Canada

Metadata Surveillance, Secrecy, and Political Liberty (Part Two)

(This is the second part of a two-part post. In Part One, Bryce Newell examined the implications of government collection and analysis of metadata relating to electronic communications. Today, Bryce picks up from where he left off, considering the implications of government surveillance under different conceptions of freedom.)

Jurisdiction: 

Subject Area: 

Content Type: 

Metadata Surveillance, Secrecy, and Political Liberty (Part One)

(Following on from Rebekah Bradway's post last week regarding government-created metadata as public records, we are pleased to present a two-part post from Bryce Newell on the role of metadata in government surveillance. -- Ed.)

Jurisdiction: 

Subject Area: 

Content Type: 

Rakofsky v. The Internet

Date: 

05/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

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

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Large Organization
Media Company

Court Type: 

State

Court Name: 

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

Case Number: 

105573-2011

Legal Counsel: 

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

Publication Medium: 

Blog
Email
Print

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

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

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

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

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

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

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

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

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

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

Update:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Content Type: 

Subject Area: 

Jurisdiction: 

Generex v. TheStreet.com

Threat Type: 

Lawsuit

Date: 

04/06/2010

Party Receiving Legal Threat: 

Adam Feuerstein and TheStreet.com, Inc.

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

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

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On April 6, 2010, Generex, a biotechnology company, filed a lawsuit in state court against TheStreet.com, a financial news website, and Adam Feuerstein, a senior columnist, for statements published on the website's Biotech Stock Mailbag about the company.

Generex has been in the process of developing and seeking regulatory approval for Oral-Lyn, an insulin spray treatment for Type-1 and Type-2 diabetes. In two posts published on March 19, 2010 and March 26, 2010, Mr. Feuerstein wrote that "none of the Oral-Lyn data collected by Generex has been peer-reviewed by credible medical journals" and that "the company is using science and the quest to develop an alternative insulin delivery method not to actually help diabetics but as a ruse to perpetuate a 15 year-long stock promotion scheme."

In the complaint, Generex claims that these statements constitute libel, libel per se, product disparagement, and injurious falsehood, and is seeking $250,000,000 in damages.

Content Type: 

Jurisdiction: 

Subject Area: 

Polo Ralph Lauren v. Boing Boing

Date: 

10/02/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Boing Boing; Priority Colo; Photoshop Disasters; Blogger

Type of Party: 

Large Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

In October 2009, Ralph Lauren sent a DMCA takedown notice to Boing Boing's webhost, Priority Colo, alleging that Boing Boing's posting of a Ralph Lauren advertisement violated its copyright. The Ralph Lauren advertisement featured a photograph of an improbably skinny model that appeared to have been photoshopped, and Xeni Jardin's post on Boing Boing reproduced the advertisement with a critical caption: "Dude, her head's bigger than her pelvis." Priority Colo and Boing Boing refused to remove the post, citing fair use.

The advertisement originally came to Jardin's attention via another blog, Photoshop Disasters. Photoshop Disasters published the advertisement with its own critical caption: "Make her head bigger than her pelvis! Do it!" Ralph Lauren also sent a DMCA takedown notice to Blogger, Photoshop Disasters' blog host, which removed the image.  (The original post is still available through Google's cache.)  It is not clear whether Photoshop Disasters submitted a counter-notification and whether the post will be restored.

After a great deal of media attention stemming from the takedown notices, Ralph Lauren acknowledged responsibility for photoshopping the image in a statement saying, "[f]or over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body."

Content Type: 

Subject Area: 

CMLP Notes: 

-mw reviewing 10/12

Priority: 

1-High

Jurisdiction: 

Gingrich v. The Truth About EFCA.Org

Threat Type: 

Correspondence

Date: 

05/13/2009

Party Receiving Legal Threat: 

The Truth About EFCA.Org; EFCANOW; Tucows, Inc.; ContactPrivacy.com; Twitter, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Organization

Publication Medium: 

Micro-blog
Website

Relevant Documents: 

Status: 

Pending

Description: 

Counsel for Newt Gingrich, Saul Anuzis, and American Solutions for Winning the Future sent a cease-and-desist letter to The Truth About EFCA.org, a website advocating in favor of enacting the proposed Employee Free Choice Act. The website is run anonymously, so the letter was sent to its domain registrar ContactPrivacy.com (owned by Tucows, Inc.).  It was cc'd  to Twitter, Inc. 

