Germany's Infamous Copyright Warning Letters May Be Reined In -- In A Few Years' Time

from the always-look-on-the-bright-side dept

Germany has figured on Techdirt on a number of occasions because of the widespread use of warning letters there, sent out in large numbers in connection with alleged copyright infringement, and usually including a demand for money. Back in April 2013, the German digital rights group Digitale Gesellschaft (Digiges) contacted the European Commission in order to draw its attention to the misuse of warning letters, which it said were in contravention of safeguards contained in the relevant European legislation. Here's the background, as explained by the digital rights association EDRi:

Digiges pointed out that in Germany, IPRED [the EU's Intellectual Property Enforcement Directive] had led to a situation which allowed rightsholders to acquire personal data of the users directly from the providers. All they needed for that was the IP-address of an alleged infringer and an application to a court that would order the provider to hand over the requested information. While this option was originally meant to facilitate the realisation of damages and injunctive relief, the whole process in fact became more and more automated over time. The requests from rightsholders usually comprised between 15 and 3 500 IP-addresses at a time. In one single case in October 2009, the number even reached a breathtaking 11 000. Given the fact that the court proceedings in these cases are always summary or expedited ones, it becomes clear that there is hardly any chance for a judge to thoroughly check the validity and accuracy of the "evidence" presented by the rightsholder.

In its letter, Digiges argued that the situation created by the German implementation of IPRED violates EU law, and asked the European Commission to do something about it. It did: in October 2013, it invited representatives to Brussels to explain their case further. After further correspondence with Digiges, more than one and a half years after the initial letter was sent, the Commission has finally decided to take the first step towards an infringement procedure against Germany:

The Commission officially prompted the German government to comment on the German situation around warning letters within ten weeks.

Heady stuff. EDRi points out that any practical effect of the Commission taking up this case is likely to be very slow to arrive:

The German government is expected to delay their answer to the Commission as long as possible. Once it has arrived, the Commission will have 10 weeks to evaluate the government’s reply. An ensuing judicial infringement procedure might take up to two years and will be repeated if the member state in question fails to comply with the ruling of the court.

So, realistically, we are looking at over four years before Germany actually has to do anything serious like changing its law here. But EDRi tries to look on the bright side, concluding its post as follows:

it is still unclear if and when Germany will change its laws facilitating the abuse of warning letters. But an important step towards the first infringement procedure with a net-political twist has been taken.

That's the spirit.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, copyright trolling, eu commission, extortion, germany, ipred, settlement letters, warning letters

Vermont's Case Against Notorious Scanner Patent Troll Moves Forward

from the fighting-back dept

Last year, there were a few stories concerning a really despicable (more than usual) patent troll called MPHJ Holdings. Joe Mullin, over at Ars Technica, had dug deep into the details, finding a bunch of shell companies all sending demand letters to various small companies demanding around $1,000 per employee for using a network-connected scanner that includes a "scan to email" feature (i.e., pretty much any scanner on the market today). There were all sorts of sketchy things about MPHJ, and it was pretty clear that it and all its shell companies were effectively shaking down small businesses. It was so egregious that Vermont's Attorney General sued the company, claiming that it was engaged in "unfair and deceptive acts" with its threat letters.

Over the last year, MPHJ has fought hard to get the case out of a Vermont state court and into a federal court, arguing that it was a patent case (which is covered by federal law). The federal district court sent it back to the Vermont state court, saying that it's not really a patent case at all, but about the company's threat letters. Specifically, it stated:

"the State is targeting bad faith conduct irrespective of whether the letter recipients were patent infringers."

MPHJ appealed this ruling to CAFC, the appeals court that handles all patent cases (and is somewhat notorious for constantly expanding patent law through its decisions). Last week, however, CAFC rejected MPHJ's appeal, without even getting into the issue of whether or not this is a patent case. Instead, it simply noted that the law says appeals courts can't review orders remanding a case to a state court. Case closed, no jurisdiction. Pack your bags for Vermont, MPHJ lawyers.

Of course, the more important case involving MPHJ is the one in which it brazenly decided to sue the FTC for investigating its actions. The decision on that case could come at any time. You never can tell how a court will rule, but the odds are not likely to be in MPHJ's favor on that one either...

