The site owner didn't tell her lawyer the whole truth.
-----Original Message-----
From: C.E. Petit, Esq. [mailto:xxxxxxx@authorslawyer.com]
Sent: Wednesday, May 24, 2006 9:58 AM
To: jamesc@totalweb-inc.com
Cc: xx@jennaglatzer.com
Subject: Absolute Write--Requirement for Return of Intellectual Property
I represent Jenna Glatzer, the owner/operator of AbsoluteWrite.com, which
(until last night) you hosted. You are continuing to hold Ms Glatzer's
intellectual property hostage at this time. We request that you reopen
access to that material for the sole purpose of copying it to an offline
storage location.
I am dismayed at your response to what was clearly a malicious attempt to
squelch criticism of a con artist. I strongly suggest that you provide
access to my client to create that offline copy to avoid further damages and
consequences. Destruction of or damage to Ms Glatzer's intellectual property
will not be taken lightly--and would not be excluded by your terms of
service, as such destruction or damage would both be willful and result from
your own breach of the terms of service.
Finally, I STRONGLY suggest that you and your attorney carefully read 47
U.S.C. § 230, which provides an absolute shield from the behavior that my
client understands she has been accused of, and the relevant case law, which
specifically rejects the reposting of data publicly available on the
"target"'s own website as harrassment (or any similar tort). I am very
concerned that my client has not even been allowed to see the purported
complaint; if it is indeed from Ms Bauer, as I suspect, then you will have
become the first ISP to cave in to her baseless threats. Both common
courtesy and your terms of service indicate that Ms Glatzer should at least
have been allowed to see the complaint prior to any action on your part.
=====================
C.E. Petit, Esq.
http://www.authorslawyer.com http://scrivenerserror.blogspot.com
This message may contain legal commentary. Unless specifically noted
otherwise, such commentary is NOT intended as legal advice for any
particular situation.
*********************
RE: Absolute Write--Requirement for Return of Intellectual Property
From: James Cordray [xxxxxx@totalweb-inc.com]
Sent: Wednesday, May 24, 2006 4:07 PM
To: 'C.E. Petit, Esq.'
Subject: RE: Absolute Write--Requirement for Return of Intellectual Property
Dear Mr. Petit,
It seems you are under a misconception about the nature of the suspension of the site owned by Ms. Glatzer. While everyone seems to be under the impression that a certain person with whom Ms. Glatzer has issues caused the suspension, this was not the case.
While we tried to work with Ms. Glatzer to resolve more than one violation of our Terms of Service and Acceptable Use Policy, she became demanding and somewhat abusive and refused to discuss resolution of those violations. She ended communication with a threat of legal action against us at which point the site was suspended. She had ample time to rectify issues before that point and refused to do so. We have documentation of this.
Given the smear campaign that has begun with clearly false information, we will no longer release the site pending legal action, as it will be evidence in such proceedings. It was never our intent to neither hold her site hostage or steal her intellectual property. The site has not been deleted, merely suspended.
In regards to the complaint issued by Ms. Bauer, if you would care to forward your fax number I can fax you a copy of the written complaint and the specific circumstance that prompted the complaint.
In regards to 47 USC, Section 430: It does not hold Ms. Glatzer harmless according to our Terms of Service or Acceptable Use Policy which she agreed upon when obtaining our services.
Ms. Glatzer can take whatever legal actions she deems necessary at which time we will inform our lawyer to file our countersuit.
Thank you,
JamesC
Senior Internet Technology Adviser
Email: xxxxxx@totalweb-inc.com
ICQ# 49107171
Total Web-Inc Helping You Bring Your Business to the World
****************
Somewhere between the one above and the first one from C.E. Petit there was an email that said we could grant access, however, before that was put into effect, our server logs reflected that someone had tried to illegally gain shell access plus we found that a smear campaign had been initiated against us. We felt within our rights to refuse to allow access because of the clearly false information and the illegal activity in order for us to preserve the site, as is, before it could be tampered with by outside parties. Giving them access would have allowed them to delete everything before we had a current backup. Needless to say, neither C.E. Petit nor the site owner were happy with that decision.
