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Bauer v. Wikimedia

Date: 

01/31/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Wikimedia Foundation; Jenna Glatzer; MacAllister Stone; James D. MacDonald; Kent Brewster; Ann C. Crispin; Patrick Nielsen-Hayden; Teresa Nielsen-Hayden; Brian Hill; Dee Power aka Harrilane D. Power aka D. Carr Harrilane; David L. Kuzminski; Thomas S

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of New Jersey, Monmouth County

Case Number: 

No. L-1169-07

Legal Counsel: 

Charles LeGrand, Kevin Goering, James M. Chadwick - Shepphard, Mullin, Richter & Hampton LLP; Matt Zimmerman - EFF

Publication Medium: 

Blog
Website
Wiki

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

In January 2008, literary agent Barbara Bauer and her company Barbara Bauer Literary Agency, Inc. filed a lawsuit in New Jersey State court against twenty-two defendants, including the Wikimedia Foundation. The complaint includes claims for defamation, tortious interference with prospective business advantage, and conspiracy. According to court documents, the dispute revolves around statements made on a large number of websites and blogs describing Bauer as being among the "20 Worst Literary Agents" and claiming that she has "no . . . significant track record of sales to commercial (advance paying) publishers." The complaint also alleges that various defendants posted altered photographs of Bauer on the Internet and created YouTube videos, including "Crouching Snark, Hidden Draggon" and "Miss Snark's Happy Hooker Crapstravaganza," that allegedly defamed and belittle her.

With regard to Wikimedia, the complaint alleges that Wikipedia published false statements indicating that Bauer was "The Dumbest of the Twenty Worst" literary agents and that she has "no documented sales at all." It further alleges that Bauer informed Wikimedia about the allegedly false statements, and that the foundation "has refused to remove the statements from Wikipedia." Finally, it alleges that Wikimedia conspired with the other defendants to defame and interfere with her prospective economic advantage, without providing any details.

On May 1, 2008, Wikimedia moved to dismiss the complaint, arguing that section 230 of the Communications Decency Act (CDA 230), the federal law that shields providers and users of "interactive computer service[s]" from liability for defamation and other torts for publishing the statements of third parties, bars Bauer's claims as a matter of law. Wikimedia's memorandum in support of its motion also argued that, even if CDA 230 did not bar Bauer's claim, the underlying statements are protected opinion under the New Jersey Constitution and the First Amendment to the United States Constitution.

On May 20, 2008, WritersNewsWeekly.com wrote that the court will hear Wikimedia's motion to be dismissed from the lawsuit on June 6, 2008.

Update:

7/1/08 - Court dismissed the case against Wikimedia Foundation, ruling that section 230 of the Communications Decency Act barred liability for publishing the statements of others. The court left open the possibility that Bauer could amend her complaint to state a claim against Wikimedia.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status checked on 6/02/08 (AAB)

Updated 1/29/09 - VAF

U.S. Treasury Department v. Marshall

Date: 

10/01/2007

Threat Type: 

Other

Party Receiving Legal Threat: 

Steve Marshall

Type of Party: 

Government

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Concluded

Description: 

Steve Marshall, an English travel agent operating out of Spain, had approximately 80 of his websites shut down as a result of the U.S. Treasury Department's placing them on its blacklist. Many of the sites discussed Cuba, some offering commentary about Cuba, and others offered online travel services to European tourists interested in travelling to Cuba.

According to the Treasury Department, the websites were added to the U.S. Treasury Department's Blacklist because they breached the U.S. trade sanctions with Cuba by enabling U.S. citizens to travel to Cuba.  Treasury claims that its action was part of a broader effort to prevent tourist dollars propping up the "oppressive" Castro regime.

Marshall's US-based domain registrar eNom, Inc. disabled the domains in October 2007 when it was contacted by Treasury and informed of the blacklisting. Marshall reports that he has chosen to put the sites up using new, non-U.S.-registered sites.

There is some dispute over whether Marshall's company helped U.S. nationals to evade U.S. government travel restrictions. According to Treasury, it targeted U.S. citizens (see Press Release). According to Marshall, who is quoted in the New York Times, he is not interested in American tourists: "They can’t go anyway."

