If you are launching a new site, especially a new blog, there are several things that you can do to make sure that your copyright is as protected as possible.

Simply put, when you are starting from scratch, you have a rare opportunity to get things right from the start and many of the best tools to protect your work function at their best when you use them from day one.

So, if you’re preparing to launch a new site, whether it is a static one or a blog, here are the steps you need to take today to protect your work or, if you’re not interested in enforcement, track it and encourage its sharing.

1. Register with the U.S.Copyright Office

Registration with the U.S. Copyright Office is both slow and expensive. It’s also hopelessly out of date with the current Web and can take some nine months get your certificate.

Still, the fact remains that, if you want execute your full rights in the U.S., you need that registration. You need it both to file suit in a Federal Court and you need to have either registered before the infringement or within three months of publication to be able to collect statutory damages.

If you think you might ever want to sue for copyright infringement, you will want to register your work promptly. It’s a pain and it costs $35 but it can be invaluable down the road.

Likewise, as you add content to your site, you will likely want to re-register every 3 months to ensure that the registration is up to date and all content is protected.

2. Register with FairShare or Use Google Alerts

If you have a site where most of the content will be in an RSS feed, set up an account with FairShare so it can begin tracking the content in your feed from the first post. The service is free and only requires you to subscribe to the provided RSS feed where it will list where matches of your work were discovered along with some basic information.

If your content is largely static, you can use Google Alerts. I’ve covered Google Alerts before, but basically you just find good, unique phrases within your content and have Google search for those phrases and email you with any results it finds.

3. Set up an RSS Footer

If your site will put a large part of its content into an RSS feed, add a footer to the feed. You can use a simple WordPress plugin to do that if you’re a self-hosted WordPress user or, Blogger users can simply use the option in their admin panel.

Ideally, it should include a copyright statement, a link back to your site and, possibly, a digital fingerprint to make the tracking of your content even easier.

Since RSS scraping is one of the biggest problems content creators face, this can make sure that such use is at least attributed and trackable, even if it won’t put a stop to it.

4. Set Up Your Site’s Footer

Though you don’t technically need to include any copyright information for your work to be protected, it is a very good idea to do so as many have the misconception that, if it is not marked, it is free to use.

Make sure your footer includes all the basic copyright information including the year, which you can configure to update automatically, the copyright symbol, your name and the license information for the work (All Rights Reserved, Creative Commons, etc.)

5. Add Contact Information for Permissions

Finally, as you’re setting up how people will contact you, make sure to have a means for people to contact you to ask permission to use your work.

This is a good idea even if you use some form of blanket licensing, such as Creative Commons, as people will still contact you about these issues. This happens both because they don’t understand or see the license and because they want to use the work in a way that goes beyond it.

If you offer a clear path to contact you about these issues, even if it is just through your regular contact page, you’ll find people to be much more likely to ask permission than they would otherwise.

Bottom Line

When starting a new site, whether your first or your hundredth, it is a chance to get things right and avoid mistakes that you made with the other efforts. Copyright is no different in that regard.

If you value your content, its worth taking some time before launching to make some adjustments and make sure that your work is protected. Doing so will not only help you enforce your copyright, but also track where it appears on the Web, legitimately and unlawfully, letting you better understand your audience and reach.

So take the opportunity and spend a few minutes making sure your work is adequately protected.

[thanks to paul keller and jonathan bailey via cc]

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As of today, there’s one more police officer in my Blackberry contacts list – a long time friend of mine graduated from RCMP training yesterday and is now packing heat and flashing tin (that’s more great TV cop show lingo). I’m sure he’s going to make an excellent officer and serve the community well, and I offer him my sincerest congratulations.

In honor of this occasion, I offer my readers my top five tips for dealing with police officers. Whether at a routine traffic stop, as a witness to a crime, or even as a suspect, there’s a good chance that at some point you’ll have to interact with law enforcement – here’s how to make sure that interaction is safe and uneventful for everyone involved.

