Third-Party Content

HIMSS v. PedSource

Date: 

02/25/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Chilmark Research; Physician's Computer Company

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

Lawyers from the Healthcare Information Management and Systems Society (HIMSS), a health care industry trade group, sent letters to two bloggers demanding that they remove allegedly offensive and defamatory user comments, provide any information that may help in the identification of the comment posters, and preserve all records relating to the posters.  Specifically, the letters concern a comment by “Rocky Ostrand” on Chip Hart's blog, “Confessions of a Pediatric Practice Consultant,” which is hosted at pedsource.com, a service provided by Physician's Computer Company (PCC); and comments by “Calvin Jablonski” on the blog of Chilmark Research.

Both bloggers have posted responses to the letters, refusing to remove the allegely defamatory comments or provide information to aid in identifying the potentially pseudonymous commenters.  Both have, however, offered to post any response to the comments which HIMSS may wish to make.  At this point, it does not appear that HIMSS has taken either blogger up on this offer.

Jurisdiction: 

Priority: 

1-High

CMLP Notes: 

Source: Legal Blog Watch

LB - 06/12/2009

Content Type: 

Subject Area: 

Ascentive v. 1ShoppingCart.com

Date: 

02/13/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

1ShoppingCart.com; Rob Cheng; PCPitstop, LLC; Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual
Organization
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the District of Oregon

Case Number: 

3:09-cv-00186-HU

Legal Counsel: 

Christopher W. Angius - Holland & Knight, LLP (PCPitstop, LLC)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Withdrawn

Description: 

On February 13, 2009, Ascentive LLC, a company that develops software such as FinallyFast to improve computer performance, sued PCPitstop and its CEO, Rob Cheng, along with 1ShoppingCart.com, a conveyer of eCommerce software and ad-tracking services, and ten anonymous posters on PCPitstop’s forums.  Ascentive alleges that PCPitstop, assisted by 1ShoppingCart, purchased search keywords tied to Ascentive’s “FinallyFast.com” trademark on Google and Yahoo!.  The complaint also alleges that false and defamatory statements regarding Ascentive’s software was posted to PCPitstop’s forum by PCPitstop employees and/or third parties.  Ascentive is represented by Steven T. Lovett and Marc Alifanz of Stoel Rives LLP, while PCPitstop is represented by Christopher W. Angius of Holland & Knight LLP.

The six-count complaint alleges trademark infringement, unfair competition, and vicarious and contributory Lanham Act violations against PCPitstop, Rob Cheng, and 1ShoppingCart with respect to the alleged purchase of search keywords tied to Ascentive’s “FinallyFast.com” trademark.  It also alleges breach of contract against PCPitstop and Mr. Cheng for the alleged resumption of trademark-linked keyword purchasing in January 2009, after Mr. Cheng had allegedly agreed to curtail such activities in July 2008.  Finally, the complaint alleges defamation against PCPitstop and Does 1-10 for allegedly false factual statements posted to PCPitstop’s forum.  The complaint alleges that such statements include the following assertions:
  • FinallyFast is a “scam”;
  • Ascentive “promotes adware and phishing scams”;
  • FinallyFast is “very difficult to get off” of a computer once installed;
  • “Ascentive products are known to scare the user with a long list of false positive results” ;
  • “It is likely that these products are cheap knock-offs of well known freeware products”; and
  • Dealing with companies such as Ascentive includes the danger that “the program will actually do your computer more harm than good.”
Compl. ¶¶ 65, 67.

Ascentive is seeking an injunction to prevent:
  • The purchase or use of Ascentive’s trademarks or similar marks or names by PCPitstop, its advertisers, and affiliates in connection with search keywords or any products not authorized by Ascentive;
  • Any conduct by PCPitstop’s advertisers or affiliates that would confuse purchasers into believing any of PCPitstop’s products are associated with or authorized by Ascentive;
  • Unfair competition by PCPitstop, its advertisers, and affiliates with Ascentive; and
  • The publication or posting of false and defamatory statements regarding Ascentive or its products on the PCPitstop website.
Compl. (Prayer for Relief) ¶ a.  Ascentive seeks damages sustained in consequence of the alleged trademark infringement, unfair competition, breach of contract, and defamation.  It also seeks accounting for gains, profits, and advantages derived from PCPitstop’s alleged infringement and unfair competition.  Ascentive is seeking trebled damages under section 1117 of the Lanham Act.