Jurisdiction: 

Content Type: 

Subject Area: 

Eclipse Aviation Corporation v. John Doe

Date: 

04/14/2008

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

John Doe; Jane Doe; Google Legal Support, Blogger CMCA Complaints

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Santa Clara County Superior Court

Case Number: 

108CV110380

Legal Counsel: 

Warren Stephen Jacobson; Norman Malinski

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Eclipse Aviation, a manufacturer of "affordable" jets, recently sent a subpoena to Google seeking to uncover the identities of 28 users who posted on the blog Eclipse Aviation Critic NG, which Google hosts on its Blogger service.

The subpoena, which includes a colorful list of pseudonyms such as "Turn-and-Burn," "Bill E. Goat," and "Niner Zulu," does not state why the information is necessary. AINonline, an aviation news site, reports:

According to Eclipse president and CEO Vern Raburn, the Albuquerque, N.M. aircraft manufacturer has been irreparably damaged by the “lies” posted by anonymous visitors on the blog, and he seeks to unmask them via the subpoena. But the blog hasn’t been far off the mark on several occasions, suggesting that some of the anonymous posters might be Eclipse employees who could be breaking a non-disclosure agreement signed when they were hired.

According to news reports and comments on Eclipse Aviation Critic NG, the website operator, Shane Price, and the impacted users plan to file a motion to quash in Santa Clara Superior Court where the subpoena was filed.

Update:

May 8, 2008 - "John Doe" filed a motion to quash the subpoena

August 2008 - After a change in company management, Eclipse withdrew the lawsuit.

Jurisdiction: 

Content Type: 

Subject Area: 

Northland Insurance Companies v. Blaylock

Date: 

02/08/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Patrick Blaylock

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Minnesota

Case Number: 

No. 00-308(DSD/JMM)

Legal Counsel: 

Paul A. Ledford - Saliterman and Seifferman

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied
Settled (total)

Description: 

In February 2000, Northland Insurance Companies (Northland) sued Patrick Blaylock in federal court in Minnesota, claiming trademark infringement, trademark dilutions, and violations of the Anticybersquatting Consumer Protection Act (ACPA). The case revolved around Blaylock's registration and operation of gripe sites at www.northlandinsurance.com and www.sailinglegacy.com. Blaylock, a former client of Northland, created the websites after a dispute arose about insurance coverage for a yacht. On the sites, Blaylock commented upon and criticized Northland and its business practices.

Northland's lawsuit focused on the use of its trademark in the domain name of the website at www.northlandinsurance.com. Northland filed a motion for a preliminary injunction, asking the court to order Blaylock to shut down the site. Blaylock filed a motion to dismiss. In September 2000, the district court denied both motions. In its ruling, the court held that Northland had not shown a likelihood of success on the merits of its trademark claims, nor had it shown that it would suffer irreparable harm without an injunction.

Specifically, the court found that Northland had not shown a sufficient likelihood of confusion to justify issuing an injunction, and it refused to apply the doctrine of "initial interest confusion" to Blaylock's conduct because he was not a competitor of Northland and he did not stand to gain financially from consumers' initial confusion about the domain name. The court also found that Northland was unlikely to succeed on its dilution claim because Blaylock used the site for noncommercial commentary. Finally, the court determined that Blaylock 's registration of the domain name was not motivated by a "bad faith intent to profit," as required for a successful claim under the ACPA. The court gave weight to the fact that Blaylock used the website for noncommercial commentary, had not registered multiple variants of Northland's name or previously registered other trademarks as domain names, and had not offered to sell the domain to anyone.

In early 2001, the parties submitted a joint stipulation dismissing the case with prejudice, indicating that they probably settled.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

 

 

Matrixx Initiatives v. Barbary Coast Capital

Date: 

02/11/2005

Threat Type: 

Subpoena

Party Issuing Legal Threat: 

Matrixx Initiatives, Inc.

