International

An Increase in Infringement or the Promotion of Censorship? The Growing Tension of VPN Use

In the days of unwarranted government surveillance and elaborate data collection, people increasingly rely on anonymizing services to keep their online activities private, such as proxy servers, encrypted cloud storage, and virtual private networks. Virtual private networks, or VPNs, route online communications through a secure and encrypted private network to a remote server (sometimes in a jurisdiction with greater protection for freedom of speech or weaker law enforcement).

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Metadata Surveillance, Secrecy, and Political Liberty (Part Two)

(This is the second part of a two-part post. In Part One, Bryce Newell examined the implications of government collection and analysis of metadata relating to electronic communications. Today, Bryce picks up from where he left off, considering the implications of government surveillance under different conceptions of freedom.)

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Façonnable USA Corp. v. John Does 1-10

Threat Type: 

Lawsuit

Date: 

04/07/2011

Party Receiving Legal Threat: 

John Doe Wikipedia Editors & ISP Skybeam, Inc.

Type of Party: 

Large Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Colorado

Case Number: 

1:11-cv-00941-CMA -BNB

Legal Counsel: 

Paul Alan Levy & Michael H. Page of the Public Citizen Litigation Group, and John Seiver of Davis Wright Tremaine LLP (for Skybeam)

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Wiki

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Status: 

Pending

Disposition: 

Settled (total)
Withdrawn

Description: 

On April 7, 2011, clothing company Façonnable filed suit in Colorado federal court against a set of John Doe defendants.  According to the complaint, around March 1, 2011, one or more anonymous individuals edited the Wikipedia entries of Façonnable and its parent company M1 Group. The edits discussed "purported" ties between M1 and Hezbollah. (A preserved copy of the Façonnable page is included among the court documents.) The complaint alleges trade libel, violations of Colorado's Consumer Protection Act (for false representations of Façonnable's goods/activities), and federal Lanham Act violations--specifically, that the Wikipedia editors falsely described Façonnable's goods/activities, constituting "acts of infringement."

Façonnable also alleges that the IP addresses of the anonymous Wikipedia editor(s) are associated with Colorado ISP Skybeam, Inc. and that on March 4, 2011, Façonnable emailed (scroll down) Skybeam requesting the identities of the anonymous editors. Skybeam declined to provide the information without a proper summons.  In response, simultaneously with the filing of the complaint, Façonnable moved for expedited discovery to subpoena Skybeam for the editors' identities.

On April 8, 2011, the case was referred to a magistrate judge, and on April 18, the magistrate granted Façonnable's motion for expedited discovery. A few days prior, Façonnable had contacted Skybeam to request that the Wikipedia editors' identifying information be preserved. Once its motion was granted, Façonnable subpoenaed Skybeam for that information; Skybeam then responded with a letter objecting to the subpoena. On April 29 Skybeam moved for a modification of the discovery order, arguing that the magistrate judge applied too lenient a standard in granting discovery by failing to account for the editors' First Amendment anonymous speech rights. Façonnable opposed the motion.

On May 24 the magistrate judge denied Skybeam's motion. Expressing concern that Façonnable would have "no ability to vindicate its rights," the magistrate held that the subpoena was a "content neutral" oversight of online speech, and thus the subpoena satisfied a "heightened sensitivity" to the editors' First Amendment rights. The magistrate ordered Skybeam to comply with the subpoena by June 3.

On June 1, Skybeam filed objections to the magistrate's decision with the district court, and moved to stay the order to comply with the subpoena. On June 2, the district court judge granted the stay. Skybeam's memo accompanying its objection expands on the First Amendment concerns in the case (and the need for strict scrutiny in deciding whether or not to enforce the subpoena), discusses the viability of Façonnable's federal Lanham Act claims, and argues for a more stringent five-step test before revealing anonymous speakers' identities.

On June 27, Façonnable filed an unopposed motion for an extension to reply to Skybeam's objections.

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On July 18th, Façonnable filed a notice of voluntary dismissal with prejudice. According to news reports and subsequent court documents, the company reached a settlement with the John Doe defendant.

On July 22, Skybeam moved to vacate the magistrate judge's order to reveal the Doe identities. Skybeam argued that, although the apparent settlement had mooted the question of the propriety of the magistrate's order, Skybeam was entitled to have the order vacated to avoid setting precedent. Skybeam's motion includes some information about the possible terms of the settlement, stating that on July 11, Façonnable offered to dismiss the case, if the John Doe's attorney "would make certain representations on behalf of the Doe . . . including that Doe was not one of the plaintiff's competitors." (The actual settlement terms have not been made public.)

On July 27, the District Court Judge granted Skybeam's motion to vacate, which was unopposed.

