Section 230

Section 230 of the Communications Decency Act.

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: 

Content Type: 

Subject Area: 

Threat Source: 

MLRC

CMLP Notes: 

Time for appeal not yet passed.  Monitor docket. smb

 

 

Global Direct Sales, LLC v. Krowne

Date: 

09/19/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Aaron Krowne individually and dba The Mortgage Lender Implode-O-Meter and ML-Implode.com; Krowne Concepts, Inc., Implode-Explode Heavy Industries Inc.; Justin Owings; Krista Railey; Streamline Marketing, Inc.; Lorena Leggett

Type of Party: 

Individual
Organization
Government

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Maryland

Case Number: 

8:08-cv-02468

Legal Counsel: 

Tamara Good - Good Law PC; Charles J. Borrero; Henry R Abrams - Saul Ewing LLP (withdrawn); Julie S Turner - The Turner Law Firm (withdrawn)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Global Direct Sales, LLC, its principals Ryan Hill and Christopher Russell, and the Penobscot Indian Nation sued Aaron Krowne, Krista Railey, Implode-Explode Heavy Industries, Inc. (IEHI), Krowne Concepts, Inc. (KCI), and others after Krowne's mortgage watchdog website, The Mortgage Lender Implode-O-Meter, published an article written by Railey that criticized the Grant America Program. The Grant America Program is a seller-financed down payment assistance program for low- to moderate-income homebuyers, operated under an agreement between Global Direct Sales and the Penobscot Indian Nation.

The Implode-O-Meter site hosts Railey's "FHA Mortgage Whistleblower" column, where the article appeared. In her article, Railey allegedly made a number of false and defamatory statements, including that the Grant America Program was a "scam," and that Russell and Hill had treated another charity they founded "like their own personal piggy bank." Cmplt.¶ 37. In response to an angry comment by Russell, Railey conferred with Krowne and other website editors, who edited the article to "tone down" the commentary and removed references to the word "scam" from the article before it was republished on Railey's blog (apparently the original version that appeared online was a draft published inadvertantly). The plaintiffs filed suit nonetheless. Railey, Krowne, and the other defendants maintained that the article was accurate and based on publicly available information.

The plaintiffs filed a motion for a temporary restraining order and preliminary injunction on September 26, 2008. The defendants filed a response on October 7, arguing that the requested injunctive relief would constitute an unconstitutional prior restraint on speech, and that the allegedly defamatory statements were not actionable. 

Update:

At a hearing on November 3, 2008, the court denied the plaintiffs' motion for a temporary restraining order and preliminary injunction. Noting that the "article is out there, has been and cannot be eliminated from the internet," and that damages would be available later, the court held that the plaintiffs had failed to establish irreparable harm. The court also found that an injunction "would affect a First Amendment right of the defendants" and would "stifle rather than foster appropriate debate."

The court subsequently dismissed three defendants-Aaron Krowne, Justin Owings, and Lorena Leggett-for lack of personal jurisdiction, and a fourth defendant, Streamline Marketing, Inc., without prejudice.

On November 11, 2009, the remaining defendants (IEHI and KCI) filed a special motion to dismiss under Maryland's anti-SLAPP law, arguing that the plaintiffs filed the suit in bad faith because of defendants' exercise of their First Amendment rights and rights granted by the Maryland Declaration of Rights.

Plaintiffs responded on December 7, 2009, contending that Maryland's anti-SLAPP law does not apply in federal court because it is predominantly procedural and conflicts with the Federal Rules of Civil Procedure. They also argued that the statute was inapplicable because it only applies to communications "regarding any matter within the authority of a government body," and "multiple" statements in the article at issue did not involve such matters. Plaintiffs further claimed that the complaint was filed in good faith, that the article was not entitled to First Amendment protection because it "contains both false statements of fact and unsupported opinion that implies defamatory facts," and that the article was prompted by constitutional malice in "retaliation for the plaintiffs' refusal to advertise on [defendants'] website." Throughout the brief, the plaintiffs relied heavily on a declaration provided by the author of the article at issue, Railey, which "admit[ted] that ‘there are significant problems with the final published article" and that the "article contains and implies false statements of fact and is misleading in a material manner." 

