User Comments or Submissions

Issue relates to user comments or submissions on blogs, forums, and other websites.

Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.

Date: 

07/02/2012

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Yelp, Inc.

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Circuit Court for the City of Alexandria

Case Number: 

Trial: 12003401; Appeal: 0116-13-4

Verdict or Settlement Amount: 

$1,500.00

Legal Counsel: 

Paul Alan Levy and Scott Michelman (Public Citizen Litigation Group), and Raymond D. Battocchi (Raymond D. Battocchi, P.C.)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

On July 2, 2012, Hadeed Carpet Cleaning, Inc., a Virginia rug cleaning company, filed a complaint for defamation and conspiracy to defame against seven anonymous Yelp reviewers in the Circuit Court for the City of Alexandria.

Hadeed claimed these users' reviews were false and defamatory because it "had no record that the negative reviewers were ever Hadeed Carpet customers." Additionally, Hadeed noted that many of the negative reviews contained similar "themes" (for example, that Hadeed had doubled the price) and that one of the reviewers was from an area where Hadeed does not do business. Based on this evidence, Hadeed alleged that the authors of the negative reviews "acted together for the purpose of willfully and maliciously injuring Hadeed Carpet's reputation." Hadeed requested $1.1 million in punitive and compensatory damages, attorney's fees and costs, and a permanent injunction.

On July 3, 2012, Hadeed issued a subpoena duces tecum to Yelp seeking information identifying the anonymous commenters.

Yelp responded with a written objection to the subpoena on July 19, 2012. It contended: (1) that Hadeed had not complied with Virginia's procedure for subpoenas to identify anonymous Internet users, Code § 8.01-407.1, because it did not list the allegedly defamatory comments with adequate specificity; (2) that the First Amendment prevented disclosure of the defendants' identities because Hadeed had failed to present a prima facie case that their speech was defamatory; and (3) that the subpoena could not be enforced against a foreign non-party company.

On July 30, 2012, Hadeed filed a renewed subpoena that complied with the procedural requirements of Code § 8.01-407.1 by attaching documents allegedly establishing the basis for Hadeed's belief that the challenged posts were actionable. In its accompanying Notice of Filing Supporting Material, Hadeed asserted that "determining whether or not Defendants were customers of Hadeed is centrally necessary for Hadeed to advance any defamation claim."

Yelp filed written objections to the renewed subpoena on September 5, 2012. Yelp again asserted that Hadeed had failed to meet the appropriate legal test for obtaining identifying information about anonymous speakers because it had not "produce[d] evidence sufficient to make out a prima facie case" of defamation. Yelp noted that numerous appellate courts, most notably in Dendrite v. Doe and Doe v. Cahill, had held that that this was the proper test under the First Amendment, and argued that to the extent that Virginia had set a more permissive standard than Dendrite, Virginia should "join the national consensus standard on this issue." Yelp also asserted that it was not subject to personal jurisdiction in Virginia because it had no property there, and because Hadeed had consented to exclusive jurisdiction in California by agreeing to Yelp's terms of service when it chose to advertise on Yelp. Finally, Yelp argued that the subpoena was overbroad because Hadeed sought all documents Yelp possessed for the users that "relate[d] in any way" to Hadeed, which could encompass private communications subject to other legal protections or not reasonably accessible to Yelp.

On September 26, 2012, Hadeed moved to overrule the objections and enforce the subpoena. Hadeed argued that the proper legal standard for obtaining information about Yelp's anonymous users came from Virginia Code § 8.01-407.1 and was satisfied by its good faith claim that "it reviewed its own detailed customer files and c[ould] find no evidence that these specific seven persons were ever Hadeed customers." Hadeed also claimed that its attempts to obtain those identities through publicly available information or through discussions with Yelp had been unsuccessful. Hadeed also maintained that it had properly subpoenaed Yelp's records by serving the subpoena on Yelp's registered agent for service of process in Virginia, and argued that "Yelp conducts business over the internet in Virginia, and is present in Virginia through its registered agent." Further, Hadeed argued, it had not waived jurisdiction in Virgina, claiming that Yelp's terms of service only pertained to disputes arising out of the advertising relationship. Finally, Hadeed argued that the subpoena was not overbroad, as it only requested "postings" relating to Hadeed, not "communications," and Yelp's objection that the subpoena might encompass private communications was therefore unfounded.

On October 22, 2012, Yelp filed a memo in support of its objections to the subpoena and opposing Hadeed's motion to compel discovery. Yelp reiterated that the First Amendment "provides special protections for anonymity on the Internet," and argued that the court should apply the Dendrite test. The subpoena could not be enforced under this test, Yelp argued, because Hadeed had "failed to produce any evidence that any of the statements made about it are false." Yelp also continued to assert that it was not subject to jurisdiction. It argued that "predicating personal jurisdiction on the mere fact that Yelp enables its users to make statements accessible in Virginia through the Internet offends traditional principles of state sovereignty."

Hadeed responded to Yelp's objections on Oct. 31, 2012, reiterating its previous arguments.

The trial court held oral arguments on November 14, 2012, and enforced the subpoena on November 19, 2012. According to the court, it had jurisdiction over the motion based on service of the subpoena on Yelp's registered agent. The court added, however, that "even if a registered agent alone was an insufficient basis for jurisdiction," the court had jurisdiction "in light of Yelp's conduct directing electronic activity in Virginia and business relationships with Virginia companies and residents." The advertising agreement between the parties, the court held, did not deprive the court of jurisdiction, because the motion to compel was not a dispute between Hadeed and Yelp but rather a dispute between Hadeed and the anonymous reviewers, parties not governed by the agreement.

Finally, the trial court held that the proper standard for compelling the identity of anonymous speakers was laid out in Virginia Code § 8.01-407.1, which requires a showing that the statements "may be tortious" and that the speaker's identity is "important" or "relates to a core claim." Hadeed had met the statutory standard, the court held, because "the statements [we]re tortious if not made by customers" and "the identity of the communicators [w]as essential to maintain a suit for defamation." The court found no constitutional problem with this result. Although the court "recognize[d] that anonymous speech and even false speech is entitled to protection under the First Amendment," it stated that such speech is "not entitled to the same level of protection as truthful or political speech." Without citing Dendrite or Cahill, the court therefore ordered Yelp to produce information identifying the anonymous speakers.

Yelp refused to enforce the subpoena and, on January 9, 2013, the court held Yelp in contempt and imposed a $500 fine and $1000 in attorney fees. The sanctions were stayed pending appeal.

