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ONI Releases Bulletin on Internet Shutdown in Burma

Yesterday, the OpenNet Initiative released an excellent report on the recent Internet shutdown in Burma, entitled "Pulling the Plug: A Technical Review of the Internet Shutdown in Burma." Besides the eye-popping technical analysis ONI was able to carry out in a matter of weeks, the report contains a great overview of the dramatic events of late September and early October 2007, including the role that citizen journalists and

Jurisdiction: 

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Subject Area: 

Coons v. Oliphant (Letter)

Date: 

12/23/2006

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

John Oliphant

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Email

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

On December 22, 2006, John Oliphant sent a mass email entitled "the Worst Party Guest Ever," in which he made insulting remarks about Ron Coons and accused him of drugging women at a party. The email included a picture of Coons and a caption saying "He's a pervert Dude."

On December 23, 2006, Coons contacted Oliphant through Oliphant's MySpace page and complained about the email.

On January 4, 2007, Coons's lawyer sent Oliphant a letter threatening legal action if he did not publish a retraction and apology.

Coons filed a lawsuit in Tennessee state court in late January. (Please see the CMLP's Database entry for the related lawsuit).

Jurisdiction: 

Content Type: 

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CMLP Notes: 

Problem uploading pdf file with threat letter as pdf -- file appears corrupted

Trosch v. Layshock

Date: 

04/01/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Justin Layshock; Thomas Cooper; Brendan Gebhart; Christopher Gebhart

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Court of Common Pleas, Mercer County, Pennsylvania

Legal Counsel: 

Michael L. Magulick (Cooper); Gina M. Zumpella (Gebharts)

Publication Medium: 

Social Network

Status: 

Pending

Description: 

In December 2005, Justin Layshock and three other high school students created fake MySpace profiles for their principal, Eric Trosch. The profiles included an official school portrait of Trosch and answers to the website's template questions for creating a profile. Many of the answers were derogatory and sexually explicit. One profile indicated that Trosch's favorite movie was a pornographic film. Another indicated that Trosch "liked to have sex with students and brutalize women." A third said that he "kept a keg of beer at his desk at school, was on steroids, and smoked marijuana."

After the school district disciplined Layshock, he brought a federal lawsuit claiming that the school's punishment violated his First Amendment rights. (Please see the CMLP database entry on the school's disciplinary action for more information).

At some point, the identies of the other three students came to light, and Trosch filed a defamation suit in Pennsylvania state court in April 2007.

Update:

12/01/2007 - Judge Christopher J. St. John denied the defendants’ motion to dismiss the state case, but held that the statements were not made with actual malice and that the principal could not recover punitive damages.

11/2008 - Trosch dropped his claims against three of the defendants, leaving only Layshock in the case.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Updated 6/09/2008 (JMC) - Court records don't seem to available on-line. Sharon Herald reporter Joe Pinchot would likely know the status of this case.

Lowe's v. Harkleroad

Date: 

09/19/2007

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

LF, LLC (affiliated with Lowe's)

Party Receiving Legal Threat: 

Allen Harkleroad

Type of Party: 

Large Organization

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Allen Harkleroad was dissatisfied with the installation of a fence he purchased from Lowe's. When Lowe's refused to provide further assistance, Harkleroad launched a "gripe" site, Lowes-sucks.com. On the site, Harkleroad posted photos and text detailing his complaints about the installation, deploring Lowe's workmanship and customer service, and describing the actions of Lowe's attorneys and debt collectors.

On September 19, 2007, LF, LLC, a company that owns and manages Lowe's trademarks, sent a cease-and-desist letter to Harkleroad. The letter asserted that Harkleroad's use and alteration of Lowe's trademarks on his site, as well as in the domain name itself, constituted trademark infringement under federal law. The letter warned that LF would "consider other legal remedies" if Harkleroad did not respond by Sept. 28, 2007.

The Electronic Frontier Foundation is representing Harkleroad in the dispute. A September 24, 2007 update on Lowes-sucks.com indicated that Harkleroad's attorneys had been in contact with Lowe's attorneys about a settlement. Ars Technica reported on September 26, 2007 that Harkleroad made a settlement "counter-offer," to which Lowe's had not yet responded.

The Lowes-sucks.com website is no longer operational, leading us to believe that the parties settled.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Check Lowes-sucks.com for updates {last checked MS 10/10/2007}

Vilenchik v. Gregerson (Letter)

Date: 

10/04/2005

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Andrew Vilenchik

Party Receiving Legal Threat: 

Chris Gregerson

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Gregerson is a photographer who maintains a website containing his professional photographs. Vilana Financial, Inc. used two of Gregerson's pictures without permission in phone-book and web advertisements, and print advertisements in a local Russian-language newspaper. Gregerson discovered Vilana's use of his photographs and contacted the company asking for compensation. Vilana refused, claiming that it purchased the photographs from a third party (neither party was able to locate this third party during the subsequent litigation).

