Jussie Smollett -- What Went Uber Wrong with the Plan

Jussie Smollett - photo credit: By Sister Circle Live 
Jussie Smollett -- What Went Uber Wrong with the Plan
by Susan Basko, esq.


Other writers: If you are going to "borrow" my writing or research, at least give me credit.  I do original research and -- heck, you ought to try that, too.

The latest twist in the Jussie Smollett street attack story is that he paid his two body-building friends, Chicagoans Nigerian brothers Abel and Ola Osundairo, $3500 to stage the mugging.   (Allegedly, someone emailed in to remind me to write allegedly.)

What went wrong with the plan?

1. The story seemed fishy from the beginning for a whole roster of reasons, including that Chicago is not MAGA country, but rather, is a sanctuary city and longtime Democratic stronghold.  Then there was the fact it was an icy cold Chicago night and people were not out strolling about.  Surveillance video had to be searched to find even two people out and about.  Then there was the oddball fact that Jussie Smollett still had his Subway sandwich after being attacked and tossed around.  Subway sandwiches are excellent, but in case of a violent tussle, are likely to be dropped and lost.  All in all, the story came rang up as not likely fully true.

2. The attack took place - or was staged -- just below a street surveillance camera.  And then it turned out the camera was actually facing the opposite direction. This was the first big snag in the plan; the video evidence was nonexistent.

3. Chicago police located two potential attackers on surveillance video and then, according to at least one news report, used the Uber ride-sharing app to identify one of them.  Uber requires those who join its app to allow the company to have access to the phone's locations, pictures, files, phone calls, texts, contacts lists, etc.  All the CPD had to do was issue a subpoena or warrant to Uber and they could obtain not only the name of the man using the account, but his financial data, airline ticket jpgs and itineraries which were likely stored on the phone, photos, a location history, and tons of other information likely contained on the phone that the user had given Uber permission to access upon joining Uber.

 Scary?  The permissions required are why I have not joined Uber; I was shocked when I recently read the permissions list. Here are screen shots of the Uber app permissions that appeared on a version of the app that recently appeared.  The app gives written notice that "Updates to Uber may automatically add additional capabilities within each group."  In other words, these capabilities may be expanded each time an app update occurs.  Some apps update automatically, and others require a click or permission.  Very rarely would anyone seek out or read what permissions are being given to the app on an update.


This first screen full of permissions gives Uber permission to know the identity of the user, find accounts on the phone, add or remove accounts, read the contact card, read the person's contacts, and find the person's approximate and precise locations.


This second set of permissions gives the Uber app the abilitiy to receive text messages on the user's phone, read the user's text messages, and send text messages from the user's phone.  Uber is also given permission to directly call phone numbers, presumably using your phone or possibly using your phone contacts to make phone calls.  Uber is also given permission to modify or delete contents of the user's SD card.  The SD card is where you may have stored pictures, files, tickets and receipts, songs and videos, games, etc. 


This third set of permissions allows Uber to use the user's camera to take pictures and videos! It also allows Uber to obtain the user's WiFi connection information, which would show which WiFi systems have been available to your phone and which you have logged into.  This would be a way of tracking the Uber user's movements and activities, as well as a way to be able to find out more information, such as what was done on any of those WiFi systems.  Included in this set of permissions is that Uber can read the phone status and identity and the Device ID and phone call information.   You're just calling for a car ride, not joining the CIA, remember.


This fourth set of Uber app permissions overlaps with the third screen.  Here, Uber lists as "Other" a set of "New" permissions.  Uber can: Draw over other apps (I am not sure exactly what this means, but it does not sound good), prevent phone from sleeping, connect and disconnect from WiFi, read Google service configuration, control vibration, pair with bluetooth devices, change your audio settings, use accounts on the device (sounds like it can buy things on your Amazon account? or what?), view network connections, and have full network access.

 Basically, when you give Uber all these permissions, you are employing Uber to spy on you, your contacts, your locations, phone calls, your audio, and all your files. It sounds like with the two Nigerian-Chicagoan brothers, the Chicago Police Department were able to track them via the Uber app.  One day, the men in the grainy photo were unidentified and barely recognizable.  Soon thereafter, Chicago police knew their names, their address, knew when they had flown to Nigeria and when they were coming back.  Police were waiting at O'Hare Airport for them upon their return.

 What's the upshot here?  Does Uber need all this information and all these capabilities to arrange for someone to give you a ride?  Likely, it needs some of these capabilities.  Having some of these permissions probably makes Uber riders and drivers safer or at least they can be held accountable easier if they do something bad.  After all, with Uber, you are getting into a car with an unlicensed stranger and that driver is allowing random people off the street into their car.  The Uber app permissions make both the driver and riders more known and less random.   The knowability probably makes the whole enterprise a bit safer for all involved.

 The downside is you are giving Uber the right to act as a surveillance machine upon the intimate details of your life that are contained in your phone.  Upon considering this list of permissions, I could not get myself to click, "I accept."   I decided that if I cannot walk or take a bus or train, I will call a taxi or a friend, if one is nearby.  Many times, I am in places where taxis are scarce.  My lack of Uber has meant such things as walking with groceries in the rain or walking a distance to where I knew there was a cab stand.  It's not convenient and I long to use a ride sharing service, if one were respectful of my privacy.