Yelp appealed to the Court of Appeals of Virginia and filed its opening brief on May 7, 2013. Yelp argued that the circuit court violated the First Amendment by ordering Yelp to identify the defendants, because Hadeed should have been required to do more than articulate a good faith belief that the speech "may be tortious." Indeed, Yelp asserted, the constitution requires "a factual showing, . . . that the statements are actionable and that there is an evidentiary basis for the prima facie elements of the claim." Yelp also argued that the court erred in concluding that the speech at issue did not warrant First Amendment protection because it was defamatory, because that argument begged the question by relying on the defamatory nature of the speech to compel evidence to prove its defamatory nature. Yelp also pointed to the constitutional requirement of proof of fault in defamation cases.

Yelp next argued that, even if Hadeed had made a sufficient showing that the reviewers were not Hadeed customers, the statements were not actionable. The parts of the reviews that Hadeed alleged were false -- the identities of the reviewers -- were not the parts of the reviews that could negatively impact Hadeed's reputation. Under Fourth Circuit precedent, Yelp claimed, "the falsity of a statement and the defamatory ‘sting' of the publication must coincide" for a statement to constitute defamation. And in this case, "Hadeed never allege[d] that the substantive problems set forth in the reviews, such as charging twice the advertised price, [we]re themselves false." Additionally, Yelp argued that Hadeed was libel-proof and could not sue for defamation because, in light of the large number of negative Yelp reviews of Hadeed that were not included in the lawsuit, a few more negative comments "would [not] cause Hadeed any incremental harm."

Yelp finally argued that, if the statements could be actionable, Hadeed had not presented a sufficient factual basis for the subpoena. When a party is "seeking discovery of information protected by the First Amendment," Yelp claimed, it should be required to show that "there is reason to believe that the information sought will, in fact, help its case." Hadeed had failed to make this showing, Yelp stated.

On May 8, 2013, the Reporters Committee for Freedom of the Press, the American Society of News Editors, Gannett Co., and The Washington Post filed a brief in support of Yelp. They argued that: the court should recognize "a heightened standard for compelled disclosure of identities" consistent with a consensus that has developed in the courts; allowing plaintiffs to compel the identity of authors "of any speech that ‘may be tortious' simply based on an unsupported allegation is inconsistent with the First Amendment"; and a "heightened standard is important to news organizations and other Internet publishers in creating a meaningful exchange of ideas on their web sites."

Hadeed filed its appellee's brief on May 30, 2013, arguing that the Virginia statute "clearly meets the minimal constitutional protections required under the First Amendment." But even if the Dendrite test were constitutionally required, Hadeed contended that the test had been satisfied because its complaint had "provided the actual statements, and if the posters are not customers, their statements are defamatory per se." Even under Dendrite, Hadeed argued, it was not required to present "all evidence necessary to survive a tough cross examination, summary judgment, or even . . . a jury verdict." Hadeed claimed it could not present more detailed information rebutting the Yelp reviews because it "serves 35,000 customers per year and its staff encounters all variety of circumstances," and the experiences of its thousands of other customers would not be relevant to "whether one specific person was defrauded through a bait and switch." Hadeed also contested Yelp's argument that it was libel proof, arguing that the many other negative Yelp reviews were not reliable.

Yelp filed a reply brief on June 27, 2013. It asserted that "even apart from the fact that a state statute cannot overrule the requirements of the First Amendment, there is no inconsistency between section 8.01-407.1 and the Dendrite-Cahill line of cases." Under the statute, Yelp claimed, it "is not enough for the plaintiff to show good faith; it must have a ‘legitimate' basis for claiming that the speech was tortious." Yelp argued that Hadeed had "alleged defamation, but ha[d] of yet proved nothing," and pointed out that Hadeed had not filed an affidavit from any employee actually denying that Hadeed engaged in the misconduct alleged in the Yelp reviews.

The Court of Appeals of Virginia, by a vote of two to one, affirmed the trial court's decision on January 7, 2014.

First, the court stated that although anonymous speech is protected by the First Amendment, "defamatory speech is not entitled to constitutional protection." Therefore, the court stated, "if the reviews are unlawful in that they are defamatory, then the [reviewers'] veil of anonymity may be pierced." Further, the court found that the speech at issue was commercial speech, as it was "expression related solely to the economic interests of the speaker and its audience." Because courts have recognized a lower level of First Amendment protection for commercial speech," the court held that the anonymous reviewers' "right to anonymity is subject to a substantial governmental interest in disclosure." In contrast, the court stated, a "business's reputation is a precious commodity."

The court also rejected the argument that the reviews were non-actionable opinion. "Generally," the court stated, "a Yelp review is entitled to First Amendment protection because it is a person's opinion." However, the court explained, this protection "relies upon an underlying assumption of fact: that the reviewer was a customer of the specific company and he posted his review based on his personal experience with the business. If this underlying assumption of fact proves false, . . . then the review is not an opinion; instead, the review is based on a false statement of fact."

The court next turned to Virginia law. It held that Virginia Code § 8.01-407.1 provided the proper test for uncovering the identity of an anonymous Internet communicator. The court noted that it was "reluctant to declare legislative acts unconstitutional" and ultimately refused to do so, because there was no constitutional infirmity that was "clear, palpable, and practically free from doubt." The court also refused to "adopt persuasive authority from other states," including Dendrite and Cahill, noting that the Virginia legislature had considered that authority and ultimately made its own policy decisions.

In applying the Virginia statute, the court held that Hadeed presented sufficient evidence to show that the reviews were or may have been defamatory by "indicating that it made a thorough review of its customer database" and could not match the defendants' reviews with customers. Further, the court believed that Hadeed acted on a "legitimate, good faith belief that the Doe defendants were not former customers," and "took reasonable efforts to identify the anonymous communicators." Finally, according to the court, the reviewers' identities were "not only important," but "necessary" because "without the identity of the Doe defendants, Hadeed cannot move forward with its defamation lawsuit."

The court also concluded that the trial court properly exercised subpoena jurisdiction over Yelp because Virginia statutes "explicitly allow for service on a registered agent of a foreign corporation that is authorized to do business in the Commonwealth."

Senior Judge James Haley dissented. Judge Haley agreed that Virginia Code § 8.01-407 provided the proper framework for analysis, and stated that correct analysis under the statutory framework properly "balances the First Amendment protection of an anonymous speaker and the right of redress for defamation." However, he concluded that, in this case, "the balance envisioned by [the statute] should weigh for the protection afforded by" the U.S. and Virginia constitutions. Judge Haley noted that Hadeed had not "claimed that any of the substantive statements [we]re false," and, at oral argument, "candidly admitted that it [could] not say the John Doe defendants are not customers." By arguing that the reviewers "may not have been customers, and, if they were not, the substantive statements may be tortious," Hadeed failed to provide sufficient supporting material to justify the subpoena, he asserted. Instead, Judge Haley said, Hadeed's claim was merely "a self-serving argument -- one that proceed[ed] from a premise the argument [wa]s supposed to prove."

