Sometimes it seems that the federal government's left hand has no idea what it's right hand is doing. Bradley Birkenfeld, a former banker for Swiss banking giant UBS, blew the whistle on UBS practices of helping Americans hide their money offshore. For his troubles, the Justice Department charged him, leading to a plea deal in which he plead guilty to fraud conspiracy and was put in jail for a few years. He just got out a month ago... and now the IRS has handed him $104 million for the whistleblowing, which resulted in UBS paying $780 million to the government to avoid prosecution itself. The IRS claims they're doing this to encourage others to blow the whistle on tax fraud... though they might want to warn the DOJ not to put their whistleblowers in prison. That said... $104 million seems somewhat insane. I realize that it may have resulted in the US government getting a lot more money, but $104 million still seems like a giant sum of money to give a guy who, as the government's own efforts show, participated in fraud. If the idea is to "get the word out" to whistleblowers, you would think that smaller sums, still in the millions of dollars, would do the trick...

In June, we underlined the disturbing UK ruling that found Anton Vickerman guilty of "conspiracy to defraud" for operating SurfTheChannel, a TV link indexing website that hosted no infringing content whatsoever. The case raised huge concerns from the very start, when police invited FACT (a private anti-piracy group) to join the raid on the STC offices—and it culminated in a man facing up to 10 years in jail for building a popular website, despite not actually facing charges of copyright infringement since he did no such thing. The "conspiracy" charge allowed a conviction on the basis of Vickerman maybe-kinda-sorta being adjacent or somehow connected to infringement even though no specific copyright laws were broken.

Now, the sentencing has come down, and Vickerman will be spending four years in prison. Four years of his life... for operating a non-infringing website. All on the basis of a charge that failed against two extremely similar sites. Not only does this seem like an insane punishment, it is going to create a massive chilling effect on innovative online services. Of course, FACT is extremely proud of both these things:

"This case conclusively shows that running a website that deliberately sets out to direct users to illegal copies of films and TV shows will result in a criminal conviction and a long jail sentence," FACT Director General Kieron Sharp says.

"The sentencing indicates the severity of the offenses committed and the sophistication of [Vickerman's] criminal enterprise and should send a very strong message to those running similar sites that they can be found, arrested and end up in prison."

That's quite the picture to paint of STC. In reality, the site did not aim to direct users to illegal copies—merely to help users find film and TV content online. There happens to be a lot of it—including lots of legitimate content from a variety of sources like Hulu and the networks own websites. STC, with its community-driven model where users submit and vote on the quality of links, indexed all those legitimate sources—as well as many infringing links that were also submitted. STC even had commercial partnerships with networks like A&E and the Discovery Channel—and there were suggestions that the MPAA pressured those networks into ending the relationships before the trial, in order to better paint STC as a dedicated piracy service. And there was little or no evidence that Vickerman was involved in uploading or even sourcing the community content, infringing or otherwise, which is why a direct charge of copyright infringement didn't happen. Meanwhile, merely linking is not a crime. So what's left? Just the vague charge of "conspiracy to defraud", which sounds a lot like "felony interference with a business model", or basically "doing something we just don't particularly like." This isn't the first time UK conspiracy laws have been used in highly questionable ways—in fact, it's been a subject of controversy there since the 70s, when a judge infamously stated that a conspiracy charge could be based on as little as "a nod and a wink."

Anton Vickerman is paying the price for doing nothing more than making it easy to find content online. It's not unlike Google being browbeat into filtering results from supposed pirate sites—the entertainment industry doesn't want to compete by offering more legitimate options, and it doesn't want to go after the actual people doing the infringing, so it tries to find ways to put all the pressure on intermediate third parties who aren't directly guilty of anything, just because it's easier and faster. Innovation gets blocked, innovators get put in jail, and the industry doesn't have to lift a single competitive finger. This is an unfortunate outcome that, once again, does absolutely nothing to stop piracy, since eliminating one ultra-popular site like STC only clears the top spot for the hundreds of similar sites that are jockeying for the position. Even if it was effective at scaring all such sites out of the UK, they would only pop up in other countries, or people would just move on to the next easy method of finding what they want. Vickerman's questionable conviction and ridiculous sentence send only one message that has any impact: don't operate user-driven websites in the UK.