Gregerson devoted a portion of his website to a discussion of the disagreement over the photographs. On it, he claimed that Andrew Vilenchik had published two of his photos without permission in a series of ads for Vilana. Along with the text, Gregerson posted a photograph of Vilenchik.

According to Gregerson's website, on October 4, 2005, Richard Raver sent him a cease-and-desist letter on behalf of Vilenchik, demanding that Gregerson remove the webpage or face a lawsuit for defamation. Apparently, Gregerson replied with an offer to remove anything that Vilenchik could show was not true.

Vilana Financial filed a lawsuit against Gregerson in Minnesota state court on October 24, 2005. Please see the CMLP's Database Entry on the related lawsuit, Gregerson v. Vilana Financial, for more information on the status of the suit.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Hollis v. Joseph

Date: 

05/31/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Todd Hollis

Party Receiving Legal Threat: 

Tasha Joseph (a.k.a. Tasha Cunningham); Empress Motion Pictures; Carolyn Lattimore; Alescia Roskov; Does 1-6

Type of Party: 

Individual

Type of Party: 

Individual
Intermediary

Court Type: 

State

Court Name: 

Pennsylvania Court of Common Pleas, Allegheny County

Case Number: 

GD-06-012677

Legal Counsel: 

Robert Byer, Daniel Beisler

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

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

According to the initial complaint, four separate profiles were created by anonymous users of the site, which allegedly falsely claimed that Hollis had multiple children and had herpes; was "gay" or "bi"; had given the user an STD; and that he "wears dirty clothes," "complains about paying child support", and that his "crib is a dump."  (Compl. ¶ 20, 25-26, 30, 34.)  Hollis claims to have complained to Joseph/Cunningham, who refused to remove the profiles.  (Compl. ¶ 23.)  

Hollis sued Joseph/Cunningham, the Cavelle Company, Inc. (the registrant for dontdatehimgirl.com), and three individuals who he claims were responsible for the false profiles for defamation, seeking $50,000 in actual damages plus punitive damages.

Joseph and the Cavelle Company moved to dismiss for lack of personal jurisdiction.  The Pennsylvania court granted this motion with respect to Joseph/Cunningham, a resident of Florida, and the Cavelle Company.  Hollis filed a second lawsuit in federal court in Florida on November 29, 2007.

Jurisdiction: 

Content Type: 

Subject Area: 

Crook v. 10 Zen Monkeys

Date: 

09/19/2006

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Michael Crook

Party Receiving Legal Threat: 

10 Zen Monkeys

Type of Party: 

Individual

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California

Case Number: 

4:06CV06800

Legal Counsel: 

Michael Crook (Pro se, in the related lawsuit)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed
Settled (total)

Description: 

On September 18, 2006, Lou Cabron, a contributor to the webzine, "10 Zen Monkeys," wrote an article about Michael Crook, the operator of "craigslist-perverts.org," a website that publicized responses to fake personal advertisements posted on Craigslist. In the article, Cabron posted a still photographic image of Crook from a newscast on Fox News. Cabron's article, called "In the Company of Jerkoffs," was critical of Crook's controversial tactics.

The next day, Crook sent a DMCA take-down notice to the website's internet service provider (ISP), claiming that 10 Zen Monkey's use of the photographic image violated his copyright in it. In response to the notice, the ISP made 10 Zen Monkeys take down the image.

10 Zen Monkeys then changed its ISP and re-posted the image. Crook sent another take-down notification to the new ISP on September 22, 2006. On October 30, 2006, Jeff Diehl, the publisher of 10 Zen Monkeys, sent a counter-notification to the ISP pursuant to notice-and-takedown procedures found at 17 U.S.C. § 512(g),requesting that the image be re-posted. On November 15, 2006, the ISP re-posted the image because Crook had not filed a lawsuit "seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network," as required by 17 U.S.C. § 512(g)(2)(C).

Represented by the Electronic Frontier Foundation, Diehl then filed a lawsuit against Crook in federal court in California, claiming that Crook violated Section 512(f) of the DMCA, which imposes liability for making knowing, material misrepresentations in a DMCA takedown notice. Diehl argued that Crook knowingly misrepresented that he was the owner of the copyrighted image because the copyright clearly belonged to Fox News. Diehl also contended that Crook knowingly misrepresented that posting the image infringed his copyright because the posting of the image was a fair use. Diehl also claimed that Crook's actions constituted tortious interference with contract and unfair business practices under California law.

In March 2007, Diehl and Crook agreed to a settlement. As part of the settlement, Crook agreed to withdraw his DMCA notices, take a copyright law course, and record a video apology.

 

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

SB Reviewed

Flavaworks v. Cannick

Date: 

07/18/2007

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Flavaworks, Inc.

