Third-Party Content

FranklinCovey v. Lycos, Inc.

Date: 

12/17/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Lycos, Inc.; Does 1-5

Type of Party: 

Organization

Type of Party: 

Individual
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the District of Utah

Case Number: 

2:07-cv-00974-BCW

Legal Counsel: 

None

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

In December 2007, FranklinCovey Co., the owner of the copyright in the book The 7 Habits of Highly Effective People, filed suit against Lycos and five "John Doe" defendants, alleging copyright infringement. Lycos operates Angelfire, a website that offers free space, as well as a paid subscription system, for Internet users to post blogs, photo galleries, and other information. FranklinCovey claimed that unknown Angelfire users posted a full digital copy of The 7 Habits on the website.

In August 2007, the company had sent Lycos two takedown notices pursuant to Section 512 of the Digital Millennium Copyright Act (see related database entry), but Lycos allegedly did not respond byremoving or disabling access to the infringing material. FranklinCovey's complaint sought actual or statutory damages (at its election) and an injunction barring the defendants from posting its work. The parties settled before Lycos filed an answer, and FranklinCovey voluntarily dismissed the action. Lycos has taken down the digital copy of The 7 Habits.

Jurisdiction: 

CMLP Notes: 

Source: RSS feeds (Internet Cases)

Content Type: 

Subject Area: 

Roommates.com - Just How Big A Hole Did the Ninth Circuit Poke in CDA 230?

By now you've heard that the Ninth Circuit, sitting en banc, reaffirmed the previous Roommates.com decision.

Subject Area: 

N.H. Court Holds Right of Publicity Claim Not Barred by Communications Decency Act

In what appears to be the first case of its kind, a federal court in New Hampshire has ruled that the immunity provisions in section 230 of the Communications Decency Act (CDA 230) do not bar a state law claim for a violation of a person's "right of publicity." In so holding, the court expressly disagreed with the Ninth Circuit's decision in Perfect 10 v. CCBill LLC, which held that CDA 230 exempts only federal intellectual property law claims from its protections.

The case involves the typically disturbing facts that often arise in the CDA 230 context. The plaintiff, proceeding pseudonymously, sued defendant Friendfinder Network, which operates a number of websites, including “AdultFriendFinder.com” that bills itself as “the World’s Largest SEX and SWINGER Personal Community.” To participate, users register by entering a variety of personal information, creating online profiles that can be viewed by other members of the community.

Jurisdiction: 

Subject Area: 

New Jersey Prosecutors Set Sights on JuicyCampus

New Jersey prosecutors have subpoenaed the controversial gossip site JuicyCampus as part of an investigation into whether the site is violating the New Jersey Consumer Fraud Act.

Jurisdiction: 

Subject Area: 

Unnamed Businessman v. Disqus

Date: 

12/07/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Disqus

Type of Party: 

Individual

Type of Party: 

Organization
Intermediary

Publication Medium: 

Website

Status: 

Concluded

Disposition: 

Material Removed

Description: 

Disqus is a provider of a website comment system, which enables website operators and bloggers to fight spam and manage the comments appearing on their platforms. It also allows commenters to create profiles that store their comments from all websites and blogs using the Disqus system and incorporate ratings from other Disqus users. In December 2007, an individual claiming to be the president of a European company sent an email to Daniel Ha, a Disqus co-founder. The email complained about a comment appearing on a Disqus-enabled site. (In his post about the situation, Mr. Ha declined to identify the businessman or the site where the comment appeared.) The email demanded that Disqus remove the allegedly defamatory comment and threatened legal action in the United Kingdom, Sweden, and the United States if the company failed to comply.

Mr. Ha refused to remove the comment and responded to the email, arguing that the decision about whether or not to remove the comment belonged to the site operator originally hosting it, not Disqus. He also invoked CDA 230, which protects providers and users of interactive computer services from tort liability for the statements of third parties. Mr. Ha exchanged further correspondence with the unnamed businessman, but maintained his position that Disqus would not remove the comment.

In a follow-up comment to his blog post on the situation, Mr. Ha indicated that the site owner contacted him and indicated that the comment would be removed. The situation thus appears to be resolved.

