Virtual

Massachusetts v. D'Ambrosio

Threat Type: 

Criminal Charge

Date: 

05/01/2013

Party Receiving Legal Threat: 

Cameron D'Ambrosio

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Lawrence District Court (District Court Department of the Trial Court of Massachusetts)

Legal Counsel: 

Geoffrey DuBosque, The Law Offices of Geoffrey DuBosque, PC

Publication Medium: 

Social Network
Other

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The plaintiff, an 18-year old who aspires to be a rapper, posted lyrics on his Facebook page referencing the Boston Marathon bombings two weeks after the bombings occurred. D'Ambrosio also posted that the White House was a "federal house of horror." While his Facebook page has since been removed, in one line of the rap, D'Ambrosio wrote, "everyone you will see what I am going to do, kill people." D'Ambrosio also recorded a Youtube video and sent text messages that referenced the content of this rap.

On May 1, 2013, D'Ambrosio did not attend school, and at least one student, who had seen the Facebook post, notified school officials, who then notified police. D'Ambrosio was arrested one week after the Facebook post and charged with Communicating a Terrorist Threat under Mass. Gen. Laws c. 269, section 14, a felony charge that can bring up to 20 years in prison. According to Chief Solomon of the Methuen Police Department, D'Ambrosio did not make threats against particular individuals or the school in his rap. Judge Lynn Rooney of Lawrence District Court originally set D'Ambrosio's bail at $1,000,000 but this was subsequently revoked, and D'Ambrosio was held without bail.

On May 2, 2013, D'Ambrosio was arraigned in Lawrence District Court and, represented by his attorney Geoffrey DuBosque, plead not guilty on charges of making a bomb threat.

After D'Ambrosio's arrest, Fight for the Future and the Center for Rights posted a petition on their website entitled "Free Cameron D'Ambrosio!" The website detailed D'Ambrosio's arrest and argued for protection of D'Ambrosio's First Amendment privileges and freedom of speech on the internet. The petition received over 90,000 signatures.

On June 6, 2013, a grand jury refused to indict D'Ambrosio on a charge of making terrorist threats and Judge Rooney ordered that he be released on personal recognizance. On June 27, 2013, the charges against D'Ambrosio were officially dropped.

Content Type: 

Jurisdiction: 

Subject Area: 

Craigslist v. 3taps

Date: 

07/20/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

3taps, PadMapper

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California: San Francisco Division

Case Number: 

3:12-cv-03816-CRB

Legal Counsel: 

3taps: Allen Ruby (Skadden, Arps, Slate, Meagher & Flom LLP), Christopher J. Bakes (Locke Lord LLP); PadMapper: Venkat Balasubramani (Focal PLLC)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Lawsuit Filed

Description: 

Craigslist is a classified advertisements website with one section of its site dedicated to housing. With a simple design that has not been significantly updated since its creation, craiglist allows users to post (among other things) apartment rental listings. In order to make the material on craigslist more user-friendly, PadMapper takes the information from craigslist's apartment listings and plots these on an easily searchable map, adding search filters. 3taps is a startup committed to collecting and distributing public data, which partnered with PadMapper to assist with its access to the apartment information on craigslist.

In response to their use of craigslist's listings, craigslist sent PadMapper a cease and desist letter. After PadMapper refused to comply, craigslist filed a complaint in the U.S. District Court for the Northern District of California on July 20, 2012, against PadMapper and 3Taps. In its complaint, craigslist asserted ten claims for relief, including contract (asserting breaches of craigslist's terms of use), copyright, and trademark/unfair competition claims.

3taps answered the complaint on September 24 and filed a counterclaim, asserting claims of antitrust violations, unfair competition, and interference with economic advantage. Overall, 3taps' defense and counterclaims focused on the premise that the facts drawn from craigslist's website are not craigslist's property, but in public domain, and that craigslist has maintained an unlawful monopoly through sham lawsuits, copyright misuse, improperly restrictive terms of use, and "ghosting." In its answer on October 30, PadMapper raised similar counterclaims alleging anticompetitive conduct by craigslist.