Filed Under: cafc, deceptive practices, extortion, patent troll, scanner patent, vermont
Companies: mphj

Sheriff's Deputy With History Of Misconduct Attempts To Extort $50,000 From Pulled Over Motorist

from the sold-out-by-his-own-dash-cam dept

Even when law enforcement officers know a camera is watching, some still choose to abuse their power. This isn't good news, especially as more law enforcement agencies are choosing to outfit their officers with cameras and mics (and allowing those officers to tamper, disable or break the equipment without consequence). The technology does have the potential to nudge both cops and citizens into more mutually respectful interactions, but this is being circumvented by officers who like cameras aimed at the public, but not so much at themselves.

In this case, lawyers were able to get ahold of dashcam footage revealing misconduct by a Humboldt County Sheriff's Deputy. This misconduct involved the abuse of asset forfeiture laws -- laws many law enforcement agencies seem to feel gives them permission to seize anything for any reason.

One deputy in particular is being singled out for his practice of pressuring travelers to abandon their money or face losing their cars as well. The I-Team has obtained exclusive dash-cam video from one of these drug interdiction stops. While no drugs were found, that didn't stop the deputy from grabbing the cash.

"How much money you got?" Humboldt County Deputy Lee Dove can be heard asking on the video.

The dash-cam video gives insight into what some say is a pattern of questionable drug interdiction stops by Deputy Dove along I-80 near Winnemucca in northern Nevada.

The out-of-state motorist was stopped for doing 78 mph in an 75 mph zone. Deputy Dove finds $50,000 cash and $10,000 in cashiers checks during a search of the car.

The driver, Tan Nguyen, maintained that he won the money in Las Vegas. Whether or not he did was something the deputy could have made an effort to ascertain, but instead he chose to go down the extortion route.

Deputy Dove: "Well, I'm gonna search that vehicle first, ok?"

Nguyen: "Hey, what's the reason you're searching my car?"

Deputy Dove: "Because I'm talking to you ... well, no, I don't have to explain that to you. I'm not going to explain that to you, but I am gonna put my drug dog on that (pointing to money). If my dog alerts, I'm seizing the money. You can try to get it back but you're not."

Nguyen: (inaudible) got it in Vegas."

Deputy Dove: "Good luck proving it. Good luck proving it. You'll burn it up in attorney fees before we give it back to you."

But Deputy Dove never put his drug dog to work (itself a very iffy practice that often relies on an officer claiming the dog "alerted" when it was, in fact, reacting to stimulus from the officer). Instead, he offered a very shady "deal." Nguyen was free to go if he turned over the cash. If not, Dove was going to seize the car and everything in it.

Dove has refused to speak about the incident, a decision at least partially guided by an ongoing investigation. The sheriff's department has admitted that proper procedures were not followed in a number of seizures, but that admission came after the fact. At the time of the seizure, the sheriff's office posted a photo of Dove with the cash, promoting the fact that the money would be used to help the sheriff's office fight crime. (This being crime located outside of the Sheriff's Department, apparently...)

But this statement seems to be little more than soothing words. Forfeitures are being filed at record rates in Humboldt County.

Twenty forfeiture cases — more than the previous four years combined — have been filed by the Humboldt County District Attorney's Office since March 14, the day the county announced settling two lawsuits over cash seizures that drew media scrutiny.

Of the 20 forfeiture cases filed since last month in Humboldt County District Court, more than four exceeded $10,000 and the majority were filed as a result of Humboldt County Sheriff's Office traffic stops, the county clerk said.

This has prompted one lawyer to consider filing a class action lawsuit. More news of Deputy Dove's pay-to-play "policy" has also surfaced as a result of Nguyen's case.

The class-action lawsuit, yet to be filed as of Wednesday, says Trevor Paine of Wisconsin was stopped for allegedly speeding 84 mph in a 75 mph zone in November.

According to the complaint, Humboldt County Sheriff Sgt. Lee Dove "forcibly searched" the vehicle with a police K-9 because the dog acted as if there were drugs in the car. Dove failed to find drugs, but took $11,000 in cash from a lockbox, the complaint says.

So, there's a clear pattern of abuse, and it looks as though the Sheriff is finally being forced to confront the issue. The bill for deputy misconduct was footed by the citizens, of course, which isn't much of a deterrent for misbehaving officers and those who employ them. And if the number of seizures being filed is any indication, there's a good chance the public will be footing the bill again in the near future.

Filed Under: cash, dash cam, extortion, humboldt county, lee dove, police, seizure

How The US Gov't Destroyed The Lives Of A Muslim American Man's Entire Family After He Refused To Become An Informant

from the disgusting dept

We recently wrote about a new lawsuit from some Muslim men, suing the US government after they were all placed on the no-fly list for refusing to become informants. Some of the stories were ridiculous, displaying just how aggressive and coercive the FBI has been in trying to force totally innocent people into becoming informants, even when they lack any actual connection to any terrorists or terrorist organizations. But those disgusting stories pale in comparison to a story reported by Nick Baumann at Mother Jones, in which it becomes quite clear that the US government wrecked the lives of multiple family members (mostly US citizens) after one American muslim man refused to become an informant.

