On June 20, 2008, counsel for Bernard Malik sent a cease-and-desist letter via email to the administrator of ScamFraudAlert.com, a forum site that focuses on alleged Internet scams, security threats, and fraudulent practices. The letter asserted that a forum user going by "justiceismine" posted false and defamatory statements about Mr. Malik and his organization, International Open University, on ScamFraudAlert.com (see the letter for details). It demanded that ScamFraudAlert.com remove the allegedly defamatory posts and provide "identifying details, including but not limited to the e-mail address and login IP addresses for 'justiceismine' so that Mr. Malik can take further legal actions."

The letter also claimed that ScamFraudAlert.com is not entitled to the protection of section 230 of the Communications Decency Act because it "solicit[s] and encourage[s]" defamatory posts from users and subscribers, citing as support the Ninth Circuit's decision in Fair Housing Council v. Roommate.com, LLC. This is an unconventional reading of the Roommate.com case. Counsel also claimed that the letter itself is copyrighted and advised ScamFraudAlert.com not to publish it.  The letter elaborated:

Contrary to the opinion of some Internet bloggers, the Federal Courts that have ruled on the issue, as recently as November of 2007, have held that an attorney's cease and desist letter is protected by copyright laws. Any unauthorized publication of this letter will potentially expose you to substantial damages for copyright infringement. 

The November 2007 case referenced in the letter,  In re Subpoena Issued Pursuant to the Digital Millennium Copyright Act to: 43SB.COM, LLC, 2007 WL 4335441 (D. Idaho Dec. 7, 2007), sparked a flurry of online debate on the topic of the copyrightability of cease-and-desist letters. While the Dozier Law Firm and others (including apparently counsel for Mr. Malik) view the case as establishing copyright protection for cease-and-desist letters, the case only touched on the narrow question of whether the C&D in that case was sufficiently original to be protected by copyright, and the court expressly stated that it would "not go into an in-depth analysis of the merits of a copyright infringement claim in determining whether to quash this subpoena." Most importantly, the court did not address the strong argument that publishing a cease-and-desist letter for purposes of documenting it and commenting on it is fair use.

The administrator and Mr. Malik's lawyer exchanged additional emails without coming to agreement about the disputed content. As of July 7, 2008, no further action has transpired.

Update:

7/15/08 - Counsel for Malik sent a DMCA takedown notice to ScamFraudAlert's web host, NationalNet, Inc., claiming that posting email communications between counsel and ScamFraudAlert infringed Mr. Malik's copyrights.

Tucson Greyhound Park (TGP) filed a defamation suit against blogger Karyn Zoldan after she criticized its treatment of racing dogs. TGP took issue with Zoldan's postings on End Tucson Greyhound Racing, including statements that tens of thousands of dogs had died at the park during its sixty-year history, that one dog was "ruthlessly euthanized," and that the park had not been paying its taxes, according to court documents. TGP named a number of other individuals and organizations as defendants, alleging that they were associated with Zoldan and the disputed content.

In the suit, TGP filed an application for a temporary restraining order and a preliminary injunction against the defendants. The park sought to have the disputed content removed and to prevent the defendants from criticizing the park. Zoldan told CMLP in an email that the court denied the request for a temporary restraining order following a hearing on January 18, 2008 and denied the request for a preliminary injunction following a hearing in late February.

Update:

5/16/08 -TGP withdrew its claims agains Greyhound Protection League.

8/20/08 - TGP dropped the lawsuit against The Greyhound Welfare Foundation.

8/28/08 - The Arizona Star reported that TGP had dropped the lawsuit against Zoldan after the parties reached a non-monetary settlement. 

Former House Representative Richard Ottinger and his wife, June Ottinger, filed a John Doe lawsuit in New York state court and served a subpoena on The Journal News, a daily newspaper distributed in New York and Southern Connecticut that operates LoHud.com, a website providing an online version of the newspaper as well as community forums. The subpoena sought identifying information for three posters to the site's Mamaroneck community forum going by the psuedonyms "SAVE10543," "hadenough," and "aoxomoxoa." According to court documents, the three posters falsely accused the Ottingers of bribing a local official and presenting a fraudulent deed in connection with a neighborhood dispute over their construction of a house in the Village of Mamaroneck, New York. 

In March 2008, the Journal News moved to quash the subpoena. In a May 28, 2008 hearing on the motion, the court converted the John Doe lawsuit into a "special proceeding" for pre-action discovery against the Journal News. In the same hearing, the court adopted the standard for protecting the First Amendment right to anonymous speech set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), and required the Ottingers to post notice on two LoHud forums notifying the pseudonymous posters of the pending discovery request and asking them to appear through counsel or otherwise on June 25, 2008.

