“Cyber Civil Rights” Prioritizes Civility Over Rights

By J. DeVoy

In Danielle Citron’s paper Cyber Civil Rights, which she discussed at Denver Univeristy’s “Cyber Civil Rights” Symposium (summarized by Eric Goldman here), her contempt for existing First Amendment freedoms could not be clearer.  Though anonymous speech can shock and offend people, Citron proposes eliminating it completely.

First, Citron advocates the elimination of § 230 immunity under the Communications Decency Act of 1996 as it applies to certain claims against Internet Service Providers (ISPs).  Additionally, she envisions a regime where ISPs must keep records of the IP addresses assigned to their subscribers in perpetuity.  Second, the reason for this shift in policy arises from the reported victimization of women by online harassers.  Can’t men be victims too?  I’ll consider these propositions in turn.

I.      Citron’s proposed legal changes are asinine, impractical, or both.

The elimination of § 230 immunity for ISPs, however limited in scope, opens a veritable Pandora’s box of new problems for services providers.  If consumers think they pay too much for internet service now, they should just wait to see how they’ll internalize the costs of almost limitless liability for defamation, privacy invasion, and intentional and negligent infliction of emotional distress claims – even when meritless!  Inevitably someone has to pay the legal bills to fight these claims, and the ISP isn’t going to sacrifice profits doing so.

At Concurring Opinions, Michael Froomkin believes that allowing this framework to become law entails a value judgment.  He’s right, but for a different reason: allowing these claims is in itself a value judgment weighing emotional damages over fiscal ones.  Why not repeal § 230 in its entirety so that ISPs have distributor liability for violations of intellectual property laws by others, such as sharing movies and music?  The costs of insuring against such liability would be explosive.  Still, restricting the repeal of § 230 only to harassment-based claims is unfair to entities that lose millions of dollars in calculable financial damages through piracy and have no recourse against the ISP.

For the law to rescind any § 230 protection for ISPs would contradict the entire point of the internet.  The purpose of § 230 was to allow operators, including ISPs, to provide resources to the public without regard for how irresponsibly it would use them.  Similarly, ISPs will be loath to expand the reach and range of internet coverage when adding new subscribers will multiply their liability.  Swaths of the country have limited or no access to high-speed internet, a reality lost on the elites.  Increasing the ISPs’ costs of doing business with unsophisticated consumers will obstruct the end user’s internet access.

Moving to Citron’s second proposal, “traceable anonymity” is an oxymoron; if someone is traceable, he or she is not truly anonymous.  Many ISPs currently retain users’ IP addresses for a period of several months based on a provider’s values and price tolerance.  In the case of online harassment, the effect of the speech is almost immediate, obviating the need to have an eternal record of one’s ISP history.  The reality that any injured party’s legal claim is curtailed by a statute of limitations further weakens the case for a permanent record of IP addresses.  The wrongs Citron fears are quickly and easily ascertained; there is no need to keep a record of IP addresses like an individual’s medical history, retroactively looking for problems over years and decades.

Finally, intermediary technology can easily frustrate the goal of a permanent IP address record. Proxy servers for programs such as Tor and Ghostsurf can be located overseas, outside the reach of American jurisdiction, and mask a user’s IP address behind several layers of proxies.  In theory, this technology makes the speaker untraceable.  More laws would be needed to govern this behavior, further micromanaging internet use, or we have to admit that this kind of conduct is unmanageable.  Maybe shame can work.  Given the gender disparity of online harassment Citron cites, perhaps those concerned about it can frame the use of proxy servers as unmasculine and geeky.

II.    The First Amendment is, and should remain, gender-neutral.

At its core, this debate exists because women report online harassment more often than men.  Equalists, firm in their denial that people of different genders or backgrounds could ever be dissimilar in any way, naturally find this repugnant and attribute it to superstructures of power, hate, resentment and gender struggle that can only be defined in academic terms.  In reality, the causes may be simpler and should be subject to more rigorous research before becoming the basis of new law.

First, some assume that female harassment online is underreported.  To the contrary, it could be over-reported.  Surely no woman would wrongly accuse men of wrongdoing. Nope, never ever.  On the other side of this coin, why isn’t there concern about men underreporting their online harassment?  Because men silently struggle with smear campaigns against them in real life, there is reason to believe it doesn’t happen online and, as in real life, continues without discussion (let alone a report to law enforcement).