You should read the full story of how it all came about, but through a series of events, the FBI came into contact with Naji Mansour, after his (perhaps naive) abundant display of hospitality resulted in two men associated with terror staying in his mother's house in Nairobi. His mother, an American woman from Rhode Island, worked for the US government (as a part of USAID). Eventually, the FBI appears to have realized that Naji had no real connection to the two men, but then they focused on doing everything possible to force him to become an informant. And when he refused, they basically set about to wreck his life, and then his family's lives. After refusing to become an informant, the family suddenly found it difficult to travel:

...the Mansour family headed to the Nairobi airport to fly to Uganda for a visit with Naji's ex-wife and their children. When Naji handed his passport to a security officer, she glanced at her computer screen, stared at him, and asked, "What did you do?" Kenyan security officers detained the family for several hours, releasing them just before their flight took off.

When the family returned five days later, Kenyan airport police questioned Naji again. "The deputy immigration officer said, 'We have nothing wrong with you, but we have a directive not to let you in,'" Naji recalled. Soon, Fogarty and Jones showed up at the airport. The FBI agent reiterated the US government's desire that Naji become an informant. Naji once again declined.

Another time, his mother stopped by the US Embassy in Kenya to add more pages to her passport -- only to have her passport seized. She was told it would only be returned if she met with the FBI agent who had been pushing to turn Naji into an informant. He asked her where Naji had moved to, because they had apparently lost track of him. The very next day, Naji, who had moved to Sudan, and his wife found themselves detained by Sudanese law enforcement:

So on Monday, June 29, Sandra sat down with FBI agent Mike Jones. "He asked, 'Where's Naji now?'" she recalled. "I said, 'He's with me in Juba.'"

The next morning, June 30, Naji and Nasreen—who had come to visit her husband in Juba while Sandra was in Nairobi looking after their children—were about to go out for breakfast when they noticed a man peering through the window. Naji opened the door to find two men in suits, sweating in the heat, with guns on their hips. "One of them looked like African James Bond," Naji told me. "And I say, 'Yes, hello?' And they're like, 'Naji Mansour?' and I'm like, 'Yes.' And they just came in." The agents of the South Sudan Security Bureau asked Naji to bring Nasreen out, and then they took the couple's phones and laptops and hustled them into separate unmarked cars.

His wife was detained for over a week -- never charged with anything and then finally released. Naji was held for over a month. In the middle of his detention, a US State Department official suddenly showed up and told him he should meet with the same FBI agent, Mike Jones, who had been trying to recruit him as an informant. When Naji agreed, Jones immediately walked in with another FBI agent. They demanded some "useful info" to help him get released. He tried to come up with any information he could think of, but the agents told him it was not enough, and then said "All right, Naji, good luck... I hope everything works out for you, buddy" and left.

After a month he was released. No explanation, no charges. A few months later, Jones asked to meet again, and Naji said he wanted to talk by phone first, leading to some calls that Naji recorded, in which Jones appears to directly threaten Naji's family while denying having anything to do with his detention. There's a lot in there (you can read the transcript at the link above), but it becomes clear that they're dragging his mother into this towards the end of the conversations:

Mike Jones [FBI]: As I said, Naji, you know, there's scrutiny on you, and that's not going to go away. There's scrutiny on your mom, she's a contractor with the embassy, that's not going to go away unless we sit down and get down to business. You don't want to come into the embassy, for good– you say for good reason, but meanwhile your mom is employed at the US consulate. So for you to say as an American, "I don't want to go into the embassy to meet with you, and there's a good reason for that." It's just, to us, it should have been done there. We did you a favor by agreeing to do it outside of the embassy, here, in this city. So, you know, Naji, there's really just not more I can say right now.

Naji Mansour: I'm even trying to decipher what you're trying to say right now.

MJ: What I'm trying to say is, you don't want to come into the embassy to do it. Fine. You know, I- we said we'd do it outside of the embassy. This isn't a, meeting hasn't been a priority to you. In fact, you haven't wanted to sit with us, since we've talked, since I've been back in country. Okay. You say you want to get things resolved. I say there's scrutiny on you. There's scrutiny on your mom. She's employed by the consulate, and yet you don't want, or she's employed at the consulate, through a contractor, and you're saying you don't want to come to the embassy, and there's a good reason for that. So I said meet us.