At the June 25 hearing, none of the pseudonymous posters appeared through counsel or otherwise. In a subsequent opinion and order, the court held that the Ottingers had satisfied the requirements of the Dendrite standard and ordered the Journal News to turn over the requested information within five days. More specifically, the court found that the Ottingers had identified and set forth the alleged defamatory statements with sufficient precision, provided adequate notice via the LoHud forums, and made a sufficient preliminary factual showing on the merits of their defamation case. Relying on Doe v. Cahill, 884 A.2d 451 (Del. 2005), the court held that the Ottingers were not required to make a factual showing on the element of "actual malice" because that information could not reasonably be expected to be in their possession at such an early stage in the proceedings, given the anonymity of the defendants. 

In February 2000, AnswerThink, a business and technology consulting firm, sued 12 John Does for defamation in Florida federal court. The John Does had posted criticism of the company in a Yahoo! forum dedicated to AnswerThink.

John Doe 3 answered AnswerThink's complaint anonymously in March 2000. Meanwhile, AnswerThink subpoenaed Yahoo! to uncover the identity of Doe 3. Without contacting Doe 3, Yahoo! complied, revealing that Doe 3 was in fact Gregory P. Hackett, an employee of AnswerThink. AnswerThink subsequently fired Hackett and launched a second case against him, this time for breach of contract. See AnswerThink Consulting Group v. Hackett for more information.

Hackett and AnswerThink settled both cases in July 2000.

In a related matter, Hackett sued Yahoo! in California federal court in May 2000 for violating his privacy when it complied with AnswerThink's subpoena. Hackett and Yahoo! settled in August 2000.

Rick Frenkel authors the Patent Troll Tracker blog, where he comments on lawsuits that in his view abuse the patent system. John Ward, Jr., a patent lawyer practicing in Texas, sued Frenkel and his employer, Cisco Systems, for defamation. Ward alleges that Frenkel's post of October 18, 2007  falsely implied that Ward and a colleague had conspired with a Federal Court official to illegally alter court documents.

In his blog, Frenkel covers litigation brought by plaintiffs he considers to be patent trolls. "Patent troll" is a derogatory label for companies that do not develop technology or manufacture products themselves, but allegedly profit by abusing the patent system to extort legal settlements from companies that do. A troll first buys patent rights and then threatens lawsuits against wealthy corporations for infringing those patents. The troll hopes to obtain a lucrative settlement by inflicting commercial uncertainty and legal costs on the corporation as a result of the pending suit-regardless of the merits of its claims.

Frenkel's October 18, 2007 post focused on ESN, LLC v. Cisco Systems, a patent lawsuit brought in the United States District Court of the Eastern District of Texas. He implied that ESN, LLC ("ESN") was a patent troll and claimed that when ESN filed its patent infringement suit against Cisco on October 15, 2007, the patent in question had not yet been issued. If this was the case, the post contended, ESN would have no standing to sue because it had not been injured at the time of the filing. Frenkel identified Eric Albritton and T. John Ward as ESN's local counsel responsible for filing the suit.

Ward's complaint alleges that Frenkel defamed him by anonymously posting the following statements to his blog on October 18, 2007:

I got a couple of anonymous emails this morning, pointing out that the docket in ESN v. Cisco (the Texas docket, not the Connecticut docket), had been altered. One email suggested that ESN's local counsel called the EDTX [Eastern District of Texas] court clerk, and convinced him to change the docket to reflect an October 16 filing date, rather than the October 15 filing date. I checked, and sure enough, that's exactly what happened-the docket was altered to reflect an October 16 filing date, and the complaint was altered to change the filing date stamp from October 15 to October 16. Only the EDTX Court Clerk could have made such changes.

You can't change history, and it's outrageous that the Eastern District of Texas is apparently, wittingly or unwittingly, conspiring with a non-practicing entity to try to manufacture subject matter jurisdiction. This is yet another example of the abusive nature of litigating patent cases in the Banana Republic of East Texas.

Frenkel operated Patent Troll Tracker anonymously up to the time of this blog post and through the time that Ward began legal action. As a result, Ward's original petition to the Texas District Court in Gregg County on November 7, 2007, named John Doe and Google as defendants and sought to depose Google under Texas Rule of Civil Procedure 202, which allows Texas district courts to order a deposition "to investigate a potential claim or suit," in advance of an actual lawsuit. Ward hoped that by deposing Google, which operated Blogger, the host of Patent Troll Tracker, he could identify the anonymous author of the post.

