Planning Against Terrorism in Protests


Planning Against Terrorism in Protests
by Susan Basko, esq.

On August 12, 2017, a man named James Alex Fields drove his car at a fast speed through a large group of protesters, as seen in the short video above.  The video is credited to Brennan Gilmore, who was present at the protest live streaming video. Mr. Fields has been arrested and charged with murder and other counts.  The protest and terror act took place in Charlottesville, Virginia.

Let's talk about protest planning and how to lessen the opportunities for similar terrorist acts.  People engaging in such violent acts are usually mentally unstable, and their acts in turn inspire other mentally unstable people.  Monkey see, monkey do.  If you are planning a protest now, you need to plan with major safety consideration in mind.

First, notice how the street in the video above is narrow, with low sidewalks and buildings closely lining each side. This bowling alley type set-up gives a driver intent on mowing down people an ideal set up.  The people are condensed and concentrated in the narrow street, with very few places to escape the car racing up from behind.

Plan your location and route in advance of your protest.  Actually go out in person, or use google street view if you cannot go in person.  Look for protective barriers. When you plan a protest, look for such things as:

  • Barriers before a street, to make it more difficult for a driver to enter.
  • High curbs.
  • On a bridge, barriers of at least one foot between the road and sidewalk.
  • Large cement planters and other large objects that can blockade a vehicle.
  • Places to escape to, such as courtyards, other streets, large buildings that are open, parks, beaches, etc. The route should have many escape routes.  
  • Avoid marches and rallies near any multi-story parking garages. These can be accessed by anyone and can be used by a sniper.

Consider asking for a police escort, so that the rear of your march is somewhat protected. However, note that in Charlottesville, the attack car plowed through the crowd of people and then smashed into another vehicle, which then smashed into a third vehicle.  Some of the worst injuries occurred to people sandwiched between the vehicles.  It may be that an attacker is less likely to drive into a marked police vehicle. It depends how brazen the attacker is.  Many such attackers plan to die as part of their attack and they may be attracted to encounters with police.

If you are holding a rally, look for a place that has protective barriers.  Most federal buildings have barriers designed specifically to prevent a car attack.  Let's look at some examples.

Federal Building, Chicago
This picture shows a Federal Building in Chicago.  Notice the large barriers.  Barriers like this should prevent most vehicles from getting past.  However, the barriers here protect only the building and the small adjacent plaza area. There are not such barriers to protect the large plaza area by the Post Office next door, which is where most protests and other public gatherings take place.  


This photo shows another Federal Building across the street.  Notice the barriers.


Plaza outside Post Office in downtown Chicago
This is the adjacent public plaza, in front of the Post Office.  This plaza lacks protection.  This is where many protest rallies are held in Chicago.  Maybe barriers should be erected?  If you hold a protest here, be aware of the dangerous layout. 

Daley Plaza, Chicago
This is Daley Plaza in Chicago, where many protest rallies are held.  Notice how the edges of the plaza are unprotected -- low curb, no barriers.  The center of the plaza is protected by a barrier of concrete benches and planters.  These are probably enough to stop or disable a vehicle.


Daley Plaza, Chicago 

Notice that the plaza center has a variety of types of barriers: concrete benches, concrete planters, steel fencing for a subway staircase, cement barrier walls for the subway, and posts.

STREET MEDICS. Another Safety Planning consideration is to be sure your protest group has trained medics in the crowd, carrying supplies.  At this article, you can see a picture of a terribly injured woman, and a second photo of her after she has been given First Aid by a Street Medic.  This street medic did an amazing job of getting this woman cleaned up and her head bandaged.  In the aftermath of this terrorist attack, having medics on hand to give First Aid while awaiting ambulances and EMTs gave crucial and probably life-saving support.  Don't expect your medics to pay for their own supplies. That should be an expense undertaken by the group.

What to Put in your Street Medic First Aid Kit:
http://medic.wikia.com/wiki/What_to_put_in_your_first_aid_kit

Street Medic Guide:
http://www.paperrevolution.org/street-medic-guide/

CAMERAS!
High quality, experienced live streamers can provide a measure of safety because they can see and identify trouble while it is brewing.  Their videos also provide excellent witness immediately and later during any trial.  At the Charlottesville terrorist attack, live streamers provided clear views of the attack, as well as the color, make and model of the car, and a clear view of the license plate number.  This allowed for certainty in identifying and apprehending the attacker.  People of the Internet had posted the ownership and sales records of the car within minutes of the attack.  Shortly after, there was a whole history of the suspect posted online.  Shortly after, reporters visited his stunned mother.  No doubt, the videos helped shape the criminal charges and will influence any further charges.

BASICS- PROTEST PLANNING IN LIGHT OF POSSIBLE TERRORIST ATTACKS:
  1. Safety First.  Know when to cancel.
  2. Rallies: Look for safety factors in any rally location: barriers, escape routes, lack of multi-story parking lots.
  3. March Routes: Look for high curbs, barriers on bridges between street and sidewalks, avoid narrow, closed-in streets, look for plenty of escape routes, consider asking for police escort.
  4. Street Medics: Recruit well-trained street medics carrying supplies.
  5. Cameras: Invite experienced live streamers and photographers.  

Monsarrat v Zaiger/ Encyclopedia Dramatica
Part 2- The Showdown


Monsarrat v Zaiger/ Encyclopedia Dramatica  
Part 2 - the Showdown  

See the earlier adventures in Part One, here.

Update July 18, 2017:  Today the scheduling hearing was held in the lawsuit that Jonathan Monsarrat, a video game developer, filed against Brian Zaiger, alleged owner of Encyclopedia Dramatica, a smear and harassment website.  Jonathan Monsarrat claims that several of his copyright-registered works were infringed on the website.