 What is the legality of police using information gathered by the Uber app, when the Uber user has given the app permission to gather all that information?  If the police serve a subpoena or warrant upon Uber, it seems likely the Uber user has no standing to object to the subpoena and would probably not even be given notice of the subpoena.

Might the police require Uber to commandeer the phone and, for example, require Uber to give the location of the phone, and likely of the phone owner, since most people carry their phones with them?  Might police require Uber to use the phone camera to show the people or the place where they are located?  Might police require Uber to use the phone as a listening device?  Or would Uber be required to only give the information it would have otherwise obtained in the normal course of its business operations?

 Conversely, are there privacy laws that prohibit an app from gathering excess information?  Right now, as far as I know, the legal standard is that the app must get permission from the users to gather or use information.  However, app permissions are always a take-it-or-leave-it proposition -- either you agree to allow the app to do what it does or you do not use the app.  A user cannot opt in or out of the various permissions.  And, as seen above, the app can automatically add on more capabilities with each update. 

All these are legal questions that have yet to be explored, as far as I know.   Right now, awareness is the key.  If you are agreeing to turn your phone into a complete surveillance device that can be used against you, then at least be aware you are doing that.


Stalking Notice and Disclaimer

Stalking Notice and Disclaimer
by Susan Basko, esq.

For the past month or so, a mentally ill young woman in California has been posting extremely defamatory, menacing, and harassing posts to or about me on her 5 or 6 twitter accounts.  She has posted dozens upon dozens of weird and disturbing posts, accusing me of all manner of made-up crimes and such, as well as accusing a psychiatrist, apparently known to her, of murder and other serious crimes.

 The young woman has issued death threats to me via Twitter, accused me of strange crimes and wrongdoings, and posted lots of misplaced anger. I am not and never have been involved in her life, other than exchanging 5 or 6 cordial emails with her many years ago.

 For sake of clarity, I need to state that I have never met this young woman, have never spoken with her, and there is no interaction or connection between us.  She approached me on Twitter about 8 years ago and we exchanged a few emails.  She explained that she had bipolar illness and a history of very serious stalking and riling up confusion by impersonating people and writing letters in their names to other people to get the other people angry.  She told me she had been arrested for stalking, had been hospitalized as a result, and that she was on some sort of parole or probation because of it.  After a few emails, I dropped the potential friendship explicitly.

She has stalked me on and off ever since and this has caused considerable harm to me.  She has engaged in horrifying, ongoing massive attacks of lying and delusional accusations of crimes and wrongdoings against me and people that I know.   She and her friends and associates in a group called the Rustle League have littered the internet with huge amounts of shocking defamation and ridicule of me, using skilled search engine optimization to weaponize Google and maximize the extreme defamation against me.   I have also been the target of hacking, swatting, false and malicious police reports and bar complaints, false and malicious lawsuit filings, bomb threats made using my name, and on and on and on.

  It should go without saying that I have no relationship, connection, or interaction with this young woman or any of her friends or associates.  I have never met her or had any interaction with her and have never done anything to her; nor has anyone that I know.  She has menaced and stalked me and attacked me on and off for years on end, as have her friends and associates in the Rustle League and her other online associates.

 This young woman has bipolar illness and appears to be in a delusional mania.  This young woman is a very junior lawyer, so a lot of her harassing tweets have a legal theme.  None of it makes any sense and none of it conforms to reality.  She often posts tweets claiming I am doing something wrong legally, or that she is filing a Bar complaint, or that she is filing an FBI complaint.  There is no wrongdoing or crime at all on my part and never has been any.  These accusations are all in her imagination and relate to her desire to menace and harass and possibly partly caused by her mental illness.

 I have her blocked on my Twitter accounts and none of my tweets are to or about her, making her menacing input not only unwelcome, but frightening to me.  I should be able to participate in a public forum without being set upon by this person menacing and defaming me and threatening to kill me.

 Tragically, the young woman is a member of a group called the Rustle League, which is a group of people who met online.  Most or all of these people have major mental illness and/or substance abuse problems.  They are known for hacking, doxing, stalking, swatting "social engineering," which is a form of trickery to get information to be able to hack or dox a person, invasions of privacy, obtaining personal materials and posting those online, not respecting personal boundaries, projection of their own wrongdoing onto others, particularly onto their victims, and other bad acts.

 I have been a target of this whole group for over 8 years.  During that time span, most of the Rustle League members have landed in prison or in mental institutions, some have died, and a few have gotten mental health care or drug rehab and gotten their lives a bit more together.  Sadly, during this young woman's delusional mania, other members of the group have been egging her on and even participating in her delusional rhetoric and highly defamatory claims. 

  If one is in a bipolar mania, turning to others with the same sort of mental problems for help is not useful.  There is something to be said for choosing one's friends wisely.  This young woman has chosen, even while relatively well, to befriend people who are actively involved in stalking, menacing, hacking, and harassing others.

 For the first several years that I was stalked by the Rustle League members, most of them used swastikas on their Twitter accounts, as well as pictures of Hitler, many derogatory references to Jews and "Jew gold."  They also posted on their twitter accounts obscene photos of a distended anus, which they call "goatse," which signified their participation in the highly defamatory and harmful website, Encyclopedia Dramatica.   When one has a mental illness, the worst possible thing is to choose friends who will lead one into and approve of activities and behaviors that are, on their face, sick and depraved.  The pervasive use of Nazi and  obscene symbolism by members of the Rustle League, as well as the members' association with well-known Nazi and ISIS leaders, would be enough to warn anyone that the group was not a normal or healthy social club.  The group members only stopped posting swastikas and goatses on Twitter when Twitter finally banned their use.  It took Twitter years to install that ban.