Update: The blog has been taken down, but a Google cache remains.

We just wrote about the extremely troubling ruling in the UK that has left Anton Vickerman, the operator of the TV linking website SurfTheChannel, facing up to ten years in jail. The charge is the rather ambiguous "conspiracy to defraud", which is not surprising, because it's still not clear what STC did that was actually illegal—it certainly wasn't copyright infringement, since similar sites in the UK have been found to be non-infringing in the past. These websites don't host any pirated content, they only index links to videos on other sites—and there's no evidence that their operators assisted in the uploading of that third-party content. At worst, it can be argued that they were somehow implicitly encouraging their users to upload infringing content and submit the links, which is why "conspiracy to defraud" is just about the only charge that could stick. The UK has a notoriously low bar for conspiracy charges, which can be used to go after people who have gotten on someone's nerves without really breaking any laws, and this has been the subject of controversy for some time.

But, even when it comes to the conspiracy charge, there are some serious questions that need to be answered—especially after a look at this collection of notes from the trial posted by an anonymous blogger. I'm taking this information with a grain of salt, because the source is unidentified, and it also can't be ignored that the notes are one-sided and focus on flaws in the prosecution's case—so there may well be another significant side to the story. But there is also enough specific information about the case that it seems unlikely that the notes are fake, and some of the things that happened look very bad no matter what other evidence was presented.

First, there are several things the judge did that are concerning:

• Judge leaves jury little choice after directing as a matter of law that knowingly linking to infringing content is illegal despite no such offence in the UK;
• Judge ignores SportsRadar High Court judgement that states if an infringement takes place it takes place in the country the server is based (linking to infringing content legal in Spain where SurfTheChannel was based);
• Judge states "if I have got the law wrong then a higher court than this one will sort it out";

What the entertainment industry has wanted all along is for linking to content to simply be illegal, so they twist around interpretations of various laws to try to make it so. From the sound of it, the judge let that happen to some degree, despite precedent to the contrary. The notes then go on to detail the activities of FACT, the Hollywood-backed private group that independently investigated Vickerman (without police knowledge) then helped set up the raid on his offices. Their investigation included posing as potential home buyers to gain access to his house, and telling service providers (like his ISP) that he was selling counterfeit DVDs to get them to share information about him. There was even a bizarre dispute about whether or not Vickerman was wearing a false beard at some point, but the details are unclear, and the FACT agent claimed in court to have lost the log book about the incident. FACT also admitted that it conducts about 15 of these surveillance operations a month. Other statements made by FACT reveal that it was extremely sloppy in its evidence gathering methods, and that it had a clear goal of shutting down STC regardless of legal authority:

• FACT Ltd staff admit to attending raid on Vickerman's address with USB stick that contains a replacement home page to be placed on SurfTheChannel website that states “This website is under investigation” despite having no legal authority to do so and in contravention of the Computer Misuse Act 1990;
• FACT Ltd contractor Ben Clelland admits to copying all case evidence from Vickerman’s computer to a USB drive, putting USB drive in pocket and leaving house without alerting Police that this evidence existed or bagging and tagging it. All forensic evidence in case emanates from this USB drive.
• FACT Ltd contractor Ben Clelland admits to “making a mistake” by not attaching a write blocker to his examination computer before examining USB drive data. All file creation dates on evidence are changed.

