Supreme Court Leaves Troubling CFAA Rulings In Place: Sharing Passwords Can Be Criminal Hacking

from the congress-fix-this-shit dept

For many, many years now, we've talked about problems with the CFAA -- the Computer Fraud & Abuse Act -- which was passed in Congress in the 1980s in response to the Hollywood movie War Games (seriously). It was a messed up moral panic back then, and over the years it's been abused widely in both civil and criminal cases to define almost anything as hacking. Over the past few years we've been following two cases in particular related to the CFAA: the David Nosal case and the Power.com case. Both involved fairly twisted interpretations of the CFAA -- and, unfortunately, the 9th Circuit found both to be okay. And, unfortunately, this week, the Supreme Court declined to review both cases, meaning they remain good (if stupid) law in the 9th Circuit (which will likely influence cases elsewhere).

I won't go into all of the background in both cases, but the super short version is that under the Facebook v. Power ruling, it's a CFAA violation for a service to access a website -- even if at the request of users -- if the website has sent a cease-and-desist. That shouldn't be seen as hacking, but the court said it's "unauthorized access." Power was a service that tried to help consolidate different social networks into a single user interface for users -- and lots of people found that valuable and signed up for the service. But, Facebook didn't like it and sent a cease-and-desist to Power. Power figured that since users were asking it to continue and they were the ones who had the accounts, it was okay to continue. The court, unfortunately, claimed that it was a CFAA violation -- the equivalent of "hacking" into a system (despite having legit credentials) just because of the cease-and-desist.

In the Nosal case, the court said that merely sharing your passwords can be a CFAA violation. In that case a guy looking to compete with his old firm had someone still there share a password so he could log in and get customer info. That may be unethical and problematic -- but should it be the equivalent of computer hacking? While the 9th Circuit had rejected an even broader interpretation of the CFAA that would say merely violating a terms of service became "unauthorized access" it said okay to the password sharing one.

There was some hope that the Supreme Court would hear these cases and explain that these rulings stretched the CFAA to dangerous degrees. Unfortunately, that's not the case.

And so we're back where we've been for a few decades now: talking about why Congress needs to reform the CFAA and fix these problems that leave the law wide open to abuse -- especially in an era where so many people use dozens of services, and sometimes do things like share passwords or ask others to log into sites for them. These should never be seen as "hacking" violations, but in the 9th Circuit, they are.

Filed Under: cease & desist, cfaa, david nosal, passwords, scotus, supreme court
Companies: facebook, power

Clinton Campaign Also Not A Fan Of Free Speech: Sends Legal Threat Letters Over Trump Ads

from the oh-please dept

If there's one thing that the two major Presidential candidates seem to agree on it's that we have too much free speech and all you First Amendment whiners should quiet down. Just this morning, we wrote about Trump threatening a documentary filmmaker with a cease & desist letter (the latest in a fairly long list of defamation threat letters). And it appears that the Clinton campaign is also ramping up its similar legal threat letter business.

Last week, it sent cease & desist letters to broadcasters in Florida who were airing Trump ads that used some footage of Michelle Obama back in the 2008 campaign taking something of a swipe at Clinton. And, just today, the campaign supposedly sent out cease & desist letters to broadcasters airing new Trump ads claiming that Clinton is "under investigation by the FBI."

The letter lists some pro-Trump PACs, including Rebuilding America Now and Future 45, and the titles of ads they are funding.

Elias' letter says that "at no point" did the FBI "reopen" the investigation into Hillary Clinton's emails.

Uh, yeah, there's no way in hell that's defamation. Yes, it's inaccurate to say that the FBI "reopened" its investigation, because technically the investigation never closed. But it's perfectly accurate to say that the FBI was investigating things related to Clinton's emails. There's no way in hell that the difference between continuing an investigation and "reopening" an investigation reaches the level of "actual malice" needed to satisfy a defamation claim. And, no, the fact that Comey said that there's nothing new in the emails doesn't change the analysis here. Especially in a political ad, some amount of rhetorical hyperbole is to be expected.

Yes, I know this campaign has been pretty bitterly fought by both sides, and a month ago, Trump threatened to sue Clinton over her campaign ads, but both of them are full of shit, and are blatantly misrepresenting or ignoring how the First Amendment protects speech, including the speech in their opponents' TV ads.

