Third-Party Content

Von Kuersteiner v. Schrader

Date: 

04/18/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Eric Schrader; "Justin"; "Jimmy"; "Joe"; "Seabreeze"; CYDSTRR"; John and Jane Roe 1-100

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

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

Case Number: 

100089/2008

Legal Counsel: 

Fallon & Fallon

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)
Material Removed
Subpoena Quashed

Description: 

Eric Von Kuersteiner, who owns and operates several businesses in the "Pines" beach resort community on Fire Island, New York, sued blog operator Eric Schrader and several anonymous commenters for defamation in New York state court.  Schrader ran the now-defunct pavillion.blog, named after a club owned by Von Kuersteiner.  The blog served as "an Internet discussion board/blog on which participants [could] post comments about social life in the Fire Island Pines community."

According to the court's opinion dismissing the case, anonymous and pseudonymous commenters to the blog made statements critical of Von Kuersteiner and his businesses, accusing him of watering down drinks at his bars, having a stinky septic system, being unsuccessful and losing money, treating employees badly, and not having a women's restroom, among other things.

After filing suit, Von Kuersteiner moved the court for permission to take the deposition of Blog.com, Schrader's blog hosting service, to learn the names, addresses, and IP addresses of the authors of the objectionable comments. Schrader objected to this request and moved to dismiss the complaint on grounds that the posts were not defamatory, and that section 230 of the Communications Decency Act (CDA 230) protected him from liability for the statements of third parties. 

In a decision on October 14, 2008, the court denied Von Kuersteiner's request for permission to take Blog.com's deposition and dismissed the case in its entirety.  The court first dismissed the case against Schrader, holding that he "exercised a publisher's traditional editorial function and is entitled to immunity under the CDA."  The court then denied Von Kuersteiner's discovery request and dismissed the case against the anonymous defendants, holding that the 35 statements Von Kuersteiner complained about were constitutionally protected statements of opinion when considered in context.

Jurisdiction: 

CMLP Notes: 

Time for appeal not yet passed.  Monitor docket. smb

 

 

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Beard v. The Portland Mercury

Date: 

03/24/2008

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

The Portland Mercury; Willamette Week

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

State

Court Name: 

Clackamas County Circuit Court, Oregon Judicial Department 5th Judicial District

Case Number: 

CV 0803 0693

Legal Counsel: 

David M. Heineck, Jessica L. Goldman - Summit Law Group PLLC (for The Portland Mercury); Kevin H. Kono - Davis Wright Tremaine LLP (for Williamette Week)

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Quashed

Description: 

In September 2008, an Oregon state judge ruled that Oregon's media shield law, found at Or. Rev. Stat. §§ 44.510 to 44.540, protected the identity of anonymous commenters who posted allegedly defamatory statements on The Portland Mercury and Willamette Week websites.

According to the Portland Mercury, staff writer Amy Ruiz wrote a post in January 2008 about Portland mayoral candidate Sho Dozono.  In the comments section, a site user going by "Ronald" posted negative comments about Dozono's ties to a local businessman, Terry Beard.  The same commenter allegedly posted similar statements on the Willamette Week site. Proceeding anonymously, Beard filed a lawsuit against "Ronald" and other anonymous commenters and served subpoenas on The Portland Mercury and Williamette Week, seeking documents and records identifying them. When the two newspapers objected to the subpoenas, Beard moved to compel them to produce documents identifying the anonymous commenters. The two newspapers teamed up to oppose the discovery request and won. 

Interestingly, Judge James E. Redman of Clackamas County Court did not treat the anonymous commenters as confidential sources.  Section 44.520(a) of the Oregon Revised Statutes protects from disclosure "[t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public." Instead, the court relied on section 44.520(b), which protects "[a]ny unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public."  Section 44.510(1) defines "information" as including "any written, oral, pictorial or electronically recorded news or other data." The court characterized "Ronald's" IP address as data.

On the question of whether the newspapers obtained this data in the course of newsgathering, Judge Redman drew a line based on the relevance of the blog comment to the post it's attached to:

If the comment had been totally unrelated to the blog post, then the argument could be made that the Portland Mercury did not receive it in the "course of gathering, receiving, or processing information for any medium of communication to the public." (source)

Concluding that the IP address fit within the shield law's "broad statutory language," the court denied Beard's motion to compel.