On April 28, 2009, Ascentive voluntarily dismissed its case, with prejudice.

Jurisdiction: 

CMLP Notes: 

Source: Dozier Internet Law

LB 06/02/2009

Priority: 

1-High

Content Type: 

Subject Area: 

La Russa v. Twitter, Inc.

Date: 

05/05/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Twitter, Inc.; Does 1-25

Type of Party: 

Individual

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Superior Court of the State of California, City and County of San Francisco; United States District Court for the Northern District of California

Case Number: 

CGC-09-488101 (state); 3:09-cv-02503-EMC (federal)

Legal Counsel: 

Leslie A Kramer, Rodger R. Cole, Songmee L. Connolly - Fenwick & West LLP;

Publication Medium: 

Micro-blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

Anthony La Russa, manager of the St. Louis Cardinals, sued Twitter after an unknown Twitter user created an account at twitter.com/TonyLaRussa and pretended to post updates as La Russa. The fake Twitter page included La Russa's photo and a handful of vulgar and apparently Cardinals-related updates. One line of the "profile" suggested it was all a fake: "Bio Parodies are fun for everyone."

La Russa's complaint alleged that the fake Twitter page constituted trademark infringement and dilution, cybersquatting, and misappropriation of name and likeness.  According to the San Francisco Chronicle, La Russa's attorney tried to contact Twitter before filing the lawsuit, but got no response. Hours after the lawsuit was filed, Twitter removed the fake La Russa page and its postings. 

UPDATE: 

6/5/2009 - Twitter removed the case to the United States District Court for the Northern District of California.  STLToday.com reported that the parties had settled, citing La Russa as the source of the information.

6/6/2009 - Twitter denied reports that it had settled the lawsuit.

6/26/09 - La Russa filed a notice of voluntary dismissal after the parties settled the case.

Jurisdiction: 

Content Type: 

Subject Area: 

South Carolina Attorney General Agrees to Temporary Restraining Order in Craigslist Suit

Today, a federal district court in South Carolina issued a consent order temporarily restraining South Carolina Attorney General Henry McMaster from "initiating or pursuing any prosecution against craigslist or its officers and employees in relation to content posted by third parties on craigslist's website." The order specifies that it is issued "by agreement of the parties.&qu

Jurisdiction: 

Subject Area: 

Yahoo! Petitions for Rehearing in Barnes v. Yahoo!, CMLP Joins Amicus Coalition in Support

Yesterday, Yahoo! filed a petition for rehearing in Barnes v. Yahoo!, a case in which the Ninth Circuit recently held that Cecilia Barnes could pursue a promissory estoppel claim against Yahoo!

Jurisdiction: 

Subject Area: 

Craigslist Dropping 'Erotic Services' Section, No Word On Whether State AGs Will Drop Their Bullhorns

The Associated Press is reporting that craigslist has decided to replace the "erotic services" section of its site with a new adult category that will be reviewed by craigslist staff (craigslist just issued a statement confirming the change).  The decision follows several months of pressure from officials in a number of states who have been trying to force the onlin

Jurisdiction: 

Subject Area: 

Barnes v. Yahoo: Section 230 Does Not Insulate Online Service Provider From Contractual Liability

This is an interesting Section 230 decision from the Ninth Circuit that clarifies one of the many possible lines between enjoying Section 230 protection and losing it, namely what kinds of legal claims treat an interactive computer services as a "publisher or speaker" within the meaning of the statute and what kinds do not.

Jurisdiction: 

Subject Area: 

South Carolina Attorney General Threatens Craigslist With Criminal Prosecution Over User Content

A new sortie in the battle over craigslist's "erotic services" section came today when South Carolina Attorney General Henry McMaster sent a letter to craigslist CEO Jim Buckmaster threatening company management with "criminal investigation and pros

Jurisdiction: 

Subject Area: 

South Carolina v. Craigslist

Date: 

05/05/2009

Threat Type: 

Criminal Investigation

Party Receiving Legal Threat: 

Craigslist, Inc.

