Dozier Internet Law, by John W. Dozier

Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:10 pm

The "Public Citizen" Defamation Penalty, by John W. Dozier

December 10, 2008

You own a local restaurant. A competitor decides to play dirty, and goes online and posts anonymous lies about your place...the horrible roaches he saw on his last visit, the owner's child pedophile conviction, and the substitution of horse meat for beef...all lies. At Dozier Internet Law, we are retained to get these false and fabricated claims down and off of the web, but within days the comments generate other seemingly concurring and confirming statements (from the same anonymous source using different names) and the results are now at the top of Google search when your restaurant is searched. Your business has dropped off to a trickle and your restaurant is on the verge of financial collapse.

Public Citizen and Paul Alan Levy, an attorney with the free speech group, want to penalize the restaurant! That's right. He urged a Maryland Appeals Court on Monday to make it much more expensive, difficult and time consuming for victims of defamation to get access to the courts. Today, the restaurant might elect to file a "John Doe" lawsuit and issue subpoenas to try and get the identity of the attacker so the attacker, and perhaps his employer, can be sued. Makes perfect sense. Public Citizen wants the Courts to require an extraordinary evidentiary showing before allowing information to be gathered by subpoena to identify the attacker because, well...."caution is in order because once anonymity is gone, it cannot be restored" said Mr. Levy. This extraordinary evidentiary showing would be much more expensive to the plaintiff and therefore, although Levy and Public Citizen won't admit it, the very existence of such a requirement will have a "chilling effect" on the ability of small businesses and individuals to seek legal redress through the Courts. At a time when anonymous speech is one of the biggest problems on the web, and people think they can say anything and get away with it, Levy implores the Courts to set things up so...people will think they can say anything and get away with it.

Dozier Internet Law explained this Public Citizen Litigation Group effort during a presentation last summer to lawyers. It is nothing new. Levy even got one Court to adopt his approach, but all others have flat out rejected the Public Citizen position. It strikes me that if "caution is in order", as Levy claims, he should deliver that advice to the many, many scofflaws Public Citizen Litigation Group openly encourages, supports and protects inside and outside the courtroom.

Because, unfortunately, netizens don't know better and actually believe the crazy advice regularly flowing over the web and blogosphere from the Public Citizen lawyers and Paul Alan Levy. And the web is a more dangerous place because of it.
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Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:11 pm

New Laws Are Coming, by John W. Dozier

December 11, 2008

Have we now reached the point in which the web is so out of control that governmental authorities in the form of prosecutors and state Attorney General offices feel compelled to act? A federal prosecutor in LA gets a conviction of a mom for violating the terms of use of Myspace. The New Jersey AG sues JuicyCampus.com for consumer protection violations based upon misrepresentations in its terms of use. A Colorado prosecutor brings criminal charges against a poster for allegedly defamatory comments on Craigslist. What's going on here?

At Dozier Internet Law we have for a long while encouraged the self regulation and self policing of the web. History has told us that if that fails, government will get involved in one way or another. What we are seeing today is action by the executive and judicial branches of state government. Absent self policing, Congress, state legislators and even city and county governments will begin passing laws that will profoundly impact the web as we know it.

Codes of ethics for search engine optimization and affiliate marketers have been around for a while. So that industry is trying, at least. But what can web developers, web hosts, ISPs, and domain registrars do to send the message to the legislators that positive steps are being taken to provide a more safe, secure and civil Internet? Each can consider establishing strict guidelines and implementing them through their User Agreements and Acceptable Use Policies. Then, they can each aggressively enforce those rules. And there is no law prohibiting a business from deciding with whom it will do business absent discrimination being visited upon a protected class. And why not do so? In a time when Dozier Internet Law is defending lawsuits filed against webhosts, ISPs, software developers, and ESPs for the conduct of their customers, why would a legitimate business not police itself? There is no reason.