  These are the minutes of today's scheduling conference:

Electronic Clerk's Notes for proceedings held before Chief Judge Patti B. Saris: Scheduling Conference held on 7/18/2017...parties filed separate 16.b statements. Court set the following deadlines: Initial Disclosures 8/1/17; Discovery 1/12/18; Motions for Summary Judgment 2/12/18; Opposition due 2/26/18....Summary Jgm Hearing set for 3/22/2018 02:30 PM in Courtroom 19 before Chief Judge Patti B. Saris. Parties do not agree to ADR at this time. (Atty Goren, Atty Randazza, Atty Wolman by telephone)(Court Reporter: Lee Marzilli at leemarz@aol.com.) (Molloy, Maryellen)

What does all that mean?  There was a scheduling conference with Chief Judge Patti B. Saris.  The three attorneys appeared by telephone. Attorney Goren represents Jonathan Monsarrat.  Attorneys Randazza and Wolman represent Brian Zaiger.  The "parties filed separate 16.b statements," which means the parties were not able to agree upon even the most basic timeline.  

"The parties do not agree to ADR at this time."  "ADR" is alternative dispute resolution.  That means it is a way of trying to resolve a dispute without going to trial.  One of the two main types of ADR is mediation, where the parties meet with a mediator to see if they can agree upon a resolution.  If they do agree to a resolution, it will be written up as a binding agreement or contract and submitted as a court order, where the court will have jurisdiction to enforce the agreement. The other main type of ADR is arbitration. In arbitration, the parties submit themselves to one of more arbitrators who hear evidence and make a binding decision for the parties.  That decision is also turned into a court order and enforced by the court.  The main difference between mediation and arbitration is that in mediation, the parties are free to fashion their own solution, or to walk away with no resolution, while in arbitration, the arbitrator(s) will make a mandatory binding decision.  Many lawyers say arbitration is foolish since it is like a trial, but without the proper rules of evidence and without proper procedures and protections.  On the other hand, arbitration is a lot less expensive than a court trial and much faster, too.  In this situation, the parties do not want to engage in ADR, probably because both of them think they are going to win their planned Motions for Summary Judgement.

The Court also set deadlines.  Initial Disclosures are due 8/1/17.  These disclosures are a list of mandated revelations of fact regarding the parties and the situation. 

 Discovery deadline is 1/12/18/.  Discovery is a process of requesting items from the other side, such as documents, receipts, website logs, etc.  

Discovery also includes depositions, which is where one side calls a party or witness from the other side to be questioned under oath.  Depositions are usually held in a law office conference room.  Depositions have a court reporter present.  The depositions are turned into transcripts.  Often, a deposition will be used to "impeach" a witness at trial, in other words, try to prove that a witness has changed their story since the deposition.  Depositions are extremely expensive.  The costs include the lawyers, the space, the court reporter, and the transcripts.  Many times, parties will decide to settle after some depositions, usually because it becomes apparent just how weak someone's case is or how strong someone else's witnesses are.

Motions for Summary Judgement are due on 2/12/18, with the oppositions to those motions due on 2/16/18.  It sounds as if both parties intend to file a Motion for Summary Judgement.  A Motion for Summary Judgement is when one party claims that there are no issues of material fact and that they are entitled to judgement in their favor as a matter of law.  

Motions for Summary Judgement are rarely granted, for several reasons. First, there are almost always issues of material fact.  Second, courts scrutinize a Motion for Summary Judgement very carefully before granting one, since a good many of them are appealed.   

In this case, it looks like there will be cross motions, meaning each side will be filing a Motion for Summary Judgement. The hearing on the motions will be on 3/22/2018 at 2:30 PM in Courtroom 19 before Judge Patti Saris.

What is likely to be in those motions?  Jonathan Monsarrat laid out in his complaint that he has a court order from a previous time these same copyright registered items were published on Encyclopedia Dramatica.  That court order named someone called Hannah Rosenbaum.  Mr. Monsarrat will most likely be stating in his motion that Ms. Rosenbaum was a representative of the Encyclopedia Dramatica website and that she and Mr. Zaiger are in privity, meaning they represent the same entity.  Mr. Monsarrat will need to use Discovery to find who Ms. Rosenbaum is and what is her relationship to the site and to Mr. Zaiger.  If she is or was any sort of Admin for the site, Mr. Monsarrat might have a chance at the Summary Judgement in his favor.


Brian Zaiger's Motion for Summary Judgement is likely to claim that the use of the items is Fair Use as critique or commentary.  Considering there is a prior court judgement relating to use of the items, the Fair Use argument is weakened, even though his name is not on the previous court order.  The court order apparently covers the exact identical items.

That brings the case to the end of March, 2018.  If one party is granted Summary Judgement, the case will end, but the other side can appeal the judgement.  If neither party is granted a Summary Judgement, the case will move on to the trial phase.  If there is a trial, the earliest that would probably be would be the Summer of 2018, a year from now.

This will be interesting to watch.

 πŸŽπŸπŸŽπŸ

This is part 2 of the Big Movement Game where Boston game developer Jonathan Monsarrat is trying to smack down Encyclopedia Dramatica's shitposter overlord, Brian Zaiger, over alleged unauthorized use of Monsarrat's registered Copyright materials on the site.  In this episode, Monsarrat has filed an Answer to Zaiger's Counterlaims, as you can see below. The Answer is mostly admissions and denials of the statements Zaiger made in his Counterclaim, which you can read back at the earlier post HERE.