Type of Party: 

Government

Type of Party: 

Organization

Court Name: 

United States District Court for the District of South Carolina

Case Number: 

2:09-cv-01308

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

On May 5, 2009, South Carolina Attorney General Henry McMaster sent a letter to craigslist CEO Jim Buckmaster threatening company management with "criminal investigation and prosecution" over the website's erotic services section, as well as "the unrestricted manner in which graphic pornographic pictures are posted and displayed by users on the craigslist site and their accessibility to minors."  The letter demanded that craigslist permanently remove those portions of the site "containing categories for and functions allowing for the solicitation of prostitution and the dissemination and posting of graphic pornographic material" by May 15, 2009. 

Buckmaster posted a response on the craigslist blog, stating that, while the company looks forward to speaking with Mr. McMaster about his concerns, it "see[s] no legal basis whatsoever for filing a lawsuit against craigslist or its principals and hope[s] that the Attorney General will realize this upon further reflection." 

Update:

5/12/2009 - After conferring with other state AGs, craigslist voluntarily dropped its "erotic services" section and said it would replace it with a new "adult services" category that will be manually reviewed by Craigslist staff.

5/15/2009 - South Carolina AG McMaster announced that he had "no alternative but to move forward with criminal investigation and potential prosecution" because the website "continues to display advertisements for prostitution and graphic pornographic material."

5/20/09 - Craigslist filed a lawsuit against McMaster in South Carolina federal court, seeking a declaration that its conduct is lawful and an injunction prohibiting McMaster from making further threats of prosecution and pursuing any such prosecution.

5/22/09- McMaster agreed to entry of a temporary restraining order pending a ruling on the merits of craigslist's claims.  He will refrain from "initiating or pursuing any prosecution against craigslist or its officers and employees in relation to content posted by third parties on craigslist's website."

Jurisdiction: 

Content Type: 

Subject Area: 

Ecommerce Innovations v. Doe (Subpoena)

Date: 

08/05/2008

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Xcentric Ventures, LLC

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Arizona

Case Number: 

2:08-mc-00093 (trial); 09-15488 (appeal)

Legal Counsel: 

David S. Gingras - Jaburg & Wilk, P.C.

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Subpoena Enforced

Description: 

On July 14, 2008, Ecommerce Innovations filed a suit in the Central District of California against several Does alleging defamation and trade libel for posts on Ripoff Report, a website that allows users to post reports about individuals and companies that they believe have "ripped them off" or treated them unfairly.  After filing suit, Ecommerce served a subpoena on Xcentric Ventures, LLC, the operator of Ripoff Report, seeking the identities of the anonymous posters.  Counsel for Xcentric objected to the subpoena, and Ecommerce filed a motion in federal district court in Arizona, seeking to compel Xcentric to produce the requested information.

The district court ordered Xcentric to complay with the subpoena.  In its ruling, the court held that Ecommerce was required to present evidence sufficient to survive a motion for summary judgment for those elements of its defamation or trade libel claim that were not dependent upon knowing the identity of the anonymous poster. The court analyzed five specific allegedly defamatory statements and concluded that Ecommerce had presented evidence sufficient to survive summary judgment with respect to one of the statements.

Xcentric moved to stay the order pending appeal to the Ninth Circuit, and the district court granted the stay, finding that the question of what standard to apply before ordering disclosure of anonymous Internet posters was significant and unanswered by the Ninth Circuit.  The court also found that Xcentric could face serious hardship because "[o]nce the identity of the anonymous poster is revealed, relief from the Ninth Circuit will no longer be available to Xcentric."

Xcentric filed a notice of appeal on March 6, 2009.  According to the docketing statement, the issues on appeal are as follows: "(1)Whether, in light of the First Amendment's protection of anonymous speech, the District Court applied the correct standard for a subpoena seeking to obtain the identity of an anonymous author; and (2) whether the District Court erred in finding that Plaintiff/Appellee met its burden of presenting evidence sufficient to overcome the First Amendment rights of the anonymous author?"

Jurisdiction: 

CMLP Notes: 

Source: Eric Goldman

RPK

Priority: 

1-High

Content Type: 

Subject Area: 

Joyner v. Lazzareschi

Date: 

09/26/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jerry Lazzareschi; www. socalsoccertalk.com; Domains By Proxy, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Intermediary

Court Type: 

State

Court Name: 

Superior Court of California, County of Orange; Court of Appeal of California, Fourth Appellate District

Case Number: 

05CC10627 (trial); G040323 (appeal)

Legal Counsel: 

Timothy L. Walker and K. Michele Williams - Ford, Walker, Haggerty & Behar (for Lazzareschi)

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Jeffrey Joyner, a California soccer coach, sued Jerry Lazzareschi, the operator of the forum Soccertalk.com, and his domain registrar Domains by Proxy, Inc., after a number of allegedly false and defamatory statements about Joyner appeared on Lazzareschi's forum site.  