Party Receiving Legal Threat: 

Cannick, Jasmyne; Tarver, Bernard

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Description: 

The Chicago Department of Public Health released a Winter 2006 report regarding a “cluster” of HIV and other STD outbreaks at a Chicago apartment building. The report noted that the outbreaks were associated with Flavaworks, an Internet pornography company that had used the building as a base for some of its pornographic ventures – including the site, "Cocodorm.com." Flavaworks subsequently was involved with investigations stemming from the report and other legal issues. Alongside print media coverage of the Flavaworks situation, bloggers Cannick and Tarver wrote posts critical of the company. According to the bloggers' sites, both received e-mails from Flavaworks asking for those posts to be removed. They refused.

Flavaworks then filed a complaint with Tarver's Web host, alleging that Tarver's use of a Cocodorm photo in his post infringed the company's copyrights. The Web host removed the photo from the blog without consulting Tarver. Tarver then replaced the photo, prompting the Web host to shut down his blog until he explained the situation. His blog was put back online without the photo, but the blog post remained intact.

In June 2007, a Flavaworks attorney sent letters to Cannick and Tarver alleging that they had defamed the company in their posts. Interestingly, the letter took issue with the bloggers' statements that Flavaworks was trying to shut down their blogs simply because they had criticised the company. It warned the bloggers that they would face legal action if they each did not issue an immediate public retraction and pay $250,000 before July 18. Both bloggers refused.

Flavaworks did not pursue legal action following Cannick's and Tarver's rejection of the terms of the letter. Although Cannick noted in a blog post that she had received notice Flavaworks was suing her, this statement referred to the letter discussed above, rather than a case filing.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Might be worth checking Cannick's and Tarver's blogs in case Flavaworks decides to revive the issue later, but it seems to be over. 10/17/2007. {MCS}

Exodus Int'l v. Watt

Date: 

03/01/2006

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Exodus International

Party Receiving Legal Threat: 

Justin Watt

Type of Party: 

Organization

Type of Party: 

Individual

Legal Counsel: 

Laurence Pulgram

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Description: 

Mr. Watt altered a photograph of a billboard that he found on the website of "ex-gay" ministry, Exodus International, and posted it on his blog. The billboard originally read "Gay? Unhappy? www.exodus.to", and Watt altered it to read "Straight? Unhappy? www.gay.com".

Through counsel, Exodus sent Watt a cease-and-desist letter, claiming that his alteration and use of the billboard image infringed Exodus's trademark and copyright rights. The letter demanded that he immediately remove the image from his website.

Watt contacted the ACLU, which put him in touch with attorneys at Fenwick & West, who wrote a response to Exodus on Watt's behalf. Watt's response letter argued, with respect to the copyright claim, that his use of the photograph constituted fair use. With respect to the trademark claim, Watt's letter argued that he did not make a commercial use of Exodus's mark, and furthermore that there was no likelihood of confusion as to the source or sponsorship of the image posted on Watt's blog because his message was so fundamentally antithetical to Exodus's message.

Exodus's lawyers subsequently announced that they would not be suing Watt.

Jurisdiction: 

Content Type: 

Subject Area: 

Zeran v. America Online

Date: 

04/23/1996

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Kenneth Zeran

Party Receiving Legal Threat: 

America Online, Inc.

Type of Party: 

Individual

Type of Party: 

Intermediary

Court Type: 

Federal

Court Name: 

W.D. Oklahoma

Case Number: 

5:96-CV-00598; 1:96CV01564 (EDVA); 97-1523 (4th Cir.)

Legal Counsel: 

Patrick Carome, John Payton, Samir Jain, Randall Boe

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Shortly after the Oklahoma City bombing, an unknown person posted messages on an AOL bulletin board purporting to offer for sale t-shirts and other items which supported or made light of the bombing in Oklahoma City. The messages contained Kenneth Zeran’s first name and phone number.

After Zeran received outraged calls and death threats, he complained to AOL, which removed the postings but did not post a retraction. Similar messages continued to appear on AOL for several weeks despite Zeran’s request that AOL block such messages.

Zeran originally filed negligence and defamation claims in Oklahoma, claiming that AOL was responsible for the postings. AOL moved to have the suit transferred to Virginia, where it was decided.

On March 27, 2007, the district court granted AOL's motion to dismiss. See Zeran v. America Online, Inc., 958 F.Supp. 1124 (E.D. Va. 1997).

On November 12, 1997, the Fourth Circuit Court of Appeals affirmed the decision on appeal. See Zeran v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997). The Court of Appeals based its ruling on Section 230(c)(1) of the Communications Decency Act, which states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The Court of Appeals also rejected Zeran's argument that Section 230 should not apply in this case because the messages at issue had been posted before the statute was enacted.

