Monthly Archives: April 2013

Domains By Proxy Lawsuits: Uncovering A DBP Customer

Domains By Proxy Lawsuits
Arizona-based company, Domains By Proxy, hides user information from public view. Can you subpoena them for information and get it?

Domains By Proxy Lawsuits

Have you ever tried to uncover a website owner using ‘Whois’ information, only to find ‘Domains By Proxy’ is the registrant? The discovery can be frustrating – especially if someone defamed you online and you want to go legal on their butt. After all, it’s tough to sue a person for defamation, infringement or dilution if you don’t know who they are.

It is possible, however, to uncover anonymous defamers who use privacy intermediaries, like Domains By Proxy.

Domains By Proxy 101

Domains By Proxy is a Delaware corporation, headquartered in Arizona and owned by hosting/domain giant, GoDaddy. DBP offers domain registration privacy services that shield customers’ names from public view. When a person uses Domains By Proxy, DBP’s information populates the “Whois” database, thus making it difficult to uncover the registrant’s true identity.

Domain By Proxy’s Definition Of Privacy

Domains By Proxy is not loved by all. Some folks feel the company talks a good game, but ultimately is a double dealer. Accusations of “malicious business activities including inducements to join their service,” have plagued the company for years. In addition, many detractors think DBP does a bad job of keeping customers’ data private.

Domains By Proxy’s policies, however, are clearly delineated in their terms. Section 4 of the DBP user agreement states the company has the “absolute right and power…without any liability to you whatsoever,” to either: (1) close your account and (2) reveal your name and personal information.

While Domain By Proxy’s less-than-private policies may be kryptonite to dastardly ne’er-do-wells, the company’s willingness to cooperate when a law is broken is beneficial to people who’ve been anonymously defamed online.

Domains By Proxy Lawsuit: Powermark Homes v. John Doe

Perhaps the most well-known Domains By Proxy lawsuit is Powermark Homes v. John Doe.

Mark and Lisa Powers owned and operated a real estate company called Powermark Homes, Inc. Like all companies, Powermark had an unsatisfied customer – an unsatisfied customer that decided to create a couple of “suck sites” about the Power’s venture.

When the Powers learned of the disparaging websites, they filed a complaint against John Doe and Domains By Proxy citing defamation, disparagement and invasion of privacy. In addition to the suit, the plaintiffs also sent DBP a DMCA takedown request and sought a temporary restraining order requiring the “defendants to remove the false and defamatory website.”  The Powers averred “the statements, allegations, pictures and other representations contained in the false Internet site are in many or most instances false and misleading against some of…the plaintiffs, and assert false allegations of fact which directly harm the reputation and public appearance of some or all of the plaintiffs.”

As is the DMCA process, DBP notified Doe of the DMCA takedown request. Doe then engaged in some pro se lawyering. Eventually a public citizen litigation group came to Doe’s legal rescue. Litigation ensued.

Ultimately, a judge granted Doe’s and DBP’s motion to dismiss the defamation case, because the Powers, according to the court, didn’t clearly delineate the nature of the defamation. That said, the Powers did succeed in getting the “suck sites” down via the DMCA. So, while they didn’t get any money out of Doe or DBP, they got the site removed from the Internet – which, in many cases, is all a defamation victim wants.

Powermark Homes v. Doe and Domains By Proxy was not a popular ruling. Many saw it as a clear cut example of how the DMCA can be used unfairly to silence critics. And, from a purely objective legal standpoint, that’s a fair assessment. But for someone looking to rid the ether of unflattering or disparaging comments, the DMCA can be a handy tool. Basically, it’s a problematic loophole-filled law, with good intentions.

Domains By Proxy Privacy Policy Explained (Last Revised 3/22/2013)

The beginning of Domain By Proxy’s privacy policy states the company “will not give any information about you to others without your express permission,” language in the middle, however, qualifies that statement. Further down the Domains By Proxy privacy policy, it states that they will provide “information about you to third parties to provide various services on [their] behalf.” These services include:

  1. Processing credit card payments;
  2. Serving advertisements;
  3. Conducting contests or surveys;
  4. Product and customer demo analysis;
  5. Shipping; and
  6. Customer relation management.

They also reserve the right to:

  1. Allow third party ad servers to “employ cookies and action tags to measure advertising effectiveness.”
  2. Supplement “the personally identifiable information you submit” to them “with information from third party sources.”

Domains By Proxy’s Stance On Giving Information When Subpoenaed Or Approached About A Lawsuit

Domains By Proxy clearly states that they may share information with attorneys, law enforcement officials or other legal bodies to “resolve any and all third party claims, whether threatened or made arising out of your use of a domain name registered by DBP on Your behalf.”