The second core assumption is that all, or even most, harassment is male on female.  While Citron cites studies that show female web identities are harassed more often, there is no way to tell that all of these harassers are male.  Though it may stun feminists, some women really do enjoy tearing down other women, and may take advantage of anonymity’s veil to do so.  In the case of men, their harassers may be other men or even females who revel in the torture and emasculation of lesser men.  These avenues’ lack of exploration undermines the validity of the assumption that online harassment is solely about men’s power over women.

Even if these assumptions are true, this is a reality of having free anonymous speech.  While nobody is condoning online harassment, discomfort in the face of unpopular speech does not render it inappropriate.  If it did, the outcomes of People v. Flynt, New York Times v. Sullivan and Pickering v. Board of Education would have all been rather different.  Perhaps this discussion would be changed if the First Amendment was a civil rights statute.  Even then it would be unseemly to prioritize the harm done to one group over another when both are affected, as Citron notes both men and women suffer from online harassment.  The First Amendment is not a statutory enactment, however, and it holds much greater regard in our legal system.  As there is no legal basis for limiting constitutional protections because one group has its feelings hurt more than the other, Citron’s proposal would be an improper encroachment on the First Amendment.

III.  Conclusion

In all, Citron’s proposal is an intrusion on the First Amendment for the sake of protecting people’s feelings.  This is a thoughtful but misguided goal.  Inasmuch as I dislike having my feelings hurt, the purpose of the First Amendment is to allow people to say what they want, anonymously if they wish, within the bounds of the law.  When Anonymous turns an internet persona like Paul Fetch into a “lolcow,” they are exercising their rights to disagree with his speech and have violated no law, however much Fetch may dislike it.  Prospectively limiting this right based on under-researched gender bogeymen is unconscionable and unconstitutional.  When exercised legally, the right to speech – and lulz – is and should be unfettered.

Jay DeVoy is a third-year law student at the University of Wisconsin Law School. There, he is the President of his Federalist Society chapter, on the executive board of the Wisconsin Moot Court board, and a member of the Wisconsin International Law Journal. DeVoy previously has held editorial positions with various student newspapers and dedicated his time to raising awareness of First Amendment and free market issues.

Newsflash: People Can’t ACTUALLY Be Douchebags!

Holy Shit! Breaking NEWS!

This just in, you guys:  a person can’t actually be a douchebag!  Breaking Freaking News!  Someone get that Drudge Report Siren up.  Done!

This is totally news to me, because until the Supreme Court of New York for New York County (phew) held differently, I really thought that when people called me a douche, they meant I was an actual, factual walking vaginal bulb syringe.  It was always so confusing.

All is made clear by this case.  Here, the principal of PR firm Four Corners Communication, Drew Kerr, registered the domain name www.rosstorossian.com, in order to criticize Ross Torossian, some rival douche in the sharks-and-jets world of PR, and placed a picture of a Summer’s Eve ad on the website.   In true douchebag form, Torossian got his panties in a twist and sued Kerr for defamation, among other things.

Not to be outdone in his valiant effort to be crowned king of the douches, Kerr called on his business insurance provider, Graphic Arts Mutual Insurance Company, to defend the suit.

[Aside:  How does this conversation go anyways?

Kerr:  Hi, I'd like to make a claim.
GAMIC:  Ok, what happened?
Kerr:  I called some guy on the internet a douche and I'd like you to pay to defend me.
GAMIC:  /facepalm

Aaaaaand scene!]

Turns out that Kerr and GAMIC’s contract contained a clause excluding from coverage “personal or advertising injury arising out of oral or written publication [...] with knowledge of its falsity” and GAMIC didn’t want to defend contending that Kerr had knowledge that Torossian was not, in fact, a douchebag (despite all evidence to the contrary).  Kerr sues for breach.  The court held that because Kerr’s assertion was — wait for it — an opinion and not a provable fact, Kerr could not have knowledge of its falsity and thus GAMIC should have honored their contact.  Perhaps GAMIC and Torossian could go halfsies on a dictionary so they can look up literal falsehood.  Douches.

AutoAdmit Case Euthanized

Article in the Yale Daily Journal does a good job of covering it.

Cybersquatter gets his Comeuppance

Ah pity da fool who thinks he be judgment proof! I got ya judgment proof right here, foo!!!!!

Cybersquatters often either hide offshore, or they claim to be offshore, or they claim that they don’t have any money — ergo they are “judgment proof.”

