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Is It a Prior Restraint for Police to Delete Video of Their Conduct?

A pedicab driver was arrested in D.C. recently for pretending to record police arresting one of his passengers. He wasn’t actually filming anything – apparently he wasn’t even sure how to operate his new camera.

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Johns-Byrne Company v. TechnoBuffalo

Date: 

09/01/2011

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

TechnoBuffalo, LLC; Media Temple, Inc.; Google, Inc.; AT&T, Inc.

Type of Party: 

Organization

Type of Party: 

Organization
Large Organization

Court Type: 

State

Court Name: 

Circuit Court for Cook County, Illinois (Law Division)

Case Number: 

2011-L-009161

Legal Counsel: 

Dewey & LeBoeuf LLP (Attorney Elizabeth M. Bradshaw)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On September 1, 2011, Johns-Byrne Company filed a Rule 224 action in Illinois state court. Rule 224 allows a party to conduct limited discovery, before filing a lawsuit, in order to determine the identity of the party that allegedly caused the plaintiff's damages.

The action was based on an August 17, 2011 post on the tech-news site TechnoBuffalo. The post contained photographs of and information about an upcoming Motorola smartphone. Johns-Byrne's petition for discovery stated that the company had been involved in printing promotional material for Motorola, and that the images recieved and posted by TechnoBuffalo were of this promotional material. Johns-Byrne alleged that the photos disclosed a trade secret, and stated that the party that took the photos and sent them to TechnoBuffalo "may have been" a Johns-Byrne employee.

Johns-Byrne's petition sought discovery from TechnoBuffalo and its web-host Media Temple, as well as from Google (TechnoBuffalo's email service) and AT&T (because Johns-Byrne had reason to believe that the photos were taken with an iPhone and possibly sent over AT&T's network). Johns-Byrne hoped to discover the identity of the party that took and sent the pictures.

Court documents stated that Media Temple, Google, and AT&T all "agreed to comply" with the discovery request. On September 26, though, TechnoBuffalo opposed Johns-Byrne's petition. TechnoBuffalo asserted reporter's privilege, both under California law (where TechnoBuffalo is based) and under Illinois law (where Johns-Byrne is based, and where the discovery action was filed). TechnoBuffalo argued that under either state's law, it was protected from attempts to reveal the identity of a confidential source.

On October 17, Johns-Byrne responded to TechnoBuffalo's opposition. Johns-Byrne argued that Illinois, not California, law should apply, and that TechnoBuffalo's content did not qualify as "news." Instead, Johns-Byrne argued, TechnoBuffalo's coverage of technology "was nothing more than commercial hype intended to excite the blog's followers." Thus, TechnoBuffalo failed to "rise to the level of legitimate journalism."

On November 7, TechnoBuffalo filed a reply brief. TechnoBuffalo relied on O'Grady v. Superior Court, a 2006 California state court case in which two tech news websites successfully invoked California's reporter's privilege, and Mortgage Specialists v. Implode-Explode Heavy Industries, a 2010 New Hampshire case which ruled that a website could claim the state's newsgathering privilege. TechnoBuffalo also argued that Too Much Media v. Hale, among other cases cited by Johns-Byrne, was inapposite. In Hale, a New Jersey court ruled that a message-board poster could not invoke the state's shield law. TechnoBuffalo pointed to the Hale court's distinction between a "news-oriented website" and someone who "randomly comments" on public forums. 

On January 13, 2012, the Cook County Judge granted Johns-Byrne's petition for discovery. The judge used Illinois law to rule that TechnoBuffalo's reliance on the reporter's privilege was "misplaced." The judge stated that TechnoBuffalo's site "did not encourage a well-informed citizenry," and that the "anonymous 'tipster' is hardly an example of a 'source' of investigative journalism" deserving of protection. Thus, Johns-Byrne could begin discovery.

UPDATE:

On July 13, 2012, the Cook County Judge granted TechnoBuffalo's Motion to Reconsider, thereby denying John Byrne's Rule 224 petition for discovery. According to the court, "TechnoBuffalo is a news medium, its employees are reporters ... and TechnoBuffalo is protected by the Illinois reporter's privilege."