Party Receiving Legal Threat: 

Barbary Coast Capital Management, LLC; Stephen Worthington

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

California Superior Court, Santa Clara County; Court of Appeal of the State of California, Sixth Appellate District

Case Number: 

102-CV-813627 (trial level); H028699 (appellate level)

Legal Counsel: 

Erick Howard, Robert Schaberg - Shartsis Friese LLP (for Barbary Capital); David H.S. Commins - Commins Templeton & Webster, PC (for Stephen Worthington)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Description: 

Anonymous users posted negative comments about Matrixx Initiatives on the Yahoo! Finance and Silicon Investor message boards. Matrixx filed a lawsuit against the anonymous "John Doe" posters in an Arizona court alleging defamation and other claims. Matrixx received information from Yahoo! that some of the postings could be traced to computers owned by Barbary Coast Capital Management, LLC, a San Francisco hedge fund. Matrixx got permission from the Arizona court to take a deposition in California of Stephen Worthington, a manager at Barbary Coast. During the deposition, counsel for Matrixx asked Worthington about the identity of the anonymous posters, and he refused to reveal their identity or to say whether he was one of them. Matrixx obtained an order from the Santa Clara Superior Court in California requiring Worthington to answer the questions.

Barbary Coast and Worthington appealed the trial court's decision, claiming that it violated the posters' First Amendment right to speak anonymously. The appellate court affirmed the decision of the trial court, holding that Barbary Coast and Worthington lacked the standing to assert the First Amendment rights of the anonymous posters.

Jurisdiction: 

Content Type: 

Subject Area: 

Patterson v. Cole

Date: 

02/27/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Benjamin Cole

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

Benjamin Cole, writer for SBCOutpost.com, a collaborative "Southern Baptist news & commentary" blog, received a cease and desist letter from counsel representing Dr. Paige Patterson, president of Southwestern Baptist Theological Seminary. Cole had criticized Patterson in a blog post for allegedly refusing to take an oath to "tell the truth, the whole truth, and nothing but the truth” at the beginning of his deposition in a lawsuit in which he is the defendant.

In the February 27, 2008 letter, Patterson's counsel asserted that Patterson didn't refuse to tell the truth but couldn't take the oath as presented. Instead, he writes, Patterson gave an affirmation to tell the "truth, whole truth and nothing but the truth." By failing to mention this affirmation, the letter argues, Cole's article conveys the false impression that Patterson refused to undertake to tell the truth.

Interestingly, Patterson's counsel wrote that Cole that he should not interpret the letter as a threat of legal action, since Patterson's legal convictions precluded him from suing a fellow Christian. He called on Cole not to refrain from making defamatory comments about Patterson in the future, and to "ask the Lord if a retraction is in order."

Cole sent a response letter on March 5, 2008, asking to receive a copy of the transcript of the deposition, but otherwise refusing to retract his blog post.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status checked on 6/6/2008, no new information. (AAB)

Nemet v. ConsumerAffairs.com

Date: 

03/17/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

ConsumerAffairs.com, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

US District Court for the Eastern District of Virginia

Case Number: 

1:08-cv-00254

Legal Counsel: 

Jonathan D. Frieden; Sean P. Roche (Odin, Feldmen & Pittleman PC)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Nemet Chevrolet and its owner Tom Nemet filed a lawsuit against ConsumerAffairs.com, a consumer ratings site run by former reporter James Hood, for publishing user complaints against his company. Nemet claims the postings published on the site constitute defamation, tortious interference with business expectations and violations of the Lanham Act.

According to Nemet's complaint, visitors to the website fill out an online complaint form, which the editors check for defamatory content before publishing. One disputed user complaint alleges that the company had reneged on a promise made by one of its salespersons to a customer. Another customer posting quoted in the complaint asserts that the company sold the car to her at an inflated price. Nemet maintains that these and other statements are defamatory. 

Nemet's complaint also alleges that the website's name "Consumer Affairs" is misleading and deceptive in violation of the Lanham Act, because it misleads members of the public into believing that it is a government body.

On April 14, 2008, defendant filed a motion to dismiss or strike the complaint, arguing that it has immunity from defamation and tortious interference under section 230 of the Communications Decency Act. It also argued that plaintiffs had failed to state a Lanham Act claim, because Nemet has no rights to the trademark "Consumer Affairs." The court set a motion hearing for May 16, 2008 at 10:00 AM before District Judge Gerald Bruce Lee.

Update:

6/18/2008 - The district court granted ConsumerAffair's motion to dismiss or strike the complaint.

7/15/2008 - The district court granted Nemet Chevrolet's motion for leave to file an amended complaint.

08/04/2008 - ConsumerAffairs filed a motion to dismiss or strike the amended complaint.