Jurisdiction: 

Content Type: 

Subject Area: 

Holmgren v. Murrieta Opinion

Date: 

03/06/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Murrieta Opinion; About Murrieta; Jeffrey W. Kleiner; John Does

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, Riverside County

Case Number: 

RIC494950

Legal Counsel: 

None

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Roy Holmgren sued the Murrietta Opinion and About Murrieta blogs, as well anonymous operators and/or commenters to these blogs, for defamation in California state court in March 2008. The complaint alleged that the defendants published false statements about Holmgren on the two blogs, including statements that he was a stalker, that he was married to an illegal alien, and that he committed crimes that destroyed property. Cmplt. ¶ 9.

The case did not move forward for several months because Holmgren did not know the identities of the blog operators and commenters. Blogspot, the hosting service for the two blogs, refused to cooperate with Holmgren's request for identifying information.

After some investigation, Holmgren amended the complaint in Sepember 2008, naming Jeffrey Kleiner as the operator of the Murrieta Opinion blog. According to an affidavit, Holmgren mailed the amended complaint to Kleiner, but he has not served or identified any other defendants.

Update:

12/15/2008 - Court issued an Order to Show Cause to Holmgren requiring him to show why sanctions of $150.00 on the 1st Amended Complaint should not be ordered for failure to file proof of service of summons.

Case is ongoing: A case management hearing is scheduled for 8/07/2009.

According to a comment posted below, the plaintiff voluntarily dismissed the case after being unable to locate the defendant.

Jurisdiction: 

CMLP Notes: 

Update 2/12/09 - VAF

AVM 6-15 - 09 , updated and added court docket link

Priority: 

1-High

Content Type: 

Subject Area: 

Riddle v. Myers

Date: 

01/07/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Chris Myers; "Another Leverette Teacher"

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Lucas County, Ohio Court Of Common Pleas

Case Number: 

G-4801-CI-200801115-000

Legal Counsel: 

C. William Bair; Fan Zhang; Salvatore C. Molaro

Publication Medium: 

Website

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Steven Riddle, the principal of Leverette Junior High School, filed a defamation lawsuit against Chris Myers, the operator of SwampBubbles, a website that describes itself as " a user centered site dedicated to breaking news and political discussion of Toledo and Northwest Ohio," claiming that the site has been posting items that are "false and defamatory."

According to the complaint, defamatory postings were written by at least three unnamed people in response to a story on the site about a Leverette school employee charged with sexually assaulting a student. 

Riddle also named as a defendant "Another Leverette Teacher," which the complaint did not name.  According to the ToledoBlade.com, the complaint also requested that Myers be ordered to provide facts that would allow Riddle "to identify the persons who defamed him."

Update:

On March 3, 2008, Meyers filed a Motion For Protective Order and in the Alternative, Motion For Summary Judgment.

On September 23, 2008, the court scheduled an oral hearing on Myers' Motion for Protective Order and in the Alternative, Motion for Summary Judgment for October 30, 2008 at 11:00 a.m.

On November 14, 2008, plaintiff filed a notice of dismissal without prejudice which the Court granted.

Jurisdiction: 

CMLP Notes: 

To-Do: Get court documents

Priority: 

1-High

Content Type: 

Subject Area: 

A Pocono Country Place Property Owners Association v. Sciarrone

Date: 

06/01/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Robert Sciarrone

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Court of Common Pleas of Monroe County Pennsylvania

Case Number: 

6140-EQUITY-2008; 3:08-cv-2312 (federal)

Legal Counsel: 

Stewart I. Rosenblum

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

A Pocono Country Place Property Owners Association and several of its members have sued Robert Sciarrone, the operator of The Pocono SpeakEasy, a forum "[d]edicated for our First Amendment Right to speak out" on issues related to the Pocono region of Pennsylvania. According to the Pocono Record, "Sciarrone often has criticized the board openly in the past for what he views as mismanagement and failure to address quality-of-life concerns in the APCP community."

The plaintiffs' complaint alleges that statements on Sciarrone's site are "false, defamatory and libelous." The complaint does not identify the specific statements plaintiffs assert are defamatory.

In July 2008, Sciarrone filed preliminary objections to the complaint, arguing that the plaintiffs had failed to adequately identify the "exact false and defamatory statements that have caused [them] harm."