Content Type: 

Jurisdiction: 

Subject Area: 

Getting Dirty to Protect Crowdsourced Data and Public Information

Yesterday, the Digital Media Law Project joined an all-star cast of organizations (including the American Civil Liberties Union, the ACLU of Kentucky, the Electronic Frontier Foundation, the Center for Democracy & Technology, the Public Participat

Subject Area: 

Jurisdiction: 

Ice Roads and Chilled Speech: ECHR Tags News Portal for Reader Comments

The Chamber of the First Section of the European Court of Human Rights held unanimously on October 10 that making a news portal liable for defamatory comments posted by its readers does not violate article 10 of the European Convention of Human Rights protecting free speech.

Subject Area: 

Jurisdiction: 

Backpage.com v. Hoffman, et al.

Date: 

06/26/2013

Threat Type: 

Legislation

Party Receiving Legal Threat: 

Backpage.com, Internet Archive

Type of Party: 

Government

Type of Party: 

Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Jersey

Case Number: 

2:13-CV-03952

Legal Counsel: 

For Backpage.com: Bruce S. Rosen (McCusker, Anselmi, Rosen & Carvelli, PC). For Internet Archive: Frank L. Corrado (Barry, Corrado, Grassi, &Gibson, PC)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

On May 6, 2013, New Jersey Governor Chris Christie signed P.L. 2013, c.51 § 12 (Bill A3352) into law, which was to be codified as N.J.S.A. § 2C:13-1O and take effect July 1, 2013. The New Jersey law would criminalize "advertising commercial sexual abuse of a minor," which a person commits if he "knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor" or "knowingly purchases advertising in this State for a commercial sex act which includes the depiction of a minor." The bill requires a minimum fine of $25,000 for a person convicted of this crime.

On June 26, 2013, Backpage.com, a classified advertising website with a section for adult ads, filed suit in the federal district court of the District of New Jersey against New Jersey Attorney General John Hoffman and prosecutors from each of the state's 21 counties. In the complaint, Backpage.com -- pursuant to 42 U.S.C. § 1983 -- sought a temporary restraining order to enjoin the enforcement of the law, asserting that it violated Section 230 of the Communications Decency Act, the First Amendment, the Fourteenth Amendment, and the Commerce Clause.

Specifically, Backpage.com asserted that:

  • Bill A3352 was preempted by and violated Section 230 of the Communications Decency Act, under which Backpage.com was considered an "interactive computer service."
  • The bill was unconstitutional under the First Amendment because it was a content-based restriction that was overbroad and vague.
  • The bill was also invalid under the First and Fourteenth Amendments because "it purport[ed] to impose strict criminal liability on online service providers such as Backpage.com and others for third-party content, in the absence of proof of scienter, particularly concerning knowledge of the age of any individual depicted in such content."
  • The bill violated the Commerce Clause because it attempted to regulate commercial transactions that took place wholly outside of New Jersey. 

In the complaint, Backpage.com sought declaratory judgment, preliminary and permanent injunctions against enforcing the law, and attorney's fees.

On June 28, 2013, Hoffman, on behalf of himself and the other defendants, filed a response to the demand for a temporary restraining or that argued Backpage.com's claims could not satisfy the necessary elements for granting such an order. The defendants claimed that the New Jersey provision did not conflict with Section 230, allowing the two to coexist. They argued that because the challenged statute prohibits the advertisement of an illegal transaction -- commercial sex acts with minors -- it was categorically excluded from First Amendment protection. Further, they claimed that the provision was not overbroad because it did not broadly prohibit references to sex, but rather was directed solely at offers to engage in an illegal transaction. The response stated that the public interest in protecting children was "overwhelmingly" in favor of allowing the statute to become effective.

On June 28, 2013, after a hearing on the motion, the court granted a temporary restraining order against the enforcement of the law, stating that the plaintiff had satisfied the necessary elements. On July 8, the court ordered that a similar action, filed on June 26 by Internet Archive against the same defendants, would be consolidated with this case. 

An oral argument is scheduled for August 9, 2013.

Jurisdiction: 

Subject Area: 

Ellis v. Chan

Date: 

02/13/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Matthew Chan

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Georgia Superior Court for the County of Muscogee

Case Number: 

5413dm409 (Superior Court); A14A0014 (Court of Appeals)

Legal Counsel: 

Oscar Michelen (Cuomo LLC); William J. McKenney (McKenney & Froelich)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Linda Ellis is the author the motivational poem "the Dash" and actively enforces her copyright to this poem. Matthew Chan runs the Extortion Letter Info website (ELI), featuring a message board often used for exposing alleged copyright trolls and "extortion letter schemes." An individual who claimed to have received a copyright infringement notice and settlement offer from Ellis contributed to a discussion on ELI in 2012. This discussion developed into insults, accusations of copyright trolling and extortion, and other comments that Ellis interpreted as threats to her safety.

On February 13, 2013, Ellis filed a petition for a "stalking temporary protective order" with the Georgia Superior Court, asserting that she was "in reasonable fear of her safety." Ellis alleged that Chan posted threats of death such as "we are coming after you," along with personal information such as her home address. In this petition, Ellis requested that Chan be restrained from any acts that harass or intimidate her or her family and approaching within 1000 yards of her.

Chan presented a memo in opposition to Ellis's petition for an order of protection at the hearing on February 27. In it, he argued that the charges brought by Ellis were inappropriate under the OCGA §§ 16-5-90(a) and 94(d) and the elements of this charge of stalking could not be satisfied. Chan argued that a protective order for stalking was inappropriate as Ellis failed to prove by a preponderance of the evidence "that [Chan's] actions ... placed [Ellis] in reasonable fear for [her] safety by establishing a pattern of harassing and intimidating behavior." Chan also argued that Ellis failed to satisfy every element of the statute, such as contact and the purpose of harassment and intimidation. Chan did not contact Ellis directly, and did not follow or place her under surveillance. Further, Chan argued that his online speech, including the posting of Ellis's home address, was protected by the First Amendment. Lastly, as penalty for allegedly abusing the court system, Chan moved for sanctions against Ellis for filing a petition without substantial justification pursuant to OCGA § 9-15-14.

After the hearing, the Superior Court of Muscogee County issued a broad permanent protective order on March 4, 2013, with a cover sheet entitled "Domestic Relations Case Final Disposition Information Form." In the order, Judge Frank Jordan held that Chan "placed [Ellis] in reasonable fear for [Ellis's] safety" by contacting Ellis and posting her personal information in order to harass and intimidate her. Judge Jordan also emphasized Chan's ability to remove posts as the moderator and his decision not to remove those directed at Ellis. Judge Jordan permanently ordered Chan to remove all posts related to Ellis and to stay 1,000 feet away from her. Chan was also ordered to refrain from "contact of any type, direct, indirect, or through another person, . . . including but not limited to: telephone, fax, email, voicemail, mail, texting, spoofing, Facebook and other forms of social media."

