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We all have our Kafka moments. Times when we feel like Josef K, who found himself arrested and prosecuted by a remote, inaccessible authority in Franz Kafka’s brilliant novel The Trial. Unable to find out what his crime was, Josef K becomes enmeshed in a bureaucratic nightmare.
About eight years ago I came across some pages on the internet hosted by a company called *members.fortunecity. Not only did the pages contain a selection of my short stories, but they claimed to have been posted by me. It was a case of ‘here we go again’, as I’d already gone through a similar thing with Yahoo a year or so before.
I still have the more than 90 emails I exchanged with Yahoo that concerned an email account registered under a false name that was used to libel me and threaten my partner’s children. Some of those emails refer to a false YahooGeocities page registered under my name, along with another email account, opened by an impersonator. It was a long fight before Yahoo finally decided to close the accounts and remove the pages. But only after threats of legal action for breaches of copyright.
But I have yet to receive an apology, or any compensation from Yahoo for all the trouble and stress caused to my family and I. Of course, there is little doubt in my mind as to the reason. An apology could amount to an admission of guilt and complicity in a case that went before a German magistrate, and which concerned a breach of US federal law regarding the protection of minors. For a threatening email had been sent from US soil by someone using a false identity registered to a Yahoo account, of which Yahoo had been informed and been asked to investigate.
This time, my impersonator was acting in deliberate contravention of a court order by publishing my copyright work again using members.fortunecity account and opening up false email accounts in my name. But things had changed in the meantime. There had been a police investigation into the perpetrator in Germany and a court conviction for assault in Spain. You’d think members.fortunecity might at least take note. But no, as far as they were concerned they were a law unto themselves.
I contacted members.fortunecity almost immediately, demanding they remove them, as they constituted a clear breach of my copyright. I had plenty of evidence to show that was the case, whereas members.fortunecity had no evidence of any right to publish my material, either on their own behalf, or behalf of a third party with the legal right to publish my material. I also had evidence of two court actions brought against my impersonator by law authorities in Spain and Germany.
Realising they might need some proof of my identity, I told them to contact my editor at BeWrite Books, who woud be able to confirm the email address I gave them as mine. As an extra source to verify my identity, I added the name of Simon Calder, travel editor of The Independent. The newspaper had published several of my travel articles in the past. Simon also had my email address, something impersonator could not have, as I restricted it to very few people including family, close friends, newspaper editors and my publisher of the time. Job done! But I couldn’t take into account the Kafkaesque world of members.fortunecity.
Members.fortunecity emailed a reply asking me to provide proof of my identity in the form of an electronic signature. As I don’t have one, don’t need one and don’t want one, I instructed them to ask my impersonator to provide proof of his identity with his electronic signature. After all, I hadn’t entered into a contract or agreement with them, he had. If he failed to provide it, or answer their request within a given period of time, they would have good enough reason to remove the pages. They ignored my request, and asked me again to provide proof of my identity.
The irony of that is anyone can create an electronic signature using any name they choose. Without another form of ID to back it up, it is meaningless. Besides, even had I provided them with an electronic signature proving I am Bryan Hemming, it wouldn’t necessarily prove I am the same Bryan Hemming, who wrote the stories. That is something they would have to verify by contacting the sources I had already provided them. Kafkaesque in the extreme. Apart from that, I had no reason to believe they wouldn’t use the very evidence I provided against me, by claiming it constituted proof I had opened an account with them.
From that time on members.fortunecity consistently refused to remove the pages despite my demands. Someone, who ironically preferred to remain anonymous, kept telling me I have to obey the Digital Millennium Copyright Act DMCA, which is a US law, despite the fact I am a UK citizen living in Spain.
The DMCA is mainly designed to protect the earnings of wealthy rock stars and film producers from pirate recordings. It isn’t of much use to protect little-known writers against criminal impersonators stealing copyright material for malicious purposes. This is covered by other laws against crime. Impersonation with malicious intent is an offence in the US, whether on the internet or by any other means.
Members.fortunecity try to pretend they are protecting people’s rights. But just to show how keen members.fortunecity are to protect the intellectual copyright of others, and uphold the law, No 12 in members.fortunecity’s terms and conditions states:
You may not copy or reproduce any page, image or other content without the express prior consent of the original copyright owner of that content.
Obviously it doesn’t apply to them, and they haven’t asked my impersonator if he has such proof. I know he doesn’t and so do members.fortunecity because I told them.