 While I have sympathy for anyone experiencing extreme mental illness, it is also unfair that I have been made the target of the delusions, menacing, accusations, stalking, and the extreme levels of online character assassination and defamation.  Mental illness does not have to involve harming strangers.  Nor should mental illness involve the person being allowed to be online making a public spectacle of how sick they are and how confused their thinking is.   Once the mania has worn off, that is too much damage to try to recuperate from, and too much damage has been done to innocent strangers, such as myself.  In this instance, she is also online chronicling the unraveling of her very new legal career.

 What I find the saddest is that this young woman's family has not had her hospitalized and taken her off the internet, where she is making a spectacle of her illness and her delusions.   This same young woman engaged in the exact same kind of online manic assault against me and people I know just a few short years ago.  That time, she also made criminal accusations against that same psychiatrist as well as against others.  After that horrific situation, I thought surely her family would put in place a system to quickly have her hospitalized and taken off the internet when her mental illness flared up.  Apparently not.

Overall, I cannot see how or why this stranger's mental illness should be an issue I am forced to deal with for years on end, simply because her family refuses to provide proper care and guardianship for her. They leave her running around physically and on the internet, harming others, always including me in her list of victims.  This is not socially right.  The family has the wherewithal to hospitalize her and keep her and society safe.

 I debated heavily about whether or not to write and post this sort of disclaimer.  However, after weeks of having this woman post dozens upon dozens of menacing accusations on 5 or more twitter accounts, to an audience of over a thousand people, and then watching her equally disturbed friends joining in, I feel I had no choice but to state clearly and simply that I have no connection to this person or her friends, and yet have been horrifically stalked and attacked by them for years.  I have kept screen shots and URL listings off all of the tweets from this attack as well as the onslaught from a few years ago as evidence or proof, if any is needed.

 The internet is littered with the horrific defamation and smears against me created by this malicious group. That is their stock in trade and their raison d'etre.  I don't claim to understand this new form of group mental illness; I have simply been the victim and observer of it.

 While I have the greatest sympathy with those experiencing mental illness, I do not wish to continue being victimized by the mental illness and bad behaviors of this young woman or that of her friends in the nefarious group, Rustle League.  All I have ever asked is that these unpleasant and damaging people Leave Me Alone.  Leave me alone.  For many years now, this has been an impossible task for them. If anyone has any questions about this terrible situation, please email me.

Jail Phone Call Recordings Online


Jail Phone Call Recordings Online
by Susan Basko, esq.


I have hesitated and waited in explaining this publicly, but questions have been raised, and so I shall explain.  There is a situation that has raised the question publicly of whether or not I reported a serious crime committed against me and others to the authorities -- and the answer is, "Yes, I reported this crime."  I am finally speaking up because I do not want my own integrity and ethics to be put into question by the shocking wrongdoing of other people.  

A deeply evil man named James Alexander McGibney of San Jose, California, has stalked me for years.  He is a horrible sick man who stalks scores of women nationwide.  James McGibney has a very lengthy and notorious history of harassing and terrorizing women  and girls across the nation.  I know personally quite a few women who have been stalked and terrorized by James McGibney, myself included.  The women I know of who have been and are stalked by McGibney are of a certain type: mother and grandmothers, highly intelligent, successful, virtuous women and upstanding citizens, pillars of their community.  James McGibney targets women he "sees" on the internet and then stalks and terrorizes them mercilessly for years on end, never stopping.  He has done this to me and to quite a number of women I have come to know through our mutually being stalked by him.

McGibney's main goal and tactic in stalking all these women seems to be to try to weaponize Google -- he buys up domains in the names of his stalking victims and in the names of their family members, and creates websites where he posts lies, invasions of privacy, smears, and other filth.  His goal appears to be to take good virtuous women and try to destroy their reputations by posting filthy garbage "about" them.  In doing so, James McGibney is an enemy to all women, to families, and to civilized society.  His actions are deeply evil and hate-filled.  He and his associates treat women as less than human.  He has tried to remove all dignity, all grace, and all decency from women nationwide.  I know; I am one of the victims and have been so for years now.

 James McGibney runs a for-profit defamation-smear and extortion business called ViaView, Inc.  He also supposedly works for a company called Rosendin Electric.  McGibney's Via View, Inc., runs horrific smear websites where McGibney posts all manner of lies, filth, and harassment about his stalking victims.  Included among these smear-extortoin websites are Cheaterville, which was designed for McGibney to post photos of young girls with their personal information and call them such things as slut and whore, and then McGibney demanded take-down payments of hundreds of dollars.  In court filings, McGibney claimed he was making hundreds of thousands of dollars per year on that one evil website alone.  (If I often use the word "evil" in writing of James McGibney, it is because it is the most apt word.)  Another McGibney website is Bullyville, where McGibney posts tons of lies, smears, invasions of privacy, and his other extortionate materials.  McGibney conducts these rampant assaults on the dignity of women, apparently in addition to working at Rosendin Electric.