On September 15, 2008, the court issued an order sustaining Sciarrone's objections and granting the plaintiffs 20 days to file a more specific amended complaint. The plaintiffs then filed an amended complaint and a motion for a preliminary injunction. Sciarrone filed objections to these pleadings in late September.

Update:

11/2008 - Plaintiffs filed a second amended complaint, and Sciarrone filed objections to it.

12/4/2008 - Plaintiffs filed a third amended complaint.

12/29/2008 - Sciarrone removed the case to federal court (3:08-cv-2312) - M.D. Pa.

01/22/2009 - Plaintiffs moved to remand the case back to state court.

03/25/2009 - According to Sciarrone, the case was remanded to state court.

Jurisdiction: 

CMLP Notes: 

Check http://ourpoconocommunity.com/phpBB2/index.php for case updates.

To-do: Get copies of complaint and other filings. Waiting for response from defendant's lawyer

Updated 1/29/09 - VAF

7/7/09 - no new info (CMF)

Priority: 

1-High

Subject Area: 

Threat Source: 

Google News

Sachay v. Coconate

Date: 

04/04/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Frank Coconate; The Chicago Reader

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Circuit Court of Cook County, Illinois

Case Number: 

No. 2008-CL-003932

Legal Counsel: 

David W. Andich (Chicago Reader); Frank Coconate (Pro Se)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Withdrawn

Description: 

James Sachay, former assistant commissioner of the Chicago’s aviation department, sued Frank Coconate and the Chicago Reader for defamation and false light after the Chicago Reader's Clout City blog published a comment that purported to be written by "Sachay."  According to the complaint, the comment said:

 I am voting for Frank Coconate. I am sorry I challenged his petitions under false pretenses. I am sorry I stole money from Roman Pucinski. I am sorry I got illegal contracts for my son and acted criminally at O'Hare.

Sachay alleges that the comment is false and defamatory and that Frank Coconate, a political rival, posted it.

The Chicago Reader moved to dismiss the complaint, arguing that section 230 of the Communications Decency Act immunized it for publishing the statement of a third party.  In June 2008, Sachay voluntarily dismissed the complaint against the Chicago Reader. The lawsuit against Coconate remains pending.

Jurisdiction: 

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Print-on-Demand Service BookSurge Deemed Not To Be a "Publisher"

Back in July, a federal court in Maine ruled that BookSurge, a print-on-demand service owned by Amazon.com, was not liable for defamatory statements contained in a book it "published" on behalf of one of its clients.  Sandler v. Calcagni, 2008 WL 2761892 (D. Me.

Jurisdiction: 

Subject Area: 

Chicago Lawyers' Committee for Civil Rights Under Law v. Craigslist

Date: 

02/03/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

craigslist, Inc.

Type of Party: 

Organization

Type of Party: 

Intermediary

Court Type: 

Federal

Court Name: 

U.S. District Court for Northern District of Illinois; U.S. Court of Appeals for the Seventh Circuit

Case Number: 

1:06-cv-00657 (trial); 07-1101 (appeal)

Legal Counsel: 

Eric D. Brandfonbrener, Christopher B. Wilson (Perkins Coie)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The Chicago Lawyers' Committee for Civil Rights Under Law ("CLC") sued craigslist for violations of the Fair Housing Act ("FHA") arising from its users' postings of allegedly discriminatory housing ads on the popular classfied advertising site.

Craigslist hosts ads posted by its users on websites in many cities, including Chicago. In the CLC's complaint, it cited a number of ads for housing sales and rentals that included references to gender, race, national origin, and/or religion it claimed were prohibited by the FHA.

On April 14, 2006, craigslist filed a motion to dismiss the case, arguing that section 230 of the Communication Decency Act ("CDA 230") provides total immunity against the CLC's FHA claims. The CLC opposed the motion, arguing that Craigslist was not entitled to immunity under CDA 230 because it failed to make a good-faith effort to screen the offending ads.

In November 2006, the district court granted craigslist's motion and dismissed the case.  The court held that CDA 230 protects providers of interactive computer services from claims that require a finding that the provider published third-party content. Because the FHA bans publication of discriminatory advertisements, the court reasoned that craigslist cannot be liable for FHA violations of its users pursuant to CDA 230.