***************
-----Original Message-----
From: C.E. Petit, Esq. [mailto:xxxxxxx@authorslawyer.com]
Sent: Wednesday, May 24, 2006 6:09 PM
To: James Cordray; Glatzer, Jenna
Subject: Re: Absolute Write--Requirement for Return of Intellectual Property
I have read the two messages since my response this morning, and I am now
thoroughly confused as to your current position on retrieving my client's
intellectual property.
(1) To my knowledge, and I did specifically ask my client about this, she
did not authorize shell access. It is possible that someone broke in; it is
also possible it was inadvertant or a misunderstanding when she asked
someone to help archive the site, although I find it hard to believe that
she'd give out her own username and password for that purpose (she's out of
communication at the moment, so I can't ask her). I'm not familiar with
anyone in/near Bend, Oregon, but I'll inquire. I do take system security
seriously, and I will do my best to ensure that there is no untoward use.
The ONLY purpose for which my client would have authorized any such access
is to obtain an offline copy of the website after you blocked access rather
precipitously (for what appears to be a variety of reasons, at least some of
which are to my knowledge dubious--but we don't need to resolve that here).
The fastest and least-troublesome solution would be for you to provide me
with a temporary, read-only FTP username and password, and directory
structure map if you're not hosting with Apache or cPanel, that I will use
exactly ONCE to perform the backup myself (I have a high-speed DSL
connection that, if not wiped out by the thunderstorms rolling through here,
should do the trick). My current FTP-weapon-of-choice is WSFTP in manual
mode, if that helps you understand my own system competence.
If you would rather reset the entire site to block all access and
immediately mail a CD-ROM image copy to my client at her record address,
that should work... but it's definitely a second-best solution. (N.B. _I_
don't even have passwords to access the shell.)
(2) I'm not in a position to comment on the other TOS issues to which you
are referring. I would appreciate a copy of the Bauer fax, which can either
be scanned and forwarded by e-mail to this address (preferred) or faxed to
me at 847.589.6453.
Thank you for your cooperation. I realize this is difficult to unwind, as
I'm coming into this in the middle and bringing a more-nuanced understanding
of third-party liability to the situation than most attorneys have. This may
present a barrier that we'll need to set aside, but for the moment my
client's main concern is retrieving the IP; the rest of the situation is not
nearly so time-critical, and we'll be able to take a breath and consider it
on its merits without time pressure.
James Cordray wrote:
> Mr. Petit,
>
> After further investigation of our server log files we have found that
> someone using Ms. Glatzer user name and pass word has gained illegal
> access to our server through a shell account. Here is a small part of
> the log
> Users logging in through sshd:
> pdwvzafp logged in from bbb72-0-183-106.bendbroadband.com
> (72.0.183.106) using password: 2 Time(s)
>
> WhoIs for 72.0.183.106
> OrgName: Bend Cable Communications, LLC
> OrgID: BCCI
> Address: 63090 SHERMAN ROAD
> City: BEND
> StateProv: OR
> PostalCode: 97701
> Country: US
>
> Once again this is against our TOS to allow any one access to this
> information and we are now seeking legal council for a criminal action
> against both parties.
>
> This warning is given upon access.
>
> This computer system is for authorized users only. All activity is
> logged and regularly checked by systems personal. Individuals using this
> system without authority or in excess of their authority are subject to
> having all their services revoked. Any illegal services run by user or
> attempts to take down this server or its services will be reported to
> local law enforcement, and said user will be punished to the full extent
> of the law. Anyone using this system consents to these terms.
>
> Giving out this information is allowing a person access to vital parts
> of our servers, and possibly confidential information that belongs to
> other client's gaining access to the server with out written consent is
> a criminal offence. I strongly suggest you request your client to cease
> these illegal actions at once.
>
> We are at this time checking all log information on actions that have
> been taken by this unauthorized access and will pass this information on
> to the legal authorities also we are contacting the Internet service
> provider and asking that they take the same legal actions.
