Linking

United States v. Brown

Threat Type: 

Criminal Charge

Date: 

09/12/2012

Party Receiving Legal Threat: 

Barrett Brown

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Texas: Dallas Division

Case Number: 

3:12-cr-00317-L; 3:12-CR-413-L; 3:13-CR-030-L

Legal Counsel: 

Douglas A Morris (Federal Public Defender - Dallas); Ahmed Ghappour (University of Texas Law School), Charles D. Swift (Swift & McDonald, PC), Marlo P Cadeddu (Law Office of Marlo P Cadeddu)

Publication Medium: 

Forum
Social Network

Relevant Documents: 

Status: 

Pending

Description: 

The U.S. government filed three indictments, consisting of seventeen charges, against Barrett Brown, an independent journalist. The charges arose out of Brown's online publication of a link to data obtained by hacktivist collective Anonymous and his alleged subsequent conduct.

Anonymous hacked Stratfor, a global intelligence firm, in December 2011, obtaining millions of e-mails, some of which included credit card and personal identity data. WikiLeaks published a large collection of these emails in February 2012, and Brown linked to a zip file of the leaked data on his IRC (Internet Relay Chat) channel, #ProjectPM. In response to these events, in March and September 2012, the FBI raided Brown and his mother's residences. Brown responded with YouTube videos, including one entitled "Why I'm Going to Destory FBI Agent [RS]," and similar commentary on Twitter. 

The federal government filed a complaint against Brown in the U.S. District Court for the Northern District of Texas on September 12, 2012. According to the docket, the complaint alleged that Brown "knowingly counseled, commanded, and induced other individuals to make restricted personal information about a Special Agent (SA) of the Federal Bureau of Investigation (FBI) publically available with the intent to threaten, intimidate, and incite the commission of a crime of violence against that SA, in violation of 18 U.S.C. §§ 2 and 119." (The full text of this complaint is not available.) The first indictment included counts related to Brown's responses to the FBI raids on his social media accounts (on Twitter and YouTube), which the government alleged to be threatening the FBI Agent and exposing private information. Specifically, the three counts were: Internet threats under 18 U.S.C. § 875(c); conspiracy to make publically available restricted personal information of an employee of the United States under 18 U.S.C. § 371; and retaliation against a federal law enforcement officer under 18 U.S.C. §§ 115(a)(1)(B) and (b)(4). Brown pled not guilty to all three counts on November 15, 2012. 

The government filed a second indictment, case number 3:12-cr-00413-B, on December 4, 2012, arising out of the hyperlink to the leaked Stratfor data that Brown posted on his IRC channel. The government asserted that sharing this link constituted a transfer the credit card account information contained therein; accordingly, Brown was charged with: traffic in stolen authentication features under 18 U.S.C. §§ 1028(a)(2), (b)(1)(B), and (c)(3)(A); access device fraud under 18 U.S.C. §§ 1029(a)(3) and (c)(1)(A)(i); and ten counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). On December 17, 2012, Brown made a plea of not guilty to all of these charges. This second indictment was replaced by a superseding indictment on July 2, 2013, which made no substantive changes to the charges. 

During the 2012 FBI raids, Brown denied the presence of any laptops at his or his mother's residences, though two were later found. For this, he was charged with obstruction of justice in a third indictment on January 23, 2013 (case number 3:13-cr-00030-B). The indictment included two counts: concealment of evidence under 18 U.S.C. § 1519; and corruptly concealing evidence under 18 U.S.C. § 1512(c)(1). According to the case docket, Brown entered a not guilty plea on January 30, 2013. 

On January 30, 2013, the court held a hearing to determine Brown's competency to stand trial in his criminal cases, focusing on his mental health. In an order filed February 4, 2013, the court declared Brown competent to stand trial in all three pending cases.

On August 7, 2013, in the course of opposing a motion by Brown for a continuance of his trial date, the government asserted that Brown had repeatedly solicited "the services of the media or media-types to discuss his cases," and thereby demonstrated an "intent to continue to manipulate the public through press and social media comments, in defiance of the admonishment by the United States Magistrate Judge." Asserting that such "extrajudicial commentary" would undermine a fair trial, the government asked the court "to instruct the parties to refrain from making "any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record."