On March 27, Chan filed a notice for appeal to the Court of Appeals of Georgia. Due to delays in production of the transcript from the case, Chan requested multiple extensions of time to file the transcript; his third application for an extension of time to file the transcript was granted on June 28, 2013.

UPDATES:

October 1, 2013: Chan filed his appellant's brief with the Court of Appeals, alleging that the trial court made four reversible errors.

First, Chan argued that the facts alleged cannot meet the elements of the charge of stalking, because publicly posting comments about Ellis online was not contacting her within the meaning of the statute, and that even if posting comments could constitute contact, he did not post his comments "for the purpose of harassing or intimidating" her. Second, Chan argued that he was deprived of due process because the court found him guilty of violating a statute (OCGA §§ 16-5-90(a)(2), relating to stalking in violation of a court order) that he had not been charged with violating. Third, Chan argued that the court improperly admitted an ex-parte affidavit containing "inflammatory, unsupported allegations." Finally, Chan claimed that his speech was protected under the First Amendment, the Georgia Constitution, and the Communications Decency Act.

Specifically, he contended that his speech could not constitute incitement to lawless action. Instead, he claimed, it was political speech, "a call to ‘rally the troops' to use public information about Appellee to show her hypocrisy vis-a-vis the theme of her poem." Chan further argued that the trial court's order violated the Georgia Constitution, because "Georgia courts have held that the State Constitution provides even broader protection of speech than the First Amendment to the United States Constitution." Chan also asserted that many of the allegedly threating posts were posted by other parties, and, as a provider of an interactive computer service, he cannot be treated as the publisher or speaker of those posts under Section 230 of the Communications Decency Act.

Chan further argued that the court's order was overbroad, unduly burdensome, and exceeded the relief demanded by Appellee, because it "did not just require the Appellant to remove the few offending posts that Appellee placed in the record; it forced Appellant to remove all 1,900 posts . . . related to Appellee and her business practices and it forced him to do so forever."

October 21, 2013: Ellis filed her appellee's brief, arguing that the elements of Georgia's stalking law were met, that Chan received proper notice of the charges he faced, and that, with respect to the alledegly inadmissible affidavit, Chan failed to object to the on hearsay grounds, much the affidavit was admissible, and any error was harmless.

Additionally, Ellis argued that the First Amendment provides Chan no protection, because his speech was a true threat-speech that was "intend[ed]" to put her "in fear of bodily harm or death." Even if Chan's speech was protected, Ellis contended that the trial court's order was narrowly tailored "because it is reasonably limited and allows other forms of communication." Ellis claimed that the permanent injunction is a content neutral time, place, and manner restriction subject to intermediate scrutiny because it merely "limits the place for speech, namely the Internet," leaving "open other channels of communication."

Finally, Ellis argued that the CDA does not protect Chan from responsibility for content posted by other users on his website. Relying on Jones v. Dirty World Entertainment Recordings, LLC, 840 F. Supp. 2d 1008 (E.D. Ky. 2012), Ellis urged the court to find that Chan does not qualify for CDA protection because he "posts offensive content, comments, and encourages others to do so by responding to pending forum posts." This conduct, Ellis contended, makes Chan "more than a mere spectator on the ELI website, he is the ringleader."

 

October 30, 2013: Timothy B. McCormack of McCormack Intellectual Property Law Business Law P.S. submitted an amicus curiae brief in support of Ellis. McCormack argued that the First Amendment does not protect Chan because his speech was a true threat, and that the CDA's safe harbor protection does not apply because he participated in and encouraged harassing speech. He further argued "for a bright line rule" that Internet harassment is illegal, regardless of physical proximity," and highlights the negative consequences of Internet bullying.

November 1, 2013: Chan filed a motion requesting leave to file a supplemental reply brief in response to McCormack's brief.

As of November 5, 2013, the case has not been scheduled for argument.

Content Type: 

Subject Area: 

Jurisdiction: 

Monsarrat v. Filcman

Date: 

04/30/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Deb Filcman, Ron Newman, Does 1-100

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Middlesex Superior Court Department of the Trial Court of Massachusetts

Case Number: 

MICV2013-00399-C

Legal Counsel: 

Dan Booth (Booth Sweet LLP), Zachary C. Kleinsasser, Michael J. Grygiel (Greenberg Traurig, LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On February 4, 2013, Jonathan Graves Monsarrat filed a complaint in the Superior Court Department of Middlesex County, Massachusetts against defendants Deb Filcman, Ron Newman, and John and Jane Does 1-100. The complaint alleges that the defendants posted defamatory comments about the plaintiff on the website www.LiveJournal.com beginning on February 4, 2010, which related a linked-to blog post by defendant Filcman on the Somerville Journal's "Wicked Local" webpage. Defendant Newman administers the "davis square" forum on the site on which Monsarrat alleges many of the defamatory responses were posted. As LiveJournal is an online forum, many users are known only by aliases; Monsarrat asserted claims against these commentators by naming them as "John and Jane Does 1 through 100" until their identities could be ascertained through the discovery process.

The defendants' posts concerned Monsarrat's arrest on January 29, 2010, in connection with charged of keeping a noisy and disorderly home and serving alcohol to persons under 21. While these charges were ultimately dismissed against Monsarrat, the plaintiff alleges that the defendants' comments ruined his "reputation, regard, esteem and goodwill." The complaint cites to many of the comments posters made to the "davis square" forum, alleging that these posts are particularly defamatory as they affect him and his businesses locally.

Monsarrat's complaint included claims for: defamation; a violation of Massachusetts' Unfair and Deceptive Trade Practices Act, Mass. Gen. L. ch. 93A; business disparagement; common law copyright infringement (based on photographs taken from Monsarrat's website); intentional infliction of emotional distress; and civil conspiracy.

The complaint alleges that the defendants "intentionally planned and orchestrated this cybersmear attach" [sic] and that defendants "conspired together" to commit the acts which injured Monsarrat. Monsarrat's complaint claims damages amounting to over $500,000 from medical expenses, lost wages (documented and anticipated), and reputational damages.

On April 30, 2013, Monsarrat filed an amended complaint. The amended complaint included all of the initial allegations, and added that under Monsarrat's fourth claim for relief - common law copyright infringement - the defendants' misappropriation was not "for fair use or satire purposes" but instead "in furtherance of their collective willful, wanton and tortious conduct." The amended complaint also included additional damage demands in the form of "costs and disbursements plus interest from the date of commencement" of the action.