Other times when DBP says they will reveal your information:

  1. If you breech any provisions of the TOS or DBP anti-spam policy.
  2. Protect the integrity and stability of the applicable domain name registry.
  3. Comply with any subpoenas, court orders or requests from law enforcement.
  4. Comply with UDRP.
  5. “To avoid any financial loss or legal liability (civil or criminal) on the part of DBP, its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees.”
  6. Domain name infringes on another’s intellectual property or “other legal rights.”

If DBP catches wind that you are engaged in any “illegal or morally objectionable activities including, but not limited to, activities which are designed to:”

  1. Appeal to prurient interests;
  2. Defame, embarrass, harm, abuse threaten or harass third parties;
  3. Violate laws;
  4. Promote hate crimes, terrorism and child pornography;
  5. Promote vulgar, obscene, invasive, privacy, racially, ethically or otherwise objectionable;
  6. Impersonate;
  7. Harm minors in any way;
  8. Spread an e-virus.

What If I Defamed Someone, And Canceled My Domains By Proxy Account Before The Person I Defamed Figures Out It Was Me?

Canceling your Domains By Proxy domain won’t help much if a potential plaintiff is on the hunt. The company privacy policy states, “when your Domain By Proxy account is canceled” (either voluntarily or involuntarily) all of your personally identifiable information is placed in “deactivated status on our relevant Domains By Proxy databases. However, deactivation of your account does not mean your personally identifiable information has been deleted from our database entirely. We will retain and use your personally identifiable information as necessary in order to comply with legal obligations, resolve disputes, or enforce our agreements.”

If A Plaintiff Gets The Government or Lawyers Involved, And You Genuinely Did Something Wrong, Expect Domains By Proxy To Give Up The Goods On You

Under Domain By Proxy’s “Compliance with Laws and Law Enforcement Section” it states:

“We will disclose any information about you to Government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including without limitation subpoenas), to protect our property and rights of a third party, to protect the safety of the public or any person, or to prevent or stop activity we consider to be illegal or unethical. We will also share your information to the extent necessary to comply with ICANN’s rules, regulations and policies.”

In other words, if you genuinely defamed someone, ripped off intellectual property, or in some other way broke a state of federal law, Domains By Proxy may have no qualms about giving up the goods on you. That said, they’re known to follow DMCA standards, so if you file a nebulous – or flat out false – DMCA takedown request, don’t expect cooperation. More than that, if you do pursue a false DMCA takedown, you may be the one who ends up under a pile of debt, because false DMCA request laws exist.

In order for a claimant to open a dialog with DBP about seeking identifying information in service of a civil legal matter, a valid subpoena must be faxed, mailed or served to DBP at their Scottsdale, AZ headquarters.

If the issue is not an emergency, DBP won’t immediately hand over user data. They will alert the affected customer, giving them an opportunity to quash the subpoena.

Domains By Proxy also retains the right to “change an administrative fee” to the person or entity submitting the request, for costs associated with subpoena compliance.

If you need to unearth the identity of a Domains By Proxy customer, contact Kelly Warner Law. We’ve dealt with Domains By Proxy lawsuits and litigation before and understand the best way to work with the company. We’ll review your circumstances and advise you on the best way to move forward. If you’re serious about suing – or getting online material removed quickly – don’t dilly-dally, because defamation statutes of limitations, in most jurisdictions, aren’t long.

Suing A Psychic For Defamation? You Bet’cha!

psychic defamationThe Dallas Observer calls the case the “single greatest lawsuit ever to be filed in Dallas County” – and they’re not exaggerating. After all, It’s rare that a suit involving a 46-year-old grandmother psychic, real name Presley, who sometimes goes by “Angel” or “Rhonda,” comes along. Brass tax: the psychic is being sued for defamation, by a farmhouse-living couple, because a real life attempt at being the “Medium” backfired.

The Farmhouse Owners v. The Psychic: In The Beginning

One June day in 2011, the FBI, DPS and the Liberty Country Sherriff’s Office descended upon Joe Bankson’s and Gena Charlton’s farmhouse in Hardin, Texas. A few media outlets arrived, too. The gang was there because a woman who called herself Angel had called the police insisting that a mass grave of of dismembered children’s bodies were buried at the farmhouse. The psychic also warned that “stuff was written all over the walls in blood.” When police asked where she got her information, Angel explained she divined it.

Who Called the Cops…And the Paps?