Brown opposed the government's request for a gag order in pleadings filed on August 9 and September 4, 2013, arguing that the government had not established a need for a gag order or that less restrictive measures were not available to responf to pretrial publicity. The defense pointed out that since appointment of counsel on his behalf, Brown had made no statements to the press, his counsel had made no statements except with respect to matters in the public record, and any statements made by associates of Brown could not be attributed to Brown himself. The defense further argued that cases supporting gag orders required evidence of statements by the defendant, and not merely a claim that the defense had condoned or attempted to coordinate media coverage. The defense also objected to the government's attempt to rely, as a basis for a gag order, on Brown's own journalistic work product unrelated to the pending charges against him. 

On September 4, 2013, the court entered an "Agreed Order Re: Extrajudicial Statements" signed by the judge and by counsel for Brown and the government. The order prohibits Brown and all attorneys for the government and the defense from making

any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere witha fair trial or otherwise prejudice Defendant, the Government, or the administration of justice, except that counsel for the Defendant may consult with Mr. Kevin Gallagher regarding the finances needed for Mr. Barrett Brown's defense.

The parties are further prohibited by the order from avoiding its effect through indirect, but deliberate, means. The order states that Brown is permitted continue to make statements and publish on topics not related to the counts on which he was indicted.

Two trials are set in the case. The first trial, relating to the threats allegedly made by Brown, is set to begin on April 28, 2014. The second trial, relating to the charges regarding hyperlinking to stolen data and obstruction of justice, was set to begin on May 19, 2014; however, on March 5, 2014, the Department of Justice voluntarily moved to dismiss the hyperlinking charges.  It is not clear whether this will affect the schedule of the second trial.

Content Type: 

Subject Area: 

Jurisdiction: 

United States v. Puerto 80 Projects, S.L.U.

Threat Type: 

Police Activity

Date: 

01/31/2011

Party Receiving Legal Threat: 

Puerto 80 Projects, S.L.U.

Type of Party: 

Government

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court, Southern District of New York

Case Number: 

11-cv-3983

Legal Counsel: 

Durie Tangri LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Puerto 80 is a solely-owned limited liability company based in Arteixo, Spain. The company operates a website entitled Roja Directa, which provides a chronological listing of sporting events with links to websites that are streaming live broadcasts of those events over the Internet. The website also operates a series of message boards and a small blog.

On January 31, 2011, an agent with the United States Department of Homeland Security, Immigration and Customs Enforcement division, filed an affidavit for a warrant to seize several domain names, including rojadirecta.org and rojadirecta.com. Using a recently-modified civil forfeiture law passed in 2008, the agent alleged that these domain names were property used for the commission of criminal copyright infringement, and thus subject to seizure. According to the United States, Roja Directa linked to websites streaming sporting events, the copyrights of which are owned by the NFL, NBA, NHL, and WWE. These organizations did not license the webcasts. This seizure was part of a larger IP enforcement campaign called Operation in Our Sites, which began in June of 2010 and continues today.

A federal magistrate judge issued a warrant for the seizure of the domain names. This order applied specifically to the URLs only, and not the servers which contain the Roja Directa website. The warrant ordered the domain name registries for the ".com" and ".org" top level domains, as well as Puerto 80's registrar for "rojadirecta.com" and "rojadirecta.org," to transfer ownership of the domain name to the United States, who then displayed a page informing the public that the domain name had been seized.

According to Puerto 80, the company attempted to negotiate with the United States for the return of the domain names, but reached no agreement. On June 13, 2011, Puerto 80 filed a petition for release of its seized property pursuant to 18 U.S.C.§ 983(f) in the United States District Court for the Southern District of New York. Puerto 80 argued that linking to other websites does not constitute criminal copyright infringement, there is no risk that evidence will be unavailable should the government decide to initiate a forfeiture proceeding, and the restriction of the expressive content of the website before an adjudication of whether the content was infringing was a prior restraint of speech. The United States filed a memorandum in opposition, arguing that the actions of Puerto 80 constituted criminal copyright infringement, to release the domain name would allow continuation of that infringement, and the domain name seizure was not a prior restraint because Roja Directa was able to move the websites to new domains housed outside of the United States.