Wouldn't it be nice if one of the two people who will win tomorrow actually respected the damn First Amendment?

Filed Under: campaign ads, cease & desist, defamation, donald trump, false light, first amendment, free speech, hillary clinton

There's Something Fishy With Katy Perry's Left Shark 3D Printing Takedown

from the you-can't-copyright-that dept

I spent this past Sunday spending time with my family and some friends not watching the Super Bowl, so I missed all the commercials and the exciting finish to the game... and the half-time show and the wonder that is the left shark. Still, I heard plenty about it on the internet because apparently the people I follow on Twitter couldn't get enough of the whole shark thing. If you were lucky enough to avoid it entirely, apparently Perry had some shark dancers, and the one on the left appeared to be somewhat... less coordinated than the right one (though Perry's team now claims that the choreography went off exactly as planned).

Either way, the left shark has become a thing. And, so, of course, someone had to go make a 3D printable version of it -- and uploaded plans to Shapeways. Well, until Perry's lawyers stepped in and said nuh uh. Her big time lawyers are claiming that the plans violate Perry's copyright and demanded that Shapeways cease and desist, and provide a "full accounting" of any money they made from it.

Our client recently has learned that you have been involved in the manufacture, sale, marketing and distribution of merchandise featuring a shark sculpture which embodies and uses the IP, and that you have displayed this product on your website, www.shapeways.com, in connection with such sale and distribution.

As you are undoubtedly aware, our client never consented to your use of its copyrighted work and IP, nor did our client consent to the sale of the infringing product. Your unauthorized display and sale of this product infringes our client's exclusive rights in numerous ways, including, but not limited to, infringement of our client's exclusive rights to reproduce, display, and distribute its copyrighted images under the United States Copyright Act as set forth in 17 U.S.C. §106.

Your infringing conduct entitles our client to significant legal relief against you, which may include actual damages, statutory damages, and punitive damages, as well as immediate and permanent injunctive relief.

Shapeways has apparently consented, but it's worth noting that almost all of the above is a bunch of hogwash. As law profess Chris Sprigman pointed out, a shark costume is almost certainly a "useful article" and thus, is not subject to copyright protection:

For purposes of copyright registration, fanciful costumes will be treated as useful articles. Costumes serve a dual purpose of clothing the body and portraying their appearance. Since clothing the body serves as a useful function, costumes fall within the literal defdtion of useful article. In addition. the case law consistently treats I costumes as useful articles, and a Copyright Office decision to differ substantially from these court decisions would appear difficult to justify.

But, for now the files have been taken down, because, really is it worth a lawsuit over the left shark?

We've been pointing out for years that there are going to be a number of intellectual property questions raised by 3D printing. And while this one isn't particularly deep in terms of raising new issues of law, considering it some bizarre foreshadowing of legal disputes to come.

Filed Under: 3d printing, cease & desist, copyright, katy perry, left shark, takedowns, useful articles
Companies: shapeways

Photographer Sends C&D To Something Awful Over Photo 'Shopped To Add A Butt To A Bird

from the this-should-be-low-key-and-uneventful dept

The internet is filled with meritless cease and desist letters. Some are simply obeyed because people see legal letterhead and panic. Others are fought more vigorously, much to the dismay of those sending the C&Ds, as the fallout is almost always completely negative.

Some C&Ds are just sent to the wrong people -- people whose primary plane of existence is the internet. These are the worst of all (for the senders). It's perhaps too much to ask that lawyers and their clients do a little research before firing off a cease and desist letter. But a little knowledge goes a long way. You may think you're just smacking down some clueless IP "thief," when in all reality, you're jabbing a stick into a hornet's nest, along with most of your arm.

Richard "Lowtax" Kyanka of Something Awful just received a C&D (posted below) from an IP law firm representing photographer Mia McPherson. Those of you familiar with Something Awful will be familiar with its feature, Photoshop Phriday, which is a weekly collection of themed image manipulations.

Those of you familiar with Something Awful's response to legal action will recall the utter destruction of cartoonist Donna Barstow, who claimed the site "stole" her cartoons. The cartoons in questions were posted in a forum dedicated to the commentary on political cartoons. As such, the posting of the cartoons is considered fair use. This didn't stop Barstow from wandering all over the internet digging holes for herself, making a lot of noise about copyright and theft, while ignoring the fair use aspects staring her directly in the face.