Recently we have seen high profile calls by Public Citizen for web hosts to be willing to bring their financial resources to the table to defend the misconduct of their customers. We, and other lawyers in the know, call this type of a host "bullet proof hosting" or "black hat hosting". The reputation of these hosts, to say the least, is anything but stellar. No legitimate host would want those labels. And there is no business reason to do so. Is this the type of protection a web host would freely offer up to a $7 a month customer? Of course not.

So, on the one hand we have a pressing need to self regulate and self police, and efforts being made within industries and specific businesses to do so. On the other hand, there is the move afoot by the free speech and anti-business property rights groups to do everything they can to encourage misconduct. If the Public Citizen advice is followed that would be an invitation for legislation, a solicitation for more governmental intervention by the executive and judicial branches, and a recipe for disaster.

Web hosts should not only develop, implement and enforce strict guidelines aimed at returning safety, security and sanity to the online world, but undertake an industry-wide effort to establish a Code of Ethics and performance standards and good practice certifications. "Bullet proof" and "black hat" hosts need not apply because, well, you are ruining it for everyone.

Some of these free speech expansionsist public interest groups might think that high profile litigation surrounding new laws would be a good thing for fund raising. I am sure it would be. Is their advice motivated by greed? Or just a fanatical, one sided perspective nurtured by their long standing support of the scofflaws?

Here's the lesson, perhaps. Is the message for web hosts that if you freely associate with outlaws, you find yourself thinking like them? I don't know. But it could explain Public Citizen's position.
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Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:12 pm

The Sky is Falling?, by John W. Dozier

December 14, 2008

I keep seeing briefs from the Electronic Frontier Foundation, Public Citizen, and a lot of apparently ill-informed "professors" imploring the Judges to, in effect, agree with them in cases or the Internet will collapse. At Dozier Internet Law we even have a name for them..."chicken little briefs". So before the sky falls, let me point out that these free speechers and civil libertarian types keep submitting briefs advising of our imminent demise if they do not win. Has anyone mentioned to them that they keep losing, but the Internet is still here?

The sky is really falling? Now this mantra has been carried out into the non-lawyer public arena and people are actually repeating this jibberish. The MySpace Suicide conviction is a good case on point. The argument is that if you allow a website to dictate the terms of use of its site, and criminalize the unauthorized "outside of terms" uses, it will cause everyone to stop using the web because of fear of criminal prosecution. This power to establish terms is without precedent, the argument goes.

Therefore, the Courts should take the law passed by Congress and signed by the President and change it. Considering the roles our branches of government play this is a philosophically corrupt argument. It also makes no sense whatsover. Without precedent??? Are you kidding me? Okay, I can accept the fact that EFF, ACLU and Public Citizen have an agenda and bias and prejudice is expected. But these "law professors" should know better. Here's why:

If you break your rental car agreement and don't return it, you have violated the rental car company's "terms of use". Who reads those things? And it is grand larceny.

If you buy a software program, copy it and begin selling copies contrary to the license terms (which no one reads), then it is criminal copyright infringement.

Those are just two of what could be a long, long list. Because "unauthorized use" is a basic element that is often used to show the "mens rea" (latin for "guilty mind") in order to convict someone. So, the MySpace suicide conviction is nothing more than a continuation of the law. This is pretty elementary and is usually covered in the first year of law school. But then it hit me..."law professors" with enough time on their hands to interject themselves into pending cases all around the country probably aren't teaching first year law school classes.

People are still renting cars the last time I checked. Apparently software programs are still being used too! Is everyone worried that if they violate the "terms of use" (contracts or licenses) they'll end up in prison? No. Because decent, law-abiding people know that if they don't act in a reckless, outrageous, grossly irresponsible way they will be safe. And that belief works just fine.

Well, the verdict is in and the defendant has been convicted. I don't see any panic online. Websites are still processing Christmas orders. Dozier Internet Law clients don't seem besides themselves with fear.