James McGibney engages in targeted harassment so terribly much that his Twitter accounts have been repeatedly kicked off and banned by Twitter.  This is so rare for Twitter to kick anyone off the platform, but McGibney deserved it, withi his incessant death threats and demeaning harassment aimed at his stalking victims.   It takes a whole lot of wickedness to get kicked off Twitter permanently, and McGibney has been kicked off permanently many, many times. He waits a while and sneaks back and creates a new account.  Right now, there is an account that appears to belong to McGibney, followed by 28 people, most of which are known long-time internet harassers -- and a few sock puppets.

I never heard of James McGibney until he, out of the blue, began stalking me.  One night, someone emailed me to say that James McGibney was tweeting that I sell children for sex.  Huh?   I am a mother, a grandmother, a lawyer, and have never been involved in any crime of any sort, let alone any type of sexual crime or misdeed.  My actions are of the highest character and goodness. I come from a large and loving, close-knit, good family.  We are a family filled with degrees and honors and awards, interesting careers, honorable children, and most of all, love. We are a family that goes on hay rides and apple picking together.  We make soup for our neighbors and volunteer in our communities.  The tweets and accusations were so bizarre that, at first, I blocked McGibney on Twitter and ignored him.  I know now I should have called the police immediately.

 By the time I found out who James McGibney was, he had already purchased multiple domains and emails in my name.  He used the domains to create false, horrific websites where he posts hundreds of lies about me.  I am a lawyer.  James McGibney and his former lawyer, Jay Leiderman, bought up the domains suebasko(dot)com and Suebaskolaw(dot)com and other domains + emails in my name.  They pretended to be me and posted tons and tons of lies about me -- entirely fabricated ugly, vile, dishonest bullshit.  I have never met or spoken with either of them.  I had never done anything to either of them.  Their attacks were entirely unprovoked and shocking and out of the blue.  In fairness, I will say that Leiderman appears to have gotten mental health care and appears to have stopped engaging, at least overtly, in these activities, but James McGibney persists.  The internet is absolutely littered with the lying, defamatory garbage created in my name by these people and their stalker associates - the obvious purpose being to extort me.

Several years ago, a young woman from Colorado, with whom I was acquainted online and via phone, contacted me to tell me that her boyfriend, with whom I am also similarly acquainted, had been arrested.   I knew them both as a talented, caring young couple very much in love and planning their future together. The young woman said her boyfriend had been arrested through actions of her mother, who, she said, had interfered in her other past relationships.  The young woman was heartbroken and wanted to help her boyfriend out of jail as quickly as possible.  She asked me to help and asked me to allow the boyfriend to call me.  

I made a Securus Tech jail phone call account for $20 or $30 and allowed the young woman's boyfriend to call me several times, until he used up the money.  That was about 12 short calls in total.  The calls were simple, but personal.  There is nothing unusual in the calls and normal people would find them boring.  That's normal people, not deranged stalkers.  The phone calls are not anyone's business and only sick, depraved people would want to stalk in and listen to the personal phone calls of other people.  

In October 2017, I found out that an assistant county attorney in Jefferson County, Colorado, named Rebecca Klymkowsky, had sold or given 20 hours of recordings of the man's jail phone calls to James McGibney, the cyberstalker extortionist described above.  The stalker McGibney placed the jail phone call recordings onto one of his vulgar, dishonest websites, along with his deranged narrative.  

There is no known law or legal reasoning that would allow Klymkowsky to sell or give the recordings to McGibney -- or to anyone.  I have been assured by many higher level legal sources that there is absolutely no legal basis for this to have been done.  Simple logic would explain this to anyone, even if they had no legal knowledge.  Jail inmates use phone calls to help find witnesses and to plan their defenses, to stay in touch with their families, friends, and jobs.   Making those jail phone calls public would interfere with any defendant's right to due process and a fair trial, as well as defeat the purposes of keeping inmates in contact with their loved ones and responsibilities.  What has been done is shocking and inconceivable under the laws and Constitution of the United States of America.

The ONLY way that jail phone calls could possibly be legally released would be to a bona fide law enforcement agency with a valid subpoena to use them for a bona fide legal investigation purpose.  There is absolutely no situation where a crazed cyberstalker would be allowed to obtain jail phone call recordings to post on the internet for cyberstalking and extortion purposes.

In addition, I was assured by Securus Tech, the jail phone call company, that a jail phone call recording could only be released to a bona fide law enforcement agency with a valid subpoena, and no other way.  Common sense and logic would tell us this, too.  

I have duly reported this situation to higher legal authorities, as I was required to do.  I have been assured by the highest law enforcement authorities that this situation is being worked on.  

I have never listened to the jail phone call recordings that are supposedly posted by James McGibney, on his stalking website.  I do not know if he posted real calls, if he edited or switched the calls around.  I do know the actual calls are mundane.  

I urge everyone to avoid going to any website run by James McGibney.  The websites are of an evil nature, and anyone good would want to avoid such places.  (In my religious upbringing, these were called "occasions of sin" or "places of sin.") The websites were created by James McGibney to indulge in his hatred of women across the nation -- especially his hatred of good women who are mothers and/or grandmothers.  For whatever reason, these good, lovely women are McGibney's chosen target of hate.  It is inexplicable, because I have been in contact with a number of the women victims of McGibney's stalking, and they are all caring, intelligent, responsible, good, lovely women.  It has been said that since McGibney's mother put him up for adoption, that he hates all women and seeks to punish them.  Behind every sick, twisted person, there is usually some story from their upbringing, and this might be his.