Jurisdiction: 

Content Type: 

Subject Area: 

Global Royalties v. Xcentric Ventures

Date: 

07/24/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Xcentric Ventures, LLC; Ed Magedson; Jane Doe Magedson

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal
International

Court Name: 

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

Case Number: 

2:2007cv00956 (D. Ariz.)

Legal Counsel: 

Maria Crimi Speth; David Scott Gingras

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

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

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

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

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

Jurisdiction: 

CMLP Notes: 

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

Content Type: 

Subject Area: 

Whitney Information Network v. Xcentric Ventures

Date: 

01/27/2004

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Xcentric Ventures, LLC; Badbusinessbureau..org; Ed Magedson

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Florida; United States Court of Appeals for the Eleventh Circuit

Case Number: 

2:04-CV-47-FtM-34SPC (trial court); 06-11888 (appellate court)

Legal Counsel: 

Maria Crimi Speth; Denise B. Crockett; Michael L. Gore; Jonathan P. Ibsen; James A. Weinkle; Brian J. Stack

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In January 2004, Whitney Information Network, Inc., a company that provides real estate training programs and seminars, and its CEO Russ Whitney sued Xcentric Ventures, LLC and its founder and managing member, Ed Magedson. Xcentric operates the Ripoff Report website, located at www.ripoffreport.com and www.badbusinessbureau.com, which allows visitors to read and post reports about companies that allegedly have "ripped off" consumers. A number of reports saying derogatory things about Whitney Information Network appeared on the Ripoff Report website. In the original complaint, the plaintiffs alleged that Xcentric and Magedson violated federal and state trademark laws and committed defamation of business reputation (often referred to as "trade libel") by publishing these reports.

In July 2005, the district court dismissed the original complaint, but granted the plaintiffs permission to file an amended complaint. Whitney Information Network re-filed an amended complaint, including only the defamation claim. In the amended complaint, Whitney alleged that Xcentric and Magedson not only published critical reader reports, but edited the complaints to include words like "ripoff" and "scam," and also fabricated certain reports altogether. In February 2006, the court dismissed the amended complaint, reasoning that CDA 230 barred the defamation against Xcentric and Magedson. The Eleventh Circuit Court of Appeals reversed the ruling in March of that year, holding that the allegations that the defendants had altered and fabricated reports were sufficient for Whitney Information to survive a motion to dismiss.

Back in the trial court, the defendants moved for summary judgment, arguing that there was no evidence that they altered or fabricated reports and that CDA 230 thus barred Whitney Information's claim. In February 2008, the court granted the motion for summary judgment, dismissing the amended complaint in its entirety. The court held that Whitney Information had not come forward with any competent evidence to show that Magedson or anyone else working for Xcentric edited or fabricated any reports about it.

The court also rejected Whitney Information's argument that Xcentric and Magedson forfeited the protection of CDA 230 by requiring readers to describe their complaints by choosing from a drop-down menu of tags when submitting a report. The available tags included categories like "con artists," "corrupt companies," and "false advertisements" (which were allegedly applied to reports about Whitney), as well as more neutral terms like "seminar programs," "multi level marketing," "financial services," and "business consulting," just to name a few. The court also rejected the argument that the defendants should lose the protection of CDA 230 because they encouraged and actively solicited defamatory statements from their users.

Jurisdiction: 

CMLP Notes: 

See about status

Content Type: 

Subject Area: 

Zoeller v. Josef Silny & Associates

Date: 

02/13/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Josef Silny & Associates, Inc.

Type of Party: 

Individual

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida

Case Number: 

2007-004167-CA-01

Publication Medium: 

Wiki

Status: 

Concluded

Disposition: 

Material Removed
Withdrawn

Description: 

Professional golfer Fuzzy Zoeller claimed that someone posted false statements about him on Wikipedia. Zoeller traced the IP address of the unknown author of the statements to a computer at Josef Silny & Associates, a Miami education consulting firm. Zoeller sued the firm for defamation, invasion of privacy, and intentional infliction of emotional distress. He filed the suit anonymously, but media outlets quickly discovered his identity. In the complaint, Zoeller alleged that the Wikipedia entry falsely stated that he had abused drugs and alcohol and mistreated his family.

According to USA Today, the paragraph in question was removed, but the information had been picked up by other websites. The lawsuit said it falsely alleged that Zoeller abused drugs, alcohol and his family.

