In my capacity as First Assistant United States Attorney, I have been shown various harassing and potentially threatening email messages directed at United States Attorney Ortiz and the United States Attorney’s Office following Mr. Swartz’s suicide.

Attached at Tab E are copies of the following articles:

a. Swartz case protest at Boston US Attorney’s Home, The Boston Globe, March 12, 2013; and
b. Swartz protesters go to prosecutor’s home, The Boston Globe, March 17, 2013.

In my capacity as First Assistant, I have been shown various harassing and threatening messages directed at AUSA Heymann. One such email I have seen states, among other things:

ROFLMAO just saw you were totally dox’d over the weekend by Anonymous. How does it feel to become an enemy of the state? FYI, you might want to move out of the country and change your name . . .

That same email copies personal information of AUSA Heymann, including his home address and personal telephone number, among other things. AUSA Heymann has also reported to me that his personal information (including his home address, personal telephone number, and the names of family member and friends) were posted online, and that his Facebook page was hacked.

Attached at Tab F is a redacted copy of a postcard that AUSA Heymann has informed me he received at his home.

Attached at Tab G is a copy of a postcard that Professor Philip Heymann has informed me he received.

As I've talked to the people who have looked into this matter, these news reports about what he was actually facing is not consistent with what the interaction was between the government and Mr. Swartz. A plea offer was made to him of 3 months, before the indictment. This case could have been resolved with a plea of 3 months. After the indictment, an offer was made and he could plead and serve 4 months. Even after that, a plea offer was made, of a range of zero to 6 months, that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never any intention for him to go to jail for a period longer than 3, 4, potentially 5 month range.

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

Cornyn: The subscription service didn't support the prosecution. Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3 or 4 month prison sentence?

Holder: Well I think that's a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, 0 to 6 was consistent with that conduct.

Only it wasn't this one. The account I saw had this name: @xsaonpress.

When I returned the next day, I was greeted with the message that the above account had been suspended. Odd. So, I searched again, only this time using the keywords "tongues" and "glass," -- two words in the title of the poem in question -- and found that On Press was still in business.

On Press Inc., supposedly a division of Knopf Publishing (according to its Twitter profiles), was running a search of its own and issuing tweet after threatening tweet to anyone who dared publish a short (really short -- under 140 characters) poem by reclusive poet, Shaun Shane, without attribution. The entire poem reads as follows:

"If only our tongues were made of glass, how much more careful we would be when we speak."

The Organization Invisible Children has plagiarized and thus committed copyright infringement ( which is illegal) on their website and on their Twitter account, a work by Shaun Shane. Exemplifying the criticism against them that they do not research their facts and have sloppy journalist methods. (Here is a link: http://www.invisiblechildren.com/) and to the Twitter post (https://twitter.com/#!/Invisible/status/196433854851055618/photo/1)

Twitter will also terminate a user's account if the user is determined to be a repeat infringer.

For an entity so concerned with copyright infringement, it certainly doesn't seem to understand the terminology it's throwing around. "Libel" and "liable" are nowhere close to each other in definition, and you'd think an entity this concerned with infringement would know the difference (or at least be able to spell the one it actually means).

Then there's On Press Inc itself, which has its own issues. As you can see from its profile photo, On Press claims to be a division of Knopf Publishing. However, we contacted Knopf Publishing for comment and they said that there is no division of Knopf called On Press Inc. On Press has apparently decided an appearance of Shane's poem in a Poem-A-Day-Celebration hosted by Tumblr and Knopf allows it to add Knopf's name to its profile... and the large publisher's weight to its fight against unattributed use, despite no official connection to the company.

On Press also utilizes multiple simultaneous Twitter accounts, in violation of the Twitter Rules.

Serial Accounts: You may not create serial accounts for disruptive or abusive purposes, or with overlapping use cases. Mass account creation may result in suspension of all related accounts. Please note that any violation of the Twitter Rules is cause for permanent suspension of all accounts.

So, there was a human behind the account, one who handily provided a link to the terms of service that directly contradicted what he had just said. (I've shifted pronouns, but an explanation is on the way.)

Once I had his/its attention, I pointed out On Press' suspicious behavior -- namely, the multiple suspended accounts linked to its name.