The McGibney websites are also likely to have trackers and tracers, and in fact, McGibney has claimed that he can identify visitors to websites.  This presents a highly dangerous situation for anyone. 

James McGibney is a man who is running a business trying to make money by making up lies and smears about other people.  He is trying to damage the reputations of strangers. He is not a good person.  I would urge anyone decent to avoid him and his websites.   

Please be aware that I report all serious crimes committed against me, including all forms of stalking and cyberstalking, false reports of crimes, false blogs and websites, anyone claiming I am part of a conspiracy theory the person dreams up, threats of any sort, repeated unwanted contacts or postings via social media, impersonations, and more. 

HERE IS AN EXCELLENT ARTICLE THAT EXPLAINS PEOPLE LIKE JAMES MCGIBNEY AND HOW IN THEIR MINDS, THEY JUSTIFY ATTACKING WOMEN.



New Illinois Legal Tools Against Cyberstalkers



New Illinois Legal Tools Against Cyberstalkers
by Susan Basko, esq.

Starting in 2019, Illinois ramped up the protections against cyberstalkers by making it illegal to send unwanted social media messages.  This is part of the civil restraining order law. The order puts the stalker on notice  -- and then any unwanted social media messages are a violation that can get the person arrested and charged. 

 Section 5. The Stalking No Contact Order Act is amended by
changing Sections 5, 10, and 15 as follows:
    (740 ILCS 21/5)
    Sec. 5. Purpose. Stalking generally refers to a course of
conduct, not a single act. Stalking behavior includes following
a person, conducting surveillance of the person, appearing at
the person's home, work or school, making unwanted phone calls,
sending unwanted emails, unwanted messages via social media, or
text messages, leaving objects for the person, vandalizing the
person's property, or injuring a pet. Stalking is a serious
crime. Victims experience fear for their safety, fear for the
safety of others and suffer emotional distress. Many victims
alter their daily routines to avoid the persons who are
stalking them. Some victims are in such fear that they relocate
to another city, town or state. While estimates suggest that
70% of victims know the individuals stalking them, only 30% of
victims have dated or been in intimate relationships with their
stalkers. All stalking victims should be able to seek a civil
remedy requiring the offenders stay away from the victims and
third parties.
(Source: P.A. 96-246, eff. 1-1-10.)

The law also adds as prohibited places of contact workplaces, schools, and places of worship -- and authorized those in charge of those places to file restraining orders.



  (740 ILCS 21/10)
    Sec. 10. Definitions. For the purposes of this Act:
    "Course of conduct" means 2 or more acts, including but not
limited to acts in which a respondent directly, indirectly, or
through third parties, by any action, method, device, or means
follows, monitors, observes, surveils, or threatens, or
communicates to or about, a person, workplace, school, or place
of worship, engages in other contact, or interferes with or
damages a person's property or pet. A course of conduct may
include contact via electronic communications. The
incarceration of a person in a penal institution who commits
the course of conduct is not a bar to prosecution under this
Section.
    "Emotional distress" means significant mental suffering,
anxiety or alarm.
    "Contact" includes any contact with the victim, that is
initiated or continued without the victim's consent, or that is
in disregard of the victim's expressed desire that the contact
be avoided or discontinued, including but not limited to being
in the physical presence of the victim; appearing within the
sight of the victim; approaching or confronting the victim in a
public place or on private property; appearing at the workplace
or residence of the victim; entering onto or remaining on
property owned, leased, or occupied by the victim; or placing
an object on, or delivering an object to, property owned,
leased, or occupied by the victim; and appearing at the
prohibited workplace, school, or place of worship.
    "Petitioner" means any named petitioner for the stalking no
contact order or any named victim of stalking on whose behalf
the petition is brought. "Petitioner" includes an authorized
agent of a place of employment, an authorized agent of a place
of worship, or an authorized agent of a school.
    "Reasonable person" means a person in the petitioner's
circumstances with the petitioner's knowledge of the
respondent and the respondent's prior acts.
    "Stalking" means engaging in a course of conduct directed
at a specific person, and he or she knows or should know that
this course of conduct would cause a reasonable person to fear
for his or her safety, the safety of a workplace, school, or
place of worship, or the safety of a third person or suffer
emotional distress. Stalking does not include an exercise of
the right to free speech or assembly that is otherwise lawful
or picketing occurring at the workplace that is otherwise
lawful and arises out of a bona fide labor dispute, including
any controversy concerning wages, salaries, hours, working
conditions or benefits, including health and welfare, sick
leave, insurance, and pension or retirement provisions, the
making or maintaining of collective bargaining agreements, and
the terms to be included in those agreements.
    "Stalking No Contact Order" means an emergency order or 
plenary order granted under this Act, which includes a remedy
authorized by Section 80 of this Act.
(Source: P.A. 96-246, eff. 1-1-10.)

The law widens the group of people who may apply for a restraining order to include those who are being stalked -- which includes those who fear for their safety or suffer distress because of unwanted contact, including unwanted social media postings.  