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CMLP Notes: 

1/30: JS creating

Live Tweeting from the ‘Restaurant of Broken Dreams’

When web developer Andy Boyle overheard a couple discussing their marital woes in a Burger King in Boston on Nov. 7, he immediately recognized the entertainment value and began tweeting a play-by-play.

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Tarek Mehanna and the Freedom for the Thought That We Hate

Suppose you and I are friends. We've grown up together. We've shared conversation; we've traded ideas. Now suppose that as I've gotten older, I've changed. In fact, I've become a zealot. One day I bring up the topic of suicide bombers. And, to your surprise, I actually sympathize with people who strap explosives to their chests and go looking for crowds of innocents.

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Milwaukee Police Dept. v. Kristyna Wentz-Graff

Date: 

11/02/2011

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Kristyna Wentz-Graff

Type of Party: 

Government

Type of Party: 

Individual

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Milwaukee Wisconsin Journal Sentinel photographer Kristyna Wentz-Graff was arrested by Milwaukee police while Wentz-Graff was photographing a protest by University of Wisconsin-Milwaukee students at the school's campus on Nov. 2, 2011. Wentz-Graff, a three-time Wisconsin "Photographer of the Year," was later released without charge.  She said she was never told why she was arrested.

Milwaukee Police Chief Edward Flynn later defended the arrest, reports the Journal Sentinel.  Flynn said that the officers arrested Wentz-Graff because they thought she was a protester, and that Wentz-Graff's status as a journalist was "not obvious to the officers."  The Journal Sentinel ran a photo of Wentz-Graff's arrest that showed her press badge clearly visible.  The paper also quoted Milwaukee Mayor Tom Barrett, who had seen video of Wentz-Graff's arrest, saying that "It appeared very clear to me that she was a photojournalist," and that he "very much support[s] her First Amendment right to be there."

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Justin Bieber v. FreeBieber.org

Date: 

10/25/2011

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Fight for the Future, FreeBieber.org

Type of Party: 

Individual

Type of Party: 

Organization

Legal Counsel: 

Corynne McSherry, Electronic Frontier Foundation

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Fight for the Future is an advocacy organization focusing on free speech and consumer rights issues related to intellectual property and technology. The organization is opposed to Senate Bill S.978, introduced in May 2011, which alters the criminal penalties for copyright infringement and extends criminal liability for public performances of works in certain circumstances.

Fight for the Future believes that extending liability for public performances of copyrighted works would extend criminal liability to many amateur musicians, who frequently post unauthorized "covers" of works on websites such as YouTube. Noting that musician and teen celebrity Justin Bieber gained his initial fame from unauthorized covers of R&B songs on YouTube, the organization created a website called FreeBieber.org. The website contains several depictions of Bieber in prison uniform and behind bars, suggesting that he could be arrested if S.978 becomes law. The website encourages visitors to write to Congress opposing the bill, and to create videos expressing their opposition using a superimposed overlay of prison bars and a digital wig in the shape of Bieber's iconic haircut, provided by the website.

On October 25, 2011, counsel for Justin Bieber sent a cease-and-desist letter to FreeBieber.org, claiming that the website infringed Bieber's trademark rights by falsely suggesting his endorsement of Fight for the Future's campaign, and violated his rights of privacy and publicity.

Fight for the Future's attorney responded, claiming that any use of Bieber's name or image was nominative fair use under trademark law and protected by the First Amendment. The attorney also rejected claims of privacy and publicity, noting that Bieber is an extremely public figure and any claim under right of publicity would be trumped by the First  Amendment.

As of October 31, 2011, the website is still active.  S.978 has been reported out of committee and has been placed on the legislative calendar.

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The 'Mugshot Racket': Paying to Keep Public Records Less Public

It used to be that mugshots were kept well out of the view.  Despite being public records in many states, walls of bureaucracy and simple physical inaccessibility (due to the photos being locked in a police station somewhere) kept them largely out of the public eye.

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Al Jazeera's Laudable Embrace of Creative Commons

Last week the Online News Association's annual conference came to Boston.  Naturally, many prominent news organizations showed up, tchotchkes in tow, to woo attendees – including Reuters, MSNBC, NPR, and CNN among many others.

