Elizabeth
Doyle-Propst Time Line
Laws on Cyberstalking and Cyberharrassment,
false claims of trademark infringement, etc.
If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.
(2000, c. 849.)
Media Release: Diebold Coughs Up Cash in Copyright Case
For Immediate Release: Saturday, October 16, 2004
Contact:
Diebold Coughs Up Cash in Copyright Case
False Accusations Result in Legal Fees, Damages
San Jose, CA - The Online Policy Group (OPG) and the Electronic Frontier Foundation (EFF) capped an historic victory in a copyright abuse case against electronic voting machine manufacturer Diebold yesterday.
The corporation agreed to pay $125,000 in damages and fees. The settlement, a win for free speech advocates, comes after a California district court found that Diebold had knowingly misrepresented that online commentators, including Indymedia and two Swarthmore college students, had infringed the company's copyrights.
"It makes me happy that students in this situation in the future won't have to worry about big corporations breathing down their necks," said Nelson Pavlosky, one of the students.
Diebold is the first company to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occurred. The section also stipulates that anyone who issues such frivolous threats must pay damages, including costs and attorneys' fees, to those harmed by the misrepresentations.
EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold's abusive copyright claims from silencing public debate about voting. Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold's e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. OPG refused to remove them in the name of free speech.
"The risk of substantial damages and fees should make companies pause before sending unfounded copyright threats," said EFF Staff Attorney Wendy Seltzer. "Plus ISPs can fight back against these false claims without taking a financial hit." "As a nonprofit ISP it's great to have legal recourse when a company threatens us or our clients with frivolous lawsuits," added OPG Executive Director Will Doherty.
EFF is a member-supported nonprofit which represented OPG and the Swarthmore students pro bono. Thanks to the settlement, Diebold will pay the costs of the case.
For this media release:
http://www.onlinepolicy.org/media/041016opgvdiebolddamages.shtml
Online Policy Group v. Diebold case archive:
http://www.onlinepolicy.org/action/legpolicy/opg_v_diebold/
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
http://www.wiredsafety.org/cyberstalking_harassment/
There are different ways to define cyberstalking
One way to define it is to see how the Law defines it (check out our legal discussion of cyberstalking laws and offline stalking laws). We would like to begin, however, by defining "Cyberstalking" from the point of view of the target's (victim's) experience.
When identifying cyberstalking "in the field" , particularly when considering whether to report it to any kind of legal authority, the following features or combinations of features can be considered to characterize a true stalking situation:
Malice means: the desire and intention to terrorize and hurt you. Much cyberstalking is malicious in nature. Malice is usually indicated by the presence and communication of clear and direct threats made against you by the harasser.
Not all cyberstalking however is malicious. In cases of "love obsession" cyberstalking for example, the stalker has no visible intent to harm you, and while their behavior may cause you great distress, they do not necessarily realize that they are doing so, since they are often lost in a fantasy world where they believe you are secretly in love with them.
Other forms of online harassment are also not necessarily malicious. Some online harassment takes the forms of practical jokes at your expense, and while this may be unpleasant and cause you great inconvenience, annoyance, fear or distress, the harasser may not have intended to cause you harm.
Premeditation means: the presence of planning and organization.
Not all harassment is premeditated. Some may be the result of a sudden emotional outburst, where someone loses their temper with you and lashes out at you electronically. This may indeed cause you distress but could not be called premeditated, since the attack was sudden and not planned.
Some kinds of harassment can be set in motion instantly and without preparation. Others take time to prepare. Some require the setting up and use of special hostile computer attack programs. Others may require extensive research into your personal information on the Internet. The nature of the harassment you are experiencing will often tell you if you are dealing with a premeditated attack or an unplanned passionate outburst.
Repetition means: the harassment is not just a single isolated incident.
Repetition is a key feature of online stalking. A one off attack online, while it may cause you distress, could not be described as cyberstalking. Cyberstalking is a course of conduct that takes place over a period of time and involves repeated attempts to cause you distress. Some laws even define it as involving two or more incidents and following a repetitive pattern.
Distress means: the activity causes fear and distress to you the target.
You could not claim cyberstalking or even online harassment if you do not feel distressed in some way. Distress can take many forms, from annoyance, offense, inconvenience and humiliation to worry and fear for your safety. The presence of fear is an important of characteristic cyberstalking.
You also need to be careful that you are yourself not overreacting. In legal terms, stalking is usually defined as a course of conduct that causes a "reasonable person" to be in distress. You may react in a paranoid or hysterical way to something that is said or done online, but you can not claim cyberstalking unless you can also show that your reaction is "reasonable", i.e., that any other reasonable person would react in the same way.
To show a court that you suffered distress as a result of online stalking you really need the testimony of expert witnesses - these could be your doctor or counselor who you went to for help or medication concerning the incident. If you don't go for medical help regarding your distress then expect the stalkers lawyer to suggest to the court that you were not really that distressed at all.
Obsession means: the stalker cannot stop, despite warnings.
To establish this behavior you would need to have given a very clear warning to the harasser to leave you alone. Obsessive behavior is common both in hate vendettas against you and also in what is known as "love obsession" stalking, where the stalker believes themselves to be in love with their target. For love obsession stalkers your "NO" means "YES".
It is a common occurrence for stalkers to violate restraining orders and probation, or even lose their jobs, to continue stalking the object of their obsession.
Vendetta means: the stalker seeks revenge against you.
Hate vendettas are a common cause of harassment online. Stalkers and harassers often convince themselves that you have deserved their hostile attention and that they are in the right. They often persuade themselves that you have committed a great wrong and that they are in the position of avenger, punishing you for your crimes. Revenge may be sought for no reasonable offense at all.
No legitimate purpose means: the harassment has no valid purpose, other than to terrorize you and cause you distress.
Some stalkers persuade themselves that they have just cause to harass you, usually on the grounds that you deserve to be punished for some wrong they claim you have committed. Other stalkers have no announced purpose other than to make you suffer. In either case the stalking serves no legitimate purpose.
If however you started the problem by attacking someone else online, and now they are after you for revenge, then your original and unprovoked attack could be used in court to show that the stalker had a legitimate purpose in harassing you.
Personal means: the harassment is directed at YOU personally.
General attacks on groups, companies online or chat channels could not be called stalking. Stalking means you and you alone are the target.
Disregarded warnings to stop means: that you have given a clear and direct warning to the stalker to stop, and the stalker ignores your clear warning.
You cannot claim that you are being stalked online if you have never said "Leave me alone" to the stalker. One standard defense used by stalkers in court is to claim that you were encouraging their attentions, and that you never said "NO".
Stalking on or offline involves "harassment". We can summarize "harassment" by quoting from two US State Statutes - one from California and one from Michigan:
California defines Harassment as: ...a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.
While Michigan defines Harassment as: ...conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact, that would cause a reasonable individual to suffer emotional distress, and that actually causes the victim to suffer emotional distress.
A threat means: a statement of intent made in order to place a person in reasonable fear for his or her physical safety. Most of the online stalking cases we have dealt with involve threats made against the target.
Some laws refer to "credible threats" - meaning that the threat must be one that the target believes the stalker to be capable of carrying out.