Monthly Archives: June 2012

Is Canada’s Proposed New Online Intellectual Property Law C-11 the Same as SOPA?

Canadian copyright act c-11
Is Canada’s new online copyright bill, C-11, similar to SOPA?

The Canadian House of Commons passed the Copyright Modernization Act (a.k.a. C-11) by a vote of 158-135. Like all current-day online copyright statutes, C-11 has its fair share of detractors. But Canada’s new online intellectual property bill did manage to get a lot of things right, with only one glaring dark spot.

The Long And Winding Road Of Online Copyright Legislation In Canada

Like their cousins to the south, Canadian legislators have been drafting and striking down online intellectual property laws for the past 15 years. But it looks like they may have settled on C-11, which does feature some impressive consumer protections. According to an industry Minister Christian Paradis, who was involved with copyright legislation, C-11 has “struck the right balance” and “will help Canadian creators and innovators to compete and contribute to attracting foreign investment to Canada, while ensuring that consumers, educators and users will have new protections that will give them full opportunity to engage in their digital world.”

C-11: The Good Points

Before we explore C-11’s glaring bad point, let’s discuss the laudable aspects. In addition to extended leeway granted to educational institutions, the new Copyright Modernization Act also:

  1. Extends “fair dealing (fair use)” provisions to include exceptions for parody and satire;
  2. Contains new back-up, format- and time-shifting rules that allow for greater operability of networked DVR systems and online television services;
  3. Explicit copyright exceptions for user-generated content that go a long way in protecting non-commercial “fan art” and “remixes”;
  4. Caps statutory damages for non-commercial infringement at $5,000;
  5. Features a notice-and-notice system as opposed to a notice-and-takedown system.

C-11: The Big Bad Digital Locks Provision

I keep mentioning this “dark spot” on C-11. What is it? The bill’s digital locks provision. Fiercely opposed by members of the Liberal and NDP parties, the digital locks provision in C-11 will essentially make it illegal for users to “rip” a CD they bought and upload it to their iPods. How so? Technically the law makes all breaking of “cyber locks” inherently illegal. As such, if a CD includes copying safeguards, using a piece of software to circumvent those measures will technically be illegal under the new piece of legislation.

Opponents of the provision rightly point out that C-11, in its current draft, doesn’t include language exempting individuals with disabilities who may need to break certain “locks” in order to utilize specialized assistive programs. For example, nearly every blind person in the country will have to break the law if they want to use a popular braille program. In a personal anecdote, NDP MP, Charlie Angus, tried to reason with fellow lawmakers by elucidating his daughter’s need for protection from prosecution:

“My daughter went through school deaf and to get copyright material she had to actually break the lock rhythm which is used to access material.” Why would [we] not work…on a clear amendment that would ensure that students with perceptual disabilities are not treated as criminals for accessing material in an educational format so they can succeed?”

Many, like University of Ottawa law professor Michael Geist believe the digital locks addition, and the Conservative party’s refusal to budge on the issue in cases of disabilities, is “strictly a function of U.S. pressure.”

Blind and deaf interest groups aren’t the only ones concerned about the all encompassing nature of C-11’s digital locks provision. In an interview, NDP heritage critic and musician, Andrew Cash, explained:

“Sharing of our work in the digital space is not necessarily a bad thing for the bottom line for artists. The guy who is uploading 10,000 songs to distribute all over the place for free is not the same as the guy who bought a CD or got a copy of it from a friend to get into. You don’t know how that guy is going to spend his money down the road. The problem now is that multi-million media companies want to stomp that behavior out of existence, but it is really counter-productive.”

And of course, just like in the United States, there are associations and lobbying groups that are all for C-11’s digital locks provision. Take the Entertainment Software Association of Canada; their position is that digital locks are necessary to keep their industry “thriving.” But even Jason Kee, despite being a pro-digital locks advocate, had to admit that “the industry is doing well in spite of piracy.”

Much like U.S. legislators promised about SOPA, those in support of C-11’s “dark spot” swear that if a digital lock is broken for personal use, it’s not realistic to expect the copyright holder to file a lawsuit because (1) how would they know, and (2) the time and legal fees involved would render the exercise pointless.

C-11 v. SOPA: Are They The Same Bill?

When Canada’s Digital Modernization Act was passed, the Internet erupted. Netizens were lamenting the fact that Canada passed a law EXACTLY like SOPA.

But is that really the case? Are C-11 and SOPA exactly alike? In a word: no.

First and foremost, in comparison to SOPA, C-11 does not contain “takedown or else” measures. C-11 doesn’t provide a legal method to financially strangle websites within a matter of days. Moreover, unlike SOPA, C-11 includes protections for “fan art” or “remixes” and distinctions are made between commercial and non-commercial use of copyrighted material.

C-11’s $5,000 cap on statutory damages for all non-commercial infringement also sets it apart from SOPA.

In terms of how both bills handle the removal process: C-11 features a “notice-and-notice” system as opposed to SOPA’s “notice-and-takdown” method. That means content is not stricken from the Internet until both parties have had a chance to fairly weigh-in.

Several news outlets are reporting that the bill will most likely pass the Senate and enacted before summer’s end. Those looking to adjust the digital lock provision, however, are saying “not so quick.”

According to Geist, provinces maintain jurisdiction over civil and property rights; as such, there is an effort to challenge the bill on constitutional grounds by arguing that the digital locks are a personal property rights issue, not intellectual property, and therefore out of the federal government’s purview.

I expect that if C-11 does pass in the Senate before summer break, Canada is in store for some vocal partisan debate over this online intellectual property issue for months to come. To keep up with the latest Internet law news, sign up for our newsletter.

LulzSec Members Admit Hacking, Plead Guilty & Not-Guilty

Ryan Cleary, 20, and Jake Davis, 19, were charged with launching DDoS cyber-attacks on government agencies and private companies in Britain and the U.S. between February and September 2011. The pair pleaded guilty to some of the hacking charges, but not all.

Jake Davis, of Lerwick, Shetland, and Ryan Cleary, of Wickford, Essex, admitted to hacking the CIA, the UK Serious Crime Agency, the Arizona Police Department, PBS, SONY and a slew of other websites. But there’s a twist: Cleary and Davis pleaded not guilty to other charges, like actually uploading the purloined data onto the LulzSec website.

The duo pleaded guilty to two counts of conspiracy for executing an “unauthorized act or acts with intent to impair, or with recklessness as to impairing, the operation of a computer or computers.” At the same time, they pleaded not guilty to “encouraging or assisting an offense,” which is in violation of section 45 of the 2007 Serious Crime Act, and “encouraging or assisting offenses,” which is contrary to section 46 of the same act. Additionally, Cleary confessed to four separate charges, including hacking U.S. Air Force computers, which were stationed at the Pentagon.