Jurisdiction: 

Content Type: 

Subject Area: 

Omega World Travel v. Mummagraphics

Date: 

02/08/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Omega World Travel, Inc.; Gloria Bohan; Daniel Bohan; Cruise.com

Party Receiving Legal Threat: 

Mummagraphics, Inc.; Mark W. Mumma

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Virginia

Case Number: 

1:05-cv-00122

Verdict or Settlement Amount: 

$330,000.00

Legal Counsel: 

Kelly Wallace, Richard Scott Toikka

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Verdict (plaintiff)

Description: 

Mummagraphics, Inc., run by anti-spam activist Mark Mumma, operated websites devoted to opposing spam messages. Mumma received a number of unsolicited emails from Cruise.com, a subsidiary of travel agency Omega World Travel, Inc. In early 2005, Mumma posted comments on one of his websites accusing Omega, Cruise.com, and Daniel and Gloria Bohan (Omega's founders) of being "spammers." Mumma also posted a photo of the Bohans taken from the Omega website with a caption describing them as "cruise.com spammers."

In February 2005, Omega, Cruise.com and the Bohans sued Mumma and Mummagraphics in federal court, claiming defamation, copyright infringement, trademark infringement, and unauthorized use of the Bohans' likenesses. Mummagraphics and Mumma counterclaimed for violations of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) and an oklahoma anti-spam statute.

The federal court granted summary judgment to Mummagraphics and Mumma on all of the plaintiffs' claims, except the defamation claim. It granted summary judgment to Gloria Bohan, Omega, and Cruise.com on the defendants' counterclaims based on the CAN-SPAM Act and Oklahoma law. Mummagraphics appealed, and the Fourth Circuit affirmed dismissal of the counterclaims. Omega World Travel, Inc. v. Mummagraphics, 469 F.3d 348 (4th Cir. 2006).

The defamation claim went to trial, and the plaintiffs won a $2.5 million jury verdict in their favor. On June 1, 2007, the court vacated the original judgment and remitted the judgment to $330,000 -- $10,000 each in compensatory damages to Omega World Travel, Cruise.com, and Gloria Bohan, and $100,000 each in punitive damages to Omega, Cruise.com, and Bohan. Plaintiffs are seeking to enforce the judgment in the United States District Court for the Western District of Oklahoma.

Jurisdiction: 

Content Type: 

Subject Area: 

Shamblin v. Martinez

Date: 

11/06/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Gwen Shamblin; Kent Smith; Regina Smith; 64 Other Members of the Remnant Fellowship Church

Party Receiving Legal Threat: 

Anonymous Blogger; Rafael Martinez

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court of Williamson County, Tennessee

Case Number: 

No. 6648

Legal Counsel: 

G. Philip Anderson

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Withdrawn

Description: 

An anonymous blogger made critical statements about Gwen Shamblin, leader of the Remnant Fellowship church, and about the group's beliefs and practices. One of the statements implied that two Remnant Fellowship members who were indicted for beating their eight-year old son to death had relied on advice from "Remnant leadership." Other statements detailed the prices paid by Shamblin for properties she owned. The anonymous blogger also allegedly posted photographs of the children of Remnant Fellowship members, family photos, names and ages of children, and members' home addresses.

Sixty-seven members of the group, including Shamblin, filed a lawsuit against the anonymous blogger in Tennessee state court, claiming defamation and false light invasion of privacy. The plaintiffs also named Reverend Rafael Martinez, who runs a website dedicated to warning the public about cults, in the complaint. Martinez maintains that he had no connection whatsoever to the anonymous blogger. The complaint alleges that Martinez defamed the plaintiffs by making statements that the church's practices were "dangerous and destructive" and indicating that church doctrine advocated "extreme fasting" and "extreme discipline for children," including spankings and whippings.

Martinez moved to dismiss the claim against him in January 2007. The court granted his motion in April 2007, but granted the plaintiffs permission to amend the complaint. Rather than amending, the plaintiffs voluntarily withdrew the lawsuit.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

 

 

Coons v. Oliphant (Lawsuit)

Date: 

01/31/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Ron Coons

Party Receiving Legal Threat: 

John Oliphant

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court for Davidson County, Tennessee

Case Number: 

07C339

Publication Medium: 

Email
Social Network

Relevant Documents: 

Status: 

Pending

Description: 

On December 22, 2006, John Oliphant sent a mass email and posted on his MySpace page an article entitled "the Worst Party Guest Ever," in which he made insulting remarks about Ron Coons. According to court filings, Oliphant accused Coons of drugging women at a party and included a picture of Coons and a caption saying "He's a pervert Dude."

On January 4, 2007, Coons's lawyer sent Oliphant a letter threatening legal action if he did not publish a retraction and apology. (Please see the CMLP Database entry on the related letter for more information.)

Coons sued Oliphant for defamation in Tennessee state court on January 31, 2007. Oliphant answered in March 2007 asserting, among other things, that his statements were true.

