The DMCA takedown system is once again being abused by Craig Brittain. The recently deposed king inadvertent court jester of the revenge porn world -- defenestrated by the FTC no less -- has issued a new bogus takedown request in hopes of purging the internet of critical articles.
But what takes it into truly surreal territory is Brittain's seeming inability to realize just how hypocritical his request is. For someone who made a living posting photos and contact information without permission (and made a further living pretending to be a "takedown lawyer" who could make the unauthorized photos and contact info vanish for the right price), he seems suddenly very sensitive about the use of photos and personal information. Or at least the use of his, anyway. From the takedown request hosted at Chilling Effects:
Unauthorized use of photos of me and other related information. Unauthorized use of statements and identity related information. Unauthorized copying of excerpts from isanybodydown.com. Using photos which are not 'fair use'.
[For whatever reason, Brittain claims the infringed item is a "book," which one must admit would be quite the conversation starter, ender and shatterer of friendships/marriages, should the now-dead "Is Anybody Down" website have been published as a glossy, hardbound coffee table-type book.]
Desperate times call for desperate measures, I suppose, and for someone who only knew how to profit off the misery of others, a lifetime ban from exploiting both ends of a revenge porn website must be making Brittain very desperate indeed. You'd think he would have learned from the last time he sent out a bogus takedown request that the only thing that does is create more criticism. Brittain's name is irrevocably toxic and he can't seem to think of a better way to clean up his destroyed reputation than tossing a self-serving DMCA hail mary. With these 23 own-goals on the record -- along with a new wave of criticism headed his way -- Pustule Nickelback McHitler's Brittain's best bet at this point is probably to just exit the internet altogether.
Remember Craig Brittain? He was the guy who set up a revenge porn site called "Is Anybody Down?," and got a lot of attention for also having a separate site called "Takedown Lawyer" which claimed to be a lawyer named David Blade III, who would get naked pictures taken down from Is Anybody Down for "just" $250. Of course, as multiple people noticed, there was a tremendous amount of evidence that Brittain and Blade were one and the same, which meant that not only was Brittain likely impersonating a lawyer (a no no), but also potentially engaging in extortion. Brittain then made some news trying to get some criticism of him taken down via a bogus DMCA notice... targeting posts at Popehat of all places. He should have consulted the "lawyer" David Blade for some advice on that one.
Brittain has popped up here and there over the past couple of years since that debacle. Back in early 2013, Ken "Popehat" White noted that the wheels grind slowly on investigations like those over Brittain's actions. But they do grind. And they've finally ground their way to a settlement decree with the FTC that says Brittain can never operate a revenge porn site again. It also calls out the whole fake lawyer scam. You can see all the details in the complaint and the settlement.
Under the terms of the settlement, Brittain is required to permanently delete all of the images and other personal information he received during the time he operated the site. He will also be prohibited from publicly sharing intimate videos or photographs of people without their affirmative express consent, as well as being prohibited from misrepresenting how he will use any personal information he collects online.
Also, beyond just the official announcement about this settlement, the FTC put up two totally separate blog posts, in rather conversational tone, completely trashing Brittain and revenge porn. First is the one on the FTC's blog about "letting the facts speak for themselves" which starts out thusly:
This post about the FTC’s law enforcement action against Craig Brittain will be a little different. No bullet points parsing the nuances of complaint allegations. No tips and takeaways for savvy marketers. No admonitions about industry best practices. Given that the “industry” in question is revenge porn, the facts pretty much speak for themselves.
Mr. Brittain’s now-defunct site – isanyonedown.com – featured an assortment of explicit photos and personal information about the people in the pictures. Why this FTC foray into the seamier side of technology? Because according to the complaint, what Mr. Brittain did violated the FTC Act. And when it comes to Section 5 violations, the FTC is most definitely not down with that.
And then on the FTC's "Consumer Information" blog, a separate post was put up with the title Is Anybody Horrified? which attacks the whole concept of revenge porn, first discussing the specifics of the Brittain case, before noting:
But there’s also a warning here for other revenge porn websites with similar practices: cut it out.
In the FTC's complaint itself, there's some interesting stuff that suggests that, even if it grinds away a bit slowly, the FTC feels that it has the tools and power to take on (and down) revenge porn sites. The "unfair practices" that Brittain engaged in includes:
Respondent disseminated
photographs of individuals with their intimate parts exposed, along with personal
information of such individuals, through the Website for commercial gain and without
the knowledge or consent of those depicted, when he knew or should have known that the
depicted person had a reasonable expectation that the image would not be disseminated
through the Website for commercial gain.