The defendants filed a reply in support of the special motion to dismiss on January 26, 2010. They argued that the Maryland's Anti-SLAPP statute was applicable, because it is not inconsistent with federal rules. Defendants also claimed that the article "addressed an issue within the authority of a government body, . . . Plaintiffs cannot satisfy their burden for their defamation claim, and . . . this suit was brought in bad faith to drive Defendants out of business and thereby silence them." Defendants contrasted Railey's declaration for the plaintiffs with a "much earlier declaration," in which she stated "I stand behind all of the statements I have made in my article about the Plaintiffs and believe each and every one of them to be based in truth and supported by my research."

On July 12, 2010, the court denied the defendants motion to dismiss pursuant to Maryland's anti-SLAPP statute. The court applied the statute because it "is limited in its scope and appears not to conflict with the Federal Rules of Civil Procedure." However, the court concluded that there were genuine issues of material fact as to whether "the suit was brought in bad faith," the article "was regarding any matter within the authority of a government body," and "whether Defendants maliciously published the article."

The attorneys for IEHI and KCI subsequently filed motions to withdraw from the case, and, on May 31, 2011, the court granted them. In doing so, the court advised the defendants that, as corporate entities, they could not move forward without representation. The court subsequently defaulted both entities for failure to answer the complaint through counsel. Plaintiffs then filed an unopposed motion for default judgment as to liability against the defaulted defendants, for summary judgment, and for a permanent injunction. The court denied that motion on April 9, 2012, finding that, although the plaintiffs' had properly pled the elements of defamation, a final judgment could not be entered while the claims against defendant Railey were still pending.

On July 6, 2012, IEHI and KCI, represented by new attorneys, filed a motion to vacate the entry of default. The court granted the motion, finding that the defendants' had established "the viability of four defenses to Plaintiffs' defamation claims"-they "demonstrated, with ample factual support,: (1) Plaintiffs . . . are government entities, and as such, under the First Amendment cannot maintain actions for defamation or libel; (2) Plaintiffs cannot meet their burden to prove falsity . . .; (3) the author, Railey, was not an agent of the IEHI and Krowne Concepts . . .; and (4) Plaintiffs do not allege that they suffered any harm as a result of Defendants' statements." The court decided that the defendants' yearlong delay in moving to vacate the default was not dispositive, as it did not prejudice the plaintiffs.

On July 1, 2013, the defendants moved for summary judgment. They elaborated on the claims included in their motion to vacate the judgment and raised, for the first time, a defense under Section 230 of the Communications Decency Act, claiming that the defendants "did little more than provide a canvas upon which third parties placed material." Plaintiffs responded to the motion by arguing that Section 230 was inapplicable. According to plaintiffs, IEHI "was responsible for both creating and developing" the article as a "joint project" with Railey. Relying on Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008), the plaintiffs argued that a website is a content provider "even if it did not ‘create' the content as long as it ‘materially contributes to the illegal conduct.'" Plaintiffs argued that IEHI materially contributed to the article because IEHI editors performed research for the article, edited the article before it was published, exchanged drafts, and "had the last say on what was published."

The district court dismissed the case on summary judgment on Sept. 18, 2013, holding that even if the plaintiffs' allegations were true, Section 230 "immunize[d] IEHI from this defamation action." The court noted that "determining what makes a party responsible for the ‘development' of content under Section 230(f)(3) is unclear," but that, under Roommates.com, 521 F.3d at 1163, "one is responsible for the ‘development' of information when he engages in an act beyond the normal functions of a publisher (such as deciding to publish, withdraw or modify third-party content) that changes the meaning and purpose of the content." On the other hand, the court stated, if an internet service provider "only passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content."