The case is pending.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

MLRC

CMLP Notes: 

Status checked on 6/3/2008, no new information (AAB)

Updated 1/29/09 - VAF

Status checked 6/17/09; no further information - CMF

AutoAdmit

Date: 

06/08/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

John Doe I; John Doe II

Party Receiving Legal Threat: 

Anthony Ciolli; Mathew C. Ryan; Ryan C. Mariner; Individuals whose true names are unknown

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

District of Connecticut

Case Number: 

3:07CV00909

Legal Counsel: 

Marc Randazza (Ciolli); Charles E. Vermette, Jr.; Daniel J. Hoppe, Jr.; Orlando P. Ojeda, Jr.; W. Anthony Collins, Jr. (A horse walks into a bar); John R. Williams (AK47); Joseph G. Fortner, Jr.; Susan J. O'Donnell (Matthew C. Ryan, aka ".D")

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)
Subpoena Enforced

Description: 

Two female Yale Law School students, captioned as Does I & II, sued Anthony Ciolli, the former chief education director of the popular law school admissions forum, AutoAdmit, and a host of pseudonymous users of the forum over vulgar, sexually explicit, and threatening comments posted about them on the forum. In addition to making numerous derogatory and sexually explicit statements about the two students, pseudonymous users of the site created another website, t14talent: The Most Appealing Women @ Top Law Schools (now defunct), and posted photographs of one of the students without her permission. (Although the complaint is not entirely clear on this point, the student claims copyright ownership in these photographs in addition to publicity rights, indicating that she may have been the creator of the photos and posted them online.)

According to the complaint, the two students complained about the forum postings to the AutoAdmit staff, but AutoAdmit did not remove the material. Ciolli disputes that he had any authority to remove the offensive postings.

In June 2007, the two students sued in federal court in Connecticut, asserting claims of defamation, copyright infringement, unauthorized appropriation of name and likeness, unreasonable publicity given to another's life, false light invasion of privacy, and other torts. Soon after filing, they moved to proceed anonymously, and the court granted that request.

In August 2007, the plaintiffs moved to modify the court's scheduling order in order to give them time to investigate the identity of the pseudonymous defendants and to amend their complaint. The court granted the initial request and two subsequent requests for thirty-day extensions, the last of which was requested on October 4. According to a tip posted on David Lat's Above the Law blog, it is unlikely that the court will grant a fourth extension, so an amended complaint may be forthcoming relatively soon.

Update:

11/8/07 - Plaintiffs filed an amended complaint dropping Ciolli from the lawsuit.

1/24/08 - Plaintiffs filed a motion for expedited discovery seeking to uncover the identities of the pseudonymous posters listed in the complaint.

1/29/08 - Court granted motion for expedited discovery.

2/22/08 - Pseudonymous defendant "AK47" moved to quash the subpoena directed at AT&T requesting information about his identity.

3/2/08 - Plaintiffs deposed former defendant Anthony Ciolli, at which Ciolli acknowledged that his AOL Instant Messenger username is "AnthonyCiolli."

3/4/08 - Former defendant Anthony Ciolli filed a lawsuit in Pennsylvania state court against the plaintiffs, their lawyers, and other defendants for wrongful initiation of civil proceedings, abuse of process, libel, slander, false light invasion of privacy, tortious interference with contract, and unauthorized use of name or likeness.

3/18/08 - Plaintiffs issued a subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" and related information about the account, including "other user names and login IDs and/or Internet Protocol ("IP") addresses associated with the IM username 'AnthonyCiolli.'"

4/7/08 - Ciolli filed a motion to quash the AOL subpoena in federal district court in Virginia.

06/13/08 - The court denied AK47's motion to quash the subpoena seeking his identity from AT&T.

08/05/08 - Plaintiffs filed an amended complaint that names Mathew C. Ryan (previously known by username ":D") as a defendant. Legal Satyricon "can confirm with 100% certainty that the guy in the complaint is neither an attorney nor a law professor."

8/13/08 - Defendant "a horse walks into a bar", a.k.a Ryan Mariner filed a motion to dismiss, arguing that the plaintiff's have stated no cause of action against him and that they have failed to prosecute the action against him despite offers to accept service made through counsel. 

9/10/08 - Plaintiffs filed papers in opposition to Mariner's motion to dismiss.

9/19/08 - The United States District Court for the Western District of Virginia held that the plaintiffs' subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" was facially invalid because it was issued from the wrong court.  The court determined that it should have issued from the United States District Court for the Eastern District of Virginia. Because the court concluded that it lacked jurisdiction, it did not reach the merits of Anthony Ciolli's motion to quash

10/26/08 - Plaintiffs filed a notice of settlement and request for dismissal against defendant "Whamo."

3/31/09 - Pennsylvania federal court largely denied the defendants' motion to dismiss Anthony Ciolli's complaint in Ciolli v. Iravani, but gave defendants leave to renew their motion after jurisdictional discovery.  The court also struck certain allegations from the complaint relating to settlement negotiations in the Connecticut lawsuit. 

4/30/09 - Connecticut federal court denies Matthew Ryan's motion to dismiss. 

5/21/09 - Matthew Ryan files his answer to the second amended complaint in Connecticut federal court.

