them on others. The Court determined that it was premature to resolve ReputationDefender, Chanin, and Iravani’s motion to dismiss until after jurisdictional discovery. (Op. at 23). However, with respect to David Rosen and Rosen & Associates, who did not challenge personal jurisdiction, the Court split its decision — dismissing the abuse of process claim, but refusing to dismiss the Dragonetti Act claim — a Pennsylvania Act prohibiting the wrongful initiation of civil proceedings.

Pennsylvania’s Dragonetti Act, 42 Pa. Cons. Stat. Ann. §§ 8851-54, codified the common law tort of wrongful use of civil proceedings. Schmidt v. Currie, 470 F. Supp. 2d 477, 480 (E.D. Pa. 2005).

Under this statute:

A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings [where]:

(1) He acts in a grossly negligent manner or without probably cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and

(2) The proceedings have terminated in favor of the person against whom they are brought.

42 Pa. Cons. Stat. Ann. § 8851(a). An attorney who brings a case, or who takes any steps in the proceedings, on behalf of his client “is not liable if he ha[d] probable cause for his action.” (Op. at 23)

The Court ruled that there is enough, at least at this stage, for the complaint to move forward.

Taking Plaintiff’s allegations as true, as we must at this stage in the litigation, we cannot say that Rosen and Rosen & Associates had probable cause to bring the Connecticut Litigation. As described above, Plaintiff’s Complaint adequately establishes that Heller and Iravani knew that Ciolli was not associated with T14 Talent and had never made defamatory posts about them on any website. Because they allegedly knew that Ciolli was not involved, Heller and Iravani did not reasonably have probable cause to assert that he was. Thus, Plaintiff’s allegations support the fact that Heller and Iravani did not have probable cause to assert the causes of action alleged in the Connecticut Litigation against Ciolli.

Defendants Rosen and Rosen & Associates argue that, as lawyers, they were entitled to rely in good faith on statements made by their clients and that therefore, even if Heller and Iravani knew that there was no probable cause to bring the Connecticut Litigation against Ciolli, Rosen and Rosen & Associates are not also liable. (Defs. Rosen & Rosen & Associates Mem. Supp. Mot. Dismiss 6.) However, as we have already determined that the Complaint adequately alleges that Heller and Iravani knew that Ciolli was not involved in the organization of T14 Talent or the offensive posts, we cannot assume that Heller and Iravani nevertheless told their lawyers a different story and that Rosen and Rosen & Associates relied on such statements in good faith. Because Rosen and Rosen & Associates bring a motion to dismiss, we must draw all reasonable inferences in Plaintiff’s favor. It is reasonable to infer that, if Heller and Iravani knew that there was no probable cause to bring suit against Ciolli, then their lawyers knew it too. Thus, we find that the allegations of the Complaint support the fact that Defendants Rosen and Rosen & Associates lacked probable cause to bring the Connecticut Litigation against Ciolli.
(Op. at 25-26)

Although the Court struck many of Ciolli’s allegations as violative of FRE 408, which excludes settlement discussions from being admissible, the Court still held that it could be inferred that joining Ciolli in the case without probable cause in order to obtain concessions from a non party.

“An improper purpose may be inferred where the action is filed without justification.” Broadwater, 725 A.2d at 284 (citing Gentzler v. Atlee, 660 A.2d 1378, 1382 n.6 (Pa. Super. Ct. 1995)). Moreover, whether an alleged purpose is improper is an issue for the jury to decide. Bannar v. Miller, 701 A.2d 242, 249 (Pa. Super. Ct. 1997). Defendants Rosen and Rosen & Associates have identified no cases where their conduct would be proper as a matter of law. In fact, the initiation of a suit to force an unrelated settlement has been recognized as an example of improper purpose. Shaffer v. Stewart, 473 A.2d 1017, 1021 (Pa. Super. Ct. 1984) (quoting Restatement (Second) of Torts § 676 cmt. c). Generally, cases recognizing settlement as an improper purpose involve the filing of nuisance suits to either coerce the defendant into settling the baseless claim rather than deal with the expense of litigation or to coerce the defendant into settling unrelated claims. We think that the reasoning behind those cases extends to the present situation-here a case is filed without probable cause for the purpose of coercing the settlement of unrelated claims by a non-party. For these reasons, we find that the improper purpose identified by Plaintiff will support his claim for wrongful initiation of civil proceedings. (Op. at 27-28)

I’m looking forward to seeing how the jurisdictional discovery in this case develops — and find it heartening that the court did not dismiss the Dragonetti Act claim. If Ciolli can prove the contested elements of the claim, that the Connecticut litigation was brought against him for an improper purpose and without probable cause to do so, he deeply deserves vindication.