The U.S. government recently increased punishments for hacking due to the high-profile nature of the target, so Clearly will most likely be handed a harsh sentence; in essence he’ll likely be used as an “example” of what happens to hackers.

According to reports, Cleary and Davis allegedly operated under the LulzSec banner. Along with help from members of Anonymous and Internet Feds, the two hackers are responsible for DDoS (Distributed Denial of Service) attacks against various websites. The list of sites they attacked is extensive. Here are some of the DDoS targets the duo is believed to have illegally accessed:

  • 20th Century Fox
  • Arizona State Police
  • Bethesda
  • Eve Online
  • HBGary
  • HBGary Federal
  • Infragard
  • NHS
  • News International
  • Sony
  • Nintendo
  • PBS Inc
  • Westboro Baptist Church
  • … and more

Future of LulzSec and Hacking Outlaws

The public debate as to whether or not hackers are effective activists rages on. As such, groups like Anonymous, Internet Feds and LulzSec will continue to garner considerable attention – because many of their actions exposed questionable activity, of public interest, to the citizenry (e.g., mega-corps playing fast-and-loose with customers’ data, government footbullets, alien-based religions). As a result, many private citizens see them as vigilante heroes, whereas the government and big business would love to lock them all away forever.

How will the trial of Ryan Cleary and Jake Davis affect Anonymous and LulzSec? This remains to be seen, but if you’re interested in hacking law, this is surely a case to keep your eye on.

Law enforcement agencies and private corporations around the world will continue to use every legal means necessary to stop attacks on their computer networks and websites. So, the e-tango between big business/the government and rogue hacktivists will continue.

If you are a hacker in need of legal representation, contact us today to begin the conversation.

The Queen Of Versailles Libel Lawsuit – Round Two

libel lawsuit over documentary
The Queen of Versailles documentary film is beleaguered with defamation lawsuit troubles.

As far as lawsuits go, defamation cases are usually entertaining. Throw in a Hollywood backdrop, a documentarian and her manse-building subjects, and you’ve got one of the most fascinating libel lawsuits of the year – Siegel v. Greenfield.

The Siegel v. Greenfield Libel Lawsuit Background

The drama all started at the 2012 Sundance Film Festival where Lauren Greenfield was debuting her documentary about the Siegels entitled “The Queen of Versailles.” Originally, the film was supposed to focus on the construction of the biggest house in America. Filming started in the midst of the 2008 financial crisis; so, instead of documenting the building of a mock “Versailles” in Orlando, Florida, Greenfield ended up making a movie about the Siegel’s alleged fall from pecuniary grace.

But David Siegel was not pleased with Greenfield’s characterization of his business’ status in the promotional material for the film, and right before the viewing, he filed a libel lawsuit. In an effort to please the Siegels, the producers of the movie scrambled to change the verbiage in question, but their efforts did not sway Siegel. In fact, according to reports, instead of withdrawing the case when the change was made, he expanded it.

The New Version of The Queen of Versailles Defamation Lawsuit

While Greenfield has nothing but nice things to say about the couple, the Siegels feel Greenfield’s film portrayed them and their business ventures in “an array of defamatory and derogatory ways.”

What are David and Jackie’s exact issues? First and foremost, Mr. Siegel insists that his company is not collapsing. “We didn’t hit rock bottom,” he explained, “we just flattened out.” The movie also allegedly made it seem like the Siegels:

  1. Let their dogs “relieve” themselves anywhere in their house;
  2. Fired the majority of their staff during filming, when in fact they were let go before filming began; and
  3. Had nobody working in their call-centers, when in fact the producers only chose to show one call center that was down, when another one was in full swing right next door.

David Siegel also objects to a scene in the film that he feels was shot in a way to make it seem like he was depressed over his failing business; but Siegel says he was depressed about the film crew still being in his house, not his financial dealings.

In other words, the Siegels feel that the story arc depicted in “The Queen of Versailles” is distorted and therefore defamatory.

Will The Queen of Versailles Defamation Lawsuit See The Inside Of A Courtroom? And If So, Who Will Win?

Here’s the rub: before filming began, both parties – the Siegels and Greenfield – signed a contract and agreed to use arbitration in the event that any legal differences arise. As such, there’s a strong possibility that this libel case will not make it into court. Nevertheless, it could happen. Perhaps more importantly, though, by filing the libel lawsuit, Siegel was able to broadcast his objections far and wide – which probably went a long way in repairing his professional reputation.

“The Queen of Versailles” is scheduled to hit theaters on July 20, 2012. If it turns out that the material was manipulated to paint an unfair and false image of the Siegels, there’s a chance they’ll emerge victorious in either arbitration or an actual court ruling. That being said, the prosecution will have to provide convincing evidence, as freedom of expression is serious business in the United States. Moreover, it’s often difficult to censure an artist for crafting a piece of art, which Greenfield’s attorneys will undoubtedly work into her defense in some manner.

Want to keep up with the latest defamation law news? Sign up for Kelly / Warner Law’s newsletter! Need a lawyer to assist you with a defamation lawsuit or libel litigation, contact us today. We’ve won tons of libel lawsuits and are confident we’ll be able to do the same for you.

Courtney Love’s Twitter Defamation Lawsuit Blows Up; Frances Bean Subpoenaed

courtney love defamation
Courtney Love is once again being sued for online defamation. And Twitter is once again her medium of choice. Image source: Wikipedia/Robert Castro

Courtney Love can’t quit Twitter — and as a result, the chaos creator has once again found herself at the center of a Twitter defamation lawsuit. This time around, Love is being sued by her former lawyer, Rhonda Holmes – and Holmes is trying to drag Frances Bean Cobain, 19, into the fracas.

A Brief History Of Courtney Love’s Twitter Defamation Woes

You’d think Love would’ve learned her lesson by now, especially since last year Courtney was forced to pay nearly half a million dollars to designer Dawn Simorangkir for tweeting that the up-and-coming stylist was a “drug-dealing madame who lost her kids over an assault and battery incident.

The suit filed by Simorangkir was expected to be the first high-profile Twitter defamation lawsuit heard by a jury, but the parties settled our of court in the eleventh hour.  Simorangkir emerged victorious and Love agreed to pay $430,000 over three years.

Courtney’s Lawyers Seek Serenity By Firing Love As A Client

Even though the Twitter battle with Simorangkir is settled, Courtney Love still has a Twitter defamation lawsuit looming. The second online libel case has to do with a 2010 interview that Love gave to a website.

While chatting with a reporter, Love accused lawyer Holmes (who was helping Courtney with some estate issues) of “disappearing” in the middle of a lawsuit and insinuated conspiratorial activity. “I’ve been hiring and firing lawyers to help me with this,” Love began. Courtney then went on to explain her belief that Holmes had stopped returning calls since “they got to her.” Love insisted in public that Holmes “disappeared.”