Zoeller failed to trace the IP address to one specific person, and Josef Silny & Associates repeatedly denied that any of its employees had authored the statements. Several months after filing, Zoeller voluntarily withrew the lawsuit.

Zoeller did not pursue a claim against Wikipedia, and statements from his lawyer to the press indicate a belief that section 230 of the Communications Decency Act barred a lawsuit directly against the online encyclopedia.

Jurisdiction: 

CMLP Notes: 

DSA: Looked for name of lawyer who represented the defendant but could not find any mention. 10/9/08

Content Type: 

Subject Area: 

Slandering Sandwiches and User Submitted Content

Our very own Sam Bayard popped up today in a New York Times article about the Subway v. Quiznos lawsuit, humorously named: "Can a Sandwich be Slandered?" The article does a good job highlighting the complicated issues involved in the case (and implicated by company sponsored competitions for "homemade commercials" generally).

Content Type: 

Subject Area: 

Energy Automation Systems v. Xcentric Ventures

Date: 

11/06/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Energy Automation Systems, Inc.

Party Receiving Legal Threat: 

Xcentric Ventures, LLC, d/b/a Badbusiness Bureau, d/b/a Badbusinessbureau.com, d/b/a Rip-Off Report, d/b/a Ripoffreport.com; Edward Magedson

Type of Party: 

Organization

Type of Party: 

Individual
Organization
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Tennessee

Case Number: 

3:06CV01079

Legal Counsel: 

James Freeman, Maira Speth, Talmage Watts, William Shreffler

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Xcentric Ventures, LLC, operates the Bad Business Bureau, which provides a forum in which consumers may accuse companies and individuals of various "rip-off" and "bad business" practices. This forum is located on a website that may be accessed through either of two domain names: ripoffreport.com or badbusinessbureau.com. The site solicits and receives complaints from all over the country and recommends tactics for writing “rip-off reports,” providing sample questions to ask companies, and advice for locating similarly situated consumers on the Internet.

On November 6, 2006, Energy Automated Systems filed a lawsuit against Xcentric and a site administrator, Edward Magedson, alleging defamation, interference with business relations, civil conspiracy, and violations of the Tennessee Consumer Protection Act. More specifically, EAS alleges in its complaint that it was listed on the website’s “Top Rip-Off Links” and has been the subject of various “rip-off reports.” Those reports have included titles, headings and editorial messages that, the plaintiff alleges, were created by the defendants, stating that EAS’s dealerships are a “complete” and “long running” “scam,” that EAS is a “damn scam ripoff business from hell,” that EAS’s Chief Executive Officer and other employees are “crooked” and “crooks,” that “EASI likes to threaten anyone that complains whether dealer or ex-employee” and that EAS has engaged in “fraud.”

On March 26, 2007, Xcentric filed a motion to dismiss for lack for personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Xcentric also raised the defense that section 230 of the Communications Decency Act, 47 U.S.C. sec. 230(c)(1), should mandate dismissal of the claims.

On May 25, 2007, the court held that Xcentric could not raise CDA 230 on a motion to dismiss for lack of personal jurisdiction. The court refused to convert the motion into a Rule 12(b)(6) motion to dismiss. However, the court stated that CDA 230 could still be used as a defense in a later summary judgment determination.

After the parties proceeded to discovery, the case appears to have settled. On December 12, 2007, the parties filed an Agreed Order of Dismissal.

Jurisdiction: 

Content Type: 

Subject Area: 

Kansas Court Issues Search Warrant to Lawrence Journal-World Seeking Identity of Anonymous User

Last month, an investigator at Kansas University delivered a search warrant to the Lawrence Journal-World, a highly regarded newspaper in Lawrence, Kansas, demanding access to their computer servers in order to get information about the identity of a user who had posted comments on the paper's website, LJWorld.com.

Jurisdiction: 

Subject Area: 

Kansas University v. Lawrence Journal-World

Date: 

12/10/2007

Threat Type: 

Criminal Investigation

Party Receiving Legal Threat: 

Lawrence Journal-World; LJWorld.com

Type of Party: 

Government

Type of Party: 

Media Company

Court Type: 

State

Court Name: 

Douglas County District Court

Legal Counsel: 

Bernard Rhodes

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

On December 10, 2007, an investigator with the Kansas University Office of Public Safety delivered a search warrant to the Lawrence Journal-World, a highly regarded newspaper in Lawrence, Kansas, demanding access to the newspaper’s computer servers. The search warrant, issued by Douglas County District Judge Stephen Six, sought information about the identity of an individual who had posted anonymous comments on the newspaper's website, LJWorld.com.