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Snyder v. Creative Loafing, Inc.

Date: 

11/24/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Atalaya Capital Management LP, Creative Loafing, Inc., CL Washington Inc. (d/b/a Washington City Paper), Dave McKenna

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Media Company

Court Type: 

State

Court Name: 

Superior Court of the District of Columbia, Civil Division

Case Number: 

2011 CA 003168 B

Legal Counsel: 

Baker & Hostetler, LLP (for Defendant Dave McKenna); Levine Sullivan Koch & Schulz, LLP (for defendant CL Washington); David M. Snyder P.A. (for defendant CL Washington)

Publication Medium: 

Blog
Print

Relevant Documents: 

Status: 

Pending

Description: 

On November 19, 2010, the Washington City Paper published "The Cranky Redskins Fan's Guide to Dan Snyder." The article levied a wide array of complaints about Snyder, owner of the Washington Redskins NFL franchise since 1999. The complaints largely concerned his management of the team, as well as his control of several other business ventures.

On November 24, 2010, Washington Redskins General Counsel David Donovan wrote a letter on behalf of Dan Snyder to Atalaya Capital Management, an investment company that, according to the letter, purchased the City Paper out of bankruptcy in 2009. The letter alleges that the City Paper article, and its inclusion of a photograph of Snyder with drawn-in devil horns, goatee, and uni-brow, were anti-Semitic and that the allegations made regarding Snyder and his wife in the article were false and defamatory. The letter also suggests that the statements regarding Snyder may have been published at the direction of Atalaya Capital, which competes with RedZone Capital (an entity which Snyder co-founded).

On December 7, 2010, attorneys for Atalaya Capital responded to Snyder's letter, rejecting the assertion that Atalaya had control over the content of Washington City Paper, disputing the factual allegations made in the letter, and asserting City Paper's First Amendment right to criticize Snyder under Hustler Magazine v. Falwell.

On February 2, 2011, Snyder filed suit in the New York Supreme Court for New York County against Atalaya Capital, its portfolio company Creative Loafing, Inc., and 10 "John Doe" defendants. Snyder alleged that four statements made in the article were defamatory, and sought relief in excess of $2 million

On April 26, 2011, Snyder discontinued his action in New York and filed a second the complaint in the Superior Court of the District of Columbia, this time against Creative Loafing, Inc., Washington City Paper, and Dave McKenna, the author of the article.

Using DC's recently enacted anti-SLAPP law, the defendants brought a special motion to dismiss on June 17, 2011. The defendants argue that D.C. Code § 16-5502 protects the statements as they are "an act in furtherance of the right of advocacy on issues of public interest" and that Snyder will not be "likely to succeed on the merits" of his claims.

According to the Blog of LegalTimes, Snyder filed a memorandum in opposition to the motion to dismiss on August 1, 2011, in which he argues that the anti-SLAPP law in question is in violation of the Home Rule Act, the federal law which delegates some congressional control of the District of Columbia to the DC local government. On August 30, 2011, the District of Columbia intervened in the case for the limited purpose of defending the validity of the anti-SLAPP law.

Oral argument for the motion to dismiss is currently scheduled for October 14, 2011.

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Bay Area Rapid Transit v. Protesters

Date: 

08/11/2011

Threat Type: 

Police Activity

Party Receiving Legal Threat: 

No Justice No Bart, Anonymous, other protesters

Type of Party: 

Government

Type of Party: 

Organization

Publication Medium: 

Email
Forum
Social Network
Verbal

Status: 

Pending

Description: 

According to SF Weekly, on July 3, 2011, a homeless man named Charles Hill was shot to death by police officers for the San Francisco Bay Area Rapid Transit District ("BART"). Two and a half years earlier, BART police used lethal force against 22-year old Oscar Grant. Both cases have lead activist groups to stage protests against BART and its police force.

On July 11, 2011, protesters with No Justice, No BART  and other organizations staged a protest in the Civic Center Station, where Hill was shot. According to SF Gate, approximately 100 protesters attended and some blocked the doors of trains, leading BART to temporarily close the station.