Craigslist filed a first amended complaint on November 20, 2012. In this amended complaint, craigslist added seven additional claims, for a total of 17. The claims were as follows (with new claims in italics)

  1. Trespass: Defendants have gained unlawful access to and interfered with craigslist's computer system, servers, and network.
  2. Breach of Contract: Defendants affirmatively accepted and agreed to be bound by the Terms of Use, which they willfully, repeatedly and systematically breached by accessing the craiglist website to copy and distribute the content posted therein.
  3. Misappropriation: As competitors with craigslist, Defendants wrongfully accessed craigslist's website and computer systems to make craigslist's content available to their customers, constituting free-riding on craigslist's substantial investment of time, effort, and expense.
  4. Copyright Infringement: Defendants reproduced and distributed the copyrighted material on the craigslist website without authorization from the copyright holder, craigslist.
  5. Contributory Copyright Infringement (against 3taps): 3taps provides its users with copies and derivative works of craigslist's copyrighted works without craigslist's consent, and knowingly permits its users to copy, reproduce, and prepare derivative works from the copyrighted works.
  6. Federal Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark in interstate commerce in connection with the sale or advertising of goods is likely to cause consumer confusion.
  7. Federal False Designation of Origin: Defendants' unauthorized use of the CRAIGSLIST mark is likely to create the false and misleading impression that Defendants' products or services are provided or sponsored by craigslist.
  8. Federal Dilution of a Famous Mark (against 3taps): CRAIGSLIST is a famous and distinctive mark, and 3taps' use of the mark is likely to cause dilution by blurring, particularly depleting the strength of the mark by impairing its distinctiveness.
  9. Federal Cyberpiracy Prevention (against 3taps): 3taps' use of CRAIGGERS in the craiggers.com domain is confusingly similar to and dilutive of the famous, registered CRAIGSLIST mark.
  10. California Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark in connection with the sale or advertising of goods/services in California is likely to cause confusion as to the source and/or sponsorship of the goods/services.
  11. Common Law Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark is likely to cause confusion as to the source and/or sponsorship of the goods/services.
  12. California Unfair Competition: Defendants have engaged in unfair business practices, injuring craigslist's business, reputation, and trademarks.
  13. Violations of the Computer Fraud and Abuse Act: Defendants accessed craigslist's computers and servers without authorization or in excess of authorization and obtained valuable information in transactions involving interstate or foreign communications.
  14. California Comprehensive Computer Data Access and Fraud Act: Defendants accessed and copied data from craigslist's computer systems and servers without authorization.
  15. Aiding and Abetting Trespass (against 3taps): 3taps has encouraged and facilitated access to craigslist's computers by supporting the collection, transfer, and storage of craigslist's content.
  16. Aiding and Abetting Misappropriation (against 3taps): 3taps has knowledge that the time-sensitive "scraped" craigslist content they provide PadMapper is to compete with craigslist, therefore aiding PadMapper's misappropriation.
  17. Accounting: As Defendants have benefited financially as a result of their misconduct at craigslist's expense, craigslist is entitled to a full accounting to determine the amount of money due to craigslist.

In response, PadMapper and 3taps amended their counterclaims on December 21. PadMapper updated its counterclaims to include (attempted) illegal maintenance of a monopoly in violation of the Sherman Act and California unfair business practices, and to seek declaratory relief for noninfringement of craigslist's copyrights. 3taps alleged similar counterclaims, including multiple monopoly and contract claims under the Sherman Act, California unfair competition, and interference with economic advantage.

PadMapper and 3taps also filed motions to dismiss on December 21, 2012. PadMapper, which first filed a motion to dismiss on October 30, 2012, amended this motion to dismiss craigslist's claims for trespass (claim 1), breach of contract (2), federal trademark infringement (6), federal false designation of origin (7), California trademark infringement (10), and common law trademark infringement (11). PadMapper argued that the Copyright Act preempts the breach of contract claim and that craigslist failed to state a trespass claim against PadMapper. PadMapper also argued that the four trademark claims are precluded under the U.S. Supreme Court's decision in Dastar v. Twentieth Century Fox Film, which narrowed the scope of the Lanham Act so not to cover claims where the core issue is a copyright claim, primarily the improper reproduction of copyrighted material.

3taps moved to dismiss craigslist's claims of copyright infringement (claim 4), contributory copyright infringement (5), violations of the Computer Fraud and Abuse Act (13), and California Comprehensive Computer Data Access and Fraud Act (14). With respect to the copyright claims, 3taps argued that craigslist has no standing to assert copyright infringement of user-generated content and its asserted copyright registrations are invalid. 3taps also argued that the statutory elements of the CFAA and California statute could not be satisfied, as establishing unauthorized access requires proof of hacking which craigslist judicially admitted did not occur.