Monsarrat also adds his own Affirmative Defenses to the Counterclaims.  The only one I find curious, and I have to look into more, is the Third Affirmative Defense, where it is claimed that Zaiger lacks standing to make any of his Counterclaims.  On the face of this, to me this looks like an attempt to force Zaiger to admit he owns Encyclopedia Dramatica (ED) or to state who does own it.  If Zaiger is claiming to be not responsible for what goes down at ED, then he would not have standing to make Counterclaims on behalf of ED.  I could be wrong, but that is how I see the Third Affirmative Defense.  On the other hand, if Zaiger has no responsibility for ED, why is he a defendant?  This door swings both ways and is likely to hit someone hard.  Zaiger claimed in a recent Reddit AMA (Ask Me Anything) to be the owner of ED.  He also claims that his business is being ruined by the lawsuit.

What's Next? The Court has ordered a Scheduling Conference with the judge on July 18, 2017.  Such a conference is where the schedule for motions and discovery is laid out, with a tentative trial date planned.  Before that Conference, it is possible either party might try for a partial Motion for Summary Judgement, though in such a fact-intensive case, the success of any such motion is unlikely.  A motion for summary judgement states that there is no issue as to material facts and that, as a matter of law, the movant it entitled to judgement.  There is almost always a dispute as to facts, which makes the granting of summary judgements rare.


Freedom Hosting Case Update and Thoughts


Freedom Hosting Case Update and Thoughts
by Susan Basko, esq.

Update July 18, 2017:  Here is a link to an excellent article about the case, written by Caroline O'Doherty of the Irish Examiner.
http://www.irishexaminer.com/viewpoints/analysis/the-irishman-labelled-the-child-porn-kingpin-454978.html

Freedom Hosting was a service that made it very easy for anyone to start a website on the so-called Dark Web or onion Tor. Freedom Hosting was developed and owned by Eric Eoin Marques. (Eoin is pronounced like Owen.) He also invented Tormail, the first anonymous email of the dark web.  Mr. Marques was arrested in August 2013 in Dublin, Ireland, by An Garda SΓ­ochΓ‘na, the Irish National Police. His computers and other equipment were seized.  He has been in custody since that time. News stories have reported that Mr. Marques ran or runs Freedom Hosting 2, a carryover of Freedom Hosting, but this is not possible since he has been in custody. Although this has not been stated by any government source, I believe Freedom Hosting 2 is being run by the U.S. government as a means to locate and arrest those using the services.  There have been many reports of such arrests.

Shortly after Mr. Marques was arrested, the FBI labelled him the largest facilitator of child porn.  He was charged with distributing and advertising child porn.  Being labeled in this way made it easy to sway Irish officials against him and made it difficult for him to gain any support base, or even interest, in his case.  What Mr. Marques was actually doing was running a website hosting company and some of his customers ran child porn websites.  All types of child porn websites are horrible, but some are worse than others, and according to FBI affidavits, some of the very worst kind were hosted on Freedom Hosting.  These included sites involving rape and torture of small children, which are called "hurtcore" sites. Other sites, according to an FBI affidavit, required the viewers to contribute new or never seen child porn of their own in order to be allowed to view and remain on the site.  Thus, the viewers of those sites became producers of child porn, and for each image, there was a child, or several children, being sexually abused.

 Legally, there are several important and groundbreaking things going on in this case.  The first is that a website host is being held criminally responsible for the content of the websites that were on his server.  Freedom Hosting was a friendly-appearing service website that had written Terms of Service stating that the websites being hosted could contain nothing illegal at all.  This was in writing.  The Terms of Service also included wording that stated there was a privacy policy, where the web host did not look at the websites.

This is huge and important in criminal law, that the FBI is saying the website host company is responsible for the contents of all the websites hosted on its service.  That means Amazon Web Services (AWS) is responsible for all the websites it hosts, although AWS specifically denies it is responsible and refuses to remove any offending websites absent a court order.  The FBI never went to Eric Eoin Marques with a court order to remove websites off his server; they simply arrested him and put him in jail.  Does the FBI intend to prosecute the big corporate website hosts for the content of all the offensive sites on their servers?  If the FBI and DOJ can prosecute Eric Eoin Marques for the contents of websites hosted on Freedom Hosting, then they can also prosecute all the other website hosts.  And therefore, all those website hosting companies should be paying attention to this case and even speaking up.   There is plenty of shocking obscenity - even on Twitter -- and do the website servers plan to be criminally responsible for it?  If not, the time is now to speak up.

The second interesting legal thing going on in this case is that the U.S. is seeking to extradite Mr. Marques from Ireland to the U.S., and Ireland is refusing to prosecute the crimes in Ireland, even if Mr. Marques agrees to plead guilty.  Further, Irish law apparently does not require the judges to give any reason for refusing to prosecute the crimes in Ireland.

Since his arrest in 2013, Mr. Marques has been fighting extradition to the U.S.  The first extradition order was given in 2015, and it spurred a series of appeals.  A new fresh set of legalities has been brought before the Court and is scheduled to be heard June 30, 2017.  This hearing is with regards to the Irish official not using her discretion in allowing the case to be heard in Ireland. As a rough equivalent in U.S. law, this is something like a writ of mandamus, where a petitioner asks a court to issue an order to a  government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.  It is my understanding that if the Irish court on June 30 refuses to issue such an order, that this can also be appealed to a higher court.

The reasons for Mr. Marques putting up such a fight against extradition are that U.S. federal law and courts overcharge crimes and impose draconian punishment and that Ireland is his home.  In the U.S., Mr. Marques will likely face life in prison.  In Ireland, he would face a maximum of 14 years.  The other reason is that his father lives in Ireland and is his main family contact.  He has no one in the U.S. For his father to travel to and stay in the U.S. for even the trial would be prohibitively expensive.  Visits in prison would be nearly impossible.