According to a BART press release, BART and San Francisco police officers learned of a further protest planned for August 11, 2011 early in the week of August 8th. They believed that protesters were planning to coordinate protests at the station using cell phones, and in an attempt to disrupt that coordination shut down cellular service to specific stations in the BART system. According to Scientific American, BART did this by disabling power to the cell phone and wireless network base stations it owned in the underground system. According to CBS San Francisco, the August 11th protest never materialized.

According to Mashable, web activist group Anonymous responded to BART's closure of cellular service by shutting down the consumer-relations website mybart.org on August 14, 2011, leading to the website's indefinite suspension. Anonymous also organized further protests on August 15, 2011, leading to additional station closures, though no reported cell phone service disruption.

The Bay Citizen reports that the FCC is investigating BART's decision to disable cell phone service in the stations. On August 29, 2011, a group of public interest organizations led by Public Knowledge filed a petition for declaratory ruling to the FCC, arguing that BART's actions violated the Communications Act of 1934.

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Baby Brady Photos Removed, But Did AG's Office Overstep Its Bounds?

If you've been living in Boston, you've undoubtedly heard the recent uproar over a local website publishing a photo of Ben Brady, the 20-month-old son of New England Patriots quarterback Tom Brady and supermodel Gisele Budchen, playing with his parents on a Costa Rican beach.

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Rakofsky v. The Internet

Date: 

05/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Over 70 Named Parties; Newspapers, Journalists, Bloggers, and other Individuals

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Large Organization
Media Company

Court Type: 

State

Court Name: 

Supreme Court of the State of New York; County of New York

Case Number: 

105573-2011

Legal Counsel: 

Eric Turkewitz of the Turkewitz Law Firm, also a defendant, and Marc J. Randazza of the Randazza Legal Group (for at least 16 individuals comprising 35 named defendants); Chetan A. Patil and Kevin T. Baine of Williams & Connolly, L.L.P. (for the Wash

Publication Medium: 

Blog
Email
Print

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

In March 2011, Joseph Rakofsky represented a defendant in a murder trial in Washington, D.C. According to court filings, on April 1 he withdrew as counsel, leading to a mistrial, at which time the presiding judge made a number of unflattering statements about Mr. Rakofsky's performance at trial. The Washington Post originally reported on the mistrial. Other publications, like the Washington City Paper, soon followed. From there, Mr. Rakofsky's story spread throughout the legal blogosphere, drawing comment from dozens of bloggers.

On May 11, Mr. Rakofsky filed suit in New York state court against the Post, the City Paper, and many bloggers who had written about him. At issue is the way Mr. Rakofsky's removal from the murder trial has been characterized: In his complaint, Mr. Rakofsky maintains that he left the murder trial by his own motion. Media coverage, like the Post article, focused on the judge's comments about Mr. Rakofsky's command of legal procedures, the fact that Mr. Rakofsky stated in court that he had never before tried a case, and an alleged email from Mr. Rakofsky to an investigator instructing the investigator to "trick" a witness into changing her testimony. The Post quotes the judge as telling Mr. Rakofsky that his trial performance was "below what any reasonable person would expect in a murder trial." A transcript of the judge's comments is now available. The bloggers sued by Mr. Rakofsky generally describe him as "too incompetent to handle the case," or otherwise suggest that the mistrial was due to Mr. Rakofsky's "inexperience."

Mr. Rakofsky initially sued 74 parties; the complaint often names both individual bloggers and their associated businesses. (For example, the complaint names both "The Law Offices of Michael T. Doudna" and "Michael T. Doudna, individually.")

The initial complaint contains two causes of action: (1) defamation, and (2) violations of sections 50 and 51 of the New York Civil Rights Law, alleging that defendants used Mr. Rakofsky's name and picture for commercial purposes without his consent.

On May 16, Mr. Rakofsky amended his complaint to add a count of intentional infliction of emotional distress and a count of interference with Mr. Rakofsky's contracts with other clients. The number of defendant parties also rose to 75.

As of June 1, 2011, some defendants apparently had not yet been served. 