Investigators were seeking the identity of a user who had posted comments on the paper's website under the screen name "a2thek." The pseudonymous user had commented on an article about a Kansas University student who was found dead in a KU dorm room, indicating that the death was heroin-related.

According to the Lawrence World-Journal, the investigator left before executing the warrant:

When presented with the search warrant, the newspaper was given the opportunity to call its attorney [Bernard Rhodes], who contacted the district attorney’s office and the court to object to the search warrant. During that time period, the KU investigator left the Journal-World offices without executing the search warrant and did not return.

Rhodes stated that he believed the search warrant was issued contrary to the federal Privacy Protection Act, which restricts the ability of law enforcement to conduct searches of news-gathering organizations.

On January 6, 2008, after the paper made the search warrant public, a2thek posted a follow-up comment apologizing for providing inaccurate information in his earlier comment:

This infomation [sic] is not 100% correct and I would like to take some time to apologize for any mis-information. The guy that works with me I overheard in the bathrool [sic] making this speculation of what actually happened so I dont [sic] know if it's actual fact or hearsay. I do once again dont [sic] want to draw any lines or conclusions being I really dont know anything about all of it and I think the guy at work was just an aquitance [sic] and went to school with the guy and that's what he heard. I guess when a autopsy is performed that will get you the answers that your looking for. Sorry for all the misleading info once again.

Jurisdiction: 

Content Type: 

Subject Area: 

Judge Dismisses Class Action Lawsuit Against Lawyer Rating Site Avvo.com

Yesterday, a federal judge in Washington dismissed a class action lawsuit filed by two prominent lawyers in Seattle against Avvo Inc., the operator of Avvo.com, a website that profiles and rates lawyers and allows users to submit reviews of lawyers they have worked with. Plaintiffs also sued Mark Britton, Avvo's CEO, and 25 anonymous "John Doe" users of the site.

Jurisdiction: 

Subject Area: 

Browne v. Avvo Inc.

Date: 

06/14/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Avvo Inc.; Mark Britton; John 1-25 Does

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Washington (Seattle)

Case Number: 

2:07-cv-00920-RSL

Legal Counsel: 

Ambika K Doran; Bruce EH Johnson; Stephen M. Rummage (DAVIS WRIGHT TREMAINE)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On June 14, 2007, two prominent lawyers in Seattle, WA filed a class action lawsuit against Avvo Inc., the operator of Avvo.com, a website that profiles and rates lawyers and allows users to submit reviews of lawyers they have worked with. Plaintiffs also sued Mark Britton, Avvo's CEO, and 25 anonymous "John Doe" users of the site.

The lawsuit alleges that Avvo's rating system, which plaintiffs claim resulted in their receiving an unreasonably low score, violates the Washington Consumer Protection Act. They also allege that Avvo purports to be objective but is subject to manipulation, cannot produce a reliable system, contains inherent inconsistencies, does not provide a reliable benchmark for assessing lawyer competence, encourages consumer trust in a fallible system, allows attorneys to manipulate their ratings, promotes qualities of attorneys in violation of the Rules of Professional Conduct, and does not accurately report in the categories where it purports to do so. As a result, they assert that Avvo has damaged their reputation and good will. Moreover, by filing a class action lawsuit, the two lawyers are disputing not only their own rankings on the site, but are also challenging the accuracy and validity of the mathematical algorithm used by Avvo to rate and compare attorneys.

On June 28, 2007, defendants filed a motion for judgment on the pleadings, which the court granted on December 18. In dismissing the complaint without leave to amend, Judge Lasnik wrote that the ratings on the site are protected statements of opinion, noting that "defendants' rating is not only defensible, it is virtually impossible to prove wrong." While evidencing clear skepticism about lawyer ratings generally, the judge also took the plaintiffs to task for bringing the lawsuit:

[P]laintiffs Browne and Wenokur want to make a federal case out of the number assigned to them because (a) it could harm their reputation, (b) it could cost them customers/fees, or (c) it could mislead the lawyer-hiring public into retaining poor lawyers or bypassing better lawyers. To the extent that their lawsuit has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action

Judge Lasnik also rejected the plaintiffs' claim under the Washington Consumer Protection Act, concluding that the rankings are not commercial enough to fall under the act and any damages resulting from consumer misinformation are too speculative to support a claim.