Joyner coached two soccer teams for teenage girls, and in 2004 he merged the teams causing what a California appeals court called "parental unrest and heated discussion in the girls' soccer community."  The controversy over the team merger spilled onto the Internet and generated over 2000 posts on Sockertalk.com.  According to court documents, Joyner alleged that some of these posts falsely accused him of "financial improprieties," described him as "a cheater and a thief," and accused him of incompetence and "coach[ing] his . . . team . . . into the ground," among other things.  The statements were largely posted by unregistered users of the forum, but Joyner also alleged that Lazzareschi created forum thread titles and "republished the[] statements" on other websites "to lure viewers to [his] WEBSITE." 

Joyner filed suit against Lazzareschi and Soccertalk.com for defamation, negligence, negligent training/supervision, interference with contractual relations, interference with prospective economic advantage, and intentional infliction of emotional distress.  Joyner's complaint also contained a cause of action for fraud against Domains by Proxy for permitting Lazzareschi to obtain and register his domain name anonymously.  

The defendants moved to strike the complaint under California's anti-SLAPP law (Cal. Code Civ. Proc. § 425.16), and the trial court granted the motion.  On appeal, the California Court of Appeal, Fourth Appellate District, reversed, finding that the statements did not relate to a matter of public interest within the protection of the anti-SLAPP law.  After the case returned to the trial court, Lazzareschi moved for summary judgment, and the trial court granted the motion and dismissed the case against him, ruling that section 230 of the Communications Decency Act ("Section 230") barred Joyner's claims based on third-party content.  Joyner appealed.

The California Court of Appeal affirmed, holding that Section 230 gave Lazzareschi immunity for publishing the comments of his forum users.  The court concluded that Lazzareschi, as a website operator, qualified as the provider of an "interactive computer service" and that all of Joyner's claims treated him as a "publisher or speaker" of third-party content.  The court also ruled that Joyner's claim that Lazzareschi republished the defamatory content on other websites in order to "advertise" his forum was irrelevant because "the view that actively selected and republished information is no longer 'information provided by another information content provider' under section 230(c)(1) is groundless." 

The court also rejected Joyner's argument that, under the Ninth Circuit's opinion in Roommates.com, Lazzareschi lost his immunity by creating forum thread titles and deleting positive posts.  The court indicated that starting threads on topics of interest "is not by itself defamatory" because "positive messages about plaintiff or messages defending him could be and were posted under [the threads]."  The court also found that Joyner produced no evidence that Lazzareschi ever deleted positive messages about him. The court explained that, unlike in the Roommates.com scenario, no evidence -- let alone 'direct and palpable' evidence -- connected defendant to a posting or filtering process that was discriminatory or defamatory against plaintiff."

The case still appears to be pending against Domains by Proxy in the trial court. 

UPDATE: On 08/22/2008, the court granted Domains by Proxy Inc's motion for summary judgement. It appears that the court awarded fees to Domains by Proxy, since Domains submitted a sumary of its court costs on 09/03/2008 and scheduled an examination of judgment debtor on 09/26/2008.

Jurisdiction: 

CMLP Notes: 

Source: Eric Goldman

 

RPK

avm 6/12/09

Priority: 

1-High

Content Type: 

Subject Area: 

Barnes v. Yahoo!

Date: 

05/24/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Yahoo!, Inc.

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal
State

Court Name: 

The Circuit Court of the State of Oregon for the District of Multnomah; United States District Court for the District of Oregon; United States Court of Appeals for the Ninth Circuit

Case Number: 

0505-05520 (Oregon Circuit Court); 6:05-cv-926 (Oregon Federal District Court); 05-36189 (Ninth Circuit)

Legal Counsel: 

Jeffrey A. Johnson, Thomas W. Brown - Cosgrave Vergeer Kester, LLP; Patrick J. Carome, Samir Jain - Wilmer Cutler Pickering Hale & Dorr, LLP

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

On May 24, 2005, Cecilia Barnes filed a lawsuit against Yahoo! for negligently failing to remove unauthorized profiles from its Yahoo! Profiles website.  The profiles were created by Barnes' ex-boyfriend, and contained nude photos of Barnes and her work contact information.  According to the complaint, on March 29, 2005, Yahoo! contacted Barnes and assured her that they would put an end to the unauthorized profiles.  However, the complaint alleges that she continued to be harrassed by strange men.  Barnes claims that when Yahoo! contacted her, they undertook an affirmative duty of care under Oregon law, and this duty was violated when they failed to remove the profiles and prohibit them from being posted again.