(740 ILCS 21/15)
    Sec. 15. Persons protected by this Act. A petition for a
stalking no contact order may be filed when relief is not
available to the petitioner under the Illinois Domestic
Violence Act of 1986:
        (1) by any person who is a victim of stalking; or
        (2) by a person on behalf of a minor child or an adult
    who is a victim of stalking but, because of age,
    disability, health, or inaccessibility, cannot file the
    petition; .
        (3) by an authorized agent of a workplace;
        (4) by an authorized agent of a place of worship; or
        (5) by an authorized agent of a school.
(Source: P.A. 96-246, eff. 1-1-10.)

These new changes to the Illinois stalking law give good new tools to combat stalkers and cyberstalkers.  The criminal portion of the Illinois Stalking and Cyberstalking laws are already quite protective.


Flossin', the Backpack Kid, Lawsuits, and Copyright Law

 
Flossin', the Backpack Kid, Lawsuits, and Copyright Law
by Susan Basko, esq.

The Backpack Kid, Russell Horning, is suing owners of two video games -- Fortnite and NBA 2K -- for using his Floss dance without his permission and without paying him.

However, to sue someone, there must be a legally-acceptable basis for the lawsuit.  In this instance, there are two possible legal theories for a lawsuit, but neither one meets the legal requirements.

The first possible legal basis for a lawsuit would be Copyright on the Choreography.  However, Copyright law only protects Choreography that is meant to be performed by skilled, professional dancers, and where the choreographer has preserved the dance with notations or video to be used by professional dancers to create their performance.  Copyright law, at this time, does not protect a simple dance movement that is a fad to be performed by anyone.

This is a cool video of the Backpack Kid judging different people trying to Floss.  As you can see, the dance is one simple move.  However, not everyone can get the hang of it.


Below, you can read the circular put out by the U.S. Copyright Office about Copyright of Choreography.  The Copyright Office only recognizes choreography that is notated or set in tangible form, meant to be performed by skilled, professional dancers.  It does not recognize short routines meant to be performed by everyday people.

Unless the U.S. Copyright Office decides to start recognizing common fad dances as having copyright, the copyright portion of this lawsuit cannot succeed. Flossing is similar to the olden days fad of doing the twist -- it is a simple movement meant for everyone to do it.

 Another potential basis for a lawsuit by the Backpack Kid against the video games would be the California Right of Publicity, which protects commercial use of a person's name, voice, signature, photograph, and likeness.  However -- the video games are not using any of these things.  Rather, the games are having animated characters doing the Floss dance.

 These lawsuits are likely to be an extremely expensive mistake for the Backpack Kid.  Lawsuits are very expensive and can destroy him financially.  That is a shame, because basic legal research would have shown that neither of these causes of action can succeed.

 The Backpack Kid still has lots of ways he can make money by capitalizing on his newfound fame -- including personal appearances, television appearances, and by developing some trademarks based on his nickname and dance, and by creating a line of merchandise, such as shirts, posters, greeting cards, action figures, games, etc.  We wish him the best in such creative ventures! Wasting his time and money on a most likely to fail lawsuit is a shame and can destroy him not only financially, but popularity-wise, too, since people will become afraid to deal with him and his dance routine, for fear of becoming a target of a frivolous lawsuit.

Important Copyright Case before U.S. Supreme Court

between a rock and a hard place
Important Copyright Case before the US Supreme Court
by Susan Basko, esq.

On January 9, 2019, the U.S. Supreme Court will be hearing a case that will decide a very important question regarding Copyright.  The rule, written in US Copyright law, is that a person must register copyright on a creative, original work with the US Copyright Office before that person can file a copyright infringement lawsuit regarding that work.  However, the question is:  What does it mean to register?  Is it good enough to put in the application, deposit (copy of the item to be registered), and the fee?  Or does the law actually require the application to be accepted and registered by the US Copyright Office, a process that takes 6 months to a year?  That is the question that will be decided.

The case is called FOURTH ESTATE PUBLIC BENEFIT CORPORATION V. WALL-STREET.COM.  Fourth Estate provides content for news websites that subscribe to its service.  Wall Street was one of the subscribers to its content. Fourth Estate required its subscribers to delete all of the Fourth Estate contents off its websites when canceling a subscription. Wall Street cancelled its subscription, but left the Fourth Estate content on its websites.  Fourth Estate sued for copyright infringement after filing a copyright application, but before that application had been granted or denied.

Federal courts work in circuits, so that federal appeals are valid for an entire circuit, which encompass several states.  With this question, the 10th Circuit and 11th Circuit  have decided that the copyright registration must be either granted or denied before an infringement lawsuit can be filed. The 10th Circuit is a block of western mountain and plains states - Wyoming, Utah, Colorado, Kansas, New Mexico, and Oklahoma.  The 11th Circuit is the southeastern states of Florida, Alabama, and Georgia.

The 5th and 9th Federal Circuits have held that a Copyright registration has taken place when the application, deposit, and fee have been sent to the Copyright office.   The 5th Circuit is Texas, Louisiana, and Mississippi.  The 9th Circuit is California, Nevada, Arizona, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands.  Copyright applications can be, and usually are now, made online, so this process takes under one hour.  Thus, the people in the 5th and 9th Circuits have the advantage of at least 6 months over those in the 10th and 11th Circuits.