Well, Marc Trachtenberg, the domain law equivalent of Mr. T, just kicked a cybersquatters’s ass. The squatter decided that he would rather not pay the $120,00 judgment. Since he believed that he was outside the reach of the U.S. courts, he just ignored it. Trachtenberg loaded up the van and brought a plan together — he foreclosed on the cybersquatter’s domain name portfolio.

Judgment Debtor Luis Zavala (“Zavala”) and any and each of his agents, servants, employees, registrars, registry, and attorneys, and those persons enabling or in active concert or participation with Zavala shall transfer to Bosh his domain name holdings, including but not limited to those holdings identified in Exhibit F of the Declaration of Marc Trachtenberg in Support of the Application. This order includes the operator of the “.com” top-level domain, Verisign, Inc., which is hereby ordered to immediately disable Zavala’s domain name holdings by changing the nameserver entries to nameserver entries designated by Bosh and transfer Zavala’s domain name holdings to Bosh’s registrar of choice. (source)

This is good news. If a cybersquatter is stealing from your business, you should have some recourse to collect a judgment. Now, Mr. T can auction off the domains (at least those that don’t infringe on anyone else’s trademark), and Mr. Zavala just lost his pay per click income from 800 domain names.

Pig in a Poke

When the judge tells you “no contact” with another person, that means NO FRIGGIN CONTACT! That includes, not surprisingly, a “facebook poke.”

A reason that “Social Networking Sites Suck.“

Free Speech Coalition v. Holder —- 18 U.S.C. § 2257 Delendum Est!

Let's hear it for the FSC

The Free Speech Coalition has filed its long-awaited complaint seeking to have 18 U.S.C. § 2257 declared unconstitutional.

The Background – The War on Sex

Social conservatives on both the right and left take great delight in attempting to carve out an erotic speech exception to the First Amendment. The far right thinks that their imaginary friend knows what is best for us – and that is that we shouldn’t have access to erotic materials. The far left is just as bad – believing that they know how to bring us to utopia, and banning erotica is a cobblestone in that road. Neither have any respect for the First Amendment. (For a great discussion of the issue of erophobia, see Dr. Marty Klein, America’s War on Sex).

For the most part, these efforts have not been successful. Outright bans on adult entertainment are unconstitutional. Attempts by misguided left-leaning paternalists to create private causes of action engineered to drive erotica out of business have been no more successful. See, e.g., American Booksellers Ass’n. v. Hudnut, 771 F.2d 323 (7th Cir. 1985).

However, when Congress passed 18 U.S.C. § 2257, it inaugurated a new, creative, and somewhat scary “third front” in the war on sexual expression. Forged in the fires of the Meese Commission, Section 2257 attempted to drive adult entertainment out of business by simply making it too burdensome to produce it.

What is Section 2257?

Section 2257 is a law that requires any “producer” of “actual sexually explicit” content to keep age verification records pertaining to anyone appearing in that content. Explained that simply, Section 2257 seems quite reasonable. If you are going to produce pornography, make sure that the talent is over the age of 18, and be able to prove it.

If only it were that simple.

It isn’t just about pornography

First, lets take a look at what kind of images are regulated by Section 2257. In order to fall under Section 2257, the images must be of “actual sexually explicit conduct.” (hereinafter, ASEC). What does ASEC include? As articulated by the Sixth Circuit, ASEC includes: “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(i) (2006). It also includes images of bestiality, masturbation, sadistic or masochistic abuse, and “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).

See? Already things are getting a little muddy. Any reasonable person would have to agree that “genital-genital intercourse” is a relatively clear term. But, what does “sadistic or masochistic abuse” mean? The law contains virtually no guidance in that department. A photograph of dripping candle wax on someone’s leg could qualify as “sadistic or masochistic abuse,” as could any number of other activities that don’t come close to any definition of “pornography.” Remember, the supposed goal of this statute is to keep children out of pornography..

How about “lascivious exhibition of the genitals or pubic area of any person”??? Go ahead, try to actually define those terms. I’ll wait….

Who is to determine whether the “pubic area” of a person is in a state of “lascivious exhibition” in any given photograph or video? Under this statute, most Victoria’s Secret catalogs, Sports Illustrated swimsuit issues, and any number of seemingly “innocent” images could be swept up in the anti-porn dragnet. That would be just fine with the erophobes. It is not just fine as far as the Constitution is concerned.

