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Myrtle Beach Area Chamber of Commerce v. "Elmer Fudd"

Date: 

09/04/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Doe a.k.a "Elmer Fudd"

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Horry County Court of Common Pleas, South Carolina

Legal Counsel: 

Pro Se

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Subpoena Enforced

Description: 

On September 4, 2009, the Myrtle Beach Area Chamber of Commerce sued  "Elmer Fudd," an anonymous commenter on TheSunNews.com.  From Popehat (quoting the original Sun News article that is no longer available):

The posts, which appeared on the comment sections of several stories last month, claimed the Horry County Sheriff's Department had conducted raids at the chamber and other businesses. The posts also claimed that computers were seized from those businesses, although a sheriff’s department spokesman said no raids occurred and no computers were seized.

"The claims were absolutely false," said Cherie Blackburn, a lawyer representing the chamber of commerce. Blackburn termed the posts "a vicious cyber defamation campaign" in court documents filed Friday in Conway.

The publisher of TheSunNews.com notified "Elmer Fudd" that, pursuant to a subpoeana, she would reveal his identity to the Chamber unless he objected to the subpoena. The newspaper is not a party to the suit. "Elmer Fudd" filed a motion protesting the release of his information, arguing that the subpoena violated his First Amendment right to speak anonymously and that he did not have sufficient time to find an attorney.  Fudd did not appear through an attorney at a December hearing on the Chamber's motion to compel disclosure of his identifying information.

According to TheSunNews.com, the court signed an order on December 4 compelling it to turn over identifying information to the Chamber.  The SunNews.com did not have records identifying the poster's name, but turned over an email address "noadtax@gmail.com."  (There appears to be a related facebook page, No Ad Tax.)

TheSunNews.com reported on December 5 that Grand Strand Chamber of Commerce founder Ward Shepherd named former Myrtle Beach Mayor Mark McBride as "Elmer Fudd," after being subpoenaed by an attorney for the Myrtle Beach Area Chamber.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

-MW reviewing 10/. cannot find court documents. 

Priority: 

1-High

Abshire v. Pearl

Date: 

01/01/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David Pearl

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

67th District Court of Tarrant County (Texas); Second District Court of Appeals (Texas)

Case Number: 

67-222495-07 (trial level); 02-08-00286-CV (appellate level)

Legal Counsel: 

Gregory S. Gober

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Dale Abshire filed a lawsuit in a Texas state court against David Pearl after Pearl posted a series of allegedly defamatory responses on the Yahoo! Finance AXA Internet message board in response to Abshire's posts. According to the appellate decision in the case, Pearl's post cited sexual harassment as a reason for Abshire's termination from his previous employment.

Pearl moved to dismiss the lawsuit, arguing that the court had no personal jurisdiction over him because he resided in New York and had no ties with Texas other than mentioning it in his message board posting.  The trial court denied the motion, and Pearl appealed.

A Texas appellate court reversed the lower court decision and dismissed the case, ruling that Pearl had not "purposefully availed" himself of the privilege of conducting activities in Texas. Rather, the court found that "Pearl's internet connections with Texas were in fortuitous in response to the postings of a Texas resident, Abshire."

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Priority: 

1-High

Lemkins v. Lexington Herald-Leader

Date: 

11/09/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Lexington Herald-Leader

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

State

Court Name: 

Fayette Circuit Court

Publication Medium: 

Website

Description: 

On November 9, 2009, Kentucky attorney Astrida Lemkins issued a subpoena to the Lexington Herald-Leader, which operates the website Kentucky.com, seeking the identity of an anonymous commenter.  The subpoena was issued in connection with a defamation lawsuit filed by Lemkins against the commenter in state court.

At issue in the lawsuit are comments made by a commenter called "supercalifragilistic"to a September 18 article about Lemkins' client, accused killer Steve Nunn.  According to local television station WKYT, the comments contained claims that Lemkins "was mentally ill," had threatened to kill herself and had urged her client to "really really really get a new lawyer."

