Copyright, trolls and the Internet

Goldenwest Customer Summit

How to deal with copyright infringement, the FBI, and Internet trolls and boost your bottom line at the same time.

David SneadAttorney + Counselor

dsnead.com

Cease and Desist LetterJuly 16, 2011Dear SirI am representing the proprietor(s) of all copyright in a web content/ personalcorrespondence/public presentations work originated by [Name]. It has come to ourattention that your web site contents located at example.com is publishing to Name’scopyrighted Work and personal information including email, home address andphone number. Permission was neither asked nor granted to reproduce The Work andthe content entitled to an injunction against the continued infringement, as well asttherefore constitutes infringement of Name’s rights. In terms of the CopyrightStatutes, Name is o recover damages from the infringing conduct.Further the site forum administrator and associated parties have engaged in conductof distributing harassing and libellous materials about Name and her family. Theyhave taken part of organized criminal harassment which resulted in endangering thelife and the welfare of a minor. This is to inform that this conduct is seriously harmfuland have resulted in the receipt of criminal threats of bodily harm to Name family.We demand that you assist us immediately This is written without prejudice toName’s rights, all of which are hereby expressly reserved. I am attaching below thelocation of the copyrighted work.


It has come to our attention that your web sitecontents located at example.com is publishing toName’s copyrighted Work and personal informationincluding email, home address and phone number.

In terms of the Copyright Statutes, Name is entitled to aninjunction against the continued infringement, as well asto recover damages from the infringing conduct.

This is to inform that this conduct is seriously harmful andhave resulted in the receipt of criminal threats of bodily harmto Name family.

We demand that you assist us immediately Thisis written without prejudice to Name’s rights,all of which are hereby expressly reserved. I amattaching below the location of the copyrightedwork.

Roadmap

• Where do you start?• Two legal issues you must understand• Addressing intellectual property• Sorting through threats• Creating businesses that work• Toolkit


It has come to our attention that your web sitecontents located at example.com is publishing toName’s copyrighted Work and personal informationincluding email, home address and phone number.

In terms of the Copyright Statutes, Name is entitled to aninjunction against the continued infringement, as well asto recover damages from the infringing conduct.

This is to inform that this conduct is seriously harmful andhave resulted in the receipt of criminal threats of bodily harmto Name family.

We demand that you assist us immediately Thisis written without prejudice to Name’s rights,all of which are hereby expressly reserved. I amattaching below the location of the copyrightedwork.

• Is this your customer?• What services?• Legal issues?

• Copyright infringement• Privacy issues • Speech torts• Criminal issues• Civil Damages

• Does DMCA apply?• What is the law in state? • Does CDA apply?• Is notification of LEA required?• Based on legal claims

Roadmap


DMCA • Register• Draft policy (OCILLA)• Post contact information• Check complaint

Trademark • Draft policy• Determine procedure up front• Understand differences between trademark and copyright• Look for trademark complaints in DMCA clothing

Other IP • Draft policy• Determine procedure up front• Determine whether CDA applies• Look for IP complaints in DMCA clothing

Communications Decency ActNo provider or user of an interactive computerservice shall be treated as the publisher orspeaker of any information by anotherinformation content provider

Conduit: provide or enable access:• merely a provider of bandwidth• do not edit, change or manipulate

customer’s content• do not review customer’s content

Roadmap


• Read the DMCA• Understand what “safe harbor” actually means• Designate an agent• Add all urls• Draft a policy. Implement the policy.• Understand challenges

Complaint:

Dear Madam or Sir:

I am the copyright owner of the photograph being infringed at:

http://www.yyy.com/

Prior to this email, I contacted the website owner, notified him of the infringement, and asked him to take the photo down. The photo is of me, and he insisted that I was a public figure, and as such, his posting of the photo constituted fair use.

I am not, however, a public figure. Additionally, he did not in any way modify the photo, nor did he simply link to the photo where he originally found it. Instead, he downloaded the photo from my own page, and reposted it wholesale in its original form, without permission and without any transformative work of his own.