The letter complains about a Twitter user going by the handle EFCANOW who tweeted the following on May 2, 2009:  "Join @newtgingrich @sanuzis in signing the EFCA Freedom Not Fear petition at http://action.americanright... WSJ." The letter demands "that you immediately take down an illegal and fraudulent posting on Twitter . . . which falsely purports to be written by our clients and unlawfully uses the name of Messrs. [Newt] Gingrich and [Saul] Anuzis."  

The letter asserts that the continued publication of the offending tweet "can expose any and all involved parties (including Twitter, ContactPrivacy.com and/or TwoCows [sic]) to substantial, ongoing, and even personal liability," and claims that the tweet constitutes trademark infringement, violation of Gingrich's and Anuzis' publicity rights, false advertising, false designation of origin, tortious interference with prospective economic advantage and contractual relations, common law and computer trespass, conversion, traditional fraud and wire fraud, breach of contract, violation of the Computer Fraud and Abuse Act, and RICO violations.

Content Type: 

Subject Area: 

Jurisdiction: 

Monex Deposit Co. v. Gilliam

Date: 

03/04/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Richard Gilliam; Jason Gilliam; Steven Bowman

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California; Superior Court of California, County of Orange

Case Number: 

8:09-cv-00287-JVS-RNB (federal); 30-2009, 00249439 (state)

Legal Counsel: 

Jason Gilliam - Pro Se

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

On March 4, 2009, Monex Deposit Company and Monex Credit Company (collectively "Monex"), two companies in the precious metals business, filed a lawsuit suit against Jason Gilliam, Richard Gilliam, and Steven Bowman for publishing allegedly defamatory statements on the website MonexFRAUD.com and attempting to extort money from Monex.  Monex initially sued in California state court, but the Gilliams removed the case to federal court.

In its complaint, Monex claims that the Gilliams and Bowman threatened to "continue to libel Monex on their website, . . . share information with government regulators, and . . . interfere with Monex's relationships with investors and banks" unless the company paid them $15 million dollars.  According the complaint, the defendants called Monex's president a "ruthless sociopath" and the firm's sales pitch "flat-out lies," in addition to other comments.  Monex alleges that the defendants made these false statements on MonexFRAUD.com and in comments posted on other websites, including YouTube and Digg.

In addition to defamation and extortion, Monex's complaint alleges cyberpiracy, unfair competition, racketeering, interference with contract, attempted conversion, trade libel, interference with prospective economic advantage, and trade secret misappropriation. The Gilliams, father and son, allegedly lost approximately $32,000 with Monex.  On March 16, Jason Gilliam filed counter claims against Monex, including racketeering and breach of fiduciary duties.

On March 24, 2009, a federal court in California granted Monex's request for a temporary restraining order against the Gilliams and Bowman, expiring on April 7, 2009. The temporary restraining order prohibits them from taking any steps to extort money from Monex by (1) threatening to publish information about Monex on any forum or share information about Monex with third parties, or (2) threatening to defame Monex or its employees.  The order also barred them from retaining, disclosing, or using any Monex trade secret or proprietary information. 

The court also ordered the Gilliams and Bowman to show cause why a preliminary injunction should not issue, continuing the terms of the temporary restraining order until judgment or dismissal.  If granted, the preliminary injunction would also bar the defendants from "publishing or republishing any negative statements about Monex on any website" and require them to "remove, from any website over which they have sufficient control, all negative material about Monex that they have published or republished there, and to stop using the word MonexFRAUD."  It would also bar them from operating the MonexFRAUD website or any "other websites critical of Monex."  