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

Lemkins v. Doe

Date: 

11/09/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Fayette Circuit Court

Publication Medium: 

Website

Status: 

Pending

Description: 

On November 9, 2009, Kentucky attorney Astrida Lemkins filed a defamation lawsuit in state court against an anonymous individual that posted comments about her on the website Kentucky.com.

At issue in the lawsuit are comments made by a commenter called "supercalifragilistic" to a September 18 article about Lemkins' client, accused killer Steve Nunn.  According to local television station WKYT, the comments contained claims that Lemkins "was mentally ill," had threatened to kill herself and had urged her client to "really really really get a new lawyer."

After filing her lawsuit, Lemkins issued a subpoena to the Lexington Herald-Leader, which operates Kentucky.com, seeking the commenter's identity.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

Zuleger v. Klocko

Date: 

04/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Paul Klocko

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

Dean Zuleger, the Village Administrator in Weston, Wisconsin, sent a letter to Paul Klocko, a local businessman, demanding that he cease making anonymous derogatory statements about him on the website for the Wausau Daily Herald.  Klocko had posted his comments on the Daily Herald's website after Zuleger was named Person of the Year by the paper.  According to the Associated Press:

Readers anonymously flooded the Wausau Daily Herald's Web site with comments bashing Zuleger's salary, his management style, his weight. One person suggested his third chin should have been nominated.

''I have just two words for Dean Zuleger, and they are ... A) anger management. B) salad bar. C) Rod Blagojevich. D) all of the above. The correct answer is D.,'' one posting read.

Zuleger asked the Daily Herald for the identity of the user behind the comments, and the newspaper complied with his request by releasing the e-mail address associated with Klocko's username.  Zuleger contacted the Daily Herald and demanded to know the identify of the commenter and the paper handed over one critic's e-mail address.

Zuleger then sent a letter on his official stationery, telling Klocko to stop the personal attacks and ''come out from behind the cloak'' and meet him.

The Daily Herald later apologized to Klocko for revealing his identity and the paper's corporate parent, Gannett Co., has clarified its policies on anonymous speech, stating that it will release information only if ordered by a court or if a comment contains a threat of imminent harm.

No lawsuit has been filed.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

EK - editing [11/28/09]

Priority: 

1-High

Darnell v. Dobrott

Date: 

06/10/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Heather Dobrott

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

193rd Judicial District Court, Dallas County, Texas

Case Number: 

No. 08-06317

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Matthew J. Kita; James H. Moody III; Thomas Foster

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Injunction Denied

Description: 

In June 2008, Tim Darnell of Advantage Conferences sued Heather Dobrott in Texas state court for comments she posted about his business under the pseudonym "soapboxmom" on forum site scam.com and other websites.  Darnell's petition and request for temporary restraining order sought injunctive relief and damages against Dobrott on theories of defamation, trade libel, tortious interference, negligence, and invasion of privacy.  

The court initially granted Darnell a temporary restraining order, but in a June 23, 2008 hearing it dissolved the restraining order and denied Darnell's request for a temporary injunction, stating that "prior restraints on speech are presumptively unconstitutional and I have not heard anything that would indicate . . . why the relief requested would take it out of that presumption."

Later, the court granted Dobrott's motion for summary judgment, which appears to have been unopposed.

Jurisdiction: 

Content Type: 

Subject Area: 

United States v Indymedia.us

Date: 

01/23/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Kristina Clair

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Indiana

Case Number: 

09-01-DLP-15-10

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Kevin Bankston - Electronic Frontier Foundation

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In January 2009, Kristina Clair received a grand jury subpoena issued upon application of the United States Attorney for the District of Indiana, Timothy M. Morrison. Ms. Clair is a Linux administrator living in Philadelphia who provides free server space for Indymedia.us, an independent news aggregation site with a left-of-center activist orientation. 