This promises to be no different. Even if Something Awful's case might be a little weaker than its joust with Donna Barstow, there's no indication that it will let this C&D slide by without extensive comment.

Here's the text of the C&D (also embedded below).

Dear Mr. Kyanka:

We represent Mia McPherson with respect to certain intellectual property matters. Ms. McPherson is a wildlife photographer located in the Salt Lake City area. Recently we viewed your website at http://www.somethingawful.com/photoshop-phriday/put-butts-things/4/ and were surprised to see one of Ms. McPherson's photographs in an article entitled Put Butts on Things! by Andrew "Garbage Day" Miller. Ms. McPherson's photograph had been altered to remove her copyright notice and a butt was placed over the red-tailed hawks face. A copy of infringing image is attached hereto. Also attached, is a copy of Ms. McPherson's photograph including the copyright notice.

Ms. McPherson is very selective as to those who are allowed to use her photographs and she has not approved of the use of any of her photographs on your website. The unauthorized use of our client's photographs constitutes copyright infringement pursuant to 17 U.S.C. §§ 101 et seq. Pursuant to the Copyright Act, Ms. McPherson is entitled to damages for the infringement. Moreover, removal of her copyright notice is a violation of 17 U.S.C. § 1202.

To resolve this matter amicably, we must demand that you remove the infringing material 'from the website immediately. Additionally, we must also demand that you provide compensation to Ms. McPherson in the amount of $1,250.00 per infringing photograph, plus $2,500.00 as the statutory minimum for the removal of Ms. McPherson's copyright notice.

Additionally, we will require a written agreement wherein you agree not to copy any of her photographs in the future without her express written consent. Additionally, please consider this letter a demand for an evidentiary hold on all documents, whether in hard or electronic form relating to the above-referenced website and the use of Ms. McPherson's photographs. Any destruction of evidence after the date of this letter will be judicially pursued with a request for sanctions and all other remedies agreed to by the Court.

We look forward to your response within 10 days of the date of this letter. Should you wish to discuss this with me please contact me directly.

First off, while Something Awful may be hosting the image, it was submitted by another user. This isn't quite the same as posting an image in the forums (where it's hosted by a third party service). Something Awful staff actually have to upload the image themselves to the website, which likely decreases any protections it might have under the DMCA's safe harbor provisions.

The removal of the image probably wouldn't have been a problem (although I imagine SA would still have fought that demand on principle), but the IP firm and the photographer are pursuing damages. One has to wonder how exactly a butt photoshopped onto a photo by someone else diminishes the market for the original, but that sort of questioning gets you nowhere. Fortunately, the law firm chose not to employ the exaggerated (and often, just plain wrong) verbiage Mia McPherson does when discussing infringement.

McPherson obviously has a problem with people "stealing" her photos. She has an entire section dedicated to copyright infringement at her studio's website. She also has a problem with anyone altering her photos. A long post dealing with a redditor who makes "animal mashups" for fun contains these sort of phrases. (Link to photo she's discussing here, which I had to pull from the page's coding itself -- right-click is disabled everywhere.)

Why did I feel punched in the gut? Look carefully at my Short-eared Owl image, notice any thing odd about the face? The quality of the background? I sat at my screen fuming because some person had taken MY image without my permission and digitally manipulated it. What this copyright infringer has done is illegally create what is called a “derivative work“. This is what the U.S. Copyright Office has to say about derivative works:

"How much do I have to change in order to claim copyright in someone else’s work?

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another’s work, no matter how much you change it, unless you have the owner’s consent."

While Arne Olav (the redditor who created the animal mashup) definitely used McPherson's photo without permission, he made no claim to the copyright nor did he preemptively declare it a derivative work. As McPherson notes, he didn't even strip out her watermark.

She then hunted down the original photo of the second animal combined with her photo of an owl (a baby tapir) and then makes this claim:

I won’t post the actual photo here because… well that would be a VIOLATION of copyright laws.