The CLC appealed to the Seventh Circuit Court of Appeals, which affirmed the lower court's ruling in March 2008.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Subject Area: 

McGeorge Camping Center v. Affinity Group

Date: 

12/13/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Affinity Group, Inc. (dba Delaware Affinity Group, Inc.); Affinity Group, Inc. (trading as RV.net); Jason Duncan, aka "JasonD"; James Hurdle, aka "jim1632"; Houston Reeves, aka "summerduck8"; John Does 1 - 4

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal
State

Court Name: 

Hanover County Circuit Court, Virginia.; United States District Court for the Eastern District of Virginia

Case Number: 

CL07000986-00 (state); 3:08CV038 (federal)

Legal Counsel: 

John B. O'Keefe, Michael D. Sullivan (Levine Sullivan Koch & Schulz) (for Affinity Group); Jason Duncan (Pro Se); Alexander Spotswood de Witt, Theodore Ira Brenner (Brenner Evans & Millman) (for James Hurdle)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

Recreational vehicle dealership McGeorge Camping Center ("McGeorge") sued Affinity Group ("Affinity"), operator of the RV.Net Open Roads Forum, and several posters to the forum. The case revolves around statements accusing certain commenters who made positive statements about McGeorge of being employees or paid agents of the dealership. In its lawsuit filed in Virginia state court, McGeorge claimed that Affinity and the forum posters defamed it and engaged in a civil conspiracy to harm its reputation, trade, or business. 

Affinity removed the case to federal court and moved to dismiss the case for failure to state a claim. It argued that it was protected from liability for third party comments on the forum under section 230 of the Communications Decency Act ("CDA 230"). It argued also that McGeorge had failed to establish a valid defamation claim based on the posters' comments. One of the posters to the forum, James Hurdle, answered the complaint and moved for judgement on the pleadings, arguing that McGeorge had failed to state a claim against him.

Before the district court ruled on these motions, McGeorge moved to remand the case back to state court, arguing that, because Hurdle was a Virginia citizen, his presence among the defendants destroyed the diversity of citizenship necessary to give the federal court subject-matter jurisdiction. The court agreed and remanded the case to state court.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Subject Area: 

Murawski v. Gunzburger

Date: 

11/06/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Ronald Gunzburger; George Pataki; Eliot Spitzer; New York State Board of Elections; Yahoo! Inc.; IAC/Interactive Corp.; Michael Bloomberg; Rudolf Giuliani

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Large Organization
Government

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York

Case Number: 

1:06-cv-12965

Legal Counsel: 

Ronald Gunzburger (Pro se)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

William Murawski, a frequent political candidate, sued Ron Gunzburger, who runs Politics1.com, for defamation and violating his First Amendment rights. Murawski alleged that Gunzburger violated his First Amendment rights by refusing to list his name as a candidatefor New York governor on Politics1.com. He also alleged that Gunzburger defamed him when he later added Murawski's name to the website by placing it close enough to a Communist Party candidate that search engine results for his name pulled up a snippet of text showing Murawski's name immediately after the words "Communist Political Organizer."

Murawski brought other claims against several additional defendants, including the New York State Board of Elections, several current and former New York government officials, Yahoo!, and IAC/Interactive Corp. (which runs Ask.com).

Gunzburger moved to dismiss the claims against him and for sanctions against Murawski.  The court granted his motion to dismiss, ruling that, because Gunzburger was not a government actor, Murawski could not bring a claim against him for violation of his First Amendment rights. The court rejected the defamation claim as well, ruling that Gunzburger did not identify Murawski as a communist on his website and that the displayed search engine results were not attributable to Gunzburger.

The court denied Gunzburger's motion for sanctions, however, because Murawski was representing himself pro se and may not have been aware of the possibility of sanctions when he wrote his original complaint.

The court also dismissed Murawski's claim against IAC/Interactive for reproducing Gunzburger's list and failing to remove Politics1.com from its directory, relying on section 230 of the Communications Decency Act. In addition, the court dismissed the claims against Yahoo! and several of the government officials.  The case is still pending against the New York State Board of Elections, but the remaining claims do not relate to online speech in any way. 