I don't know the details of UK procedure, but it sounds like there should be serious questions about the admissibility of that evidence. The other component of FACT's case was their star witness, Brendan DeBeasi, who had been involved with STC in the past and admitted offering to bring the site "to its knees" for the highest bidder. DeBeasi faces charges in the U.S., and testified in exchange for immunity and more:

• DeBeasi says he is not tailoring his evidence to help FACT despite admitting that his immunity deal in the US is dependent on him “performing well” in the Vickerman prosecution;
• DeBeasi admits MPAA offered him a job not long after he agreed to cooperate in prosecution of Vickermans;

A representative of the MPAA also testified, revealing that he posed as a potential STC investor to gain access to Vickerman. Then, some interesting facts about the MPAA's broader strategy were revealed. It turns out that STC had commercial deals with some networks, including A&E and Discovery, but those partners withdrew before the charges were brought—allegedly under targeted pressure from the MPAA:

• Defence accuses the MPAA of arranging commercially damaging news stories containing false information about STC in an attempt to isolate it as a “piracy site” so that its commercial partnerships with TV networks such as Discovery Channel, A&E Television Networks and others are destroyed;
• [MPAA representative] Pascal Hetzscholdt admits that senior MPAA personnel including John Malcolm contacted NBCUniversal to pressure them into terminating A&E Television Networks partnership agreement with SurfTheChannel;

The notes also highlight several serious errors on behalf of FACT's lawyer throughout the trial. Most notably, the prosecution repeatedly presented digital forensic evidence that was clearly flawed and in some cases seemingly presented in a very selective way to paint a picture of guilt. Though FACT did back down on some of these instances, it casts a lot of doubt on their approach to building a case:

• [FACT Prosecutor David] Groome opened case by saying that the Chinese websites linked to by STC are “run by Chinese Gangsters”, “obviously and completely illegal” and “owned by thugs” amongst other things. Anton Vickerman accuses him of misleading the jury when he presents evidence that the sites referred to (Youku & Tudou) are listed on the New York Stock Exchange and that another (56.com) is funded by the Venture Capital arm of FACT Director Walt Disney Studios. Vickerman also presents evidence that many of FACT's directors have partnership deals with these so called “Chinese Gangsters”;
• Groome tells jury that there were many many movie files found on Vickerman's computers and that he was uploading them to third party websites before linking to them from STC. This is again proven false when the defence shows that there is only 1 movie file found on any of Vickerman's computers and the other handful of video files are for TV shows all of which were downloaded for personal use. The defence also shows that there is not one shred of evidence that any uploading took place from Vickerman's computers despite 3 separate teams of forensic investigators inspecting the computers;
• Groome tells jury that Vickerman saved specific forum posts and private messages to his computer that talk about uploading and other controversial topics. Vickerman accuses Groome of again misleading the jury by showing that the posts they have exhibited are extracted from a backup of the forum which contained 91,000 posts which he had only seen a tiny amount when browsing the forum from day to day. Groome tells the jury that a spread sheet produced by the prosecution proves that links to movies were added to the STC site by Vickerman from his computer. When Vickerman says that is not true Groome tells him that he is therefore calling FACT witness Andrew Smith a liar. Vickerman then points out that the spread sheet is an extract created by Smith of a backup from the STC database that shows list of links to movies added to the STC database by those users. Not Vickerman adding the links from his computer. Groome eventually agrees.
• Groome ambushes Vickerman with a printout of a forum post and accuses him of running a server that staff uploaded material to which was then streamed to STC's users. Vickerman flatly denies this and explains that he is getting confused and that STC used a complicated system for hiding its links from its rivals. The next day Vickerman accuses Groome of misleading the jury again by printing out only the first page of the forum post when the third page actually shows that the forum thread is regarding the link hiding system not the hosting/streaming of content by STC.

Vickerman himself raised some damning points as well, including something that sounds a lot more like a genuine "conspiracy"—evidence of infringing links being added to the site by anti-piracy groups themselves:

• Vickerman explains that SurfTheChannel's then number one rival, BlinkX.com, has commercial partnerships with every one of FACT's directors despite BlinkX.com having the exact same links that FACT is using as evidence of illegality in this case;
• Vickerman provides unchallenged evidence that Anti-Piracy companies, in particular Aiplex Software, are responsible for automated adding of around a million links to the STC website.

(Interestingly, BlinkX.com—once a well-known pirated TV destination—seems to have been recently scrubbed of most infringing links.)