1. Be polite. The overwhelming majority of police officers are good, honest people just doing their job. Be polite and respectful, and know that yes sir, no sir, please and thank you will go a long way. Don’t talk back, don’t get confrontational, and don’t be rude. If an officer is considering giving you a ticket (or worse), arguing and yelling isn’t going to change his mind. Police spend an inordinate amount of time dealing with scumbags who treat them with utter disdain- don’t be one of those people.
2. Don’t give him reason to be nervous. Every police officer has a gun and knows how to use it. Every police officer has also been trained to react quickly and decisively to threatening situations, and to be constantly on the lookout for potential threats. I once got called home after the alarm went off at my house, and the alarm company had automatically called the police as well. The officer must have showed up just after I did, because as I was going towards my patio door to check it from the inside, he was approaching from the outside. I’m not sure who frightened who more; I jumped and shrieked like a girl, he reached for his weapon. A few seconds later we laughed about it as I excused myself to change my underwear. The moral? Don’t be jumpy, don’t make unexpected movements, and keep your hands in plain view. A relaxed and comfortable police officer is much less likely to taser your twitchy ass.
3. Don’t think you’re smarter than the police officer. You might be smarter, you might not, but keep in mind that it is the officer’s job to pick up on lies and I can assure you that an officer can sniff out bullshit better than you can lie. Don’t try to be cute or a smartass- it’s not going to get you anywhere, or at least not anywhere that you actually want to go.
4. Know when to shut up. So if you can’t outsmart a cop, what can you do? Shut up, that’s what. No matter what a police officer tells you, no matter what promises are made or how much pressure gets puts on you, no matter how innocent you are, you are under absolutely no obligation whatsoever to talk to an officer, to make any sort of statement, or to answer any question. Police are very skilled at extracting the information they want, and even an innocuous line of questioning could be much more serious than you realize. If you think you might be in trouble, shut your mouth, call your lawyer, and don’t say a single word until he or she arrives. Don’t even accept an offer of a coffee while you wait – police coffee is the absolute worst. And possibly poisoned.
5. Know your rights. While it’s important to be reasonably polite when dealing with the police, it’s equally important to know your rights. That includes the right to keep quiet, the right to refuse a request to search your belongings, your car or your house, and the right to walk away if you’re not being detained. When I offer this type of advice, I often get the folksy response “If you didn’t do anything wrong, you’ve got nothing to worry about.” That’s just not true- you’ve got plenty to worry about, as miscarriages of justice do happen. You’ve also got the right to take a principled stand against unwarranted state intrusions on the lives of its citizens. Understand your rights and be willing to exercise them.

Keep your noses clean, folks!

[thanks to kashklick and money grubbing lawyer via cc]

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There are other companies that hold rights to use “iPad” as a trademark for products under certain categories, including Siemens for engines and motors, and Coconut Grove Pads for padded bras. These trademark infringement issues bring us back to 2007, when Apple introduced the iPhone to the public. This caused Cisco—registered owner of the name—to go to the courts. The matter was later settled when the contenders agreed to own the name jointly, for undisclosed terms.

Asked what STMicro intends to do, its representative said they were studying their options. Fujitsu’s official statement said: “[The company] is aware of Apple’s iPad announcement and the possible infringement on our trademark . . . We are currently discussing our options with our trademark counsel and have no further comment at this time.”

Trademark disputes – especially those that involve brand giants like Apple and Fujitsu or Cisco – are usually not enough to hinder the infringing company from launching the product, or to compel it to rebrand. However, if Apple loses its bid for “iPad” and Fujitsu is allowed to continue its application, or if Apple fails to justify that the two products are not confusingly similar, it will have no recourse but to buy the rights from Fujitsu.

The iPad Comparisons

Fujitsu’s iPad is a gadget that has a 3.5-inch screen, powered by an Intel processor, uses a Microsoft OS, and is Wi-fi and Bluetooth-enabled. Its purpose is to connect shop assistants and managers to sales and stock data. STMicro’s iPad, on the other hand, is less similar. “iPad” is an acronym for “integrated passive and active devices,” referring to the technology that used to manufacture semiconductors. But here’s the caveat: STMicro’s products are used in cars, washing machines, smartphones and mobile phones, among other gadgets. The implication: STMicro’s iPad technology could someday be applied to handheld devices like Apple’s iPad.

Fujitsu’s prior application in the US is dated March 2003. It was suspended after the US Patent and Trademark Office found a prior filing by Mag-Tek for keypads used to enter personal identification numbers. The application was subsequently declared abandoned, but was revived by Fujitsu in June 2009. A month later, Apple sent its proxy to the patent and trademark office of Trinidad & Tobago to register “iPad” and secure a priority date that it can claim when it applies for registration in other parts of the world. In the last quarter of 2009, Apple requested the US PTO for more time to oppose Fujitsu’s application. February 28 is the deadline for Apple to decide if it will contest Fujitsu’s application or not.

In an interview with Bloomberg, Fujitsu’s trademark lawyer, Hanify & King’s Edward Pennington said:  “They probably need to talk to us and we haven’t had any direct communications with Apple,” and went on to describe Apple’s position as “awkward”.

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INFORMATION REGARDING DOWNLOADING STAND UP SONGS TO IPODS
Please follow the instructions below in order to move your content into iTunes and onto an iPod:

If you have a Mac computer you can copy the songs using your iTunes Player as you would normally do.

If you have a PC place the CD into your computer and allow the CD to automatically start. If the CD does not automatically start, open your Windows Explorer, locate the drive letter for your CD drive and double-click on the LaunchCD.exe file located on your CD.

Once the CD has been burned, place the copied CD back into your computer and open iTunes. iTunes can now rip the songs as you would a normal CD.

Please note an easier and more acceptable solution requires cooperation from Apple, who we have already reached out to in hopes of addressing this issue. To help speed this effort, we ask that you use the following link to contact Apple and ask them to provide a solution that would easily allow you to move content from protected CDs into iTunes or onto your iPod rather than having to go through the additional steps above.