9/11/2008 - The district court granted ConsumerAffair's motion to dismiss or stike the amended complaint.

9/25/2008 - Nemet Chevrolet filed a notice of appeal.

12/29/2009 - The Fourth Circuit affirmed the lower court's dismissal of the case.

Jurisdiction: 

Content Type: 

Subject Area: 

Ancel v. Bowles

Date: 

03/05/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Adrian Bowles and Ronald Wimer

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

Amy Ancel, a local politician in Connecticut, posted a comment on WestportNow.com, a community news site in Westport Connecticut, in which she accused two users of the site of libeling her. The disputed comments occurred in a series of comments relating to the relocation of a local YMCA in which two users of the site, Adrian Bowles and Ronald Wimer, criticized her and questioned Ancel's placement of signs opposing her political opponent.

In a March 5, 2008 comment on the site, Ancel wrote:

[C]onsider this my notice to you and Mr. Wimer to cease and desist libeling me in this website, the newspapers, the Water Rats Parents’ Club website “Mahackeno Now,” Politicus Machamux and any other publications you and Mr. Wimer author or have access to. My next notice will come from my attorneys.

As of June 16, 2009, it appears that no action has been taken by any of the parties.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status checked on 6/02/08 (AAB)

Status checked on 6/16/09 (CMF)

Frisco Fairways Homeowners Association v. Snell

Date: 

02/15/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David Snell; David Doumani; Doug Macari

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

393rd Judicial District Court, Denton County, Texas

Case Number: 

2008-60050-393

Legal Counsel: 

Charles W. Branham III; Andrew Messer; Michael C Witt

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

In February 2008, the Frisco Fairways Homeowners Association filed a defamation suit against three homeowners after they posted critical comments about the association on an online community forum. According to the Dallas News, the lawsuit claims that Mr. Snell, Mr. Doumani, and Mr. Macari falsely stated or implied that the association's board had lied to members, engaged in questionable financial dealings, and acted unethically. The association claims that the homeowners also posted private information about members. The dispute apparently arose after the association required residents to cover up air conditioning units, pool equipment, and other items with bushes. News reports indicate that the case is expected to go to trial in April 2008.

Update:

5/1/2008 - Parties settled the case.  As part of the settlement, the association agreed to post the settlement agreement on its website for no less than 30 days.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status updated on 6/4/2008 (AAB)

Higher Balance Institute v. Signs of the Times

Date: 

02/25/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Quantum Future Group, Inc; Quantum Future School; Signs of the Times; Laura Knight-Jadczyk

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Oregon

Case Number: 

3:08-cv-00233

Legal Counsel: 

Walter Hansell; Stephen Kaus

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

On March 13, 2008, Higher Balance Institute (HBI), which markets metaphysical products and education programs, filed a defamation lawsuit against the alternative news website Signs of the Times and its operators, the Quantum Future Group and Laura Knight-Jadczyk. Only Quantum Future Group has been served. HBI claims that employees of the Quantum Future Group posted defamatory statements about it on one of the website's forums. According to the complaint, these statements include allegedly false claims that HBI is a "front for pedophilia," that HBI is "conning the public," that meditation, as sold by HBI is an act of "falling into confluence with a psychopathic reality," and that HBI is a "cointelpro" organization. Cmplt. ¶23. (The Signs of the Times website uses the term "cointelpro" to refer to organizations that it claims perpetuate the ethos of a 1970s FBI counter intelligence program designed to quell domestic dissent.)

The complaint, filed in federal district court in Oregon, contains claims for defamation, false light invasion of privacy, and intentional interference with business relationships and prospective economic advantage. HBI seeks over $4 million in damages and an injunction. On April 25, 2008, Quantum Future Group moved to strike the complaint pursuant to Oregon's anti-SLAPP statute, Or. Rev. Stat. § 31.150.

Update:

4/25/2008 - Quantum Future Group filed motions to dismiss for failure to state a claim on which relief can be granted and for lack of personal jurisdiction.

5/19/2008 - Quantum Future School, Signs of the Times, and Knight-Jadezyk filed special motions to strike the complaint under Oregon's anti-SLAPP statute and joined Quantum Future Group's motion to strike. 