I did notice, though, that Friday night the moon was really bright and large. And I thought, just maybe, the sky was falling! I can picture 1,000 years ago..."chicken little" characters running through a town creating widespread panic with doomsday declarations and imploring the masses to run for the hills..."imminent catastrophic demise is upon us-the sky is falling!", they would cry.

Sounds familiar.

Fortunately there is a very logical, rational explanation...I saw online that it was the lunar perigee. Happens every 15 or 20 years. And I then imagined a learned astronomer going into the panicked streets of long ago and telling everyone that there is no emergency, "doomsday is not upon us, so take off your boots and forget about climbing those hills, the sky is not falling, there is no catastrophe, and you can all safely return to your homes."

He turns, wipes the sweat off his brow, gives me a wink, shakes his head in disapproval of the situation, and as he is greeted by his colleague I hear him whisper..."it's just those damn professors again".

Exactly.
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Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:13 pm

Internet Law Attorney at Affiliate Summit, by John W. Dozier

January 11, 2009

Internet Lawyer John Dozier is at the Affiliate Summit this week in Vegas at the Rio. I'll be at our booth in the Exhibit hall mid-day for several hours on both Monday and Tuesday. The conference is sold out but if some of our clients need a pass to get in just let me know. Catch up with me today at the "Meet Market".

Now that the Holiday season is over, we are back to work at Traverse Internet Law. We'll be continuing with our commentary on the misuse of business names and the five most nefarious abuses.

I've noticed a trend towards web businesses getting themselves into more trouble by trying to manage a problem themselves. Even be careful with what you ask for when dealing with problems. Solutions are often the most difficult aspect of remediating defamatory posts, copyright infringement, and business name infringement. For you golfers out there, here is a good example of what I am talking about. Last January some PGA players were ready to head off to Hawaii for the Sony Invitational. The discussion turned to the prospects for success at the US Open at Torrey Pines. They all agreed Tiger would win. Unless, one responded, he breaks his leg!

Be careful what you ask for.
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Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:14 pm

Copyright Lawyer Perspective on Affiliate Summit West 2009 Day One, by John W. Dozier

January 12, 2009

It's been an interesting first day at Affiliate Summit. The affiliate marketing industry is alive and well, given that the conference is sold out in these days and times. I found two sessions of interest from a copyright lawyer perspective. The issue of theft of content remains at the forefront. In the Affiliate Strategies session the frustration of having good content pilfered was evident. The message from the experienced affiliate marketers was that you have to either decide to police it or let it slide. One industry veteran commented that with all the testing going on of different landing pages, he often sees low performing pages stolen. So, he isn't that worried about it. Others felt differently. My sense is that the degree of concern centers upon the amount of time and effort put into creating the page, and the success of the campaign. The cost associated with using a copyright lawyer should be weighed against the potential loss.

A nuance did come up with respect to RSS feeds. Many bloggers, of course, use the syndication technology to distribute commentary. When posts are sent out on RSS feeds, marketers, if you can call them that, have begun taking the content, posting it, and running ads for potential competitors. This is an interesting issue. When you provide RSS feeds, are you granting a license to recipients to use your copyright protected work commercially? Probably not. The intent is to provide a notice of the fact that you have something to say. Practically, the best solution might be to only distribute a small part of the post. That is an option that I use. That way the entirety of the work is not going out into other's hands. We sometimes see a marketer pick off our RSS feed and copy it. But a partial post with links still embedded is, on balance, a trade off that seems to be a good one. If the embedded links are stripped out...well, let's just say that it is a good time to be a copyright lawyer.
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Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:15 pm

Public Citizen Bullying, by John W. Dozier

January 23, 2009

There is a recent call for Congress to change Section 230 of the Communications Decency Act to expand immunity to websites that allow trademark infringement to occur. This comes from the mouths of Public Citizen and Paul Alan Levy. Let's first get the law straight. Knowingly permitting trademark infringement on, or through, your website, forum, or service is usually against the law. So it is only fair, makes perfect sense, and is the long standing practice among lawyers to advise the web business of the infringement so it can act to avoid legal liability by remedying the misconduct. That's what we do at Traverse Internet Law.

