Seeing that Marc Randazza and Popehat are quick on the scent of a new scam operation, I figured I’d pile on — as I am wont to do, both as a matter of impulse and because I hope that future Google searches for “The Takedown Lawyer“, “Is Anybody Down“, or “IsAnybodyDown.com” result in a well-placed result for Randazza’s offer to help victims of this scheme for free.
The scheme here is a too-clever-by-half variation on the old “Is Anybody Up” routine: (1) solicit (mainly from revenge-seeking ex-boyfriends) and then post online the private pictures of people in various states of undress (or worse); (2) thrive off the attention and ad revenue.
You’d figure that the attention received for being a complete guttersnipe — plus the prospect of a bit of advertising revenue — would be enough for Craig Brittain, the apparent brains behind this operation. And Craig Brittain does like attention — his But, no, Craig Brittain wanted to take this a step further. So far, in fact, that it almost makes the original “Is Anybody Up” routine look both morally and legally defensible. (Almost.)
Craig Brittain and his co-conspirators devised two ways to improve upon the “Is Anybody Up” model.
Improvement One: Skip the Middle-man! This is classic business sense — a finesse Craig no doubt learned at Pikes Peak Community College. Rather than simply wait for a jealous ex-boyfriend to email them pictures of his ex-girlfriend, the proprietors of IsAnybodyDown displayed some ingenuity and went out and got them themselves.
How? By deceiving Craigslist posters. Ah, the Craigslist personals section — where consenting adults can quietly explore their sexual desires with other consenting adults, after providing some bona fides (ahem) that they’re attractive by sending pictures.
Now, I doubt that all of the pictures on the site are from Craigslist. It’s even possible that the site’s proprietors aren’t the people who deceived the Craigslist posters — they just somehow got these pictures and know what exact Craigslist post they were from. For example, the “admin” of IsAnybodyDown berated a woman whose pictures appeared on the site and pointed out that her Craigslist post was still up. Another condescending post attacks another user for sending pictures via Craigslist. Another post by the site notes that “[t]he majority of people pictured here were sending their photos to random people on Craigslist.”.
Craig’s list, indeed.
I suspect, then, that the site is gathering pictures by contacting people who post or reply on Craigslist. I reached out for comment and got what can only charitably be described as a “no comment” and was subsequently wished to have a “terrible day” and to “vote Romney.”
This creates a problem for Craig and friends. In attempting to innovate upon the IsAnybodyUp model, they took a step too far. That model had at least a coherent legal defense (to say nothing of its moral culpability): because images were submitted by their users, it could seek refuge under §230 of the Communications Decency Act, which shields websites and their owners from liability for the postings of their users. Further, that model allowed its owners to at least argue that it wasn’t infringing on the copyright of the person whose likeness appeared on the site — the copyright likely belonged to the person who took the photos, not the person in them or whose camera was used to take the photos. So, the IsAnybodyUp model allowed its owners to profit off of the photos via ad revenue, while shifting some (if not all) liability to the people who submitted the images.
Those arguments won’t work for Craig and his pals. If they solicited and posted the photos themselves, they’re not immune under the CDA. Similarly, I would imagine that many of the Craigslist images were taken by the person pictured — through a webcam, self-shot, etc. That means Craig and Co. don’t own the copyright to them.
IsAnybodyDown offers this ill-conceived legal justification: (1) posting pictures on Craigslist and other sites means that provider “gains the explicit right to do whatever they want with your content, as do any recipients”; (2) by doing so, this “created a self-enclosed Fair Use contract allowing anyone who wants to via Good Faith and Fair Use to use any information (pictures, text, etc.)”; and (3) the only way to avoid this is by patenting your pictures.
1. Yes, by posting pictures on a website, you give that website a license to use your photos for a variety of purposes. This is often misconstrued to mean that the evil social network is stealing your copyright, when it really just means that they are allowed to show pictures as you intended them to be shown (or, perhaps, in advertisements). You keep your copyright. It usually doesn’t mean that you give everyone a right to use your photos because you once posted them somewhere.
2. After Randazza gets his hands on him, I’ll let Craig try to convince his lawyer that he acted in “Good Faith” and “Fair Use” by profiting off of illicitly-procured photos. Don’t resort to the protections of copyright law while proclaiming that copyright law doesn’t apply to you. And, by the way, while your server may be outside the U.S., you’re still here — a judge doesn’t have to order a webhost to take down your photos when she can make you do it.
3. Patenting pictures. I can’t even say anything. Craig, the silence you hear at this lonely moment is the same void you will hear after the judge laughs so hard that your eardrums burst.
Improvement Two: Add a Middle-man!
The next improvement Craig and friends made on the IsAnybodyUp model was to find a way to make more money. Of course people are going to want those pictures taken down — they weren’t meant to be online. They’ll be more desperate when you attach their real names, hometowns, phone numbers, email addresses, and Facebook profiles to them so that anyone Googling their name finds them fast.
I’ll let Marc Randazza and Ken at Popehat explain this part. The synopsis is that Craig and friends got caught creating a fake lawyer who could ‘negotiate’ with them for a set fee to take the photos down — and they got caught because the original “TakedownLawyer.com” domain was registered in Craig Brittain’s name. I’ll just note that today — after this was pointed out — the people behind IsAnyoneDown.com replaced “TakedownLawyer.com” with “TakedownHammer.com” — and registered it in Craig’s name.
Also, how do we know it’s Craig? Perhaps the real Craig has no idea what’s being done in his name. But in addition to the domain registrations (which track back to the same Colorado Springs address as his father), Craig’s picture — via his MySpace page — is on the bloody Google account used to email me.
Try harder, Craig.