Jerk.com is one of those sites on the Internet that is the poster-child for everything wrong with the anonymity of Internet communications. Shrouded in the secrecy provided by the Internet, anonymous cowards become emboldened to say vile things and stoop to ridiculous lows — even publishing pictures of minors and asking the Internet community to vote on whether the minor is a jerk. That is the business Jerk.com is in, and they refuse to remove any profile that has been created regardless of the vile, anonymous comments that have been posted.
An earlier edition of the Jerk.com “REMOVE” page explained:
No one’s profile is ever removed because Jerk is based on searching free open internet searching databases and it’s not possible to remove things from the Internet. You can however use Jerk to manage your reputation and resolve disputes with people who you are in conflict with.
That obviously ridiculous and inaccurate statement of fact and law has been watered down now, but based on what I hear from those who feel aggrieved by Jerk.com suggests that their philosophy seems to continue to be that no one gets removed. Jerk.com almost seems to play the part of victim, suggesting that it is impossible to remove something from their servers. It is certainly possible for Jerk.com to remove a profile.
In order to “manage your reputation” you must sign up for an account. A rather insidious way to gain users, don’t you think? In the past the only way you could dispute something was to be a paying member of the Jerk.com community, which in my opinion walks the fine line between what is legal and what is an extortion-like tactic. Based on my knowledge of the law and facts surrounding Jerk.com it strikes me that what they did in the past may well have been a violation of the Racketeer Influenced and Corrupt Organizations Act, which is otherwise known as RICO.
I explained this to Jerk.com’s attorney months ago when they contacted me unhappy about two articles I wrote about Jerk.com. It seems that Jerk.com is receiving numerous DMCA takedown notices and they feel I have mislead the public. Here is my response to Maria Crimi Speth, who represents Jerk.com:
Your letter says you expect more of me. I suppose we are even then. I would expect much more from a member of the bar than the type of self serving and inaccurate letter that you sent to me.
If you read the articles I wrote, which I have to assume you did, you noticed that I said that users can get their copyrighted material taken down by using DMCA notices, which your client is supposed to comply with. That is an accurate statement of the law. If the copyrights are owned by those sending the notices then Jerk.com must take down the material or risk liability. As we both know, if your client feels they are getting inappropriate notices there is a remedy that they can pursue. I never stated that people should abuse the DMCA takedown process. I only explained that those with lawful copyrights can rely on such notices, which is of course a correct statement of the law.
You say: “a forum website does not commit copyright infringement just because third parties post content.” Perhaps you are unfamiliar with how your client operates its website from a technical standpoint. It seems that photographs are automatically retrieved from Facebook and displayed with a banner that says “add to gallery.” That retrieval by the code that operates your client’s website is hardly passive, as is required by the forum cases. Perhaps this would be a case of first impression because I’m sure there is some clever argument you can make, but we both are familiar with the numerous cases of Internet bad actors and how they fair in court on cases of first impression as they relate to copyright law matters and Internet matters more generally. The safe harbor protection seems unlikely to me to apply to your client and how they technically operate their website.
I also find it rather amazing that you castigate me but seem unmoved by the actions of your client. If and when any litigation is ever initiated, it seems that your client is open for a massive RICO claim. Forcing people to pay to submit a claim or challenge the vile things posted seems to me to be hardly distinguishable from a legal standpoint from the old protection rackets.
We will obviously disagree, and I’m sure you will have some clever response to all of this, which I could respond to and we go back and forth, etc. etc. Notwithstanding, if you would like to author a guest article in op-ed form I will be happy to post it to IPWatchdog.com. You can explain what your client does, how the site works technically, how it is your belief that no laws are being broken and how people just need to suck up and accept the harassment. Up to you, but I’m happy to provide a forum for you to disagree with me and alert those who have had their copyrighted images misappropriated that they may open themselves up to liability. Just let me know.
Finally, I would greatly appreciate it if you could give me the name and contact information for your client’s DMCA agent who is registered to receive DMCA notices. Should I direct folks wishing to provide an appropriate and lawful DMCA takedown notice directly to you and your firm?
Ms. Speth has never responded. She has not taken me up on the opportunity to explain her client’s rationale in an op-ed article posted to IPWatchdog.com. Furthermore, Ms. Speth has not told me who their DMCA agent is that will accept DMCA Takedown Notices on behalf of Jerk.com. In order for Jerk.com to enjoy any potential immunity from a copyright lawsuit they must have a DMCA agent, so I don’t know why she wouldn’t identify that person or entity.
Since I wrote my initial two articles months ago I continue to get numerous e-mails asking for help. Some people even assume I am somehow affiliated with Jerk.com or that I have the power to get Jerk.com to stop harassing them. Unfortunately, I have no such special powers. I am also not in any way, shape or form affiliated with Jerk.com. I would never represent such an organization.
So what should you do? Given that Ms. Speth refused to provide me the contact information of the Jerk.com authorized DMCA representative, the best I can recommend is that you contact Ms. Speth and/or her law firm directly. Her contact information is:
Maria Crimi Speth, Esq.
Jaburg & Wilk, P.C.
3200 N. Central Ave., Suite 2000
Phoenix, AZ 85012
Jerk.com isn’t the worst website on the Internet by a long shot, but based on what I have been told, have seen for myself and what I know about the law it seems to me that they flagrantly disregard copyright laws. It is important to understand, however, that if you are going to use a DMCA Takedown Notice you should be certain that you are the copyright owner. If you are in the picture that Jerk.com uses the copyright owner would be the photographer unless you specifically obtained the underlying copyrights by assignment. So the person who should send the DMCA Takedown Notice is the copyright owner. Alternatively, have the person who took the picture and who owns the copyright assign any and all copyrights to you before you send the DMCA Takedown Notice. This can easily be achieved by a basic copyright assignment.