Remember: If you don’t have anything nice to say, you should just say it on teh Internets

by Jason Fischer (follow me on )

Google was in court this week over allegedly defamatory comments made on an anonymous blog that the search giant hosts. Chris Thompson’s post describes the gory details, including references to two of our favorite cases: Hot Chicks With Douchebags and AutoAdmit.

Update: If you want to start an anonymous blog, here are some guidelines.

MJR on NPR Re: Auto Admit Case

I appeared on National Public Radio today discussing the AutoAdmit case. The show is available here.

Broken link fixed.

EVERYBODY DANCE NOW!

Facebook Caves to User Pressure

by Jason Fischer

A few days ago, Facebook announced that it would be changing its terms of service. The updated terms made changes with regard to intellectual property ownership of content that users posted to the site. The changes were denounced as oppressive by many blog commentators. Apparently in response to the negative “press,” Facebook has reversed course, posting the following message on the “home” page for all users.

Voyeur Dorm Redux – Coco Dorm Wins

The internet has rendered the Blutarski method largely obsolete

In order to zone out adult entertainment from a certain area, a town must show that it passed the zoning ordinance in order to combat the “adverse secondary effects” of adult entertainment establishments — not simply because the town doesn’t want “that kind of thing going on.” In other words, banning adult entertainment from a residential area because it isn’t a proper business district is completely permissible. Banning it from a business district because you think your town “isn’t that kind of place” is not.

In 2001, Tampa’s “Voyeur Dorm” operated peacefully and quietly in a residential house, but no customers ever came to the dorm. The house had a few girls living in it, webcams in every room, and the girls would walk around naked, masturbate on camera, shower, and generally provide a voyeur experience for the website’s subscribers. On the other end of the equation, members of the Voyeur Dorm website could enjoy the online reality show from the privacy of their own homes.

Naturally, this being Flori-duh, the local zealots weren’t having any of that, and they tried to shut the business down by invoking their local adult entertainment ordinance. Had the Voyeur Dorm been a strip club, they would have been dead right. However, in reversing the trial court’s determination that Tampa could shut down the dorm, the 11th Circuit ruled that since Voyeur Dorm offered no adult entertainment “to members of the public” on site, but rather the entertainment was offered over the internet, the city code did not apply.

As a practical matter, zoning restrictions are indelibly anchored in particular geographic locations. Residential areas are often cordoned off from business districts in order to promote a State’s interest. See e.g., City of Renton, 475 U.S. at 50 (”A city’s interest in attempting to preserve the quality of urban life is one that must be accorded high respect.”). It does not follow, then, that a zoning ordinance designed to restrict facilities that offer adult entertainment can be applied to a particular location that does not, at that location, offer adult entertainment. Moreover, the case law relied upon by Tampa and the district court concern adult entertainment in which customers physically attend the premises wherein the entertainment is performed.2 Here, the audience or consumers of the adult entertainment do not go to 2312 West Farwell Drive or congregate anywhere else in Tampa to enjoy the entertainment. Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001)

Apparently, the City of Miami didn’t get the memo. Miami’s “Coco Dorm” is the gay equivalent of Tampa’s Voyeur Dorm. The boys play inside, the cameras capture the action, and the audience is dispersed world-wide. As I reported in August of 2007, nobody in the neighborhood really knew that the place was operating until an anonymous party delivered envelopes containing printouts of the site to their doors. (source). After that, the news cameras came rolling into the neighborhood, and then code enforcement went into action.

Despite efforts to educate the city by Coco Dorm Attorneys Jamie Benjamin, Gary Edinger, and Daniel Aaronson (all of whom I am proud to call my friends), Miami refused to budge — stubbornly insisting that its ordinance was different.

Federal Judge Marcia Cooke didn’t see it that way. Factually, the case was identical to Voyeur Dorm.