On the home page of my impersonator members.fortunecity was a blurred photo of me, taken by me, in 2004. That photo is mine, and I own the copyright. I have it in my computer files. The photo only ever appeared on Trafalgarferia.com, a site to which I used to contribute. You don’t have to be Sherlock Holmes to work out the photo and stories were lifted from that site. It longer operates, but that, and BeWrite, were the only sites the stories could be viewed. Still, what do terms and conditions mean when you’re just in it for the money?
And to demonstrate how keen they are to protect their own rights: with term No 14 members.fortunecity actually give themselves the right to handle stolen goods:
By submitting a web page to FortuneCity or any other web page hosting service on The FortuneCity Network, you grant FortuneCity a royalty-free, nonexclusive, worldwide, unrestricted license to use, copy, transmit, publicly display, publicly perform, create compilations including, and distribute such web page, and any associated Content, for the limited purposes of publishing and promoting the user’s web page in connection with the particular service with which the user has chosen to have the web page hosted and for publishing and promoting such web page elsewhere within the FortuneCity Network. Such license shall apply with respect to any form, media, or technology now known or later developed. This term will extend only for the duration of the user’s membership with the particular FortuneCity service. In the event that such membership is terminated, FortuneCity will relinquish all rights to the user’s Content following the duration of any applicable promotional activities ongoing at the time the membership is terminated.
So they had granted themselves rights to my work without any proof whatsoever they had any legal title. They expected me to show them I have legal title to something they didn’t, but didn’t think they were obliged to show me the same. Bit like a car thief driving around in your car then asking you to show proof of ID and ownership, when you should be asking him.
It’s incredible how big corporation lawyers feel they can ignore their own terms and conditions, and use laws intended to protect the victims of crime to protect themselves and criminals.
I have documentated evidence my impersonator is a serial offender, guilty of internet stalking, and known to me. Of course, members.cityfortune knew that because I sent his name to them along with his home address. They just chose to ignore it. I also sent them details of two court cases, and the details of the investigating authority in one.
In 2004 Stefan Härtel, a German national, was charged of assault against my partner, and summoned to appear in the Palace of Justice in Chiclana in southern Spain. He failed to appear, having fled back to Germany. In his absence he was declared guilty.
A couple of years later the same Stefan Härtel was detained and charged with offences relating to libellous accusations against my partner and I. He had posted them on the Bewrite internet forum, not under his own name but the assumed name of “Conileno Rodriguez” (the inverted commas are his), a transparent pun based on the fact I live in Conil, Spain, where the people are known as Conileños. There were other internet related offences committed anonymously, or using false names.
Härtel pleaded guilty in return for a not having to face a court appearance, and a non-custodial sentence. He had also to give an undertaking to the magistrate not to repeat the offence. Members.fortunecity were informed of the convictions and provided with the name of the investigating German police officer in one case, along with addresses of the prosecuting courts in both. Still they refused to act, allowing Härtel to walk and commit other offences. Talk about Kafka.
Update: May 18th 2014. As there has been some interest shown in this article from Germany over the last few days, I feel should reveal the first and highly libellous message posted on a forum in the site of my former publisher Bewrite Books by my ‘anonymous’ internet stalker.
BeWrite published two of my short stories under a collection entitled The Creature in the Rose on 29th October 2004, and the message was posted on 25th January 2005. The coincidence of the two events has been noted. Bewrite no longer exists, but I have retained all the emails regarding this affair, including those sent to Yahoo Geocities and Tripod and my dealings with the police officer in Hannover, who handled the case.
This is a copy of the post emailed to me by my editor, as it originally appeared on the Bewrite forum:
Posted: 25 Jan 2005 14:37 Post subject: Bryan Hemming, a beggar, thief and murderer Bryan Hemming, a beggar, thief and murdererA friend of mine told me a story about this man that was really awful and it was hard to believe that such a scum exists. He told me that his father lived in spain until he died at the age of 66. He owned a house and it was too big to live there alone. So he separated one part of the house as an apartment. He let the apartment to a german painter called Angelica, who was Bryans girlfriend at that time. After she moved in he recognized that this was the biggest mistake he ever made. He heard from friends that this bitch lost her accommodation several times because she could not pay the rent, stole things from the landlords of those accommodations and was widely known for taking drugs. The same happened this time. Furthermore, Bryan moved in as well because he lost his accommodation for the same reasons. After some time these beggars occupied more and more space of the house, and it was clear that the father of my friend was old and could hardly offer resistance against them. He felt very uncomfortable with this situation and told them to move out, but they refused his request. After a lot of stress these rats simply planned to murder him because it was the easiest way to live there for a long time. My friend did not hear anything for a while so he decided to fly to spain and to look for his father and his house. He was really shocked about his fathers death, these people and the condition of the house, because these beggars occupied the whole house and did not care about anything apart from themselves. Of course they were taking drugs like cocaine and marihuana. The rest of the story is that my friend tried to get them out after the tenancy agreement expired at the end of August 2003. But after one and a half years he has not been successful so far. What I can tell is that these two persons, one of which is Bryan Hemming, are beggars, thiefs and murderers and the biggest scum I ever heard of.
