Criss Angel Sends Ridiculous Legal Threat After Comedian Creates Parody Menu Of His Restaurant

from the that's-not-magical,-that's-being-a-censorial-asshole dept

Harrison Greenbaum is a comedian and (sometimes) magician, who noticed that the magician Criss Angel had opened a restaurant, named "CABLP" and hadn't registered the domain cablprestaurant.com. For whatever reason, the restaurant's actual website appears to be Eatblp.com, and so Greenbaum registered cablprestaurant.com and created a very obvious parody menu. I mean:

It took me way longer than it should to figure out that CABLP apparently stands for Criss Angel's Breakfast, Lunch & Pizza. Either way, this just seems like a bunch of nonsense, except that Criss Angel apparently is spending some of his very large fortune on hiring an actual intellectual property lawyer named Thomas Carulli from the law firm of KMA Zuckert to send a very bogus cease and desist letter to Greenbaum.

The letter is sillier than even I would have expected, claiming that the domain registration violates ICANN's policies.

Dear Mr. Greenbaum:

We are counsel to Criss Angel and his companies, including that which owns the CABLP Restaurant. In a social media posting you have publicly admitted that you intentionally are infringing our clients' trademarks and copyrights and are violating the Internet Corporation for Assigned Names and Numbers (ICANN) policies with which you and your domain name Registrar must comply.

Specifically, you admit that you illegally registered cablprestaurant.com as your domain name:

Criss Angel opened a restaurant this year called Cablp and forgot to register CablpRestaurant.com. I know this because, yesterday, I became the proud owner of CablpRestaurant.com.

I mean, even the most cursory glance by a lawyer of the caliber (and billing rate) of Thomas G. Carulli would note that this is not an admission of intentional infringement or "illegal" (WTF?) registration, but rather fairly obvious commentary in the form of parody, which is widely protected. And, because Carulli apparently couldn't be bothered to pull up the long history of case law on this, it is well documented that domain names making use of trademarked terms to comment on the trademark holder are very much protected. There are a bunch of cases on this (and many, many, failed attempts to use the UDRP process at WIPO to take away such domains), but a key one is Taubman v. Webfeats which makes it clear that using a trademark in a domain name for the purpose of commentary is protected speech and not infringement, so long as there is no confusion (which there clearly would not be here):

We find that Mishkoff's use of Taubman's mark in the domain name "taubmansucks.com" is purely an exhibition of Free Speech, and the Lanham Act is not invoked. And although economic damage might be an intended effect of Mishkoff's expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act.

There are other cases along these lines as well, and you would think that a lawyer like Carulli could have maybe asked an associate to rack up some billing time looking these up? I mean, unless the purpose was to send a bogus threat letter hoping that Greenbaum would be scared and back down.

It gets dumber.

You further admitted to setting up on your website a menu that is substantially similar to the actual CABLP menu.

If you think the menu above is "substantially similar" to the actual menu at Angel's restaurant, you may want to have your reading comprehension abilities checked carefully, because they're broken.

There's more nonsense in the letter, but it's so bad it made me pause to wonder if this were all an elaborate prank by Angel and Greenbaum together to try to let people know that Angel had actually opened a stupidly named restaurant... but, that seems too low for even Criss Angel.

Filed Under: criss angel, domain names, fair use, free speech, gripe sites, harrison greenbaum, parody, thomas carulli, trademark
Companies: cablp, kma zuckert

Government Moves To Seize All Backpage Assets Prior To Securing Convictions

from the civil-asset-forfeiture:-because-proving-your-case-takes-too-much-time dept

The DOJ rounded up the cast and crew from Backpage and threw a 93-count indictment at them. It did this prior to FOSTA's passage -- legislation portrayed as the only way the government could take sites like Backpage down. History is being rewritten to give FOSTA the credit for the Backpage takedown, but the truth is the government didn't need the legislation to target the site. Of course, for all the talk of sex trafficking, sex trafficking is not among the 93 charges the government brought against the site's personnel.

Now that it has Backpage execs facing criminal charges, the government is doing what it can to make sure they can't mount a solid defense. The government is coming after their money via civil asset forfeiture, hoping to lock up their property even if it can't lock up the Backpage site runners.