On May 14, 2013, defendant Newman's attorney sent a letter in response to Monsarrat's complaint. The answer described Newman's discussion on the LiveJournal forum as "promoting respectful, lively conversation without imposing ham-fisted restraint on the free speech of the community." The letter addressed each of the complaint's assertions in turn, including asserting that:

  • no statements attributed to Newman could sustain a defamation claim;
  • the complaint did not state a Chapter 93A claim against any defendant, and Monsarrat had failed to send a pre-suit demand letter to Newman as required under Chapter 93A;
  • on the business disparagement claim, Monsarrat's complaint did not point to any "actionably false statements" by the defendants, and did not identify any of the plaintiff's products that were disparaged;
  •  "there is no such thing" as common-law copyright infringement;
  • Monsarrat's infliction of emotional distress claim would fail as the complaint does not show that the defendant acted without privilege;
  • on the conspiracy claim, the complaint does not "identify any statement or action by which Mr. Newman could be inferred to have agreed to injure the plaintiff"; and
  • punitive damages for defamation have not been permitted in Massachusetts since 1974.

The May 14th letter claims that Monsarrat's claims are wholly without merit and were brought in bad faith, and demands that Monsarrat's attorney file a notice voluntarily dismissing the complaint with prejudice or else face sanctions.

On May 28, 2013, defendant Filcman's attorney sent a letter in response to Monsarrat's complaint. The letter contends that Filcman's article on Monsarrat's January 2010 arrest is protected under the First Amendment and adds that the plaintiff's allegation of a "wide-spread cyber-smear campaign" is without basis "in fact or law" and "frivolous, abusive, and harassing." In addressing the defamation claims, the letter points to Massachusetts' fair report privilege that provides a safe harbor on fair and accurate reports. The letter also asserts that there is "no such thing" as a common law copyright claim, and under the federal Copyright Act, the plaintiff's photograph was not federally registered and his claim would therefore fail.

On June 7, 2013, Monsarrat's attorney filed a voluntary dismissal with prejudice (a copy of the official text is posted on LiveJournal). No settlement was reported on the docket of the court and no payments were made.

Content Type: 

Jurisdiction: 

Subject Area: 

Backpage.com v. Cooper, et al.

Date: 

05/21/2012

Threat Type: 

Legislation

Party Receiving Legal Threat: 

Backpage.com

Type of Party: 

Government

Type of Party: 

Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Tennessee: Nashville Division

Case Number: 

3:12-cv-654

Legal Counsel: 

Ambika K. Doran, Eric M. Stahl, James C. Grant (Davis Wright Tremaine LLP); Craig L. Meredith, Lucian T. Pera, Tricia T. Olson (Adams and Reese LLP (Nashville))

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued

Description: 

On May 21, 2012, Tennessee State Governor Bill Haslam signed Public Chapter 1075 ("SB 2371") into law. Tennessee's SB 2371 defined the felony offense of advertising "commercial sexual abuse of a minor" which a person commits if he or she "knowingly sells or offers to sell an advertisement that would appear to a reasonable person to be for the purpose of engaging in what would be a commercial sex act of a minor." The law prohibited a defense of ignorance of the minor's age. A violation of SB 2371 could result in up to 15 years in prison and a minimum fine of $10,000.  SB 2371 was scheduled to take effect on July 1, 2012.

Backpage.com is a classified advertisements website with one section of its website dedicated to adult services. In 2010, Tennessee State Attorneys General sent a letter to Backpage.com demanding that the website remove its "adult services" section. Backpage.com did not comply with this initial demand. In 2011, the National Association of Attorneys General ("NAAG") publically released a second demand letter to Backpage.com. This second letter again demanded removal of Backpage.com's adult section; it also requested detailed information from Backpage.com in "lieu of a subpoena." 

On June 27, 2012, Backpage.com brought suit in the U.S. District Court for the Eastern District of Tennessee against Tennessee State Attorney General Robert E. Cooper, Jr., and each of the state's 31 district attorneys to prevent enforcement of SB 2371. In its initial complaint, Backpage.com argued that the law violates the Communications Decency Act of 1996, 47 U.S.C. § 230, the First and Fourteenth Amendments, and the Commerce Clause of the United States Constitution. Backpage.com contended that SB 2371 violated § 230 as it would treat Backpage.com as the publisher of information which was provided by another content provider. In its First and Fourteenth Amendment argument, Backpage.com argued that SB 2371 was unconstitutional under the as it is overly broad in its restriction of free speech. In its Commerce Clause argument, Backpage.com argued that SB 2371 places an undue burden on interstate commerce.

The same day, on June 27, 2012, Backpage.com filed a Motion for Temporary Restraining Order and Preliminary Injunction to prevent enforcement of SB 2371. The Motion contended that SB 2371 would affect millions of online providers and would violate the immunity 47 U.S.C. § 230 granted to online publishers against third-party content.

On July 26, 2012, Cooper and the other defendants filed a response in opposition to Backpage.com's Motion for Preliminary Injunction. Defendants argued that SB 2371 was not preempted under 47 U.S.C. § 230 because it does not apply exclusively to internet usage, while § 230 applies only to internet communications. Further, defendants argued that SB 2371 did not prohibit the posting of advertisements "that would appear to a reasonable person to be for the purpose of engaging in a commercial sex act with a minor" but, instead, criminalized only the selling or offering for sale of such advertisements. The key difference, they argued, is that SB 2371 permits the posting of such advertisements so long as Backpage.com does not charge money or offer to charge money in exchange for posting them. In addressing the First and Fourteenth Amendment argument, the response argued that the advertisements were unlawful and therefore not considered protected speech; they also argued that the law was not overly broad or unconstitutionally vague. In its Commerce Clause argument, defendants argued that illegitimate commerce -- such as the money made from the illegal advertisements -- is not protected. 

On August 29, 2012, the court held a hearing on Backpage.com's motion, and on January 3, 2013, the court granted Backpage.com's Motion and issued a Temporary Restraining Order enjoining enforcement of SB 2371. United States District Court Judge John T. Nixon stated that Backpage.com was likely to succeed on all of its claims as SB 2371 was likely preempted by 47 U.S.C. § 230 and that it likely violated the First and Fourteenth Amendment, and the Commerce Clause of the Constitution.

On March 27, 2013, the court granted a motion by Backpage.com to convert the temporary injunction into a permanent injunction; Cooper and the other defendants did not oppose the motion. The court further found that no disputed factual issues remained and that summary judgment for Backpage.com was proper. United States District Court Judge John T. Nixon reiterated that Backpage.com was likely to succeed on the merits of its claims because: (1) SB 2371 was likely preempted by 47 U.S.C. § 230; (2) SB 2371 likely violated the First and Fourteenth Amendment because it was vague, overly broad, and not narrowly tailored; and (3) SB 2371 likely violated the Commerce Clause.