None of the webcams are located outside of the 503 residence and no images external to the residence are publicized or broadcast by Flava Works. The address of the residence is not disclosed on the website or any of Flava Works, Inc.’s products. It is rare for customers or vendors to physically go to the business office at 2610 North Miami Avenue. Neither customers nor vendors ever physically go to the 503 residence. (Op. at 5)

Judge Cooke also found the two legal scenarios to be indistinguishable:

Just as in Voyeur Dorm, since the Miami zoning ordinance is designed to restrict establishments that offer adult entertainment or services to the public at their physical location, that ordinance cannot be “applied to a particular location that does not, at that location, offer adult entertainment” or services to the public. Voyeur Dorm, L.C., 265 F.3d at 1236. Because the public offering by Flava Works, Inc. occurs via cocodorm.com in cyberspace, and not in a particular geographic location, the City of Miami zoning ordinance cannot be applied to the 503 residence. (Op. at 9-10)

The City argued that a slight semantic difference between the two ordinances should be enough to distinguish the two cases. The Tampa ordinance specifically applied to premises on which adult entertainment is offered, but the Miami ordinance did not contain such limiting language. – thus the City took the position that the mere fact that adult entertainment was being filmed on the premises was enough, and where the audience congregated was irrelevant. The Court dismissed this argument and found that the ordinances were “functionally equivalent.” (Op. at 8).

Miami’s pleas that its ordinance should have been interpreted differently stretched credibility into a mental goatse. However, aside from that, this argument was strategically speaking, monumentally foolish. As noted above, local communities can not simply ban adult entertainment because they don’t like it. A town can only restrict adult entertainment in order to combat the “adverse secondary effects” of that kind of business.

Some of the “effects” that have been recited by cities trying to banish adult entertainment to restricted zones are: increased crime, increased traffic, increased calls for police, and even increased litter. I seriously question whether such “effects” exist in the live entertainment context, and most “studies” that say they do have been thoroughly discredited when scrutinized by objective social scientists.

Nevertheless, let us presume, arguendo that adverse secondary effects are not a myth, and that when a strip club opens in a neighborhood, these adverse secondary effects do occur. Nobody in the neighborhood even knew the business was there until someone decided to “out” it. How can adverse secondary effects possibly occur if the business is internet-based and the audience never comes to the facility?

If the Miami adult entertainment ordinance truly did encompass internet activity the way the City argued, then the ordinance itself would have been completely void. Without a justification for a ban that has a solid foundation in an effort to combat adverse secondary effects, the ordinance would fail even the relaxed level of scrutiny that ordinances must endure in order to be considered to be constitutional. Had the court bought Miami’s argument, the only constitutionally-permissible decision would have been to invalidate the ordinance as a whole — and then there would have been no restrictions on adult entertainment at all.

Ding Dong, the COPA witch is dead.

In July, the Third Circuit Court of Appeals struck down the Child Online Protection Act as unconstitutional. The government’s petition for certiorari has apparently been denied.

Breaking News: Kentucky Domain Case

The Kentucky Court of appeals has ruled that the Commonwealth can not seize 141 domain names due to their alleged affiliation with online gambling.

The Commonwealth initially filed an in rem (against the item, not against a person) action against the domain names — seeking to seize the domains as “gambling devices.” However, the statute does not seem to fit around domain names. The statute was designed to permit the seizure of slot machines and the like. The court of appeals wrote:

Suffice it to say that given the exhaustive argument both in brief and oral form as to the nature of an Internet domain name, it stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute “a machine or any mechanical or other device…designed and manufactured primarily for use in connection with gambling.” We are thus convinced that the trial court clearly erred in concluding that the domain names can be construed to be gambling devices subject to forfeiture under KRS 528.100. (Op. at 8)

The Court of Appeals seemed to sympathize with the Commonwealth, but exercised judicial restraint and refused to legislate from the bench.

Regardless of our view as the advisability of regulating or crimininalizing Internet gambling sites, the General Assembly has not seen fit to amend KRS 528.010(4) so as to bring domain names within the definition of gambling devices. Neither we, nor the Justice Cabinet, are free to add to the statutory definition. If domain names cannot be considered gambling devices, Chapter 528 simply does not give the circuit court jurisdiction over them. (Op. at 9)

The Court of Appeals also ruled on whether Kentucky law permitted the in rem proceeding against the domains. The court found that the in rem proceedings were not authorized by the statute. Given that KRS 528.100 is a penal statute, in order to seize the domains, it requires charges to be filed — none were. Without a conviction under KRS Chapter 528, there can be no forfeiture. (Op. at 14)

What is absent from the opinion is just as important as what is in the opinion. The Court did not address the constitutional issues including whether the use of the domain names was Commercial Speech and thus protected by the First Amendment. The Court also avoided discussing whether due process would permit Kentucky to exercise jurisdiction over domain names that had no nexus to that state other than the fact that they could be accessed there.