9/29/09 - Plaintiffs filed a Notice of Settlement and Request for Dismissal of Action Against Defendant ":D", A.K.A. Matthew C. Ryan

10/16/09 - Plaintiffs filed a Notice of Voluntary Dismissal of Action Against Remaining Defendants Without Prejudice by Doe 1, Doe 2

10/23/09 - Court dismissed case

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

TO DO: Monitor

Updated 6/16/09 - CMF

Updated checked on 08/05/2008. {MCS}

BidZirk LLC v. Smith

Date: 

01/10/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

BidZirk LLC; Daniel Schmidt; Jill Patterson

Party Receiving Legal Threat: 

Philip Russ Smith

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of South Carolina

Case Number: 

6:06CV00109

Legal Counsel: 

Pro Se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Injunction Denied

Description: 

BidZirk, LLC is a reseller of items on eBay. Philip Smith contacted the company and engaged it to sell certain items on his behalf. Unhappy with the prices that he received, Smith published a four-part blog posting entitled "Special Report: You Gotta Be Berserk To Use An eBay Listing Company! The Whole Story." In the post, Smith depicted his negative experience with BidZirk and his interactions with the company's president, Daniel Schmidt. In the course of this discussion, Smith reproduced BidZirk's logo and made snarky comments about it. He also discussed more generally the positive and negative aspects of using an eBay listing company, such as BidZirk, and provided a checklist for readers to consult in deciding whether to do so. Additionally, he linked to an article on another website that discussed Schmidt and Patterson's upcoming wedding and contained a photograph of them.

Bidzirk, Schmidt and Patterson sued Smith in federal court in South Carolina in early 2006. The complaint included claims for violations of the Lanham Act (BidZirk), defamation (Schmidt), and "invasion of privacy" (Schmidt and Patterson). The "invasion of privacy" claim originally appeared to be a claim for misappropriation of name and likeness, but the plaintiffs adopted a "false light" theory in briefs opposing summary judgment.

BidZirk moved for a preliminary injunction barring Smith's use of its trademark and the district court denied the motion. The district court adopted the Report and Recommendations of the magistrate judge, which concluded that Smith's blog post fit the statutory exemption to trademark dilution for "news reporting or news commentary." See BidZirk v. Smith, No. 6:06-00109 (D. S.C. Apr. 10, 2006) ; see also 15 U.S.C. § 1125(c)(4)(C). BidZirk appealed, and the Fourth Circuit affirmed the district court.

Update:

9/26/2007 - Smith filed a motion for summary judgment.

10/22/2007 - The district court granted summary judgment to Smith, reaffirming that Smith was entitled to the statutory exemption for "new reporting and news commentary." It also sanctioned the plaintiffs' counsel $1000 for filing and refusing to withdraw a "lis pendis" on Smith's condo.

2/19/2008 - Smith filed a letter request for a hearing regarding sanctions. Court denied the request.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

to-do: create threat entry for the letter threat (see complaint para. 12);

 

Hermitage School District v. Layshock

Date: 

12/21/2005

Threat Type: 

Disciplinary Action

Party Issuing Legal Threat: 

Hermitage School District

Party Receiving Legal Threat: 

Justin Layshock

Type of Party: 

School

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Pennsylvania, United States Third Circuit Court of Appeals

Case Number: 

2:06CV00116 (trial); 07-4465, 07-4555 (appeal)

Legal Counsel: 

Witold J. W Walczak - ACLU, Kim M. Watterson, Richard T. Ting - Reed & Smith

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In December 2005, high school student Justin Layshock posted a fake MySpace page parodying his high school principal, Eric Trosch. Layshock posted a picture of Trosch and answered the questions asked by the site's profile template by riffing on the word "big" because Trosch is apparently a large man. Answers included phrases like "big faggot," "big hard ass," and "big dick." To the question, "what did you do on your last birthday," Layshock answered "too drunk to remember." Layshock created the profile from a computer at his grandmother's home.

School officials discovered the profile, and the school distict suspended Layshock for 10 days, ordered him to finish high school in an "Alternative Education Program," and forbid him from attending graduation. The school backtracked on part of this disciplinary action, however, and Layschock was allowed to return to regular classes. He graduated in Spring 2006.

Layshock and his parents sued the school district and various school officials in federal district court in Pennsylvania, claiming (1) that the school's punishment violated his First Amendment rights, (2) that the school's policies and rules were vague and/or overbroad in violation of the First Amendment; and (3) that the school's punishment violated Layshock's parents' Fourteenth Amendment rights to raise, nurture, discipline and educate him.

In July 2007, the district court granted summary judgment to Layshock on his claim that that the school's punishment violated his First Amendment rights and ordered a trial to determine whether he is entitled to compensatory damages for that violation. The court granted summary judgment to the defendants on all other counts.

Eric Trosch subsequently sued Layshock and three other students in Pennsylvania state court for defamation based on this and two other fake MySpace profiles. (Please see the related CMLP Database entry for more information).

Update:

11/13/2007 - Parties jointly moved for final judgment and to stipulate damages of $10,000 to the Layshocks contingent on appeal.

11/14/2007 - Judge entered the judgment.

11/21/2007 - Hermitage School District filed notification of its intent to appeal.

11/30/2007 - Layshocks filed notification of their intent to cross appeal.

