Request for LEGAL ADVICE / AID in defense of a LART

[karlthepagan.livejournal.com]

Hail Eris!

The lart began when I saw several friends complain about wiccans_unite. The maintainer of the new comm had copied the user info, icons, and interests straight out of wiccan, where the wiccans_unite maintainer had a falling out over various new Wiccan topics which are familiar to several of us.

Thus wiccans_untie was born. Days later blackthornglade was libeled, and indicated to be the creator (since they had joined, while I had not). I quickly corrected the mistake, but found an abuse complaint of copyright infringement against me. Fortunately the claim was fraudulent, as the content in wiccans_untie's info originally appeared in wiccan and silvertree has (if I interpret "Np." correctly) granted her permission for the use of that text in wiccans_untie (she was in fact notified as soon as I created the lart.)

Unfortunately the Digital Millennium Copyright Act requires that I submit to a legally stringent commitment. The abuse team has advised me to seek legal representation, so here I am!

FYI I am in the 9th Federal Legislative District(?) Eastern Washington U.S. Court District (easy, 30 minute drive for me).

Comments

[stollman.livejournal.com]

http://www-2.cs.cmu.edu/~dst/Terrorism/form-letter.html

[karlthepagan.livejournal.com]

Thanks, it sounds like they did not have to provide an affadavit in the first place, so I can at least ask to see the abuse complaint resolved on technical terms.

[karlthepagan.livejournal.com]

Here is what they had to agree with on the abuse form:

What is your full legal name?

Where on our servers does this material reside? Please include full links (URLs) to entries, not simply a link to an entire journal.

What is the original URL of the material being infringed upon? Please include full links if possible.

(repeat the following oaths)
"I do affirm that in good faith, I believe that this material is not authorized for this use."

"I hereby state, under penalty of perjury in a United States court, that the material given here is accurate and I am authorized to act on behalf of the copyright holder."

Do you understand that the user who is allegedly violating your copyright has the right to file a statement that he or she believes that no violation has taken place, at which point LiveJournal is no longer obligated to act in the situation and you will need to pursue private legal action?

Do you agree, under penalty of perjury, to all of the statements above?

[stollman.livejournal.com]

So your response should be to submit the form letter I pointed to, with certain sections removed before sending the form letter. In particular it looks like the lj abuse form process ensures that the complaint follows the correct procedures, so you can knock out the whole section related to "...does not follow the prescribed form for notification...".

[stollman.livejournal.com]

By the way, it's totally ok to send your counter-notification letter via email, but I would send a paper copy as well and inform them that you are doing so.

[elf]

If this is where you came to find legal representation, errr, I think you're setting a terrific base for a "diminished capacity" plea to whatever.

That said, I'm glad you posted it... I predict a great need for Discordians of all ilks to need to understand aspects of the DMCA-in-action.

(Dammit, I will *not* create a pile of throwaway identities to go trolling at emmyrose's silly community. I really don't have time.)

I do happily exhort all members of Fifthtrinity to join wiccans_untie and see if it can get more members than Wiccans_unite. I'm always pleased when the mere existance of a meme (in this case, an LJ community) can drive someone else up the wall, especially when the someone else is a truly deserving hypocritical jerk.

I'd also like to know if members who join the Untie community get pre-banned from Unite. Anyone up for pointless memetic warfare research?

[stollman.livejournal.com]

In point of fact, he was not requesting (and has not received) legal representation.

A diminished capacity plea is only relevant to a crime of specific intent; see Fazzini, 871 F.2d at 641; see also Smith, 638 F.2d at 132.

All that aside, this really is a simple situation. Somebody has tossed out an accusation because it's easy to do and causes stress in someone else they don't like. The response is to send a simple "that's bullshit" letter, forcing them to put up or shut up. This is the only reasonable response (so long as the accusation is unfounded) and so the question is limited to the correct legal wording of the response letter. DCT has kindly provided a well researched, correctly worded, completely sufficient template letter that has been used successfully by hundreds of people over the last couple of years.