On Press responded with this blast of angry tweets, stating that Twitter itself generated these accounts for it.

It shouldn't need to be said, but this claim is completely false. Mike contacted Twitter to ask about whether or not, as On Press claims, it creates thousands of automatically generated accounts for companies with which to harass infringers, and (no surprise) Twitter said there is no truth to this claim.

I attempted to gather more information, but my overtures were rejected. At one point, an On Press account mentioned it performed this "service" for "other authors" but refused to name any. It also failed to cough up a usable URL that might indicate On Press Inc exists outside of multiple Twitter accounts.

Shortly thereafter, the accounts went ballistic, showering me with a long list of legal threats.

This was prompted by its discovery of a tongue-in-cheek review of the only book On Press has for sale, one I had posted earlier that night. (You may notice a second review has suddenly appeared -- from the same person who showed up to criticize my review.)

Again, On Press made several dubious claims, including the ridiculous suggestion that Twitter would surrender my IP address to the police on the strength of a fake review posted on an entirely different site. It also seemed to feel that the Feds would be interested simply because I was using a computer.

However, he/it wasn't kidding about one thing: "legal prosecution." The morning following this bizarre conversation with On Press (Feb. 8th), Techdirt received a phone call seeking to confirm that I "worked for Techdirt," with the "lawyer" on the phone saying that he wished to serve me with a lawsuit (at Techdirt's headquarters) for "copyright infringement, defamation of character and making false claims."

To date, nothing has been filed, despite the voicemail implying the lawsuit was already filed. But here's the great thing about legal threats: nothing being served to this point doesn't mean nothing ever will. The possibility still exists and the potential plaintiff is free to file anytime before the statute of limitations expires. This is likely a bluff, but it carries enough weight to make any future direct interaction with On Press ill advised, to say the least. This leaves him/it free to aggressively pursue those posting the poem without attribution, without worrying that I might ruin the fun by pointing out its false claims.

With the threat of a lawsuit still hanging overhead, I'm simply going to present my findings, all backed up with screenshots and/or links, with a minimum of speculative commentary.

The On Press Inc. "Network"

First off, let's address the "him/it" issue. On Press Inc. seems to exist solely as multiple accounts spanning several social media platforms. Running a search will serve up a few hits on existing businesses with the same name, but I have confirmed that these are unrelated to this bizarre attribution trolling.

A Poem Is Nothing

Shane's book is print-on-demand. Amazon doesn't list it this way, but other booksellers do. So, there's no pile of unsold paperbacks sitting in an On Press warehouse. This may explain why there's so little effort made to provide infringers with a "buy" link during the barrage of tweets and comments.

The On Press Twitter horde usually presents two links. One of them leads to this video displaying "proof" that someone (d/b/a On Press, Inc., with no address displayed) holds the copyright to "Tongues Made of Glass." (The other links to the Invisible Children photo.)

Now, a video like this could be made by literally anyone (with hands) and hardly presents a solid case for On Press' claim to Shaun Shane's poem. None of his work has been registered at the US Copyright office, either by himself or by On Press (or by anyone, actually). This limits any legal liability for infringement to actual proven damages, making the threat of a lawsuit slightly more tolerable. Also, the claims made at the end of the video, which appear to be a bastardization of the typical "copyright policies" found on sporting events, saying no copies can be made "without written consent of the publisher," overstates the powers given under copyright law in ignoring the possibility of fair use or other exceptions to copyright law.

Interestingly, the voice on the "copyright" video sounds nearly identical to Shaun Shane himself. Shane has a very distinctive cadence and tone to his voice, as evidenced by this live performance.

[Shane's voice also bears heavy, heavy resemblance to that of James Roth ("representing On Press Incorporated"), the caller who contacted Techdirt about serving me with the lawsuit.]

So, is On Press simply Shaun Shane, reclusive poet and attribution seeker? He'd certainly be the person most interested in enforcing this. His impossibly glowing bio at PoemHunter puts Shane in Schrodinger's Box, theorizing that he's dead ("...had become terminally ill and his re-emergence was to reinforce the ethic of Pure Poetry or Truly Modernist Poetry before his death..."), before theorizing in the opposite direction a few sentences later ("though it is believed, if he is still alive, he lives on the West Coast...") One of the On Press Twitter accounts I dealt with claimed Shane was dead and had willed that his work be used to raise money for various children's charities. (Too bad no one's trying to sell that book...) This claim is echoed at Pinterest, where the same sort of attribution-badgering occurs.