Now, it’s unclear if authorities already had information pointing them to the Hardin farmhouse, or if they’re big time believers of clairvoyance. Regardless, the Sheriff’s department supposedly called some cronies and made their way to the site. Turned out, though, that Angel’s extra-sensory skills were askew – because nobody found any bodies.

You Believe A Psychic, You Get Sued

When the masses left the property, Bankson and Charlton decided to file a lawsuit. In their eyes, privacy was breeched and peace was disturbed thanks to a Psychic and overzealous law enforcement agents. The farmhouse owners sued “Angel” for defamation, the Sherriff’s department for unreasonable search and seizure and Belo News, NYT, CNN, Thomson Reuters and ABC News for publishing “false statements in national and international headlines.” Bankson and Charlton claimed to have suffered lost wages, mental anguish and substantial reputation damage.

First Step In This Defamation Saga: Find Out Who Angel Really Is

Bankson and Charlton encountered some legal hurdles at first. Most notably, the only name they had for the less-than-stellar psychic was “Angel.” Was that her real name? Was she even a woman? After some lawyering, however, Angel was revealed to be one Presley Grindley of Lago Vista – a 46-year-old grandmother who also went by the name Rhonda.

Related Reading: Click here to find out how to uncover an anonymous defamers real name.

Name in hand, Grindley was served. The process agent even took a pic of the incident, which can be seen on the Dallas Observer’s site. Nevertheless, photographic evidence didn’t stop our intrepid Angel from sending a note to officials – a few days before she was due for a deposition – that she had “no knowledge of” why she should schlep down to Dallas for questioning.

Between you and me, Angel-Rhonda-Presley may have a hard time getting out of this one. Even if the case is thrown out, she still has to go through the motions so it can be. If you ignore a lawsuit it won’t just go away – even if you DO have super-sensory powers.

What Happens Next In the Great Dallas Psychic Defamation Lawsuit?

Early on in the case, Bankson and Charlton opted to dismiss the charges against the media outlets, on the condition that they can re-file at a later date.  It sounds like they’re seeing how the case against the psychic goes first to determine if it’s worth going after the others. If Bankson and Charlton are serious about suing the others, though, they need to keep defamation statute of limitations in mind.

As far as Angel goes, when approached by media outlets about the story and subsequent defamation lawsuit against her, she explained, “I am a reverend. I am a prophet and I get my information from Jesus and the angels. I told them that I had 32 angels with me and they were giving me the information and then it went from there.”

Good luck with that argument in court, Angel!

P.S. – If you want to read a well-written, laugh inducing bit of journalism, check out the Dallas Observer’s articles on this satisfying case. You’ll be glad you did.

Texas Couple Sues Angel the Psychic, Belo, the Times and CNN Over False Claims Of a Mass Grave at Their House

CNN and CBS Both Off the Hook in Defamation Lawsuit Over That Nonexistent Mass Grave

Angel the Psychic, Wrong About All Those Bodies at a Liberty County Farmhouse, Is Apparently Unaware She’s Being Sued

 

AP v. Meltwater News: Summary & Questions

online copyright case MeltwaterMeltwater News – a San Francisco “commercial media-monitoring service” – hasn’t had much luck in the court room lately. First, they tussled with the UK’s National Licensing Agency and came out bruised. Then, a New York District Court judge ruled against the news clipping service in favor of the Associated Press. While not as widely discussed as other Internet law cases currently making headlines, Associated Press v. Meltwater is significant because the ruling could stifle the growing “niche information” industry. Moreover — and only tangentially related — the case brings into question whether or not we need to redefine the “sweat of the brow” doctrine, as it relates to copyright infringement, when a case involves a digital information company.

These days, search technology almost qualifies as an inalienable right. And if current trends continue, the next generation may consider print newspapers a novelty in the same way Millennials consider record players to be retro quaint.  That’s why cases like Associated Press v. Meltwater matter; they shape the boundaries of digital communication and define the rules regarding the commodification of electronically distributed information.

So, let’s review the Associated Press v. Meltwater News lawsuit. Why did the AP sue Meltwater? Why did the Electronic Frontier Foundation publicly support Meltwater? What did the AP argue? What did Meltwater argue? Perhaps most importantly, how did the judge rule and why?  Finally, we’ll touch on how this case could affect online business moving forward.

Why Did the AP Sue Meltwater News?

The Associated Press brought a copyright infringement lawsuit against Meltwater News in February 2012. The former alleges the latter was taking unfair advantage of their intellectual property via an online news clipping service.  Specifically, the AP argued that Meltwater’s use of AP headlines and ledes in their e-mailings infringed on copyrights , thus damaging the AP financially. In laymen’s terms, the AP felt Meltwater was simply copying, re-packaging, profiting, and not compensating the AP for their reporting and analytical efforts – not to mention the overhead the AP incurs to produce said reporting and commentary.