Further, the use of this photo is on a blog for his website that promotes his writing career. Its purpose is clearly neither for education nor nonprofit.

Since, as I mentioned, he downloaded the photo and hosted it on his own website, on the servers he rents from you, I request that you remove the infringing material immediately, or take his website offline until he removes it himself.

I’ve noted that your terms of service on your site include the following, ‘You may submit comments and provide other content so long as the content is not obscene, illegal, threatening, or defamatory and so long as the content does not invade the privacy or infringe the intellectual property of a third party. ‘ If that applies to web hosting accounts, it seems to me that Mr. X has explicitly violated your terms of use as well.

I have good faith belief that Mr. X lacked permission to use my images and information in the manner which he has. All of the information provided above is accurate. I would appreciate immediate action on this issue.

Best,Michelle Smith 5570 Ridge Dr.Austin, TX (512) 555-1212

• Are the elements present?• The original content is located• The infringing content is located• Contact information is present• Good faith belief statement is present• Penalty of perjury statement is present• Signed

Complaint:

Dear Madam or Sir:

I am the copyright owner of the photograph being infringed at:

http://www.yyy.com/

Prior to this email, I contacted the website owner, notified him of the infringement, and asked him to take the photo down. The photo is of me, and he insisted that I was a public figure, and as such, his posting of the photo constituted fair use.

I am not, however, a public figure. Additionally, he did not in any way modify the photo, nor did he simply link to the photo where he originally found it. Instead, he downloaded the photo from my own page, and reposted it wholesale in its original form, without permission and without any transformative work of his own.

Further, the use of this photo is on a blog for his website that promotes his writing career. Its purpose is clearly neither for education nor nonprofit.

Since, as I mentioned, he downloaded the photo and hosted it on his own website, on the servers he rents from you, I request that you remove the infringing material immediately, or take his website offline until he removes it himself.

I’ve noted that your terms of service on your site include the following, ‘You may submit comments and provide other content so long as the content is not obscene, illegal, threatening, or defamatory and so long as the content does not invade the privacy or infringe the intellectual property of a third party. ‘ If that applies to web hosting accounts, it seems to me that Mr. X has explicitly violated your terms of use as well.

I have good faith belief that Mr. X lacked permission to use my images and information in the manner which he has. All of the information provided above is accurate. I would appreciate immediate action on this issue.


I am the copyright owner of the photograph being infringed at: http://www.example.com/infringement/

I have good faith belief that Mr. X lackedpermission to use my images and informationin the manner which he has. All of theinformation provided above is accurate.


• The original content is located• The infringing content is located• Contact information is present• Good faith belief statement is present• Penalty of perjury statement is present• Signed

• Ignorance of DMCA law and procedure• Resistance to compliance• Repeated DMCA complaints received• Repeat Infringers

Roadmap


Mr. Snead,

Our firm represents . Our client contracted with for hosting services and recently ended that contract as a result of your client's failure to provide services pursuant to the terms of the contract. As a result, starting on December 17, 2008, my client lost 6 days of business, had to incur additional expenses for the operation of his business and the expense of transferring his business to another hosting company. In addition, our client was informed by that no backups of my client's data were ever done and was told that its system was corrupted.

I spoke with the Billing Services manager yesterday who requested that I contact you.

My client is interested in resolving this matter in an expedient and amicable manner. Please contact me so that we may discuss these issues in further detail and hopefully resolve this matter to the satisfaction of both of our clients.

I look forward to hearing from you.

Mr. Snead,

Our firm represents . Our client contracted with for hosting services and recently ended that contract as a result of your client's failure to provide services pursuant to the terms of the contract. As a result, starting on December 17, 2008, my client lost 6 days of business, had to incur additional expenses for the operation of his business and the expense of transferring his business to another hosting company. In addition, our client was informed by that no backups of my client's data were ever done and was told that its system was corrupted.

I spoke with the Billing Services manager yesterday who requested that I contact you.

My client is interested in resolving this matter in an expedient and amicable manner. Please contact me so that we may discuss these issues in further detail and hopefully resolve this matter to the satisfaction of both of our clients.