>
> JamesC
> Senior Internet Technology Adviser
> Email: jamesc@totalweb-inc.com
> ICQ# 49107171
> Total Web-Inc Helping You Bring Your Business to the World
>
>
>
>
>
>
--
=====================
C.E. Petit, Esq.
http://www.authorslawyer.com http://scrivenerserror.blogspot.com
This message may contain legal commentary. Unless specifically noted
otherwise, such commentary is NOT intended as legal advice for any
particular situation.
********************
-----Original Message-----
From: C.E. Petit, Esq. [mailto:cepetit@authorslawyer.com]
Sent: Wednesday, May 24, 2006 6:09 PM
To: James Cordray; Glatzer, Jenna
Subject: Re: Absolute Write--Requirement for Return of Intellectual Property
I have read the two messages since my response this morning, and I am now
thoroughly confused as to your current position on retrieving my client's
intellectual property.
(1) To my knowledge, and I did specifically ask my client about this, she
did not authorize shell access. It is possible that someone broke in; it is
also possible it was inadvertant or a misunderstanding when she asked
someone to help archive the site, although I find it hard to believe that
she'd give out her own username and password for that purpose (she's out of
communication at the moment, so I can't ask her). I'm not familiar with
anyone in/near Bend, Oregon, but I'll inquire. I do take system security
seriously, and I will do my best to ensure that there is no untoward use.
The ONLY purpose for which my client would have authorized any such access
is to obtain an offline copy of the website after you blocked access rather
precipitously (for what appears to be a variety of reasons, at least some of
which are to my knowledge dubious--but we don't need to resolve that here).
Note the contradiction here compounded with an insult. For some reason both he and his client seem to think bullying will get them what they want faster than compromise.
The fastest and least-troublesome solution would be for you to provide me
with a temporary, read-only FTP username and password, and directory
structure map if you're not hosting with Apache or cPanel, that I will use
exactly ONCE to perform the backup myself (I have a high-speed DSL
connection that, if not wiped out by the thunderstorms rolling through here,
should do the trick). My current FTP-weapon-of-choice is WSFTP in manual
mode, if that helps you understand my own system competence.
FTP access wouldn't have given them what they wanted and we did consider letting them have it but we knew that would just cause them to be more obnoxious when they discovered it wasn't what they wanted. I mean, if they are already trashing our names how much worse would it be if we made fools of them in the bargain?
If you would rather reset the entire site to block all access and
immediately mail a CD-ROM image copy to my client at her record address,
that should work... but it's definitely a second-best solution. (N.B. _I_
don't even have passwords to access the shell.) Couldn't be done because we don't have that information.
(2) I'm not in a position to comment on the other TOS issues to which you
are referring. I would appreciate a copy of the Bauer fax, which can either
be scanned and forwarded by e-mail to this address (preferred) or faxed to
me at 847.589.6453.
Thank you for your cooperation. I realize this is difficult to unwind, as
I'm coming into this in the middle and bringing a more-nuanced understanding
of third-party liability to the situation than most attorneys have. This may
present a barrier that we'll need to set aside, but for the moment my
client's main concern is retrieving the IP; the rest of the situation is not
nearly so time-critical, and we'll be able to take a breath and consider it
on its merits without time pressure.
James Cordray wrote:
> Mr. Petit,
>
> After further investigation of our server log files we have found that
> someone using Ms. Glatzer user name and pass word has gained illegal
> access to our server through a shell account. Here is a small part of
> the log
> Users logging in through sshd:
> pdwvzafp logged in from bbb72-0-183-106.bendbroadband.com
> (72.0.183.106) using password: 2 Time(s)
>
> WhoIs for 72.0.183.106
> OrgName: Bend Cable Communications, LLC
> OrgID: BCCI
> Address: 63090 SHERMAN ROAD
> City: BEND
> StateProv: OR
> PostalCode: 97701
> Country: US
>
> Once again this is against our TOS to allow any one access to this
> information and we are now seeking legal council for a criminal action
> against both parties.