Jurisdiction: 

CMLP Notes: 

Opinion available on Westlaw: Murawski v. Pataki, 514 F.Supp.2d 577, S.D.N.Y.,2007

Be careful when looking for news on this, because most commentors only want to talk about the claims against other defendants Ask.com and Yahoo. {MCS}

Priority: 

1-High

Content Type: 

Subject Area: 

Universal Communication Systems v. Lycos

Date: 

07/02/2004

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Universal Communication Systems, Inc.; Michael Zwebner

Party Receiving Legal Threat: 

Lycos, Inc.; Terra Networks, S.A.; Roberto Villasenor; John Does (1-8)

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida; United States District Court for the District of Massachusetts; United States Court of Appeals for the First Circuit

Case Number: 

1:04-cv-21618 (first Fla. action), 1:05-cv-20149 (second Fla. action), 1:05-cv-10435 (first Mass. action), 1:05-cv-11172 (second Mass. action); 06-1826 (appeals)

Legal Counsel: 

Daniel Cloherty, David Bunis, Rachel Zoob-Hill (Dwyer & Collora) (for Lycos); Thomas Rohback, James Reardon (LeBoeuf, Lamb, Greene & MacRae) (Terra Networks)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Injunction Denied

Description: 

Universal Communication Systems ("UCS") and its CEO, Michael Zwebner, sued Lycos, its Spanish parent company Terra Networks, and several anonymous users of Lycos's Raging Bull forum after the anonymous users created a forum about UCS and criticized the company there. UCS sought an injunction requiring Lycos to delete the UCS forum and to prevent it from ever being recreated.

In its original complaint, filed in federal court in Florida, UCS invoked claims of consumer fraud under Massachusetts law, dilution of trade name under Florida law, and a federal "cyberstalking" statute. Lycos moved to dismiss UCS's claims or, alternatively, to transfer the case to Massachusetts federal court.  UCS moved for a preliminary injunction, which the court denied.  UCS amended and resubmitted its motion for a preliminary injunction.

Before ruling on the motions before it, the court stayed discovery in the case.  UCS, however, initiated a new, second action in Florida federal court, which made largely identical claims. Lycos moved to consolidate the two cases.  The court instead granted Lycos' earlier motion to transfer the venue of the first action to Massachusetts.  The court hearing the second action soon transferred it to Massachusetts as well, and the Massachusetts court consolidated the two cases. 

At this point, UCS's complaint alleged four causes of action: (1) violation of Florida securities laws; (2) violation of a federal criminal statute prohibiting harassing communications (47 U.S.C. § 223); (3) trademark dilution under Florida law; and (4) violation of a Florida "cyberstalking" statute. In Massachusetts, Lycos moved to dismiss the claims against it, arguing that it was protected from liability for third party content under section 230 of the Communications Decency Act ("CDA 230"). Terra also moved to dismiss, claiming that the Massachusetts federal court had no jurisdiction over it, but even if it did, UCS had not shown Terra liable for the acts of its subsidiary.

The Massachusetts district court granted both motions, ruling that CDA 230 barred the Florida securities and cyberstalking claims, that the Florida dilution claim was a defamation claim in disguise and thus also barred by CDA 230, and that 47 U.S.C. § 223 did not create a private cause of action.

UCS moved to file an amended complaint against Lycos and Terra, but the court denied the motion, ruling that the defendants would still be immune from the claims in the proposed amended complaint.  The court, however, did allow UCS to add the anonymous forum users to the lawsuit.  UCS filed its amended complaint with claims of fraud against the users, and moved for entry of separate and final judgment, so that it might withdraw its claims against Lycos and Terra while retaining its new claims against the anonymous posters.  One of the anonymous posters, Roberto Villasenor, answered UCS's complaint and filed counterclaims against UCS, as well as crossclaims against the other posters. The Massachusetts court denied UCS's motion for entry of separate and final judgment, finding that it lacked jurisdiction over Villasenor and the other anonymous posters.

UCS appealed these decisions to the Court of Appeals for the First Circuit.  The First Circuit affirmed the lower courts rulings and dismissed the case.  It decided that CDA 230 granted immunity to Lycos and Terra on the Florida securities and cyberstalking claims.  It also affirmed that 47 U.S.C. § 223 did not create and private cause of action and that use of UCS's name in the Raging Bull forum did not create trademark liability. Finally, it agreed that, without the claims against Lycos and Terra, the court lacked jurisdiction to hear UCS's claims against the anonymous users.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Subject Area: 

Novak v. Active Window Productions

Date: 

05/30/2001

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Active Window Productions, Inc.; Mark Rosenstein; Cynthia S. Powers; Dan Resler; Jared Weinberger; Sean Carney; Thomas Barr; John Doe; Mary Roe; Robert Hudson

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of New York

Case Number: 

2:01-cv-03566

Verdict or Settlement Amount: 