On June 3, New York attorney Eric Turkewitz and Nevada attorney Marc Randazza, representing approximately 30 of the named defendants (including Mr. Turkewitz himself), motioned for a time extention for all defendants, to help organize what the motion calls "the oncoming blizzard of paperwork" as various defendants respond to the complaint. Mr. Turkewitz also submitted an affidavit in which he discussed the background of the case and the legal issues involved.

On June 4, New York attorney David Brickman, representing defendants Maxwell Kennerly and Mr. Kennerly's law firm The Beasley Firm, filed a motion to dismiss. The accompanying memorandum argues that Mr. Kennerly's blog post is a combination of opinion and fair reporting of court proceedings; thus, according to the memo, the case should be dismissed.

One June 13, Mr. Brickman, also representing Mirriam Seddiq and Jameson Koehler, filed two more motions to dismiss. The motions are mostly identical to Mr. Kennerly's motion.

Update:

6/13/2011 - Rakofsky's attorney, Richard Borzouye, files notice that on July 1 he will move to withdraw from the case. On the same day, acting pro se, Rakofsky files a memo opposing the pro hac admission of Marc Randazza.

6/15/2011 - Defendant Mace Yampolsky answers the complaint and asserts affirmative defenses including, inter alia, that the court lacks personal jurisdiction, that the complaint fails to state a claim for which relief can be granted, and that Rakofsky's lawsuit is frivolous. Yampolsky also seeks sanctions and attorneys' fees.

6/17/2011 - Marc Randazza and Eric Turkewitz file “reply affidavits” in support of Randazza's pro hac admission; the "affidavits" discuss communication between Rakofsky, Borzouye, and the defense.

6/22/2011 - Reuters and its reporter Daniel Slater file notice of a motion to dismiss. The motion and accompanying memo discuss the merits of the defamation and misappropriation claims.

On the same day, Eric Turkewitz files an affidavit, partially opposing Richard Borzouye's motion to withdraw as Rakofsky's attorney. Turkewitz expresses concern with the corporate plaintiff's impending lack of counsel.

6/24/2011 - Defendant Michael Doudna files notice of a motion to dismiss for lack of personal jurisdiction; the motion also seeks sanctions against Rakofsky for bringing a "frivolous" lawsuit in "bad faith." Harmony Kenney, who operated Doudna's website, files a supporting affidavit.

7/20/2011 - The Washington Post, its reporter Keith Alexander, and its researcher Jennifer Jenkins, move to dismiss. The motion discusses both substantive issues (including that the Post article is protected by the fair report privilege) and jurisdictional issues (long-arm jurisdiction over Alexander and Jenkins).

7/21/2011 - Georgia attorney Jeanne O'Halleran files a motion to dismiss, and an accompanying affidavit. The memorandum in support of the motion argues, inter alia, a lack of personal jurisdiction and that O’Halleran’s statements were a fair and accurate report, and asks for sanctions. The filings include a copy of the D.C. murder-trial transcript from the day before the mistrial, and a copy of the investigator's "motion" that raised ethical issues.

On the same day, the Washington City Paper and its associated defendants file a motion to dismiss on similar grounds, along with affidavits from its reporter, publisher, and parent company VP/CFO. The City Paper and O'Halleran are both represented by Davis Wright Tremaine.

7/22/2011 - The trial court grants Richard Borzouye's motion to withdraw as Rakofsky's attorney. The court stays proceedings until September 14, to allow Rakofsky to find a new attorney.

6/28/2012 - The court (Hagler, J.) holds a hearing on the pending motions to dismiss and on a motion by Rakofsky to submit a second amended complaint. The defendants, through selected representatives among defense counsel, and the plaintiffs, represented by a new attorney (Matthew Goldsmith, Esq.), argue the application to Rakofsky's claims of the fair report privilege, the republication privilege (for those defendants who republished an original account in the Washington Post), 47 U.S.C. § 230 (for one defendant who operates an online forum), Rakofsky's status as a public figure, and assorted jurisdictional issues. Plaintiffs' counsel also argue that new claims that they have proposed to add to the case are not duplicative of their defamation claim. At the end of the hearing, Judge Hagler took the motions under advisement, but stated to plaintiffs' counsel:

...Right now there's a very high standard to hold a newspaper liable for -- pardon the pun -- for libel, l-i-b-e-l. ... I don't see how you make that burden. And what I suggest is, is that you seriously speak to your client about withdrawing all these claims. And at the end of the day, I'm going to make a decision. I don't think it's going to be -- based upon this argument, and I'm not making a ruling now, it doesn't look like it's going to be in your favor.