Mike Miche

Whether Mr. Miche is real or simply Shaun using another name remains to be proven. (It does share a Shaun Shane-like bit of alliteration.) Miche patrols Pinterest, sending users who re-pin this photo the same sort of messages as the Twitter accounts do, only without the character limit.

Miche also sports the same shaky legal grasp and penchant for baseless threats.

Here Miche chases down a user (who deleted her tweet) and continues harassing her at her Pinterest account, claiming that people like her using an unattributed quote can "cause untold billions of dollars of lost [sic] for companies who support and publisher [sic] Authors [sic... again] works." Miche also seems to make the claim that she's legally responsible for any retweets (a claim echoed in return by the On Press Twitter accounts).

Also of note: the single DMCA notice attributed to On Press was issued by Mike Miche. The notice has the sender's name redacted, but a duckduckgo search reveals Miche's name in the search results. If this is really Shaun Shane, he's either using false information to file DMCA notices, or Mike Miche is his real name (Shaun Shane is a pseudonym, according to his bio).

Alexandria Hopewell

Hopewell has sent out similar messages to Facebook users, again seeking attribution and using identical wording.

There are a few differences that might indicate she was just "pitching in" with the attribution push ("This Poem is our copyrighted property your use of it uncredited to him constitutes thief."), but by and large, it resembles missives issued at other platforms.

A followup on one post switches from "informative" to "pissed off" instantly when challenged, much like my earlier interactions with Shaun/On Press did when I refused to play ball:

We send and deal with 1000's of take down notices every day. Hardly do we need your amateurish insight into what constitutes legal and effective enforcement of our Copyright .

A user named "Sean Seans" refers to himself as "Shaun" and tells her he loves and misses her. And that Sean Seans/Shaun is also busy chasing down wrongdoers posting unattributed poems.

Anne Murphy

Anne Murphy has also made posts on Facebook concerning Shane's poem and seems to be located in Texas (at least judging from the locations of most of her Friends). The wording is almost identical to the Facebook posts by Alexandria Hopewell, suggesting the same author wrote them. She has also uploaded a few videos of Shaun Shane performances to YouTube. (Interestingly, the phone number on the caller ID from the call by "James Roth" to contact Techdirt is registered to Anne Murphy and also to a vegetable farm, the O.P. Murphy Produce Company -- both in Texas. Also worth noting: there does not appear to be a "James Roth" listed on the Texas state bar. If whoever called is not, in fact, a lawyer, they might want to familiarize themselves with Texas law 38.122 which makes it a felony to impersonate a lawyer.)

But that's not all. Shane/On Press also stalks Tumblr with multiple accounts (some of which are filled with work-from-home scam posts), issuing the now-familiar statements demanding attribution. A search for the terms "Shaun Shane" and "On Press" also brings up hits on several other platforms. On Press/Shane is very busy, though (as far as I can see) never seems to direct anyone towards buying the actual book.

He has also ramped up the aggression, perhaps as a result of his "successful" legal threat. The On Press Twitter interactions were never pleasant, but the latest ones have a decidedly malevolent tone that's undercut slightly by the sheer number of false claims they contain. It doesn't help that the poem is most frequently tweeted by teens -- a demographic On Press/Shane seems to enjoy hurling threats towards.

On Press now threatens to contact the police, sue parents and hold teens responsible for any retweets their followers send out. Here's a few choice quotes:

"know that you can be track by your ip address and that your parents will be the one's who are sued since you are a minor..."

"know that the average cost is $4000.00 per instance but that is times the number of follwers you have, or the number people who are exposed to your illegal post..."

"...but if you were bright you wouldn't have been stupid enought to tweet the poem in the first place..."

"WE don't care if you care. Your account will be terminated that is all that matters to us. We are indifferent to your feelings about it. your just some dumb kid."