Thus, the second big legal question is whether the U.S. should be able to impose its law on other nations and demand extraditions.  If you are in the U.S. and you answer "yes," then you should also ask whether you want to be subject to the laws of other nations and extradited to those nations if they think you have broken their laws.  Do you even know the laws of other nations, and if not, how do you know you are not breaking those laws?  Should you be required to know the laws of all the nations and to follow them -- and what if those laws are very different from those of your own nation and have draconian punishments -- as the U.S. does for all computer crimes?   Are you willing to be sent away from your family, friends and home to a distant land, to be placed in a jail and face charges in a strange legal system?  If not, why exactly do you think people worldwide should be extradited to the U.S.? To me, this is an imperialistic notion that the people of other nations should be subject to the U.S. laws and courts.  The implication is that Irish laws and Irish courts are not good enough, not capable of dealing with this issue.  If the Irish official believes this to be the case, why not give this as the reason?  Thus far, no reason has been given and the courts state that Mr. Marques is not entitled to be told any reason.

This is the big question in this case on June 30: Did the Irish official abuse her discretionary powers in ordering Eric Eoin Marques to be extradited to the U.S. and not allowing his case to be handled in the Irish courts?

Note: There is a discovery hearing in Dublin on June 26, followed by the main hearing on June 30, 2017.   

YingYing Zhang Kidnapping Case - a few answers

YingYing Zhang, photo provided by her family

YingYing Zhang Kidnapping Case - a few answers
by Susan Basko, esq.

Update July 15, 2017: A reward of $50,000 has been offered for the location of YingYing Zhang. Do you know where she is? If so, Crimestoppers in Champaign-Urbana can be reached by calling  217-373-TIPS.  The FBI can be reached at tips.fbi.gov or 1-800-CALL-FBI.


Update July 12, 2017: Federal Indictment of Brendt Christensen  for kidnapping of YingYing Zhang.  The evidence was presented to a Grand Jury and this indictment below was returned.  This starts the formal proceedings in the case.  Such a court case generally takes a year or more.  If convicted, Mr. Christensen would face life in prison.

People are still looking for YingYing Zhang, who is believed by the FBI to be dead. Since she has not been found, people are still hoping she will be found alive.  There were reports of someone that looked like YingYing being seen in Salem, Illinois.  A detective there tracked down surveillance videos from the store where people thought YingYing was seen, and found that the woman in the video was not YingYing.  The detective showed the evidence to YingYing's family so they could see for themselves that it was not their daughter.

People are still donating to a GoFundMe to allow YingYing's parents and boyfriend to stay in the U.S. and search for YingYing and attend the court hearings.

The use of instruments of interstate commerce is what allows the case to come under federal jurisdiction. Ordinarily, a kidnapping would come only under state jurisdiction, unless the kidnapper crossed state lines with the victim.  In this case, the prosecutor is claiming that the use of a car sold in a different state and a phone that is connected to the internet put the kidnapping under federal jurisdiction.  Those might be questionable grounds for jurisdiction, but it is not likely that the defense will object, since Illinois jurisdiction would likely subject Mr. Christensen to a much less fair trial and much worse prisons.  However, if it ends out that Mr. Christensen is charged or indicted in the murder of Ms. Zhang, Illinois law does not have a death penalty and federal law does have a death penalty. Death is listed as the federal penalty for a kidnapping that results in the death of any person.

Note that YingYing Zhang is believed by the FBI to be dead, but she has not been found, and people hold out hope that she will be found alive.




July 3, 2017. YingYing Zhang, a researcher from China working at the University of Illinois in Champaign-Urbana, was kidnapped on June 9, 2017.  Brendt Christensen, who received a Masters degree in Physics in May at the same University, has been charged in the kidnapping.  Plenty of information about the case can be found online at many news sources.  Here, I will address some things that are still questions in peoples' minds.

Keep in mind that Brendt Christensen is presumed innocent unless and until proven guilty.  Nothing here is mean to state that he is guilty.

If convicted, what sentence does Brendt Christensen face?  He would face a term of years or life imprisonment.  If the death of any person has resulted from the kidnapping, the penalty is life in prison or death.  The law says if the kidnapping results in the  death of "any person," and that can mean the person who was kidnapped, one of the kidnappers, a police officer who is killed working on the crime, any bystander, or any other person. If any person dies because of the kidnapping, the penalty is life in prison or death. If two or more people conspired to kidnap and one acted on the plan, the sentence would be a term of years or life in prison.  

Federal prison sentences are subject to sentencing guidelines.  Federal prison sentences have no time off for good behavior, other than there is about one month off a sentence for every six months served.  If a sentence is for "life," there is no possibility of parole.

Under what law is Christensen being charged?  He is being charged under federal law, under 18 U.S. Code § 1201 - Kidnapping, which you can read in full at the link.   The federal affidavit signed by the FBI agent listed at least two instruments of interstate commerce, which puts the kidnapping under federal jurisdiction.  The two listed were use of a car that was purchased in a different state and brought into Illinois, and use of the internet.

A spokesperson for the U.S. Attorney's office has indicated the evidence in the case will go to a Grand Jury, which will decide whether to indict Brendt Christensen.  It is highly likely a Grand Jury will agree to whatever the prosecutor puts before them.  Note: A grand jury is a group of citizens that are impaneled to hear the evidence.  The proceedings are secret and not open to the public.  A prosecutor presents evidence to the grand jurors and they vote on whether to indict the person and on which charges.  If the grand jury does not indict a defendant who is in jail or on bail, the magistrate judge must be promptly notified so the defendant may be freed.  