On August 4, 2011 the district court denied Puerto 80's petition for release.The court did not find the hardship necessary for a § 983(f) dismissal, and suggested that the First Amendment arguments were best left to a motion to dismiss against the forfeiture complaint. Puerto 80 filed an appeal to the United States Court of Appeals for the Second Circuit on August 18, 2011, and shortly thereafter filed a motion for expedited appeal, which the Second Circuit granted.

Puerto 80 filed its opening brief to the Second Circuit on September 16, 2011. The United States filed a response brief on November 15, 2011. The court also accepted an amicus curiae brief from the Electronic Frontier Foundation, filed on November 22, 2011.

Puerto 80's reply brief to the government's response is due on December 6, 2011, with argument before the Second Circuit slated for the week of December 19th.

Content Type: 

Subject Area: 

Jurisdiction: 

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: 

Debugging Legislation: PROTECT IP

There's more than a hint of theatrics in the draft PROTECT IP bill (pdf, via dontcensortheinternet ) that has emerged as son-of-COICA, starting with the ungainly acronym of a name. Given its roots in the entertainment industry, that low drama comes as no surprise. Each section name is worse than the last: "Eliminating the Financial Incentive to Steal Intellectual Property Online" (Sec. 4) gives way to "Voluntary action for Taking Action Against Websites Stealing American Intellectual Property" (Sec. 5).

Techdirt gives a good overview of the bill, so I'll just pick some details:

  • Infringing activities. In defining "infringing activities," the draft explicitly includes circumvention devices ("offering goods or services in violation of section 1201 of title 17"), as well as copyright infringement and trademark counterfeiting. Yet that definition also brackets the possibility of "no [substantial/significant] use other than ...." Substantial could incorporate the "merely capable of substantial non-infringing use" test of Betamax.
  • Blocking non-domestic sites. Sec. 3 gives the Attorney General a right of action over "nondomestic domain names", including the right to demand remedies from (A) domain name system server operators, (B) financial transaction providers, (C), Internet advertising services, and (D) "an interactive computer service (def. from 230(f)) shall take technically feasible and reasonable measures ... to remove or disable access to the Internet site associated with the domain name set forth in the order, or a hypertext link to such Internet site."

Subject Area: 

Jurisdiction: 

Universal v. Reimerdes

Date: 

01/14/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Shawn Reimerdes; Eric Corley; Roman Kazan; and 2600 Enterprises, Inc.

Type of Party: 

Large Organization
Media Company

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York; United States Court of Appeals for the Second Circuirt

Case Number: 

00-CV-0277 (district court); 00-9185 (appeal)

Legal Counsel: 

Martin Garbus, George E. Singleton, David Y. Atlas, Edward Hernstadt - Davis & Gilbert LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued
Settled (partial)

Description: 

In 2000, several movie studios filed suit against Shawn Reimerdes, Roman Kazan, and Eric Corley after 2600.com published the DVD descrambling program DeCSS, which allowed users to circumvent anti-piracy protections allegedly in violation of the Digital Millennium Copyright Act. Judge Kaplan of the United States District Court for the Southern District of New York granted the plaintiffs' request for a permanent injunction, and the United States Court of Appeals for the Second Circuit affirmed the decision. 

Near the outset of the lawsuit, the district court granted the plaintiffs' request for a preliminary injunction barring the defendants from posting DeCSS. Despite the order, Corley continued to engage in what he termed "electronic civil disobedience" by posting links on 2600.com to other sites that made DeCSS available. In the spring of 2000, Kazan and Reimerdes reached separate settlements with the plaintiffs in which they agreed to permanently refrain from posting DeCSS or linking to other sites that make DeCSS available. On April 10, 2000, 2600 Enterprises, Inc., was added as a defendant.

