[At-Large] [lac-discuss-en] GigaOM article : Louis Vuitton asks for SOPA-like seizure of hundreds of websites

[Karl Auerbach]

On 05/14/2012 07:28 PM, Derek Smythe wrote:

> Also note there is a big leap between saying so-and-so is a criminal,
> vs referring to an incident where a criminal perpetrated a crime. If
> someone sells something on the net, using a "courier" website with a
> domain deliberately meant to deceive, that is fraud By the time this
> pattern has repeated 10 or 20 times, there is no doubt we have a crime
> with a criminal or criminals committing fraud. Likewise, if  I
> register a domain to commit fraud using identity theft, it is also a
> crime.

Let's dig a bit deeper -  there may be perfectly valid, lawful reasons 
why names and websites have odd stuff on 'em, or that the situation may 
not rise to either civil or criminal "fraud".

Let's look at the old classical definition of fraud - An intentional 
misrepresentation of a material fact upon which another relies to his 
detriment.

Is what you are seeing "intentional"?  How do you know?  I've managed to 
screw up many of my own websites with a single slip of the sed script. 
Intent is a very sticky and hard question, particularly when one tries 
to impute actual subjective intent.

Is it a misrepresentation?  That's a tough one.  Is 
"firestone-tires-go-boom" a misrepresentation that the material on a 
website is from the firestone tire company?  Or is it just a commentary 
or even a joke or parody?

Is it a fact?  If so is it a material fact?  Or is it ancillary?  And 
who decides?

Did someone rely upon that misrepresentation?  How do we know? 
Hypothetical guesses that "somebody could have" don't necessarily meet 
that criterion.

Did that reliance lead to detriment?

Even when one gets through all of that there are procedural questions 
such as whether you, as an observer, have standing to complain.

The point of this exercise is that accusations are easy; actually 
following through and demonstrating that someone is guilty is hard.

It is painfully hard, sometimes (perhaps even often) it is either 
impossible or infeasibly hard.

And that's the way it ought to be.

In most legal systems around the world there is some sort of procedure 
(most in criminal procedures, but also in civil) that can happen fairly 
quickly after an accusation in which the accuser has to provide 
something concrete showing that whatever happened looks, walks and 
quacks like an unlawful duck.

Those who wish to penetrate whois should, indeed ought, to be required 
to place concrete evidence on the table that supports every element of 
the accusation (including the identity of the accuser.)  Moreover, 
accusation is cheap, so there ought to be some sort of pain for 
accusations made with reckless disregard of the truth or with 
negligence.  (BTW, The UK laws of defamation provide an example of a 
hurdle which is excessively high.)

Don't forget the opening like of Kafka's book "The Trial" - "Someone 
must have been telling lies about Josef K., he knew he had done nothing 
wrong but, one morning, he was arrested."

	--karl--