For Macintosh users such as myself, there is nothing additional to do, since the copy-control technology does not work on a Mac. For Windows users, there is no need to hack the program since making several permitted copies using different programs eventually leads to the songs ending up on your iPod. I’m not sure about Linux users, though I am guessing that the copy control doesn’t work on their systems either.

The Dave Matthews Band posting and its label’s use of copy-control technology raises several issues. The web instructions also highlight the continuing divide between the labels and artists (see the iTunes related reaction of Japanese artists to Sony Records for another example).

I’d like to focus on two other issues here though. First, the private copying implications. The Dave Matthews Band may support their fans copying their music onto iPods, but Canadian law still does not. Canadians that follow the band’s instructions appear to infringe Canadian law. Moreover, it is worth noting the recent remarks of RIAA CEO Mitch Bainwol. In a speech to NARM, Bainwol commented that the RIAA has “no objection to personal use burning”. This raises the question of why Canadians are stuck paying millions for the private copying levy, when the levy doesn’t cover the copying they typically engage in, the artists have only received a fraction of the money collected, and the industry itself does not object to the copying (and in the U.S. at least does not expect any additional compensation for such copying).

Moreover, consider these instructions within the context of Bill C-60 and its anti-circumvention provision. The provision applies to a “technological measure,” which is defined as “any technology, device or component that, in the ordinary course of its operation, restricts the doing . . .of any act” that would constitute an infringement of several different Copyright Act provisions. Section 34.02 of Bill C-60 provides copyright owners with a basket of rights against anyone who “circumvents, removes, or renders ineffective a technological measure” for the purpose of copyright infringement.

This brings us to the question of these provisions and copy control technology. First, leaving aside the private copying issue, consumers that follow the Dave Matthews Band instructions would not appear to run afoul of this particular provision since they are not circumventing anything. Mac users are proceeding as usual, while Windows users are using the functionality built into the copy control mechanism to make their desired copies.

Second (and more interestingly), does the copy control technology even qualify as a technological measure under Bill C-60? If it does, should it? I don’t think we have a clear answer here. Other jurisdictions focus on the effectiveness of the technological measure. Given the Dave Matthews Band instructions, it is hard to see how these measures are effective. In Canada, however, the bill speaks of “ordinary use.” The copy-control may be advertised as being ordinarily used to control copying, even if it does nothing of the sort. It should not be enough to simply characterize a technology as a technological measure and immediately enjoy legal protections. The failure to include an effectiveness standard in Bill C-60 is yet one more reason why Canadians should stand up to the proposed copyright reform package.

[thanks to shazari and michael geist via cc]

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The best way to hire a lawyer is like everything else – by referral. You more than likely know someone who has been sued. Ask them if they’re satisfied with their lawyer. When you’re asking for a referral, you will want to know the answers to several questions.

Does the lawyer communicate on a frequent basis? Do you get copies of all filings and letters? Does your friend or acquaintance have the lawyer’s home telephone number? Does the lawyer promptly return telephone calls? Does the lawyer send a bill each month? Does the lawyer tell you when hearings are scheduled to allow you to attend and watch the lawyer in action?

You should check to see if your lawyer is licensed by checking your local state bar. That site will also tell you whether the attorney has a public record of discipline. Find more about your lawyer’s background information.  Assuming all is well and you’re hearing the right responses to your questions, go ahead.  But first, set up an appointment for a free consultation, and do your own face-to-face evaluation.

If you’re not engaged in a lawsuit, it’s an even better time to hire a lawyer. With the right advice, you can work to avoid being sued, and spending legal fees and costs to defend yourself.

The truth is that the view from behind the bench is decidedly different than from in front of it. Sitting as a pro tem judge (which I had the opportunity to do today) presents an interesting perspective – how a judge looks at both sides of a case. There’s quite a difference than advocating one side of a case.

As a judge, you look dispassionately at both sides of the case before forming an opinion about the possible outcome. As a lawyer, advocating one position requires you to counter and discount the other side’s argument. The judge’s view is subtly different. As a judge, you have to evaluate which side is believable, which side has the more solid evidence, and what fairness dictates. You can, and must, ignore some of those things as a lawyer to advocate your client’s case.

Lawyers that can evaluate believability, evidence and fairness give their clients an edge, because they tend to look at the end result of the case. That lawyer can also give you better advice about the ultimate outcome of your case. Clients can accomplish the same thing by stepping back and listening – really listening – to the other lawyer. That’s what the judge and the jury have to do.

[thanks to matt from london and j. craig williams via cc]

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At the moment, that is Scott Rothstein.  Rothstein is, or was, a lawyer who has been called, among other things, ”the Bernie Madoff of South Florida.” (Other Madoff-related nicknames apparently include “Mini-Madoff,” and “Madoff on Crack,” although those seem inconsistent to me.)  His version of a Ponzi scheme was to bring investors into his law firm and tell them that he had clients who would assign the rights to settlement agreements that paid over time, in exchange for getting a lump-sum now.  The investors would profit from the difference, later, assuming that they put up their money now. And they did.  Put up their money, that is, to the tune of maybe $1.2 billion.  They did not profit, because there were no settlement agreements, no clients, and no cases. But prior investors were paid with new investors’ money, the classic Ponzi arrangement.