$4,150.00

Legal Counsel: 

Robert L. Folks, Cynthia A. Kouril (Robert L. Folks & Associates, LLP) (for Active Window Productions and Mark Rosenstein); Hilary B. Miller (for Dan Resler); Pro se (for Cynthia S. Powers)

Publication Medium: 

Email

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed
Settled (partial)

Description: 

Pet shop owner Robert Novak, operator of Petswarehouse.com, sued Active Window Productions ("AWP"), host of the Aquatic Plants Digest ("APD"), a forum and email list for aquatic plant gardeners and hobbyists, and several individuals who criticized Pets Warehouse.  Novak added further claims against the individuals after they organized to protest Novak's lawsuit.  Novak sued in New York federal court on claims of cybersquatting, defamation, trademark dilution and infringement, trade libel, tortious interference with business, false light, unfair competition, and intentional infliction of emotional distress.

According to court documents, Dan Resler, a computer scientist, posted a message in May 2001 that warned: "Thinking of buying plants from Pet Warehouse? Don't." He went on to detail his gripes about the company's customer service, based on what he said was a delayed shipment of plants he'd ordered.  Resler later followed up with this post amending his previous warning: "to clarify: Pet Warehouse OK, Pets Warehouse NOT." 

Other members of the list soon added their own complaints, including the following alleged statements recounted in the plaintiff's complaint:

  • [a]s a source for purchasing plants, they do not have a good reputation (Defendant Jared Weinberger - May 21, 2001)
  • But you don’t have to take my word as the last word on their horrible service. Feeling lucky? Go ahead - try them out yourselves. After all, it’s only your time and money, right? (Defendant Dan Resler - May 18, 2001)
  • They claim to fill 90% of the orders. Well I can tell everyone it’s more like 20%. Or less. If at all. (Defendant Thomas Barr - May 17, 2001)
  • Given the continual flow of negative comments about PetSwarehouse that I’ve read for nearly two years on this list, I’ve decided to add a warning (and figure this is better than simply removing them. (Defendant Weinberger - May 18, 2001)
  • Remember petSWEARhouse, buy their plants and you’ll be swearing! (May 22, 2001)
  • I believe they call that deceptive advertising. Or bait-and-switch. Take your pick. (Defendant Sean Carney - May 16, 2001)

After seeing the criticism, Novak filed suit against the posters for libel and defamation seeking damages of $1 million, and for intentional infliction of emotional distress seeking damages of $15 million.

The defendants began to organize against the lawsuit via online forums and the APD list, and sought donations to their legal defense fund.  In organizing and promoting their legal defense, the defendants referenced Pets Warehouse.  In response, Novak brought additional claims against the defendants, including trademark violations and business torts. 

As a result, several defendants settled with Novak in December 2001 and agreed to remove any posts or messages "concerning or referring to" Novak. According to the "stipulation of settlement" posted on the defendants' information site, Dan Resler also agreed to pay $4,150.

In 2007, Novak amended his complaint against AWP, AWP's editor Mark Rosenstein, and AWP poster Robert Hudson. AWP and  Mark Rosenstein answered, denying Novak's claims and invoking section 230 of the Communications Decency Act as granting them immunity from any defamation or infringement stemming from APD posters' comments. They also brought counterclaims against Novak for violations of New York Civil Rights Law.

Update:

8/7/2008 - Court ordered that a status conference will be held in Courtroom 820 of the Federal Courthouse in Central Islip on September 5, 2008 at 11:30 a.m 

9/19/2008 - Status conference held. Court ordered a pretrial conference for May 29, 2009.

Jurisdiction: 

Priority: 

1-High

Content Type: 

CMLP Notes: 

PACER doesn't have most of the documents from the case's first few years. Probably worth digging them up somehow. {MCS}

Subject Area: 

Blogger and Maryland Police Chief Settle Defamation Lawsuit

Last week, Salisbury, Maryland Police Chief Allan Webster and Joe Albero, operator of the Salisbury News blog, reached a settlement in Webster's defamation and false light lawsuit, just hours before the case was scheduled for trial.