There are many grammatical errors and oddities in the anonymous post that point to it not having been written by a native English speaker. An English person would not use the term ‘a scum’ but ‘scum’. The name ‘spain’ would be written ‘Spain’ with a capital letter. A native speaker would not compose a clumsy sentence like this: “So he separated one part of the house as an apartment.” And then again ‘german’ instead of ‘German’. I could go on. The entire post is littered with similar mistakes, most of which point to the author being a German speaker rather than the Spanish speaker the false identity suggests.
It also amounts to gross libel. It was followed by an email that was nothing more than a veiled threat against Angelica’s children. Both post and email say far more about the author than they do about Angelica and I.
The persecution was made all the more sad as the father referred to in the post, had died around late May of the previous year, not in Spain, but on a visit to his hometown of Wolfsburg in Germany for a reunion with some old friends. According to the official report, he was alone, and was not murdered. His body was discovered a couple of days later, after he hadn’t turned up for the reunion. Not only is the post libellous, it show a disturbing lack of respect for the father, and the rest of his family.
His son inherited a very valuable property, which he planned to sell vacant in order to realise its full market value. And he wasn’t going to let anything get in his way, including the law and the memory of his deceased father. I intend to publish more details on this in the future, as well as some other disturbing facts that were unearthed regarding the ironically named “Conileno Rodriguez”’s mysterious ‘friend’ and his treatment of his father, which seem to suggest the ‘friend’ treated him in bullyied him in a manner amazingly similar to the one hinted at in the accusations made against Angelica and I. They were written by that same father in an autobiography he was working on and was asking for my advice on. We were also harrassed, and attempts were made to bully us by the ‘friend’ of “Conileno Roriguez”. I might add that I was fifty-four at the time of these alleged events referred to in the post, though one might assume I was a teenage junkie from reading it.
A short while after Härtel had been prosecuted, someone opened up internet accounts with YahooGeocities and Tripod using my name. Another unlikely coincidence. The impersonator began publishing work of mine, lifted from sites where I publish my short stories.
A particular sinister feature of one the pages was, that not only was my work being published without prior consent, but so were the names of my partner and her two young children, along with our home address. There was an even an open invitation to visit us.
Publishing the names and addresses of minors on the Internet is a federal offence in the US, in the interests of protecting their privacy and security. Enough proof exists to show Härtel set up the first false email account and committed the offences while on a trip to the US, as the date and the hour the email was dispatched indicate it was sent from within the US Pacific Time Zone. To be exact Sun, 27 Feb 2005-05:32:19 -0800 (PST) or Pacific Standard Time. Therefore, thinking he was being clever by assuming the false name “Conileno Rodriguez”, which was intended as a ploy to make us think the email originated from our hometown of Conil, the sender had committed a serious US federal offence punishable by prison.
Later that year, the same impersonator opened email accounts in my name in a deliberate attempt to divert messages intended for me. YahooGeocities only removed the pages removed after countless emails, and threats of legal action. Tripod had the grace to remove them immediately upon request.
By setting up false sites in my name mentioning the children’s names, who were only eight and ten at the time, it made them vulnerable to paedophiles. Armed with names and address, the children could’ve been approached in the street by people pretending to know us, offering to take them home. It is not unknown for paedophiles to make up stories about parents being taken to hospital after accidents. It was not a nice feeling. I have to make it clear that the children’s identities were not published on the pages hosted by members.fortunecity.
Despite being told, and in apparent contradiction of their stated rules, members.fortunecity allowed our privacy to be invaded by permitting that address to be published. It beggars belief having been informed of the crimes being committed against us by an imposter. Past crimes are obviously of no concern to members.fortunecity out to protect people against invasions of privacy
And just to show some the proof it’s almost certainly the same impersonator as before, click onto the page in question: *here (Update: the link now no longer exists as page has finally been removed without giving me notification. Our old address was still there with exactly the same words being used, inviting people we don’t know to visit us, right up until 2011. I didn’t tell members.fortunecity we no longer lived at that address. Would you? As far as they are concerned, we might still be living there. And they were asking me to give them more of my personal details).