In district court, the defendants argued that their conduct did not violate the DMCA and that application of the DMCA to their activities violated the First Amendment.  The court rejected these contentions, reasoning that, while computer code is entitled to First Amendment protections, the DMCA restricts the non-expressive aspect of code -- the functional act of descrambling. The court held that the anti-trafficking provision of the DMCA, as applied to DeCSS code, is a content neutral regulation that furthers an important governmental interest and which does not unduly restrict expressive activities. The court also ruled that it could enjoin and impose liability for linking to websites publishing DeCSS so long as "those responsible for the link (a) know . . . that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not be lawfully offered, and (c) create or maintain the link for the purpose of disseminating that technology." The court found that the defendants' conduct satified these criteria.

On May 30, 2001, the Second Circuit Court of Appeals affirmed the lower court's decision. 

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

PACER does not have the case documents.  The important ones probably can be found through searching, since this was a huge case.

Also, any number of new/discussion links are available through a quick search.

 

CaityR editing

7/10/09 - CMF 

Jurisdiction: 

Eppley v. Iacovelli

Date: 

03/30/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Lucille Iacovelli

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Indiana

Case Number: 

1:09-cv-00386

Legal Counsel: 

Lucille Iacovelli - Pro Se

Publication Medium: 

Blog
Email
Forum
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

On March 30, 2009, Dr. Barry Eppley, a plastic surgeon in the Indianapolis area, filed a lawsuit against former patient, Lucille Iacovelli.  The complaint included claims for defamation, trade disparagement, harassment, false designations and descriptions of fact, and false light publicity based on webpages, videos, and postings Iacovelli allegedly made regarding her past surgery experience with Eppley.  Eppley also asked for a temporary restraining order prohibiting Iacovelli from carrying out or writing about an alleged plan to commit suicide and publicize it in order to destroy his career. 

The court granted a temporary restraining order preventing Iacovelli from publishing anything related to a suicide attempt, her prior treatment by Eppley, or commenting on Eppley's role in preventing the suicide attempt the same day. Following a hearing on April 8, 2009, U.S. District Court Judge Sarah Barker issued an order extending the temporary restraining order until April 18. 

On April 9, 2009, Iacovelli filed an answer to Eppley's complaint and counter sued Eppley, his lawyer Todd Richarson, and Lewis & Kappes (Richardson's law firm). On April 13, 2009, the court accepted Iacovelli's answer to the complaint but rejected her counterclaims as not conforming to the Federal Rules of Civil Procedure. 

On April 17, the court granted Eppley's motion for a preliminary injunction.  The court found that Iacovelli's speech would not likely be protected by the First Amendment due to its defamatory and likely false nature as well as its lack of advancement of debate on a public issue. 

The preliminary injunction prevents Iacovelli or anyone in active concert with her from posting on the internet or emailing about Eppley, Eppley's attorneys, Lewis & Kappes, or referencing Eppley's actions with respect to Iacovelli's suicide threats.  It also requires her to remove any information about Eppley from any websites she controls, remove www.eppleyplasticsurgerysucks.com, www.barryeppleyplasticsurgeon.com, and www.lewis-kappessucks.com in their entirety, and refrain from registering any new websites that use Eppley's name.  It also requires her to remove any links to the listed websites until the conclusion of the lawsuit. 

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Source: IBJ.com

RPK

Jurisdiction: 

AP Tells Google and Other News Aggregators to Pay Up or Face Lawsuits

The Associated Press has announced that it is willing to fight over the question of who owns the content its member newspapers produce, even if it means no longer playing nice with the giants of the Web like Google.

Subject Area: 

Ezzo v. Google

Date: 

03/17/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Google, Inc.; AOL.com; Time Warner, Inc.; GetMeQuotes.com; FindCosmeticSurgeons.com; DoctorsSayYes.com; My Choice Medical Acquisition Sub Inc.; FindYourPlasticsurgeon.com; Baskettcase Web Development; IEnhance.com; PlasticSurgery.com; PlasticSurgery.