The subpoena demanded "all IP traffic to and from www.indymedia.us" on June 25, 2008.  It instructed Ms. Clair to "include IP addresses, times, and any other identifying information," including email addresses, telephone numbers, records of session times and durations, physical addresses, registered accounts, and financial information.  The subpoena also prohibited Ms. Clair from disclosing "the existence of this request unless authorized by the Assistant U.S. Attorney." 

Ms. Clair contacted the Electronic Frontier Foundation, which agreed to represent her.  Kevin Bankston of EFF sent a letter to Doris L. Pryor, the Assistant United States Attorney on the case, explaining that Ms. Clair did not possess the information requested, objecting that the subpoena was not personally served on Ms. Clair, and arguing that disclosure of the requested information would require a court order under federal electronic privacy law.  Further, the letter pointed out that grand jury secrecy requirements do not reach witnesses or prospective witnesses, and therefore the government had no basis to restrain Ms. Clair's speech about the existence of the subpoena.

U.S. Attorney Morrison replied 12 days letter with a one sentence letter informing Bankston that the subpoena had been withdrawn.

Jurisdiction: 

Content Type: 

Subject Area: 

United States v. Weaver

Date: 

06/11/2009

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Jeffrey Lynn Weaver

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Virginia

Case Number: 

7:09-cr-00032

Legal Counsel: 

Fay Francis Spence (Federal Public Defender's Office WDVA); LLoyd Bradford Bradford (L. Brad Bradford P.C.)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Convicted

Description: 

On June 11, 2009, Jeffrey Weaver was criminally indicted for statements he posted to InfoWars.com that threatened a California transit police officer and threatened the officer's family.  InfoWars.com is a website run by talk radio host Alex Jones.

According to the affidavit by the FBI officer who investigated the case, on January 7, 2009, an anonymous poster using the name "FuckThePIGS" posted a comment on InfoWars.com that identified Officer Johannes Mehserle by name and address, and made threatening statements about killing officer Mehserle and his wife and baby.  Officer Mehserle is a former Bay Area Transit Authority (BART) officer who has been criminally charged for a controversial shooting in January, 2009, that was caught on video.

Using IP records provided by an InfoWars administrator, the FBI was able to identify the poster as Jeffery Weaver, of Roanoke, Virginia.  Weaver was indicted in the United States District Court for the Western District of Virginia.

On August 14, 2009, Weaver pleaded guilty to one count of transmitting in interstate commerce a threat to injure a person, as well as one count of willful copyright infringement.  His sentencing hearing is set for December 14, 2009.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

RB 11/12/09- No info available in docket about the copyright infrigement charge.  Likely arose out of something found on his computer which was confiscated in the search.  

Priority: 

1-High

Ness v. Rondberg

Date: 

03/19/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Terry Rondberg; Michelle DePalma

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the State of California, San Diego County; California Court of Appeal, Fourth Appellate District - Division One

Case Number: 

No.37-2008-00052535-CU-DF-NC (trial level); D053855 (appellate level)

Legal Counsel: 

Carlos Negrete

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

Peri Ness, the founder of Synergy Yoga, filed a lawsuit in California state court against Terry Rondberg, a former student of Synergy Yoga, and Michelle DePalma, a former teacher there, after they created TruthAboutSynergyYoga.com.  According to an appellate decision in the case, the website accused Synergy Yoga of being a cult and Ness of being a cult leader.

The trial court granted Ness a temporary restraining order, which prevented Rondberg and DePalma from publishing and maintaining TruthAboutSynergyYoga.com. The website no longer hosts content, but promises to return.

Rondberg and DePalma filed a special motion to strike the complaint under California's anti-SLAPP statute (Code Civ. Proc., § 425.16).  The court denied the motion on procedural grounds.  Rondberg and DePalma appealed, and a California appellate court affirmed the trial court's ruling.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

EK - editing [11/05/09]

Priority: 

1-High

United States v. Stop Huntingdon Animal Cruelty, USA, Inc.