Nailing her own coffin, after the interview Love tweeted, “I was f—ing devastated (sic) when Rhonda J Holmes Esq. of San Diego was bought off.”

Holmes, however, tells a different story. According to the attorney, Love allegedly became enraged when Holmes explained she would not continue representing the rocker unless Love refrained from “any and all substance abuse.” Unwilling to abide by this request, Holmes claims Love fired her, but then flip-flopped and asked the attorney to handle the case once again. Holmes insists that she denied Love’s request to be re-established as a client. When Love took her conspiracy disappearing story to the press and Twitter, Holmes decided enough was enough and filed claim alleging libel, false light, invasion of privacy and intentional interference with a prospective economic advantage.

To make matters more complicated, Pryor Cashman – the lawyer representing Love in the defamation lawsuit against Holmes – says there has been a “complete breakdown” in client communications. To put it simply, reports indicate that Cashman hasn’t seen much in the way of payment, nor has he heard a word from his client. As such, it’s likely he’s looking to be dismissed from the case. If he succeeds, Courtney may have to represent herself.

Courting Frances Bean Cobain…For A Defamation Subpoena

Courtney is not the only Cobain entangled in this Twitter defamation case. Frances Bean – the now emancipated daughter of Courtney and Kurt – has also been subpoenaed. Why subpoena Frances Bean? It probably has to do with a tweet she sent out after Courtney publicaly accused Foo Fighter, Dave Grohl, of coming on to her daughter. At the time, in defense of Dave, Frances made a public statement urging Twitter to ban her mother from the platform.

When it comes to Holmes’ Twitter defamation suit, however, France Bean doesn’t want to get involved. Bryan Freedman (who was also Dawn Simorangkir’s lawyer) has moved to have the subpoena quashed on the grounds that any information Cobain would be able to give would prove to be “inadmissible and non-discoverable character evidence regarding love.”

After all, Cobain, at the time of the incident, was living with her grandmother and aunt and was not in contact with her mother in any capacity. In other words, it’s fair to infer that Frances doesn’t want anything to do with her mother. (A probability that may be driving Courtney Love to the brink, since 19-year-old Frances was legally granted control over Nirvana’s publicity rights in 2009.)

What do you think? Will Hole rocker, Love, manage to extradite herself from this twitter defamation lawsuit? Or will this finally be the first high-profile celebrity Twitter defamation lawsuit to make it to a jury?

Want to keep up with the latest in Internet and defamation law? Sign up for the Kelly / Warner Law newsletter.

Carreon v. Inman Showdown: A Cautionary Tale of 21st Century Lawyering and Marketing

Above: Matthew Inman’s Bear Love Good. Cancer Bad Cartoon.
Matthew Inman of “The Oatmeal” was embroiled in an epic legal battle with lawyer Charles Carreon and Carreon’s client, FunnyJunk.com. Thanks to a little “WTF!? Litigation,” Carreon v. Inman engaged netizens across the globe. For Internet law enthusiasts, the case was front-row-seat material. So much more than just an online copyright tussle, the FunnyJunk v. Oatmeal legal battle served as a cautionary tale about lawyering and marketing in the Internet age; it highlights the philosophical gap between old-fashioned lawyering and the fluid nature of today’s online marketplace; and perhaps most intriguingly, Carreon v. Inman is a lawsuit that makes tests whether or not the old marketing adage of “any publicity is good publicity” still holds true today.

“I’m not one to combat piracy,” Matthew Inman explained in a statement to Comic Riffs, “if you want to post my comics on your site, just don’t post 500 [of them] and just give me a link back.”

Inman’s statement succinctly encapsulates today’s “pro-piracy” zeitgeist. It’s also become a rallying cry for small- to mid-sized copyright holders who are willing to share their work in exchange for a little SEO link-love, but are fed up with “re-hosting” sites that blatantly profit off stolen material.

 

First: A Little About Carreon v. Inman

Before we get to the pulp of the drama, let’s first meet the players.

Matthew Inman, 27, is the creator of “The Oatmeal” – an original, popular, irreverent online cartoon and blog. Charles Carreon, a 1986 graduate of UCLA Law School, is legal counsel for Funnyjunk.com. Back in the day, Carreon litigated one of the first high-profile domain disputes; today, according to Comic Riffs, he’s angling to become the “go-to attorney for people who feel they’ve been cyber-vandalized or similarly wronged on the Internet.”

TheOatmeal.com is essentially Inman’s portfolio site. It’s filled with his original work, a blog, a quiz section and a marketplace where fans can purchase Oatmeal paraphernalia. According to reports, The Oatmeal attracts over 4 million page views a month. All in all, it’s a great-looking, user-friendly website that highlights Inman’s considerable talent – and no, it’s not littered with advertising and scraped content.

FunnyJunk.com, on the other hand, is a forum-like website that relies on user-generated content. Administrators claim infringement immunity under the Communications Decency Act and provide a questionable “copyright removal request form” on the site; questionable because it doesn’t provide the contact information for FunnyJunk’s DMCA agent – a requirement for DMCA compliance. Like other social-voting sites, posts on FunnyJunk.com are up- and down-voted by other users; “reputation points” are based on positive feedback. Unlike The Oatmeal, FunnyJunk is littered with advertisements – a point, thanks to contributory infringement statutes, that may come back to bite them in the butt.

The Oatmeal v. FunnyJunk: In the Beginning

The Oatmeal v. FunnyJunk saga started in 2010. Back then, Inman contacted FunnyJunk.com and asked the administrators to remove some copyrighted content from their site. As previously stated, FunnyJunk.com’s copyright removal page didn’t include a DMCA agent, but they ostensibly agreed to Inman’s request.

Ostensibly being the operative word.

Turns out that FunnyJunk.com simply removed all the content that WAS properly attributed to Inman, and left all the material that was not. Then, FunnyJunk pulled the ultimate in school-yard whining by changing all instances of the phrase “The Oatmeal” to “The Fag” on their website.

As Inman explained, filing a DMCA takedown notice for every single infringement would have taken an inordinate amount of time. Besides, Matt had more important things to do, like continue building one of the most successful online, graphics-based businesses in the U.S. So instead of going the DMCA route, Inman decided to make a post on his blog about FunnyJunk.com’s blatant infringement.  That was that – or so he thought.

At around the same time, FunnyJunk.com was in the process of retaining Charles Carreon as counsel. A self-styled crusader against “cyber vandalism,” Carreon got down to the business of lawyering on behalf of his client, FunnyJunk.com. As part of his efforts, instead of first making sure that FunnyJunk.com had rock-solid website disclosures, complete with a DMCA agent listed on the “copyright removal” page, he fired off a strongly worded letter to Inman after coming across The Oatmeal blog post that discussed FunnyJunk’s copyright infringement.

WTF!? You’re Actually Going to Sue for Defamation, Carreon!?