As to Avvo’s possible defense under section 230 of the Communications Decency Act, the judge noted that "[p]laintiffs have disavowed any claim based on content that Avvo obtained from a third-party and the Court need not consider this defense further."

Jurisdiction: 

Subject Area: 

Primer on Immunity -- and Liability -- for Third-Party Content Under Section 230 of Communications Decency Act

As a lead up to the launch of the Citizen Media Law Project's Legal Guide in January, we'll be putting up longer, substantive blog posts on various subjects covered in the guide. This first post in the series stems from a talk I gave at the Legal Risk Management in the Web 2.0 World conference in Washington, DC.

Jurisdiction: 

Subject Area: 

Hollis v. Cunningham

Date: 

11/29/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Tasha C. Cunningham, Individually formerly known as Tasha C. Joseph; The Cavelle Company as owner and operator doing business as Dontdatehimgirl.com; Empress Motion Pictures; TJC Media Group

Type of Party: 

Individual

Type of Party: 

Individual
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

1:07-cv-23112-CMA

Legal Counsel: 

James C. Cunningham, Jr.

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Todd Hollis objected to the information users posted about him on DontDateHimGirl.com, a website that allows women to post about men and warn other women about them. In May 2006, Mr. Hollis sued Tasha Joseph/Cunningham, the operator of the website, alleging defamation in Pennsylvania state court, after she refused to remove the posts.

The Pennsylvania court dismissed the action for lack of personal jurisdiction over Joseph/Cunningham, a resident of Florida.

On November 29, 2007, Hollis filed a second lawsuit in federal court in Florida, alleging defamation, intentional infliction of emotional distress, and false light invasion of privacy. According to the Pittsburg Post-Gazette, Tasha Joseph/Cunningham issued the following statement in response to the new lawsuit:

DontDateHimGirl.com's mission is to empower women with the informationand connections that help them make better life decisions. DDHG.com is fully protected [from defamation lawsuits] by the Communication Decency Act. ... Any attack or lawsuit put forth regarding DDHG.com will be dealt with strongly, swiftly and in a manner which will seek to end this type of erroneous, wasteful litigation.
Update:

03/31/2008: Cunningham answered Hollis' complaint and filed a counterclaim against Hollis for defamation. The defamation claim arose from an telecopier document allegedly sent by an organization related to Hollis that stated as fact that Cunningham had been convicted of grand theft by the State of Florida.

04/14/2008: Defendants filed a motion for partial summary judgment. The motion argued that defendants were entitled to summary judgment on several of plaintiff's claims because certain examples of the disputed content were true and certain examples were entitled to protection under CDA 230.

03/2008 through 05/2008: Plaintiff and defendants filed a series of motions disputing discovery issues. These primarily concern defendants' requests for information from plaintiff and plaintiffs requests to depose individuals regarding defendants' reputation.

05/15/2008: Court dismissed Cunningham's counterclaim at Cunningham's request and granted Cunningham's request for protective orders that would prevent plaintiff from deposing certain individuals on the issue of defendants' reputation.

06/20/2008: The case has been dismissed with prejudice by stipulation of both parties. Details of the settlement are not yet available.

 

Jurisdiction: 

CMLP Notes: 

Probably worth trying to find out the terms of the settlement. {MCS}

Content Type: 

Subject Area: 

Patches the Beaver v. AsteroidBooty.com

Date: 

11/23/2007

Threat Type: 

Other

Party Receiving Legal Threat: 

AsteroidBooty.com

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Material Removed

Description: 

A blog post on AsteroidBooty.com, an anonymous blog focused on "chronicles from outerspace, products that rock my world, and more," criticized the high price of children's books and contrasted the prices with the (asserted) easiness of writing the books. The post also included a link to the children's book "Patches the Beaver," making a joke about the possible sexual interpretation of the book's title. Along with this link, the post included an image of the book's cover, and a photograph of the book's author Shane Gauthier. Subsequent user comments also poked fun at the title of the book, adding comments about the author's appearance, possible sexual preferences, and his alleged lack of awareness of diversity and multiculturalism issues.