But Public Citizen and the ring of "yes men" that support virtually everything Paul Alan Levy says call such a practice "bullying" and propose Congressional intervention. Since when is simply notifying someone that something illegal is occuring on a premises "bullying"? If drugs are being sold in an apartment building, is it "bullying" for neighbors to report it to the owners? Or for that matter, the police? When you see someone shoplift, is it "bullying" to tell the shop owner? How many times do we see something illegal and report it? Often. Unless you are concerned with retribution...the criminals of the neighborhood selling drugs on the corner bully the neighbors into quiet acquiescence. Now that is bullying. The "bullies" aren't the lawyers doing their job, upholding the rule of law, and supporting the growth and development of a more civil online society. As Public Citizen and Paul Alan Levy try to protect their constituents who elect to break the law, they threaten those reporting the violations with attacks. That's street justice personified. It has no place in a decent, civil society.

Yet many netizens read and follow Public Citizen's advice and guidance. Their Internet litigation group has become detached from the mission of Public Citizen...to look out for the rights of consumers. They run around the country stirring up litigation and protecting the scofflaws, miscreants, and outright illegal elements of the online world. But they do so under the "Public Citizen" banner, misleading consumers and the public. The Public Citizen lawyers threaten to attack those who oppose them not in the courts but by inciting their constituents to attack online.

Public Citizen Internet litigation lawyers and their friends criticize us online for just about everything. But every time (twice in the past months) they oppose us in Court, we clean their clocks. The absurdity of their legal arguments is surpassed only by the speed with which the Federal Judge shows them to the door. If only Public Citizen's constituents were being told the truth. A little truth serum might be called for. I can imagine in my dreams what might come out:

We are Public Citizen employees. As the Internet litigation group, we act as free outside legal counsel to some of the biggest scoundrels on the web. We don't usually win in Court, but we have a "grass roots" organization of bloggers that can attack very effectively and hurt whoever says something we don't like. We give absolute and firm advice, and make it sound like it is the law, but most of the time we aren't being honest with you. We just need controversy to stay relevant and raise money. View our advice and guidance as wishful thinking. Whatever you do, don't follow it. It will get you sued. But regardless of the meritless nature of our positions, rest assured that if anyone tries to question us we will unleash an online attack that will cause great injury to the speaker.

That meets the definition of "bullying".

This from a "consumer rights" and "free speech" group. Some may wonder how long before the Board of Directors of Public Citizen starts thinking that this is a renegade group within their organization that needs to be shown the door just as quickly as the Judges are doing.

Consumer protection? Surely you jest. Free speech? Yes, I will agree with this. The Public Citizen lawyers are all for free speech...as long as they agree with it.
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Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:16 pm

Wikipedia Editing and Section 230, by John W. Dozier

January 26, 2009

Jimmy Wales, the founder of Wikipedia, is proposing a new editorial process for edits in which a trusted team of editors will review and approve new edits. The pervasive issue of false and defamatory edits hit a new low last week with a false entry that Senators Kennedy and Byrd had died.

Traverse Internet Law is on both sides of this issue. Clients ask us for guidance in what can, and what cannot, be edited, ever mindful of the fine line that must be navigated to stay away from publisher liability for the content of third party posts. Wikipedia is to be commended for focusing the net's attention on the need to use discretion and edit content. But unless Wikipedia is willing to assume a huge risk and become a publisher of content and not a mere conduit of information and a service provider, you won't see this new plan implemented.

That's because Section 230 of the Communications Decency Act won't give them immunity from liability that arises when false information is included in third party posts and edits. And there is no way Wikipedia can truly make judgment calls as to what is, and is not, defamatory. Even lawyers and judges disagree vehemently.