Type of Party: 

Individual

Type of Party: 

Organization
Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Florida

Case Number: 

2:09-cv-159

Legal Counsel: 

James Anthony Bombulie; James M. Miller; Samuel S. Heywood

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Jamil E. Ezzo, who holds a Supplemental Register trademark in the phrase "Locate Plastic Surgeon," sued Google, AOL.com, various plastic-surgery websites, and other defendants over their alleged use of the phrase.  Ezzo's Supplemental Register trademark is a federally-registered trademark that does not carry all of the legal protections enjoyed by full-fledged trademarks in the Principal Register.

Ezzo's pro se Complaint accuses the defendants of profiting through the improper use of his trademark.  Though the specifics of the defendants' alleged actions are not clear, it appears that Ezzo takes issue with the websites' use of the phrase in keyword advertising.  Ezzo's primary legal claim is fraud; he does not bring direct claims of trademark infringement.  The fraud appears to arise from occasions when the defendants' allegedly "fraudulently induced plaintiff to enter into the written and oral agreements," though the complaint does not describe the substance of these agreements.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Source: Marc Randazza/CMLP Blog

Jurisdiction: 

Knight-McConnell v. Cummins

Date: 

07/07/2003

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Mary Cummins

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York

Case Number: 

1:03-cv-05035

Legal Counsel: 

Mary Cummins (Pro Se)

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On July 7, 2003, Kathy Knight-McConnell sued Mary Cummins for securities law violations, trademark infringement, defamation, and other claims in federal court in New York.  At the time of the litigation, Knight-McConnell ran a forum for investor discussions and published a newsletter on various stocks.  According to a court decision in the case, Cummins, a stock trader from California, posted statements on website discussion groups and on her own website describing Knight-McConnell as a securities fraud "criminal," "insane," "paid to lie to investors," and "obese," among other things.  

In addition, Knight-McConnell alleged that Cummins intentionally maligned certain stocks that she promoted in order to drive their price down in violation of the securities laws.  Knight-McConnell also claimed that Cummins violated trademark law by linking to Knight-McConnell's website without permission, using Knight-McConnell's name in the post-domain path of URLs for seven of her web-pages, and posting liniks on Internet chat forums and discussion boards directing users to visit these pages."  

In a July 2004 opinion, Judge Buchwald dismissed the securities and trademark claims.  The court indicated that Knight-McConnell had no standing to bring a securities law claim because she did not allege that she purchased or sold the stocks in question in reliance on any statement by Cummins.  The court dismissed the trademark claim because linking to Knight-McConnell's site without permission was not likely to cause confusion as a matter of law:

Even if we assume that plaintiff's name is a valid and protectible mark, plaintiff has not alleged that the defendant engaged in any conduct that is likely to cause confusion as to the origin of the defendant's website.  The mere appearance on a website of a hyperlink to another site will not lead a web-user to conclude that the owner of the site he is visiting is associated with the owner of the linked site.  This is particularly true in this case because defendant's website advertises real estate and web design services, not investment services, and defendant is continuously dissassociating herself from plaintiff by criticizing her and accusing her of misconduct.

Judge Buchwald also determined that using Knight-McConnell's name in URL paths was not likely to cause confusion as a matter of law because a URL "merely shows how the website's data is organized within the host computer's files" and does not suggest affiliation, source, or sponsorship.

Looking at Knight-McConnell's many state law claims, Judge Buchwald determined that the complaint likely stated a cause of action for defamation, but that a defamation claim was not sufficient to confer personal jurisdiction on the court.  Buchwald indicated that Knight-McConnell's tortious interference with contract claim might be sufficient to establish jurisdiction under New York's long-arm statute, but that Knight-McConnell had failed to adequately plead this cause of action.  The court dismissed the complaint without prejudice and granted Knight-McConnell permission to amend her complaint.

Knight-McConnell amended her complaint, but, upon a renewed motion by Cummins, Judge Buchwald dismissed the case for lack of personal jurisdiction in June 2005.  