Respondent's practices, as set forth in Paragraph 13, have caused or were likely to have
caused substantial injury to consumers that is not reasonably avoidable by consumers and
is not outweighed by countervailing benefits to consumers or competition. These
practices were, and are, unfair acts or practices.
That's rather interesting -- and I wonder if it's actually truly within the powers of the FTC to determine that, but I can't see too many people challenging it when the FTC is going after folks like Brittain. However, it does highlight how (contrary to the claims of some) we might not need new free speech suppressing laws to fight back against revenge porn.
That said, as Ken White notes, some may be disappointed that Brittain doesn't have to pay anything or isn't going to jail. But, White notes that punishment is likely to have an impact:
1. This suggests the FTC determined he had no assets worth taking.
2. If he violates the order, the FTC can file against him in federal court. The resulting civil/administrative process only bears the most remote resemblance to due process. It will be ridiculously easy for the FTC to shut down and confiscate any new enterprise he starts for the next 20 years. The clients I've seen be most mercilessly and thoroughly screwed without pretense of fairness have been FTC defendants in federal court.
3. Craig Brittain is now subject to a permanent and relationship-and-career-debilitating stigma. Employers, lenders, landlords and others won't necessarily pick up internet drama. But you can bet that they'll pick up on an FTC consent order. Craig may want to change his name to something without such baggage, like maybe Pustule Nickelback McHitler III.
It goes on from there, but you get the idea. This will stick to Brittain.
Meanwhile, Adam Steinbaugh had already been working on a long and detailed post about the many lies and story changes from Brittain about the site and just who "David Blade III" really is. The FTC statement makes it clear that Brittain and Blade are the same, but Brittain has long denied that, though his reasoning always changes. You should read the entire Steinbaugh post, which is quite detailed, but here's a snippet:
From this, and elsewhere, we can glean some important ‘facts':
Craig went to college with whoever created David Blade, but doesn’t know the names of the people who are running the operation.
Craig doesn’t know who’s involved, except for his "contact" — "James" and Craig doesn’t know how to get ahold of them except through emailing "James."
The whole thing was a new operation created by former employees of DMCA.com, which helps people remove copyrighted content from the internet. And they’re in Canada, making it likely that they are actually hot models.
It's been a little while since we last wrote about the "revenge porn" website IsAnybodyDown which has gone from questionable (and possibly illegal) practice to questionable (and possibly illegal) practice. You may recall that the site first came to our attention when an "advertisement" on the site claimed to be from a lawyer who would get the naked images on the site taken down for a small fee. The problem? Well, the "lawyer David Blade" did not appear to exist. And his emails came from the same IP address as the site's owner (and, no, IP addresses alone do not guarantee they're the same person, but it raises questions). Since then, the guys behind the site, Chance Trahan and Craig Brittain, have made crazy claim after crazy claim often with little basis in reality. There was the attempt to silence criticism via bogus DMCA notices, followed by bogus legal threats.
Back in November, Adam Steinbaugh noted that it appeared that many of the images were sent via tricking people on Craigslist into sending naked pictures, which Brittain seems to believe is the equivalent of permission to post the images. At one point, Brittain posted some emails that showed some of the Craigslist communications came via his own email address. Oops.
It appears that more and more people are becoming aware of this, and realizing that if Brittain is soliciting these images, often by lying to unsuspecting individuals, the legal issues he may be facing are increasing drastically. A reporter in Denver, Brian Maass has spoken with a woman whose images appeared on the site, and the email exchange... came from the same IP address as Brittain and the non-lawyer "David Blade."
Late Friday, CBS4 broadcast Maass' interview with a woman who met another woman on Craigslist named "Jess Davis." Davis corresponded and sent nude photos of herself, and she asked the other woman to send her racy photos in return. Davis also asked for her date of birth and phone number, saying she was looking to have "just some fun." The victim went along with the exchange, believing she was interacting with a woman.
Five days later, the woman's photos were on IsAnybodyDown, along with her contact info. "This is something I didn't want all of the world to see," she told Maass in the interview, in which her face and voice were obscured.