NM: Exactly. My position hasn’t changed. My position hasn't changed. The scrutiny on my mother has nothing to do with anything, unless you you're making a threat. And currently I told you the situation here, [Mike], that in this country I'm kind of like, have you heard of the expression that beggars are not choosers? I'm on contract. I'm on contract, so I'm not giving you any illegitimate excuse. While you're here, I've bent over backwards. And I really don't like your tone. I don't like your tone, [Mike]. I don't like your tone.

MJ: Naji–

NM: You have scrutiny on me for what? What do you have on me? You have nothing on me. I've done nothing. You cannot tell me…

MJ: Then let's sit down and talk about it.

Later in the call, Jones hands the phone over to another FBI agent (who also showed up in the Sudanese prison earlier), Peter Stone (a pseudonym), and Stone is much more direct about the threat:

PS: A series of events is going to be put into motion. And once you put it into motion, and honestly I, I'm out of it. I honestly do not care. I'm going home, you know I got a vacation to plan, I got this [inaudible] other kinda stuff, my life goes on. Yours might change. And it's not going, it might not be necessarily to your liking. But, this is what's going on, but the whole dodging, you're telling, oh, no, this time, that time, all that kind of stuff, frankly I don't believe it. And again, I really don't care. I'm getting ready to pack my bags and go. But when I go, when [Mike] goes, you know, that door closed on ya. A new chapter will open up for ya, and it's going to be a new chapter of your life, but you’re going to remember that this was the day where I could walked through that door, and ya didn't. But that's all I'm going to say, and I'm going to give you back to [Mike], and…

NM: No wait, hold up [Peter], you can't just…

PS: ...and you guys can say nah nah nah nah…

[crosstalk]

NM: That's a blatant threat, and you're going to put in your report that I, how are you? [crosstalk] That I don’t have an excuse to come, when I'm trying to frickin accommodate.

PS: Dude, dude, dude, no let me tell ya, I was not born yesterday. I haven't been doing this job since yesterday, okay? I know when somebody is yanking my chain. Okay? And I'm seeing...

NM: This ain't the states! This ain't the states!

PS: ... a major chain yank. Okay, this is not the first time, believe me. I've dealt with guys who've done that, and all that kind of stuff, and I've just learned, you know I've got a callus built up. I walk away. And then, whatever happens then, honestly, all I know is I can sleep at night knowing that every opportunity was given, you know, the guy decided not. I've helped people out, on the opposite side, people have been helped out tremendously, and that's something that I'm very proud of. People that were in deep shit, who are no longer in shit, and are living a good live, because I was there for them, and they took that door, they took the opportunity and walked through that door, man. And seriously, honestly, it's the same thing that's available to you. But again, you will remember this day, and you're gonna say, "Shit, I shoulda talked to these guys. And I shouldn't have been doing all excuses." If you didn't have any business going on today, or any kind of a things like that, you're gonna find how minuscule and worthless it was compared to this fork in the road, that you're about to take.

NM: What are you talking about? No, why don’t you come out and say it? Why'n't you come out and say what fork in the road are you talking about?

PS: Dude, I honestly don't care. I'm getting out of here. I don't care. Okay? And, you know, when I tell somebody, hey, you know what, if you cross the street without looking you're gonna get run over, that's not a threat. You know, that's advice. [crosstalk] You're about to cross the street without looking both ways...

NM: No.

PS: And I'm telling you, you know what You might get hit by a car—that is not a threat. That is a solid piece of advice. But you don't want to take it. But seriously I'm done, here's [Mike].

It's not too surprising (though no less disgusting) to see what happened next:

Four days later, on November 17, a State Department security officer visited the offices of Management Systems International in Juba. Sandra was fired the same day—less than a week after the company had renewed her contract for another year. She was told her position had been eliminated, but MSI posted the same job a month later. Stefanie Frease, one of Sandra's supervisors, told me the dismissal came at the behest of the US government.

"We all thought she was blackballed," said Inez Andrews, a former foreign-service officer working in the US compound in Juba at the time. "It's awful she hasn't been able to clear this up, that she's being held hostage to a system that was trying to extract information."

Later, his mother was blocked from returning to her own home in Nairobi, and told by an immigration official that it was because of the US government: "If the Americans don't want you here, you ain't coming in." And, then, of course, the US went after other members of Naji's family, including his siblings who are in the US military.