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Copyright of “Public Facts”: Craigslist v. PadMapper

Craigslist was meant for the common good, or as founder Craig Newmark puts it, “doing well by doing good.”  At least, that has been its announced mission since it began as an email distribution among friends.

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Jurisdiction: 

FunnyJunk, LLC vs. TheOatmeal.com

Date: 

06/02/2012

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

TheOatmeal.com, Matthew Inman

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Legal Counsel: 

Venkat Balasubramani

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On June 2, 2012, attorney Charles Carreon sent a letter on behalf of FunnyJunk, LLC ("FunnyJunk") to Matthew Inman, creator of TheOatmeal.com, which threatened legal action on the basis of a May 2011 blog post by Inman titled "What should I do about FunnyJunk.com?".

In the post, Inman stated that he had discovered a number of his comics displayed without permission or attribution on FunnyJunk, and that he contacted FunnyJunk by email in an attempt to have them removed from the site. He claimed that FunnyJunk took down the images that were identified in the email, but that FunnyJunk had since "practically stolen [his] entire website and mirrored it on FunnyJunk." The post included screen shots of Inman's comics on FunnyJunk.com, and links to FunnyJunk image boards containing his work (as well as that of other artists that Inman alleged had been republished without permission).  

A few days later, Inman posted an update that indicated FunnyJunk had removed some, but not all, of the content at issue.

The June 2 letter from FunnyJunk included a copy of Inman's original post, and alleged that statements made therein constituted a false accusation of willful copyright infringement. Thus, it stated, Inman "exposed [himself] to a lawsuit for defamation per se, in which damages are presumed." The letter also alleged that Inman had engaged in false advertising in violation of the Lanham Act. It concluded by demanding the immediate removal of all mentions of FunnyJunk from TheOatmeal.com and the payment of $20,000.

On June 11, 2012, Inman formally responded to the June 2 letter through his attorney, Venkat Balasubramani. The response letter denied FunnyJunk's claims that the original post was defamatory and constituted a violation of the Lanham Act. The response letter pointed out that FunnyJunk did not appear to have filed a notice of designation naming an agent as required of service providers who seek to rely on the Digital Milennium Copyright Act, placing FunnyJunk in a position where it might be held responsible for third-party infringements. 

On June 12, 2012, Inman issued an informal response to the letter in a post entitled "FunnyJunk is threatening to file a federal lawsuit against me unless I pay $20,000 in damages," published on TheOatmeal.com. Inman included an annotated copy of the June 2 letter, and proposed that he would raise $20,000 in donations and donate the money to two charitable organizations: the National Wildlife Federation, and the American Cancer Society. A link was provided to the fundraising website Indiegogo.com. 

On June 15, 2012, Carreon filed a lawsuit in his own name against Inman, Indiegogo, Inc., the American Cancer Society, the National Wildlife Federation and 100 anonymous Internet users for their role in the fundraising effort. As of July 20, 2012, no further action appears to have been taken by FunnyJunk. 

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    Beaverton Grace Bible Church v. Smith

    Date: 

    02/22/2012

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    Julie Anne Smith; Hannah Smith; Kathy Stevens; Jason Stephens; Meaghan Varela

    Type of Party: 

    Individual
    Organization

    Type of Party: 

    Individual

    Court Type: 

    State

    Court Name: 

    Circuit Court of the State of Oregon: Washington County

    Case Number: 

    C121174CV

    Legal Counsel: 

    Linda K. Williams; Herbert G. Grey

    Publication Medium: 

    Blog

    Relevant Documents: 

    Status: 

    Concluded

    Disposition: 

    Dismissed (total)

    Description: 

    On February 22, 2012, O'Neal and the Beaverton Grace Bible Church filed a complaint in the Circuit Court of the State of Oregon for Washington County against Julie Anne Smith, her daughter, and two other blog commentators (the Stephens), alleging defamation and requesting $500,000 in damages arising out of critical comments on the Church's Google reviews page and Smith's blog.

    According to the complaint and news sources, Julie Anne Smith and her family were congregants at Beaverton Grace Bible Church for several years when one of the church's employees was dismissed in late 2008. The Smiths met with Pastor O'Neal to express their concerns about this situation and were later allegedly instructed to recant these concerns. The Smiths did not do so and stopped attending church services.

    Later, after Oregon police began investigated allegations of child molestation against the Pastor and church, Pastor O'Neal "excommunicated" the Smiths. In response, starting in early 2009, Julie Anne Smith posted her concerns on the Google review page for Beaverton Grace Bible Church, and when these were taken down, she began a blog called Beaverton Grace Bible Church Survivors. Her comments and blog expressed opinion that the church was a "creepy" and unsafe environment and condemned O'Neal for his "extra-biblical legalistic teaching[s]" and allowing a known sex offender into the church. This blog received many similar comments, such as those by the Stephens.

    In response, O'Neal and the Beaverton Grace Bible Church filed the complaint in this action. On April 26, 2012, the defendants filed a special motion to strike the defamation claim under Oregon's anti-SLAPP statute. This motion also asserted as defenses that: the speech was comprised of protected opinion; the church and Pastor O'Neal are public figures and there is no evidence of actual malice; and the church autonomy doctrine applies.

    On the same day, Beaverton Grace Bible Church and O'Neal filed an amended complaint. An additional defendant, Meaghan Varela, was added for her comments on Smith's blog, and more allegedly defamatory speech on the blog was identified. Accordingly, on May 1, 2012, the defendants filed a second special motion to strike in response to the additional allegations of the amended complaint, as a supplement to their first motion. On May 14, Beaverton Grace Bible Curch and O'Neal opposed the motions to strike and filed a declaration by a congregant to demonstrate that the allegation of allowing a known sex offender access to the church was a false statement.

    Update:

    On July 23, 2012, the court granted the defendants' special motion to strike. The court found that the statements made were on "issues of public interest," that several of the statements were not provable assertions of fact, and that the balance were pure opinion. The court awarded $16,750 in attorney's fees to defendants  Kathy Stephens and Jason Stephens, and invited defendants Julie Ann Smith, Hannah Smith, and Meaghan Varela to submit statements for fees.

    Content Type: 

    CMLP Notes: 

    KMB created

    AFS edited to include motion to dismiss 7/27 AFS

    Originally submitted by OMLN attorney Linda Williams, who represents some of the parties.

    Jurisdiction: 

    Subject Area: 

    The IRS and User-Generated Content

    As we have reported previously, the Digital (nee Citizen) Media Law Project has been following a trend in delays at the Internal Revenue Service relating to Section 501(c)(3) tax exemptions for nonprofit journalism organizations.

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    Admission Consultants, Inc. v. McGraw Hill Publishing Co.