Date: 

05/20/2004

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Stop Huntingdon Animal Cruelty, USA, Inc., Kevin Kjonas, Lauren Gazzola, Jacob Conroy, Joshua Harper, Andrew Stapanian, Darius Fullmer

Type of Party: 

Government

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Jersey; United States Court of Appeals for the Third Circuit

Case Number: 

04-cr-00373 (trial); 06-4447 (appeal)

Legal Counsel: 

H. Louis Sirkin, Michael A. Armstrong (for Lauren Gazzola); David L. Rhoads (trial), Eric Schneider (trial), Isabel McGinty (trial), Robert G. Stahl (trial and appeal), Laura K. Gasiorowski (appeal) (for Kevin Kjonaas); James Murphy, Peter Goldberger

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Convicted

Description: 

On March 2, 2006, Stop Huntingdon Animal Cruelty (SHAC) and six of its members were convicted of terrorism and Internet stalking under the Animal Enterprise Protection Act. The group was charged with engaging in various forms of harassment and intimidation of people associated with Huntingdon Life Sciences in an attempt to shut down the company's animal testing activities.

During the trial, the government did not present evidence that the individual defendants directly participated in any acts of vandalism and violence. Instead, the prosecution pointed to web postings by, and video of, the members celebrating the acts and using the word "we" to claim credit for the conduct.

On appeal, the Court of Appeals for the Third Circuit affirmed the conviction on October 14, 2009, finding that the Animal Enterprise Protection Act was constitutional on its face and as applied to the defendants. In particular, the court found that links on the SHAC website to tools that facilitated (illegal) virtual sit-ins were clearly intended to incite imminent, lawless conduct, and that such conduct was likely to occur, and thus were not protected speech.

It is not clear whether the defendant's have petitioned the Supreme Court for a writ of certiorari.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Under review, HF 11/4/2009

SB 11/20/09 -- to do, somebody should check for cert and mark concluded if there was no petition.  Can just check westlaw in a month or so. 

Priority: 

1-High

Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty, USA Inc.

Date: 

06/03/2003

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Stop Huntingdon Animal Cruelty, USA, Inc.; Animal Liberation Front; David Agranoff; Kevin Kjonaas; Does 1 through 100

Type of Party: 

Individual
Large Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of the State of California, San Diego County; California Court of Appeal, Fourth District

Case Number: 

GIC812248 (trial court); No. D042950 (appeal)

Legal Counsel: 

Christine L. Garcia - Animal Rights Law Office

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Injunction Issued

Description: 

Huntingdon Life Sciences (HLS) and one of its employees filed a lawsuit in California state court against Stop Huntingdon Animal Cruelty, USA (SHAC), the Animal Liberation Front (ALF), and animal rights activists associated with both groups.  The plaintiffs sought an injunction against protest activities at the HLS employee's home, and against posting information about demonstrations and identifying information about HLS employees on SHAC's website.

The Superior Court issued a preliminary injunction prohibiting SHAC from placing or maintaining on any website any information regarding any HLS employee or business associate, among other things.

SHAC moved to strike the complaint pursuant to California's anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16. The trial court denied the motion because the issuance of a preliminary injunction indicated a likelihood of success on the claims.

On appeal, the California Court of Appeal reversed the Superior Court ruling on the anti-SLAPP motion and ordered it to dismiss a number of the claims, leaving others intact.

In addition, the appellate court ordered that the preliminary injunction be more narrowly tailored. According to the appellate court, the injunction improperly required removal of all references to HLS employees, including those in newspaper articles republished on the SHAC website. The court further explained that, while SHAC could be enjoined from publishing the names, addresses, other identifying information of HLS employees, or reports of illegal activity, SHAC must be allowed to publish legitimate news items about HLS and its employees.

It is not clear what happened after the case returned to the trial court.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Under review HCF (10/19/2009)

Priority: 

1-High

Florida v. RateMyCop.com

Date: 

05/01/2008

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

RateMyCop.com

Type of Party: 

Government

Type of Party: 

Organization

Court Type: 

State

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

The Tallahassee Police Department subpoenaed records from RateMyCop.com after an anonymous user posted the name, address, and telephone number of a Tallahassee police officer on the site, according to Wired. When the authorities obtained identifying information for the poster, they arrested and charged Robert Brayshaw with a violation of Fla. Stat. § 843.17. Section 843.17 prohibits publication of a law enforcement officer's residential address or telephone number with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his or her duties.