(Transcript p. 91, ll. 10-20).

7/1/2012 - Rakofsky, in a letter to the court over his own name, argues that his proposed claim for negligence in his second amended complaint is not duplicative of his defamation claim.

1/2/2013 - After a six month period in which plaintiffs did not withdraw their claims as urged by the court at the June 28, 2012 hearing, the defendants represented by the Turkewitz Law Firm and Randazza Legal Group file a motion for sanctions against plaintiffs and attorney Goldsmith for vexatious conduct and frivolous claims.

 4/29/2013 - The court consolidated all pending motions and issued an order addressing these motions. The court dismissed claims for lack of personal jurisdiction against the defendants that so moved, finding that Rakofsky did not establish that the defendants engaged in any purposeful activity and minimum contacts in New York, such that New York's long-arm jurisdiction statute would apply. The court also granted the motions to dismiss on the defamation claim substantively, finding that the defendants' statements regarding the mistrial were not defamatory, the allegations of incompetence and substance of the allegations of bad ethical behavior were protected by New York's fair report privilege, and all other statements were either opinions based on disclosed facts or pure opinion. The parties that republished or summarized the Washington Post story were also found to have a valid wire service republication defense.

The court also dismissed the intentional infliction of emotional distress claim, finding no showing of the requisite "extreme and outrageous conduct," and the intentional interference with contract claim, finding that claim inadequately  pleaded. The court dismissed the misappropriation of name or likeness claims under N.Y. Civil Law §§ 50-51, finding this reporting under the "newsworthiness" exception to those claims.

The court denied Rakofsky's leave to amend the petition to add claims of injurious falsehood, prima facie tort, and negligence, finding the injurious falsehood and negligence claims duplicative, and finding that Rakofsky will be unable to to plead special damages for the prima facie tort.

The court also denied without prejudice Rakofsky's motions to discontinue the action against eight of the defendants, and for default judgment against seven of the plaintiffs, because Rakofsky did not adequately identify the parties at issue. As to the motion for default, the court advised Rakofsky to consider "if it is appropriate to seek this relief again based on the rulings herein." The court declined to issue sanctions sought by both sides.

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Righthaven LLC v. BuzzFeed, Inc.

Date: 

03/30/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

BuzzFeed, Inc; Gavin Laessig; Jonah Peretti

Type of Party: 

Media Company

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

United States District Court for the District of Colorado

Case Number: 

1:11-cv-00811

Legal Counsel: 

Kathryn Reed DeBord; Peter John Korneffel, Jr.

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Righthaven LLC, a Las Vegas company, filed a copyright infringement lawsuit in the U.S. District Court for the District of Colorado against BuzzFeed, Inc. (the operator of an internet news website), Jonah Peretti (the founder and CEO of BuzzFeed and the registrant of the domain name buzzfeed.com), and Gavin Laessig (an employee of BuzzFeed).  Righthaven alleges that the defendants reposted on the BuzzFeed website, without permission, a photograph of a TSA agent performing an enhanced pat-down check that was originally published in The  Denver Post.  In addition to seeking monetary damages, Righthaven has demanded that the court compel BuzzFeed’s domain name registrar to transfer control of the buzzfeed.com domain to Righthaven.

Defendants BuzzFeed and Peretti answered the complaint, denying Righthaven’s claims of copyright infringement and asserting numerous affirmative defenses to the complaint (including challenging Righthaven’s ownership of the copyright in the photo, claiming copyright abuse, asserting a lack of personal jurisdiction over the defendants and a lack of proper venue in Colorado, and objecting to transfer of the buzzfeed.com domain name as a remedy beyond the scope of the Copyright Act).  BuzzFeed and Mr. Peretti further asserted that valid service had not been made on the third defendant, Mr. Laessig.

