Is Craigslist the victim of a witch-hunt?

In the aftermath of a horrible murder by someone who is now routinely referred to as “the Craigslist killer,” the online classified site has been coming under increasing pressure from both the government — which has been waging a prostitution-related crusade for some time now — and others who see the service as somehow complicit in these kinds of crimes. Venture capitalist and blogger Jeff Nolan, for example, says in a recent post that Craigslist “has a problem” and should find some way to deal with it, and suggests that both founder Craig Newmark and CEO Jim Buckmaster don’t seem to care much, or want to do anything about it.

“Instead of waiting for a community solution to a problem that will only get worse, Newmark and Buckmaster should be taking a leadership position and driving effective change to combat crime taking place on Craigslist.”

Jeff seems like a smart guy, but I couldn’t disagree more with his post. As far as I can tell, Craigslist has been doing everything it can to remove posts that are linked to criminal behaviour, whether prostitution or anything else, and they appear to have bent over backwards to co-operate with the attorneys-general from a number of states when it comes to imposing fines on wrong-doers and other strategies for limiting that kind of behaviour. What more could they possibly do — turn over their server log files to the authorities? Let Craigslist become an arm of the government?

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RIAA switches to “three strikes” approach

The Recording Industry Association of America, which has spent the past five years suing tens of thousands of individual file-sharers for copyright infringement, has apparently decided to change tactics, according to a report in the Wall Street Journal (hopefully this one is a little more reliable than the recent story about Google’s views on net neutrality). The good news is that they are going to stop suing 13-year-olds and retired war veterans and single mothers for downloading music. The bad news is that their new plan involves cutting sneaky backroom deals with Internet service providers to take a so-called “three strikes” approach: They let the ISP know when they think you’ve been sharing copyrighted material, and the provider agrees to send you an email warning; the second time, you get a letter; do it again and your Internet access gets cut off.

(read the rest of this post at GigaOm)

Motorola: First-sale doctrine — what’s that?

I would take this one with a large grain — perhaps even a boulder — of salt, but according to a report in The Register, wireless-handset maker Motorola is planning to get buyers of its new, ultra-expensive Aura handset to sign something saying they won’t sell the device on eBay. The report (from the usual unnamed source) says that buyers would be required to sell the handsets back to Motorola if they didn’t want them any more. This has drawn scoffs from a number of commenters at Gizmodo and elsewhere, and rightly so, since such a policy would almost certainly be a breach of the so-called “first-sale doctrine” (in the United States, at least).

In a nutshell, the first-sale doctrine — which was originally created to cover patented items, but has since been extended to cover copyrighted material as well, such as records and CDs — prevents a patent-holder or manufacturer from extending their control over an object or piece of content beyond the first sale of that object or content. In other words, “the first unrestricted sale of a patented item exhausts the patentee’s control over that particular item.” This is to allow buyers of CDs and other products to sell them through second-hand stores, or to loan them to friends.

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Linking isn’t defamation, judge says

Jon Newton, who runs the Canadian peer-to-peer news site p2pnet, says a British Columbia judge has ruled in his favour in a defamation lawsuit launched by a former Green Party official. This official argued that by linking to articles which he claimed were defamatory, p2pnet also engaged in defamation — and he sued half a dozen other websites for linking to the same material, and reportedly threatened to sue even more to force them to remove the links and references. According to B.C. Supreme Court judge Stephen Kelleher, however, linking by itself is not sufficient to make a case for defamation. Kelleher said:

“Without proof that persons other than the plaintiff visited the defendant’s website, clicked on the hyperlinks, and read the articles complained of, there cannot be a finding of publication.”

However, the judge added that:

“I do not wish to be misunderstood. It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written ‘the truth about Wayne Crookes is found here’ and ‘here’ is hyperlinked to the specific defamatory words, this might lead to a different conclusion.”

The legality of linking has been a thorny issue for some time, both in the U.S. and elsewhere. As this handy guide from the Chilling Effects website describes, linking to certain material — including that which infringes copyright — has been found to be illegal by the courts in the past. Google itself has been forced to remove certain links from its search results, including (in one case) links to sites where users could download copyright-infringing copies of the Kazaa Lite software. The Electronic Frontier Foundation has a rundown on some cases as well.

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Hey — take off that Mongols tattoo

As many people know, infamous Chicago crime boss Al Capone was ultimately brought to justice not because of all the bootlegging, murder and fraud he engaged in but because of a tax-evasion charge. Now the U.S. government is trying a similar tactic in its fight against a criminal biker gang called The Mongols: federal prosecutors say they want the courts to award them the rights to the gang’s name, and any imagery associated with it.

That way, federal authorities say, they could outlaw the gang in part by preventing them from using the name and imagery, and by seizing property and assets that carry the name or insignia — including clubhouses, motorcycles and even gang members’ clothing. This would allow any police officer “who sees a Mongol wearing this patch … to stop that gang member and literally take the jacket right off his back,” U.S. Attorney Thomas O’Brien told Reuters. (I wonder what they would do to this guy, who has the insignia tattooed on the back of his head).

This appears to be the first time that the police or the U.S. Attorney’s office have gone after a bike gang or any other criminal organization based on illegal use of intellectual property. Much like the Hell’s Angels and other popular outfits, the Mongols registered their name and their “patch” or insignia — a ponytailed character resembling Genghis Khan — as a legal trademark so that they could control the use of it.

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