A state court judge ultimately dismissed the charges against Brayshaw with prejudice for failure to comply with Florida's speedy trial requirements. Brayshaw then filed a complaint in federal court in Florida, seeking a declaration that Section 843.17 violates the First Amendment. 

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

EK - editing [10/23/2009] (also related entry State of Florida v. Brayshaw: http://www.citmedialaw.org/threats/state-florida-v-brayshaw)

Priority: 

1-High

Florida v. Brayshaw

Date: 

05/01/2008

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Robert A. Brayshaw

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Legal Counsel: 

James Green

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Subpoena Enforced

Description: 

Florida state authorities charged Robert Brayshaw with a misdemeanor for violating Fla. Stat. § 843.17 after he anonymously posted the name, address, and telephone number of a Tallahassee Police Department officer on RateMyCop.com.  Section 843.17 prohibits publication of a law enforcement officer's residential address or telephone number with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his or her duties.  The Tallahassee police obtained Brayshaw's identity after subpoenaing records from RateMyCop.com and Brayshaw's ISP, according to Wired.

Prosecutors voluntarily dropped the charges on December 9 and then refiled 10 days later, according to an article on RateMyCop.com. The state court judge ultimately dismissed the charges with prejudice for failure to comply with Florida's speedy trial requirements. Brayshaw then filed a complaint in federal court in Florida, seeking a declaration that Section 843.17 violates the First Amendment. According to Brayshaw's complaint, the police officer's name and address are publicly available on the Leon County Clerk of Court's website.  On April 30, 2010, Judge Smoak issued a decision striking down Section 843.17 as unconstitutional under the First and Fourteenth Amendments.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

EK - editing [10/23/2009]

EK - updating [11/13/2009]; also look at related entry State of Florida v. Ratemycop.com

Priority: 

1-High

Jenzabar, Inc. v. Long Bow Group, Inc.

Date: 

05/14/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Long Bow Group, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Superior Court of the Commonwealth of Massachusetts, Suffolk County

Case Number: 

No. 07-2075-H

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Paul Alan Levy, Michael Kirkpatrick - Public Citizen Litigation Group; T. Christopher Donnelly, Adam B. Ziegler - Donnelly, Conroy & Gelhaar, LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In 2007, Jenzabar, a company that makes software systems for colleges and universities, sued Long Bow Group, the maker of a documentary film about the 1989 student protests at Tiananmen Square called The Gate of Heavenly Peace. The complaint included claims for trade libel, defamation, and various trademark violations. 

Long Bow publishes the TSquare website, which features information and commentary about the events and people depicted in the film. Among other things, it includes articles and background information about Chai Ling, the founder of Jenzabar who was a student leader during the Tiananmen protests and who was portrayed critically in the film.

According to court documents, Chai Ling, Jenzabar, and another Jenzabar executive, Robert A. Maginn, Jr., claimed that Long Bow defamed them on the TSquare website by publishing an "excerpt from an August 2003 Boston Globe column stating that 'fiveformer executives have sued Jenzabar, including the former CEO, whoaccused Chai and Maginn of "a number of unethical, inappropriate,and/or illegal actions."'"  Slip op., at 2-3. The former CEO referenced in the Globe article eventually retracted his allegations anddismissed his lawsuit.

The plaintiffs also claimed that Long Bow violated federal and state trademark laws by using their trademarks—JENZABAR, JENZABAR.COM, JENZABAR.NET, LING CHAI AND CHAI LING—as metatags for those pages discussing Chai Ling and Jenzabar.