IP law isn't simple, but it's not black magic. As in other parts of life, one is probably better off going it alone than feeding the lawyers.

[jenett]

Quick and unofficial comment.

Hi. I'm Jenett. I happen to be a member of the Abuse Team, but I'm also aware of the Wiccans_unite/etc. stuff going on because of a bunch of people on my friends list. (elfwreck, blackthornglade, etc. which I hope gives you some idea where my personal sympathies lie.)

(I'm trying to stay out of it: one of the deals with being on the Abuse Team is trying to avoid wading into certain kinds of messy situations like this one if we see them coming. I'm also, incidentally, not involved in handling the Abuse side of stuff that's going on at all: we don't take action in cases where we know people involved or are biased about it.)

Anyway, what I really wanted to say is that in the case of copyright, there's a specific legal procedure we're obliged to follow (or else we can get hit with pretty massive fines.) If someone files a full DMCA request, and swears under penalty of perjury that all the information they are providing is correct, we're pretty much required to take them at their word. (There's a few things we check, of course.)

If someone else then comes along and says "Hey, I think there's something wrong with that." then we can't resolve it: we have to leave it for the court system, that's how the law works. (And that's the counternotification process)

We're also not lawyers (though a bunch of the Abuse Team is pretty well informed about relevant law, and we have someone about to start law school, and various other levels of professional experience or training) so we can't give someone legal advice if they want to contest someone's right to the material. (Because if we did, and we were wrong, we'd be legally liable ourselves.)

Lovely balancing act, no?

The short answer is after we have a complaint, we need the material either to be removed (in which case no further problems on that account.) or we remove it (generally this means suspending the account in which the material is located.) and working it out from there if needed. Again, a lot of this is US legal requirements: we don't have a lot of say in the timeline or removal aspects once we get a formal DMCA complaint. And again, there are nasty possible penalties if we don't take action, which would be bad for the site as a whole.

I don't know if any of this helps you out at all. There are limits to what I can discuss about specific instances or Abuse policies or whatever (plus I'm going to be out a lot of today, Wednesday, and then out of town for the weekend with somewhat limited 'Net access) but feel free to email me at jenett@livejournal.com if you want or have further questions. If you ask stuff I can't answer for whatever reason, I'll say so.

I just hoped that a little more explanation of the legal bits of this (and what LJ is required to do/not do) might maybe help out.

[karlthepagan.livejournal.com]

I really think that my only problem with the Livejournal staff side of this thing is that IT'S SO DARNED EASY TO FILE A COMPLAINT!!!!

If they had to fax or upload a digital image of their physical signature and draft a statement consistent with the DMCA (sec 512 blah blah blah blah) then I'm quite sure you wouldn't have as many false reports that you were legally required to follow up on.

[jenett]

Yeah, but really, it didn't help much when we didn't have the form (and people had to write it in).

If the "Under penalty of perjury" thing doesn't dissuade someone filing a false report, making the report method a little harder almost certainly wouldn't.

On the other hand, before the current system went in, we spent *way* more time trying to explain to people what we needed to do anything about it, and dealing with a lot of people outraged by the fact we were trying to follow the law.

(as a side note: the FAQ re: copyright stuff hasn't changed much - I think just the relevant changes about how to actually file the report - since we put in the new abuse report forms, which is why I can tell that the forms have actually lightened our workload in this area a bit.)

Faxing and uploading are also much more complicated - we still can't really verify it anyway (so, really, if someone wants to lie, what's the point) and the support and abuse form systems and email addresses don't allow attachments. And the law says we don't need to verify identity or ownership of copyright - we're not the people who do that, that's why the perjury statement is there - simply make sure the required information is there, and that there's a moderately believable evidence for the original version. (prior creation date, etc.)

[ian-gunn.livejournal.com]

I'm trying to decide what is more amusing and chaotic, that you came to a discordian group asking for legal advice or that you got good and pertinent advice.

[karlthepagan.livejournal.com]

Advise on the practical execution of a lart none the less :D