Huge amounts of money were turned over, because there were absolutely no warning signs of any kind that Rothstein might be a crook.  Who doesn’t know a lawyer who owns three Bentleys and up to 20 other luxury cars that he keeps in an air-conditioned warehouse? (At the moment I only have two Bentleys, but I have not been a partner that long.)  Also, many’s the time that our staff has thanked me and our other partners for “shower[ing] gifts on all of them, including exotic cars, jewelry and boats.”  It’s just the way lawyers operate.  And I object especially to the suggestion that you should suspect a man of fraud just because he has gold-plated toilets.

The Gold-Plated Scott Rothstein Toilet

Okay, seriously — if your lawyer or investment manager has a gold-plated toilet, first, DO NOT GIVE THAT PERSON ANY MORE MONEY.  THEY HAVE ENOUGH.  And you should also officially be on notice at that point that further inquiry is suggested as to how that person came by gold-plated-toilet money to begin with.  In my experience, people who made their money honestly do not plate their toilets with it.

Okay, in all fairness, it was just the toilet lids.  But on the other hand, he had two of them:

When news of the Ponzi scheme broke, someone sent [Bob] Norman [a reporter covering the story] a photo of Rothstein’s his-and-hers toilets. The lids were gold-plated, each estimated to cost $25,000.

Norman said one of Rothstein’s investors told him: “I was lulled into believing this myth that he created. I really believed he had a golden touch. What better way to perpetuate that myth than by having a golden toilet?”

So, let me see if I understand.  You thought the man’s golden toilet was evidence that he had the Midas touch?  But you didn’t ask him to sit on anything else to prove it? And is it too late for me to ask you for money?

Rothstein pleaded guilty last month, probably in part because it is difficult to come up with an innocent explanation for why you “wired $16 million to an offshore account and fled to Morocco in a private jet” if you haven’t been up to something. He faces up to 100 years in jail, where the toilets are stainless steel.  Although maybe putting his ass in jail will change that.

Why Morocco, and the followup question, why in the world did the guy come back? Good questions.

Not coincidentally, Morocco is one of the countries that has no extradition treaty with the United States, something that Rothstein knew because — and this is possibly my favorite detail of the whole story, short of the golden toilets – he made somebody in his firm research that issue for him. The project was supposedly on behalf of a “client,” but he was in fact having someone research the question of where he should flee to avoid prosecution.

I was sort of hoping he called in an associate and just made that person do it, but it turns out he sent an email, apparently to everyone in the firm (Rothstein, Rosenfeldt and Adler law firm in downtown Fort Lauderdale), saying he had a rush project for an important client.  “We have a client that was a United States citizen until about 6 months ago,” Rothstein wrote in the email, probably able to resist making air quotes around “client” only because he was busy typing the word.  “He became a citizen of Israel and renounced his United States citizenship. He is likely to be charged with a multitude of crimes in the United States including fraud, money laundering and embezzlement.”  (I’m trying to imagine what people at the firm were thinking upon reading this.)  Rothstein wanted them to research whether the client could be extradited from Israel, or could be prosecuted for the crimes in Israel.  “This client is related to a very powerful client of ours,” Rothstein continued, “and so time is of the essence. Lets [sic] rock and roll….there is a very large fee attached to this case. Thanks Love ya Scott,” he concluded.

“Love ya”?  When I was an associate, partners never said “love ya” when asking me to research countries to which they could flee without fear of extradition.  Times sure have changed.

Suspicion by Attorneys at Rothstein, Rosenfeldt and Adler Law Firm

The report in which I found this information went on to say that “[a]ttorneys in the firm now believe ‘the client’ was actually Rothstein.”  It did not say how long it took them to figure this out, but it does confirm that someone at the firm advised Rothstein that there might be a better choice:

Stuart Rosenfeldt [another named partner at the firm], who was in a 50 percent partnership with Rothstein at the time, said that he and many of the other attorneys in the firm now believe that Rothstein was talking about his own situation and that another attorney in the firm suggested that Morocco was one destination that did not have extradition agreements with either the U.S. or Israel.

Next stop, Morocco.

The report also quoted Rothstein’s lawyer as saying that as far as he knew, the e-mail really was about an actual client, and the trip to Morocco was just sort of a last-minute vacation. “I still don’t know [if there was a client],” he said.  “I had nothing further to do with it . . . . He was always intending on coming back [from Morocco]. He came back early. He never intended to flee. He literally went there to clear his head.”  Also, the fact that he had just been told Morocco did not have an extradition treaty was literally a coincidence.

I guess ultimately the answer [as to why he fled to Morocco specifically] depends on whether you believe it was a coincidence that not long before the fleeing started, he assigned somebody a research project involving countries that did not have extradition treaties with the United States.  If you don’t believe that was a coincidence, the more difficult question is probably: Once safely in Morocco, why the hell did he come back? I don’t think there is a clear answer to this, either, but here are some possibilities.