3/27/2008 - Hermitage School District filed its appellate brief.

5/22/2008 - Layshocks filed their appellate brief.

12/10/2008 - Case was argued before the Third Circuit Court of Appeals.   

02/04/2010 - The Third Circuit upheld the lower court's rulings.

04/09/2010 - The Third Circuit granted the Hermitage School District's petition for an en banc rehearing on whether it violated Layshock's First Amendment rights.

06/03/2010 - Case was argued en banc before the Third Circuit Court of Appeals

06/13/2011 - The Third Circuit affirmed the lower court's grant of summary judgment to Layshock on his First Amendment claim. The Third Circuit noted that the School District did not, on appeal, challenge the district court's finding that there was no evidence of a "substantial disruption of the school environment," and further held that accessing the school's website for the principal's photo was insufficient to forge a nexus between the Hermitage School District and the profile Layshock created. The Court also found that while Layshock's speech reached much of the student body, it did not reach within the "schoolhouse gate."

10/14/2011- The Hermitage School District petitioned for a Writ of Certiorari to the Supreme Court of the United States on Layshock' First Amendment claim. The School District filed a single petition with Blue Mountain School District.

01/17/2012 - The Supreme Court denied Hermitage School District's petition for a Writ of Certiorari.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Status updated on 6/4/2008, case has moved to appeal. (AAB)

Updated 2/12/09 - VAF  

Updated 2/1/11, case still open.  (AAB)

Gregerson v. Vilana Financial, Inc.

Date: 

03/27/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Chris Gregerson

Party Receiving Legal Threat: 

Andrew Vilenchik; Vilana Financial, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Minnesota

Case Number: 

Civil No. 06-1164

Verdict or Settlement Amount: 

$19,462.00

Legal Counsel: 

Boris Parker

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Verdict (plaintiff)

Description: 

Gregerson is a photographer who maintains a website containing his professional photographs. Vilana Financial, Inc. used two of Gregerson's pictures without permission in phone-book and web advertisements, and print advertisements in a local Russian-language newspaper. Gregerson discovered Vilana's use of his photographs and contacted the company asking for compensation. Vilana refused, claiming that it purchased the photographs from a third party (neither party was able to locate this third party during the subsequent litigation).

Gregerson devoted a portion of his website to a discussion of the disagreement over the photographs. On it, he claimed that Andrew Vilenchik had published two of his photos without permission in a series of ads for Vilana. Along with the text, Gregerson posted a photograph of Vilenchik.

On October 4, 2005, Vilenchik's attorney sent Gregerson a letter demanding that the webpage be removed or he would file a lawsuit for defamation.

Vilana initially sued Gregerson for defamation in Minnesota state court on October 24, 2005. Gregerson then filed suit against Vilana and Vilenchik in the United States District Court for the District of Minnesota on March 27, 2006, claiming copyright infringement. The Vilana state-court action was removed and consolidated with the federal action, and Vilana and Vilenchik counterclaimed for deceptive trade practices, trademark infringement (including cybersquatting), interference with business and contractual relationships, appropriation, and unjust enrichment. The defendants abandoned the defamation claim.

On August 15, 2006, the federal district court denied Vilana and Vilenchik's motion to dismiss the copyright claim and their motion to remand the state-law claims.

On September 18, 2006, Gregerson moved to dismiss the plaintiff's counterclaims against him, arguing that the counterclaims violated Minnesota's anti-SLAPP statute (Minn. Stat. § 554.01-05). The court denied the motion on November 17, 2006. Gregerson v. Vilana Financial, Inc., 446 F.Supp.2d 1053, 1059 (D. Minn. 2006).

On August 31, 2007, the district court granted Vilenchik's motion for summary judgment, holding that he could not be held liable in his personal capacity for Vilana's corporate actions. The federal district court granted partial summary judgment for Gregerson on his copyright claim against Vilana, holding that there was no triable issue of fact regarding Vilana's infringement of Gregerson's exclusive rights in his photographs, but reserving the issue of damages for trial. It also granted summary judgment for Gregerson on Vilana's counterclaim for trademark infringement and cybersquatting, holding that Gregerson's use of Vilana's trademarks as website metatags did not create a likelihood of confusion, and that Vilana failed to establish that Gregerson had a bad faith intent to profit by using its trademarks in a domain name. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

Minnesota law provides a claim for deceptive trade practices when a person, in the course of a business, vocation or occupation, disparages the goods, services, or business of another by false or misleading representations of fact. The federal district court denied summary judgment to Gregerson on Vilana's deceptive trade practices counterclaim, find that there was evidence that Gregerson had posted comments on his website, and allowed others to post comments, indicating that the defendants were thieves, members of the Russian mafia, and actively engaged in fraudulent business practices and predatory lending. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

The court also denied Gregerson's motion for summary judgment on the interference with business and contractual relationship and appropriation of likeness counterclaims. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

Updates:

8/15/2006 - The federal district court denied Vilana and Vilenchik's motion to dismiss Gregerson's copyright claim.