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Blog Post

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Who Took Your E-book?

E-readers are spreading both in the U.S. and abroad. Last week the New York Times reported that the Kindle, previously available only on Amazon.com, will be sold in brick-and-mortar stores by Target. College students could grab one when they pick up their school supplies.

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New Legal Guide Section on Foreign Risks

It's pretty obvious that material placed on the "word wide web" is, indeed, available around the world -- at least most of it.

While the ability to make content available worldwide is a great virtue of the Internet, it has the potential to create a legal minefield for citizen journalists, who could face a civil or criminal legal action over online content in any country where the content is available.

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Goldsmith and Lessig: ACTA Raises "Serious Constitutional Questions"

Harvard Law School professors Jack Goldsmith and Lawrence Lessig published an opinion piece today in the Washington Post, in which they lay out the serious constitutional concerns surrounding the Obama administration's plan to adopt ACTA as a "sole executive agreement" that requires only the president's approval. It's well worth a read.

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Congressional Efforts to Stymie "Libel Tourism" Rev Up

After several false starts, it looks like Congress is finally going to address the issue of "libel tourism," an unfortunate practice where foreign plaintiffs pick the jurisdiction with the most draconian libel laws in which to sue. 

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Another Reminder to Choose Your Hosting Service Carefully

My colleague Ethan Zuckerman just put up a disturbing post about Kubatana, a prominent Zimbabwean NGO, which saw its site taken down because its hosting provider, Bluehost, got cold feet after it discovered the site contained content from (gasp!) Zimbabwe.

Kubatana, among other things, hosts websites for prominent activist organizations like Women of Zimbabwe Arise.  For the past two years, Kubatana has hosted a joint blog for a wide range of Zimbabwean citizens that has, according to Ethan, "been one of the key sources of information and perspective for people around the world who follow Zimbabwe, and a critical outlet for Zimbabweans who have few other ways to communicate."

Ethan reports:

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More Online Journalists Jailed Than Any Other Media Group

Online speakers are attracting more attention than ever from governments across the world, for good or for ill. According to the Committee to Protect Journalists (CPJ), more online journalists are currently imprisoned for their speech than journalists in print, broadcast, or other media.  The CPJ identified 125 journalists currently serving prison sentences, 45 percent of whom are bloggers, Web-based reporters, or online editors.

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Susan Scheff v. Psyborgue

Date: 

07/31/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Michael Crawford (aka Psyborgue)

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Administrative

Court Name: 

WIPO Arbitration and Mediation Center

Case Number: 

D2008-1177

Legal Counsel: 

Pro se

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Susan Scheff, a self-described “parent advocate” who “assists parents of troubled teens research and identify programs and schools that can assist their troubled teens in getting back on track to a healthy, productive lifestyle” and the publisher of www.suescheff.com, filed an administrative complaint with the WIPO Arbitration and Mediation Center against "Psyborgue" pursuant to the Uniform Domain Name Dispute Resolution Policy (UDRP). (The UDRP is a policy that website operators automatically agree to when they register a domain name; the policy enables trademark owners to initiate an administrative proceeding challenging the registration of a domain name in "bad faith.") 

"Psyborgue" is the name Michael Crawford used to register the domain name "sueschefftruth.com."  Mr. Crawford, who represented himself in the WIPO action, stated in a declaration that he registered the domain name primarily to "provide information to the public regarding Sue Scheff, her company PURE, and the quality of services offered under the name free of charge to parents."  According to the WIPO administrative panel:

The website associated with the Domain Name posts Mr. Crawford’s blog comments, media articles, court documents, and postings by readers concerning [Sue Scheff]. Typical postings question [her] objectivity, assert that she or her daughter have financial ties to some of the institutions and programs that [she] recommends to parents, and allege that some of these programs have been implicated in charges of child abuse or neglect.  A disclaimer at the head of the website advises, “This site is not endorsed by or affiliated with Sue Scheff™.

The WIPO panel denied Scheff's complaint, finding that Mr. Crawford was making a legitimate, nomcommercial fair use of the domain name for purposes of criticism.  The panel indicated that "[t]o the extent the Complaint may be read as suggesting that the Respondent registered and used the Domain Name in bad faith because his purpose was to defame the Complainant, such a claim is essentially outside the scope of the Policy."

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User Submission Form

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Libel Tourism: A First Amendment Holiday

Over the past few months, I've blogged several times (see here and here) about the proposed federal Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamati

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Revisiting Foreign Libel Law's Pernicious Impact on First Amendment Speech

Back in April, I blogged about New York's Libel Terrorism Protection Act, which bars the enforcement of foreign defamation judgments unless a New York court has found that the foreign court proceeding provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions.

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