CMLP Notes: 

Source: LexisNexis

Documents not available on PACER.  Order granting defendant's motion to dismiss on Lexis as 2005 U.S. Dist. LEXIS 11577.

RPK

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

Preliminary Thoughts on GateHouse Media v. New York Times Company

Like a storm coming over the horizon, the recent lawsuit filed by GateHouse Media against the New York Times Company, which operates Boston.com, has thrown the CMLP into disarray just as we were preparing to depart to warmer climes for the holidays.

Subject Area: 

Jurisdiction: 

GateHouse Media v. New York Times Company

Date: 

12/22/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

The New York Times Co. d/b/a Boston.com

Type of Party: 

Media Company

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts (Boston)

Case Number: 

1:08-cv-12114

Legal Counsel: 

Mark S. Puzella, Richard D. Hosp, Parker H. Bagley, Ira J. Levy, Michael T. Jones - Goodwin Procter, LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

GateHouse Media, which operates more than 375 newspapers (in New England and elsewhere) and associated websites, filed a lawsuit against the New York Times Company in U.S. District Court in Massachussets, claiming, among other things, that headlines from -- and links to -- GateHouse content on Boston.com's "Your Town" sites constitute copyright and trademark infringement.  The New York Times Co., which owns the Boston Globe, operates local sites — currently in Newton, Needham, and Waltham, MA — that aggregate local content from the Globe, area blogs, and other newspaper websites, including GateHouse's Wicked Local websites.  

On December 22, 2008, GateHouse filed an eight count complaint against the New York Times alleging breach of contract, copyright infringement, false advertising, trademark infringement, trademark dilution, unfair competition, and unfair business practices.  On the same day, GateHouse also filed a motion for a temporary restraining order and preliminary injunction.

In a statement on Boston.com, New York Times spokeswoman Catherine Mathis said the company is simply doing what hundreds of other news sites already do -- aggregate headlines and snippets of relevant stories published elsewhere on the Web -- and believed GateHouse's lawsuit was without merit:
"Far from being illegal or improper, this practice of linking to sites is common and is familiar to anyone who has searched the Web," Mathis said. "It is fair and benefits both Web users and the originating site."

Update:

12/22/08 - Judge Young denied GateHouse's request for a temporary restraining order and set a hearing on plaintiff's motion for a preliminary injunction for January 5, 2009.  The court indicated that the motion for a preliminary injunction will be "collapsed with a trial on the merits."

12/30/08 -  Parties filed a joint motion (ordered by the Court) to set a trial date of January 26, 2009.  Fact discovery is to be completed by January 16.

1/12/09- GateHouse filed an Unopposed Motion for Ruling on Jurisdiction, arguing that the Court has jurisdiction over its copyright claims even though the Copyright Office has not yet issued a certificate of copyright for the works at issue.

1/16/09 - New York Times Company filed a Motion To Join Globe Newspaper Company, Inc. and Boston Globe Electronic Publishing, Inc., and Leave To File Answer, Affirmative Defenses And Counterclaims including a proposed Answer, Affirmative Defenses and Counterclaims.

1/21/09 - Court granted (without a written order) the New York Times Company's motion for joinder.

1/22/09 - GateHouse filed a proposed amended complaint.

1/26/09 - Case dismissed due to settlement.  The New York Times has posted a copy of the Letter Agreement between the parties.

1/27/09 - Rick Daniels, president of GateHouse Media New England, sent a memo to GateHouse employees describing the company's reasons for settling the lawsuit.

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

GateHouse v NY Times Co.: Not So Simple After All

One of the most intriguing current media legal cases pits GateHouse Media, which owns a pile of newspapers in New England (and elsewhere) against the New York Times Co., owner of the Boston Globe and Boston.com. I’ve been looking at this from both sides’ perspectives, and this is not as simple as it looks on first glance.