In response to Long Bow's motion to dismiss the complaint, in August 2008 the court dismissed the defamation and trade libel claims, ruling that Long Bow had no continuing duty to investigate the accuracy of the Boston Globe article posted on its site.  The court denied the motion to dismiss the trademark claims, but expressed doubt as to their viability:

Although Jenzabar seems unlikely to prevail on this claim because of the dissimilarity of Long Bow's business, Jenzabar has adequately pled the likelihood of confusion element, which is all that is required to survive a motion to dismiss. 

Slip op., at 7.

Long Bow filed a motion for summary judgment in October 2009, arguing that use Jenzabar's trademarks in its metatags does not create a likelihood of consumer confusion, and that the First Amendment protects its use of the metatags because they are directed to Long Bow's truthful and noncommercial speech about Jenzabar and Chai Ling.

In November 2009, Jenzabar filed a motion to disqualify Public Citizen Litigation Group as Long Bow's counsel based on two blog posts Public Citizen lawyers published about the case—Jenzabar Joins Trademark Abusers Hall of Shame (CL&P Blog) and Faulty trademark case pits Tiananmen Square protest leader against filmmaker (Citizen Vox).  Jenzabar argued that the posts will "create controversy" and "cause prejudice to Jenzabar," and that anylawyer who engages in such blogging is in violation of Massachusettscourt rules. Paul Levy of Public Citizen publicly responded to these claims on the CL&P Blog, characterizing the motion as a further attempt to suppress speech.

Update:

12/7/10 -  Superior Court Judge Cratsley granted defendant's motion for summary judgment on the ground that there was no evidence supporting the claim that any reasonable Internet user might be confused about whether Jenzabar was the sponsor of Long Bow's web site.

9/6/11 - Jenzabar appealed the grant of defendant's motion for summary judgment.

10/17/11 - Jenzabar filed its opening brief with the Massachusetts Appeals Court.

12/22/11 - The Boston Patent Law Association filed an amicus brief urging the Appeals Court to recognize "initial interest confusion" as a valid doctrine under trademark law.

1/18/12 - Appellee Long Bow filed its brief with the court. The Digital Media Law Project filed an amicus brief urging the court to reject application of trademark law to critical, communicative uses of trademarks. 

3/2/12 - Appellant Jenzabar filed a reply brief with the court, addressing the claims from Appellee Long Bow and the Digital Media Law Project.

10/18/12 - The Massachusetts Appeals Court affirmed summary judgment in favor of Long Bow, holding that: (1) Jenzabar's infringement claim failed because it did not present sufficient evidence to support a finding of likelihood of confusion; (2) allegations that Jenzabar's trademark was used for the purposes of critical commentary could not support a dilution claim; and (3) the fact that Long Bow's website did not possess a tendency to deceive consumers was fatal to its Massachusetts statutory claim for unfair and deceptive trade practices.

11/2/12 - Jenzabar filed an Application for Further Appellate Review with the Massachusetts Supreme Judicial Court. 

11/19/12 - Long Bow filed an opposition to Jenzabar's application.

12/19/12 - The Supreme Judicial Court denied the application for further appellate review.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Edited 1/24 to include updated brief - AFS

Taylor Building Corp. v. Benfield

Date: 

08/05/2004

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Eric Benfield; Net Access Corporation

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Ohio

Case Number: 

1:04cv510

Legal Counsel: 

Todd Hunter Bailey - Frost Brown Todd LLC

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Material Removed
Settled (total)

Description: 

On August 5, 2004, Taylor Building Corporation of America, a residential construction business, sued Eric Benfield in Ohio federal court alleging libel, tortious interference, and misappropriation of trade dress. The dispute revolved around Benfield's publication of a self-described "gripe site" that included statements and photographs about a Taylor construction project that was the subject of a contract dispute between Taylor and Benfield's parents.

On motion for summary judgment in June 2007, the court dismissed the claims of tortious interference, trade dress infringement, and the libel claims relating to all but two potentially defamatory statements. Ultimately, the parties settled and the case was dismissed in August 2007. 