Jurisdiction: 

Subject Area: 

Johnson v. Barras

Date: 

03/01/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jonetta Rose Barras; Talk Media Communications LLC; DC Watch; Dorothy A. Brizill; Gary Imhoff; The District of Columbia

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Government
Intermediary

Court Type: 

Federal

Court Name: 

District of Columbia Superior Court

Case Number: 

2007 CA 001600 B

Legal Counsel: 

Daniel Z. Herbst, A. Scott Bolden, Anthony E. DiResta (for Barras and Talk Media); Arthur B. Spitzer (ACLU-NCA) and Marcia Hoffman (Electronic Frontier Foundation) (for Dorothy Brizill, Gary Imhoff, and DCWatch); Eden Miller, Edward Taptich (for Dist

Publication Medium: 

Email
Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (partial)
Withdrawn

Description: 

Roslyn Johnson, former Deputy Director of the D.C. Department of Parks and Recreation, sued Jonetta Rose Barras, Talk Media Communications, government watchdog website DCWatch, two DCWatch executives, and The District of Columbia, after DC Watch published in its electronic newsletter and on its website articles submitted by Barras, a local political reporter. Barras's articles, which were posted also on her personal website JR Barras.com, looked at alleged cronymism in the hiring practices of the Department and stated that Johnson had inflated her resume in order to secure her position. See Cmplt. ¶¶ 70-75 . Johnson filed her claims for defamation, false light, intentional interference with contract, negligence, and violations of the District of Columbia's Freedom of Information Act (FOIA) in D.C. Superior Court.

DCWatch and its two executives, Dorothy Brizill and Gary Imhoff, moved to dismiss Johnson's claims against them, arguing that DCWatch could not be found liable for Barras's article because DCWatch was protected from liability for publishing third-party content under section 230 of the Communications Decency Act (CDA 230). They also argued that they could only be held liable if Barras' accusations were not substantially true and cited a report by the D.C. Inspector General that found Johnson had inflated her resume.

In addition, Barras moved for judgment on the pleadings on grounds that her accusations were substantially true, and the District of Columbia moved to dismiss the claims against it, arguing that the D.C. FOIA did not create a claim on which Johnson could sue.

The court denied DCWatch's motion initially and granted Johnson limited discovery to ascertain whether Barras was an agent of DCWatch, which would allow Johnson to overcome DCWatch's CDA 230 immunity. The court also denied Barras's and the District's motions, ruling that it would let Johnson investigate her claims in discovery.

Johnson failed to uncover evidence of a relationship between DCWatch and Barras that would sustain her claims against the DCWatch defendants, and she voluntarily withdrew her claims against them in February 2008.

Update:

01/29/09 - Case dismissed with prejudice as to Barras and Talk Media Communications; remaining claims settled. 

Jurisdiction: 

CMLP Notes: 

Updated 2/12/09 - VAF

Priority: 

1-High

Content Type: 

Subject Area: 

Google Execs Face Charges in Italy Over Third Party Content

Does the European Union offer web hosts any protection from liability for the content of third parties, a la section 230 of the Communications Decency Act (CDA 230) or the "safe-harbor" provisions of the Digital Millennium Copyright Act?  This looks to be a key question for four current and former Google executives, as Italian prosecutors prepare to launch criminal charges against them over a video hosted by

Jurisdiction: 

Content Type: 

Subject Area: 

Ben Ezra, Weinstein, and Company v. AOL

Date: 

03/01/1997

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

America Online, Inc.

Type of Party: 

Organization

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Mexico; United States Court of Appeals for the Tenth Circuit

Case Number: 

1:97-cv-00485 (trial); 99-2068 (appeal)

Legal Counsel: 

John G. Baugh (Eaves, Bardacke, Baugh, Kierst & Larson ); John Payton , Patrick J. Carome, Samir Jain (Wilmer, Cutler & Pickering); Randall J. Boe (AOL); James O. Browning; Roger E. Michener (Peacock Myers)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In March 1997, Ben Ezra, Weinstein, and Company ("BEW") sued America Online, Inc. ("AOL") for defamation and negligence in New Mexico state court after AOL allegedly published incorrect values for BEW's stock price and share volume. 

AOL removed the lawsuit from state to federal court and moved for summary judgment. In its motion, AOL argued that it was protected from liability by section 230 of the Communications Decency Act ("CDA 230") because it did not create the stock information itself, but rather hired third parties to produce it.  The court agreed with AOL and dismissed the case.

BEW appealed the case to the Tenth Circuit Court of Appeals.   On March 14, 2000, the appeals court affirmed the lower court's decision, finding that it correctly applied CDA 230.  BEW submitted a writ of certiorari to the U.S. Supreme Court, but its writ was denied on October 2, 2000.