Defendants BuzzFeed and Peretti also filed a class action counterclaim against Righthaven based upon its filing suit for copyright infringement in at least 275 cases, primarily in Nevada and Colorado.  The counterclaim seeks a declaratory judgment that the class/counterclaim plaintiffs’ use of the alleged copyrighted works was fair use and an injunction against Righthaven filing additional copyright lawsuits.  The counterclaim also includes claims for abuse of process and violation of Colorado’s unfair and deceptive trade practices statute, C.R.S. § 6-1-105, based upon Righthaven’s litigation history.  Specifically, the counterclaim alleges that Righthaven (1) failed to send the class/counterclaim plaintiffs any notice and takedown communication prior to filing suit, (2) sought relief to which it knew it was not entitled by seeking locking and transfer of domain names, (3) asserted ownership of copyrights that it did not own, (4) failed to investigate or adequately allege personal jurisdiction over the class plaintiffs, (5) failed to investigate whether the challenged uses of the copyrights were fair use, and (6) abused the legal system by using the threat of statutory damages and injunctive relief to extract monetary settlements.

Update:

5/19/2011:  After the filing of BuzzFeed’s answer and counterclaim, the court stayed the action (as well as all other Righthaven litigation in the District of Colorado) in response to a motion to dismiss in another Righthaven case in the district (Righthaven LLC v. Wolf et al., No. 1:2011-cv-00830) raising questions of subject matter jurisdiction.

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Content Type: 

Subject Area: 

Righthaven LLC v. Sumner

Date: 

01/27/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

William Sumner, DailyKix.com

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

US District Court for the District of Colorado

Case Number: 

1:11-cv-00222

Legal Counsel: 

Andrew J. Contiguglia, Contiguglia/Fazzone P.C.; Marc Randazza, Randazza Legal Group; Charles Van Horn, Berman Fink Van Horn

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against William Sumner and DailyKix.com.  Righthaven alleged that Sumner used a photo copied from the Denver Post without permission on the social media aggregator website DailyKix.com.

Sumner filed a motion to dismiss for lack of personal jurisdiction in response.   Sumner, a Georgia resident, argued that the court lacks general jurisdiction over him because neither he nor his website, which resides on a server in Kansas, has continuous and systematic contacts with Colorado.  And Sumner argued that the court lacks specific jurisdiction over him because he never purposefully availed himself of operating in Colorado.  Sumner noted that the allegedly infringing photograph was auto-populated by the DailyKix's automatic aggregation algorithyms, and not by any intentional activity on his part.

Sumner also argued that DailyKix.com, as a website without any sort of associated business entity, should be dismissed as an improper defendant because it lacks the capacity to be sued.

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Subject Area: 

Marshals v. ahowardmatz.com

Date: 

07/09/2010

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Author of the site.

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

Jusge A. Howard Matz

Legal Counsel: 

Pro Se

Publication Medium: 

Website

Relevant Documents: 

Disposition: 

Material Removed

Description: 

The nature of the threat is a secret, known only to judge A. Howard Matz and Agent Smith.The complaint was on July 9, 2010. The site was removed on or about October 7, 2010.

Jurisdiction: 

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Subject Area: 

Back in Court, GateHouse Gives Not Great News Based on Creative Commons License

GateHouse Media, Inc., a publisher of local newspapers is suing That's Great News, LLC (TGN) in Illinois federal district court, claiming breach of contract and copyright infringement.

Jurisdiction: 

Content Type: 

Subject Area: 

GateHouse Media v. That's Great News

Date: 

06/30/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

That's Great News, LLC

Type of Party: 

Media Company

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

U.S. District Court for the Northern District of Illinois, Western Division

Case Number: 

3:10-cv-50165

Publication Medium: 

Other

Relevant Documents: 

Status: 

Pending

Description: 

On June 30, 2010, GateHouse Media, Inc., a publisher of local newspapers around the country, sued That's Great News, LLC (TGN), in the U.S. District Court in the Northern District of Illinois. The complaint alleged breach of contract, copyright infringement, trademark infringement, false advertising, and unfair competition.