What Records?

Now that we have figured out what kind of images or depictions trigger responsibility to keep Section 2257 records, let’s look at what that responsibility means:

Under § 2257, a producer of sexually explicit images must inspect the talent’s government-issued photo identification to ascertain her (or his) date of birth. See 18 U.S.C. § 2257(b)(1) (2006); 28 C.F.R.§ 75.2(a)(1). Not such a big deal… but the government couldn’t be happy with that.

Section 2257 also requires that the producer copy the ID and keep it in a file. The producer must also record any stage names or aliases the talent has used in the past, and record and index all places where the image is published and keep all that information in a file where it is not co-mingled with any other records of any kind. See 18 U.S.C. § 2257(b) (2006); 28 C.F.R. § 75.2(a), (d), (e). Also, the way the regulations are written, it makes the adult entertainment industry into the one industry that is either protected from outsourcing, or at the least, the entertainment equivalent of the minuteman brigade. (Link)

Accordingly, if a producer of First Amendment protected adult material puts anything in an entertainer’s file that is not specifically required by 2257, it could mean that the producer is off to jail.

This isn’t the worst of it…

Fourth Amendment? What Fourth Amendment?

Once the producer creates these records, indexes them, and cross-references them, that isn’t the end of the line. The producer must then list a “2257 statement,” listing the date of production, and an address where the records may be inspected during regular business hours – and those hours must be at least 20 hours per week. 18 U.S.C. § 2257(e) (2006); 28 C.F.R. § 75.6(a), (b). There are more technical requirements as well, including that the statement must be in 12 point font, printed in a color that contrasts with the background, and must be prominently displayed. 28 C.F.R. § 75.6(e) (2006).
The Attorney General, or any designated agent may now come knock on the producer’s door for a “2257 inspection.” By law, they are not allowed to give any advance notice. No warrant. No probable cause. No reasonable suspicion. Once every four months, for no reason at all, FBI agents get to show up at the producer’s door for an inspection – and they can come more often if there is a reasonable suspicion that a violation has occurred. 18 U.S.C. § 2257(c) (2006); 28 C.F.R. § 75.5(b), (c), (d) (2006).

If you blow the requirements – five years in jail. That’s not for having underage performers, mind you. If your paperwork is not in order you are staring down the barrel of a five year jail sentence.

With this as a backdrop, the Free Speech Coalition is fighting back. The statute and its administrative regulations are clearly unconstitutional, clearly intended to burden free expression, and don’t do a damn thing to prevent child pornography from being produced.

Lets wish the FSC the best of luck.

2257 delendum est!

Unethical or just plain stupid? A “thin DMCA letter”

If this is an accurate picture, she couldn't even fit her head in her pants. In stark contrast, Ralph Lauren's lawyer practices law with her head up her ass.

Ralph Lauren makes its first stupid move — photoshopping a model so that she looks like something you’d get a blowjob from in Roswell, New Mexico.

That’s dumb move number one.

So then a few blogs pick up the picture, making fun of it, including BoingBoing.

Ralph Lauren then hires an attorney to write this piece of shit DMCA notice. (courtesy of craphound). For the uninitiated, a web host will usually remove something from its servers in response to a DMCA notice. Not this time.

Hilarity ensues as BoingBoing’s web host not only refuses to comply, but BoingBoing opens up the Streisand Effect whup ass.

[I]nstead of responding to their legal threat by suppressing our criticism of their marketing images, we’re gonna mock them. Hence this post.

As Wendy Seltzer from the Chilling Effects project said, “Sounds like a pretty solid fair use case to me. If criticism diminishes its effectiveness, that’s different from the market substitution copyright protects against. And I’ve rarely seen a thinner DMCA form-letter.”

So, to Ralph Lauren, GreenbergTraurig, and PRL Holdings, Inc: sue and be damned. Copyright law doesn’t give you the right to threaten your critics for pointing out the problems with your offerings. You should know better. And every time you threaten to sue us over stuff like this, we will:

a) Reproduce the original criticism, making damned sure that all our readers get a good, long look at it, and;

b) Publish your spurious legal threat along with copious mockery, so that it becomes highly ranked in search engines where other people you threaten can find it and take heart; and

c) Offer nourishing soup and sandwiches to your models. (source)

Heee heee, get it? Wendy is funny.