Turns out, the e-mails from jessdavis877@gmail.com came from the same IP address as Craig Brittain's e-mails—just like e-mails from the "Takedown Lawyer" named "David Blade III," which also apparently originated at Brittain's Colorado Springs home.
Given Steinbaugh's earlier reporting on this, this is hardly surprising, but it raises the legal problems Brittain may come up against at some point.
If Brittain created fake identities to acquire womens' photos and then posted them online himself, it's pretty clear that he won't be protected by the federal law that he believes shields him currently, Section 230 of the Communications Decency Act. That law protects website owners from liability for material posted by their users in certain situations. An attorney who speaks with Maass in the new piece says that by creating fake identities to populate his site with new photos, Brittain's behavior enters the criminal realm.
The Ars Technica report (linked above) that covers the latest Brittain interview also includes a bunch of ridiculous quotes and claims from Brittain, who seems to think he can say just about anything without consequence, such as insisting that the people appearing on his site want to be there.
"You're saying, all those people want to be on your website?" asks Maass.
"I would say so," answers Brittain. "I would suggest they want people to see their pictures... What they don't want is some of the shame, some of the discrimination from people. I would suggest they took the pictures, they obviously want people to see them. They sent a lot of them to random strangers that they had never met."
That's quite a stretch of course. But Brittain then goes even further, suggesting that this is all for the greater good. Yes, putting up naked photos of people that they may have taken willingly, but for a very specific audience, is good for society:
"We actually think the fact they're taking these pictures is a good thing, and an acceptable thing," he says. "We're not trying to shame them or scrutinize them. We're trying to entertain the world. And also to take away a lot of the stigma that's associated with this, because we don't believe these people should be shamed. It may be tough for some of the first people that have been posted. But as time goes on and this gets bigger, this will become more and more of an acceptable thing in society."
That's one way to look at it, though I find it difficult to believe that posting naked images of someone publicly, who had no such intention for those pictures, is unlikely to become a "socially acceptable" kind of thing any time soon.
Apparently, Chance Trahan and Craig Brittain of "revenge porn" site Is Anybody Down are still busily working on their shovel-ready project "Digging Our Own Internet Graves." When we checked in last time, the living proof that two heads are sometimes much, much worse than one had just served up a bogus DMCA notice in a weak effort to censor criticism.
Needless to say, the criticism hasn't ceased and nothing has been taken down. In fact, the boys have moved past the DMCA process and have moved on to completely bogus legal threats to us here at Techdirt, and a number of other sites as well. As described by Popehat, who has received an identical threat, it appears that Trahan and Brittain have decided to dive right into the always-entertaining "bumptious legal threat" arena.
"Be advised that these actions, your slander and screen shots can and will be used as key factors should a case be pursued against you. Your posting, advertising, marketing, dissipating and otherwise disseminating the slanderous materials constitute actionable violations of Mr. Trahan and Mr Brittain's rights of privacy and publicity."
Adam refers to Adam Steinbaugh, who has been recapping the ongoing Is Anybody Down saga at his blog. This same "legal notice" has also been "served" to Is Anybody Down's Wikipedia page, which ironically enough is already slated for deletion. (Oh, and the Captain Obvious video is worth a watch, along with an earlier video dealing with infamous legal threatener, Charles Carreon.) [Oh, and remind me to start a tumblr called "Slander and Screen Shots" when I get some free time.]
Now, what did I say about starting a war of words with someone who knows way more words than you do? Ken at Popehat tears apart this latest missive from the overmatched duo, so that we don't have to:
This is a notably, remarkably stupid comment, even for an Internet Lawyer. First, slander is verbal; libel is written. Second, "be advised" is a reliable tell of an empty threat. Third, nobody is "marketing" anything; that sounds like an attempt to fabricate a copyright claim. All criticisms are non-commercial, making all quotes and screenshots fair use. Fourth, you gravel-knuckled troglodyte, you mean disseminating, not dissipating, and that word's already in the sentence. Fifth, Trahan and Brittain have no privacy or publicity rights to be free of criticism or satire, however popular that approach is to would-be censors.
This ongoing battle has all the hallmarks of a popcorn-worthy event (and it appears we now have a front row seat). On one side, you have respected and intelligent legal minds. On the other, two lugs who thought they could smarm their way into some easy money, only to find themselves neck-deep in a self-made hole. It appears their constant shouts for "MOAR SHOVEL!" very possibly won't be silenced until the dirt is well over their heads.