Well, except that it wouldn't. It would be used as part of her commentary on the "theft" of her photos and would be clearly utilized for illustrative purposes. She could have almost definitely used it, but she doesn't seem to recognize that fair use exists. Her photos' appearance anywhere else on the web is automatically assumed to be infringement (which she repeatedly calls "theft"). She continues:

Please bear in mind that Arne Olav flipped the image horizontally before he stole the head of the baby Tapir and mashed it up with my owl.

Flipped the image??!! The horror… Somehow this is presented as being equally as wrong as using the image without permission.

It's a good thing McPherson has hired an IP law firm to represent her, as she seems a bit clueless as to how Reddit actually works. (Speaking of hornets' nests you wouldn't want to be elbow-deep in…)

I will eventually send DMCA Takedown Notifications to Reddit to have the image removed from Arne Olav’s page there.

Arne Olav's "page" is actually a subreddit and, like every image on Reddit, his mashups are actually hosted at third-party hosts like imgur. So, while she could send a DMCA to Reddit, to block the link, it seems like going to the actual host would make more sense, if she's really so offended by such a use, and so determined to ignore the existence of fair use.

Back to the case at hand. Something Awful has been doing Photoshop Phriday for years, with a minimum of complaints from rights holders. (It's not as though there haven't been any, but the number of legal threats it has faced pales in comparison to the number of photos used.) This doesn't necessarily mean there's no infringement going on (although many of the submissions would fall under fair use) but that most right holders are either unaware this is happening or understand that it doesn't have a deleterious effect on their ability to sell their creations.

McPherson, however, sees the internet as nothing more than a den of thieves. Her post also points out that she's taking action against Pinterest and hates that site as much as she does Tumblr. (She's got something against Google as well, unsurprisingly.) According to Chilling Effects, McPherson has sent out 14 takedown requests since 2011, most of those routed to Blogger, but Chilling Effects is hardly comprehensive, and many sites do not pass their takedowns on to that site.

No doubt Something Awful's legal representation, Leonard J. Crabs, will post a highly entertaining and endlessly profane defense of the website's actions. If nothing else, SA's legal defense team (including the highly entertaining and endlessly profane Cliff Yablonski) can point to the recent legal decision that found a majority of Richard Prince's appropriation art to be protected by fair use. If Prince can paste a someone else's photo of a guitar across someone else's photo of a dreadlocked tribesman, then certainly someone can 'shop a butt across a bird's face.

Of course, fair use is still viewed as a defense rather than an assumed right. The stripping of McPherson's watermark can be problematic, but there would need to be some discovery directed towards when that happened (by the contributor or by SA itself) or if the watermark even was present on the "original" photo grabbed by "BaconButts" to use as the base for his/her Butts on Things! submission.

The only thing that can be said for certain is that this action won't portray McPherson in the best light. There will likely be a very negative reaction to her demand for $4,000 to cover the "damages" caused by a silly photoshopping of a bird with a butt for a face. No doubt this will simply confirm her prejudices about the internet in general.

Filed Under: cease & desist, copyright, damages, fair use, mia mcpherson, photoshop contest, something awful

Craigslist Continues To Be A Legal Bully When It Comes To Aggregators

from the disappointing dept

For the most part, the geek community seems to like Craigslist -- and for good reason. The company is a model of how to build up a massively successful company without "being evil." Most of the postings on the site still remain free, with a few exceptions -- and in the cases of those exceptions, it seems to almost always make sense to charge there. The company always seems focused on providing a good service to its community and generally supporting that community. The company also has made a name for itself by keeping marketers out, and focusing on engineering. On top of that, having dealt with folks there, they always seem pretty straightforward and genuine. I will admit my "bias" upfront here: I like Craigslist.

But the one thing that the company has done for years that still really strikes me as odd is how they lawyer up and go after others aggressively at times. There are a few areas where they do this, but the least defensible to me is when they go after sites that aggregate their listings and point people back to them. We first noted this more than six years ago, when Craigslist threatened a site for creating a universal search. Craigslist, itself, only let you search within a certain location, rather than globally. And because someone else did it, Craigslist pressured them to shut it down. It looks like that's still happening.

timlash points us to the news that the site Jaxed recently received a cease & desist and shut down its links to Craigslist's listings. The C&D apparently claimed that listing Craigslist results in its aggregated search results was a "misuse" of Craigslist, but I don't quite see how. I know that Craigslist hates anyone scraping their site, and claims that it uses up bandwidth and resources, but there are technical means to block such things, rather than breaking out the lawyers with dubious theories about how linking to a site is misuse of that site...