In Carreon’s letter to Inman, he demanded that Inman pay $20,000 for making a “false accusation of willful copyright infringement” against The Oatmeal’s “competitors,” FunnyJunk.com. The defamation, Carreon argued, centered on the fact that Inman defamed his clients by saying they were infringing on copyrights, when in fact, Carreon argued, they were protected by Section 230 of the CDA.

Carreon further argued that an alpha-numeric pterodactyl graphic, which appeared in the source code of Inman’s post about FunnyJunk.com, was “evidence” of actual malice. Additionally, Carreon averred that Inman’s statements constituted false advertising under the Lanham Act.

Here’s why Carreon’s claims are ridiculous:

1) The pterodactyl graphic was developed long before the fracas with FunnyJunk.com started and appears on nearly every page of The Oatmeal’s source code. It has absolutely nothing to do with taunting Carreon’s clients.

2) The defamation claims are ridiculous. Without even evoking legalese, common sense dictates that defamation is not pointing out that another website is posting copyright protected work without proper credit. Now, Carreon says that all the links that Inman said were infringing were removed soon after Inman made his complaints, thereby putting them on the right side of DMCA law; However, a quick look at one of the page’s cache proves that it was still intact on May 28, 2012. Carreon’s letter was dated June 2, 2012. It’s not a far stretch to infer from those facts that the links were taken down with the express purpose of sending the “extortion” letter to Inman.

3) The Lanham act specifies “commercial advertising and promotion.” As such, a lawyer could easily argue that Inman’s actions did not constitute “false advertising”

Crowdsourcing Success 101: The “Bear Love, Good. Cancer Bad” Campaign

Understanding the actual parameters of the Digital Millennium Copyright Act and United States’ defamation statutes, Inman made the following promise to both Carreon and Oatmeal fans:

Instead of mailing the owner of FunnyJunk the money, I’m going to send the above drawing of his mother.  I’m going to try and raise $20,000 and instead send it to the National Wildlife Federation and the American Cancer Society.

True to his word, Inman posted the campaign, “Operation Bear Love Good, Cancer Bad,” on Indiegogo.com, with the proceeds going to the American Cancer Society and National Wildlife Foundation. In true Oatmeal form, the campaign included a cartoon drawing of a “mother” having sexual relations with a Kodiak bear. In just over an hour, Inman had raised the $20,000. Inspired by the generosity of his readers, The Oatmeal creator kept the giving campaign open. Within three days, the amount had climbed to over $170,000 – all of it would go to charity.

Within minutes of Inman’s charitable campaign launch, thousands of copies of Inman’s mother-kodiak drawing landed in Carreon’s inbox; crank calls were made to his office; under siege, the beleaguered lawyer attempted to stop the onslaught by removing his contact information from his website.

WTF!? You’re Actually Going to Sue the American Cancer Society & National Wildlife Foundation Over This, Carreon!?

Carreon was ticked about the drawing. He told reporters that “accusing [his] mother of beastiality is revolting, and [he would] not forgive it!”

And with that, instead of cutting his losses and letting the incident die a slow death, Carreon opted to serve Inman with yet another lawsuit – this time over Inman’s failure to file a charitable disclosure or annual report, thus making him an unfit entity to receive charitable gifts.

To add some cache to the suit (and possibly to assure greater media coverage?), Carreon included not only Indiegogo, but the American Cancer Society and the National Wildlife Foundation, for illegally participating in a charitable giving campaign that was not in compliance with non-profit technicalities. In his claim, Carreon also asserted that Inman’s campaign violated Indeigogo’s terms of service – an argument which Indiegogo has since refuted.

The Electronic Frontier Foundation has now stepped in on Inman’s behalf, and will most likely make mincemeat of Carreon’s claim – further embarrassing the once lauded Internet lawyer. It just goes to show, as an Internet lawyer, you have to keep up – otherwise you may end up unintentionally knocking yourself out of the market – within a matter of hours.

The Oatmeal v. FunnyJunk: A Metaphor For The Current State Of Internet Law?

FunnyJunk.com v. The Oatmeal (which has now turned into Carreon v. Inman), is a fascinating case. Not only, as Comic Riffs pointed out, does the case involve two smaller-sized websites instead of a mega-corp like Google or Facebook, which makes it that much more accessible to the average user, but it also serves as an ideal case study for how vintage lawyering can sometimes prove disastrous in today’s digital marketplace.

In a matter of a few days, Carreon became Internet public enemy #1. The hive mind was incredulous that a lawyer could make such ridiculous demands of one of the more popular Web cartoonists around. Part of what was so infuriating was Carreon’s ostensible ignorance of current Internet culture. Not only did he seemingly fail to handle the most basic and foundational aspect of online business litigation by making sure FunnyJunk.com had a proper DMCA disclosure, but instead of cutting his losses after the first threat, he doubled down – thereby making himself a 21st century target and highlighting his arguable ignorance of the market in which he claims expertise.

Beyond Carreon, though, FunnyJunk.com v. The Oatmeal is noteworthy because it illuminates the cavernous gap between the mores of average Internet users and entrepreneurs versus the philosophical beliefs on which many of our Internet laws are based.

To illustrate, consider the fact that Inman did not originally file a DMCA takedown request. The truth is that most small-to-mid sized copyright holders don’t bother with the DMCA process. Why? Because the new generation of online business people aren’t diametrically opposed to “sharing;” heck, most don’t even remember life before the share-fueled Internet arrived. As such, these netizens rely on the exchange of free goods/info/data/links to build their brands and businesses. To this new wave of users and entrepreneurs, the time it takes to fill out DMCA takedown requests often proves too costly and time consuming.

Large corporations and lobbying associations, however, make considerable use of the DMCA process. Which begs the question: Are current Internet laws really drafted with the intention of protecting the average copyright holder and consumer, or are they written with the sole purpose of placating “fat cats” like the RIAA? I hate to say it, but in most cases the desires of the mega-corps and Godzilla-like lobbyists take precedence in the legislation writing process; resulting in:

1) A dearth of U.S. online copyright legislation that adequately impedes copyright trolls;

2) Improper rights protection for small to mid-sized intellectual property holders; and

3) Outrageous statutory damages based on agitprop compiled by biased entities.

Over the next few months, Carreon v. Inman is poised to be an oft-talked about Internet law case —not because of the legal prowess of Carreon’s lawyering, but because the Inman v. FunnyJunk.com drama has definitely brought a little LULZ to kick off summer 2012.

Kelly / Warner specializes in Internet law.  Our practice represents all types of startups, online marketing businesses, hosting companies, app developers and even hackers. Not only do we have a deep understanding of online intellectual property, defamation and advertising law, but we’re tech-heads ourselves (we even made our own legal app). Contact us today.