The complaint [PDF] -- titled "United States of America v. Various Internet Domain Names" -- claims everything the site's personnel owned was obtained through illegal activity, even if it's likely at least some of the assets are completely unrelated to Backpage's income. It also must be noted these assertions are being made prior to anything being proven in the DOJ's prosecution, but will receive far less scrutiny from the judge making the determination on the ultimate ownership of the property.

The complaint also contains a large amount of "surrendered" property, which was apparently handed over voluntarily after the arrest of Backpage execs. This list includes internet detritus such as domain names and bitcoin. There are millions of dollars at stake, scattered across multiple banks located around the world. The DOJ is busy consolidating its purloined fortune in advance of convictions.

This is a bullshit, but completely legal, tactic. In addition to depriving the accused of the finances needed to secure solid legal representation, it also forces them to fight a legal battle on two fronts. The money the defendants no longer have access to won't help them find top lawyers willing to take on the government in both criminal and civil actions.

In addition, the complaint plays small ball to hoover up funds from accounts in the names of Backpage execs' family members. Sure, the governments wants what's in joint accounts or those controlled by significant others, but the decision to empty personal checking accounts of what appear to be the children of the defendants seems unnecessarily punitive.

Here's what listed under Backpage co-founder James Larkin's seizable assets:

$278.73 seized from Bank of America account ‘8225 (“BA ‘8225 Funds” or “Account 22”), held in the name of Troy C. Larkin (“T. Larkin”)

$1,038.42 seized from Bank of America account ‘7054 (“BA ‘7054 Funds” or “Account 23”), held in the name Ramon Larkin (“R. Larkin”)

Then there's some questionable claims about the legality of certain expenditures. These allegations are made to shore up the government's seizure of all funds in certain accounts. The nefarious activities alleged include [re-reads complaint] paying for phone service, internet service, and site backup.

Plaintiff alleges that a substantial percentage of outgoing payments from Account 1 have been payments for the operation of Backpage.com. For example, between July and October 2017, funds were wired from Account 1, as following:

a. $570,530 to Verizon Digital Media Services in Los Angeles for services related to the Backpage.com website; and

b. $1,497 to “Backupify,” a company that provided data backup services for Backpage

Linking "Account 2" to "Account 1" -- supposedly as evidence of criminal activity -- the government finds money was moved around to… pay for internet service. The lead-up and denouement are unintentionally hilarious.

Funds from Account 2 were also used to promote and facilitate prostitution. For example:

a. On December 2, 2016, the Netherlands Account transferred $324,055.85 to Account 2;

b. On December 8, 2016, the Netherlands Account transferred $499,970.00 to Account 2;

c. On December 27, 2016, the Netherlands Account transferred $199,970.00 to Account 2; and

d. From March to December 2017, Account 2 paid over $9,000 to “Cox Communications,” an internet services company that Backpage used to facilitate its internet presence and promote its sale of prostitution advertising.

Whatever you may think about Backpage and its execs, you should not be applauding the government's decision to move forward with seizing assets before securing convictions and proving its case in court. This gives the government two shots at these funds -- via civil asset forfeiture and, if this fails but the government secures convictions, via criminal asset forfeiture post-trial.

It's a Congress-ordained scam -- one that separates people from the assets they need to fight criminal charges while they're still under the presumption of innocence. Civil asset forfeiture allows the government to declare inanimate objects "guilty" using a lower standard of proof and could conceivably allow the feds to keep every cent they seized even if the arrested Backpage execs are found innocent. And, while the government can drag out criminal proceedings for as long as it can get away with it, the clock starts ticking immediately on civil forfeiture, forcing defendants already tied up in one court to somehow find a way to fight the proceedings with limited time and funds.