Other members of Naji's family have been targeted, too. In 2011, Naji's sister, Tahani, was detained at the Nairobi airport for three days. "I've heard, 'It's your people'"—that the US is behind her family's troubles with customs officials—"more times than I can count," she told me. "I go to airports now and there's this constant sense of trepidation. Am I gonna make it? Am I gonna get locked up again?"

"As a family we have always been mobile and traveling our whole lives, and as a result completely took it for granted," she told me. "The removal of the liberty to travel was crippling."

One of Naji's brothers says he is frequently questioned about Naji when he crosses an international border. The other, a Marine veteran based in Virginia, was visited by members of the Navy's criminal investigative service, who grilled him about Naji. The FBI even interviewed Naji's uncle and aging grandmother in Rhode Island in 2009.

"They didn't get to me, so they had to target my family," says Naji.

The story is horrific, but chillingly consistent with similar stories that we've heard about the way the FBI operates. Yes, it's important for the FBI to try to find out information about possible terrorists, but they seem to have no concern at all for wrecking the lives of totally innocent people in their pursuit of anyone. These are the kinds of activities that you hear about from authoritarian police states. It's the kind of thing that we were always taught the US doesn't do. Whether or not it was always a lie, it's clearly not the case today.

Filed Under: extortion, fbi, informants, muslims, naji mansour

Lawsuit Against First US Copyright Trolls For Extortion Ends In Victory

from the nicely-done dept

A few years ago, we wrote about how a guy named Dimitry Shirokov, with help from the law firm of Booth Sweet had taken on the "fathers" of copyright trolling in the US, Dunlap, Grubb & Weaver, who had formed an organization called US Copyright Group, which initiated the first round of mass copyright trolling in the US (before the likes of Prenda and others entered the space). Shirokov had tried to make his lawsuit a class action against the lawyers, claiming fraud and extortion. And while the class action part was unfortunately rejected, the case has ended with a victory for Shirokov, with the judge ordering DGW to pay $39,909.95 ($3,179.52 to Shirokov and the rest in attorneys' fees to Booth Sweet).

The money to Shirokov was a result of DGW basically caving (it has long since dropped its copyright trolling efforts), and offering to pay up to settle the case and close it out. The latest ruling was just about the attorneys' fees to pile on top. While Booth Sweet notes that the victory is bittersweet because they'd hoped for the class action to fly and because they'd sought a lot more in attorneys' fees, it is still a victory on the books against trolling, which hopefully will come in handy in other such cases.

Filed Under: copyright trolling, dimitry shirokov, dunlap, extortion, grubb, weaver
Companies: booth sweet, dunlap grubb and weaver, us copyright group

Berlin Law Firm Files Criminal Complaint Against Copyright Troll U+C Alleging Its Demand Letters Are Fraudulent

from the but-no-one-would-fight-being-accused-of-stealing-porn,-would-they? dept

German copyright troll Urmann + Colleagues' (U+C) pain is only just beginning. U+C misrepresented a streaming service as a file-sharing site to a German court in order to obtain subscriber info on thousands of German RedTube users. U+C then used this fraudulently-obtained data to send out collection letters to over 10,000 users, demanding a payment of $345 for copyright infringement.

Red flags were raised by a handful of German lawyers who noted that almost everything about U+C's actions bordered on illegal. At the very least, U+C couldn't demand payment for activity not considered to be infringement by the German courts. The backlash began there.

First, the court that had issued the 50 orders (covering thousands of IP addresses) revoked them after it became apparent that U+C had misrepresented RedTube's service. Then RedTube itself was granted an injunction forbidding U+C (and The Archive AG -- which apparently "owns" the copyright to the porn titles at the center of all this activity) from sending out further demand letters to its German users.

Now a Berlin law firm (MMR Müller Müller Rößner) has filed a criminal complaint against U+C, alleging fraud and blackmail. According to the firm, U+C payment demands were predicated on a false claim (that German RedTube users were liable for copyright infringement for viewing a streamed video). Under German law, nothing illegal had occurred, but U+C was obviously hoping ignorance of the law would net it some income from RedTube users. Roughly paraphrased (and even more roughly translated), the law firm accuses U+C of deploying a "grandson trick" -- a scam -- that preys on the gullible and ignorant, and leverages the underlying threat that their targets' porn-watching habits could be exposed if payment isn't prompt.

Additionally, the method that U+C used to obtain IP addresses still hasn't been adequately explained. Even if it did use a completely above-board method to harvest viewers' IP addresses, the way RedTube serves its streams makes proving who watched what video almost impossible.