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

HF Reviewing 11/2

Priority: 

1-High

North Dakota v. Nodland

Date: 

09/17/2009

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Chad "Chet" Nodland

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

North Dakota South Central Judicial District Court

Case Number: 

08-8-C-02354

Legal Counsel: 

Pro Se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

During a lawsuit brought against North Dakota and the North Dakota's Workforce and Safety Insurance (WSI) by Dr. James Long , the State subpoenaed Chad Nodland, a blogger who maintains NorthDecoder.com. In the lawsuit, Long claimed that he had been unfairly dismissed after shedding light on what he believed to be illegal conduct by WSI.

According to Nodland's post about the subpoena he received, the subpoena asked Nodland to turn over any emails he exchanged with Long, cell phone records and notes that show or detail any coversations he may have had with Long, and blogs authored by Long. Nodland then sent a letter to the State's attorneys, objecting to the subpoena for various reasons, including the protection he had under North Dakota's shield law.

Nodland has yet to hear from the State's attorneys after sending his reply.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

Beverly Stayart v. Yahoo!, Inc. et al

Date: 

02/05/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Yahoo!, Inc.; Overture Services, Inc. d/b/a Alta Vista; Various, Inc. d/b/a Friendfinder.com

Type of Party: 

Individual

Type of Party: 

Organization
Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District Court of Wisconsin

Case Number: 

2:09-cv-0116

Legal Counsel: 

Christian S. Genetski, David Tonisson - Sonnenshein Nath & Rosenthal LLP (for Yahoo!, Inc. and Overture Services, Inc.); John F. Hovel, Stephen E. Kravit, Melissa S. Blair - Kravit, Hovel & Krawczyk S.C. (for Various, Inc.)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In February 2009, Beverly Stayart filed a lawsuit against Yahoo! and two other internet services, Altavista and AdultFriendFinder, for unauthorized use of her name on the Internet. She claimed false designation of origin and false endorsement under the Lanham Act, as well as violation of her statutory and common law rights to privacy.

The dispute originated when Ms. Stayart inputted her name as a search term at yahoo.com and altavista.com and was bombarded with spam sites purporting to sell Cialis (and other drugs to treat erectile dysfunction) or containing explicit banner ads for adultfriendfinder.com.  These sites contained her name either in their “spamdexing” text or their nonsensical URLs (e.g. jewellery-makin-doorway.orge.pl/bev-stayart.html).

Ms. Stayart tried to rectify the situation by notifying the search engines of the misleading results and requested that they be removed. When they failed to take any action, Ms. Stayard filed suit. 

In September 2009, the federal district court in Wisconsin dismissed the case.  The court held that Stayart failed to state a claim under the Lanham Act, and alternatively that Section 230 of the Communications Decency Act barred her claim, although it is nominally an intellectual property claim outside Section 230's scope. After dismissing the federal claims, the court declined supplemental jurisdiction over the state law claims.

Stayart filed a notice of appeal on September 24, 2009.

Update:

11/25/2009: Stayart filed her appellate brief, arguing that she did have standing under the Lanham Act  because of her work for charity; alternatively, she argued that she should be able to amend her complaint to pursue state law claims under federal diversity jurisdiction.

2/10/2010: Appellees filed their brief, arguing that Stayart had shown no intention of using her name for commercial activity and even if she did, Section 230 would bar her claims.

2/19/2010: Stayart filed her reply brief.

9/30/2010: The Seventh Circuit affirmed the trial court, holding that Stayart does not have a commercial interest in her name, despite her charitable activities. Therefore, the Court held she that does not have standing under the Lanham Act. It also held that the trial court did not abuse its discretion when it denied her leave to amend her complaint, because it found that allowing her to pursue her state law claims under diversity jurisdiction would be "futile."