First, it may not have been all that safe in sunny Morocco.  This is hearsay, but one report suggested that “investors in Morocco” had given Rothstein $85 million, and assuming they now realize they are not getting that money back, he might have needed to extradite himself from Morocco on the double. But this report describes Rothstein as being “as happy as ever” during his time in Morocco.  Hard to believe he was that way all the time, as his life collapsed, but he didn’t act hunted.

Second, as the Wall Street Journal noted, Rothstein’s partner Stuart Rosenfeldt has claimed that in an email from Morocco, Rothstein listed his options as suicide, life on the run or life in prison, and that Rosenfeldt urged him to “choose life.”  Maybe so, but maybe he didn’t mean life in prison, the prospect of which might convince Rothstein to cut a deal.

Which is what he did, and that is not good for a lot of people.  For example, recent bankruptcy filings allege that all three named partners engaged in “curious and circuitous movement of law firm funds over the past few years.”  These included borrowing millions from the firm and then paying that money back to the firm, themselves, their wives, and various third parties. The filings also allege Rosenfeldt himself spent an awful lot of money — no golden toilets, apparently, but he did put $1 million on his firm-issued American Express card for charges including 72 pieces of jewelry for his wife, home furnishings, clothes, vacations, restaurant meals, and an undisclosed number of “exotic reptiles.”  (Maybe this is why the expense reports I submit for my exotic reptiles keep getting rejected.)

Rosenfeldt’s attorney said these allegations would “prove to be overstatements.”

So, third, Rothstein may have a lot to chat about, and maybe having seen Morocco, he decided he might be able to cut a deal good enough to at least make prison reasonable in comparison to that hellhole.  Under the plea bargain, prosecutors agreed to recommend a sentence reduction and more lenient prison conditions in exchange for cooperation.  As a result, he is expected to get about 30 years rather than the 100 he faces.  (Bernie Madoff did not cooperate, and got 150 years.) Still, 30 years is 30 years.

Fourth, Rothstein has maintained that he chose to come back, plead, and help authorities collect stolen assets, because he decided to “do the right thing.”  I guess that is not impossible.

Finally, since I don’t really like any of the above explanations, I am going to go with this one: with him in jail, the feds wouldn’t feel obligated to go after his wife.  As noted above, all the partners gave lavish gifts — and lots and lots of cash — to their wives, and it is hard to imagine that they did not at least suspect something.  But the same was true of Ruth Madoff, who has also not been charged.  I am guessing that so long as the primary fraudster is behind bars, prosecutors are probably satisfied.

I haven’t been able to find a better answer than that, so my guess is that Rothstein came back to the U.S. in order to make sure his wife stayed out of jail. And that’s nice, at least.

On the other hand, maybe he just really hates Moroccan food.

[thanks to alkan chaglar and kevin underhill via cc]

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This is the second solicitors merger in as many months, as this move follows Wilkin Chapman and Grange Wintringham’s announcement three weeks ago.

This move comes as a result of the ambitious expansion plans of Grimsby-based Beetenson & Gibbon following their acquisition of Louth’s Scammell & Braithwaite in 2007.

What this means on a short-term basis is that we’ll be seeing the number of employees in B&G increase to 79, a headcount increase of nearly 60%.

As part of the acquisition, Martin & Haigh of Scunthorpe will now be known as Martin & Haigh with Beetenson & Gibbon.

The New Martin & Haigh

“I am looking forward to working within the new firm in the new venture. It makes us a force to be reckoned with, we are now one of the largest firms in the town, as well as the surrounding area. Both of the firms are very similar from what I have seen, and services are being brought together that will complement each other. It is a great fit.”, says Jo Moorhouse, practice manager at the firm.

Beetenson & Gibbon is a founding member of the Quality Solicitors network (found at QualitySolicitors.com), which is a legal brand located in the United Kingdom that chooses lawyers based on positive ratings from their clients as well as their accreditations and then matches them up to new potential clients.

I went to the Martin & Haigh website (martinandhaigh.co.uk), but it appears to be down with this message: “We’re Sorry! This website is down for maintenance, please check back later.” I checked Google Cache and found this description: “Martin & Haigh is a long-established solicitors practice in Scunthorpe, North Lincolnshire. Our clients are as varied as the range of services we provide.” Perhaps B&G is working on a website revamp to reflect the new branding.

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Legal Issues for Detroit’s Adult Entertainment Industry

The adult entertainment industry has been hit particularly hard by these new city ordinances and regulations. The Detroit City Council has commenced its efforts to phase these businesses out all-together by changing the zoning ordinance in 1999 to preclude new adult entertainment establishments from being opened in the Central Business District. Local laws allow such modifications to zoning regulations because the city of Detroit does not need to wait for an area to deteriorate before applying a zoning remedy. The city may also rely on sociological experiences of other cities in enacting legislation as long as doing so is not completely unreasonable.