The names of some of the alleged perpetrators — all juveniles who have yet to be charged with any crimes — and their parents and details about where they live ended up online. And since Wednesday, they’ve been barraged by death threats and harassing phone calls.

Greece police Capt. Steve Chatterton said Thursday that someone even made a false 911 call claiming there were people being held hostage inside one of the students’ homes. He said officers have been assigned to run special patrols down the youths’ streets to ensure their safety.

“We have a cellphone of one of the boys and he’s received more than 1,000 missed calls and more than 1,000 text messages threatening him,” he said. “Threats to overcome threats do no good.”

“This is going too far,” she said. “This is no better than the kids who did that on the bus.”

This can confuse people, because it's a common assumption that movie ratings are required by the government. In fact, the MPAA's rating system is unregulated and entirely voluntary, and was created as a way to avoid government intervention. The rating from CSM carries no more or less legal weight than an MPAA rating—but participation by studios, cinemas and retailers in the MPAA system has been so widespread for so long that their ratings are the de facto standard, and essentially mandatory. Any film can be released without a rating, but traditionally that has been commercial suicide, since theatres would treat it as NC17, a rating under which success is nearly impossible since most theatres won't show such films at all. But that's where things with Bully get interesting: AMC has announced that its theatres will show the movie and make it easy for kids to see it. In a unique move, they are providing a parental permission slip on their website for kids to print, get signed, and bring to the theatre:

“AMC will be presenting Bully…as not rated,” said the theater-chain in a statement. “Guests younger than 17 can see the film if they are accompanied by a parent or adult guardian, or if they present a signed parental permission slip.”

That permission slip will be available on Wednesday at this link on AMC’s website. ... (A rep for the company declined to comment on the Parent’s Television Council’s statement that screening Bully at AMC’s theaters “threatens to derail the entire ratings system.”)

That last bit is interesting, because it shows that the Parents Television Council (notorious moralist meddlers in the free speech rights of others) knows exactly what's happening. The power of the MPAA and groups like PTC relies entirely on momentum and force of habit. Nobody is beholden to them, but for a long time it seemed like everyone forgot that. That let the MPAA warp the rating system and use it for their own purposes such as playing politics, screwing over indie filmmakers, and even punishing a documentary that criticized the rating system itself. But now people are remembering that they don't have to play by the MPAA's self-serving rules. In their statement, PTC neatly predicts the future, though they rail against it:

"This move, regardless of intentions, sets a precedent that threatens to derail the entire ratings system," said PTC head Tim Winter in a statement."If a distribution company can simply decide to operate outside of the ratings system in a case like Bully, nothing would prevent future filmmakers from doing precisely the same thing, with potentially much more problematic material."

As with most of the disruption happening in the entertainment industry, this has a lot to do with the internet. In the past, if everyone played by the rules, there was basically no such thing as "unmet demand" for a film with a bad rating. Once the MPAA handed down its death sentence, nobody would touch the project, and it would receive no promotion or screen time, so nobody outside film circles even knew about it. Now lots of people are plugged into the festival circuit and the inside world of film, so a movie like Bully can generate plenty of buzz before it even hits Hollywood. The demand for the film was there, the studios were able to gamble on that demand, and AMC could see the advantage in breaking the rules to meet it. If the film is a success (which seems likely) it will deal a powerful and much-needed blow to the MPAA's ratings regime.

In theory, this new listing should have met Jenzabar’s purported concern that the original search listing could confuse potential customers using Jenzabar’s name as a search term. But Jenzabar argued below, and apparently still contends on appeal, that this is an “infringing” use of its marks.... Nothing could show more clearly that this case is about suppressing public access to truthful criticism, not protecting against deception of consumers.

I think it might be best if we revoked your account for now. We've drastically cut back on our contributors recently and while we really appreciate your posts there have been far too many of these types of contentious issues lately.

Second, the report says "a trademark is a property right that an owner has a duty to police." WHOA! Many folks would dispute the characterization of trademarks as "property"; and many folks (including me) insist that the "duty to police" is massively overstated. Later, the report says, "In view of the mark owner’s obligation to police violations, aggressive enforcement of one’s trademark rights does not automatically equate to abuse or bullying." In effect, the report says that it doesn't see any problem at all; but if there is a problem, it's just the natural consequence of that pesky duty to police....oh well, c'est la vie.