Subject Area: 

Jurisdiction: 

Jurisdiction: 

Jones Day Gets Trademark Law Wrong, Squelches Legitimate Reporting

Paul Alan Levy of Public Citizen published a fantastic post on Friday about big law firm Jones Day's lawsuit against BlockShopper.com, an online real estate news website covering Chicago, South Florida, Las Vegas, and St.

Jurisdiction: 

Subject Area: 

Content Type: 

Jones Day v. BlockShopper LLC

Threat Type: 

Lawsuit

Date: 

08/12/2008

Party Receiving Legal Threat: 

BlockShopper LLC; Brian Timpone; Edward Weinhaus

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Illinois

Case Number: 

08 CV 4572

Legal Counsel: 

Martin B. Carroll, Adam A Hachikian, Daniel S. Hefter - Fox, Hefter, Swibel, Levin & Carroll, LLP; James A. Klenk - Sonnenschein, Nath & Rosenthal

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Founded in 2006, BlockShopper.com is a start-up local online real estate news service covering Chicago, South Florida, Las Vegas, and St. Louis. Its reporting staff is made up of ex-print journalists who collect public real estate sales data, then use information in the public domain (e.g. company web sites) to write news stories about recent transactions. BlockShopper currently produces upwards of 1,000 stories per month and has produced more than 8,000 since its founding, many of which appear in print newspapers as part of content-sharing partnerships with companies like Tribune. Three of those stories, all on BlockShopper's Chicago web site, reported the real estate transactions of partners and associates from Jones Day, the large international law firm.

Jones Day sued BlockShopper.com on Aug. 12, 2008 in federal court in Illinois. The complaint alleges that Blockshopper.com infringed and diluted the firm's service mark and violated state trademark and unfair competition laws by using the word "Jones Day" when referring to the real estate transactions of Jones Day attorneys, linking to its site and using lawyers’ photos from its site. The firm contends that these activities creates the false impression that Jones Day is affiliated with or sponsors BlockShopper.com.

Jones Day sought a temporary restraining order preventing BlockShopper from writing about its lawyers or linking to its web site. BlockShopper agreed to take down the three stories temporarily, to avoid the expense of arguing both a TRO and then the complaint itself against a large law firm. Its executives say they believe the suit is frivolous and they plan to fully defend themselves. Jones Day told BlockShopper it would drop the case if BlockShopper paid it $10,000 and agreed to never write about its lawyers' real estate transactions again, according to the National Law Journal. BlockShopper declined the offer.

Trial is set for late February 2009.

Update:

09/19/2008 - BlockShopper and individual defendants Timpone and Weinhaus field a motion to dismiss the complaint. Public Citizen, EFF, Public Knowledge, and Citizen Media Law Project moved for permission to file an amici curiae brief in support of BlockShopper's motion.

09/23/2008 - Jones Day filed a memorandum in opposition to Amici's motion for permission to file an amici curiae brief.

09/24/2009 - Amici filed a reply memorandum in support of their motion for permission to file an amici curiae brief.

11/13/08 - The court granted defendants' motion to dismiss the claims against individual defendants Timpone and Weinhaus, but otherwise denied the motion. The court also denied the motion of EFF, Public Citizen, Public Knowledge, and Citizen Media Law Project for permission to file an amici curiae brief.

02/11/09 - According to Alison Grant, a reporter for The Plain Dealer, the parties have settled - the settlement allows BlockShopper to continue linking to the Jones Day site, so long as it does not use embedded links.

02/13/09 - The parties filed a stipulation of dismissal pursuant to the settlement.

Content Type: 

Subject Area: 

Threat Source: 

User Submission Form

CMLP Notes: 

Updated 2/11/09 - VAF

Jurisdiction: 

Wisconsin Website Operator Files Lawsuit Over Frivolous Demand to Take Down Link to Local Police Department

I just updated one of the more frivolous entries in our legal threats database, which has now spurred a federal lawsuit.  While it is barely worth blogging about, I thought it might be valuable as a cautionary tale for those who believe sending cease-and-desist letters is a no-lose proposition.   

Subject Area: 

Jurisdiction: 

Pages