Article Sources:
http://arstechnica.com/tech-policy/2011/06/funnyjunk-vs-the-oatmeal/
http://arstechnica.com/tech-policy/2012/06/lawyer-tries-and-fails-to-shut-down-the-oatmeals-charitable-fundraiser/
http://www.forbes.com/sites/davidthier/2012/06/18/lawyer-charles-carreon-suing-the-oatmeal-american-cancer-society-and-national-wildlife-federation/

Gary McKinnon: Autism and Asperger’s Syndrome as a Legal Defense for Hacking and Breaching Security?

legal defense for hacking
Is autism the best new way to knock-down hacking charges?
Could Asperger’s and Autism become a legal defense for hacking in the Information Age?

In an unauthorized biography, Julian Assange was credited with coining the term “Hacker’s Disease,” meaning symptoms and difficulties in life that are people with Autism and other behavioral differences must face predispose them to hacking. And today, even a cursory survey of hacking-related cases around the world reveals that the “autism defense” is emerging as an oft-used argument.

Gary McKinnon’s Autism Defense Against Hacking Charges

Gary McKinnon is an alleged Scottish hacker who the authorities say broke into US military and NASA computers. McKinnon cited Asperger’s Syndrome to avoid extradition, claiming he was overcome with an urge to “know the truth” about what was out there. And this urge, he claims, is what caused him to break laws and breach federal security systems. To those unfamiliar with Asperger’s Syndrome, this defense may sound as ridiculous as the “Twinkie defense,” but any parent whose child has Asperger’s is probably shaking their head in agreement, as they probably understand how compulsion can envelop someone with the syndrome.

Duncan Campbell at The Guardian recently wrote:

A final decision on whether computer hacker, GaryMcKinnon, is to be extradited to the United States is now imminent. Behind the scenes, a battle is apparently under way between politicians and officials over what the outcome should be. There may be much else to occupy the government at the moment, but it is vital that this matter of principle is not sidelined.

U.S. authorities indicated they’d be content with whatever decision the British government makes.

While having Asperger’s has not been a home run defense strategy, it has, so far, helped to stop McKinnon’s extradition. If McKinnon does escape extradition, it may spark a new trend in which one’s place on the autism spectrum is a factor.

Autism and Asperger’s as a Legal Defense for Hacking?

While the Gary McKinnon case is still unfolding, there are others who may use a similar defense.  According to the UK-based DailyMail, Jake Davis, an 18-year-old teenager from the Shetland Islands, suffers from a form of autism. Davis is thought to be the hactivist known as Topiary.

Additionally, former Anonymous member and LulzSec affiliate, Ryan Cleary, who was arrested in June of this year, also suffers from Asperger’s and agoraphobia – a fear of public spaces. Whether or not these extenuating circumstances will work as a solid defense for any of these men – or anyone else – remains to be seen, but it’s got the peanut gallery buzzing.

In order to see if Autism or even Asperger’s Syndrome will be a good defense for you personally, you should contact an experienced Internet Law Attorney who can answer any questions you have about charges you’re facing. There is a chance you may be able to use autism as a defense for hacking, but there is no way to know for sure until you talk to a hacker lawyer.

New Generic Top Level Domains On The Way For $25,000 A Pop

New generic top level domains on sale for $25,000
New generic top level domains are on the way. Expect an increase in domain dispute and procurement litigation.

Just when you acclimated to .com, .net, .org and .edu, a slew of new generic top level domains (gTLD) are on their way. And judging by the suffix request proposals revealed at a recent Internet Corporation for Assigned Names and Numbers (ICANN) London workshop, the new additions could alter the way we surf the Web.

More Descriptive gTLDs On The Way

According to reports, domain name endings could become more descriptive. For example, instead of going to StephenKing.com, in a few years, you may navigate to StephenKing.author. The change is expected to further compartmentalize the Internet – a fact that is bound to bring up various censorship, privacy and civil rights issues.

A process years in the making, ICANN has worked through technical glitches associated with the process and are now accepting applications from larger Internet companies bidding to control suggested gTLD additions. To illustrate, Google is looking to take over “.lol,” “.google” and “.YouTube,” while Artemis, a data security firm, is looking to lock-down “.secure.” Nearly 2,000 proposals were submitted including .doctor, .research, .music and .bank.

Generic top-level domains for various hobby groups, nationalities and sports are also expected to be incorporated into the domain naming conventions.

When Are These Generic Top-Level Domain Changes Going To Happen?

Don’t expect a different Internet overnight. Judging from past ICANN projects and the sheer enormity of this one, the roll-out won’t occur on a public scale for another two to three years…and that is if all goes according to plan.

Officials still must deliberate over trademark issues, international hate-speech considerations, not to mention the logistics of administering additional gTLDs. Besides, law enforcement entities need time to consider and implement new procedures as it relates to national security.

That all said, expect domain dispute and procurement litigation to heat up over the next several months, as competing bidders fight to gain control of highly prized options like .web or .startup.

Should Startups Consider Bidding On One Of These New Generic Top Level Domains?

Speaking of startups, if you’re a brand-new company looking to join in on the gTLD bidding fun, you may want to slow your roll – unless, you have $200,000 lying around to spend on a proposal. (That’s right, just the proposal; you have to pay them to write a proposal; and there’s no guarantee your wish will be granted.) If a company’s proposal is approved, they will have to shell out approximately $25,000 to maintain the gTLD and commit to a 10-year contract. In laymen’s terms, let’s just say you could buy “onlinemarketing.web” through GoDaddy; instead of it costing $10 – $1000, it would cost $25,000 – and with a required 10-year commitment, it may not make sense for a startup to commit to such a hefty debt from the jump.

If you have a legal domain issue, contact Kelly / Warner law. We have vast experience in the field and can help remedy your situation as quickly as possible. Contact us today to get started.

Celebrity Defamation: A Legal Guide

Celebrity Defamation Lawsuits
What should public figures and celebrities do if they’ve been defamed?

Celebrity defamation lawsuits differ from slander and libel cases launched by private citizens. This easy-to-understand legal introduction to celebrity defamation will give you a better understanding of why it’s so difficult for famous people to win defamation lawsuits.

Defamation laws in the United States feature different standards for celebrities and private citizens. Simply put, public figures must prove “actual malice” in order to emerge victorious in a defamation lawsuit.

What Should Celebrities Do If They Are Defamed?

If you are a celebrity – minor or major – a public official, or somehow considered to be a “public figure,” it’s important to follow the step below if you are defamed.

Celebrity Defamation Step #1: Contact a qualified defamation attorney who has handled high-profile suits in the past. If the defamation happened online, it’s best to find a lawyer who also has considerable experience with Internet law.

Celebrity Defamation Step #2: Make sure to collect any and all material you feel is defamatory. If the material is online, make hard copies of the web pages where the content appears. Make an effort to save the material electronically, as well. (If you don’t know how to save electronic data, a tech savvy defamation lawyer will be able to help you.)