Given its apathetic nature, the report doesn't make the logical jump that any intellectually curious person would instantly make: if the "duty to police" might be driving trademark owners to be (over)zealous in their enforcement efforts, maybe we should fix the duty to police. After all, this "duty" isn't in the statute at all; it's barely in the caselaw; and it could be easily remedied with a statutory clarification that might very well be welcomed by both trademark owners and secondary trademark users because it might eliminate ambiguity plaguing both communities. C'mon, guys--that conclusion isn't exactly rocket science.

From my perspective, the "duty to police" is like the proverbial monster under a child's bed. It's not actually there, but boy, it sure seems scary. My academic writing queue is too thick right now to tackle this issue immediately, but I don't recall seeing a good comprehensive academic article grokking the duty to police (if I'm forgetting something, please let me know). That would be an excellent paper topic. I would be happy to work with someone on this project so that we can demonstrate just how massively the "duty to police" is overstated--typically as a business development tool for trademark litigators trying to afford their kids' private school tuition. Naturally, the Department of Commerce report undertook no such research effort into the trademark policing duty itself.

When I first started interviewing teenagers about bullying, they would dismiss my questions. "Bullying is so middle/elementary school," they'd say. "There's no bullying problem at my school," they'd say. And then, as our interview would continue, I'd hear about all sorts of interactions that sounded like bullying. I quickly realized that we were speaking different languages. They'd be talking about "starting drama" or "getting into fights" or "getting into my business" or "being mean." They didn't see rumors or gossip as bullying, regardless of whether or not it happened online. And girls didn't see fighting over boys or ostracizing one another because of boys as bullying. They didn't even see producing fight videos as bullying.

So then I started asking them what bullying was. What I learned was that bullying was when someone picked on someone or physically hurt someone who didn't deserve it. I'd ask how they knew if someone deserved it and the response was incredulous, "oh, you know." So I pushed harder... "what if you don't know?" I asked. I got blank stares so I took a different tactic. "What if someone's messing with someone and that other person thinks they're being mean?" This got their attention, but not in the way that I expected. Most told me that you know when someone is messing with you and that if you don't, you're stupid. Besides, when someone's messing with you, you can't take it seriously.

When I look at how teens hurt each other, I can't help but also see how they're developing training wheels for future relationships and reflecting normative behaviors that they see around them. I hear teens' dramas reflected in their stories about how their parents fight -- with each other, with their friends and family and colleagues, and with them. What teens are doing is more coarse, more direct, and more explicit. But they're witnessing adult dramas all around them and what they tend to see isn't pretty. Parents talking smack about work colleagues or bosses. Parents fighting with each other or ostracizing their family members over disagreements.

A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil.

To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability.

Punish him, insisted the parents.

"I said, 'This occurred out of school, on a weekend,' " recalled the principal, Tony Orsini. "We can't discipline him."

Had they contacted the boy's family, he asked.

Too awkward, they replied. The fathers coach sports together.

What about the police, Mr. Orsini asked.

A criminal investigation would be protracted, the parents had decided, its outcome uncertain. They wanted immediate action.

I share with the majority the view that R.R.'s post, like many that preceded and followed it, was vulgar, nasty, offensive, and disgusting. But, as Justice Harlan wrote in Cohen v. California... although --the immediate consequence of [free speech rights] may often appear to be only verbal tumult, discord, and even offensive utterance[,] . . . [w]e cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values [of freedom of speech] are truly implicated.

In concluding that the post was not in connection with an issue of public interest, the majority fails to follow relevant precedent and ignores the substantial evidence that D.C. was a person in the public eye. The majority also creates a broad and groundless exception to the protections of the anti-SLAPP statute, holding that for purposes of the statute, jokes do not constitute communications in connection with issues of public interest.... That is not the law.

Reading the sequence of posts from beginning to end, no reasonable person would foresee that any of it would be taken as a serious threat of violence. No reasonable person would believe that (at least) four people were sincerely threatening to take D.C.'s life. Taken together, all of the posts amount to nothing but a lot of adolescent sex-obsessed hyperbolic derision, sarcasm, and repulsive foolishness