>
> This warning is given upon access.
>
> This computer system is for authorized users only. All activity is
> logged and regularly checked by systems personal. Individuals using this
> system without authority or in excess of their authority are subject to
> having all their services revoked. Any illegal services run by user or
> attempts to take down this server or its services will be reported to
> local law enforcement, and said user will be punished to the full extent
> of the law. Anyone using this system consents to these terms.
>
> Giving out this information is allowing a person access to vital parts
> of our servers, and possibly confidential information that belongs to
> other client's gaining access to the server with out written consent is
> a criminal offence. I strongly suggest you request your client to cease
> these illegal actions at once.
>
> We are at this time checking all log information on actions that have
> been taken by this unauthorized access and will pass this information on
> to the legal authorities also we are contacting the Internet service
> provider and asking that they take the same legal actions.
>
> JamesC
> Senior Internet Technology Adviser
> Email: jamesc@totalweb-inc.com
> ICQ# 49107171
> Total Web-Inc Helping You Bring Your Business to the World
>
>
>
>
>
>
--
=====================
C.E. Petit, Esq.
http://www.authorslawyer.com http://scrivenerserror.blogspot.com
This message may contain legal commentary. Unless specifically noted
otherwise, such commentary is NOT intended as legal advice for any
particular situation.
********************
RE: Absolute Write--Requirement for Return of Intellectual PropertyFrom: James Cordray [xxxxxx@totalweb-inc.com]
Sent: Wednesday, May 24, 2006 8:06 PM
To: 'C.E. Petit, Esq.'
Subject: RE: Absolute Write--Requirement for Return of Intellectual Property
Mr. Petit,
To start off with it seems you and your client think we have to give in to your demands?
As for the unauthorized shell access being "someone that broke in" no it was someone that was given the user name (this is not something you can just guess at) and pass word. But this is a separate matter that we will allow law enforcement to handle no matter how this disagreement turns out.
I tried to settle this matter between Ms. Glatzer and ourselves but she refused that offer, and turned this into a legal matter, so as soon as we received your first email we answered it with a standard answer, then called our lawyer.
With all the demands from you, phone calls, hate email and malicious lies that are gathering around the internet, our lawyer seems to think it would be in our company's best interest to allow Ms. Glatzer to file some sort of judgment against us which will allow us the opportunity to file a countersuit thus giving us our day in court to clear our good name and also collect the money we have lost in attorney fees, labor cost,(for the 10 hours that will be spent checking out the compromised account) the back money owed for the bandwidth overage, accounting fees, and punitive damage that will be caused by all of this.
As I stated in the beginning I am not keen on being threatened or bullied around. We have dealt with this type of blackmail before, clients that sign up for a service then try and abuse that service and then threaten with lawsuits that will never hold up in court.
If Ms. Glatzer is willing to discuss an out of court settlement then we will be glad to get our lawyer to work something up in writing if not then we have no choice but to hold all property for evidence till a court order is delivered that finds us in violation of any Tennessee state law.
We feel justified in our actions, based upon our service agreement that was accepted before service was rendered. With this agreement we are fairly confident that we will get what is true justice and not some blackmail "do it or we will ruin your business" justice.
JamesC
Senior Internet Technology Adviser
Email: jamesc@totalweb-inc.com
ICQ# 49107171
Total Web-Inc Helping You Bring Your Business to the World
******************
Unfortunately, or perhaps fortunately in the long run, our usual lawyer was retiring and moving out of town. This forced us to seek another attorney which took time. Our usual lawyer wasn't versed in internet law other than in a very general sense but advised of us the above.Our T.O.S. and A.U.P. are the same ones we have to agree to abide by with our data center.
It worked out for the best that we had to seek new counsel. We were unable to consult with the new counsel until June 1, 2006, however, she is well versed in internet law. She corroborated what the first lawyer advised. She told us to give the stuff to the customer and hope she goes away. She stressed the hope word because neither she or us believed that would happen and it didn't as you will see in succeeding pages.)