Be sure to do a search and take note of all the websites on which the content appears. Information has a way of going viral – the further you can prove that the disparaging statements spread, the better. If the defamation was published in a newspaper or other periodical, be sure to buy several copies of each publication. If the incident was broadcast over the radio, TV or at a public event, do your best to get a hold of either the audio or video of the incident and make additional copies.

Celebrity Defamation Step #3: Meet with your defamation lawyer ASAP. The quicker they can get the slander or libel lawsuit rolling, the quicker the situation can be cleared up – and do the least amount of damage to your reputation.

Your defamation attorney will go over the pros and cons of filing a celebrity defamation lawsuit. They’ll help you figure out if the hassle is worth the effort and explain the proper way to answer press questions about the matter. Moreover, your counsel may be able to broker a settlement with the offending party before the satiation spirals out of control.

It’s important to be 500% honest with your lawyer in these first meetings. If you aren’t, any withheld information or prevarications could result in an anti-SLAPP counter-claim.

Once your attorney begins the litigation process, the case will proceed based on the evidence and nature of the case.

Celebrity Defamation In The 21st Century

The interesting thing about celebrity defamation in the Internet Age is that lines between celebrity and laymen are becoming ever more blurred. With the proliferation of reality television shows, it sometimes seems like nearly half the population will eventually have their own “show.” Moreover, the nature of social media creates a large gray area when it comes to who qualifies as “famous.” In fact, in a recent California ruling, the judge declared that “everybody is famous on Facebook.” Granted, the California case dealt with intellectual property and rights of publicity, but legal precedence is legal precedence – and if the standard is not reversed, the decision could spark a major shift in online defamation law for private citizens.

Whether you are a celebrity or private citizen, Kelly / Warner law can assist with all your defamation lawsuit needs. We’ve successfully represented hundreds of individuals and businesses with various defamation and false light legal actions. We know every inch of slander and libel law, and possess significant expertise in the area of Internet law – a fact our clients find helpful since most defamation cases these days involve the Internet.

Contact us today to begin the conversation about remedying your defamation legal issue.

DMCA Takedowns & The RIAA: Common Sense Intellectual Property Advocacy or The Height Of Hypocrisy

DMCA TakedownIn the U.S., the Digital Millennium Copyright Act has been the law of the land since 2000. Like many Internet laws, the DMCA has its supports and detractors. Those in favor of the act see it as an effective way to protect intellectual property that finds its way onto the Web; anti-DMCA advocates feel the statute is an out-dated process that does little more than cause confusion and provide a way for market adversaries to unfairly “knock-off” a competitor.

Since the DMCA is currently the most viable way for copyright holders to legally combat Internet infringement, entertainment associations and media conglomerates, like the Recording Industry of America, British Recording Industry, Motion Picture Association of America and NBC Universal, use the statute to aggressively combat piracy. But many think these organizations are nothing more than well-financed copyright trolls who abuse the DMCA takedown process and unfairly expect special treatment.

While both sides’ arguments are based in legal precedence, it may be time for governing officials to re-examine the current state of online piracy. Because at the end of the day, the question politicians should be asking is whether or not the effort and money spent on drafting, promoting and enforcing digital copyright statutes – which is often based on biased propaganda – is right for the United States – a country drowning in debt that could use a healthy dose of innovation injection.

Before We Begin, Here’s A Little Background on the DMCA Takedown Process

While nuanced, the purpose of DMCA legislation is simple: the bill provides a way for copyright and trademark holders to report online intellectual property infringement with the goal of having the material exorcised from the Internet.

How it usually works is that a lawyer first files a DMCA takedown request on behalf of an individual or business. The notice usually includes specific legalese requesting that a piece of protected material be removed from the Internet. Once an entity is in possession of a DMCA takedown notice, by law, they are required to notify the alleged copyright infringer and give them the opportunity to file a counter-notice.

If the DMCA takedown notice is sent to a search engine like Google, and the original DMCA takedown request goes uncontested, the search engine usually removes the link to the offending material from their index. Historically, it used to take several weeks to see results. According to recent reports, however, some DMCA takedown requests are handled within 11 hours — a questionable stat considering the act does contain provisions for challenge responses.

While the DMCA process is often effective, if you believe a report published by Google, nearly 57% of DMCA takedown notices are initiated by business competitors, and 37% are bogus.

Google Releases DMCA Takedown Statistics for May

As part of their transparency initiative, Google publishes their monthly DMCA takedown stats for all to see – and the numbers are staggering. Catch this:

Google processes nearly 1.5 million a month! To put things in perspective, the entirety of 2009 saw a total of 1.2 million DMCA takedowns.

According to Google’s stats, Filestube.com – a Polish file sharing company – received the most number of DMCA takedown requests. Extratorrent.com came in second. Which companies are requesting the most takedowns? Those honors go to Marketlly, NBC Universal and the British Recording Industry (the UK equivalent to the RIAA).

Fun Fact: in May 2012, the total number of DMCA takedown requests filed by NBC Universal and the British Recording Industry came close to half a million for the month.

RIAA Responds To Google’s DMCA Takedown Data With Whiny Missive

The Recording Industry Association of America is a major voice in the “stop piracy at all costs” camp. As the lobbying arm for major recording labels, it seems the RIAA’s primary goal is to punish pirates and act as an online infringement-busting battalion.

One of their favorite tools of combat is eye-popping statistics. Recent RIAA propaganda asserts that $58 billion dollars and 373,000 jobs have been lost to piracy. Now, when the average person or politician hears those numbers, it’s almost impossible not to fall down on the side of piracy-busters. But as Rob Reid points out, those numbers are, at best, bombastic, and at worse, flat out impossible.

Despite the above logic, the RIAA contends that Google isn’t doing enough to terminate all link-removal requests. As such, the association wants to be able to run as many search-and-destroy bots as they want on Google’s servers, which theoretically mark and disable all links to “copyrighted” material, automatically. The problem is that bots aren’t perfect — so what happens if the bots mistakenly take down perfectly legal content?

Why The RIAA’s Special Treatment Requests Would Be A Gigantic Legal Blunder

You may still be thinking: “Stealing is stealing; why shouldn’t the RIAA be given the opportunity to develop permanent methods to protect their members’ online intellectual property?” It’s a fair thought, but the nature of the law is gray, rendering such black and white thinking dangerous when legally analyzing the DMCA.

Take Edwyn Collins, for example. If you can name all the Keaton children in ten seconds, then there’s a good chance you’ll remember Edwyn – the “A Girl Like You” one-hit-wonder singer. Being that the song is now 15 years-old, and all the licensing agreements have run their course, Collins thought he’d put the song up on his MySpace page.

Warner Music (his old label), however, was having none of that; the recording company sent in a DMCA request to MySpace, which was executed almost immediately. When Collins protested and tried to explain to MySpace that Warner Music no longer held the rights, his pleas were ignored.