In an opposition filed on January 31, 2013, craigslist reasserted the sufficiency of its pleadings and the validity of its copyrights. PadMapper and 3taps replied in support of their respective motions to dismiss on February 13.

On February 8, 2013, noting the complexity of the lawsuit, craigslist filed a motion to bifurcate and stay Defendants' amended counterclaims pending resolution of craigslist's claims. Craigslist argued that the counterclaims would be made moot or significantly narrowed if craigslist prevailed on its claims, and consideration of the antitrust counterclaims in conjunction with craigslist's claims would increase the legal and factual complexity of the case, delaying the proceedings. PadMapper and 3taps both opposed this motion on March 1. The defendants argued that the claims at issue are intertwined and would not be rendered moot if craigslist prevails, such that bifurcation would be inappropriate. The defendants further argued that a decision on bifurcation would be premature, and a stay of discovery would result in prejudice. In a reply on March 15, craigslist maintained that resolving craigslist's claims would at least streamline the antitrust claims, while the balance of potential prejudice weighs heavily towards bifurcation. Craigslist also argued that the motion was not premature and the bifurcation should occur before the start of discovery.  

On April 29, 2013, Judge Charles Breyer issued an order granting in part and denying in part the defendants' motions to dismiss, and granting craigslist's motion to bifurcate.  The district court denied 3taps' motion to dismiss the Computer Fraud and Abuse Act and California Comprehensive Computer Data Access and Fraud Act claims, noting that the defendant's continued access after clear statements regarding authorization in the cease and desist letters and terms of use sufficiently constitutes unauthorized access under these statutory provisions. The Court also denied PadMapper's motion to dismiss the trespass claim and the breach of contract claim, which it it ruled was not preempted by the Copyright Act. PadMapper's motion to dismiss the trademark claims was also denied, as the Court held that they were not precluded by Dastar. With respect to the copyright claims, the Court held that craigslist sufficiently established the originality of the compilation of the posts to warrant copyright protection, even in the individual posts themselves, and sufficiently registered copyright for this content.

However, the Court ruled that craigslist was the exclusive licensee of this content only from July 16, 2012 through August 8, 2012, during which period users were presented with a notice to click confirming craigslist's position as the exclusive licensee of the post. Outside of those weeks when the exclusive license confirmation statement was in use, the court found that craigslist could not sue for copyright infringement. Accordingly, the Court granted the motions to dismiss the copyright claims with respect to user-created posts submitted before July 16 or after August 8, 2012. Lastly, the Court concluded that "the likelihood of streamlining discovery for and adjudication of the antitrust counterclaims based on the outcome of Craigslist's claims-even if those counterclaims must ultimately proceed-warrants bifurcation," and therefore granted craigslist's motion to bifurcate and stay discovery on the antitrust counterclaims.

Content Type: 

Subject Area: 

Jurisdiction: 

Hermès International v. Does

Date: 

02/29/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does 1-100; XYZ Companies

Type of Party: 

Large Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York

Case Number: 

1:12-cv-01623-DLC

Verdict or Settlement Amount: 

$100,000,000.00

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Default Judgment
Injunction Issued

Description: 

On March 6, 2012, Hermès International and its subsidiary Hermès of Paris filed a complaint (which had been prepared for February 29, 2012) in the U.S. District Court for the Southern District of New York against 34 websites that allegedly sold counterfeit Hermes bags, scarves, and other Birkin products. In the complaint, eight of the defendants were identified by name and served by email, while the remaining individuals and companies remained anonymous. Hermès's complaint alleges nine causes of action:
  1. Federal trademark counterfeiting violating the Lanham Act §§ 32(a)-(b)
  2. Federal trademark infringement violating the Lanham Act § 32
  3. Cybersquatting under the Anticybersquatting Consumer Protection Act
  4. Trade dress infringement and false designation of origin violating the Lanham Act § 43(a)
  5. Federal trademark dilution violating the Lanham Act § 43(c)
  6. Trademark dilution violating the N.Y. General Business Law § 360
  7. Deceptive acts and practices unlawful violating the N.Y. General Business Law §§ 349-350
  8. Trademark infringement violating New York state common law
  9. Unfair competition violating New York state common law

Hermès requested 100 million dollars in damages, alleging damages in the amount of two million dollars per trademark that was counterfeited or infringed.