TGN sells plaques with article reprints to the people and companies featured in the articles. According to allegations in the complaint, TGN had reprinted copyrighted materials from GateHouse's newspapers, including the Illinois paper Rockford Register Star,without authorization. Also according to GateHouse, TGN displayed GateHouse materials on its own web site "as an example of the reprints it sells," which violated the noncommercial and no-derivative works limitations of the Creative Commons license.

Furthermore, GateHouse argued that TGN's conduct violated the terms of a settlement agreement the parties signed on or about October 8, 2008.  According to GateHouse's complaint, GateHouse sent TGN a cease and desist letter on September 10, 2008, after which TGN agreed "to permanently cease the unauthorized copying of original content appearing in any GateHouse newspapers or websites."

On July 26, 2010, TGN moved to extend the time to file its answer until August 9, 2010. 

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Blog Post

CMLP Notes: 

I'm not sure I treated this threat properly. I tried to write a sentence or two reagrding each of GateHouse's claims since there are so many of them.

Major League Baseball v. Charter Communications Inc.

Date: 

06/03/2010

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Charter Communications Inc.

Type of Party: 

Large Organization

Type of Party: 

Large Organization

Court Type: 

State

Court Name: 

Supreme Court of the State of New York, New York County

Case Number: 

107256/2010

Publication Medium: 

Forum

Status: 

Pending

Description: 

On June 3, 2010, Major League Baseball filed a petition for a court order requiring Internet service provider Charter Communications Inc. to disclose the names of users who posted "pornographic," and "indecent" material on MLB.com forums, Reuters reports.

Major Legaue Baseball traced the IP addresses of the offensive posters to Charter Communications and seeks the names of the posters so that it can pursue "appropriate action" against them. MLB.com has tried and failed several times to ban the "obscene" posts, many of which involve threats of unwanted sexual acts against other forum users, and images of genitalia, according to Reuters

 

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Court Filings

CMLP Notes: 

6/9/10 9.42am: I could not track down the petition for the court order so I relied heavily on the Reuters article. MH

Williams-Sonoma, Inc. v. Knock Off Wood

Date: 

03/04/2010

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Ana White d/b/a Knock Off Wood

Type of Party: 

Large Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Material Removed

Description: 

On March 4, 2010, a lawyer representing Williams-Sonoma, Inc. sent a demand letter to Ana White, a rural Alaskan housewife and publisher of Knock Off Wood, a blog that teaches readers how to build designer-looking furniture at home.  The letter claimed that White's blog infringed and diluted Williams-Sonoma's Pottery Barn trademarks by referring to Pottery Barn products names in the course of explaining how to make similar looking products. The letter also claimed that White infringed Williams-Sonoma's copyrights in catalog photographs by displaying them on the blog. 

White took the letter in good spirits: 

This is perhaps the biggest compliment that I have ever received!  A gigantic corporation  is THREATENED by a housewife that lives 100 miles from a stoplight, 1000s of miles from a Pottery Barn store, most of the time in her bathrobe (right now included), who writes a simple blog that makes NO money.

And you should really pat yourself on the back, too!  You building furniture has made this gigantic corporation take note and hand write a letter! (source)

White decided to take down the photographs and product name references, presumably ending the matter. 

Jurisdiction: 

Content Type: 

Subject Area: 

Barrow County School District v. Payne

Date: 

08/01/2009

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

Ashley Payne

Type of Party: 

Government

Type of Party: 

Individual

Legal Counsel: 

Richard Storrs

Publication Medium: 

Social Network

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

In August 2009, the Barrow County School District allegedly forced Apalachee High School English teacher Ashley Payne to resign over postings on her Facebook page.  Apparently, the school objected to photos from Payne's vacation to Europe showing her holding wine and beer, as well as a posting indicating that she was "headed out to play Crazy Bitch Bingo" at a local bar.  The school stated that it was acting in response to a complaint from a parent, but, according to Payne, her Facebook page was private and she hadn't "friended" any of her students. Payne subsequently sued the school district, alleging violations of state labor law.

Note: The status of this entry is marked "concluded" because the disciplinary action against Payne is complete, but her lawsuit against the school district remains pending as of the time of writing, March 23, 2010.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

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