Before Google was deposed, Frenkel revealed his identity online and on February 27, 2008, Ward amended his state petition to add both Frenkel and Cisco Systems, Inc. as defendants and to bring a defamation suit against them. The following week, on March 3, 2008, Ward's co-counsel, Eric M. Albritton, filed a nearly identical defamation suit against Frenkel and Cisco Systems in the same Texas state court. Cisco removed the Albritton complaint to the United States District Court for the Eastern District of Texas, whereupon Ward dismissed his state case against Cisco and Frenkel and refiled his complaint in the United States District Court for the Western District of Arkansas on March 13, 2008. By refiling in federal court in Arkansas, Ward may have intended to pre-empt Cisco from removing his case to the District Court for the Eastern District of Texas, as it had done with Albritton's case.

According to the complaint, Frenkel was employed as Cisco's Director of Intellectual Property and was responsible for managing the ESN v. Cisco case about which he wrote the post at issue. Ward further alleges that Cisco knew about and consented to Frenkel's blog and was therefore both directly and vicariously liable for any harm caused by the blog.

On April 8, Cisco moved to dismiss Ward's suit for improper venue or, in the alternative, to transfer the case to the United States District Court for the Eastern District of Texas. Ward opposed Cisco's motion to dismiss on April 24, and the parties traded pleadings regarding this motion in May.

On April 24, 2008, Frenkel answered Ward's complaint and moved to dismiss the case or transfer it to the Eastern District of Texas, where it could be consolidated with the Albritton case. Frenkel's answer denies that he was responsible for managing the ESN v. Cisco case and asserts that the First Amendment protects him from civil liability for his statements on Patent Troll Tracker.  In his motion to dismiss, Frenkel claims that the United States District Court of the Western District of Arkansas has no jurisdiction over him because he lacks minimum contacts with the state of Arkansas and because publishing on a website does not make him personally liable in every state where the website can be viewed (see Frenkel's memo in support of his motion).

Also on April 24, 2008, Ward moved to dismiss Frenkel from the case without prejudice (leaving Ward free to sue Frenkel again in the future) after Cisco admitted that Frenkel was acting within the scope of his employment when he posted the alleged defamatory comments. On April 25, 2008, Frenkel responded that the District Court should instead award him his costs, expenses, and attorney's fees if it dismisses him from the case without prejudice, or in the alternative that it should dismiss the case with prejudice (thereby barring Ward from suing Frenkel again in the future). Frenkel argues that he deserves compensation because Ward forced him to defend against two suits (one in Texas state court and the other in the federal District Court), both of which Ward soon gave up on and voluntarily moved to dismiss.

Update:

8/28/08 -  Court dismissed the action against Frenkel in response to Ward's motion for dismissal without prejudice.

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.  

Oliver "Buck" Revell, former associate deputy director of the Federal Bureau of Investigation, filed a defamation lawsuit against medical professor Hart G.W. Lidov and Columbia University after Lidov wrote and posted an article critizing Revell on the Columbia Journalism Review's online bulletin board. According to court documents, the article accused Revell of participating in a conspiracy that allegedly resulted in the tragic bombing of Pan Am Flight 103.

Revell's suit in Texas federal district court included claims against Lidov, Columbia's Board of Trustees, and the Columbia School of Journalism for defamation, intentional infliction of emotional distress, and conspiracy to commit defamation and infliction of emotion distress. His complaint also contained negligence and gross negligence claims against Columbia for publishing the article without making an adequate determination of its truth or falsity.

Both Lidov, a Harvard Medical School professor and resident of Masschusetts, and Columbia, a New York entity, filed motions to dismiss for lack of personal jurisdiction. Revell argued in his complaint that the Texas court had specific jurisdiction over Revell and Columbia because they had engaged in purposeful conduct that caused damage in Texas. Specifically, he argued that the defendants' posting of the article was sufficient to confer jurisdiction because the online bulletin board could be accessed in Texas. Revell argued further that Columbia had sufficient commercial contacts with Texas to warrant general jurisdiction.

The district court granted the motions to dismiss. The court analyzed the online contacts under the "sliding scale" test developed in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997). Applying the test, the court determined that the bulletin board was a "passive" website and thus did not constitute sufficient contact with Texas to confer jurisdiction. The court also determined that the defendants' other contacts with Texas were minimal and thus also insufficient to warrant jurisdiction.

On appeal, the Fifth Circuit affirmed the dismissal. The Fifth Circuit closely followed the reasoning of the district court, though it also devoted significant attention to rebutting Revell's specific jurisdiction claims under the "effects" test established by Calder v. Jones, 465 U.S. 783 (1984). The court determined that Lidov's article was not "expressly aimed" at Texas and thus could not satisfy the "effects" test.