Numbskull, the DMCA is for copyright infringement — not for fair use. If you don’t know what fair use means, you shouldn’t be sending out DMCA notices. Why not? Because the DMCA, she bite sometimes. Well not only that, but abusing intellectual property law to suppress criticism is fucking unethical.

Hat Tip to Staci K.

“What About the Children” FINALLY Fails!

Dirty Linda Sanchez

Rep. Linda Sanchez (D-California) is the latest moron to cry “what about the children?” while trying to score cheap political points while wiping her ass with the First Amendment. Sanchez took a swipe at free speech by proposing the “Megan Meier Cyberbullying Prevention Act.” Yes, another law named after a dead kid. That almost never ends well for free speech (or any other kind of freedom for that matter).

Here is part of what her bill would criminalize.

(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass or cause substantial emotional distress to a person, using electronic means to support severe, repeated and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

(b) As used in this section —

(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and

(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including e-mail, instant messaging, blogs, websites, telephones and text messages.

In other words, this entire blog would probably be illegal. I will state with no equivocation that I regularly try and cause substantial emotional distress when I write about dumbasses who try and mess with my First Amendment. I want them to curl up in their bedrooms at night, sobbing and weeping from feeling guilty for their sins against the Constitution. I want them to feel so much distress that they repent and atone for their crimes. No luck yet, but at least I manage to educate my readers about these flunkies and asshats.

According to Wired, her bill got a chilly reception in committee from both Republicans and Democrats. However, in an exclusive interview, Mr. Bartow Dworkin, the president of the International Association of Imbeciles, and a full time law professor, supported the bill.

We believe that when people are mean to other people on teh internets, this is sexist and racist and ummm, WHAT ABOUT TEH CHILDREN? It is bad enough that we are confused about what might have happened to our favorite race-baiting website, but don’t our leaders understand the gravity of this situation? A child died! It must NEVER happen again. Nobody must ever die again, or else people will die.

Dworkin then ran off to his subcommittee meeting of the ABA’s “future of the legal profession” meeting without further comment, but he did tell us that we needed to read the law review article “Cyber Civil Rights.” “Here, take this,” he said. However, the pages were all stuck together, so we weren’t able to read the article. We did line a bird cage with the pages, but the bird chose to die from jaundice rather than suffer the indignity of having to shit in the presence of such stupidity.

I would give a full discussion of what a piece of garbage Sanchez’ bill is, but Eugene Volokh already pwned it in his Huffington Post article.

Jack Thompson Didn’t Get the AutoAdmit Memo

Apparently Jack Thompson, asshat of the century, is suing Facebook because Facebook won’t stop its members from being mean to him. (complaint here, courtesy of Popehat).

Naturally, it is 31 flavors of batshit crazy — just what you would expect from Jack. Speaking of Popehat, no sense in analyzing the complaint when Ken does an ass kicking job of it over at our soul-brother blawg.

I will, however, offer up a comparison.

As batshit nutty as ol’ Jack can be, and this case is no exception, his legal theory isn’t really all that original. This is pretty much the same legal theory that the Auto Admit plaintiffs tried to use against one of the employees of that site. Compare this complaint to Jack’s.

Personally, I think that Jack’s is more well written. The only real difference between the two is that I’d bet that Jack would actually be fun to hang out with, if you could get him to agree to keep certain topics off the table. (Jack, for what it’s worth, if you read this, I hereby invite you out for a night of getting shitfaced). In the Auto Admit case, there’s nothing but sanctimonious patrician whining.

Sciopero dei Blog

Where were YOU during the great Italian blog strike of 2009?

Apparently Italian bloggers are on strike. It even seems like a damn good cause. Arthur Bright at the Citizen Media Law Project made me laugh though:

But is a strike really the way to go? Because it seems to me that the bloggers, as a group, are missing the most important element of a strike: economic influence. Bloggers aren’t exactly autoworkers. Industries don’t depend on bloggers showing up to work each day in order to avoid crippling economic losses. Heck, as the BBC article points out, Italians barely use the Internet: “More than half the population has no web access and one source puts average usage at just two hours a week.” That being the case, a bloggers’ strike is unlikely even to be noticeable to the Italian public. Really, the Italian bloggers’ strike reminds me of nothing so much as the South Park episode where Canada goes on strike, to “show the world how bad things would be without it.” (source)