Even more incredibly, U+C lawyer Thomas Urmann claimed earlier this month that it makes no difference if shady methods were used to obtain the IP addresses. According to him, it's "too late" to raise that objection seeing as the court had already ruled in U+C's favor by issuing the orders to release user data. Urmann is likely not feeling quite as confident now that the court has repealed its support and revoked the earlier orders, but it's still a bit discomfiting to hear a lawyer boldly claim that the ends justify the possibly illegal means.

Another law firm (Diehl & Partner) weighing in on U+C's misconduct wonders exactly what it plans to use as evidence should any of these cases go to court, considering the works under discussion were only streamed and not downloaded. Obviously, this question is almost entirely rhetorical. Demand letters sent on a massive scale are the business model, not the first step in a complex legal strategy. Here in the US, courts have become less and less willing to entertain copyright trolls' low-level extortion schemes. U+C's audacious (and possibly fraudulent) letter writing campaign will only hasten the development of an identical legal climate in Germany.

Filed Under: copyright, copyright trolls, extortion, fraud, germany
Companies: the archive ag, u+c, urmann + colleagues

Scumbag Revenge Porn Site Operator Arrested... But Many Of The Charges Are Very Problematic

from the bad-cases-make-bad-laws dept

A fair amount of attention has been paid to the announcement from Kamala Harris, the attorney general for California, that Kevin Bollaert, the operator of a revenge porn site, and corresponding "pay me to take down the revenge porn" site, has been arrested and charged with a variety of crimes, including extortion. Make no mistake about it: Bollaert is a scumbag and these revenge porn sites -- especially those with the extortionate concept of "pay us to take down those nude photos you never wanted posted in the first place" -- are highly problematic. But... as with all kinds of "highly problematic" activities, it all too often happens that law enforcement's zeal to take down the bad guy means they twist laws in dangerous ways that could have significant consequences for plenty of good sites. That appears to be the case here.

Again, Bollaert is a despicable person. A year ago, Adam Steinbaugh was one of the first to detail the nasty practices of "YouGotPosted" (or "UGotPosted") and the companion site "ChangeMyReputation." However, as Eric Goldman details, there are a bunch of dangerous problems with the charges that Harris filed against Bollaert, mainly in that many of them seem to blame him for the way users use the site -- something that the site is protected from under Section 230:

The other two asserted unlawful purposes are (1) online harassment per Penal Code 653m(b) (criminalizing “repeated contact by means of an electronic communication device”), and (2) the civil tort of public disclosure of private facts (citing a troubling precedent, In Re Rolando S.). Unlike the extortion claim, both allegations depend on the behavior of the website’s users. The complaint doesn’t allege that Bollaert himself made repeated contacts with victims using an electronic communication device, or that Bollaert himself disclosed anyone’s private facts. Instead, the complaint alleges that Bollaert ran a UGC website where users performed unlawful activities. But that’s exactly what UGC websites do: they let users publish content online for both good and evil. If we hold UGC website operators responsible for the fact that their users sometimes commit crimes, then all UGC website operators are criminals.

Fortunately, that’s not the law. In 1996, in 47 USC 230 (Section 230), Congress said that websites aren’t liable for third party content, even if the third party violates state criminal law. From my perspective, based on the allegations in the complaint and arrest warrant, the identity theft charges predicated on harassment and privacy violations appear to be preempted by Section 230

It's no secret that the various state attorneys general, including Harris, would love to wipe out Section 230. So perhaps she sees this as a chance to take a case so emotionally charged that she can get a favorable ruling. That's dangerous, since as Goldman notes, this would effectively wipe out Section 230 for many, many sites that allow user contributed content.

A second problem with the complaint is that it relies on an identity theft law used against Bollaert. But anyone looking at the situation would know right away that this isn't any kind of identity theft. Again, Goldman explains:

The crime asserted here, Penal Code 530.5(a), has two elements. First, the defendant must willfully obtain personal identifying information. Second, the defendant must use that information for an unlawful purpose.

When applied to actual identity theft, these elements make sense. If I steal your social security number and use it to obtain a credit card that I use to run up fraudulent charges, the two elements are clearly satisfied.

As applied to Bollaert, in contrast, the elements are confusing. (The criminal complaint, as typical for the genre, doesn’t explain how the law applies to the facts). How did Bollaert willfully obtain personal identifying information? He allegedly ran a UGC website where users could submit photos and personal information structured into standardized categories. It seems like this allegation would equally describe how all UGC websites “willfully” obtain content from their users.