    Threat Type: 

    Lawsuit

    Date: 

    08/22/2007

    Party Receiving Legal Threat: 

    McGraw Hill Publishing Co.; McGraw Hill News Bureaus

    Type of Party: 

    Organization

    Type of Party: 

    Media Company

    Court Type: 

    State

    Court Name: 

    New York Supreme Court

    Case Number: 

    Index No. 111503/07

    Legal Counsel: 

    No appearance

    Publication Medium: 

    Forum

    Relevant Documents: 

    Status: 

    Concluded

    Disposition: 

    Subpoena Enforced

    Description: 

    Admission Consultants, Inc. petitioned the New York Supreme Court to order McGraw Hill, publishers of the BusinessWeek "B-School" forums, to disclose the registration information of several BusinessWeek forum posters.  The posters allegedly defamed Admission Consultants in their posts.

    On October 3, 2007, the New York Supreme Court ordered the disclosure of the posters' identities.  McGraw Hill disclosed the required information.  Two of the forum users had registered using Google's Gmail service, leading Admission Consultants to seek the identities of those users in a separate action.

    Subject Area: 

    Content Type: 

    Priority: 

    2-Normal

    Jurisdiction: 

    CMLP Notes: 

    Source: Paul Levy of Public Citizen, via Phil Malone

    Threat Source: 

    Public Citizen

    Righthaven LLC v. Vote For The Worst, LLC

    Date: 

    06/28/2010

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    Vote For The Worst, LLC,, Nathan Palmer, David J. Della Terza

    Type of Party: 

    Organization

    Type of Party: 

    Individual
    Organization

    Court Type: 

    Federal

    Court Name: 

    United States District Court for the District of Nevada

    Case Number: 

    2:10-cv-01045

    Legal Counsel: 

    Marc Randazza and James M DeVoy of Randazza Legal Group; John L. Krieger and Nikkya G. Williams of Lewis and Roca LLP

    Publication Medium: 

    Forum

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    On June 28, 2010, Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against the website company Vote for the Worst ("VFTW") LLC and two of its managers, David Della Terza and Nathan Palmer.  Righthaven sued VFTW after a user posted a Las Vegas Review-Journal article on the site's forum.

    On August 16, 2010, VFTW moved to dismiss.  VFTW argued that the court lacked personal jurisdiction because none of the defendants are residents of or have sufficient contacts with Nevada.  The court denied VFTW's motion on March 30, 2011.

    VFTW filed an answer on April 13, 2011, asserting defenses of fair use, lack of personal and subject matter jurisdiction, and innocent infringement. 

    Update:

    4/17/2011 - VFTW filed a motion to dismiss for lack of subject matter jurisdiction, based on the recently-unsealed agreement that purported to assign Stephens Media's copyright in various content to Righthaven.  Hoehn argued that the agreement, which was unsealed by the court hearing Righthaven LLC v. Democratic Underground LLC, shows that Righthaven lacks the standing to sue because Righthaven was not the exclusive holder of any rights in the copyrighted material at issue in the lawsuit.  Under Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005), a plaintiff must be the exclusive holder in a copyright to sue.  Under the unsealed agreement, Stephens Media retained exclusive rights in the works, thereby preventing Righthaven from being able to sue on the copyright.

    Content Type: 

    Jurisdiction: 

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    Roger Nicosia v. Lisa Rollins, Christopher Bartlett, John Etzler, Philip A. Grogan d/b/a Spearboard.com/Enterprise Publications

    Threat Type: 

    Lawsuit

    Date: 

    01/10/2011

    Party Receiving Legal Threat: 

    Lisa Rollins, Christopher Bartlett, John Etzler, Philip A. Grogan d/b/a Spearboard.com/Enterprise Publications

    Type of Party: 

    Individual

    Type of Party: 

    Individual
    Intermediary

    Court Type: 

    State

    Court Name: 

    Circuit Court of the Nineteenth Judicial Circuit in and for Martin County, Florida

    Case Number: 

    43-2011-CA-000024

    Legal Counsel: 

    Lawrence G. Walters & Kevin W. Wimberly (for Defendant Etzler)

    Publication Medium: 

    Forum

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    On January 9, 2009, Plaintiff Roger Nicosia navigated his boat into a dive area and ran over diver Robert Murphy (“Murphy”). The boat’s propellers sliced through Murphy’s legs, resulting in amputation of both legs below the knee. The collision was so violent that, when explaining the events once he reached shore, Nicosia stated that his boat had a “big, big vibration” when traveling above 8 knots on the way to shore because of presumed propeller damage.

    Understandably, the gruesome incident received widespread attention in the news media, and, as alleged in the Complaint, on Internet discussion forums such as “Spearboard,” which is a discussion board (or “forum”) dedicated to spearfishing and diving enthusiasts. Within hours of the tragedy, the spearfishing community, of which Murphy was and is a member, began discussing the incident and praying for Murphy via Spearboard. In the months leading up to the State of Florida charging Nicosia with violating navigation rules, as well as in the months during the trial, the media, including discussion forums such as Spearboard, continued to report on and debate the incident.

    Nicosia’s actions that day resulted in Martin County Judge Kathleen Roberts convicting him of violating Florida’s boating navigation rules resulting in a boating accident, a second degree misdemeanor.On August 18, 2010, the day that Judge Roberts delivered her verdict, a public outcry ensued based on the farcical punishment allowed under the statute that Nicosia violated.

    As one commentator (who is not a Defendant in this case) wryly stated a few days after the verdict, the monetary punishment amounted to “$125.00 a leg.” Other commentators, including the Defendants in this case, also exercised their First Amendment right to comment on this matter of public importance. In response, they have been sued in a troublingly blatant attempt to shut them up. By burdening Defendants with the monetary and emotional expense of litigation, Nicosia is engaging in the classic SLAPP tactic to silence protected speech.

    Content Type: 

    Subject Area: 

    CMLP Notes: 

    Submitted by:

    Kevin W. Wimberly
    Attorney at Law
    Walters Law Group
    781 Douglas Avenue
    Altamonte Springs, Florida 32714-2566
    www.FirstAmendment.com

    Tel: (407) 975-9150
    Fax: (407) 774-6151

    Jurisdiction: 

    Federici v Pignotti et al

    Date: 

    12/17/2010

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    Monica Pignotti, Jean Mercer, Charly Miller, Linda Rosa, Larry Sarner, Advocates for Children in Therapy, John Does 1-10

    Type of Party: 

    Individual

    Type of Party: 

    Individual

    Court Type: 

    Federal

    Court Name: 

    Virginia Eastern District Court, Alexandria

    Case Number: 

    1:2010cv01418

    Legal Counsel: 

    Amy Owen, Kirstin Zech, Sarah Bagley

    Publication Medium: 

    Blog
    Forum
    Website

    Relevant Documents: 

    Status: 

    Concluded

    Disposition: 

    Dismissed (total)

    Description: 

    Virginia Psychologist Ronald S. Federici is suing multiple parties from multiple states (Florida, New Jersey, Nebraska, Colorado) for defamation, conspiracy, and tortious interference. Defendants are authors of blogs, forum comments, and websites that were critical of his writings and practices. Plaintiff has also named John Does 1-10, alleging conspiracy with unidentified anonymous bloggers and others.
    Public documents on this case are available via Pacer.