To make a long story short, it took many months – and many emails containing an “Orwellian MySpace copyright re-education page” — for the musician to prove he was the rightful copyright holder of the song. While the issue did finally get cleared up, Collins can’t help pointing out that his song still appears on many a compilation CD, and labels are profiting off it, even though they don’t have the rights. As Grace Maxwell – Collins’ wife and manager – said, “[We are] aware of who the biggest bootleggers are, it’s not the filesharers.” She then went on to claim that “A Girl Like You” is illegally sold “all over the Internet…by all sorts of respectable major labels whose license to sell it ran out years ago and who do not account to him.”

David and Goliath copyright battles aren’t the only legal pitfall that may arise if organizations like the RIAA are granted unfettered access to troll the Net for alleged copyright infringements. Most forget about the DMCA’s perjury penalty provisions.

From the Digital Millennium Copyright Act:

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In laymen’s speak that translates to: if you file an erroneous DMCA takedown request, expect to be charged with perjury. In the United States, perjury comes with a hefty price tag. Convicted prevaricators can be fined up to $10,000 per incident or imprisoned for up to 5 years.

So let’s review. Automated copyright-sniffing bots are highly fallible and the Digital Millennium Copyright Act contains perjury penalties for falsely reported claims. Therefore, logic demands that the RIAA should think twice about launching proprietary DMCA-inspired content deactivators. If they don’t, the lobbying giant may end up paying more in damages than they actually lose to piracy.

Protecting one’s intellectual property rights is essential; but new communication and sharing models are an opportunity for artists and intellects to explore new distribution and promotional methods. Because when you examine the numbers, it’s obvious that “piracy” – in many cases – actually leads to better sales. Moreover, with even Broadway attendance up, it’s time for lobbying groups like the RIAA to stop publishing inaccurate, eye-popping loss numbers that give the impression that the music and movie industry are suffering more than they are.

Bottom line: responsible online intellectual property laws are needed; using Internet copyright legislation to clog up the courts and threaten innovative sharing and communication platforms, however, should have no place in 21st century litigation.

Google Book Scanning: All Your Text Are Belong to Us

Is book scanning legal
A French copyright lawsuit against Google involving their book scanning project has been dropped.

Social Media & Search Giant, Google, Escapes Unscathed In French Book Scanning Lawsuit

Oft-praised for their mantra, “Do No Evil,” Google has long billed itself as a kinder, gentler corporate giant. But time reveals all hypocrisies, and these days you’ll find a lot more people who believe the search-turned-social-media behemoth’s actual mantra is “do as I say, not as I do” — especially in France.

Despite public contention, however, Le Syndicat National de l’Edition and the SGDL Society of Authors have agreed to end litigation over Google’s scanning of copyright-protected books without permission.  While this may appear to be good news, it brings up some very interesting questions about the rights of content creators in an increasingly “share-friendly” world.

Google’s Epic Book Scanning Plan

A while ago, Google began a global project that would bring “free knowledge” to the masses. The plan was to create digital copies of the world’s literary works.

As word of their book scanning initiative spread, people began to question the legality of scanning copyrighted books – and snippets of text — available online. Google maintained, however, that they were helping society as a whole and didn’t stop.

In fact, since they began the project, Google has developed several new useful scanning methods. As time went on, Google continued to scan — and make available — more and more material. Before long, several publishing companies, in France, came forward and began legal proceedings against Google for theft of copyrighted content.

International and Domestic Legalities of Book-Scanning and Digitization

According to Bill Echikson, a spokesman for Google, the search engine company is no longer facing legal action in France over scanning books.  In fact, they have been working to improve their relationship with various French industry groups and regulators, with regards to copyrighted content. Google has also settled legal disputes with Hachette Livre unit of Lagardere SCA and La Martiniere Groupe.

“We’ve agreed on a model to get out-of-print books back into print,” Echikson recently said in a telephone interviewwithNJ.com.

Google’s project to scan as many books as possible has birthed many a copyright infringement lawsuit. On the bright side, the legal battle has sparked dialog between Google and publishers – which, hopefully, will only lead to clearer distinctions as to the nature of Google’s project and what they are doing to protect creators’ copyrights.

How will this affect US publishers? Quite a few are asking this question, but the answer is still unclear.

Just this year, Google lost a bid to dismiss claims brought forward by groups including the Author’s Guild and the American Society of Media Photographers. The lawsuits came about in 2004, after Google announced their plan to digitally scan books from public and university libraries. According to a court filing from February of this year, Google averred they had scanned more than 20 million books so far, with more to come.

If you create content online or in print, make sure you have a clear understanding of intellectual property law in the Unites States. After all, who wants the likes of Google – or other companies – lifting others’ content to pad their already fat wallets?

Bottom line: the more you know about IP law, the better decisions you can make when it comes to protecting your content.

PageRage v. Facebook: An Antitrust Lawsuit

antitrust law
Will PageRage win an online advertising antitrust lawsuit against Facebook?

A few weeks before Facebook’s now infamous IPO landed with a thud, a California-based tech company – Sambreel Holdings, which operates PageRage, Yontoo LLC and Theme Your World LLC – filed an antitrust claim against the now publicly traded, lawsuit-laden social networking company.

While the PageRage v. Facebook showdown has been months in the making, in the midst of insider-trading rumblings and a tumbling stock, you can bet the Menlo Park media giant ain’t happy about this added legal headache. (Not to mentionthe potential revenue loss Facebook may see in the near future if apps like LilyJade continue to gain popularity).

Regardless, the outcome of this lawsuit – which has both antitrust and online marketing legal implications – has the potential to significantly shape the Internet advertising and app development market.

PageRage and Facebook: The Background

An add-on for Facebook, PageRage is an app/toolbar that allows users to customize the look of their Facebook walls. PageRage first launched in 2008, and by 2010, the company was pulling in nearly $1 million a month. A station-specific program, PageRage does not interact with Facebook servers and computers, but instead only affects the computer on which it’s installed.

At first, Facebook and PageRage folks enjoyed a cordial relationship. PageRage responded to requests made by Facebook with regards to the program, and everyone was happy.

But according to Sambreel’s claim, things began to change when PageRage climbed the online advertising charts and threatened Facebook’s revenue model. After all, the plugin offered advertisers a low-cost marketing alternative. The lawsuit avers that “Rather than compete with Sambreel on the merits, Facebook pursued an anticompetitive scheme designed to eliminate Sambreel as a competitive threat.”