Update:

04/09/09 -The court issued a preliminary injunction, prohibiting the defendants from (1) making any efforts to extort money from Monex by threatening to publish or share information about Monex or defame Monex or its employees; (2) operating www.MonexFRAUD.com or any other website using the Monex name in combination with any modifier that implies illegal, unlawful or unethical conduct; (3) publishing or republishing on any website, including www.MonexFRAUD.com, any statement that "Monex does not have title to or the ability to deliver precious metals sold under contract to any Monex customer; that Monex was expelled from the National Futures Association for fraud; that Monex operates a boiler room; that Monex violates any federal or state statutes regulating the business operations of Monex; that Monex has been charged by the Internal Revenue Service with tax evasion; and that Monex fails to accurately disclose to customers account and trading terms (collectively "Prohibited Statements"); (4) disclosing, using, or retaining any trade secret documentation or other proprietary information belonging to Monex.  The injunction also requires the defendants to remove all previously published Prohibited Statements within 24 hours.  It does not prohibit the defendants from (a) making statements regarding their own business dealings with Monex, including losses they have sustained; or (b) communicating with any governmental entity concerning matters within the scope of that entity's legislative, administrative, or regulatory responsibilities.

05/07/2009- Monex filed an amended complaint in district court. 

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Source: OCRegister.com

UPDATED 7/24/09- AVM added information on amended complaint and uploaded am. compl.

 

Jurisdiction: 

What We Often Take For Granted: Robust Protections for Speech

Over the past few weeks everyone at the CMLP and Harvard's Cyberlaw Clinic (with whom we share an office) has been focused on the question of what legal protections courts should apply to anonymous speech (see this post about our amicus participation in the Maxon v. Ottawa Publishing case).  When you are immersed in an issue like this, it is easy to forget how lucky we are to live in a country that has robust protections for speech.

In a post earlier this week, University of Ottawa law professor Michael Geist reminds us that our neighbor to the north is grappling with this same issue, but has come up with a very different answer.  In his post, Geist reports that an Ontario court has ordered the operators of the right-wing Canadian forum site, FreeDominion.ca, to turn over personally identifying information for eight anonymous posters to the site.

Subject Area: 

Jurisdiction: 

Benitah v. Law

Threat Type: 

Lawsuit

Date: 

10/31/2008

Party Receiving Legal Threat: 

Linda Law; Yelp! Inc.; TheSqueekyWheel Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of California, County of San Francisco

Case Number: 

CGC-08-481471

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

In October 2008, David Benitah, a San Francisco-based immigration attorney and business consultant, sued Linda Law and consumer review websites Yelp and TheSqueakyWheel.com for defamation and trade libel in a California state court. The complaint alleges that the defendants "published false statements regarding plaintiff on the internet," but does not identify any specific statements. Law's negative review of Benitah is still posted on the SqueakyWheel.com, but Yelp appears to have taken the material down.

On January 21, 2009, the court ordered Benitah to appear in court on February 17 to show cause why sanctions should not be imposed for failure to serve the defendants and file proof of service within 60 days of filing the complaint.

Update:

2/4/2009 - Benitah filed response to order to show cause

2/5/2009 -  Proof of service order to show cause hearing set for 2/17/2009 ordered off the calendar by the court

3/18/2009 - Order to show cause hearing set for 5/18/2009, later continued to 6/29/2009

Both Benitah  and Globolex have noow elected to represent themselves Pro Se.

Content Type: 

Subject Area: 

Threat Source: 

User Feedback

CMLP Notes: 

Deborah Gage at SF Chronicle

VAF 2/19/2009 

AVM 6/12/09 - Updated from docket. 

Jurisdiction: 

Medinah Mining v. Ingram

Date: 

02/22/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Christian Amunategui; Frank W. Cerney; Bruce Neuman; John Melnyk; Jerry Segal; D. Sheridan; Frank Paletta; Shelly Paletta; Peter Smith; James Ingram; Ty Smith; David Peak; J.B. Steele; Frank Calegory; Rahminder Singh; Michael Elson (aka Michael Craig

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

CV-N-00-0163-ECR-VPC

Legal Counsel: 

Frank W. Cerney (Pro Se); Wayne A Shaffer (for Defendants Craig, Melnyk, and Howe); N. Patrick Flanagan, III (for Defendant Ingram); Devon T. Reese (for Defendant Neuman); Jerry Segal (Pro Se)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Medinah Mining Company ("Medinah"), a Nevada corporation, and Les Price, a Canadian citizen and officer and director of Medinah, sued sixteen individual defendants from Chile, Canada, and several U.S. states, alleging that they defamed Medinah and Price over the Internet, including on the Raging Bull forum. The complaint failed to identify the specific allegedly defamatory statements, saying only that the defendants' comments related to the integrity and business ethics of Medinah and Price.  Besides defamation, the complaint included ten related claims, including for tortious interference, outrage, and fraud.  