Associated Press v. Meltwater News: Plaintiff’s Argument

The Associated Press’ argument was straightforward: don’t use our content in your press clippings because it’s the online equivalent of selling stereos that just happened to fall off the back of a truck.

Now you may be thinking, “What about fair use? Can’t anybody reference another work so long as it passes the fair use test? Doesn’t the fair use test allow for the use of excerpts?” And perhaps most germane to this case, “Didn’t Kelly v. Arriba Soft Corporation establish that search engines are operating within the bounds of fair use?”

An attorney for the AP, Elizabeth A. McNamara, explained that fair use rights kick in when a given mark is used for comparison or critique. In this case, Meltwater was using the material despite a lack of commentary, analysis and context, and therefore should be held accountable.

Associated Press v. Meltwater News: Defendant’s Argument

In their defense, Meltwater argued fair use. They averred that their service is, essentially, a specialized search engine that should not be held liable for copyright infringement. The media-monitoring service highlighted the structure of other search engines, like Google, and pointed out that standard search result pages include content snippets.

Both The electronic Frontier Foundation and Public Knowledge wrote amicus briefs in support of Meltwater. Their support stemmed from a shared belied that the AP’s claim trumpeted a “dangerously narrow view of what is ‘transformative’ in a copyright court battle over a news-tracking service.”

Associated Press v. Meltwater News: Judge’s Ruling

After considering both arguments, U.S. District Judge Denise L. Cote ruled that “Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is a central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material…Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work. Permitting Meltwater to take the fruit of the AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.”

In other words, AP wins and Meltwater loses.

Does The Judge’s AP v. Meltwater Decision Inadvertently Make Newsletters Illegal?

Millions of companies and freelancers send out regular newsletters to people who voluntarily add their address to mailing lists. Most mailing lists are essentially a marketing tool, and therefore free, but many are only sent to individuals who pay money to belong to a group or club.

Let’s pretend that Company A, which is in the business of installing pools, maintains a backyard landscaping newsletter for their customers. In it, they highlight pool trinkets and deck building services. Occasionally, Company A’s newsletter includes links to articles about pool maintenance and backyard lifestyle ideas from a variety of online publications. One day, Magazine Y decides that Company A is infringing on their copyrights by including links to Magazine Y articles in their monthly e-mailing. So, Magazine Y decides to file a copyright infringement lawsuit against Company A.

Under the legal precedence set in AP v. Meltwater, Magazine Y would win and Company A would have to comply with any damages and injunctions ordered by the court, in addition to their own attorney fees. While it may seem like an easy thing to simply exclude any media outlet that doesn’t want to be involved in a newsletter, the costs of being sued could be enough to put some small business out of business. More than that, it opens the door for a new type of copyright troll.

Do We Need To Re-Examine Sweat of the Brow Copyright Standards?

Though not related to the central questions of AP v. Meltwater , the case raises another legal question: since information is now a hot commodity, and since the Internet has created a new industry which deals solely in data-collection, analysis and distribution, is the old standard that “sweat of the brow” efforts cannot be copyrightable? It’s a stretch – but it’s something to consider since information brokering is emerging into a multi-billion-dollar industry.

Under U.S. law, the “sweat of the brow” doctrine dictates that labor alone does not constitute a “new work” and therefore any works that only have sweat of the brow labor as a distinguishing factor cannot be granted federal copyright protections. For example, a phone book is not copyrightable. To wit, it’s understandable how a judge could consider Meltwater’s services, determine that it’s a sweat of the brow creation, and therefore declare it unworthy of intellectual property protection.

But data and content creation and content distribution companies, like Meltwater, are the hot new thing. As such, it may be time to start re-examining how current legal precedence could butt proverbial heads with the rising cloud-based content industry.

What This Case Could Mean For The Future Of Online Copyright Lawsuits?

AP v. Meltwater could have significant effect on future online copyright cases. The courts have definitively spoken and their message is clear: It’s not cool to simply re-package another party’s content and sell it for profit without compensating the work’s originator in some manner. It’s a ruling that inadvertently muddies already established online intellectual property case law – like Kelly v. Arriba Soft.

Meltwater intends to appeal the decision, as they contend it “misapplies fair use doctrine and is at odds with a variety of prior decisions that have paved the way for today’s Internet.” To keep up with our perspective on the case, join our mailing list.

Do you have an online copyright legal issue? If yes, and you want to consult an attorney, contact Kelly Warner Law. We have a dedicated team of lawyers well-versed in Internet intellectual property law. Get in touch today.