After reviewing Hermès's complaint, District Court Judge Cote granted a temporary restraining order against the defendants on March 6, 2012. At this time, Judge Cote also established a March 16, 2012 deadline for the defendants to file an answer and ordered that they appear in court to show cause on March 20, 2012. The order also permitted service by email, which was verified on March 8, 2012.

On March 21, 2012, Judge Cote ordered a preliminary injunction against the defendants regarding the use of the Hermès trademarks and granted domain name seizure on an ex parte basis.

Hermès further filed a motion for default judgment against all of the defendants on April 13, 2012. In this motion, Hermès argued that that the defendants' failure to appear justifies the entry of a default judgment, in the form of enhanced statutory damages of 100 million dollars and permanent injunctive relief. On the same day, Hermès's attorney, Joseph C. Gioconda, filed a declaration in support of Hermès's motion for default judgment.

On April 19, 2012, Judge Cote issued to the defendants an order to show cause by appearing on April 27, 2012 to defend against an entry of default judgment. None of the defendants responded or appeared, and therefore on April 27, 2012, less than two months after the original complaint was filed, Judge Cote granted Hermès's motion for default judgment. Judge Cote awarded Hermès 100 million dollars in statutory damages and permanently injoined the defendants from use of the Hermès trademarks, designs, and/or domain names.

Content Type: 

Subject Area: 

Jurisdiction: 

PhoneDog, LLC v. Kravitz

Threat Type: 

Lawsuit

Date: 

07/15/2011

Party Receiving Legal Threat: 

Noah Kravitz

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California

Case Number: 

C11-03474

Legal Counsel: 

Kletter Law Firm, Dewey & LeBoeuf LLP

Publication Medium: 

Micro-blog

Relevant Documents: 

Status: 

Pending

Description: 

PhoneDog, LLC, an "interactive mobile news and reviews resource," filed suit against former employee Noah Kravitz on July 15, 2011, for ownership of a Twitter account Kravitz used while he was employed by PhoneDog. As a product reviewer for PhoneDog, Kravitz was allegedly given use of a Twitter account with the handle @PhoneDog_Noah to promote PhoneDog's services. PhoneDog claimed that after his employment ended, Kravitz changed the Twitter handle to @noahkravitz and continued use of the account, even though PhoneDog requested Kravitz relinquish use.

The complaint asserts four claims for relief. First, PhoneDog alleged that Kravitz willfully and intentionally obtained and misppropriated confidential information from PhoneDog, primarily the passwords to its Twitter accounts. According to PhoneDog, this information "would be of substantial value to PhoneDog's competitors" if it leaked. PhoneDog claimed that Kravitz used this confidential information to his own advantage, constituting trade secret misappropriation.

The second and third claims for relief allege that Kravitz intentionally and negligently interfered with PhoneDog's prosepctive economic advantage by using the confidential information to disrupt PhoneDog's business with current and prospective users. 

Finally, PhoneDog claimed that Kravitz unlawfully converted the Twitter account to his own use by changing the handle, even after PhoneDog requested that he relinquish the account.

PhoneDog requested that the court issue a temporary restraining order, preliminary injunction, and permanent injunction preventing Kravitz from using its confidential information. Additionally, PhoneDog asserted it suffered $340,000 in compensatory damages as a result of the alleged conversion. To arrive at this figure, PhoneDog assumed that, according to industry standards, Twitter followers are valued at $2.50 per month each. Since Kravitz's account has approximately 17,000 users, PhoneDog has suffered damages of $42,500 per month since October 2010.

On October 4, 2011, Kravitz moved to dismiss the complaint for lack of subject matter jurisdiction under FRCP 12(b)(1), and failure to state a claim under FRCP 12(b)(6). On the jurisdictional issue, Kravitz asserted that the amount in controvery, if any, could not exceed $8,000, which is under the statutory limit, a federal court could not hear the case. Kravitz used sites such as tweetvalue.com and whatsmytwitteraccountworth.com to value the account.

Kravitz also claimed that PhoneDog could not satisfy the misappropriation of trade secrets claim, because any information obtained by Kravitz (including the identity of the account's followers and its password) are not trade secrets under California law. Regarding claims of intentional and negligent interference with prospective economic advantage, Kravitz alleged that PhoneDog could not establish the existence of a current economic relationship between PhoneDog and the Twitter account followers, an essential element of each claim. Finally, Kravitz contended that PhoneDog's complaint did not establish ownership or the right to possess the Twitter account, which would require the court to dismiss the conversion claim.