11/17/2006 -The federal district court denied Gregerson's motion to dismiss Vilana and Vilenchik's counterclaims based on Minnesota's anti-SLAPP statute.

8/31/2007 - The federal district court granted summary judgment for Vilenchik, case dismissed as to him;

8/31/2007 - The federal district court granted partial summary judgment for Gregerson on his copyright claim and on Vilana's counterclaim for trademark infringement, cybersquatting, and unjust enrichment, and denied Gregerson summary judgment on the the deceptive trade practices, interference with business and contractual relationships, and appropriation of likeness counterclaims.

2/15/2008- After a bench trial, the court awarded Gregerson $19,462 on his copyright claim and denied all counterclaims against him.

Jurisdiction: 

Content Type: 

Subject Area: 

McMann v. Doe 1

Date: 

10/06/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Paul McMann

Party Receiving Legal Threat: 

John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts

Case Number: 

1:06-CV-11825

Legal Counsel: 

None

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Subpoena Quashed

Description: 

Paul McMann, a Massachusetts real estate developer, sued the anonymous operator of an Internet "gripe site" about him. The website contained a photograph of Mr. McMann, the statement that he "turned lives upside down," and a suggestion to "be afraid, be very afraid." The website announced that it would soon be updated with specific evidence of McMann's alleged misdealings. McMann claimed that the unknown party operating the website violated his statutory and common law right of privacy, infringed his common-law copyright, and committed defamation. McMann sought to subpoena ISPs to discover the identity of the website operator.

The United States District Court for the District of Massachusetts held that it lacked subject matter jurisdiction because McMann asserted only state-law claims and did not identify the citizenship of the anonymous defendant. The court observed that diversity of citizenship between McMann and the ISPs that he sought to subpoena could not bestow subject-matter jurisdiction on the court. The court stated in the alternative that it would dismiss the underlying case for failure to state a claim. Relying on Doe v. Cahill, 884 A.2d 451 (Del.2005), an important case from the Delaware Supreme Court, the court opined that First Amendment protections for anonymous speech requires courts to impose a heightened preliminary burden on plaintiffs seeking to discover the identity of anonymous posters.

The court concluded that McMann could not meet this heightened burden because his complaint failed to even state a claim upon which relief could be granted. Specifically, the court held that the unknown website operator's publishing of a description of McMann's business activity and distributing a publicly available photograph did not impinge McMann's statutory right of privacy as a matter of law. It also found that McMann could not recover for misappropriation of his likeness because the website operator had not used his photograph for a commercial use, but rather for purposes of criticism. The court also held that Massachusetts does not recognize a common law cause of action for false light invasion of privacy, and that McMann's common law copyright claim was preempted by federal copyright law. Finally, the court indicated that McMann's defamation claim was fatally flawed because the statements at issue were non-actionable personal opinions that could not be proven true or false. McMann v. Doe, 460 F.Supp.2d 259 (D.Mass. 2006).

McMann later filed a nearly identical suit in Arizona.

Jurisdiction: 

Content Type: 

Subject Area: 

Boulder County Sheriff v. MySpace

Date: 

11/11/2006

Threat Type: 

Subpoena

Party Issuing Legal Threat: 

Boulder County Sheriff

Party Receiving Legal Threat: 

MySpace

Type of Party: 

Government

Type of Party: 

Large Organization
Intermediary

Court Type: 

State

Publication Medium: 

Social Network

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

MySpace provided records subpoenaed by the Boulder County sheriff's department in a criminal libel investigation, commenced after a Colorado woman reported finding pictures of herself on MySpace under a fake profile named "Dirty Whore" that included information indicating that she was interested in meeting "men, women and/or couples who are looking to have a fun time."

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

MLRC

CMLP Notes: 

SB Reviewed; there is almost nothing available on this as far as I can tell. TO-DO: Get more precise date; further research required

Yoon v. Carney

Date: 

03/22/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Joanne Yoon

Party Receiving Legal Threat: 

Ray Carney; Sharon Bush; Jeff Schwilk

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

California Superior Court, San Diego County

Case Number: 

GIC882238

Publication Medium: 

Email
Forum

Status: 

Pending

Description: 

Joanne Yoon filed suit against Jeff Schwilk, the founder of San Diego Minutemen, Sharon Bush, and activist Ray Carney, for defamation over comments and a photograph posted to a password-protected Yahoo group, which implied that she was a prostitute. She also challenged comments in e-mails between the two defendants and other Minutemen members.

Yoon claims that the defendants targeted her because of her work with the California Rural Legal Assistance Foundation and the ACLU, which monitored Minutemen rallies at day-labor sites. Yoon seeks $1 million in compensatory damages.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Updated 6-5-08 (JMC)

06/15/2009 (LB) - judgment reached Oct. 1, 2008, but opinion does not seem to be available.  Case now on appeal to 4th Appellate District, Div. 1.  Appellant brief due June 17, 2009.

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