The question being decided by the US Supreme Court is this:

17-571 FOURTH ESTATE PUBLIC BENEFIT CORPORATION V. WALL-STREET.COM
DECISION BELOW: 856 F3d 1338

QUESTION PRESENTED:

Section 411(a) of the Copyright Act provides (with qualifications) that "no civil action for
infringement of [a] copyright in any United States work shall be instituted until preregistration
or registration of the copyright claim has been made in accordance with this title." 17 U.S.C. §
4ll(a). The question presented is:

Whether "registration of [a] copyright claim has been made" within the meaning of§ 411
(a) when the copyright holder delivers the required application, deposit, and fee to the
Copyright Office, as the Fifth and Ninth Circuits have held, or only once the Copyright Office
acts on that application, as the Tenth Circuit and, in the decision below, the Eleventh Circuit
have held. 

WHY THIS IS IMPORTANT: With the internet, we are able to instantly publish words, pictures, videos, etc.  If our works are creative and original, and set into tangible form (such as being written, photographed, recorded, etc.), they are imbued with copyright upon their being set into tangible form.  However, the copyright law says we cannot use a lawsuit to protect the copyrights unless we first register copyright.  If we were to follow the rule that "registration" means the full six month of longer process of the Copyright Office registering or denying registration, that leaves the works without the full protection of the law for those 6 months. If we follow the rule that says filing the Copyright application, paying the fee, and depositing the material is "registering," then the works can have the full benefit of the law once the application is filed.  The key then is to be sure to file a Copyright application before filing any copyright infringement lawsuit.  Since this law is interpreted differently by the Courts in these different circuits, those who feel they need to file a copyright infringement lawsuit to protect their works may need to "forum shop" to file their lawsuit in a court in one of the circuits that requires only the filing of a copyright application and not its acceptance and registration by the Copyright office.

This gap of 6 months or more can matter a lot because the statute of limitations on Copyright infringement is only 3 years after the copyright claim "accrues".  After 3 years, the copyright holder is barred from filing a lawsuit.  If the copyright holder has to wait 6 months or more for the copyright to be registered, that cuts the window of time in which a lawsuit can be filed.  But, does the claim accrue at the time of the infringement (known as the injury rule) or does it accrue when the copyright owner finds out about it (known as the discovery rule)?  Different courts across the nation have interpreted this in different ways.  Most federal circuits use the discovery rule -- that the statute of limitations begins to run when the copyright owner knew or should have known that the copyright was being infringed.

Interestingly, it is the 10th and 11th Circuits that follow the more time-limiting "injury rule" and also require the full registration to take place.  These two limitations can severely limit the time frame in which a copyright owner in the 10th and 11th Circuits would be able to file an infringement lawsuit.  For  example, a copyright might be infringed and the copyright owner might not find out about it for a year or two  -- and then, if the work is not already registered, would in addition have to wait the 6 months or longer for the Copyright office to register the work.  That would narrow the window for filing a lawsuit to a few months or in many cases, remove the possibility altogether.

The anticipated result of this Supreme Court case will be to bring the 10th and 11th Circuits into line with the rest of the nation, so that there is a more uniform Copyright protection nationwide.  If the Supreme Court issues a decision other than bringing the 10th and 11th Circuits in line with the rest of the nation, we can foresee a lot more forum shopping on Copyright law cases stemming from within the states in those circuits.  Companies within those states may wish to incorporate a branch elsewhere and register their copyrights from a location that has more normal copyright protections.  Again, the states that are affected by the copyright unfriendly rulings in the 10th and 11th Circuits are Florida, Alabama, Georgia, Wyoming, Utah, Colorado, Kansas, New Mexico, and Oklahoma.  The Courts in these two Circuits have essentially stripped a great deal of copyright protection from the people in those states.

OTHER TYPES OF COPYRIGHT PROTECTION:  A great deal of commerce and communication is now done on the internet.  There are several potent forms of copyright protection that exist on the internet that do not apply off the internet.  Among these are the system of having DMCA  (Digital Millennium Copyright Act) registered agents and sending DMCA takedown notices.  Other protections include the takedown systems provided on some of the internet giants, such as Amazon, Youtube, Facebook, and Twitter.

My personal experience is that the Copyright takedown systems are robust on Amazon and Facebook, and very weak and poorly run on Youtube and Twitter.  To add insult to injury, Youtube, which is owned by Google, engages in the incredibly dangerous and harassing practice of posting the name of the copyright holder who has had a video removed -- so that the infringer and his or her fans know exactly who to target and stalk and hack and harass.  There is no legally valid reason for Youtube to engage in such a dangerous practice.  This is yet another example of the practices of Youtube and Twitter both devising systems that create bizarre obstacles for those being injured by the sites' users to simply have the offending materials deleted.  Both sites seem to cater to the users who are offensive or even deranged, rather than simply following basic law and normal concepts of protecting the public from users intent on harming others.

Very few people can afford to file a Copyright lawsuit.  However, Copyright registration is in and of itself a very good protection -- because it opens the possibility and the threat that one could file a copyright infringement lawsuit.  In addition, prompt registration after creation of the work or before the work is infringed brings the added benefits of the possibility of high dollar amount statutory damages, rather than whatever damages can be proven, as well as the possibility of being awarded lawyer fees.  Copyright infringement statutory damages are set very high -- about $150,000 per item infringed -- and this can be had even if the actual damages would be minimal, or de minimis.  The possibility of being awarded lawyer fees can sometimes entice a lawyer to take a case from a client unable to pay.  These two benefits of registering can provide a very powerful impetus to getting an infringer to stop infringing and/or to settle quickly.