On June 23, 2005, Yahoo! removed the case from the Circuit Court of the State of Oregon for the District of Multnomah to the United States District Court for the District of Oregon.  On November 8, 2005, the district court granted Yahoo!'s motion to dismiss the case, finding that 47 U.S.C. §230 immunizes interactive service providers, such as Yahoo!, from liability for failure to screen or remove third-party content.  The Ninth Circuit heard oral arguments in the case on October 14, 2008.

Update:

05/07/2009 - The Ninth Circuit Court of Appeals affirmed in part and reversed in part the district court's order dismissing the case.  The appellate court determined that Barnes' allegations might support a claim for promissory estoppel and held that section 230 would not preempt this claim.

05/21/09 - Yahoo! filed a petition for rehearing.  An amicus coalition consisting of Public  Citizen, the Center for Democracy and Technology, the Citizen Media Law Project, and EFF filed a motion for leave to file an amicus brief supporting Yahoo!'s petition.

06/22/09 - The Ninth Circuit amended its opinion to remove section II of the opinion and to revise footnote 4.  The court denied Yahoo!'s and Barnes' requests for rehearing or rehearing en banc.

12/08/09 - The district court denied Yahoo!'s motion to dismiss Barnes' promissory estoppel claim.

Jurisdiction: 

CMLP Notes: 

Couldn't locate Barnes' opposition to Yahoo's motion to dismiss on PACER or elsewhere online.  Seems not to be available in digital form for some reason.{Reed}

Source: David

Priority: 

1-High

Content Type: 

Subject Area: 

Speed Skater's Mom Sues Google Over Dead Blogger's Post

Earlier this month, Cherie Davis, mother of 2006 gold medal winner Shani Davis, the first African American speed skater to make the U.S. Olympic team, sued Google, Inc. in Illinois state court, seeking an injunction requiring the company to take down a blog post written by deceased sports blogger Sean Healy.

Jurisdiction: 

Subject Area: 

Davis v. Google

Date: 

04/09/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Google, Inc.

Type of Party: 

Individual

Type of Party: 

Large Organization
Intermediary

Court Type: 

State

Court Name: 

Circuit Court for Cook County, Illinois

Case Number: 

09CH15753

Legal Counsel: 

Perkins Coie LLC

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

Cherie Davis, mother of 2006 gold medal winner Shani Davis, the first African American speed skater to make the U.S. Olympic team, sued Google, Inc. in Illinois state court, seeking an injunction requiring the company to take down a blog post written by deceased sports blogger Sean Healy.

Healy published the disputed post in 2006 on his blog, Unknown Column, which is hosted on Google's Blogger service.  In the post, Healy repeated the claim, reported at the time by some mainstream media outlets, including The Associated Press and Chicago Tribune, that Cherie Davis had accused the U.S. Speedskating Federation of racism. (These reports are no longer available online, but The Age, an Australian news outlet, is still carrying a similar story.)  Healy subsequently died of cancer in 2007.  

In her complaint, Davis alleges that Healy's post was false and defamatory, that she cannot bring a lawsuit for damages against Healy because of his death and apparent lack of a probate estate, and that Google "would not be prejudiced by an order enjoining it from continuing to post Healy's statement on Healy's blog, as [Google] has no interest, economic or otherwise, in continuing to post Healy's statement."  Davis seeks an injunction requiring Google to take down Healy's post, as well as payment of legal expenses.