Several defendants moved to dismiss on various grounds, including failure to serve process and lack of personal jurisdiction.  The court dismissed one defendant, James Ingram, for lack of personal jurisdiction.  Ingram was a resident of Arkansas, who had never been to Nevada or done business there. The court held that Ingram's postings on the Internet were insufficient to confer personal jurisdiction over him to a Nevada court.  The court ultimately dismissed the entire case for failure to prosecute. 

Content Type: 

Subject Area: 

Priority: 

1-High

Jurisdiction: 

E! Entertainment Television v. De Filippis

Date: 

07/01/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Louie De Filippis, Central Image Agency Inc., Enewsbuzz and E News Buzz

Type of Party: 

Media Company

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

2:08-cv-04355

Legal Counsel: 

Andres F Quintana - Quintana Law Group

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Material Removed

Description: 

E! Entertainment filed a lawsuit against Louie De Filippis and several companies he is alleged to be associated with over several websites and blogs he operated called enewzbuzz, one of which described itself as "Canada's Leading Entertainment News and Image Source For All the Latest in Entertainment From Toronto to Miami and Around the Globe." E! Entertainment's complaint alleges trademark infringement, false designation of origin, federal trademark dilution, unfair competition, and cybersquatting.

According to plaintiff's complaint, its counsel sent a cease-and-desist letter to defendants on February 1, 2008. De Filippis's blog and website are no longer accessible, but a cached version the blog is available here.

Defendants' answer is due 9/19/2008.

Update:

9/24/2008 - Case dismissed with prejudice 

Subject Area: 

Threat Source: 

RSS

Jurisdiction: 

Williams v. Advertising Sex, LLC

Date: 

03/18/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Advertising Sex, LLC; Raymond Williams; Palmbeach-Online.Com, Inc.; Kenneth M. Boyd; Steve Bryant ; G.A.M.E.; Nicholas Cain; Cain Web Design, Inc.; Charlie Hintz; Mental Shed, LLC; Chris Hartmann; XOTECK, LLC; VIDBIDNESS, INC.; Eric Ridley; Performan

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court for the Northern District of West Virginia

Case Number: 

1:05CV51

Legal Counsel: 

Robert R. Waters (for Vitigliano and Xoteck, LLC); John W. Dozier (for Chris Hartmann & Xoteck); Stephen P. Goodwin, Alexander D. Pencu, Joseph L. Clasen, William J. Kelleher, III & Raymond S Franks, II (for Castle Co. Pty Ltd, The Moles Trust, Russe

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Former Miss West Virginia, Allison Williams, filed a lawsuit against approximately sixty defendants, including Joseph Vitagliano, who operates Taxi Driver, a website that focuses on celebrity gossip and regularly features nude or semi-nude photographs of female celebrities. Williams alleges that Vitagliano defamed her by posting an advertisement on his website that falsely indicated that she, as Miss West Virginia, participated in a pornographic video that was available for download. 

Williams' complaint alleges defamation, false light invasion of privacy, misappropriation of name and likeness, and violation of the right of publicity. Williams seeks permanent injunctive relief.

According to filings in the case, Vitigliano's website contained advertisments for pornographic websites, including an advertisement for a site that allegedly offered to sell a pornographic video described as depicting "Allison Williams, Miss West Virginia."  Williams avers that she never appeared in the sex tape advertised on Taxi Driver, and has never appeared in any other pornographic video.

On August 31, 2007, the Court held that it lacked personal jurisdiction over Vitigliano because he had not purposefully availed himself of contacts in West Virginia.  The suit continues as to a number of the other defendants.

The case is also noteworthy because the court allowed plaintiff to serve litigation documents on one of the foreign defendants by email (see Internet Cases blog on this).

Content Type: 

Subject Area: 

Jurisdiction: 

Internet Solutions v. ScamFraudAlert.com (Email)

Date: 

05/29/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Archie Garga-Richardson; Domain Privacy Group, Inc.