The federal affidavit refers to another person being in the apartment at the time the FBI went to the apartment.  Who was the other person in the apartment?  I do not know, but my best guess is that it was Brendt Christensen's wife.  A report showed the name "Zortman" listed on the apartment mailbox, along with "Christensen."  Christensen is known to have a wife and things online show a "Michelle Zortman" in connection with a Brendt Christensen.  Further, the FBI affidavit states that the other person in the apartment gave the FBI permission for the private rooms in the apartment to be searched and for Christensen's phone to be seized.  Legally, a roommate could not give permission for Christensen's private room to be searched or for his phone to be taken, but a wife in Illinois could give that permission.  A wife in Illinois is considered equal "owner" of the apartment and its contents.

Does that mean the wife is in on the crime?  I have no facts on this topic, but my thought is most likely not.  June 9, 2017 was a Friday and perhaps the wife was out of town for the weekend when the crime happened - if, in fact, it is the wife who lives in the apartment.  

Where is YingYing?  The FBI has stated that YingYing is believed to be dead.  There are, no doubt, strong reasons for that belief.  However, there have been some surprising instances of kidnapped people who have shown up alive weeks to decades after being kidnapped.  Let's have faith that the FBI agents are doing everything they can to either find YingYing alive or find her remains.

Tips: If you have any info that might help find YingYing, you are encouraged to send it to the FBI at tips.fbi.gov or 1-800-CALL-FBI.

Reward: The Zhang family has reportedly removed the $40,000 reward and Crimestoppers itself offers only up to $1000 reward, which they are offering for the recovery of YingYing, whether alive or dead.  It seems like the reward amount should be more than $1000, but does not need to be $40,000.  More money might give people incentive to look.  Crimestoppers is still asking people to send in tips that might help find YingYing.  Crimestoppers in Champaign-Urbana can be reached by calling  217-373-TIPS.  Tips made to Crimestoppers are done anonymously. Note on July 8, 2017: One news outlet is now saying the reward is at $50,000 for the location of YingYing Zhang.

GoFundMe: As of this writing, over $120,500 has been donated to the GoFundMe for the family to help in their search for YingYing.  The family and YingYing's boyfriend no doubt have huge expenses and loss of income since they traveled from China to be in Urbana for the search, and now for court hearings.  People are donating as a way to show their support for the family and their sorrow over what happened to YingYing.

News reports state that Brendt Christensen read how to abduct a person on Fetlife, a fetish website.  Could the website owner or people who wrote the articles be prosecuted?
That is a really good, complex question.  I don't think either the owner or writers could be charged with "aiding and abetting," according to this guide for U.S Attorneys.  The elements of aiding and abetting, which are listed in the guide, do not appear to be present in writing or publishing a how-to guide.  It's also not going to be Criminal Conspiracy, since there would be no agreement to commit the abduction that had taken place between the Christensen and the writer of the article.

However, if any person was aware that Christensen was planning an abduction and told Christensen to read that article or sent him a link to it, then that person might possibly be charged with aiding and abetting.  Also, if this whole situation had taken place in a nation other than the U.S., the author and/or publisher of the abduction guide might be prosecuted, depending on which nation.  Here is a great article where this question about whether it is illegal to publish a how-to guide for committing crimes is answered by several lawyers.  The answers given are excellent and thought-provoking.  The answers also discuss lawsuits, which are civil, rather than criminal, and have a lower standard of proof.

Boston Battle of the Computer Nerds:
Jonathan Monsarrat v Brian Zaiger


Boston Battle of the Computer Nerds!
Jonathan Monsarrat v Brian Zaiger
Has Encyclopedia Dramatic met its match?
by Susan Basko, esq.

See PART 2 here.  Part 2 includes Jonathan Monsarrat's Answer to Zaiger's Counterclaims.

Update June 7, 2017: Judge Patti Saris denied Jonathan Monsarrat's Motion to Strike Zaiger's Answer and Counterclaims.  As you can see just below, she denied the Motion by "endorsement."  This means she wrote "Denied" in the margin of the motion and signed her name.  This was a foolish motion that should not have been filed, particularly considering the judge had already accepted the Answer.  You can read the motion itself at the date June 1 below.

What happens next?  Pretty soon, we should see Jonathan Monsarrat filing his Answer to Brian Zaiger's Counterclaims. Counterclaims are just like filing a lawsuit, but they are filed by a defendant as part of an Answer.  In filing his Answer to the Counterclaims, Jonathan Monsarrat will file Denials or state that he agrees with different statements or that he has no knowledge of certain statements.  He will also possibly list his defenses or affirmative defenses to the Counterclaims.  An affirmative defense is a defense that adds material or information that is not present on the face of the complaint.   When the Answer gets filed, I will start a new blog post, since this one is too long already.  The new one will link back to this one, to make it easier to follow the action.

Denied Motion by Sue Basko on Scribd


Update June 3, 2017:  Well, well, well.  The cads (and cadesses?) at Encyclopedia Dramatica (ED) have pretty much blown their chance at any Fair Use Copyright defense by revealing their bad faith and true intentions.  Use of Copyright materials without permission is limited to the few types of instances that are considered Fair Use under the law. These types of Fair Use include such things as singing a song in a bona fide church service or using something to illustrate a point in a classroom setting (but not removing the name of the creator or making copies of it.).  The types of Fair Use that might possibly be  considered Fair Use in ED using Jonathan Monsarrat's Copyright items would be to comment upon, criticize, or parody the copyrighted work.  Things such as defamation, false light, harassment, invasion of privacy, cyberstalking, and interference with a business are not Fair Use.  Encyclopedia Dramatica (ED) has posted a fundraising page to raise money for its legal defense. On that page, the true nature of the ED article about Jonathan Monsarrat is revealed, as is the intent to harm him.   Here are a few exact quotes from the page (the highlights are added to show the bad faith harmful intent):

"Seeing flashing dollar signs, his newest target has become Encyclopedia Dramatica, which featured an article detailing how much of a complete scumbag he (Monsarrat) is and that nothing is beneath him."