The court found that, in this case, "[h]olding IEHI liable for mere control of the website on which allegedly defamatory content was published is precisely the type of conduct that falls squarely within the protections of the CDA." The court held that even if plaintiffs' assertions that "Railey received direct input from Krowne, that [an editor] performed research and that drafts were exchanged, and IEHI had the last say on what was published" were true, these actions merely amounted to "monitoring and publication of content on its network - ‘actions quintessentially related to a publisher's role.'" "[E]ven assuming Krowne edited or altered the content of the allegedly defamatory article," the court noted, "IEHI would still be immune." The court therefore concluded that Section 230 barred the plaintiffs' defamation claims.

By party agreement, the complaint was withdrawn as against KCI, and Penobscot Indian Nation was removed as a Plaintiff. The claims against Railey appear to have been settled outside of court. According to the docket, the case was terminated on September 25, 2013.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

MLRC

CMLP Notes: 

Updated 1/29/09 - VAF

Grace v. Neeley

Date: 

01/21/2003

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Tim Neeley; eBay Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Large Organization

Court Type: 

State

Court Name: 

Superior Court of California, County of Los Angeles

Case Number: 

BC288836

Legal Counsel: 

Tim Neeley (Pro se); Michael G. Rhodes, Andrea S. Bitar - Cooley Godward (for eBay)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Material Removed

Description: 

In December 2002, Roger Grace was the winning bidder on several auctions of Hollywood memorabilia being sold by Tim Neeley on the popular action site, eBay.  After Grace left negative feedback about the transactions, Neeley posted a negative comment about Grace in which he wrote, according to court filings, “Complaint: SHOULD BE BANNED FROM EBAY!!!! DISHONEST ALL THE WAY!!!!” Grace contacted eBay and stated that the seller’s comments were defamatory, but eBay did not remove them.

On January 21, 2003, Grace sued eBay, Inc. and Neeley, alleging counts for libel against both defendant and for violation of unfair competition law against eBay.  Grace withdrew the second count after eBay removed the challenged comments from its website.  Grace appears to have been unable to personally serve Neeley, and the court dismissed the suit against him on July 3, 2003.  

On March 28, 2003, eBay filed a motion to dismiss on the basis that it was immune from liability under section 230 of the Communications Decency Act (CDA 230) and because its Terms of Use released it from any liability for plaintiff's claims.  The Superior Court granted eBay's motion on April 28, 2003, finding that it was immune from liability under CDA 230.

A complicated series of appeals ensued.  In summary, on July 22, 2004, the California Court of Appeals affirmed the dismissal.  The appellate court held, however, the CDA 230 does not protect information distributors who know or have reason to know of defamatory material on their site, but nevertheless, eBay’s contractual release absolved it of liability for Grace's claims. Grace v. eBay, Inc., 16 Cal. Rptr. 3d 192 (Cal. App. Ct. 2004). 

On October 13, 2004, the California Supreme Court granted a hearing on the case and vacated the appeals court opinion, 99 P.3d 2 (Cal. Oct. 13, 2004), but then dismissed the hearing and remanded the case back to the lower court.  101 P.3d 509 (Cal. Dec. 1, 2004).  As a result, the lower court's dismissal stands. 

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Court Filings

CMLP Notes: 

from Eric Goldman

Hamad v. Horowitz

Date: 

04/13/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Center for the Study of Popular Culture; David Horowitz; Center for Jewish Community Studies; State of Texas; Americans Against Hate; Middle East Forum (Campus Watch); CB Accounts Inc.; Joe Kaufman; MilitantIslammonitor.org; Daniel Pipes; Freerepubli

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Government

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Texas; United States Court of Appeals for the Fifth Circuit

Case Number: 

1:06-cv-0028 (trial court); No. 07-50165 (appeals court)

Legal Counsel: 