12/18/2008 - The district court granted the defendants' motions to strike the complaint under Oregon's anti-SLAPP statute. The court's decision relied in part on section 230 of the Communications Decency Act.

06/18/2009- The court granted in part the defendants' motion for attorney's fees. The court found the request of over $135,000 to be excessive, and so awarded $51,500.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Source: User submission (both Contact form and in a blog comment); Google Blog Search

Status updated on 1/5/2009 (SB)

Updated 6/24/09 AVM - I added information about award of costs. 

Oregon v. Justia

Date: 

04/07/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Justia Inc.; Public.Resource.Org, Inc.

Type of Party: 

Government

Type of Party: 

Organization

Legal Counsel: 

Karl Olson - Levy, Ram & Olson LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

On April 7, 2008, the Legislative Counsel Committee of the State of Oregon sent a cease-and-desist letter to Justia, a free online resource for judicial decisions and statutes, claiming that Justia's posting of the Oregon Revised Statutes violates its copyright. The Committee is not claiming copyright in the text of the law itself. Instead, the Committee claims copyright in

the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and such other incidents as are the work product of the Committee in the compilation and publication of Oregon law.

Carl Malamud of Public.Resource.Org, another online source of free caselaw and statutes, has gotten involved in the dispute. Although the Committee did not send Malamud a cease-and-desist letter, he wrote to the Committee on April 13, indicating that Justia had shared its letter with him and notifying it that he had disabled the public's access to the Oregon Revised Statutes on his site. He followed up on April 15, notifying the Committee of various technical deficiencies in the version of the statutes publicly available on the Legislative Assembly's website.

In late April, Malamud, Tim Stanley from Justia, and their attorney Karl Olson participated in a conference call with representatives of the Committe, during which they discussed the possibility of a mutually acceptable licensing solution. At this time, the Committee proposed a "public license" to Justia and Public.Resource.Org and rescinded its initial demand that Justia remove postings of the Oregon Revised Statutes by April 30. However, in subsequent letters, Malamud and Olson (on behalf of both Public.Resource.Org and Justia) rejected the proposed license as "incompatible with how public domain data is distributed" and inconsistent with their understanding of copyright law. In his letter, Olson indicated that his clients intended to post the entirety of the Oregon Revised Statutes online by June 2, 2008. (Note: Justia has not removed its copies of the statutes, so this time frame appears to apply only to Public.Resource.Org.)

On May 16, 2008, Karl Olson sent another letter to the Committee, notifying it that Justia and Public.Resource.Org intended on filing a complaint for declaratory relief on or before June 2, 2008. The letter provided a link to the draft complaint.

On June 19, 2008, the Legislation Council Committee decided in a hearing not to pursue copyright actions regarding the statutes.

Jurisdiction: 

Content Type: 

Subject Area: 

Religious Technology Center v. Wikileaks

Date: 

03/27/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Wikileaks

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Wiki

Relevant Documents: 

Status: 

Pending

Description: 

On March 28, 2008, a lawyer for the Religious Technology Center (RTC), the entity that owns copyright in the Church of Scientology's writings and religious materials, sent an email to Wikileaks alleging copyright infringement. The email complained that an unknown Wikileaks user posted certain of Scientology's "Advanced Technology" works on the site. It demanded that Wikileaks remove the allegedly infringing material and requested that the website "preserve any and all documents pertaining to this matter and this customer, including . . . logs, data entry sheets, applications . . ., registrations, forms, billing statements or invoices, computer print-outs, disks, hard drives, etc."

In response, Wikileaks issued a press release on April 7, 2008, in which it publicly refused to remove Scientology's documents and vowed to release several thousand pages of additional Scientology materials in the coming week. In the press release, Wikileaks also sharply criticized Scientology's history of litigation aimed at keeping its documents out of the public eye, arguing that the controversial religious group "aids and abets a general climate of Western media self-censorship."

As of April 14, 2008, Scientology has not taken further legal action.