Filed Under: civil asset forfeiture, doj, domain names, james larkin, phone service
Companies: backpage

Virginia Court Says Domain Names Are Not Property

from the so-can-they-be-seized? dept

There's an interesting blog post by Venkat Balasubramani about a little noticed ruling in Virginia from last year concerning a bankruptcy proceeding, which came to the conclusion that domain names are not property, but rather a contractual right. The ruling is somewhat specific to the bankruptcy context, but basically says that phone numbers and domain names are not really property:

Although the Fourth Circuit has not specifically addressed this issue, it is well-settled that the contours of the property interests assumed by the trustee are determined by state law.... Accordingly, Appellant cites the Virginia Supreme Court's relatively recent decision in Network Solutions, Inc. v. Umbro International, Inc. for the proposition that a judgment debtor has no property right in its telephone numbers and web address. In Network Solutions, the Virginia Supreme Court held that a web address and telephone number could not be garnished by a judgment creditor because the debtor lacked a property interest in them... (stating that "a domain name registrant acquires the contractual right to use a unique domain name for a specified period of time" and that a domain name is not personal property, but rather "the product of a contract for services").

In the absence of controlling Fourth Circuit precedent, this Court refers to Network Solutions to define a debtor's property interest in its web address and telephone numbers in Virginia. Although ACG argues that Network Solutions is distinguishable because it relates to a garnishment proceeding rather than a bankruptcy, the garnishment context does not change the Network Solutions court's holding that the use of a domain name is a "contractual right" that does "not exist separate and apart from [the provider]'s services that make the domain names operational Internet addresses." ... While telephone numbers and web addresses are important branding tools and certainly have value to those who use them, that subjective value does not equate to ownership under Virginia law. The Virginia Supreme Court confirmed in Network Solutions that neither telephone numbers nor domain names were wgarnishable personal property because "neither one exists separate from its respective service that created it." ... Therefore, because Virginia does not recognize an ownership interest in telephone numbers and web addresses, neither were property of Alexandria International's estate and neither were subject to sale by the trustee (nor would they be subject to sale in any future proceeding).

Venkat looks at what this means from a bankruptcy context and concludes probably not that much... But I'm wondering what it means when it comes to domain name seizures done by Homeland Security and its ICE division. Those were all based on laws concerning the ability to seize property supposedly used in the commission of a crime. Yet... if domains aren't property, can they be seized in this manner? While this ruling only applies to the state of Virginia, since .coms are registered via VeriSign, and VeriSign is based in Virginia, an argument can be made that all .coms are not "property" under this ruling. That, potentially, leads to a whole host of other problems, so I wouldn't jump to the conclusion that this is automatically a good thing. But it conceivably leads to another way for cites that are seized by the US government to fight back.

Filed Under: bankruptcy, domain names, property, virginia

ICANN's New Trademark 'Clearinghouse' Resembles Mobsters' 'Insurance' Program

from the nice-trademark-you've-got-here,-wouldn't-want-anything-to-happen-to-it dept

We've pointed out for years that ICANN's new "top level domains" programs often feel much more like a way to shake down trademark holders who feel the need to buy each and every new domain with their trademarked names, just to prevent anyone else from getting them. Now, ICANN has taken this a step further, streamlining the process by launching a "trademark clearinghouse" in which companies can register a trademark and get early access to "buy" all of the new top level domains with their mark before they reach the open market. Of course, "supporters" are pushing companies to join... and the pitch really does sound like your typical mob shakedown:

The clearinghouse "doesn't necessarily prevent trademark infringement or cybersquatting, but it does help trademark owners and brand owners somewhat in mitigating the damage that might occur," he added. "We've been telling brand owners it's not that expensive to protect themselves and they ought to do it."

I mean, paying the local mob boss "doesn't necessarily prevent anyone from breaking your windows, but it does help in mitigating the likelihood that damage might occur." And "it's not that expensive to protect yourself, so you ought to do it."

Filed Under: domain names, protection, tlds, trademark
Companies: icann

Anti-Piracy Group Demanding -- And Getting -- Domain Names From Torrent Sites

from the nice-little-site-you-have-there dept

Remember when Righthaven used to demand the URLs of sites it accused of infringement, based on nothing but wishful thinking? Apparently the UK "anti-piracy" group FACT has taken that to a new level, reaching out to numerous sites it believes are guilty of encouraging infringement, and asking them to hand over their sites... or face a lawsuit. This is only slightly nicer than having the government come in and seize the domains, but barely. Considering that FACT was the group that ran the privately funded lawsuit against SurfTheChannel's Anton Vickerman, it at least suggests that they might actually take various sites to court. And, in response, many sites are just handing over the domains. That's gotta be cheaper and easier than fighting, and that seems to be a lot of what FACT is banking on. Still, demanding a URL as a condition of not getting prosecuted really does seem like bullying activity that borders on extortion. You'd think that FACT would have better things to do these days than go after websites it doesn't like with expensive threats.