The one area where the claim may actually make some sense is the extortion claim -- as that definitely seems questionable. However, once again, this can run into some problems. For example, you can see a perfectly legitimate service that charges some sort of processing fee to take down content that had been previously posted. Merely charging to remove content, by itself, shouldn't be seen as extortion. Hell, we've recently had comment spammers who apparently got punished by Google's search rankings email us about removing the comment spam they were able to sneak through our spam filters. When I mentioned how silly this was on Twitter, many people suggested that we should charge the spammers to remove their spam comments. That actually seems like a reasonable (if amusing) idea. But would that be extortion? Under the claims against Bollaert, it's possible that such an action would be considered the same thing -- but I doubt most people would think the request to spammers would be extortion (not that we've done it either way).

And that leaves this whole case in a tricky spot. Bollaert's site was a problem. What he was doing was despicable in so many ways it's almost difficult to keep track of them all. But, if the case is allowed against him, it's quite possible that very bad precedents will be set that lead to significant problems for tons of legitimate sites. As Goldman notes, however, there's a good chance it will never get this far. Bollaert almost certainly will take a plea deal, and Harris will get yet another headline about how she's protecting the citizens of California, even if her legal theories might undermine its economy -- and many of the sites that people around the globe enjoy.

Filed Under: california, extortion, identity theft, kamala harris, kevin bollaert, liability, revenge porn, section 230
Companies: changemyreputation, yougotposted

DailyDirt: Scams To Get Rich Quick

from the urls-we-dig-up dept

There are all kinds of ways to make a little bit of extra cash -- and some methods are more unsavory than others. Maybe you think you can convince a bunch of people to join your new multi-level marketing scheme. Or maybe you think you've outsmarted an insurance company with your own (better!) actuarial formula. Here are a few stories on the topic of making some easy money, as long as you don't mind being a bit of a sleazeball.

• Dmitry Argarkov didn't like the terms and conditions in a letter offering him a new credit card, so he modified the agreement, signed it, sent it back to the bank, and the bank accepted it and sent Argarkov a new credit card. According to Argarkov's terms, that card had a 0% interest rate, no fees and no limit -- and obviously there are pending lawsuits over this agreement. [url]
• An extortion scheme that seems to work: step 1 -- publish public domain mugshots, step 2 -- ask for money to stop publishing aforementioned mugshots, step 3 -- profit. States like Florida seem to make it pretty easy to obtain mugshots... (so don't get arrested in Florida!) [url]
• Billionaire oilman T. Boone Pickens and 27 other wealthy individuals already had enough money to live comfortably, but rich people live longer than the average Joe -- and taking out a life insurance policy could be an interesting way to finance a significant endowment to Oklahoma State University. The 'Gift of a Lifetime' plan fell through, but Pickens is rich enough that he's covering the financial hit for the university. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: credit card, endowment, extortion, fraud, gift of a lifetime, life insurance, money, mugshots, oklahoma state university, plot, public domain, rich, scams, scheme, t boone pickens

Did Paul Duffy's Wife Admit That He Was Engaged In Interstate Extortion On Facebook?

from the oops,-did-i-say-that? dept

Paul Duffy, as many of you know, is one of the key players in the Prenda/Anti-Piracy Law Group game. In fact, he's "officially" the only named partner of Prenda -- though others have argued that it's really John Steele and Paul Hansmeier pulling Duffy's strings. Either way, Duffy might want to have a talk with his wife. As some folks noticed, late on Monday, his wife, Shari Duffy made a post on Facebook (since deleted) about her husband's activities, in which she lashes out at those who have pointed out that he's engaged in what various courts have now called a "fraud on the court" by calling them "the worst kinds of thieves imaginable." But, the key thing is the final line of her comment: If you can't read the full text, here it is:

Here's a fun fact...my husband sues people for pirating porn and the phone companies for putting it in the hands of people under 18...the men caught really hate his firm and have tried to harm him physically and financially, but they are the worst kind of thieves imaginable and shame on all the mobile carriers for allowing people to move X rated material to the hands of minors. Someone we know paid an undisclosed amount to settle a case so that we would not release his name to the public.

It's worth pointing out that the folks involved in various trolling efforts have generally bent over backwards to avoid saying that they're getting people to pay them to avoid being named, because, you know, that's illegal. As former federal prosecutor, Ken "Popehat" White notes, this "sounds like a confession of interstate extortion to me." And remember that Judge Wright, in the Southern District of California, has already claimed that Duffy's actions (along with Steele and Hansmeier) should be investigated by the US Attorneys for racketeering -- and extortion is generally a key part of many racketeering schemes.