After both PhoneDog and Kravitz filed subsequent pleadings related to the motion to dismiss (PhoneDog Response; Kravitz Reply), the court issued an order granting in part and denying in part the motion. The court denied the motion with respect to lack of jurisdiction, stating that the determination of whether the court has subject matter jurisdiction is so tied up with PhoneDog's claims that it could not be resolved in this early stage. Turning to the substantive claims, the court granted Kravitz's motion with respect to the claims of intentional and negligent interference with prospective economic advantage, finding that PhoneDog failed to assert essential elements of the claim, including the existence of economic relationships and a duty of care. The court denied, however, the motion with respect to the misappropriation of trade secrets and conversion claims. The court also granted PhoneDog leave to amend its complaint.

The amended complaint, filed on November 29, 2011, alleges that PhoneDog has economic relationships with its users, including CNBC and Fox News. The amended complaint also claimed that Kravitz owed a duty of care to PhoneDog as a former agent of the company.

Content Type: 

Subject Area: 

Threat Source: 

Blog Post

CMLP Notes: 

Author: LC (2/8/12)

Jurisdiction: 

Ascentive v. Opinion Corp.

Date: 

09/24/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Opinion Corp. d/b/a PissedConsumer.com, Michael Podolsky, Joanna Simpson, Alex Syrov

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, Eastern District of New York

Case Number: 

10-cv-04433

Legal Counsel: 

Goetz Fitzpatrick PLLC

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Denied

Description: 

Ascentive, LLC, a software company, filed suit against Opinion Corp. d/b/a PissedConsumer.com on September 24, 2010, claiming that Opinion Corp., through its PissedConsumer website, infringed on Ascentive trademarks. The complaint alleges seven claims for relief against Opinion Corp.:

  • The first and second claims allege that Opinion Corp. violated the Civil Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. 1961-1968, by conspiring to extort and solicit money from organizations that are the victims of complaints on the PissedConsumer website.
  • The third and fourth claims allege that Opinion Corp. violated the Lanham Act and Ascentive's common law trademark rights, respectively, by using Ascentive trademarks in web addresses such as Ascentive.PissedConsumer.com and FinallyFast.PissedConsumer.com.
  • The fifth through seventh claims allege that Opinion Corp. participated in unfair trade practices through its PissedConsumer website, resulting in interference with contractual relations and unjust enrichment.

In its answer, Opinion Corp. asserted that Ascentive's claims were barred by 47 U.S.C. § 230 (CDA 230). CDA 230 provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." It also provides that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." For more information on CDA 230, see the corresponding CMLP Legal Guide entry.

Ascentive filed a Motion for Preliminary Injunction on November 23, 2010, attempting to enjoin PissedConsumer from using Ascentive's trademarks in the site's metadata and as subdomains. In its Memorandum in Support of the Motion for Preliminary Injunction, Ascentive maintained that PissedConsumer holds itself out to be objective, but manipulates postings on its site and uses those to attempt to extort money from the victims of these complaints, in violation of RICO. Regarding the alleged trademark infringement, Ascentive argued that PissedConsumer has used Ascentive's trademarks in the site's metadata, causing PissedConsumer sites to appear prominently in Internet search results. According to Ascentive, this creates "initial interest" confusion in violation of the Lanham Act. Ascentive additionally claimed that its trademarks were used in subdomain names and as prominent text on the PissedConsumer sites, which further leads to consumer confusion resulting in trademark infringement.

In its Opposition Memorandum, Opinion Corp. claimed that Ascentive's request for a preliminary injunction was essentially a request for prior restraint on speech that is protected by the First Amendment and therefore invalid. Opinion Corp. argued that its use of Ascentive trademarks constituted expression protected by the First Amendment. Finally, Opinion Corp. argued that the content posted on its sites should be protected under CDA 230. It contended that "sites such as PissedConsumer.com fall squarely within the protection of the statute, which applies to all state law claims, however styled, so long as the act complained of is the publication of third party content."

After a hearing on Ascentive's Motion, and at the request of the presiding judge, Opinion Corp. submitted a bench brief discussing the application of fair use doctrine under the Lanham Act claim in this case. Opinion Corp. asserted that use of a trademark is protected when it is "fair[] and in good faith only to describe the goods and services of [the complaining] party." In this case, Opinion Corp. argued, PissedConsumer used the Ascentive marks in good faith as a means of cataloging sites, which constituted fair use.