Filed Under: domain names, fact, threats, uk

ICANN Confirms That It's Going To Make It Easier For Governments To Seize Domains Around The Globe

from the not-cool,-icann dept

This just gets worse and worse. After pointing out that ICANN was missing a big (and important) opportunity by not speaking out against governments seizing domain names, we were disappointed to see ICANN release a white paper that was more of a how-to manual for governments on seizing domains. Now, Paul Keating points us to the depressing news that ICANN is now publicly saying that it will work more closely with governments around the world to help them seize and censor domains. The writeup is a little vague, but it says that seizing domains for copyright infringement was a "hot topic" at ICANN's recent meeting -- including promises from ICANN that it would work more closely with law enforcement around the globe and the various registrars to help law enforcement be more effective in censoring these websites. This is really unfortunate and once again highlights ICANN's uselessness in protecting the internet. Instead, it appears to be actively working against basic internet principles.

Filed Under: domain names, domain seizures, legality, seizures
Companies: icann

Rather Than Speaking Out Against Domain Seizures, ICANN Provides A 'How To' Manual

from the uh,-bad-decision dept

A couple weeks ago, we noted that with all of these questionable domain seizures going on, it was a shame that ICANN wasn't speaking out against such questionable abuses of the domain system. We thought its silence was a sign of its impotence to actually take a stand. Turns out we may have actually overestimated ICANN's willingness to stand up for the internet. You see, late last week it put out a "Thought Paper on Domain Seizures and Takedowns."

By "thought paper" -- they actually mean an instruction manual.

Seriously. The document is basically a step-by-step guide for government officials on how to seize, takedown and censor websites. It has sections like "guide for preparing domain name orders, seizures & takedowns" and "checklist of information to submit with a legal or regulatory action." This is exactly the opposite of what ICANN should be doing if it believes in preserving the basic structure and principles of the internet. But given ICANN's general incompetence, is it really any surprise that it's ending up on the wrong side of this issue, too?

Filed Under: domain names, domain seizures, legality, seizures
Companies: icann

US Government Admits It Has Seized Hundreds Of Domains Registered Outside The US

from the this-has-been-happening-for-a-while dept

After the US seized Bodog.com, we pointed to a writeup by EasyDNS that has created quite a stir, claiming that this was the first time that the US had seized a domain that was registered through a non-US registrar by going straight to the register (in this case VeriSign). But as we pointed out, that's simply untrue. Back in 2010 we wrote about how most of the federal government's domain seizures went directly to the register.

For whatever reason, more and more people keep picking up on the EasyDNS piece, including interesting questions about whether or not these seizures could be seen as declarations of war by seizing foreign property.

I'm glad that people are up in arms about this, but it's important to remember that this simply isn't new. In fact, the feds themselves seem bewildered by all these claims. In an interview with Wired, ICE spokesperson Nicole Navas admits that the government has seized approximately 750 domains this way, with the vast majority of them using foreign registrars:

Such seizures are becoming commonplace under the Obama administration. For example, the U.S. government program known as Operation in Our Sites acquires federal court orders to shutter sites it believes are hawking counterfeited goods, illegal sports streams and unauthorized movies and music. Navas said the U.S. government has seized 750 domain names, “most with foreign-based registrars.”

So, sure, speak up about this, but please, please recognize that this isn't new. It's been going on for at least three years. Hell, it's so common these days that PIR, who runs the .org register, has a dedicated page listing out all the domains they've handed over to the feds.