"As if he didn't already have enough money, he (Monsarrat) thought he could milk his schtick even more to silence the people who have not forgotten how his reputation was created and where his past came from."

"He fancies himself an "artist", but all he's made of himself is a con artist."

The people at Encyclopedia Dramatica also reveal their practice of using Google as a weapon to harm the reputations of people: 

"A quick Google search for "Jonathan Monsarrat" should tell you all you need to know about who he is."

Then the ED fundraiser goes on to bring up a long ago minor incident where Mr. Monsarrat was supposedly arrested for holding a party that got out of hand with some underage party goers drinking alcohol.  This is not news.  The ED write-up mentions that it happened back in 2010.  This ancient history minor incident does not excuse ED creating harassment and smears against this man now.

I wondered how long it would take the mean-spirited people at Encyclopedia Dramatica to wreck whatever legal defenses they had.  Not long, as it turns out.
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Update June 1, 2017: Jonathan Monsarrat filed a Motion to Strike Zaiger's Answer and Counterclaims, complaining it was filed late.  But the judge already accepted the Answer.  This motion is annoying and insulting to the judge, as well as to the defendant.   Worse yet, the motion is convoluted and incomprehensible, and seems to be asking for some switcheroo on the date of the Answer.  This whole thing is senseless.  If a person does not want to litigate, don't file lawsuits against people.  If you file a lawsuit and the other side Answers, get ready to litigate.  You can read this ridiculous motion here:



The Zaiger response to this motion is succinct:


What is the upshot likely to be? Nothing. The Judge isn't going to strike the answer she just accepted.  The fact that such a motion was filed does alert her to the likelihood that there is going to be nonsense happening in this case.  That's never a good position to put yourself in.
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Update May 30, 2017: Judge Patti Saris entered an electronic court order saying Brian Zaiger's Motion for Extension of Time to file an Answer is moot and the Answer is filed.  This also makes Jonathan Monsarrat's Objection to that motion moot. This means the Answer is filed and it is game on.  

The next phase in litigation is where either party might file motions to try to end the litigation in their favor.  The plaintiff, Jonathan Monsarrat, might file a Motion for Summary Judgement, stating that there is no material issue of fact and that he is entitled on the pleadings to win.  But this is not likely since Zaiger did file a solid Answer.  

The defendant, Brian Zaiger, might file a Motion to Dismiss for Failure to State a Claim.  This is one of the defenses in his Answer.  However, the result of such a motion is that the court then gives the plaintiff several chances to amend the complaint to make it state a claim.  

One of Zaiger's other defenses is that the statute of limitations has run on the claim.  Zaiger could file a Motion to Dismiss on this basis.  However, that seems a very contentious topic, since the claim by Jonathan Monsarrat is that the Copyright registered materials were repeatedly placed back up on Encyclopedia Dramatica after being removed.  Each time the material was put up is a new act of infringement.  Further, most courts follow the "Discovery" rule, meaning the time clock on the statute of limitations only begins to run when the plaintiff discovers the infringement.  Since Monsarrat most likely thought he was done dealing with Encyclopedia Dramatica, and since the website is unpleasant, it is not likely he'd be returning to the site to see if by some chance they posted his things once again. So that sort of Motion is not likely to succeed.  Another one of Zaiger's affirmative defenses is laches, but laches does not trump statute of limitations.  There are other possible Motions to Dismiss that might be tried by Zaiger.  We'll have to wait and see what gets filed.

Please come back here to check for Updates.  
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ORIGINAL POST: May 28, 2017: Jonathan Monsarrat, the epitome of Computer Nerds, has challenged Brian Zaiger, owner or not-owner of Encyclopedia Dramatica, the shit-posting website, to a Legal Duel at high noon.  Mr. Monsarrat, whose online resume establishes the facts that he is highly intelligent and highly educated, has filed a lawsuit against Mr. Zaiger and a host of Does and one mystery name (GotPer).  Mr. Monsarrat has dismissed the suit against Gotper and the Does, so he is going head to head against Mr. Zaiger in what looks like it is shaping into the Computer Clash of the Titans.

As a disclaimer, I must state a few things: 
1) I strongly dislike Encyclopedia Dramatica (ED); 
2) I did a legal review of the lawsuit for one of the ED Admins;
3) the Admin gave approval for me to write blog posts about the lawsuit.

Jonathan Monsarrat, who on his website calls himself "Johnny," got a whole lot of East Coast education -- MIT, Brown, Harvard, and MIT Sloan.  With all that fancy education, he has decided he wants to invent the next PokΓ©mon Go.  Johnny's thing, according to his website, is "Big Movement Gaming."  Apparently, this is where you go outside and actually do something, but you keep watching your phone screen the whole time.  Johnny Monsarrat got some dork press a while back when he allegedly got arrested for holding a wild party where a lot of gamers and college kids showed up (in Boston! Home of 35 colleges and universities!) and some of those under 21 drank alcohol. (Shocking! We've never heard of college kids drinking before.)  He appears to have mended his ways and he even poses on his website wearing an expensive-looking suit and overcoat.  He probably had to buy that for his various court appearances or maybe to meet with potential investors. Anyway, he got the expensive suit and now he's got the expensive lawsuit - like a matched set.