Ascentive filed a reply letter arguing that a free speech defense is unavailable to sites creating confusion through a domain name. It also asserted that PissedConsumer is not protected by CDA 230, which provides no immunity for intellectual property claim or for content created by PissedConsumer, which include the self-created subdomains.

On December 13, 2011, in a rather lengthy opinion, the court rejected Ascentive's motion for preliminary injunction. The court ruled that there was no likelihood of confusion in PissedConsumer's use of Ascentive's trademarks, finding that "no reasonable visitor" to the various PissedConsumer sites would assume they are affiliated with Ascentive (or any other company), because the use of "pissed" in the domain name connotes criticism and negativity. Regarding use of the marks in metadata, the court found this did not create a likelihood of confusion, because PissedConsumer and Ascentive do not compete with each other, and because search engines generally do not use metadata to determine results. Finally, the court held that PissedConsumer is likely to fall within the protections of CDA 230 regarding the plaintiff's state law claims (unfair trade practices and consumer protection).

The court stated that this decision was without prejudice to Ascentive's opportunity to seek a permanent injunction after discovery has been completed.

Content Type: 

Jurisdiction: 

Subject Area: 

Ingraham v. Gray

Date: 

08/18/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Madeline B. Gray d/b/a NickerNews.net

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Maine Superior Court

Case Number: 

BELSC-CV-10-41

Legal Counsel: 

Preti, Flaherty, Beliveau & Pachios LLP

Publication Medium: 

Blog

Relevant Documents: 

Description: 

In August 2010, married couple Alexis and Brett Ingraham sued blogger Madeline Gray for defamation based on statements posted on Gray's website (NickerNews.net) and distributed via flyers. The Ingrahams' alleged that in a series of blog posts in 2010, Gray accused them of neglecting and abusing the horses at their farm, and that these statements were false and harmful to the Ingrahams' reputations, social standing, and profession.

Gray moved to dismiss the complaint on the grounds that the Ingrahams were being prosecuted by the Kennebec (Maine) County District Attorney for animal cruelty, attaching the State's complaints listing seven counts of animal cruelty. Gray argued that in light of the State's case, the Ingrahams had failed to assert sufficient facts to support their claim. The court rejected Gray's argument, asserting that the pending criminal action was not sufficient to "defeat the adequacy of [the Ingrahams'] allegations."

The Bangor Daily News reported in June 2011 that the Ingrahams had been convicted of six misdemeanor counts of animal cruelty. Subsequently, Gray moved for summary judgment in the defamation case based on a theory of collateral estoppel. According to Gray's Motion for Summary Judgment, "a criminal conviction conclusively establishes all facts essential to the conviction and is preclusive in favor of a third party in a subsequent civil action." The Ingrahams opposed the motion, arguing that the statements at issue in the case were broader than the issues in the criminal action, and that the nature of their guilty pleas in the criminal action was such that they were not precluded from arguing that the underlying factual allegations in that action were false.

Content Type: 

Subject Area: 

Jurisdiction: 

Pan Am Systems v. Hardenberg

Date: 

09/06/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Chalmers Hardenberg, C.M. Hardenberg, P.A., Atlantic Northeast Rails & Ports

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Maine

Case Number: 

2:11-cv-00339-NT

Legal Counsel: 

Preti Flaherty Beliveau & Pachios, LLP

Publication Medium: 

Print
Other

Relevant Documents: 

Description: 

In September 2011, Pan Am Systems, Inc. (a railway transportation company), its subsidiary Springfield Terminal Railway Co., and its former President and CEO David Fink sued Atlantic Northeast Rails & Ports (ANRP) for defamation and false light. The complaint also named Chalmers Hardenberg as owner, editor, and publisher of ANRP and C.M. Hardenberg, P.A., as an owner and principal of ANRP. The complaint alleged that the defendants distributed false and defamatory information about the plaintiffs through newsletters and e-bulletins. Among the information cited in the complaint were discussions of Pan Am's service and reliability, a Springfield Terminal derailment, and David Fink's removal from Pan Am.