The City Planning Commission deemed this phase-out of adult entertainment businesses reasonable because “the B6 zoning district classification in this area may have made sense in the late 1960s when there were still wholesale and freight operations on the east side of the [Central Business District]. The subsequent development of Greektown and Bricktown, however, has rendered B6 inappropriate.” In addition, all zoning ordinances must bear a substantial relation to the public health, safety, morals or general welfare in order to be valid.  The city of Detroit seems to think that it is for the good of the general welfare that this new zoning ordinance be enacted.

Many adult entertainment business owners, including the proprietors of exotic dancing strip clubs Déjà Vu and the Zoo Club, believe that various provisions of this ordinance unfairly prevent them from operating a legitimate business enterprise.  They have brought suit against the city of Detroit and asked the court to determine that the adult use provisions of the city’s ordinance are unconstitutional. It is also their view that, “such provisions vest a constitutionally defiant discretionary authority in the hands of the city officials, who have no time constraint imposed upon them to evaluate an application in order to render a decision.” The city of Detroit has dragged this case out over several years in order to avoid having to a make a decision that would violate the adult entertainment business owners’ right to engage in free speech under the First Amendment. The court recently decided that the city’s treatment of the plaintiffs in that matter was unconstitutional because of its failure to make a decision on the plaintiff’s application within a reasonable amount of time. Nevertheless, it went on to hold that the city of Detroit’s ordinances are not unconstitutional on their face and are still applicable to all other adult entertainment business owners in the Central Business District.  On appeal, the plaintiffs have asked that the city of Detroit be permanently enjoined from enforcing the adult use provisions of the Detroit Zoning Ordinance and that their operation of adult entertainment businesses be identified as a lawful conforming use for zoning purposes. This case is pending and is sure to impact all of Detroit’s adult entertainment businesses currently conflicting with the city’s adult provisions of the zoning ordinance.

Other American Cities’ Regulations and Zoning Ordinances

Detroit is not the first and likely not the last municipality to employ zoning ordinances to phase-out the adult entertainment businesses. City and county governments around the nation are currently enacting the same types of legislation to bring down established adult erotic entertainment businesses. These legislative bodies normally develop an initial ordinance, update an outdated regulation, or attempt to argue for zoning and licensing restrictions in court to accomplish these shut-downs. They may even try to enact laws that prescribe zoning requirements and land use regulations of areas previously zoned for adult entertainment and give the power to a review board to deny a business for lack of “wholesomeness”. Such tactics clearly evince an effort to legislate morality based upon personal opinions of what is “right”. Cities may enact these types of legislation as long as they have a factual basis for their regulations, and plaintiffs can challenge by demonstrating that the government’s evidence does not support the regulations they are seeking to enact.

Not everyone thinks that the adult entertainment business should be phased-out. Organizations such as the First Amendment Lawyers’ Association, the American Civil Liberties Union, People for the American Way, National Coalition Against Censorship, Coalition for Free Expression, Free Speech Coalition, Thomas Jefferson Center for the Protection of Free Expression and the Association of Performing Arts Presenters are all defenders of exotic dancing in the adult entertainment industry.

Conclusion

The city of Detroit wants to grow, shed its negative image and become a desirable place for relocation. Although the city considers tourists to be very important, its attempts are aimed at stimulating population growth within the downtown business area. The general population seems to feel that the adult entertainment industry is a nuisance to their community and a barrier in the way of a “better Detroit”. For adult entertainment business owners, this means that their rights may be compromised and will be continually diminished by adult entertainment provisions to the zoning regulations. It is uncertain as to whether the city of Detroit has gone too far with their zoning ordinances and regulations, but at this point, the city’s efforts have clearly had an effect on the downtown adult entertainment industry’s ability to run businesses going forward.

[thanks to juggernautco and iblsjournal via cc]

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But the public frustration online doesn’t always lead to real-life changes. The recent story of a car crash in one of the Siberian cities and online reaction to the incident illustrate how an improvised online campaign attempts to affect gloomy reality.

On the surface, the story of Anna Shavenkova who ran over two women while driving her Toyota on December 2, 2009 in Irkutsk is nothing new in Russia. Thousands of people are killed in road accidents every month. But the story took a slightly different spin when people found out that Anna is a daughter of Lyudmila Shavenkova, a chairwoman of the election committee in Irkutsk region, who apparently has a lot of influence on the way things are done in that part of the country.

The disturbing video [ENG] of the crash, which keeps being deleted from YouTube, has been shown by some media outlets and, at first, did not originally cause any significant discussion online. Some bloggers pointed out the indifference of people who continued walking as if nothing happened. Some were upset that Anna, the driver, got out of the car and started immediately calling someone (not the ambulance) instead of checking the condition of the victims (one of them died in a hospital several days later).

What really led to the outrage on the blogs is a result of a formal investigation of the crash by the road police in Irkutsk. Anna is allegedly being treated as a witness of the crash although she was the one who drove the car into the sidewalk and hit the by-passers.