Let's hope that Congress sees the wisdom in amending Section 230 to establish more appropriate guidelines for editing that will allow immunity to be preserved when all one is really trying to do is have a decent, civil, honest and fair online society. Of course, that will be seen by Public Citizen, the Electronic Frontier Foundation, the ACLU and others as an attack on free speech. So the battle will be a heated one when the time comes for Congress to amend a 13 year old law that may have made sense before Web 2.0 and User Generated Content took over the web, but makes absolutely no sense now.
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Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:19 pm

DMCA Takedown Notice Abuses, by John W. Dozier

February 02, 2009

Dozier Internet Law is often involved in copyright infringement disputes. Sometimes we are representing an owner of a copyright, sometimes we find ourselves defending a client's use against copyright infringement claims, other times we are advising webhost clients how to deal with Digital Millennium Copyright Act "takedown notices". In order to use a DMCA take-down notice, all you do is fill out a form, serve it on a webhost or other service provider with a claim of infringement, and the material has to be pulled off the web by the recipient. Just as significantly, if you are the infringer, all you have to do is file a "counter-affidavit" denying the infringement and the material can go back up. That's an oversimplification, but you get the idea.

Unfortunately, we are seeing more and more outright abuse of this very powerful tool at Dozier Internet Law IN BOTH DIRECTIONS. Everyone seems to be treating it like a simple and easy and free way of dealing with copyright infringement. But it isn't. Serving a takedown notice requires certification that it is proper. Fair use is a much debated and ambiguous issue today, yet it is a valid defense to copyright infringement and needs to be considered before firing off a DMCA takedown notice. Laymen struggle with this concept, which is not a surprise given the fact that lawyers and judges are also struggling with applying the doctrine to the online world. And no amount of debate about the nuances of copyright law can ignore the much more serious problem of thieves all over the world simply filing blatantly false counter-affidavits to get the copyright infringing material back up. It's a two way street. And as these public interest and consumer rights and free speech commentators call for changes to this law, a little balanced perspective might be healthy.

If you serve a DMCA takedown notice without legal support, the law also creates liability for you. You could be paying the other side its attorney fees, and this can be a lot of money. I cannot recommend you draft and serve a DMCA takedown notice yourself without the assistance of legal counsel. But I cannot recommend you not do so. It's a wonderfully effective tool, easy to access and use, and free. What could be better than that from a business perspective?

We'll wait and see what changes are proposed to the law because of the shift in power in Washington. Public interest groups are already calling for amendments to make it more difficult for the average person or business to use this tool. At Dozier Internet Law we'd support some changes that make sense in a balanced way. Today over half of all takedown notices are reportedly improper. And that seems to be the crux of the complaints of the consumer rights and public interest groups. But they ignore an even more pervasive and flagrantly illegal abuse of the counter-affidavit tool by scofflaws all over the world. If amendments attacking this tool are to be considered, let's make sure we put on the table a counter-balance.

Let's amend the Copyright Act so attorney fees and statutory damages can be recovered if an improper counter-affidavit is filed by an infringer. Let's limit the use of the counter-affidavit to those subject to the personal jurisdiction of the US courts. And let's get rid of the requirement for a registered copyright prior to bringing legal action. In other words, all of these false counter-affidavits that are filed by infringers to get the copyright protected work back up on a site should be addressed as well. Let's create some very clear consequences to the infringers.

Oops. I bet these public interest groups didn't really consider the can of worms being opened if they convince Congress to consider amendments to the process. Some people just can't see both sides of an issue. The free speech expansionists are from what I can see some of the worst offenders. Be careful what you ask for. Amendments to the DMCA take-down process? You may just get some, and walk some of your most ardent supporters and constituents right into a buzzsaw.