Manuel S. Klausner; David H. Donaldson; Peter D. Kennedy (CSPC and Horowitz); Randy Howry, Sean E. Breen - Herman, Howry & Breen, LLP (Center for Jewish Community Studies); Aaron B. Huffman (State of Texas); Ashley Ivy Kissinger, Michael Berry - Levi

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Riad Hamad, founder of the Palestine Children's Welfare Fund (PCWF), filed a defamation suit against the editor and publisher of online publication FrontPage Magazine and several other defendants.  Hamad alleged that a FrontPage article accused Hamad and PCWF of funneling money to terrorists, called Hamad an anti-Semite, and otherwise disparaged him and his organization.

Hamad's original complaint brought approximately 15 legal claims against FrontPage editor David Horowitz and publisher Center for the Study of Popular Culture (CSPC) and asked for $80 million in damages.  Hamad subsequently amended his complaint five times, progressively adding more defendants and legal claims related to the FrontPage article and postings from other sites. These claims included business disparagement, tortious interference, intentional infliction of emotional distress, fraud, negligence, and trademark dilution, among others.

The district court dismissed all of Hamad's claims in three 2006 and 2007 orders. Each claim was dismissed in part because the one-year statute of limitations for defamation actions had run -- Hamad had filed suit in 2006, while the articles were published in 2003 and 2004.  In finding that the statute of limitations had passed, the court applied the single publication rule: it determined that the statue of limitations began running when each article was first published online.

In the three orders, the court also dismissed most of Hamad's claims on alternative grounds, such as lack of personal jurisdiction, failure to state a claim upon which relief could be granted, and immunity under CDA 230 (with respect to Dotster, Inc., a domain registrar).

In the second of the three orders, the court sanctioned Hamad for repeatedly amending his complaint without permission and for failing to heed a court warning that he would face sanctions if he did not voluntarily dismiss his complaint.  The court ordered him to pay $3,000 in sanctions.

Rather than voluntarily dismissing his suit following the sanctions, Hamad filed for default judgment as to some of the parties.  As a result, the third and final court order dismissed Hamad's remaining claims and ordered him to pay $9,000 in sanctions and more than $50,000 in defendants' fees and costs.  Hamad appealed.

The Fifth Circuit affirmed the district court's judgment, relying primarily on the statute of limitations.  The court also granted defendants' request for fees arising from Hamad's "frivolous" appeal, amounting to more than $30,000.

All told, Hamad was ordered to pay more than $92,000 in sanctions, fees, and costs.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

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: 

Subject Area: 

Threat Source: 

Google News

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

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: 

Subject Area: 

Threat Source: 

MLRC

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: 

Content Type: 

Subject Area: 

Priority: 

1-High

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: 

Content Type: 

Subject Area: 

Priority: 

1-High

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: 

Content Type: 

Subject Area: 

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

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: 

Content Type: 

Subject Area: 

Priority: 

1-High

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: 

Content Type: 

Subject Area: 

CMLP Notes: 

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

Priority: 

1-High

Understanding Your Legal Risks When You Blog or Publish Online

Over the next few weeks I'll be posting about various topics we cover in the CMLP's Citizen Media Legal Guide.  If you would like to read any of the previous "highlights" from the guide, you can find them here

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: 

Content Type: 

Subject Area: 

CMLP Notes: 

Updated 2/12/09 - VAF

Priority: 

1-High

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: 

Content Type: 

Subject Area: 

CMLP Notes: 

Updated 2/12/09 - VAF

Batzel v. Smith

Date: 

09/07/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Robert Smith; Netherlands Museums Association; Ton Cremers; Mosler, Inc.; Does 1-50

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court for Central District of California; U.S. Court of Appeals for the Ninth Circuit; United States District Court for the Western District of North Carolina

Case Number: 

2:00-cv-09590 (California trial); 01-56556 (California appeals)

Legal Counsel: 

Robert Smith, Pro se; David D. Johnson, Eric D. Brown, Pamela S. Palmer, Steven T. Chinowsky - Latham & Watkins LLP, Stephen J. Newman - Stroock & Stroock & Lavan LLP (for Cremers); Robert P. Long - Kinkle Rodiger & Spriggs (for Mosler, Inc.)