The entire post is worth reading. The strike is due to proposed “right of reply” law being considered by the Italian parliament. This is the kind of regulation which would be clearly prohibited by the First Amendment if they tried it here. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)

“Getting What She Deserves”: Stories of Vengeful Women Expand Cyberlaw Regulations

By Lateigra C. Cahill

A few weeks ago, Missouri officials arrested Elizabeth Thrasher (40), for posting a fake No-Strings-Attached-Sex ad on the Craigslist “Casual Encounters” section. The sex ad included the photograph, cell phone number, and place of employment of a 17-year-old girl (Thrasher’s ex-husband’s girlfriend’s daughter). Investigators say that the girl received phone calls, text messages and nude pictures as a result of the ad. Thrasher faces felony charges with up to four years in state prison.

This is the first arrest made under Missouri’s expansion of their harassment statute to address “cyberbullying” after the highly publicized Myspace Suicide Case.

Shortly after Thrasher’s arrest, Federal Judge George Wu acquitted Lori Drew (the Missouri mom in the Myspace case) on grounds of unconstitutional vagueness. Federal prosecutors charged Drew criminally under the Computer Fraud and Abuse Act (“CFAA”) for breaching the Myspace “Terms of Service” agreement by creating a fictional boy’s profile to communicate with Megan prior to her suicide.

Despite the hard facts of the case, Judge Wu recognized the civil liberties at stake:

• First, Wu points out that under the void-for-vagueness doctrine, a statute (or in this case the “clickwrap”) must expressly define what prohibited behavior is a criminal offense and what is a civil offense. Here, ordinary people wouldn’t expect that creating a false profile (without the intention of doing something expressly criminal like, say, stealing money from someone) could be criminal.

• Second, Wu recognizes the large and sweeping effects on personal freedom that would result in criminal prosecution of “fake profiles”. Examples given by Wu in the opinion are 1) “lonely-hearts” that post photo-shopped pictures or give exaggerated stats, 2) people who post pictures of their friends at parties without their permission, and most strikingly, 3) 13-year-old Megan Meier’s own profile that falsly stated she was 14. (the Myspace Terms of Service requires that users be 14 or older.) Wu states that, “No one would seriously suggest that Megan’s conduct was criminal. . .” (pg 30 of the Opinion)

Federal prosecutors were grasping for straws to convict Drew under the CFAA, but in my opinion it may not have been out of desperation for justice. The fact is that Drew’s conviction would’ve vastly expanded prosecutorial discretion and the feds often target highly gendered and sexualized situations to make power grabs because they are so sensationalized in the media. (The vengeful older woman/mom, the internet “boy” crush, the blonde pre-teen with braces who commits suicide—all factors that spark our unconscious interest in the case and drive the public’s thirst for justice.)

So it’s no coincidence that the first arrest in Missouri under the revised harassment statue had facts that not only mirrored Drew’s case, but were even more sexualized than Drew’s case. (The No-strings-attached-sex, the ex-husband’s girlfriend’s barely legal daughter, the nude pictures.) It just seems highly unlikely that this is the only prank ad that’s been posted on Craigslist in Missouri lately, yet it’s the first arrest that’s been made under this law.

Fear driven by unconscious prejudice is the most powerful device for urging citizens to willingly relinquish constitutional rights. If you need an example, think about the racist-fueled-fear that legitimized the US PATRIOT act in the minds of normally big-government-hating conservatives.

Vengeful, jealous, manipulative women (read – too emotional and unable to be controlled by “men” a.k.a. society) that prey on beautiful young girls (read – passive victims that need protection from society) are classic Jungian/biblical archetypes. Archetypes and stereotypes are the source for most forms of prejudice in our society which in turn are used to motivate fear and submission to the institutions that have been established to “protect” us.

As long as federal prosecutors and legislatures can find sexualized female targets to enrage us, we won’t even question the expansion of cyberlaw regulations and our loss of individual freedoms. Sacrifices will have to be made, because these crazy-vengeful-bitches need to be stopped.

Editor’s Note: Please Welcome Lateigra Cahill as the latest Satyriconista!

LaTeigra is a law student at University of California, Hastings College of the Law in San Francisco. LaTeigra’s main legal interests are free speech rights, anti-censorship issues, government suppression, cyber law, art and politics. LaTeigra is the Co-Chair/Co-Founder of Hastings Advocates for the Arts, an active student organization that promotes freedom of self expression through integrating visual and performance arts into law school culture.