However, this is not a criticism of the decision. Courts are supposed to avoid sweeping constitutional issues if a case can be decided on narrower statutory grounds, and the Court exercised this proper judicial restraint.

The decision leaves it open to the Kentucky legislature to amend its statute to include domain names as “gambling devices.” However, I don’t think this will result in a renewed effort. As the court discussed the fact that domains could not be seized in an in rem proceeding of this kind, it hinted that the entire case had a bit of a foul smell to it. Instead of bringing criminal charges, with their higher burden of proof, the Commonwealth farmed this case out to a private law firm that was working on a contingent fee basis — apparently banking on a big payday if the domain owners wrote checks rather than standing and fighting. The Kentucky Court of Appeals appeared to find this a bit distasteful.

This deficiency in the Commonwealth’s case is further amplified by the conspicuous absence of the Kentucky Attorney General, the Commonwealth’s chief law officer, who pursuant to KRS 15.020 clearly has the authority to pursue the prosecution of crimes under KRS Chapter 528. The Secretary of the Justice and Public Safety Cabinet has no such authorty. (Op. at 15)

Accordingly, Kentucky could amend KRS 528.100 to include domain names, but that still wouldn’t authorize a civil in rem proceeding to seize domain names owned by foreign companies and operated outside the Commonwealth. If Kentucky wants to seize these domain names, they will have to amend KRS.100, then bring criminal charges against the domain owners, meet the higher burden of proof required in a criminal case, and if they score a conviction (despite the obvious constitutional issues), they can move for an order of forfeiture. However, bringing criminal charges takes the profit motive out of the equation, as the domains (if seized) would have no resale value to the Commonwealth, and a private firm could not take a criminal prosecution on contingency.

Full opinion available here.

James Madison – 18th Century Spammer?

by Jason Fischer

Virginia’s Attorney General is trying to override a ruling of that state’s highest court, which struck down an anti-spam law as violating the First Amendment. The law, as written, did not limit potential violations to the sending of purely commercial spam emails. Since the legislation made it possible to prosecute senders of, for example, bulk political emails, Virginia’s Supreme Court held that it was no good.

“[I]f the Federalist Papers were written today and disseminated by e-mail, the sender would be guilty of a felony under Virginia’s anti-spam statute.” (source)

What about that Algerian prince who keeps contacting me? Are his emails “political” speech, like the Federalist Papers?

Personally, I have a hard time accepting that the Framers intended that stuffing my Inbox with unsolicited communications, whether containing commercial speech, political speech, or otherwise, should be a fundamental right. The concept of Free Speech, as I understand it, is meant to protect one’s ability to express their own viewpoint and opinion, without fear of persecution. If someone doesn’t like my particular viewpoint, they should be able to ignore it by refusing to purchase the newspaper that features my editorial, or changing the channel, or simply not listening. The analogy to bulk email is imperfect; I cannot “ignore” or “refuse to accept” an unsolicited communication from a spam emailer. Unless I had “opted in” to receive The Federalist Papers as an email, I would not have wanted Madison and Hamilton sending me their political message.

I guess Harbin and I won’t agree on this one.

Apple Bullying Wiki Site Over Piss-Poor DMCA Claims

Manufactured in China, and learning valuable lessons in freedom by manufacturing osmosis

As an avid Apple user, sometimes I just want to punch somebody over at Cupertino in the balls. First, I love their nomenclature for their brutal DRM scheme — Fairplay. It seems to just shout “hey stupid consumer! Restricting how you can use media you PAY for is just fair play!” Fuck you, Apple.

The latest Apple initiative to irk my ire is a cease-and-desist notice sent to wiki hosting site Bluwiki, ordering them to take down wikis related to Itunes hash files. Apple’s problem is that these wikis contained information about hash files encapsulated in itunes.db, an iTunes file that has information about the user’s music library.

To make a long story short, Apple likes Ipods to be managed only with iTunes software, so that the sheep fill their Ipods with music purchased through Itunes and not with music leeched from the intertubes. Thus, they restrict access to your music library database (not the files, but only the index) through a hashfile that periodically gets changed in iTunes revisions. After a couple of days, internet users figure out the hashfile and update the third-party applications that allow users to access their ipod’s music library. Apple got their panties in a twist and fired off a cease-and-desist letter. Bluwiki, like little bitches, immediately complied with the cease-and-desist fearing litigation with Apple.

The EFF (aka my heroes) caught wind and, as the kids would say, are hella pissed.

Where’s the “technology, product, service, device or device”?

The DMCA provides that:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that … is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner….