What PageRage’s Anti-Trust Lawsuit Alleges

PageRage’s lawsuit reads like a scene out of the movie “Weapons of Mass Distraction.” According to PageRage’s claim, Facebook:

1) Pressured developers not to do business with PageRage or their advertising partners and black-balled those who did;

2) Organized a group boycott in an illegal effort to maintain their monopoly of the online advertising marketplace;

3) Unlawfully scanned users’ computers, and then denied access to Facebook to those who had the Yontoo platform on their system

In addition, Sambreel avers they’ve suffered considerable financial loss since Facebook began their alleged market assault, forcing executives to lay-off half the staff and halt new projects in development.

PageRage is suing for per se illegal group boycott, per se illegal tying, monopolization, attempted monopolization, unfair business practices, intentional interference with contract, and intentional interference with prospective economic advantage. The lawsuit also demands a jury trial.

PageRage v. Facebook Lawsuit: The AntiTrust Claims

Anti-competitive laws in the United States aim to protect both market competition and consumers. Sambreel argued antitrust statutes in their claim against Facebook since the app company believes the social networking company’s actions unfairly prevented and reduced market competition.

The choice to go the anti-trust route, however, could be PageRage’s ruin. Why? Quite simply, there has been a philosophical shift in the way many legislators and decision makers view monopolistic enterprises and anti-competitive complaints.

PageRage v. Facebook Lawsuit: What Is All This “Illegal Per Se” Stuff About?

Illegal per se is a legal concept which means a given act is inherently illegal. As such, circumstantial defense arguments have no bearing on the claim. For example, many states have drunk driving laws with per se elements – so no matter the circumstances, if you get caught driving with a blood alcohol content over a certain limit, that’s that. Another example is defamation per se.

Many anti-trust lawsuits deal with “per se” claims since various methods used to maintain a monopoly – like price fixing, price maintenance, group boycotts, tying and geographic market division – can philosophically be considered inherently illegal and thereby present unreasonable restraints on trade.

Over the past several decades, however, a new attitudes toward antitrust restrictions have changed. In line with Rand’s Objectivist philosophy (which really is the basis for the current-day, ultra-pro-capitalist movement), many law- and opinion-makers  feel antitrust laws  discourage businesspeople from “activities that might be socially useful out of fear their business actions will be determined illegal and dismantled by government.”

As such, certain standards must be met for a plaintiff to emerge victorious in an antitrust lawsuit. Namely, two legal standards are almost always applied to monopolistic claims:

  1. The action in which the claim is based must “facially appear to be one that would always or almost always tend to restrict competition and decrease output.”
  2. The action or practice in question is not designed to “increase economic efficiency and render markets more, rather than less, competitive.”

Moreover, market conditions are carefully examined during antitrust deliberations, and judges usually ere on the side of defendants — especially if they’re engaging in a “new or innovative business relationship” with either the public or another company.

However, Sambreel did make “per se” claims — so I guess we’ll just have to see if a judge rules them legitimate and moves forward on the basis of inherent illegality.

Arie Trouw, CEO and president of Sambreel kicked off the legal battle with a statement: “In addition to violating the law, we think Facebook’s actions – particularly its gating – violate its own first guiding principle: ‘People should have the freedom to share whatever information they want, in any medium and any format, and have the right to connect online with anyone – any person, organization or service – as long as they both consent to the connection.’

In other words: PageRage v. Facebook = Internet anti-trust lawsuit, battle royal.

Internet Lawyer Explains Why Fake Facebook Privacy Policy Isn’t Legal

Uh oh, looks like someone indulged in a little armchair lawyering and launched one of the biggest Internet hoaxes of 2012. Beleaguered social media network Facebook anchors the controversy.

The hoax involves an inaccurate privacy disclaimer that went viral within a few days of Facebook going public. What is the gist of the faux notice? Well, it says that if you post a legal-sounding disclaimer (generously provided free of charge) on your timeline, then the government won’t be allowed to disseminate your content. The notice also averred the faux statement became legal the moment Facebook became a publicly-held company.

Too bad the Faux Facebook privacy policy is legal poppy-cock. Here’s why:

  1. Just because a company or entity switches its status from private to public doesn’t mean the terms you agreed to beforehand become “null and void.” (That’s why it makes sense for website operators to get a rock-solid TOS agreement or privacy policy for your website from the jump.)
  2. The fake Facebook privacy policy is based on the Uniform Commercial Code at Section 1-103 1-308 (the “UCC”).   The problem is that the UCC has nothing to do with privacy at all. In fact, the world “privacy” doesn’t appear in the statute once.
  3. Since its inception, Facebook’s policies have included language that allows them to update their policies whenever they want. While some of those rules may now change a bit, due to the public-ownership, it doesn’t retroactively affect what you already consented to. Simply put, if you agreed to the original Facebook privacy policy, you can’t take it back now. The only thing you can do is delete your account – and even then, per the official terms of use and privacy policy, Facebook is allowed to retain much of your information for an extended period of time.
  4. Legally speaking, there are no United States laws, yet, which allow Internet users to assert their own privacy rights on a platform controlled by someone else. (In fact, the word “privacy” doesn’t even appear in the U.S. Constitution.)

The Truth About Your Privacy And Facebook

United States

At the end of the day, the bottom line is that United States citizens have very little control over their online privacy. While strides are being made by many of the larger Net-based corporations in terms of Internet privacy and data security, there are no national laws that safeguard our personal penetralia. The most any state-side user can do is take advantage of the available privacy settings on websites like Facebook, Google and Twitter; because at the end of the day, if you initially clicked yes on the TOS to join, then you agreed to their rules.

Europe

European users, on the other hand, enjoy a bit more government-mandated online privacy. In fact, as of May 31, 2012, every website in the UK must get consent from users to use tracking cookies. Still, Facebook earned  their “safe harbor” privacy certificate, which means their policies comply with stricter EU privacy directives. So, unless the social media network is engaging in some shady behind-the-scenes trickery, in the eyes of the law, they’re complying with all mandatory privacy standards.

So what is the true moral of this story: if you are very concerned about your privacy, don’t set up an account on any social media sites – including Facebook, Twitter and Google.

Below is a version of the fake Facebook Privacy Policy that’s been making its way across the Internet.

For those of you who do not understand the reasoning behind this posting, Facebook is now a publicly traded entity. Unless you state otherwise, anyone can infringe on your right to privacy once you post to this site. It is recommended that you and other members post a similar notice as this, or you may copy and paste this version. If you do not post such a statement once, then you are indirectly allowing public use of items such as your photos and the information contained in your status updates.

PRIVACY NOTICE: Warning – any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated websites, you do NOT have my permission to utilize any of my profile information nor any of the content contained herein including, but not limited to my photos, and/or the comments made about my photos or any other “picture” art posted on my profile.

You are hereby notified that you are strictly prohibited from disclosing, copying, distributing, disseminating, or taking any other action against me with regard to this profile and the contents herein. The foregoing prohibitions also apply to your employee, agent, student or any personnel under your direction or control.

The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law. UCC 1-103 1-308 ALL RIGHTS RESERVED WITHOUT PREJUDICE