Publication Medium: 

Email

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)

Description: 

In September 2000, Ellen Batzel, a California attorney, sued Robert Smith, Ton Cremers, the Netherlands Museums Association ("NMA"), and Mosler, Inc. for defamation after Cremers published on an international email list an email, written by Smith, in which Smith accused Batzel of owning art stolen by the Nazis and being a descendant of Heinrich Himmler. Batzel filed identical lawsuits in both California federal court and North Carolina federal court.

In the summer of 1999, Smith contacted Cremers, who operated the Museum Security Network ("MSN") website, to notify him about his suspicions regarding Batzel, for whom Smith worked as a handyman at the time.  Smith apparently intended the email to be a private communication, and was unaware of the MSN mailing list that Cremers edited and published.  Cremers posted Smith's email to the MSN list, which is distributed via email and also posted on the MSN site, without notifying Smith that he was doing so.

Batzel became aware of the MSN list posting about her and contacted Cremers within a few months. Cremers in turn contacted Smith for clarification about his statements.  Smith affirmed his statements, but told Cremers that he would never have sent Cremers the email had he known it would appear on the MSN list. Batzel denied Smith's accusations, and in turn accused Smith of trying to defame her because she refused to help him find contacts regarding a screenplay he wrote.

Batzel filed lawsuits in both California and North Carolina in September 2000.  Smith and Mosler, Inc., a sponsor of the MSN list, both filed an answer in California, and Batzel dropped them from the North Carolina lawsuit.  The NMA did not file an answer in either suit, and the California court granted default judgment against it. 

Unaware of the North Carolina lawsuit, Cremers filed an answer in California and moved to dismiss Batzel's case under California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16).  In July 2001, the district court denied Cremer's motion, ruling that Batzel had shown sufficient probability of prevailing on her claims to survive an anti-SLAPP motion. The court dismissed Batzel's claims against Mosler, Inc., finding that sponsorship of the MSN list was not sufficient to impose liability.

Batzel and Cremers both appealed.  In June 2003, the Ninth Circuit Court of Appeals affirmed the Mosler dismissal and vacated the district court's ruling on Cremers' anti-SLAPP motion.  While the court of appeals agreed that Batzel had shown a likelihood of prevailing in her defamation claim, it ruled that section 230 of the Communications Decency Act ("CDA 230") controlled the case.  The court held that, if Cremers had reasonably believed that Smith provided the email to be published on the MSN list, then CDA 230 protected him from defamation liability for publishing the content of Smith's email. Because the facts were not clear from the record, the court remanded the case to district court to determine whether Cremers had a reasonable belief that Smith had provided his email for publication.

Batzel petitioned the U.S. Supreme Court to hear the case, but the Court denied her petition. Meanwhile, Cremers became aware of Batzel's lawsuit in North Carolina, for which he had never been served. The North Carolina court dismissed Batzel's lawsuit with prejudice in April 2001 for failure to prosecute. Cremers moved for summary judgment in California in November 2004, arguing that the doctrine of res judicata barred Batzel from suing Cremers in the California action. The district court granted the motion and dismissed the case against Cremers in March 2005.

It is unclear what happened regarding Batzel's claims against Smith.  According to the California district court's docket, all motions and orders mailed to Smith from 2004 on were returned for failure of delivery.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

Malik v. ScamFraudAlert.com

Date: 

06/20/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

ScamFraudAlert.com

Type of Party: 

Individual

Type of Party: 

Organization

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

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

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

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

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

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

Update:

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

Jurisdiction: 

Content Type: 

Subject Area: 

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