Content Type: 

Subject Area: 

Gatto v. Capeci

Date: 

01/29/2008

Threat Type: 

Other

Party Receiving Legal Threat: 

Jerry Capeci, individually and doing business as Gang Land News

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Supreme Court of the State of New York, County of Richmond; Supreme Court of the State of New York, Appellate Division: Second Judicial Department

Case Number: 

Docket No. 2008-1590; Richmond County Index No. 80037/2008

Legal Counsel: 

Zachary Margulis-Ohnuma

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On January 29, 2008, Domenic Gatto and Atlantic Express Transportation Corp. filed a special proceeding in New York Supreme Court, Richmond County, seeking permission to file a sealed lawsuit for defamatioin against Jerry Capeci. Capeci, a former organized crime reporter with The Daily News, runs GangLandNews.com, a website devoted to coverage of organized crime. On December 27, 2007, Capeci published an article about Gatto.

In a February 8, 2008 hearing before the court, Gatto's lawyers indicated that Capeci's article made statements linking Gatto to organized crime and republished information from a district attorney's affidavit filed as part of an application for a wiretap warrant. According to Gatto's lawyers, New York law requires affidavits of this kind to be filed under seal (i.e., not open to the public). They argued that the court should bar public access to the court file of Gatto's as-yet-unfiled lawsuit in order to stop the press from repeating the allegations in the (allegedly) improperly leaked affidavit.

The court denied Gatto's request. Gatto appealed, but the appellate division rejected his appeal. It also rejected Capeci's motion requesting that the court sanction Gatto and require him to pay Capeci's attorneys' fees. As of April 11, 2008, Gatto had not filed a complaint or served Capeci.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

 

Source; RSS feeds

FranklinCovey v. Lycos, Inc. (takedown notices)

Date: 

08/02/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Lycos, Inc.

Type of Party: 

Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

On August 2, 2007, FranklinCovey, the owner of the copyright in the book The 7 Habits of Highly Effective People, sent a DMCA takedown notice to Lycos, alleging copyright infringement. Lycos operates Angelfire, a website that offers free space, as well as a paid subscription system, for Internet users to post blogs, photo galleries, and other information. FranklinCovey claimed that unknown Angelfire users posted a full digital copy of The 7 Habits on the website. Lycos did not respond to this notice, nor to a follow-up notice sent a week later . FranklinCovey filed suit against Lycos on December 17, 2007, seeking damages and an injunction (see related database entry). The parties settled in February 2008.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Jill Button editing

FranklinCovey v. Lycos, Inc.

Date: 

12/17/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Lycos, Inc.; Does 1-5

Type of Party: 

Organization

Type of Party: 

Individual
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the District of Utah

Case Number: 

2:07-cv-00974-BCW

Legal Counsel: 

None

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

In December 2007, FranklinCovey Co., the owner of the copyright in the book The 7 Habits of Highly Effective People, filed suit against Lycos and five "John Doe" defendants, alleging copyright infringement. Lycos operates Angelfire, a website that offers free space, as well as a paid subscription system, for Internet users to post blogs, photo galleries, and other information. FranklinCovey claimed that unknown Angelfire users posted a full digital copy of The 7 Habits on the website.

In August 2007, the company had sent Lycos two takedown notices pursuant to Section 512 of the Digital Millennium Copyright Act (see related database entry), but Lycos allegedly did not respond byremoving or disabling access to the infringing material. FranklinCovey's complaint sought actual or statutory damages (at its election) and an injunction barring the defendants from posting its work. The parties settled before Lycos filed an answer, and FranklinCovey voluntarily dismissed the action. Lycos has taken down the digital copy of The 7 Habits.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Source: RSS feeds (Internet Cases)

Sykes v. Seidel

Date: 

03/24/2008

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Kathleen Seidel

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Hampshire

Case Number: 

1:08-mc-00013

Legal Counsel: 

Kathleen Seidel (Pro Se); Paul Alan Levy (Public Citizen Litigation Group); Jeffrey Spear (Orr & Reno)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Quashed

Description: 

On March 28, 2008, Clifford Shoemaker, acting on behalf of Lisa and Seth Sykes, subpoenaed blogger Kathleen Seidel. Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about the Sykes' lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which they seek to link exposure to mercury to their son's autism.

Seidel's post mainly focused on developments in the lawsuit, but some of her language was critical of the Sykes and their case. For example, she indicated that the Sykes have "aggressively promoted the overwhelmingly discredited scientific hypothesis that autism is a consequence of mercury poisoning" and called their lawsuit "a hydra-headed quest for revenge, for compensation, and for judicial validation of autism causation theories roundly rejected by the greater scientific community, by numerous courts, and by a great number of individuals and families whose interests they purport to represent." Apparently as a result of this post, the Sykes served her with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demands that Seidel appear for a deposition on April 30, 2008 and that she produce a breathtaking array of documents.