The well-known blogger and member of “The Other Russia” oppositional coalition [EN] Marina Litvinovich (aka LJ userabstract2001) commented on it in her blog post [RUS] that quickly attracted thousands of visitors and hundreds of comments:

Многие, наверное, помнят ролик из Иркутска, где камера видеонаблюдения зафиксировала ДТП. Его виновница, Анна Шавенкова, на полной скорости сбившая двух девушек в самом центре Иркутска, вдруг оказалась не виновницей происшествия, а его свидетельницей. Кто является виновником ДТП, суд пока не установил. Вполне вероятно, что виновником окажется автомобиль. А Анна Шавенкова просто так, случайно, оказалась на водительском сидении. Чисто как свидетель.

[ENGLISH TRANSLATION] Many remember the video from Irkutsk where a camera captured a car crash. The person who caused it, Anna Shavenkova, hitting two girls in the center of Irkutsk at full speed, suddenly became a witness and not the one responsible for the crash. The court has not yet determined who is responsible. It is possible that the car will be found guilty. And Anna Shavenkova just happened to be in the driver’s seat. Just as a witness.

Litvinovich urged other bloggers to re-post this information online hoping  that it would eventually catch the attention of media. Following the advice from a fellow blogger, she even created a “re-post” button at the end of the post making it easier for everyone to spread the information.

Many bloggers responded to this by enthusiastically linking to Litvinovich’s blog (the most popular reply to the post was “I re-posted”) and expressing their deepest concerns with how the local authorities handled the incident.

A good portion of online readers admitted the impotence of law in Russia against people with power and called for concrete actions. Blogger tvn1, for example, wrote [RUS] that one cannot blame a mother who tried to shield her daughter from the punishment. Instead, the blogger drew attention to the people who made it possible for a person to be above the law:

А вот судью и ментов надо мочить жёстко и показательно. Из-за них, взяточников, и стал возможным мажорский беспредел.
Нужно уже брать пример с той-же Греции, Франции т.п. Так за такие дела люди выходят на улицы и пускают в ход силу ломов, коктейлей молотова и прочих подручных средств, этим самым напоминая, что власть – слуга народа а не народ на службе у власти.

[ENGLISH TRANSLATION] We should whack the judge and police harshly and indicatively. Because of them, bribe-takers, the lawlessness became possible. We should follow the example of Greece, France, etc. People there take it to the streets and use the force of crowbars, Molotov cocktails and other means reminding the authorities that they are servants of people and not the other way around.

Proposals to “whack” authorities and “take it to the streets” were not uncommon among the bloggers.

Some suggested that the “lawlessness” is the fault of people who elected those authorities. LJ user toytronic wrote [RUS]:

В этой стране власть всегда имела граждан, почитайте историю! Радуйтесь, что в ЖЖ вам пока любезно позволяют чувствовать себя свободными! Вы сами проголосовали за вертикаль власти и парламентское большинство, а получили тотальную коррупцию, полное разложение МВД, цензуру СМИ и парламент состоящий из коррупционных чиновников, на все это мерзко смотреть! У вас была возможность избрать демократическое гражданское общество в конце 90х! Если народ не поумнеет, его ждет новый 37 год!

[ENGLISH TRANSLATION] The authorities always “had” people in this country. Read history! You should be glad that you are so far allowed to feel freedom in Livejournal [popular blogging platform in Russia - V.I.]! You were the ones who voted for the vertical of power and the parliament majority and you got total corruption, full decay of the Ministry of Internal Affairs and the parliament that consists of corrupted officials. It is sickening to look at! You had an opportunity to choose a democratic society at the end of 90’s! If people don’t get smarter, they will face the year of 1937 [the Great Purges period in Russia - V.I.]!

Another blogger called for active participation in local and regional elections to prevent corrupt politicians from taking power.

Litvinovich’s post is currently among the most popular ones on the Russian blogosphere leading in every rating of the top online entries. It seems that the author achieved the goal to attract attention of many netizens to the issue.

But it is still unclear if the improvised virtual campaign will amount to any results in real life. Litvinovich seems to be convinced that it will change things for the better. Replying to a comment doubting the effectiveness of re-posting, Litvinovich optimistically noted:

Опыт показывает, что простым привлечением внимания моно много добиться – например того, что следствие и суд к проблеме отнесутся по-другому, а не так как сейчас. Если не помоет, будем думать, что еще можно сделать.

[ENGLISH TRANSLATION] Experience shows that, by simply attracting attention, one can achieve a lot. For example, the court and further investigation will treat this incident differently and not how they treat it now. If this doesn’t help, we will think of something else we can do.

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Until recently, I thought the picture was very grim for would-be plaintiffs, writing that it should be simple for “even a non-technical Internet user to engage in effectively untraceable speech online.” I still think it’s feasible for most users, if they make enough effort, to remain anonymous despite any level of scrutiny they are practically likely to face. But in recent months, as Harlan, Ed, and I have discussed this issue, we’ve started to see a flip side to the coin: In many situations, it may be far easier to unmask apparently anonymous online speakers than they, I, or many others in the policy community have appreciated. Today, I’ll tell a story that helps explain what I mean.