Filed Under: domain names, domain seizures, foreign domains, ice, jurisdiction, nicole navas, register, registrar
Companies: bodog, verisign

Brazilian Government Ordering Web Hosting Firms To Kill Domain Names They Don't Like

from the say-what-now? dept

A lawyer I know passed along a letter from the Brazilian government to Sedo, a company that helps sell domains and also hosts parked domains (on which it puts some advertising), demanding that it take down a domain that it did not like. The text of the email is included below, but there are plenty of troubling things about the demand. First, the URL in question was an .eu domain, meaning that I can't see how the Brazilian government has any authority whatsoever. The URL did, however, suggest that it involved porn content related to Brazil (in that it has the word Brazil in it, as well as another word/phrase suggesting porn). Brazil could not like the fact that people have registered domains about Brazilian pornography, but I don't see how that gives the country any authority whatsoever to demand the domain be taken offline completely. And, yet, according to the letter:

The registration and use of this domain name may lead users to believe that Brazil is a tourist attraction and pole of sexual activities, which interferes on the position and image of the country.

Moreover, websites with pornographic contents on the Internet that makes direct and/or indirectly mention to the characteristics related with the Brazilian identity, such as colors of the flag, culture pictures and images of cities, sets as a crime, punishable by the Brazilian Penal Code, Federal Law n. 9.279/1996:

The letter goes on to talk about child porn and how heinous it is -- but nothing in the domain, in any way, suggests child porn. It could pretty clearly be used for a legitimate adult porn website, but not child pornography. But the Brazilian government is having nothing of it, demanding that it be taken down:

Through this letter, the Ministry of Tourism of Brazil requests that you provide a written assurance within the next seven (7) days that you will:

1. Immediately discontinue any and all use of the domain(s)

2. Immediately and permanently refrain from any use of the term that associates Brazil to the pornography on the Internet;

3. Remove any and all pornographic content or dissociate it with the Brazilian Identity or Brazil.

This seems like a pretty big overreach by the Brazilian government on an issue that it has absolutely no jurisdiction over. Sedo did take down the site, but upon being contacted agreed to put it back up. I spoke to Jeremiah Johnston at Sedo who explained the company's policy on these issues -- noting that dealing with multiple geographies makes this quite a challenge, because they have to judge both legal and business issues in determining how to respond, and the company strives to be as transparent as possible. In the end, it uses a kind of notice-and-takedown system, as it did here, where it agrees to take down the domain, but alerts the domain holders and reviews the situation if people complain (as happened here). The Brazilian request was apparently a rather large request hitting on a bunch of different domain names, many of which were not .br domains, but some of which implied activity that was illegal -- and so Sedo had no problem taking those down. The issue here was that this domain got swept up in that effort. I still tend to think that the general request from Brazil was a pretty broad overreach itself, and worry about going after domain names simply for being domain names. The content on those sites may be a different issue, but in this case we were talking about domains for sale and/or parked domains, so it's not clear how much of a complaint Brazil really had.

Filed Under: brazil, domain names
Companies: sedo

ICANN Sued Over .xxx; Porn Company Points Out That It's A Pure Money Grab

from the moneygrab.xxx dept

With .xxx domains now available, we've noted how organizations were snapping them up not because they want to create porn websites, but because they don't want porn sites under their name. Of course, that just highlights the key problem with any new TLD: they become a total cash grab by ICANN and whoever manages the TLD. It's even worse with .xxx, since many organizations feel they need to grab their brands on that to prevent any connection to porn.

Even worse, it appears that the registrar handling .xxx, ICM recognizes this and is even advertising with that in mind:

When the sellers of .xxx domain names put them on sale last week, they did not address their marketing campaigns just to adult content owners. Instead, they ran ads with headlines like ".XXX LANDRUSH IS NOW OPEN. PROTECT YOUR BRAND" or "SECURE YOUR DOMAIN. PROTECT YOUR REPUTATION," By heeding their warnings, brands, universities, and individuals flocked to the sites of domain name sellers and bought up tens of thousands of names, at about $200 per name. According to press reports, more than 70,000 applications have been received since the doors opened, netting sellers more than $15 million barely out of the gate.

Basically, the company admits that this is a borderline shakedown: if you want to "protect" yourself from someone building a porn site with your brand, pay up.

The whole thing appears to have angered online porn giant Manwin Licensing International, who is now suing ICANN and ICM saying that the whole thing is about "monopolistic conduct, price gouging, and anticompetitive and unfair practices." I would imagine that in any such lawsuit, ICM's advertising practices around the "buy up or else" won't look too good...

Filed Under: .xxx, antitrust, domain names, tlds
Companies: icann, icm, manwin licensing