So why is this Johnny guy suing Brian Zaiger of Encyclopedia Dramatica?  Mr. Zaiger is (or is not) the owner of Encyclopedia Dramatica, a festering cesspool of defamation and cyberstalking inhabited by the internet's most notorious coterie of hackers, DDoSers, cyberstalkers, defamation artists, and, in legal terminology, all-around assholes.  Someone among this crew of scoundrels posted some of Johnny's copyright registered works of brilliance and had the audacity to make fun of it all.  Johnny then sued ED and the stuff was removed off the site, or maybe that happened in reverse order.  Then, more recently, the same stuff with the same "article" reappeared on ED.  So now/ the upshot/ thus/ as a result of/ because he can/ Johnny is suing Zaiger and asking for the statutory damages of $150,000 per infringing item, and he appears to be saying 5 items were infringed, which adds up to $750,000.

As far as we know, Mr. Zaiger is one of those university town people who make their living by masturbating into cups, wherein the semen is then used to impregnate the lonely wives of impotent male professors or to impregnate lonely female professors who have no inclination to date those of the male persuasion.  Or maybe that is not how Zaiger makes his money, but it seems likely from the bug-eyed appearance he has in every photo.  Anyway, Zaiger's Answer to the lawsuit includes the Affirmative Defense that Johnny Monsarrat is trying to ruin Zaiger's "business," which seems to refer to Encyclopedia Dramatica.  Encyclopedia Dramatica hardly seems lucrative, so this lends credence to the theory that Zaiger makes his money by delivering jizz to the lonely women of Cambridge.

You can read the lawsuit right here, and the Answer right below that.


Developments after the lawsuit was filed:

1. The court granted a subpoena to uncover the true identities of Gotper and the Does.
2. Mr. Monsarrat dismissed the lawsuit against Gotper and the Does.
3. Marc Randazza, a lawyer best known as representing gay porn Copyright trolls, entered an appearance for Brian Zaiger.
4. Randazza, for Zaiger, filed a Motion for a one month extension of time in which to file an Answer to the complaint.
5. A few days later, Marc Randazza, probably realizing he might not be granted that full month, surprised everyone and filed an Answer for Zaiger.  (faking them out, kind of like something one might expect to see in Big Movement Gaming.)
6. Monsarrat filed an objection to the Motion for the extension of time, but that is probably a moot point since Zaiger filed his Answer.  The Answer appears to be possibly filed a few days late, but it is highly unlikely any judge would not accept the Answer.
7. The Answer is kick-ass!  And you can read it below.  This Answer says, "Game On."

See our expert ANALYSIS and COMMENTARY below the ANSWER.





ANALYSIS AND COMMENTARY:  

It appears that Mr. Monsarrat is attempting to use Copyright infringement claims to whack the shit out of Zaiger and his Troll Minions, as they so richly deserve.  This probably won't work, because they probably have a valid Fair Use defense as Commentary.  The analysis here at Subliminal Ridge is that Johnny M could more effectively hire a hitman to wait outside the Sperm Donor Clinic and run over Zaiger with a bicycle. Or maybe a fast-moving moped or Vespa scooter would do the trick.

If you'd like to follow the Game play by play, someone has been so kind as to open one of these Son Of Pacer pages where you can see the titles of what is filed without having to run up your Pacer bill:

SIDE NOTE:  Brian Zaiger filed a Corporate Disclosure Statement  in which he declares he is "a natural person."  That does not mean he is a hippie or vegan or that he does yoga.  It merely means he is not a corporation.  His declaration reminds me of Aretha Franklin singing this song:

Derivative Work -"Play that Song"



 Derivative Work - "Play that Song"
by Susan Basko, esq.

Recently, a Facebook friend who is a talented pianist and composer posted this question:

"so the song "Play that Song" by the band Train.... to me, is essentially the classic "Heart and Soul"; the melody is pretty much verbatim, so... is there copyright infringement here?"

The question piqued my interest because I am a lawyer who works in music law and copyright.  Listen to the video above to hear "Play that Song," by Train.

First, I looked and found that "Heart and Soul" is an old song by Hoagy Carmichael.  Listen to that in the video below.



My friend was right -- the two song melodies are undeniably the same.  Was this copyright infringement?

Next, I looked up the names of the songwriters on each of the songs.

"Heart and Soul" is listed as being written by Hoagy Carmichael and Frank Loesser.

"Play that Song" is listed as being written by Hoagy Carmichael, Frank Loesser, William Wiik Larsen, and Pat Monahan.  See-- the new song is naming Hoagy Carmichael and Frank Loesser, the two writers from "Heart and Soul," in its list of songwriters.

And who are Pat Monahan and William Wiik Larsen? Pat Monahan is the lead singer of Train and also an accomplished songwriter.  William Wiik Larsen is a long time songwriter and producer with many professional songwriting credits.  (Please note the correct spelling is William Wiik (two i's) Larsen, not William Wilk Larsen.)

Thus, "Play that Song" has four songwriters -- two of whom are alive, and two of whom died many years ago.

 "Play that Song" is what is known as a derivative work in Copyright Law.  The melodic tune created by Hoagy Carmichael and Frank Loesser was used with permission of the owners of the copyright of the songwriting on "Heart and Soul," which would be the publisher or the estates of the men, since both Mr. Carmichael and Mr. Loesser passed away many years ago.  Both men are also listed as songwriters on "Play that Song," which means their publishers and estates will share in the songwriter royalties on the new song.  This shows a perfect example of how registering copyright on songwriting can be of benefit even long after the death of the songwriter.