Jurisdiction: 

Content Type: 

Subject Area: 

Kruska v. Perverted Justice Foundation

Date: 

01/10/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Perverted Justice Foundation, Inc.; Xavier Von Erck; Christopher Brocious; Barabara Ochoa; Filmax Inc.; April Butler; David Butler; GoDaddy.com; Bob Parsons; MySpace.com; John Does 1-60

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Large Organization
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the District of Arizona

Case Number: 

2:08-cv-00054

Legal Counsel: 

Aileen Delcarmen Ocon, Marcus R Mumford, Peter B Morrison (Skadden Arps Slate Meagher & Flom) (for PJFI, Von Erck); Steven Gerald Ford (Alvarez & Gilbert ) (for Brocious, Ochoa); Robert Christian Billar (Leyh Billar & Associates) (for Filmax.com, Bul

Publication Medium: 

Blog
Email
Social Network
Website
Wiki

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Jan Kruska sued several anti-pedophile organizations, including Perverted Justice Foundation, Inc. ("PJFI"), and individuals affliliated with those organizations, as well as domain registrar GoDaddy.com and social networking site MySpace.com, after the organizations accused Kruska of being a predator, a pedophile, and pro-pedophile on various websites, including JanKruska.com and JanKruska.net. Kruska sued for defamation, copyright infringement, cyberstalking and harassment, intentional infliction of emotional distress, and violations of the Racketeer Influenced and Corrupt Organizations ("RICO") Act and the Digital Millennium Copyright Act ("DMCA") in Arizona federal court.

In August 2007, self-described journalist Kruska began to receive what she described as "venomous" emails after she criticized the overbreadth of anti-pedophile laws. Soon after, the Absolute Zero United blog and PJFI's Wikisposure and Corporate Sex Offender websites posted accusations that Kruska was a convicted child molester and a pedophile, according to the complaint. The defendants allegedly posted similar accusations on MySpace.com, as well as on websitesJanKruska.com and JanKruska.net, both of which were registered byFilmax.com through GoDaddy.com. Some of the websites also allegedly posted personal information about Kruska, including her address, and photographs of Kruska that she says are copyrighted. In addition, Barbara Ochoa, aka Petra Luna, allegedly organized a protest targeting publishers of Kruska's writing, which Kruska said resulted in her articles being taken down. Further, Ochoa allegedly emailed Kruska, demanding Kruska remove her "entire web presence" or else face a "full scale activist attack" against her.

Kruska filed her complaint in January 2008. It sought damages and a preliminary injunction, barring thedefendants from "disseminating claims that [Kruska] is a 'Predator', 'Child Molester', 'Child Abuser', 'Pedophile', and 'Pro-Pedophile' bypostings on the internet, mass mailings, e-mails to friends, relatives,employers, business associates, among others; or otherwise by any othermeans making such suggestions."

In response, GoDaddy.com, Ochoa, and PJFI all moved to dismiss the case on jurisdictional grounds. In April 2008, Kruska voluntarily dropped her claims against MySpace.com. In June 2008, the court granted Ochoa's motion to dismiss, but gave leave to Kruska to amend her complaint against Ochoa, which she did. In July 2008, the court granted GoDaddy.com's motion to dismiss on the ground that CDA 230 precluded liability. The court also seems to have dismissed trademark claims against GoDaddy on CDA 230 grounds, which Eric Goldman notes is unusual.

Update

6/12/2009 - The court denied  Butler's new motion for summary judgment pending discovery.

8/7/2009 - Kruska moved for summary judgment on her copyright infringement claims against Von Erck and PJF.  She claimed any arguments for fair use failed as a matter of law.

8/28/2009 - Von Erck and PJF answered Kruska's complaint with affirmative defenses including a First Amendment defense, fair use, lack of damages, and a lack of personal jurisdiction.

9/22/2009 - The court denied Brocious' motion to dismiss Kruska's amended complaint.  

10/13/2009 - The court denied Kruska's motion for summary judgment on her copyright claims pending discovery.

11/18/2010 - Court issued order granting in part and denying in part Christopher Brocious' Motion to Dismiss and denying Brocious' Motion for Summary Judgment. 

Jurisdiction: 

CMLP Notes: 

Updated 2/12/09 - VAF

Content Type: 

Subject Area: 

Pages