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

On May 29, 2008, counsel for Internet Solutions Corporation and Alec Difrawi sent a cease-and-desist letter and email to Archie Garga-Richardson, the founder of ScamFraudAlert.com, a forum site that focuses on alleged Internet scams, security threats, and fraudulent practices. (The letter also went to Domain Privacy Group, Inc., a company that apparently helped Garga-Richardson register the site's domain name anonymously.) The letter asserted that "representatives, agents, administrators, moderators and members" of ScamFraudAlert.com had posted "defamatory, libelous, disparaging, false, misleading and highly injurious and detrimental statements" on the site. Specifically, it claimed that posters on the website falsely stated that Internet Solutions, its affiliates, and Difrawi engaged in various business improprieties (see the letter for details).

The letter demanded that Garga-Richardson remove all defamatory statements about Internet Solutions and Defrawi from the website and refrain from posting "any statements on any website, including but not limited to www.scamfraudalert.com, regarding my clients in the future." It gave Garga-Richardson until June 4 to provide written confirmation that he would comply with these demands. Garga-Richardson has indicated to the CMLP that he will not remove the disputed content and intends to "fight this out in the courts." He is currently looking for legal assistance.

Difrawi and Internet Solutions filed a lawsuit against Garga-Richardson in the federal district court in Florida on June 6, 2008. See our database entry, Difrawi v. Garga-Richardson (Lawsuit), for details.  

Content Type: 

CMLP Notes: 

User submitted, both through threat form and email (received June 4, 2008)

Jurisdiction: 

Subject Area: 

Solengo Capital Advisors v. Dealbreaker.com (letter)

Threat Type: 

Correspondence

Date: 

03/28/2007

Party Receiving Legal Threat: 

Dealbreaker, Bess Levin, Dead Horse Media

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Dealbreaker.com, a website that describes itself as "an online business tabloid and Wall Street gossip site," received a letter from counsel for Solengo Capital, a hedge fund founded by former Amaranth Advisors traders, asserting that Dealbreaker's posting of Solengo's prospectus was a violation of Solengo's copyright.

In response to the letter, editors at Dealbreaker said the materials were of legitimate news value and refused to remove them, telling Reuters:

"We think it's valuable to our readers and the public to be able to see the information in it," said John Carney, DealBreaker editor, in an interview on Friday.

The legal dust-up is the latest stemming from the abrupt implosion of $9.3 billion hedge fund Amaranth last year, which shocked investors and raised awareness of hedge fund risk. The recent founding of Solengo by some of the energy traders blamed for the $6 billion in losses that caused the Amaranth collapse has also generated controversy.

Carney, a former corporate lawyer, said his site plans to contest any legal challenge. "We're willing to take it as far as it merits. I don't expect to defy a court order or go to jail for it, however."

On March 30, 2007, Solengo followed up the letter with an order to show cause seeking a preliminary injunction ordering Dealbreaker to remove the prospectus from its website. After the court denied the injunction request, Solengo filed a complaint alleging copyright infringement against the website and several of its editors.

For more on the lawsuit, see the related database entry: Solengo Capital Advisors v. Dealbreaker.com.

Content Type: 

Subject Area: 

Jurisdiction: 

Solengo Capital Advisors v. Dealbreaker.com

Date: 

03/30/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dealbreaker, Elizabeth Spiers, John Carney, Bess Levin, John Doe and Jane Doe

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York

Case Number: 

1:07-cv-2657

Legal Counsel: 

Edward Henry Rosenthal (Frankfurt Kurnit Klein & Selz, P.C.); Lia Nicole Brooks

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied
Injunction Issued
Material Removed
Settled (total)

Description: 

Dealbreaker.com, a website that describes itself as "an online business tabloid and Wall Street gossip site," was sued for copyright infringement by Solengo Capital, a hedge fund founded by former Amaranth Advisors traders, over Dealbreaker's posting of Solengo's prospectus, which contained information about the firm's planned structure, trading and risk management platforms, and biographies of its founders.

In response to Solengo's initial threat to file a lawsuit on March 28, 2007, editors at Dealbreaker said the materials were of legitimate news value and refused to remove them, telling Reuters:

"We think it's valuable to our readers and the public to be able to see the information in it," said John Carney, DealBreaker editor, in an interview on Friday.

The legal dust-up is the latest stemming from the abrupt implosion of $9.3 billion hedge fund Amaranth last year, which shocked investors and raised awareness of hedge fund risk. The recent founding of Solengo by some of the energy traders blamed for the $6 billion in losses that caused the Amaranth collapse has also generated controversy.