Seidel summarizes the subpoena's demands as follows:

The subpoena commands production of "all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com" -- including but not limited to material mentioning the plaintiffs -- and the names of all persons "helping, paying or facilitating in any fashion" my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any "religious groups (Muslim or otherwise), or individuals with religious affiliations," and any other "concerned individuals."

On March 31, 2008, Seidel filed a motion to quash the subpoena in federal district court in New Hampshire. (The underlying lawsuit, Sykes v. Bayer, is taking place in federal court in Virginia, but the Sykes obtained the subpoena from the district court in New Hampshire because that court has jurisdiction over Seidel, a New Hampshire resident.) The motion to quash, which Seidel wrote herself, argues that the Sykes' subpoena infringes her constitutional rights, seeks material irrelevant to the Sykes v. Bayer lawsuit, and was not issued in good faith. Of particular interest, the motion argues that the subpoena requests material protected by the "journalist's privilege":

Although I am unaffiliated with a traditional news organization, and am not compensated for my work except to the extent described above, I am a de facto citizen-journalist regularly engaged in the public dissemination of news and information, and the promotion of discourse and advocacy regarding issues of national importance. See Von Bulow v. Von Bulow, 811 F.2d 136 (“[A]n individual successfully may assert the journalist’s privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.”). As such, I am entitled to maintain the confidentiality of my work product and information sources.

On April 21, 2008, the federal district court granted Seidel's motion to quash. The court ordered plaintiffs' attorney Clifford Shoemaker to show cause as to why he should not be sanctioned for bringing the subpoena.

Update:

5/1/08 - The parties in Sykes v. Bayer filed a Voluntary Stipulation of Dismissal With Prejudice in the U.S. District Court for the Eastern District of Virginia.

5/6/08 - Attorney for Clifford Shoemaker filed a motion to extend the time for Shoemaker to respond to the order to show cause

5/7/08 - Court granted motion to extend time; response due May 15, 2008

5/14/08 - Shoemaker filed opposition to potential sanctions

5/27/08 - Seidel filed a response to Shoemaker's opposition to sanctions

6/23/08 - Court sanctioned Shoemaker for abusing the legal process by issuing the subpoena

6/24/08 - Court clerk sent letter to Virginia State Bar requesting notification of any action taken by bar counsel.

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source: rss feeds

United States v. Givemeliberty.org

Date: 

04/02/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Robert L. Schulz; We The People Foundation for Constitutional Education, Inc.; and We The People Congress, Inc.

Type of Party: 

Government

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of New York

Case Number: 

1:07-cv-00352

Legal Counsel: 

Mark Lane (for defendant We The People Foundation); Robert L. Schulz pro se

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued

Description: 

The United States government sought an injunction requiring Robert Schulz and his nonprofit organizations dedicated to "'institutionalizing' citizen vigilance and governmental accountability" to remove information promoting the non-payment of income taxes from the organizations' websites www.givemeliberty.org, www.wethepeoplecongress.org, and www.wethepeoplefoundation.org.

The websites provided information suggesting that the federal income tax is voluntary, that the Sixteenth Amendment was not properly ratified, and that citizens should choose not to pay taxes. The websites provided, among other things, a set of materials called a "Tax Termination Package" (offered for free but with a suggested donation) that provided step-by-step instructions on how to avoid paying taxes.

The United States sued Schulz and the organizations, alleging that their behavior breached the Internal Revenue Code (IRC). Specifically, the U.S. alleged that defendants made false or fraudulent statements regarding tax benefits in connection with the sale of a plan or arrangement in violation of 26 USC § 6700, and knowingly prepared a document which would result in understatement of another person's tax liability in violation of IRC § 6701. The U.S. relied on the court's power to grant an injunction under IRC § 7408 to restrain behavior that breaches the above provisions.

Defendants claimed that the publication was protected by the First Amendment. They also claimed that the government had failed to show how the publications breached the tests set out in the cited provisions of the IRC.