Anonymous online speech is a mixed bag: it includes some high value speech such as political dissent in repressive regimes, some dreck we happily tolerate on First Amendment grounds, and some material that violates the laws of many jurisdictions, including child pornography and defamatory speech. For purposes of this discussion, let’s focus on cases like the recent AutoAdmit controversy, in which a plaintiff wishes to bring a defamation suit against an anonymous or pseudonymous poster to a web based discussion forum. I’ll assume, as in the AutoAdmit suit, that the plaintiff has at least a facially plausible legal claim, so that if everyone’s identity were clear, it would also be clear that the plaintiff would have the legal option to bring a defamation suit. In the online context, these are usually what’s called “John Doe” suits, because the plaintiff’s lawyer does not know the name of the defendant in the suit, and must use “John Doe” as a stand in name for the defendant. After filing a John Doe suit, the plaintiff’s lawyer can use subpoenas to force third parties to reveal information that might help identify the John Doe defendant.

In situations like these, if a plaintiff’s lawyer cannot otherwise determine who the poster is, the lawyer will typically subpoena the forum web site, seeking the IP address of the anonymous poster. Many widely used web based discussion systems, including for example the popular Wordpress blogging platform, routinely log the IP addresses of commenters. If the web site is able to provide an IP address for the source of the allegedly defamatory comment, the lawyer will do a reverse lookup, a WHOIS search, or both, on that IP address, hoping to discover that the IP address belongs to a residential ISP or another organization that maintains detailed information about its individual users. If the IP address does turn out to correspond to a residential ISP — rather than, say, to an open wifi hub at a coffee shop or library — then the lawyer will issue a second subpoena, asking the ISP to reveal the account details of the user who was using that IP address at the time it was used to transmit the potentially defamatory comment. This is known as a “subpoena chain” because it involves two subpoenas (one to the web site, and a second one, based on the results of the first, to the ISP).

Of course, in many cases, this method won’t work. The forum web site may not have logged the commenter’s IP address. Or, even if an address is available, it might not be readily traceable back to an ISP account: the anonymous commenter may been using an anonymization tool like Tor to hide his address. Or he may have been coming online from a coffee shop or similarly public place (which typically will not have logged information about its transient users). Or, even if he reached the web forum directly from his own ISP, that ISP might be located in a foreign jurisdiction, beyond the reach of an American lawyer’s usual legal tools.

Is this a dead end for the plaintiff’s lawyer, who wants to identify John Doe? Probably not. There are a range of other parties, not yet part of our story, who might have information that could help identify John Doe. When it comes to the AutoAdmit site, one of these parties is StatCounter, a web traffic measurement service that AutoAdmit uses to keep track of trends in its traffic over time.

At the moment I am writing this post, anyone can verify that AutoAdmit uses StatCounter by visiting AutoAdmit.com and choosing “View Source” from the web browser menu. The first screenfull of web page code that comes up includes a block of text helpfully labeled “StatCounter Code,” which in turn runs a small piece of javascript that places a personalized StatCounter cookie on the machine of every user who visits AutoAdmit, or else (if one is already present) detects and records exactly which cookie it is. That’s how StatCounter can tell which visitors to AutoAdmit are new, which ones are returning, and which pages on the site are of greatest interest to new and returning users. StatCounter is in a position to track not only each user, but also each page, and each visit by a user to a certain page, over time. This includes not only the home page, but also the particular web page for each discussion “thread” on the site. Moreover, each post (even if anonymous) is marked with the time it was posted, down to the minute. So the plaintiff’s lawyer in our story could go to StatCounter, and ask only about visits to the particular thread where the relevant message was posted. If the post went up at 6:03 p.m. on a certain date, the lawyer could ask StatCounter, “What if anything do you know about the person who visited this web page at 6:03 p.m. on this date?” Of course, if John Doe’s browser is configured to refuse cookies, he wouldn’t be trackable. But most web based discussion sites, including AutoAdmit, rely on cookies to let people log in to their pseudonymous accounts in order to post comments in the first place. In any case, the web is much less convenient place without cookies, and as a practical matter most users do allow them.

In fact, the lawyer may be able to do better still: The anonymous commenter will have accessed the page at least twice — once to view the discussion as it stood before he took part, and again after clicking the button to add his own post to the mix. If StatCounter recorded both visits, as it very likely would have, then it becomes even easier to tie the anonymous commenter to his StatCounter cookie (and to whatever browsing history StatCounter has associated with that cookie).

There are a huge number of things to discuss here, and we’ll tackle several in the coming days. What would a web analytics provider like StatCounter know? Likely answers include IP addresses, times, and durations for the anonymous commenter’s previous visits to AutoAdmit. What about other, similar services, used by other sites? What about “beacons” that simply and silently collect data about users, and pay webmasters for the privilege? What about behavioral advertisers, whose business model involves tracking users across multiple sites and developing knowledge of their browsing habits and interests? What about content distribution networks? How would this picture change if John Doe were taking affirmative steps, such as using Tor, to obfuscate his identity?

These are some of the questions that we’ll try to address in future posts.

[thanks to specialkrb and freedom to tinker via cc]

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