Gauthier's lawyer posted a comment on the blog threatening legal action against AsteroidBooty if the site operator did not remove the post and comments and issue a public apology. The defamation claims primarily involved content posted by the guest commentors; however, the threat stated that "[l]iability for publication of a defamatory statement extends to all those who participate in its dissemination." The comment also noted that damage awards for defamation claims can exceed $250,000.

The operator of AsteroidBooty said in another blog post that she did not receive the comment at first as it seemed to have gotten mixed in with "400+ spam comments." She instead found out about the threat when her webhost called her and sent an e-mail asking her to either remove the content or send a counter-notice that she did not believe it was defamatory.

After locating and reading the threatening comment, the operator of AsteroidBooty removed the disputed content and issued an apology on her blog, noting that "it was all in jest; so I have no problem taking it down. And most of the stuff I wrote was directed towards children’s books in general (not Shane)."

Content Type: 

CMLP Notes: 

Caved! And the legal claims were so weak. Arg. {MCS}

User submitted via threat form

Subject Area: 

Neuwirth v. Silverstein

Date: 

06/29/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Richard Silverstein; Joel Beinin

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

California Superior Court, Los Angeles County; Court of Appeal of the State of California, Second Appellate District

Case Number: 

SC 094441 (trial level); B205521 (appellate level)

Legal Counsel: 

Janis White; Lane Powell; Suman Chakraborty (for Silverstein); Steven J. Freeburg (for Beinin)

Publication Medium: 

Blog
Email

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

In June 2007, Rachel Neuwirth, a journalist and political commentator who espouses strongly pro-Israel views, sued Washington-state blogger Richard Silverstein and university professor Joel Beinin for libel in a California state court. On November 27, 2007, the court granted Silverstein and Beinin's motion to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16).

Neuwirth, a journalist and political commentator who espouses staunchly pro-Israel views, sued over two allegedly defamatory statements, one made by Silverstein on his blog, Tikun Olam, and the other made by Beinin on a listserv and subsequently re-published by Silverstein. In the first statement, Silverstein called Neuwirth a "Kahanist swine." The term "Kahanist" refers to a form of right-wing, religious Zionism, one of the central tenets of which is that all Arab Muslims are enemies of Israel. The Israeli Kahane Chai (Kach) party is barred from participating in Israeli elections and listed as a terrorist organization by Israel, the United States, Canada, and the European Union. Neuwirth argued that, by calling her a "Kahanist swine," Silverstein implied that she was a terrorist. The second statement was Beinin's, made on the "Alef" listserv, claiming that Neuwirth had made a death threat to him. Silverstein subsequently re-posted Beinin's statement on his blog.

In granting the motion to strike, the court determined that the anti-SLAPP statute applied because Silverstein and Beinin made their respective statements in a "public forum" and those statements related to an issue of public interest. The burden then shifted to Neuwirth to demonstrate a probability that she would prevail on her claim. The court found that Neuwirth had not met this burden, holding that she was a limited purpose public figure and noting that she had brought forth no evidence of "actual malice" for either of the two statements. With regard to Silverstein's "Kahanist swine" statement, the court further held that this was a non-actionable statement of opinion. 

Finally, the court held that Neuwirth's claim against Silverstein for re-publishing Beinin's statement was barred by CDA 230, which protects providers of interactive computer services from tort liability for publishing the statements or content of third parties.

The court awarded Beinin $1,840 in attorney's fees and indicated that Silverstein should make his claim for attorney's fees in a separate motion.  At the conclusion of the hearing in which the court delivered its decision, Neuwirth's attorney told the court that his client intended to appeal the ruling.

 

Update:

1/25/08 - Neuwirth filed a notice of appeal.

3/4/08 - The court ordered Neuwirth to pay Silverstein $7000 in attorneys fees pursuant to the anti-SLAPP statute.

2/9/2009 - The Court of Appeal of the State of California, Second Appellate District, reversed the trial court's ruling on the motion to strike, reinstating the claims against Silverstein and Beinin, except for the claim against Silverstein for re-publishing Beinin's statement.