On August 9, 2007, the U.S. District Court for the Northern District of New York granted the government's motion for summary judgment, accepting that information helping people to evade income tax did not merit First Amendment protection. The court issued an injunction ordering defendants to remove "all tax-fraud scheme promotional materials, false commercial speech concerning the internal revenue laws, and speech likely to incite others imminently to violate the internal revenue laws” from their websites. The judge did not call for the websites to be taken off the Internet.

The injunction also required defendants to reveal the names, e-mail addresses, social security numbers, and other personal information of people who obtained their information packs to the Internal Revenue Service . On the defendants' motion, the court later stayed this part of the injunction pending appeal to the Second Circuit Court of Appeals.

On February 22, 2008, the Second Circuit affirmed the District Court's decision and ordered defendants to provide the requested information about the individuals who received the tax packets.

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Jill Button editing

DA editing

Internet Solutions v. Marshall: Internet Defamation Case Dismissed for Lack of Personal Jurisdiction

A quick update on the Internet Solutions v. Marshall case, which I've blogged about at length previously. This case is significant to us because Tabatha Marshall, the defendant, was the first user of our website to submit information about her case through our threat entry form.

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Subject Area: 

Gillam v. Klein

Date: 

04/11/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Klein Investments, Inc.; Philip Klein; Fox Radio 1340AM, Mitch Woods; and Ronnie Linden

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Media Company

Court Type: 

State

Court Name: 

Jefferson County District Court

Case Number: 

A-0179090

Legal Counsel: 

John S. Morgan (Lindsay & Morgan PLLC) (for Klein)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Tom Gillam, a Justice of the Peace in Texas, sued blogger and talkshow host Philip Klein for defamation stemming from statements Klein made on his blog, the Southeast Texas Political Review. Gillam also sued Klein Investments Inc., Klein's company, Fox Radio 1340AM, which broadcasts a radio show for Klein, Ronnie Linden, Klein's radio co-host, and Mitch Woods, a local sheriff. Gillam sought damages as well as a temporary restraining order to preserve the original website content and recordings of the radio show co-hosted by Klein.

According to court filings, Gillam based his defamation claim on a purported statement by Klein that he engaged in an inappropriate sexual act with a woman at the Port Arthur courthouse. In a statement released by his attorneys and published by the Port Arthur News, Gillam also claims: “Klein further stated in the same article that an employee walked in on Judge Gillam during the alleged act, became upset and left the courthouse in a manner that caused a glass door to break. This story is patently false, malicious and defamatory.”

On June 10, 2008, Klein announced that the parties had settled the matter amicably. Klein stated that an investigation had cast doubt upon the allegations against Gillam and noted that he now believed Gillam was innocent. The Southeast Texas Record reports that Gillam then dismissed the suit and that no money or other compensation was exchanged.

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MediaDefender v. isoHunt.com and GPiO.org

Date: 

09/17/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

isoHunt, GPiO.org

Type of Party: 

Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Forum
Website

Status: 

Pending

Description: 

After internal e-mails from MediaDefender, a company that seeks to prevent the "spread of illegally traded copyrighted material over the Internet and Peer-to-Peer networks," were leaked, the company sent takedown notices to a number of sites that posted and linked to the information, including isoHunt.com, a bitTorrent search engine and forum, and GPiO.org, a hosting company.

The e-mails, which were leaked by a group that calls itself MediaDefender-Defenders, allegedly contained sensitive corporate information, including details of MediaDefender's anti-piracy strategies, its torrent watchlist, and the effectiveness of its fake torrents, according to Ars Technica.

MediaDefender responded to the dissemination of its emails by sending takedown notices to websites and P2P services that posted and linked to the materials, based both in the United States and abroad. The purported legal basis of the takedown notices was breach of MediaDefender's trade secrets and confidential information.

It appears that the sites and services have not taken down the information in response to MediaDefender's takedown notices. According to BoingBoing, isoHunt responded by pointing out what it perceives to be legal deficiencies in the takedown letter, and several other threat recipients responded that they/their sites were located outside the US and beyond the jurisdiction of the US courts.

The identity of the teenage hacker who initially obtained the emails is still under wraps, but an individual going by the name of "Ethan" has given an interview to Portfolio magazine taking credit for the leak.

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Status checked on 6/5/2008 (AAB)

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