Priority: 

1-High

CMLP Notes: 

JS EDITING: 7/5/11 

 

Source: Eric Goldman; MediaPost

 

KAI 6/5/09

Content Type: 

Threat Source: 

Blog Post

Subject Area: 

Jurisdiction: 

Esfeller v. The Daily Reveille

Date: 

03/16/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Board of Supervisors for Louisiana State University and Agricultural and Mechanical College; Michael Martin; Dr. John Hamilton; James Shelledy; Melissa Moore; The Daily Reveille; Kyle Whitfield; Tyler Batiste; Gerri Sax; Alex Bond

Type of Party: 

Individual

Type of Party: 

Individual
Organization
School

Court Type: 

State

Court Name: 

19th Judicial District Court, Louisiana

Case Number: 

575395

Legal Counsel: 

Taylor Carroll (for Louisiana State University)

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

In March 2009, Terrance Esfeller filed a defamation lawsuit in Louisiana state court against Louisiana State University, its student newspaper The Daily Reveille, faculty advisers to the newspaper, and its top student editors. The lawsuit revolves around anonymous comments posted on the newspaper's website in response to the newspaper's coverage of an ongoing legal dispute with LSU.  After filing suit, Esfeller amended his complaint to include allegations based on a March 12 story the newspaper published about the lawsuit, which republished several of the comments in question.  In the suit, Esfeller sought money damages and an injunction ordering the removal of the comments and preventing further comments about him in the future.

Judge Todd Hernandez dismissed the case March 31, 2009.  He concluded that the newspaper and its operators were protected from liability under Section 230 of the Communications Decency Act for comments made by the website's users.  Esfeller told the Student Press Law Center that he intends to pursue a case directly against the anonymous commenter or commenters and to use discovery to obtain IP addresses and other identifying information.

Jurisdiction: 

CMLP Notes: 

Source: Student Press Law Center

Need to check for appeal

Priority: 

1-High

Content Type: 

Subject Area: 

First Cash Financial Services v. Yahoo! Inc.

Date: 

07/30/2003

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Yahoo! Inc.

Type of Party: 

Organization

Type of Party: 

Large Organization
Intermediary

Court Type: 

State

Court Name: 

Superior Court of California, Santa Clara County

Case Number: 

1-03-CV-002135 (California)

Legal Counsel: 

Mark Goldowitz - California Anti-SLAPP Project; Cindy A. Cohn - Electronic Frontier Foundation

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

First Cash Financial Services, a Texas-based company operating a chain of pawn shops and cash checking services, obtained a subpoena from a California state court requiring Yahoo to provide identifying information for an individual who posted anonymous comments to Fast Cash's Yahoo! Finance message board.  Fast Cash sought the information in order to identify the John Doe defendant in a breach of contract action it had previously filed in Texas state court.  (For details, see the related database entry, First Cash Financial Services v. Doe.)  The anonymous poster intervened and filed a special motion to strike the action (including the subpoena) under California's anti-SLAPP statute.  According to EFF, the California court denied the motion to strike, presumably allowing the subpoena to be enforced.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Subject Area: 

Duffin v. Does

Date: 

03/01/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does; MySpace, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of the State of California, County of Los Angeles

Publication Medium: 

Social Network

Status: 

Concluded

Disposition: 

Material Removed
Settled (partial)
Withdrawn

Description: 

Cyd Duffin, principal of Colony High School in Palmer, Alaska sued MySpace, Inc. and John Doe defendants for defamation and invasion of privacy over the posting of a fake MySpace profile, which falsely depicted her "as a drug-using racist with a sexually transmitted disease who insults disabled students and likes books about pornography, anarchy and the Ku Klux Klan," according to the Anchorage Daily News.  The Anchorage Daily News also reported that Duffin dismissed MySpace from the case after the company agreed to cooperate by turning over records related to the creation of the fake profile.  

UPDATE:

7/14/2009 - Duffin dismissed the suit after two students confessed to authoring the fake profile. Though the two students were punished, Duffin did not disclose the severity of their punishment.

Priority: 

1-High

CMLP Notes: 

Source: Anchorage Daily News

checked 6/18/09; no new info - CMF

UPDATED 7/16/09 AVM added information on dismissal

Content Type: 

Threat Source: 

RSS

Subject Area: 

Jurisdiction: 

D'Amato v. Starr

Date: 

05/18/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David W. Starr; Magic Touch Productions; Kent Barclay; GoDaddy.com; Intercosmos Media Group, Inc. D/B/A Directnic.com; Blogspot.com; Google.com; Blogger.com; Pyra.com, Ltd.; ThePlanet.com; Computer Tyme Hosting

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of New York; United States District Court for the Central District of California

Case Number: 

2:06-cv-02429 (E.D.N.Y.); 2:07-cv-03328 (C.D.Ca.)