I'm no expert on extortion law, so for those who are, please weigh in, but it seems like 18 USC 875(d) might be particularly relevant here:

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

Admitting that the person paid up to avoid being named, and not because of any merit in the accusations seems to be a pretty clear admission to violating that law. We've heard of stupid criminals getting rung up for their own social networking posts, but how about their wives "bragging" about their actions and admitting to federal crimes in the process?

And, of course, not that it needs to be said, but while perhaps some of the people speaking out against Duffy and his firm were caught in his scheme to get people to pay up, many of us have never been involved or accused of infringement, and are speaking out because we think his actions are an abuse of the legal system to shake people down for money -- pretty much exactly as Shari perhaps inadvertently admitted.

Filed Under: admissions, extortion, facebook, paul duffy, shari duffy, trolling
Companies: anti-piracy law group, prenda, prenda law

Pure Scamming Copyright Troll Implies It's A Gov't Agency And That You Will Face Jail Time If You Don't Pay Up

from the wow dept

We've seen some pretty brazen copyright trolling efforts lately, but this latest one may be the most extreme. FightCopyrightTrolls has the story of the "Internet Copyright Law Enforcement Agency," which has some features like a normal copyright troll, and some that go way, way beyond trolling to out and out fraud. I will note, however, that as I was writing this article, it appears that whoever is behind this bit of fraud has apparently decided to run away. The ICLEA website now states:

Important Notice

Effective immediately, the Internet Copyright Law Enforcement Agency has ceased operations. Please disregard any notices you received from us, and please do not send us any payments.

Here's what the website looks like as I type this: And here's what it looked like a few hours ago: But, let's explore just a bit of what they were doing before FCT exposed them. First off, by both the name and the terminology they clearly were implying to people that they were a government agency rather than a private company. The name itself -- incorporating both "law enforcement" and "agency" implied as much. They used a seal that one might incorrectly interpret to be a law enforcement shield. They also were using a virtual office space based in Washington DC, not far from many federal buildings. Originally, their website claimed that they were

... an international organization that helps to enforce copyright laws on the internet worldwide by informing potential copyright law violators regarding the serious possible criminal and/or civil liability they may face, and providing them with an opportunity to help them comply with copyright laws.

In the letters they sent out, they went even further, claiming:

We work with law enforcement agencies and strategic partners around the world to enforce copyright laws, and to help prosecute individuals and companies who violate these laws.

Also, the letter repeatedly suggests that individuals may face criminal charges for merely downloading a song. The letter (which we've reproduced below) does correctly call out the section of copyright law that highlights criminal penalties, but conveniently leaves out the part that defines what qualifies for criminal enforcement. Oh, and the fact that a private bogus company pretending to be a government agency can't bring criminal charges.

Like all trolls, they demand payment to "avoid further action from being taken against you." From a quick search online, it appears that a bunch of people started receiving these letters in the last week or so, with varying amounts being demanded (generally between $300 and $500, it appears), and with payment being required by March 1st. One hopes that no one actually paid up, though it's likely that some did.

Again, the full letter is below, and even with the company claiming that it has now "ceased operations," some questions remain. It's not at all clear who was behind this. The letters come from a "David Walsh," though it's anybody's guess as to the person's real name. The office, again, was a virtual office, so the person behind this could be anywhere. What's not clear is how they got the information about specific downloads which it could use to accuse people. There are a few different theories floating around, but until there's more proof one way or the other, it remains pure speculation.

Either way, it seems pretty clear that this has gone beyond your everyday copyright troll. While they often go pretty close to the line of "extortion," they can at least claim some marginal legitimacy by actually representing copyright holders. With the ICLEA, that doesn't appear to be true at all. They're misrepresenting who they are, and demanding cash to avoid possible incarceration (which they can't do). It seems like that likely violates all sorts of laws having to do with fraud and extortion. So, whoever is behind this, while they may have chosen to misrepresent criminal copyright law, they might want to spend some time familiarizing themselves with criminal law in other contexts.

Of course, while the DOJ and ICE keep claiming that they're so focused on "criminal" copyright issues these days, one wonders if they'll spend any time or effort to go after the folks behind this actual scam. Or, do they only go after sites that Hollywood doesn't like?

Either way, we've posted the text of one of the letters below to show just how over the top the claims were.

Filed Under: copyright troll, extortion, fraud, scam
Companies: internet copyright law enforcement agency