Oh, look. Yet another person has made the assumption that the "c" in "copyright" stands for "censorship." We've seen this before. Several times. Just in the past six months, we've seen these attempts (sometimes successful) to wield copyright as a weapon:
- Actress Cindy Garcia tries to have "Innocence of Muslims" film removed from Youtube by claiming she owns the copyright to her performance in the film.
- Human Synergistics International gets a 2-year-old blog post removed for quoting four sentences from its "exclusive" trapped-in-a-desert team building exercise.
- Universal Music uses a false copyright claim to remove a negative review of one of its artist's albums.
- A minority owner of the Miami Heat sues a blogger and Google in an attempt to censor an unflattering photo of him.
- A cartoonist, irritated by criticism of her work, attempts to get her cartoons removed from Something Awful, accusing the site of theft.
Now, Craig Brittain, the owner of "revenge porn" site "Is Anybody Down" (whose first skirmishes with Marc Randazza were covered here) is trying to remove posts criticizing his site, his inability to keep his story straight, his likely extortionate "photo takedown service," and, well, pretty much everything, actually. He's sent a DMCA notice demanding the removal of three posts at Popehat, claiming that these posts contain copyrighted material.
Craig also tried to get the three posts about him on Popehat taken down by sending a bogus DMCA takedown notice to our host, Dreamhost. I've been a little mad at Dreamhost recently because of some outages, but I'm very happy with their response to this, which gives me confidence they will handle it correctly. They've recognized that's the notice is defective and they're not requiring a counter-notice from me yet — though I'd enjoy writing one.
It's refreshing to see a hosting company dismiss a baseless claim out of hand, unfortunately one of the rarer sights on the internet. Ken, who wrote all the posts in question, has posted the DMCA notice at Popehat, noting that Brittain clearly doesn't know, or doesn't care, what copyright actually covers.
The notice is patently ridiculous on any number of levels. Note, for instance, that Mr. Brittain is asserting copyright in a printout of his criminal record and in a correspondence between "David Blade" and Marc Randazza.
He also notes that Brittain takes care not to make any assertions that "David Blade" is an actual person (although he seems more than willing to protect Blade's "copyright" for him). Then there's this paragraph, which starts out in the general area of copyright before wandering all over the place:
Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed or access to which is to be disabled: The posts and images above contain personal information which is owned and copyrighted by its respective copyright owners and is damaging in nature and contains personal information in violation of copyright and numerous privacy laws and must be removed immediately.
Sure, some of the stuff on the list might be "damaging in nature," but it's all self-inflicted. Here's what Brittain wants removed:
An ad from his own website isn't "personal," and if it's "damaging," it's Brittain's own fault. The communication between nonexistent "lawyer" David Blade III and Marc Randazza may be both "personal" and "damaging," and while whoever actually wrote "Blade's" side may have a weak copyright claim in his portion of the discussion, there's obviously an incredibly strong fair use claim in republishing the entire correspondence. The felony record could be considered "damaging," but it's a matter of public record, removing it from the "personal" column -- and there's certainly no copyright claim there. And the photo? It's a screenshot of Chance Trahan's public tweets! How the hell does that violate anything?
Craig/David/Chance, the unholy trinity that is actually (most likely) a duo (at best), is attempting to undo the damage done, not by apologizing, taking down the site or just simply shutting up. Instead, Brittain thinks the internet can be controlled by abusing existing IP laws. And even if this particular gambit had worked, it still wouldn't have worked.
Even if you catch some abuse official on a bad day and convince them to take a few posts down, 100 more will pop up talking about your sick campaign of fraud and extortion.
Of all the things copyright is supposed to be used for, trying to erase your dodgy internet history isn't one of them. A weapon that has the potential to outlive you for seventy years is entirely too much power to be placing in the hands of those willing to abuse it. As we've noted before, the "perjury" aspect of bogus takedowns simply isn't enough of a threat to keep DMCA notices safely holstered.
Craig Brittain may have felt he could censor his way back into "respectability," but he's apparently just going to keep underestimating his critics. This is going to end badly, but not anytime soon, it appears. As disheartening as it is to see the abuse of intellectual property in the pursuit of shutting critics up, it's nice to see these clumsy attempted bludgeonings working less and less frequently.