Defendants subsequently filed a motion to dismiss for failure to state a claim, arguing, among other things, that as to the defamation claim: (1) the statements were true; (2) all of the plaintiffs were public figures, and there were insufficient allegations to support a claim of actual malice; (3) there were insufficient allegations of negligence; (4) some of the challenged statements were non-actionable opinion; and (5) some of the statements were protected by the fair report privilege. With respect to the false light claim, defendants argued that the statements were not "highly offensive," as required for such a claim, that corporations are not entitled to bring false light claims in Maine, and that the complaint did not adequately plead fault.

Plaintiffs opposed the motion to dismiss claiming, among other things, that: they had pleaded the existence of false statements of fact; it was inappropriate to resolve conditional privileges on a motion to dismiss; the existence of actual malice was a factual matter to be resolved after discovery; the plaintiffs were, in any event, private figures; and the defendants' statements did not involve matters of public concern, such that a claim for presumed damages could proceed without a showing of actual malice. Plaintiffs also argued that the individual plaintiff, Fink, had adequately pleaded a false light claim.

Content Type: 

Subject Area: 

Jurisdiction: 

Eros, LLC v. Simon

Date: 

10/24/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Thomas Simon and John Does 1-10

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of New York

Case Number: 

1:07-cv-04447-SLT-JMA

Verdict or Settlement Amount: 

$525.00

Legal Counsel: 

Pro se

Publication Medium: 

Virtual World

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

Eros, LLC and five other US-based plaintiffs who sell virtual objects in the virtual world known as Second Life filed a lawsuit against Thomas Simon, a New York man who they allege is selling unathorized copies of their objects to other Second Life users.

The objects in question range from virtual clothes to virtual sex toys. The complaint alleges that Simon has, in concert with other as yet unidentified defendants, passed off thousands of unauthorized copies of their objects as genuine products, thereby infringing the plaintiffs' copyrights and engaging in unfair competition, false description of origin, and counterfeiting in breach of the Lanham Act. They also allege that the arrangement in place between the defendants, whereby Simon agreed to create unauthorized copies of the plaintiffs' products and the unidentified defendants agreed to distribute them, amounts to a civil conspiracy.

On December 3, 2007, the parties submitted a proposed judgment by consent with respect to Simon. On January 3, 2008, the judge entered the judgment. The judgment called for Simon to pay $525 to the plaintiffs and enjoined him from further unauthorized copying.

Content Type: 

CMLP Notes: 

Status updated on 6/3/2008 (AAB)

Jurisdiction: 

Subject Area: 

Eros LLC v. Doe

Threat Type: 

Lawsuit

Date: 

07/03/2007

Party Issuing Legal Threat: 

Eros, LLC

Party Receiving Legal Threat: 

John Doe (aka Volkov Catteneo, Aaron Long), later identified as Robert Leatherwood; John Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Florida

Case Number: 

8:07CV01158-SCB-TGW

Legal Counsel: 

Pro se

Publication Medium: 

Virtual World

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

Eros, LLC has created adult entertainment products in the virtual world Second Life, which it sells to other Second Life users for Linden dollars, which can be converted into US dollars. Another Second Life user, with avatar name "Volkov Catteneo," allegedly copied Eros's products and sold them to other Second Life users without authorization. According to the TimesOnline, the products at issue are beds that allow users of Second Life to have virtual sex in them.

In July 2007, Eros began a John Doe lawsuit for copyright and trademark infringement in federal court in Florida. Eros filed an ex parte motion seeking permission to issue subpoenas to discover information about the identity of the anonymous defendant from Linden Lab, which operates Second Life, and from PayPal, which was used to pay for Catteneo's account. The court granted the motion, and Eros obtained account information from each company.

However, Catteneo then gave an interview with Reuters, during which he claimed that he had provided both PayPal and Linden with false information. Eros then filed a motion for permission to issue subpoenas to AT&T and Charter Communications seeking subscriber information for certain IP addresses allegedly used by Catteneo. The court granted the motion in September 2007.

On October 24, 2007, Eros filed an amended complaint, naming Robert Leatherwood, a resident of Texas, and ten John Doe defendants. The amended complaint alleges that Leatherwood acted in concert with unknown parties to make and sell unauthorized copies of Eros's products.

On March 20, 2008, Eros filed an unopposed motion for entry of a judgment by consent against Leatherwood. The judge granted the motion, and the final order enjoined Leatherwood from further unauthorized copying of Eros's merchandise.

Content Type: 

CMLP Notes: 

Status updated on 6/3/2008 (AAB)

Jurisdiction: 

Subject Area: 

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