    Update:

    3/28/11 -  The court granted the defendants' motions to dismiss for lack of personal jurisdiction.  The court also granted the motion of defendants Pignotti and Mercer to dismiss for failure to state a claim.

    5/31/11 - After the claims against the named defendants were dismissed, Federici moved to dismiss without prejudice the claims against the John Doe defendants.

    6/1/11 - The court granted Federici's motion to dismiss the remaining claims against the John Does. 

    Content Type: 

    Subject Area: 

    Jurisdiction: 

    Righthaven LLC v. Democratic Underground

    Threat Type: 

    Lawsuit

    Date: 

    08/10/2010

    Party Receiving Legal Threat: 

    Democratic Underground, LLC; David Allen

    Type of Party: 

    Organization

    Type of Party: 

    Individual
    Organization

    Court Type: 

    Federal

    Court Name: 

    United States District Court for the District of Nevada

    Case Number: 

    2:10-cv-01356

    Legal Counsel: 

    Andrew P. Bridges, Winston & Strawn; Kurt Opshal, Electronic Frontier Foundation

    Publication Medium: 

    Forum

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    On August 10, 2010, Righthaven LLC, a Las Vegas company associated with Las Vegas Review-Journal owner Stephens Media LLC, filed a copyright infringement lawsuit against the website Democratic Underground ("DU") and its owner, David Allen. 

    As illustrated by an exhibit to the Complaint, a DU user going by the screen name "pampango" posted the first four paragraphs of a Review-Journal article entitled "Tea Party power fuels Angle" in the website's forums on May 13, 2010, with a link back to the remainder of the 34-paragraph article on the Review-Journal website. The Complaint seeks statutory damages for willful infringement, transfer of the democraticunderground.com domain name, and costs and attorneys' fees.

    On September 27, 2010, attorneys for DU, including attorneys with the Electronic Frontier Foundation, filed an Answer and Counterclaims against Righthaven, seeking a declaratory judgment of noninfringement, as well as costs and attorneys' fees.  The counterclaims also named Stephens Media.

    Update:

    11/15/2010 - Righthaven moved to voluntarily dismiss with prejudice its complaint against DU.  Righthaven said that its decision was based on an intervening fair use ruling in Righthaven LLC v. Realty One Group, Inc., and argued that it would be unfair to force Righthaven to continue to litigate its present case.

    11/17/2010 - Stephens Media moved to dismiss or strike DU's counterclaims against it.  Stephens Media argued that no controversy existed between it and DU, and that DU failed to state a claim against Stephens Media.  Stephens Media also partially joined Righthaven's motion to voluntarily dismiss its complaint.

    12/7/2010 - DU filed briefs in opposition to both Righthaven's motion for voluntary dismissal and Stephens Media's motion to dismiss.  DU argued that Righthaven's complaint was meritless from the start, and that DU was entitled to seek attorneys fees even if Righthaven dropped the complaint.  DU also argued that its counterclaims against Righthaven did not depend on Righthaven's complaint, and thus still merited litigating.  Regarding the Stephens Media motion, DU argued that its counterclaim against Stephens Media did set out a controversy between the parties, and that the dismissal of Righthaven's complaint had no bearing upon that controversy.

    3/4/2011 - DU filed a motion to for leave to file a supplemental memo addressing new evidence relating to various pending motions.  DU also moved to seal its motion as the evidence contained documents marked "Confidential Attorneys’ Eyes Only" by Stephens Media.  DU said it would seal the documents until it could discuss with opposing counsel which portions should be made publicly available.

    3/29/2011 - DU moved to unseal the documents.  DU stated that Stephens Media and Righthaven refused to lift its designation of  "Confidential Attorneys’ Eyes Only" and did not reach a stipulated resolution with DU.  DU added that Stephens Media and Righthaven failed to file any justification with the court for keeping the documents sealed.  Thus, DU argued, they failed to meet their burden of showing why the documents should remain sealed, and so the documents should be made public.

    4/11/2011 - The court granted DU's motion to unseal the documents.  The documents were revealed to include a "Strategic Alliance Agreement" between Stephens Media and Righthaven, describing the terms of copyright assignments for the purposes of litigation against infringers.  The agreement states among other things that Righthaven has no right to exploit the copyrights at issue, other than via recovery from lawsuits, and that Stephens Media retains control over who Righthaven sues.

    6/14/2011 - Court concluded that there was no absolute transfer of any right within copyright, and that Stephens Media, the original copyright holder, retained actual control even over the right to sue for infringement. Finding that "[p]ursuant to Section 501(b) of the 1976 Copyright Act, 17 U.S.C. § 101, et. seq., only the legal or beneficial owner of an exclusive right under copyright law is entitled, or has standing, to sue for infringement," the court held that Righthaven lacks the ability to bring the instant case. As such, it grants Democratic Undergound's motion for summary judgment, and dismisses as moot the Motions from Stephens Media and Righthaven. 

    Content Type: 

    Subject Area: 

    Priority: 

    1-High

    Jurisdiction: 

    Major League Baseball v. Charter Communications Inc.

    Date: 

    06/03/2010

    Threat Type: 

    Subpoena

    Party Receiving Legal Threat: 

    Charter Communications Inc.

    Type of Party: 

    Large Organization

    Type of Party: 

    Large Organization

    Court Type: 

    State

    Court Name: 

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

    Case Number: 

    107256/2010

    Publication Medium: 

    Forum

    Status: 

    Pending

    Description: 

    On June 3, 2010, Major League Baseball filed a petition for a court order requiring Internet service provider Charter Communications Inc. to disclose the names of users who posted "pornographic," and "indecent" material on MLB.com forums, Reuters reports.

    Major Legaue Baseball traced the IP addresses of the offensive posters to Charter Communications and seeks the names of the posters so that it can pursue "appropriate action" against them. MLB.com has tried and failed several times to ban the "obscene" posts, many of which involve threats of unwanted sexual acts against other forum users, and images of genitalia, according to Reuters

     

    Content Type: 

    Subject Area: 

    Threat Source: 

    Court Filings

    CMLP Notes: 

    6/9/10 9.42am: I could not track down the petition for the court order so I relied heavily on the Reuters article. MH

    Jurisdiction: 

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