As further proof of the damage impersonators can cause, I was recently approached by Canal Sur, a Spanish TV company for a small documentary piece to be included in their series Europa Abierta. Having found me on Google, they looked at the site of my impersonator on members.fortunecity, thinking it was me. The page featured the address that was no longer mine. Had they not done more research, they may not have found me, which could’ve resulted in financial damage. In the event they managed to get my phone number, despite the misleading information (click here). Though I informed members.fortunecity I have no idea whether bothered to follow up. They’d probably have tried to claim it was the work of an imposter.
Quite clearly, my impostor hit paydirt, when he turned to members.fortunecity to help him continue his campaign of internet harrassment. And if YahooGeocities didn’t care too much, members.fortunecity don’t care at all
Yet another sustained attack against my partner and I began, by a disgruntled stalker trying to inflict psychological damage. A convicted felon.
Members.fortunecity uses laws designed to protect people from invasion of privacy to, well… well, to allow other people to invade people’s privacy.
For a company so willing to allow impersonators to publish the full names and addresses of others you’d think they might be happy to provide the public with their own names and addresses. But they’re not. It was actually rather difficult to get a real *postal address from members.fortunecity, and impossible to get the name of anyone working there. But they eventually did send me this: Attn: Legal, PO Box 821066, Vancouver, WA98682 . However, they didn’t say it’s the Vancouver in the US, which one might assume they would, as the Vancouver most people know is in Canada. The clue is in the zip code. Given many of their users live in India and Mexico, some might get confused. I did, and my grandmother was born on Vancouver Island in Canada.
They still wanted me to provide them with information despite showing they can’t be trusted with it.
Despite assurances they did not profit from such sites, a flashing box appeared in the middle of the page when I copied the link – here in Spain – informing me I’d won a prize. Yeah, sure I have. As I don’t think it got there by itself, or without payment, members.fortunecity are liars. At that time they were still listed on the internet as gaining their money from advertising.
To step further into the Kafkaesque world these types inhabit. Any court action taking against them would have them trying to claim they were protecting me from invasion of my privacy by asking me to provide details about myself I regard as an invasion of my privacy. In effect, they are tring to protect their own rights to publish whatever they want. If you are a writer, who is not interested in the internet, you won’t be able to find out if others are stealing your work. Even if you do, you won’t be able to stop them if you don’t start using a computer, and get yourself an electronic signature.
If someone steals your work and your name before you register it, and posts it onto the web, they will be able to claim your royalties, simply because companies like members.fortunecity don’t bother to demand proof of ID from people using their site. Financially, it’s not in their interests.
I am not against people using assumed names on the internet, and I firmly believe their ID’s should be protected. But in cases where that identity is challenged, I believe the person registering on the site should be asked to provide proof of their identity, not the complainant. Should a false challenge be made, there are plenty of other legal avenues to pursue.
The law on theft of identity through the internet should be the same as it is everywhere else. It is a crime to steal someone’s identity, full-stop. And it is a further crime to use that theft of identity to steal their work, especially if is is done with malicious intention or aforethought. It is also a crime to handle stolen goods, knowingly, or unknowingly. The onus always falls of proof upon the handler, not the victim of the theft.
A new law regarding impersonation on the internent came into force in Calfornia in January 2011. SB 1411 makes it a crime to falsely impersonate someone for the purposes of harming, intimidating, threatening or defrauding another person. With the help of members.fortunecity my impersonater is guilty on all counts.
When all’s said and done, members.fortunecity have handled stolen goods. From the moment I informed them, they began handling them knowingly. In law, possession is not necessarily proof of ownership. Where it can be proved clearly someone else has legal title to those goods, the onus falls upon the accused and the handler to prove otherwise. They have to prove in a court of law they have legal title to the goods. Members.fortune city have no such tile to my intellectual copyright and cannot prove they do. Neither do they have any proof to show my impersonator has legal title to my work, or is me.
As controversy still remains over DMCA, its provisions and clauses are far from being set in stone. These will be decided on the basis of Common Law. They will be refined gradually by a series test cases brought to in order to establish a better interpretation by the precedents to ensure the Act is fair, and in line with other relevant legislation.