Legal Counsel: 

Tonia Ouellette Klausner - Wilson Sonsini Goodrich & Rosati P.C. (for Defendants Blogspot.com, Google.com, Blogger.com, Pyra.com, Ltd.)

Publication Medium: 

Blog
Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied
Withdrawn

Description: 

On May 18, 2006, David D'Amato filed a lawsuit against David Starr, Magic Touch Productions, Kent Barclay, and a number of website hosting companies over allegedly false and defamatory statements posted on various blogs, forums, and websites.  The complaint included claims for defamation, infliction of emotional distress, and unauthorized use of his photograph in violation of New York Civil Rights Law §51 (scroll down).

D'Amato's complaint accuses Starr of posting defamatory statements about D'Amato on at least seven websites and three blogs, including statements that D'Amato is a liar, a pervert, a convicted cyber stalker, and that he poses as a woman online.  The complaint also accuses Starr of posting D'Amato's picture without his consent.  D'Amato testified that he and Starr had had a prior "business relationship" regarding the sale of "tickling fetish videos," according to the report of Magistrate Judge William Wall. 

The complaint also accuses Barclay of posting false and defamatory statements about D'Amato on his websites damonkruezer.net (defunct) and kruezeratnight.com (CAUTION: May Contain Adult Content).  Additionally, the complaint asserts claims against Magic Touch Productions, operator of the forum at ticklingforum.com (CAUTION: Contains Adult Content), and a number of website hosting companies, for failure to remove defamatory statements about D'Amato after receiving notice.  The complaint requested injunctive relief and damages not less than $20 million in total.

On May 19, 2006, the United States District Court for the Eastern District of New York denied D'Amato's request for a temporary restraining order.  On March 27, 2007, the court found that it lacked personal jurisdiction over the defendants and ordered the case to be transferred to the United States District Court for the Central District of California.  On July 16, 2007, D'Amato voluntarily dismissed his action against the defendants without prejudice.  

Jurisdiction: 

CMLP Notes: 

Source: LexisNexis

Priority: 

1-High

Content Type: 

Subject Area: 

Hammer v. Amazon.com

Date: 

08/27/2003

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Amazon.com

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of New York

Case Number: 

2:03-cv-04238-JS-MLO

Legal Counsel: 

Heather J. Windt - Friedman Kaplan Seiler & Adelman LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Self-published author Jeffrey Hammer sued Amazon.com in New York state court (later removed to federal court by Amazon) alleging libel, defamation, antitrust violations, breach of contract, and copyright violations, among others things.  The dispute revolved around negative reviews of Hammer's books posted on Amazon.com by reviewer Anthony Trendl and Amazon's failure to remove Trendl as a reviewer.  Before filing suit against Amazon, Hammer sued Trendl directly, but a federal court dismissed the lawsuit.  (For details, see our database entry, Hammer v. Trendl.) 

Hammer's complaint claimed that Amazon was liable for publishing Trendl's allegedly defamatory statements, that Amazon violated his copyright by displaying a graphic depicting Plaintiff's book cover, and that Amazon breached its contract with him and otherwise violated his rights by removing his books from the site and refusing to do further business with him. 

Amazon moved to dismiss the lawsuit, arguing that Hammer's allegations failed to state a claim and that section 230 of the Communications Decency Act ("Section 230") protected it from liability for publishing Trendl's statements. Amazon also moved the court for a permanent injunction to prevent Hammer from filing future lawsuits against it.

The court granted Amazon's motion to dismiss and partially granted its motion for a permanent injunction against Hammer.  The court ruled that Trendl's comments were statements of opinion that could not support a defamation claim.  The court dismissed the copyright claim, finding that Amazon's use of the book graphic either involved no copying, or alternatively, was authorized by Hammer.  The court found that Amazon was within its contract rights terminating its relationship with Hammer.  The court did not reach Amazon's Section 230 argument.

The court granted an injunction against Hammer preventing him from commencing any action against Amazon in federal court relating to reviews of his books or Amazon's refusal to do business with him.  

Jurisdiction: 

CMLP Notes: 

RPK

Content Type: 

Subject Area: 

New Hampshire Court Tramples on Constitution, Reporter's Privilege, Section 230, What Have You

A reader recently tipped us off to a troubling ruling from a trial court in New Hampshire: The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 08-E-0572 (N.H. Super. Ct. Mar.

Jurisdiction: 

Subject Area: 

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