Legal Threat

Façonnable USA Corp. v. John Does 1-10

Date: 

04/07/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Doe Wikipedia Editors & ISP Skybeam, Inc.

Type of Party: 

Large Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Colorado

Case Number: 

1:11-cv-00941-CMA -BNB

Legal Counsel: 

Paul Alan Levy & Michael H. Page of the Public Citizen Litigation Group, and John Seiver of Davis Wright Tremaine LLP (for Skybeam)

Publication Medium: 

Wiki

Relevant Documents: 

Status: 

Pending

Disposition: 

Settled (total)
Withdrawn

Description: 

On April 7, 2011, clothing company Façonnable filed suit in Colorado federal court against a set of John Doe defendants.  According to the complaint, around March 1, 2011, one or more anonymous individuals edited the Wikipedia entries of Façonnable and its parent company M1 Group. The edits discussed "purported" ties between M1 and Hezbollah. (A preserved copy of the Façonnable page is included among the court documents.) The complaint alleges trade libel, violations of Colorado's Consumer Protection Act (for false representations of Façonnable's goods/activities), and federal Lanham Act violations--specifically, that the Wikipedia editors falsely described Façonnable's goods/activities, constituting "acts of infringement."

Façonnable also alleges that the IP addresses of the anonymous Wikipedia editor(s) are associated with Colorado ISP Skybeam, Inc. and that on March 4, 2011, Façonnable emailed (scroll down) Skybeam requesting the identities of the anonymous editors. Skybeam declined to provide the information without a proper summons.  In response, simultaneously with the filing of the complaint, Façonnable moved for expedited discovery to subpoena Skybeam for the editors' identities.

On April 8, 2011, the case was referred to a magistrate judge, and on April 18, the magistrate granted Façonnable's motion for expedited discovery. A few days prior, Façonnable had contacted Skybeam to request that the Wikipedia editors' identifying information be preserved. Once its motion was granted, Façonnable subpoenaed Skybeam for that information; Skybeam then responded with a letter objecting to the subpoena. On April 29 Skybeam moved for a modification of the discovery order, arguing that the magistrate judge applied too lenient a standard in granting discovery by failing to account for the editors' First Amendment anonymous speech rights. Façonnable opposed the motion.

On May 24 the magistrate judge denied Skybeam's motion. Expressing concern that Façonnable would have "no ability to vindicate its rights," the magistrate held that the subpoena was a "content neutral" oversight of online speech, and thus the subpoena satisfied a "heightened sensitivity" to the editors' First Amendment rights. The magistrate ordered Skybeam to comply with the subpoena by June 3.

On June 1, Skybeam filed objections to the magistrate's decision with the district court, and moved to stay the order to comply with the subpoena. On June 2, the district court judge granted the stay. Skybeam's memo accompanying its objection expands on the First Amendment concerns in the case (and the need for strict scrutiny in deciding whether or not to enforce the subpoena), discusses the viability of Façonnable's federal Lanham Act claims, and argues for a more stringent five-step test before revealing anonymous speakers' identities.

On June 27, Façonnable filed an unopposed motion for an extension to reply to Skybeam's objections.

Update:

On July 18th, Façonnable filed a notice of voluntary dismissal with prejudice. According to news reports and subsequent court documents, the company reached a settlement with the John Doe defendant.

On July 22, Skybeam moved to vacate the magistrate judge's order to reveal the Doe identities. Skybeam argued that, although the apparent settlement had mooted the question of the propriety of the magistrate's order, Skybeam was entitled to have the order vacated to avoid setting precedent. Skybeam's motion includes some information about the possible terms of the settlement, stating that on July 11, Façonnable offered to dismiss the case, if the John Doe's attorney "would make certain representations on behalf of the Doe . . . including that Doe was not one of the plaintiff's competitors." (The actual settlement terms have not been made public.)

On July 27, the District Court Judge granted Skybeam's motion to vacate, which was unopposed.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Blog Post

The SLAPP-Happy Story of Rakofsky v. Internet

By now, you've perhaps heard of the plight of one Joseph Rakofsky, the man who sued everyone who ever wrote about him on the Internet. In short: Man represents defendant in murder trial; judge declares mistrial; judge says scathing things about man's professional competence; newspaper covers the unusual mistrial; law bloggers pick up story; man brings 75-defendant lawsuit against everybody who wrote about him. CMLP's full run-down of the lawsuit is live; give it a click for the nitty gritty. Go ahead, I'll wait.

Jurisdiction: 

Content Type: 

Subject Area: 

Media Bloggers Assn Files Amicus Brief in Righthaven Case, Blasts Business Model Behind Lawsuits

Yesterday, the Media Bloggers Association filed an amicus brief in Righthaven LLC v. Hyatt, urging a federal judge in Nevada to award only minimal damages and no attorney's fees to Righthaven against a blogger who failed to appear in the case and is facing a default judgment.  We've covered a number of Righthaven lawsuits in our legal threats database, but this case now has a spicy twist.

On October 6, 2010, Righthaven sued Bill Hyatt, who operates a blog called "News for Everyone" (appears to be shutdown), for copyright infringement, claiming that he had copied a Las Vegas Review-Journal entertainment column titled "FX's Manly Man Shows Hold Outsider Appeal."  After Hyatt didn't respond to the lawsuit, Righthaven filed a motion for default judgment, asking the court to award it control of the domain name for Hyatt's website, $150,000 in damages, and $1,850 in legal fees and costs.