The information posted on the wiki appeared to be text, along with some illustrative code. Nothing that I saw on the pages I was able to review would appear to constitute a “technology, product, service, device, component, or part thereof.” In fact, the authors had apparently not yet succeeded in their reverse engineering efforts and were simply discussing Apple’s code obfuscation techniques. If Apple is suggesting that the DMCA reaches people merely talking about technical protection measures, then they’ve got a serious First Amendment problem.

Translation: Apple — go get your fucking shinebox.

Lori Drew is Guilty — AND SO ARE YOU!

A twisted adult, Lori Drew, creates a MySpace page. She creates a fake profile of an adolescent boy, strikes up a friendship with a young girl, Megan Mier. Ms. Drew, breaks that Megan’s fragile heart, and the girl commits suicide.

And much of America called for Lori Drew’s head.

There was a moral wrong here. Fucking with someone’s heart just for the sick pleasure of it, especially a teenage girl’s heart, is just wrong. However, every moral wrong does not come along with a legal cause of action. In this case, prosecutors were damned and determined to prosecute Lori Drew, they did, and they won.

The problem is, they used a statute that didn’t fit the crime — and in the process, they made a criminal out of every single person who has ever used the internet. The government used 18 U.S.C. § 1030, the computer fraud and abuse act, to prosecute Ms. Drew. 18 U.S.C. § 1030 is a wonderful example of well-considered legislation. It makes unauthorized hacking a criminal offense, and it provides for private causes of action for the same offenses.

The government’s theory was that since Ms. Drew accessed MySpace without adhering to MySpace’s terms of service, then she made an unauthorized entry into MySpace’s servers.

As Sam Bayard at the Citizen Media Law Project reports:

Judge Wu has not yet ruled on Drew’s motions to dismiss the indictment for failure to state an offense and for judgment of acquittal based on lack of evidence of intent, either of which could result in the complete dismissal of all charges against Drew. This is where the important legal precedent will be set, because the court will finally have to decide whether or not violating a website’s terms of use is a federal criminal offense and, if so, whether someone can commit that crime without even reading the relevant terms of use.

Sam is exactly right. But, Scott Greenfield puts it in terms that we should all be able to understand. He compares 18 U.S.C. § 1030 to the ubiquitous “speed trap” — and the fact that now Section 1030 can be used to turn every privately-owned website into a vehicle for the government to go after someone it disapproves of.

The fear that the government will not take up arms against pseudononymous users is silly. They aren’t gunning for short guys who fill out their profile saying they stand 6 foot 4, or women who chop a few years off their age. The problem is that this is a speed trap, available for the government to pull out of its bag when it needs to “get” someone.

Under the current verdict in the Drew case, the internet is replete with misdemeanants. People provide less that 100% accurate information in filling out their profiles all the time. All the time. This makes many, even a majority perhaps, of Americans criminals. It’s bad when a law is interpreted in such a way that most people are criminals.

Since it’s unlikely that the government has any intention of trolling the profiles of MySpace users in search of inaccuracy, and lacks the federal courtrooms or jail beds necessary to deal with it, most of us need not fear the Lori Drew application. But do something that the government really doesn’t like, or do something that raises cackles elsewhere because there’s no ready law available to make you pay, and you’ll find yourself in this speed trap.

Nobody ever realizes that they’re in trouble for doing what everybody does until they see the lights flashing behind them and hear the chirp of the siren. By then, it’s too late. (source)

Sheep often say “if you aren’t doing anything wrong, you have nothing to fear from the government.” Nice try. I only know two people who have read MY terms of service, yet you are probably reading this posting without having done so. You just very well may be violating Section 1030. If you post a comment to this post that offends the wrong prosecutor, then you’ve done enough to be indicted for unauthorized access in order to further a tortious act.

I find it strange that Judge Wu has not ruled on the motions to dismiss before turning this case over to the jury. The jury clearly voted with their emotions instead of with their brains — which isn’t surprising. Lori Drew is a douchebag. She should be run out of every town where she tries to live, she should be pelted with shit everywhere, she should be shamed and pursued to the point that she has to change her name and move to a foreign country.

But that doesn’t mean that our laws should be turned on people that they never intended to punish. If Ms. Drew’s conviction stands, we have all lost our freedom. We have come to a point where you can barely step out of your home or sit at a keyboard without violating one of the thousands of overlapping laws, passed by idiots, enforced by idiots, that bring about idiotic results. We don’t need overzealous prosecutors filling in the tiny cracks of interlocking laws to make the web of laws a complete lid over all of us.