Filed Under: aggregation, cease & desist
Companies: craigslist, jaxed

'Geek Power': Best Buy Sends C&D To Newegg Over Marketing Campaign

from the oh-come-on dept

Ah, Best Buy. It's apparently decided to get into the trademark bullying business. The company sent well known online electronics retailer Newegg a cease & desist (shown below) because Newegg is running a marketing campaign called "Geek On" with the "O" in "On" made to look like a "power on" button. Best Buy claims that this is biting off its own Geek Squad logo, which similarly uses a power on button (though, with a tie): The shirt is Newegg. The callout is Best Buy. And, yes, they look nothing alike. No moron in a hurry is going to be confused here. To make it even more crazy, Best Buy, in true conspiracy theory mode, decides that Newegg is also violating its trademarks because of the following commercial, which pokes fun at Best Buy: Best Buy takes offense at all this and claims that it's trademark infringement:

The fake Best Buy employee is depicted as being slovenly and uninformed about computer products, in contrast to your employees who are portrayed as "experts."

Your misuse of our valuable trademarks and your negative portrayal of our employees violate our trademark rights and misleads consumers about our services, in violation of federal and state law. While we welcome fair competition, we cannot tolerate unfair competition that disparages our employees, confuses customers and damages our valuable trademarks and the goodwill associated with those marks. We take great pride in our employees and the high quality of customer service they offer and find your company's focus on our employees in this advertising campaign to be particularly offensive.

Of course, there are all sorts of problems with these claims. The logos looking nothing alike, as we've already discussed, but the whole thing about the TV ad is just ridiculous. There's clearly no trademark issue there, as competitors are absolutely allowed to poke fun at each other. No one is going to think that Best Buy "sponsored" the Newegg commercial. There's no consumer confusion at all. More amusingly, the fact that Best Buy thinks that Newegg is portraying Best Buy employees says a lot about how Best Buy views its own employees.

Of course, as many are pointing out, this whole thing has done the exact opposite of what Best Buy probably wanted. First, it's driven a ton of attention to Newegg's commercial, but more importantly, it's made Newegg supporters -- who are generally quite tech savvy -- really dislike Best Buy even more than they may have already. Newegg had posted the C&D letter on its Facebook page, and the response are almost universally anti-Best Buy: Perhaps next time Best Buy will think about the consequences of sending out such a bogus C&D before all of this happens.

Filed Under: cease & desist, geek squad, trademark
Companies: best buy, newegg

Spin Magazine Sends Cease & Desist To Twitter User @Spin

from the how-not-to-win-friends dept

Two and a half years ago, we wrote about the question of Twitter squatters and other likely fights about who gets to own what Twitter names, and pointed to a suggestion from lawyer Erik Heels that there needed to be a clear Twitter user name dispute resolution policy, similar to UDRP (Uniform Domain Name Dispute Resolution Policy) for domain names. To date, there still isn't anything quite like that, though Twitter often seems to take matters into its own hands if someone complains. However, apparently, Spin Magazine decided to bypass contacting Twitter directly and instead sent a cease & desist letter to the guy who had the @spin user name on Twitter, relegating Spin Magazine to using the dreaded @SpinMagazine (you can see the full cease & desist letter at ChillingEffects).

Spin Magazine tried to claim that there was "confusion" with Eric Rice's @spin account by pointing to tweets that were meant for the magazine, but were directed to Rice instead. Of course, I don't see how Spin Magazine would have any legal claim here, since Eric Rice is an individual and is unlikely to be using the Twitter account for commercial purposes. Honestly, Spin Magazine comes off looking pretty silly here, and could have just tried a friendly approach, rather than running to the lawyers. However, Rice claims that until the C&D showed up, he'd never heard from Spin Magazine, despite his using Twitter for years with the name. We see this kind of thing all the time with lawyers and clients who think breaking out the legal nastygrams is a good way to get people to cooperate. Perhaps the scare tactics work some of the time, but they have a high likelihood of backfiring badly, as well.