“But We’re Just An Innocent Web Host” Ain’t Gonna Cut It

Well, yes, you actually do have to worry. If you are an online service provider, the DMCA is not a magic shield. Do your homework and keep your eyes open, or you'll get tagged as hard as the actual infringer.

Akanoc Solutions Inc., Managed Solutions Group Inc., and Steven Chen, the owner of the two companies learned the hard way that being a web host doesn’t make you automatically free from liability for copyright and trademark infringement committed by your customers. The ISPs involved hosted websites that sold knock-off Louis Vuitton goods, and they were made aware of that fact. A jury found that they knew, or should have known, that their customers were using their services for this purpose, and tagged the web hosting company for a $32 million verdict.

Chen’s lawyers argued that he and his companies were protected from being assessed damages under the DMCA, which generally does protect online service providers from these kinds of suits. However, given that Chen’s companies both provided the infrastructure for the infringement scheme and that they were made well aware of the activity, but turned a blind eye to it, they lost their immunity. See Computerworld.

The case is Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., U.S.D.C., Northern District of California, Case5:07-cv-03952-JW.
The complete case file is available here, on Justia.

Important case documents:

Vuitton’s Amended Complaint
Defendants-motion-summary-judgment
Plaintiff’s Opposition to Motion for Summary Judgment
Akanoc-Order-on-summ-judgment
Jury instructions
Jury verdict form

Horizon Group Management sues tenant for Twitter post about “moldy apartment”

Even this guy knows that Horizon's suit is a crock of shit

Amanda Bonnen had 20 followers on her Twitter account. On May 12, she tweeted, “… Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s okay.” (Complaint at 7).

Fast forward to July 20, and Horizon Realty files a defamation suit based upon the tweet. According to Horizon’s complaint, it is “recognized as one of Chicago’s premiere apartment leasing and management companies because, [inter alia] it understands the importance of quality customer service…” (Complaint at 1).

Before Ms. Bonnen launched her caustic and hideous public attack, (by tweeting to 20 of her friends), Horizon “was a company of good name, fame, and reputation and was deservedly held in high esteem by and among renters, potential renters and the general public.” (Complaint at 3).

Now Horizon Realty is just known as a company that filed a defamation suit against a renter based on a tweet to 20 friends. But wait… there’s more….

According to the Wall Street Journal, Horizon claims that it discovered the tweet “while conducting due diligence on a residential landlord and tenant ordinance lawsuit filed by Ms. Bonnen.” (source) Horizon’s Jeffrey Michael is quoted as saying “We’re a sue first, ask questions later kind of an organization.”

In other words, this “organization” got sued by Bonnen and decided to swipe back at her with a frivolous defamation suit. Nothing says “we’re guilty” like a SLAPP suit. I’m not saying that Horizon did what Bonnen accused her of. In fact, I don’t know much about that suit, and I don’t rightly care. But, the defamation suit is clearly frivolous and clearly nothing more than retaliation for Bonnen’s initial landlord-tenant lawsuit.

To make things worse, Horizon has issued a press release telling its side of the story. Apparently nobody ever informed Horizon that the first step in getting out of a hole is to stop digging. While they make pretty strong statements denying the existence of mold in Ms. Bonnen’s apartment, they just don’t seem to understand that nobody cares about the alleged mold issue except Ms. Bonnen. The thing destroying Horizon’s reputation now is their blatantly frivolous anti-free-speech lawsuit.

CopyBlogger really hit the nail on the head:

Horizon Realty might be the most loveable, fair, decent and true company in the world. Right now, their name recognition has about as much appeal as Saddam Hussein. With mold.

Whether fair or not, Horizon has made a worldwide name for itself virtually instantly, connecting its brand with callous disregard for its tenants, or worse.

(Yes, there is such a thing as bad publicity. This is what it looks like.) (source)

I’m just gonna go ahead and presume that Horizon’s lawyers told them that filing this complaint was an act of abject stupidity that even Jack Thompson would mock. I simply refuse to believe that any attorney would tell their client that this was a good idea. This lawsuit scores a perfect five Floridas on the moron scale. Prior to filing the lawsuit, 20 of Bonnen’s friends had potentially read the comment. After filing the suit, the story became national news. I can’t wait to see Ms. Bonnen’s response.

Even Opie on Family guy could pwn the bejesus out of this abjectly frivolous bullshit claim.

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):