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Stylianou Oct/09

Brittany is updating this one -- 07/2011, BGS

Priority: 

1-High

Straub v. Hair Transplant Network

Date: 

07/24/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

ABC and XYZ Corporations, HairTransplantNetwork.com, Hennessey Patrick, John Doe 1-5, Mary Roe 1-5, Media Visions Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of the State of California, Los Angeles County

Case Number: 

BC395051

Publication Medium: 

Forum
Website

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Dr. Paul Straub filed a defamation lawsuit against Media Visions Inc., the company behind HairTransplantNetwork.com, on the grounds that he was removed from the website's recommended doctors list and that critical comments were posted on the website's forum.

HairTransplantNetwork.com operates two affiliate websites, RegrowHair.com, which serves as its Q&A Blog, and Hair-Restoration-Info.com, which serves as a forum for patients to discuss their experiences. HairTransplantNetwork.com suspended its recommendation of Dr. Straub in the summer of 2007. Dr. Straub requested that his recommendation be reinstated and that any critical forum posts be deleted.

When HairTransplantNetwork refused to take down the forum posts and to reinstate his recommendation, Dr. Straub filed a lawsuit. Dr. Straub voluntarily dismissed the case eight months later, in April 2009.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Stylianou Oct/09

Priority: 

1-High

Jones v. Above The Law

Date: 

10/27/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David Minkin; David Lat; Dead Horse Media, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

09-23256

Legal Counsel: 

Marc John Randazza

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In October 2009, Donald Marvin Jones, a law professor at the University of Miami School of Law, sued David Lat and David Minkin, editor and publisher of the popular law gossip blog Above the Law (ATL), as well as ATL's parent company, Dead Horse Media. The complaint seeks $22 million in damages and an injunction "enjoining Abovethelaw to remove all articles and posts concerning Professor Jones."

The lawsuit revolves around a series of posts ATL published after Jones was arrested in 2007 on suspicion of trying to solicit sex from a prostitute. In these posts, ATL made fun of Jones—calling him "The Nutty Professor"—and posted a screenshot of the "incident report" for his arrest.  In one post, Lat published a photo/graphic mash-up collage forwarded to him by a reader that—according to the complaint—"depict[ed] Professor Jones as a drug dealer and a pimp or both."  The graphic featured one photograph of Jones superimposed on a $20 bill and another talking up a group of prostitutes. 

According to the National Law Journal, Jones pleaded not guilty to the solicitation charge, and the authorities later dismissed the charge and expunged it from Jones' record.

Jones' complaint alleges that ATL infringed his copyright by publishing the mash-up collage because a photo in it was "stolen from the UM website without permission." There is no allegation that Jones, as opposed to the University, owns the copyright in the photo or that the photo is registered with the copyright office. Jones also alleges that publication of the collage casts him in a false light by portraying him as a "dope dealer, pimp, and criminal."

Finally, the complaint alleges that ATL invaded his privacy and cast him in a false light by publishing the "incident report" despite dismissal and expungement of the solicitation charges.  Jones' claim that ATL made "private records public" is complicated by Fla. Stat. § 119.105, which provides that "[p]olice reports are public records except as otherwise made exempt or confidential," and says that, even in the case of exempt or confidential police reports, "[t]his section does not prohibit the publication of such information to the general public by any news media legally entitled to possess that information."

On November 4, 2009, after much criticism of the lawsuit in the legal blogosphere, Professor Jones voluntarily dismissed the action.

Jurisdiction: 

Content Type: 

Subject Area: 

New York v. Burgoyne

Date: 

01/01/2009

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Cindy Burgoyne

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Supreme Court of the State of New York, Orange County

Publication Medium: 

Forum

Status: 

Concluded

Disposition: 

Convicted
Subpoena Enforced

Description: 

Cindy Burgoyne pleaded guilty to a misdemeanor after posting confidential information about grand jury proceedings on discussion forum on the Times Herald-Record's website, using the pseudonym "Nancy Drew." Burgoyne had served on the grand jury investigating the death of a suspect in police custody. Her July 2008 posting on the newspaper's website came months after her service ended, according to the Times Herald-Record.

The Orange County District Attorney's office subpoenaed the Times Herald-Record to obtain information about Burgoyne's identity. After pleading guilty, she paid a small fine.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

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