Filed Under: cease & desist, eric rice, spin, spin magazine, trademark
Companies: spin

NatWest Realizes It Screwed Up Sending Cease & Desist To Website Reviewing NatWest

from the nice-of-you-to-notice dept

UK bank NatWest apparently let its legal attack dogs off their leashes a bit prematurely recently, sending a nastygram cease & desist to a website that was merely reviewing different banks for students looking to open up bank accounts. This is the sort of thing that you might think NatWest would appreciate. Instead, it sent the C&D. Of course, once the press started asking questions, it appears that NatWest realized that perhaps it had made a mistake, and withdrew the legal request. Perhaps, in the future, they'll think before sending in the lawyers.

Filed Under: cease & desist, reviews
Companies: natwest

Did AT&T Really Threaten A Customer With Legal Action For Emailing Feedback To CEO? [Updated]

from the customer-service-hall-of-fame dept

You may have heard the stories recently that Steve Jobs seems to regularly respond directly to emails from customers -- often making certain points that he knows will be spread throughout the press. However, if you have a complaint about your iPhone, you can send it to Jobs, but apparently you shouldn't send it to AT&T's CEO, Randall Stephenson. Someone sent over the story of a guy named Giorgio, who was upset enough about the new data plans that he sent an email expressing his displeasure directly to Stephenson (whose address he apparently got from the Consumerist blog).

Now, to be clear, the email was a bit gripey, complaining about the new plans, and announcing his plans to switch to a different phone and different provider. In response, however, it appears he got a phone call from someone at AT&T telling him that if he emailed the CEO again, AT&T would issue a cease & desist against him. From the recording:

"I want to first thank you for the feedback. Going forward, I need to warn you that if you continue to send emails to Randall Stephenson, a cease & desist letter may be sent to you..."

For what? That's not explained. I can't think of any legal basis for such a cease & desist letter. Honestly, the whole thing seems so outrageous that you have to wonder if it's a hoax. If it turns out to be true (and please, please, someone tell us that this is a hoax) then it reflects incredibly poorly on AT&T.

Update: Well, now it's been confirmed by AT&T that they actually did make this threat. A PR person working for AT&T (but not an AT&T employee) contacted us with your typical bland PR statement, issuing an apology, and saying "this is not the way we want to treat customers." But it is how you treated your customer... and, notably, nowhere in the statement does the PR person explain why AT&T responded this way to a customer.

The full statement is:

We are apologizing to our customer. We're working with him today to address his questions and concerns. This is not the way we want to treat customers. From Facebook to significant customer service channels, AT&T strives to provide our customers with easy ways to have their questions addressed.

Filed Under: cease & desist, customer feedback, randall stephenson
Companies: at&t

W Korea Uses Demi Moore Photo... With A Different Hip -- So Which One Is Edited?

from the uh-oh dept

So you may recall that last week, the story spread about how Demi Moore's lawyers flipped out and sent ridiculous (laughably so) legal threats to a few blogs that were discussing whether or not Moore's photo on the cover of W magazine had been digitally retouched and, if so, how poor a job the retouching was. Most specifically, there was the point that her hip looked out of place. None of the conversation (which had mostly died out a month before Ms. Moore's lawyers got involved) suggested anything even remotely negative about Ms. Moore herself -- but about the potentially poor editing job on the photo itself.

Of course, once the story was pushed back into the news by Moore's lawyers, a second look at the evidence suggested quite clearly that the image had, in fact, been retouched (not that there's anything wrong with that). And, now, the story gets even more bizarre. Anthony Citrano, one of the bloggers being threatened by Moore's lawyers -- and who has (reasonably) demanded a complete retraction and apology from Moore's lawyers -- got in touch to let us know that the Korea edition of W magazine just happened to have fixed the hip problem on their cover version of the same photo.

As Citrano points out, this leads to one of two possibilities:

1. Citrano was correct all along that the version with the funky hip a bad image edit or...
2. By Moore's own lawyer's explanation, W in Korea had defamed Demi Moore by editing her image (which the lawyers insisted needed no editing)

Either way, at least one of those images was apparently edited, and Citrano's still waiting for that apology and retraction...

Filed Under: cease & desist, defamation, demi moore, photo editing, south korea