A work that is creative and original and set into a tangible medium can have copyright. Copyright gives a whole list of protections and rights.  One of those rights is the right to control who gets to make a  "derivative work."  A "derivative work" is a new work that is derived from one or more existing copyrighted works.  This pdf booklet gives a lot of information on derivative works.

If you wish to create a song that is a derivative work, you should have your music lawyer contact the owners of the copyright on the songwriting that you wish to use.  First, the lawyer will look up and see who the actual songwriters are on the song.  Next, the lawyer will try to locate all the current publishers for the song. Next, the lawyer will contact the publishers and seek permission for you to create the derivative song.  If the new song qualifies as a derivative work, it will then be copyright registered naming both you and the original songwriters as the songwriters.

If a songwriter creates a derivative work song without getting permission and without naming the original songwriter, that is copyright infringement and can lead to a lawsuit.  If you are borrowing from the songs of others, you must get their permission or risk legal trouble.

NOW THINK ABOUT THIS:  When a song is very old, it no longer has copyright protection.  Then, it is in the public domain.  If you create a new version of a song in the public domain, or use parts of it, or create a remix of several such songs, or create a new arrangement, you do not need permission.  If you do create such a work, you can register your name as the songwriter or arranger, along with the original songwriter.  For example, if you create a remix of Pachelbel's Canon in D, you can list yourself as the songwriter alongside Pachelbel, as many songwriters and composers have done.

Or, if you come up with an updated version of "Fur Elise," you can list your name as songwriter along with Ludwig van Beethoven.  Check out this version of "Fur Elise" created by Josh Vietti.



May this information help you to create.  Enjoy the music.


Chicago Street Performer Law -
Proposed Changes and why they are Bad



RE:  02017-217  Changes to Street Performer law
IMPORTANT -- SCHEDULED FOR COUNCIL VOTE FEB. 22, 2017 10 AM

Alderman Reilly of Chicago has proposed a major amendment to the Street Performer Law.  This amendment would make it illegal for street performers on Michigan Avenue or State Street to make any sound that can he heard at 20 feet.  This, in essence, makes all or most music illegal on these two streets, since all or most music from any instrument can be heard at 20 feet.

WE ARE ASKING THAT THE VOTE BE DELAYED, AND THAT ALL HOLDERS OF STREET PERFORMER LICENSES BE CONTACTED BY THE CITY USING THE CONTACT INFORMATION THEY GAVE WHEN THEY PURCHASED THEIR LICENSES, AND INVITED TO SPEAK AT A PUBLIC HEARING.  Also, all constituents must be informed, including music organizations, tourist organizations, etc.

Please keep in mind that street performers and potential street performers are often NOT represented by any Alderman, since they may reside outside the City.  Also, many or most audience members for street performers are not represented by any Alderman as many are visitors to Chicago.


We all oppose the amendments to this law for the following reasons:

1. There has been no notice to the Street Performers and no opportunity to be heard. When selling the licenses, the City requires contact information of the licensees, including address, phone, and email.  Yet, the holders of Street Performers Licenses were not contacted by phone, mail, or email by the City about this proposed change to the law.   There was no public hearing about which they were personally notified and to which they were invited. It is absolutely illegal and outlandish that a business license would be so drastically changed as to become meaningless and no notice has been given.  This makes this process unconstitutional.

2. Street Performer Licenses are two year licenses, and so a minimum of 2 years should be the waiting period before such changes to the law can take effect. Otherwise, the licenses have been sold under false pretexts. The change to the law is to take effect immediately upon passage.  This makes the new law unconstitutional.

3. Treating those with Street Performer Licenses in this way is unconstitutional because it treats them in a way unlike the holders of other business licenses, as if they can be disregarded and maltreated.  

4. The change to the law is irrational, which makes it unconstitutional.  There is no rational basis for thinking "20 feet" is some magical number.  Almost any sort of music can be heard at over 20 feet by a person with normal hearing.  In effect, this law makes all music illegal on Michigan Avenue and State Street.  In many spots, the sidewalk itself is 20 feet wide.  What is "20 feet" based on?

5. The change to the law is irrational, which makes it unconstitutional.  There is no rational basis for thinking that removing music from Michigan Avenue and State Street will mean that the complainers will no longer hear music -- since the musicians will simply be able to go around the corner, for example, onto Randolph, and make the sound, which will still be heard by the complainers.

6. The law is unconstitutional because it is irrational, because if the complainers on Michigan Avenue and State Street "need" protection from music, don't the people on all the other streets also "need" to be protected from music?

7.  The law is unconstitutional because it is racist, because it will mainly or disproportionately in practice affect young Black male bucket drummers.  These young men should be encouraged to feel they are part of the City and that they are welcomed on the streets.  This is their chance to make the City their own, to feel pride in showcasing their talents.  They are greatly beloved by tourists and other visitors to the downtown areas.  Many depend on the money they make by street performing.  Under the proposed law, all this is lost.

8. The City of Chicago is already unconstitutionally barring street performers from all places in Millennium Park at all times.  This has been shown in litigation in other cities to be unconstitutional.  Barring a street performer's right to make music in a city's showcase park has been shown to be an unconstitutional violation of the First Amendment rights, not only of the Street Performer, but of the potential audience and the City dwellers.  There is a constitutional right to hear these messages as much as there is a right to give these messages.

9. Just as street performers have a constitutional right to perform in a city's showcase parks, they also have a constitutional right to perform on a city's showcase streets, including Michigan Avenue and State Street. And just as the buskers have the right to perform, the intended audience, the public, has the right to hear the messages/ music.  And restricting music that can be heard at 20 feet is essentially removing all music from the streets.

10. The City of Chicago Street Performers License Law is probably illegal in itself, in requiring licensing and payment from people to exercise their First Amendment rights on public streets.