I look forward to hearing from you.

In addition, our client was informed by that no backups of my client's data were ever done and was told that its system was corrupted.

your client's failure to provide services pursuant to the terms of the contract.

As a result, starting on December 17, 2008, my client lost 6 days of business, had to incur additional expenses for the operation of his business

• Customer email vs. letter from an attorney

• Customer email response options• Ignore it or Respond• If you respond, don’t admit anything

• Demand letter from an attorney• Threat may not be any more credible • Formal response from your attorney

Re: Your client, ServInt Corporation

Dear Mr. Snead:As mentioned in an earlier email, please find attached Plaintiff's Motion for Hearing . . . etc., and a proposed order for preservation of evidence.

You are being contacted, in your capacity as legal counsel for ServInt Corporation, because evidence on your client's server has already been destroyed in one instance and new false evidence created and planted in a second instance. Since Mr. Harris now has a history of tampering with evidence and of filing perjured statements in court, there is no basis for accepting on good will that he will obey even a court order to preserve the very evidence that might send him to prison.

It is believed that Rachael Ashe of Hop Studios was the technician who destroyed the first evidence and who designed and programmed the second, in both instances with intent to assist her employer/principal in committing a felony. If that belief is confirmed, meaning that Ms. Ashe may face prison time as well, it is reasonable to suppose that she will panic and start destroying as much evidence as possible.

In due course, I will get around to making necessary discoveries of logs and other historical data from ServInt server(s) hosting SamHarris.org and ReasonProject.org domains. Until then, the attached proposed order alerts your client to the kind of data that I will be looking for, especially logs and other histories that may show evidence of attempted destructive efforts by one or more persons associated with Mr. Harris.

Re: Your client, ServInt Corporation

Dear Mr. Snead:As mentioned in an earlier email, please find attached Plaintiff's Motion for Hearing . . . etc., and a proposed order for preservation of evidence.

You are being contacted, in your capacity as legal counsel for ServInt Corporation, because evidence on your client's server has already been destroyed in one instance and new false evidence created and planted in a second instance. Since Mr. Harris now has a history of tampering with evidence and of filing perjured statements in court, there is no basis for accepting on good will that he will obey even a court order to preserve the very evidence that might send him to prison.

It is believed that Rachael Ashe of Hop Studios was the technician who destroyed the first evidence and who designed and programmed the second, in both instances with intent to assist her employer/principal in committing a felony. If that belief is confirmed, meaning that Ms. Ashe may face prison time as well, it is reasonable to suppose that she will panic and start destroying as much evidence as possible.

In due course, I will get around to making necessary discoveries of logs and other historical data from ServInt server(s) hosting SamHarris.org and ReasonProject.org domains. Until then, the attached proposed order alerts your client to the kind of data that I will be looking for, especially logs and other histories that may show evidence of attempted destructive efforts by one or more persons associated with Mr. Harris.

please find attached Plaintiff's Motion for Hearing . . . etc., and a proposed order for preservation of evidence.

In due course, I will get around to making necessary discoveries of logs and other historical data from server(s) hosting .org and .org domains. Until then, the attached proposed order alerts your client to the kind of data that I will be looking for, especially logs and other histories that may show evidence of attempted destructive efforts by one or more persons associated with Mr. .

Roadmap


Nasty customers • Based on contracts• Determine procedure up front• Don’t rely on disclaimer of liability

Subpoenas and Warrants • Review, Verify, Schedule, Comply• Relationship with law enforcement

Nasty grams • Sniff test works best• Base analysis on facts• A letter from a lawyer isn’t scarier• Don’t rely on disclaimer of liability

Toolkit

Understand key laws: DMCA and CDA

Don’t turn a blind eye to your users’ conduct

Create a Terms of Service that works

Sort rhetoric from legally actionable language

W. David SneadAttorney + Counselor

[email protected] - Twitterdsnead.com/blog - Blog

Copyright, trolls and the Internet

Law

Transcript of Copyright, trolls and the Internet