Unfortunately, this very dilemna has been abused by Copyright Troll lawyers who have done such idiotic things as filing lawsuits against lots of people who downloaded a song or movie off websites that lured and invited them to do just that.  Some lawyers or their clients have even been caught baiting infringers with tagged porn movies to download -- and then be sued.  Other Copyright Troll lawyers have gone on fishing expeditions where they send out mass mailings about potential copyright infringement, to try to threaten people into settling.  Courts have hammered down on some of these Copyright Trolls, thank goodness.  Copyright is not a game and should not be used to bait and attack.

For the honest creative person who is looking to protect their creative, original work, registering Copyright promptly is a very excellent protection.

For start-up businesses looking for a place to establish -- there are reasons most of the start-ups situate themselves in the States where the courts are copyright-friendly.

Five Persistent Myths About Copyright


Five Persistent Myths About Copyright

There is a set of 5 myths about copyright that persist and seem to be spreading via the internet. Always keep in mind that Copyright has to do with the "Right to Copy."  The person who makes a creative, original work and sets it into tangible form (such as writing, drawing, recording) is (almost always) the one that owns the copyright and is the one that has the right to copy it and to decide if anyone else gets to copy it or use it.

Translation: Copyright = the Right to Copy.

 Here are some of the most common folkloric falsehoods about copyright law:

MYTH #1: If it's on the internet, it's in the public domain.  FALSE.  This is a very common idea that actually makes no sense.  Creative works enter the public domain after copyright wears out because of passage of time, which under current law, is the life of the creator plus 70 years after their death.  While there are works of art and music and writing that are on the internet that are in the public domain, such as pictures of very old paintings and old classical or folk music, anything that was created within the past 70 years cannot possibly be in the public domain.  Putting something onto the internet might be a means of "publishing" the work, as defined in copyright law, but it has nothing to do with public domain.

Translation: Just because it's on the internet does not give anyone else the right to use it.

MYTH #2: If you buy a work of art, you can do whatever you want with it.  FALSE.  No, not if it is painting, drawing, print, sculpture or still photograph that is a single piece made for exhibition or in an edition of 200 or fewer signed and numbered copies.  A 1990 law called VARA or Visual Artists Rights Act creates a sort of caretaker stewardship in any owner of such an art work, and allows the creator these rights:

  • right to claim authorship
  • right to prevent the use of one's name on any work the author did not create
  • right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
  • right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation
A more famous artist can prevent the destruction of an art work they have created.  Under this law, in 2018, a court awarded $6.7 million dollars to a group of 21 graffiti artists whose works were destroyed by a building developer.  Their graffiti art was painted onto a New York City building called 5 Pointz that had been artist studios for many years.  When the developer demolished the building to build condos, he destroyed their graffiti art work, in violation of the VARA law.

Translation: If you own a work of fine art, you are its caretaker and there are laws about what you can and cannot do with the art.

MYTH #3. If you take someone else's art work and change it 10%, it becomes yours and you can claim it as your own.  FALSE.  If you take someone else's art work and make changes to it, you are creating a DERIVATIVE WORK, and you need permission from the artist/ copyright owner of the original work to do that.  Creating a derivative work without permission from the copyright owner of the work you are riffing off is copyright infringement and can cost you $150,000 in statutory damages.

Translation: Stealing art is stealing art, even if you change it a bit.

MYTH #4. If you use someone else's work but do not make any money, it's okay. FALSE.  Copying someone else's creative work is copyright violation, whether the infringer makes money or not.  When an art work is registered with the U.S. Copyright Office, the artist may get statutory damages in a copyright infringement lawsuit.  Statutory damages on copyright are very high -- about $150,000, even if the artist cannot prove damages.  This is supposed to act as a deterrent to keep people from infringing copyright.  Writing apologies or notices such as, "No copyright infringement intended," has no legal effect, though it might make the copyright owner dislike you less.

Translation:  Even if you do not make any money by using someone else's copyright registered work, you might end out owing them $150,000 in statutory damages.

MYTH #5.  It's okay to use someone else's art because:  they'll never find out, there is nothing they can do, copyright lawsuits are too expensive, I'm on the other side of the world, I got hired by a company to do this, I feel like this art should belong to everyone. FALSE.  Most artists have fans and friends who will rush to tell them if they see someone stealing their art.  Googling images also makes it easy to find stolen art and counterfeits.  Copyright lawsuits are very expensive, but there is a whole array of other remedies that cost nothing other than time, including having your products removed off Amazon and Etsy and other sites, having your pictures removed off Facebook and imgur, having your products removed out of physical stores and markets, causing your links to go dead on Youtube product and unboxing videos, removing your products and store off printing sites.  Amazon and other sites got a lot more cautious about hosting and selling stolen art and counterfeit goods after several high profile lawsuits cost them tons of money.  If you expect Amazon to collude with you in your sale of shirts and posters adorned with counterfeit art, think again, because that jig is up.

Translation: If you're thinking of stealing art, think again.