7/19/2010 - Superior Court order denying Silverstein's motion for summary judgment, holding, inter alia, that "the law of the case doctrine requires this Court to find that Plaintiff has established the existence of libel per se."  

(NOTE: Joel Beinin is the Director of Middle East Studies at the American University in Cairo, where one of the authors of this database entry attended graduate school.)

Jurisdiction: 

Content Type: 

Subject Area: 

BESCR v. Goodman

Date: 

11/14/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Goodman Reporting Service; Trisha Goodman; Barry Simon; Michael Henry; Joan Burke

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court for the 16th Judicial Circuit, Kane County, Illinois

Case Number: 

07 LK 619

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

On November 14, 2007, BESCR, a court reporting service company otherwise known as Eastwood-Stein Deposition Management, and two of its principals, sued Trisha Goodman, an Oklahoma-based court reporter, and others for statements appearing on Goodman's blog, "Let's Stop Eastwood-Stein."

According to BESCR's complaint, Goodman started the blog in late September 2007 after she allegedly was not paid $2,300 by BESCR for her work. On the blog, Goodman allegedly made statements indicating that BESCR was engaging in fraudulent business practices and was about to be sued by the Illinois Attorney General's Office. She also allegedly encouraged readers to refuse to accept jobs from BESCR and to forward the statements appearing on it to other court reporters, videographers, interpreters, and technical support people.

BESCR sued Goodman for libel, interference with contracts and business opportunities, and other torts. In addition to Goodman, the plaintiffs named three other individuals as co-defendants and co-conspirators: Michael Henry, a videographer and former BESCR employee; Barry Simon, another former BESCR employee; and Joan Burke, who has "no recent relationship" with BESCR, according to the complaint. These individuals were named as defendants because of their comments on the blog and distribution of its contents (through links and forwarding) to other court reporters and potential BESCR customers.

Jurisdiction: 

CMLP Notes: 

Status checked on 6/02/08 (AAB)

Content Type: 

Subject Area: 

Ubisoft v. Kyanka

Date: 

11/15/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Richard Kyanka

Type of Party: 

Individual
Large Organization

Type of Party: 

Individual

Publication Medium: 

Forum

Status: 

Pending

Description: 

Richard "Lowtax" Kyanka is the webmaster of SomethingAwful, an online community forum with the catch phrase: "The Internet Makes You Stupid." A member of the community posted a link on the forum to a comic that depicted Jade Raymond engaged in sexual activities. Raymond is a video game producer for Ubisoft.

Ubisoft sent Kyanka a cease-and-desist letter, demanding that the comic be taken down from the site and threatening legal action. The letter claims that the comic infringed upon Ms. Raymond's "personal rights," caused emotional distress, and constituted trademark infringement, among other things.

Mr. Kyanka posted the letter on SomethingAwful in his own forum posting. In the posting, Kyanka claimed that he had no connection to the comic except that a link to it was posted on the forum. He said that he does not know who drew the comic and does not know where the image is located. Kyanka also sent Ubisoft's legal counsel a reply email, indicating that perhaps he did not take the legal threat seriously:

Please let it be known that hereforth I have read the express mail and email sent thereforth by Famous Lawyer David Anderson of the Famous Lawyer Law Business of Nixon Peabody LLP, and furthermore a declaration shall be expressed on the part of Internet User Rich “Lowtax” Kyanka that that forth herethrough I have conducted rigorous tests implemented through a vigorous barrage of legal studies, and furthermore hitherthrough these rigorous tests have therefore proven Famous Lawyer David Anderson of the Famous Lawyer Law Business of Nixon Peabody LLP shall be recognized as a man of the fag persuasion.

Pursuant to the United Dairy Council

Rich “Lowtax” Kyanka
Internet

The link to the comic is no longer on SomethingAwful, and Ubisoft has not taken any legal action against Kyanka.

Jurisdiction: 

CMLP Notes: 

Requested a PDF of the letter from Kyanka, but haven't heard anything back yet. -Stefani

SB - we have a copy of the comic at issue. We probably don't want to post it, as it is sexually explicit.

DA - I agree.

As of 6/09/2008  - no developments. Do we still want to try and get the letter? (JMC)

Content Type: 

Subject Area: 

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