Because members.fortunecity will not accept the proof I can offer – including going to a police station or lawyer of their choice to show my passport – I find myself in the Kafkaesque position of having to prove I am who I am, to people I don’t know and have never dealt with. People who deliberately conceal their identities from me.
Yet I have many readers and contacts who know who I am through my work. I have members of my family who will vouch for me. I have a lawyer here in Spain, who can also vouch I am who I claim to be. One thing is certain, my impersonator can’t.
Members.fortunecity entered into an agreement with him and not me, which is a fact they seem extremely unwilling to accept to the point they allow him to break the law.
Their contract has terms and conditions my impersonator cannot legally agree to in my name, and I cannot be bound by. Members.fortunecity seem to believe don’t they should be bound to the terms and conditions of their own site, or restrained by criminal law. They appear to believe there’s another set of virtual laws for the internet only covered by DMCA.
I have no reason to trust members.fortunecity, not only because they have entered into an agreement with a criminal, but they are now protecting his identity. As I have said previously, identity theft is a crime.
But there’s still that Kafkaesque irony to all this, I can’t help repeating, as though repetition might bring an end to the eight-year nightmare. While members.fortunecity continually asked me for proof of my identity, not one of their communications carried the name of the person responsible for sending their replies.
In other words, they were expecting me to provide personal details I didn’t wish disclose to them – as I never entered a contract or agreement with them – while not revealing any details about themselves. Neither did they ever given me the names of their legal representatives, despite my numerous requests. Without names, there is no real chance of redress. Normally, giving names just a matter of politeness and respect. Not to give a name is a sign of contempt.
From where I’m sitting, giving members.fortunecity any personal details would be like like giving my ID card to an anonymous stranger, who told me he needed it to prove that the man who’d stolen my credit card, wasn’t really me. I’d tell him to ask the thief for his ID card. That would show he wasn’t me.
Sorry to go about it, but I find it incredible. Was I really expected to provide personal details about myself to someone who preferred to remain anonymous? Why are on earth should I have trusted someone who enabled a third party to impersonate me and steal my work, yet refused to even to give me his first name?
By giving them my electronic signature members.fortunecity could claim I had posted the pages. Why should I trust them, when I regard them as – unwitting or not – parties to the crime? They facilitated it. Facilitating a crime is a criminal offence. And, although it’s highly unikely, they might even have posted the stories themselves, as they have offered no proof someone else did.
It could be justifiably argued members.fortunecity had a vested interest in not removing the pages. By not doing so, they could’ve claimed they had more subscribers than they really did, for they obtained revenues from advertisers on their pages. The more pages they had, the higher revenues they obtained. So greedy were they, at one point they were linking random words in my stories to their advertisers, where the word might have some relevance. A fact they denied.
For instance, they did things like link the word ‘plumber’ in a sentence such as “Doris said she was in love with the plumber” to a company supplying lavatories.
Not only was this in direct breach of my copyright – it is against the Berne Convention to alter copyright work in such a fashion without the permission of the author – but it also made a mockery of my work, and could’ve brought my name into disrepute.
As a freelance travel writer, certain advertisements can compromise my integrity and independence. For someone to profit from my work in this manner is despicable.
If my name was a household name, I doubt they would’ve daref to ask me for proof of identity, for fear being of being sued for a huge amount.
Just another example of one law for the rich and another for the poor.
Copyright ©2011 Bryan Hemming
I would be very interested to hear comments from other writers whose copyright is being breached – or has been breached – in a similar manner, by big companies behaving as bully boys while making money that they are not entitled to, thus depriving writers of their hard-earned royalties. Particularly those involving members.fortunecity. I would also like to hear from people, who have suffered from being impersonated.
If you want them to give them the run around:
Copyright violations by members.fortunecity or their members should be addressed to:
*Attn: Contracts Administrator
8100 NE Parkway Drive, Suite 300
Vancouver, WA 98662
Please submit all subpoenas and other legal inquiries to:
*Fortunecity (membersfortunecity) have now changed their name to dotster. It doesn’t surprise me. They have yet to send me a written apology for all the inconvenience and mental stress they caused me. Presumably, their law dept. advised them that to do so would amount to an admssion of guilt, which could lead to legal action being taken against them
Attn: Legal Department
8100 NE Parkway Drive, Suite 300
Vancouver, WA 98662
Copyright © 2011 Bryan Hemming
This article was slightly amended on March 12th 2014 and on May 19th 2014.
Une fois. Encore.
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