I would tell those calling for changes to the DMCA to be thankful for what you have today, which is a nearly foolproof method for the scofflaws of the world to circumvent US copyright laws. Sure, sometimes it shows its teeth and has a loud bark. But as written today it is a little chihuahua. It's the pit bull version you need to worry about. Be careful what you ask for. You might just get amendments to the DMCA...just not your amendments.
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Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:20 pm

Kids Indicted, Parents Need To Step Up, by John W. Dozier

February 05, 2009

At Dozier Internet Law we battle "extortionists" all the time. In one way or another, an attack is initiated against a business or person. In almost every instance, the motivation is to extract something, usually money, from the target. This "business model" is employed much more often than most people realize. Without understanding or appreciating the economic motivation, netizens often come to the defense of these culprits claiming "free speech" and launching support for the scofflaw. Has extortion become a way of life? This isn't an isolated incident. It happens often, just not to this seemingly sadistic extreme. That's why at Dozier Internet Law we look for the motivation of attackers and the great majority of time it comes back to a direct benefit...money, or in this case sex:

An 18-year-old male student is accused of posing as a girl on Facebook, tricking at least 31 male classmates into sending him naked photos of themselves and then blackmailing some for sex acts. The boy was charged with five counts of child enticement, two counts of second-degree sexual assault of a child, two counts of third-degree sexual assault, possession of child pornography, and repeated sexual assault of the same child. The social networking site Facebook was used. The boys reported that they were tricked into sending nude photos or videos of themselves. They were told that if they didn't have sex with a male friend, "she" would send the nude photos or movies to their friends and post them on the Internet, according to the complaint. Seven boys were identified as successful targets. The maximum penalty if convicted on all charges is nearly 300 years in prison.

And just today it's reported that "sexting" through cell phones resulted in child porn criminal charges against both the school age senders and recipients. You can look up the definition of "sexting" if you want.

How is this type of thing becoming a pervasive plague? Because parents of today for the most part don't understand social networking, Web 2.0, or the role of the web in the life of kids. Many have never been on Myspace or Facebook, don't know about Twitter, can't appreciate the power of the web or digital images in our new world order, and are out of touch.

Here's an idea. Instead of spending our resources exclusively on educating the kids, why not invest in educating the parents? If mom and dad get it, then maybe by the time these kids grow up they won't be looking for their next target...an ex-friend, a former teacher, that local business...and expecting to live off the proceeds and benefits of cyber-stalking, cyber-smears, or "Google Bomb" threats.
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Re: Dozier Internet Law, by John W. Dozier

Postby admin » Fri Oct 25, 2013 6:22 pm

Amend Section 230 Immunity Today, by John W. Dozier

February 09, 2009

Dozier Internet Law has to often remind la wyers that there is no absolute right to online anonymity. The courts have long recognized the need to unmask those who hide behind false identities on the Internet. Those who defame, those who spam, those who hack, and in some circumstances those who use commercial speech…their anonymity is rarely protected. Legal subpoenas to a website will net the IP address of the offender, and a follow up subpoena to the ISP will identify the user of the IP address at the time of the “anonymous speech”. This usually works well when Dozier Internet Law takes this approach.

But ISPs usually only hold onto their records for short periods of time. And log files may get destroyed. Log files contain the IP addresses of those posting. The virtual "disappearance" of the records used to identify thieves, crooks and scofflaws is openly encouraged on the free speech organization websites of the Electronic Frontier Foundation and Public Citizen through Paul Allen Levy, a First Amendment lawyer:

Levy says: Another approach to preserve anonymity of posters is to adopt a “no-logging” policy, whereby storage of identifying information about visitors to the web site (and about posted(sic) to online discussions) is kept to a minimum. Technical advice effecting such limitations can be found on EFF’s web site at …

An amendment to Section 230 of the Communications Decency Act would seem to be in order. Let's ask Congress to require log file record retention in order for an interactive service provider to avail itself of the immunity. That seems particularly reasonable given the advice to destroy the records. By the way, the EFF guidance is even grosser than Levy's comments.
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