Carney, a former corporate lawyer, said his site plans to contest any legal challenge. "We're willing to take it as far as it merits. I don't expect to defy a court order or go to jail for it, however."

On March 30, 2007, Solengo sought a preliminary injunction ordering Dealbreaker to remove the prospectus from its website. After the court denied the injunction request, Solengo filed a complaint alleging copyright infringement against the website and several of its editors.

On April 2, 2007, the court issued a preliminary injunction on consent of the parties, requiring Dealbreaker to remove the prospectus pending the outcome of the litigation. On May 24, 2007, Dealbreaker filed a motion to dismiss, arguing that Solengo had failed to register its copyright in the prospectus prior to filing suit.

In August 2007, the parties reached a settlement, and the prospectus appears to have been permanently removed from the Dealbreaker site.

Content Type: 

CMLP Notes: 

Injunction request notes a C&D Letter sent on March 28, 2007

Jurisdiction: 

Subject Area: 

MediaDefender v. isoHunt.com and GPiO.org

Threat Type: 

Correspondence

Date: 

09/17/2007

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.

Content Type: 

CMLP Notes: 

Status checked on 6/5/2008 (AAB)

Subject Area: 

Jurisdiction: 

Global Royalties v. Xcentric Ventures

Date: 

07/24/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Xcentric Ventures, LLC; Ed Magedson; Jane Doe Magedson

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal
International

Court Name: 

Superior Court of Ontario; United States District Court for the District of Arizona

Case Number: 

2:2007cv00956 (D. Ariz.)

Legal Counsel: 

Maria Crimi Speth; David Scott Gingras

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Global Royalties, Ltd., an international firm that brokers investments in gemstones, sued Xcentric Ventures, Inc., Ed Magedson, and Jane Doe Magedson over three allegedly defamatory posts made by a third party, Spencer Sullivan, on Xcentric's website Ripoff Report. According to the amended complaint, Sullivan criticized Global Royalties and individuals associated with it and accused the company of "operating a scam involving the sale of gem stones." Am. Compl. ¶ 15. Sullivan allegedly posted this latter comment under the category "Con Artists," one of a number of categories Ripoff Report users can choose from when posting. Id.¶ 16. After Global Royalties' lawyers contacted him, Sullivan requested that his posts be removed from the website. Ripoff Report did not remove the posts, following its strict policy against removing reports.

In July 2006, Global Royalties and its owner, Brandon Hall, sued Sullivan and Xcentric in the Superior Court of Ontario, Canada. When Xcentric did not appear to defend itself, the Canadian court found it in default and issued an order requiring Xcentric to remove the disputed statements. When Xcentric still refused to take down the posts, Global Royalties and Hall sued in federal court in Arizona, seeking to enforce the Canadian court order and bringing a defamation claim under Arizona law.

Xcentric moved to dismiss on the grounds that the Canadian order was unenforceable and that the defamation claim was barred by the statute of limitations, the truth of the statements, and CDA 230 immunity. The court granted Xcentric's motion to dismiss, ruling that the Canadian order was not entitled to enforcement because it was not a final judgment. The court dismissed the defamation claim on grounds that CDA 230 immunized the defendants. It ruled that CDA 230 protected the defendants even though they provided a list of categories including the term "Con Artist" and even though Sullivan himself asked for the post to be removed. The court allowed Global Royalties to file an amended complaint, which it did in December 2007.

The amended complaint dropped the claim for enforcement of the Canadian order and re-pled the defamation claim. Xcentric again moved to dismiss, raising CDA 230 and statute of limitations defenses. In opposing the motion, Global Royalties recycled its previous argument that CDA 230 should not protect website operators when the author of a statement asks for it to be removed. In February 2008, the court granted Xcentric's motion and dismissed the case, noting that "liability based on an author's notice, workable or not, is without statutory support and is contrary to well-settled precedent that the CDA is a complete bar to suit against a website operator for its 'exercise of a publisher's traditional editorial functions -- such as deciding whether or not to publish, withdraw, postpone or alter content.'"

Content Type: 

CMLP Notes: 

Status checked on 6/4/2008, no appeal filed. (AAB)

Jurisdiction: 

Subject Area: 

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