Jurisdiction: 

Subject Area: 

First Amendment Alert! Author arrested for writing a book

I'm the first to admit that Phillip Greaves is not the most sympathetic figure in America. Greaves wrote "The Pedophile's Guide," which was originally for sale on Amazon.com before the online retailer bowed to public pressure and pulled the book from its online shelves.

I don't necessarily have a problem with that.

But, I have a big problem with today's developments. The Orlando Sentinel reports that Polk County Sheriff Grady Judd had Mr. Greaves arrested in Pueblo, Colorado on obscenity charges.

Lets remember that Grady Judd's jurisdiction is home to meth labs, cops who diddle children, and a pretty high incest rate.

Despite the "real crime" in his jurisdiction, Judd instructed his detectives to request an autographed copy of the book. Mr. Greaves obliged and Judd used that as his justification for having Greaves indicted on obscenity charges in his little caliphate of inbred-methistan.

Greaves told ABC News last month he wasn't trying to promote pedophilia and was not himself a pedophile: "I'm not saying I want them around children, I'm saying if they're there, that's how I want them to [behave]." (source)

Jurisdiction: 

Content Type: 

Subject Area: 

We Love a Happy Ending...

Earlier this week, we received the good news that travel blogger extraordinaire Christopher Elliott sucessfully resolved the defamation lawsuit brought against him by Palm Coast Travel.

Jurisdiction: 

Subject Area: 

Out of the Lab and Into the Fray, Scientists and Science Writers Talk About the New Media Environment

Subject Area: 

Subject Area: 

Commentary on Obama/Palin Image Generates Questionable DMCA Takedown Notice

Last Friday, political commenter and blogger Patrick Frey of Patterico's Pontifications found a chilly email waiting in his inbox.

Content Type: 

Subject Area: 

Kim Kardashian Finds Herself in a Low Calorie Twitter Mess

Last week, celebrity, model, socialite, and actress Kim Kardashian found herself in diet hell.  Dr. Sanford Siegal, creator of the "Cookie Diet," and his Company, Dr.

Jurisdiction: 

Subject Area: 

Man Bites Dog: Prosecutor Pays a Price for Chasing Commenters

When a dog bites a man, that is not news, because it happens so often. But if a man bites a dog, that is news. — attributed to  New York Sun city editor John B.

Jurisdiction: 

Subject Area: 

Subject Area: 

Fox News DMCA-Bombs News1News on YouTube

Like many former newspaper employees, I hate the 24-hour "news" networks.  Be it Fox News, MSNBC, or CNN, I think they're just across-the-board awful.  The only time I'll pay any attention to them is in the midst of some event that demands real-time attention, say a presidential election or a terrorist attack (and even then, I may just switch to BBC coverage instead).  Other than in those situations, the news channels are just echo chambers for the dreck spewed by your Becks, O'Rei

Content Type: 

Subject Area: 

Jim Dolan Shows Why Anti-SLAPP Laws Are Good (And Why New York Needs a Better One)

Now, I am not from New York.  Thus, I don't know much about Jim Dolan, the owner of Cablevision, Newsday, Madison Square Garden, and the New York Knicks.  But the local press offers a sense of the man.  The New York Daily News said that he is "a little bit wacky, lashing out indiscriminately behind the scenes, speaking nonsense whenever he talks at all.&q

Jurisdiction: 

Subject Area: 

His Identity Revealed, Publisher of Glenn Beck Parody Site Comes Out Swinging

We reported earlier this month that Glenn Beck filed a UDRP action against glennbeckrapedandmurdereda younggirlin1990.com seeking transfer of the domain name.  Beck alleges that the website, which instantiates

Jurisdiction: 

Subject Area: 

And You Thought Today's Google Outage Was Bad...

Twitter has been awash today in the typical gnashing of teeth and rending of clothes that accompanies any Gmail outage, no matter how short the duration.  If yesterday's court ruling holds, however,

Jurisdiction: 

Subject Area: 

Sarah Palin v. "Gryphen"

Date: 

08/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Gryphen

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Description: 

On August 1, 2009, Sarah Palin's lawyer sent a cease and desist letter to Alaskan blogger "Gryphen" over a post published earlier that day on Gryphen's blog ImmoralMinority.  

The cease and deist letter takes issue with a number of statements made in the post "Exclusive! Sarah and Todd Palin are Splitsville!," including the statements that Palin "has purchased land in Montana" and that "Todd Palin pulled a gun on Levi [Johnston] in a heated exchange" in 2008.

The cease and desist letter demanded a retraction by 3:00 pm AST on August 1, 2009.  The letter further requested information on how Gryphen would like to be served with a complaint and summons should s/he decline to retract the post.  The next day, Gryphen responded to the letter with a post asserting that
s/he believed the factual information received from her sources to be
correct. As of September 17, 2009, there is no information that a legal action has been initiated.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

The Guinness World Record for Trademark Fail

As if anyone needed more proof that shooting off an ill-conceived cease-and-desist letter is a bad PR move, Techdirt points us to a recent gem.  The hilarious FAIL Blog publishes user-submitted photos and videos documenting various mishaps, incongruous images, and other examples of human fa

Subject Area: 

Complaints at Teatime! The Shaw-Skinner Lawsuit and the Futility of Legal Duels

Pistols at Dawn!” has become “Subpoenas at Noon!” or “Complaints at Teatime!” Today’s legal duelists, armed with dubious lawsuits charging defamation, are B.F. Shaw Printing, the parent company of the Northwest Herald, and Cal Skinner, a blogger.

Jurisdiction: 

Subject Area: 

Pages