Again, it's entirely possible that there are errors and omissions in these notes—but the points of concern really are piling up. It seems insane that Vickerman faces ten years in jail for actions taken primarily, and perhaps entirely, by the users of his website and not by him. In court he noted that he researched the law and received advice that merely linking to infringing material was entirely legal—and from the many apparent flaws in the evidence showing that he participated in uploading, it looks like he was careful to ensure that he didn't cross that line. Some will call this exploiting a legal loophole, but it's not a loophole—it's a vital safety valve on copyright, a law that already flirts dangerously with curtailing freedom of speech. It is not illegal to merely point to something in the internet. The real legal loophole is the charge of "conspiracy to defraud"—a seemingly magic way to create a general sense of wrongdoing where no lucid laws have been broken.

We've written about the entertainment industry's overly aggressive legal campaign against the owners of SurfTheChannel -- a linking site -- before. Almost exactly three years ago, we wrote about how the private UK anti piracy group, FACT, had helped set up the raid on the offices of Scopelight, a startup creating search technologies. This wasn't a typical police raid: FACT (again, a private organization representing private companies) was allowed to come along for the raid. Scopelight built SurfTheChannel as a search engine that could find video. Some of that video was authorized, some of it was not. However, the two founders, a husband and wife team, Anton Benjamin Vickerman and Kelly-Anne Vickerman, were arrested after this raid and charged with "conspiracy to defraud." Note that they were not charged with copyright infringement. If "conspiracy to defraud" sounds familiar, it's the same vague law that was used against the owner of OiNK (unsuccessfully), against the owner of tv-links.co.uk (also unsuccessfully), and also against the creators of Mulve (don't know what happened to that case). Considering how this has failed in two key cases before, and it didn't look like SurfTheChannel was any different, it seemed unlikely to work here either. And, in fact, there were other serious problems with the case, including the issue that FACT itself (again: private organization) was given the Vickermans' computers.

Unfortunately, however, the court has found Anton guilty of "conspiracy to defraud" for which he faces 10 years in jail. 10 Years. His wife was found not guilty. Of course, FACT and other entertainment industry interests are cheering this on as a huge victory, and promising to use this to stifle all kinds of useful innovation... er, go after any other site they consider to be "pirate" sites, even if those sites have perfectly legitimate and non-infringing uses. The broadness of the law, and the vague and contradictory standards with which it has been applied in the UK should be exceptionally worrying to people -- especially those in the UK. It is no longer safe to try to create a useful service to help people find entertainment content, because you may get raided, private companies may get your computers and you may end up in jail. London has been building itself up as a tech/startup hub of Europe, but with rulings like these, don't be surprised to see entrepreneurs move elsewhere.

Popular cloud service provider Dropbox has announced the ability to share stuff in your Dropbox with a link. This is not a revolutionary offering. It's actually pretty common and can be quite useful for simple sharing of files. But, as Mathew Ingram noted, this is exactly part of the reason that Megaupload was accused of criminal conspiracy. For example, the fact that Megaupload did not provide a "search" feature to find all the content in its cloud, but merely let people link in, was seen as a way to "hide" the fact that infringing material was available. I am assuming -- given the way Dropbox operates -- that it, too, is not intending to provide a search engine. It's good to see Dropbox confident enough that it won't be shut down on questionable criminal charges -- but it certainly continues to raise questions about what the government considers evidence of criminal conspiracy... and how that could create a chill on companies who are, perhaps, less well established than Dropbox. Update: As some have pointed out in the comments, the specific feature is more about viewing content via the link, not downloading. Sorry, we should have been clearer. However, again, this fits with the Megavideo style offering of providing access to content without necessarily downloading it. Still appears to be exactly the part that so concerned the Justice Dept...

We've already discussed the ongoing fight about what happens to all of the content that was stored on Megaupload's servers. It's actually a case of strange bedfellows: the US government says they're done with the servers (which seems odd, since the content would appear to be evidence in a criminal case, but the feds seem to want it to disappear). Carpathia -- the hosing company spending $9,000 per day to hang onto the servers -- would like to stop having to pay that money. Megaupload wants to preserve it, saying that it will help it win its case. The MPAA wants to preserve it so that it might use the data to sue more people. And the EFF wants to save it because it notes that there's a lot of legitimate content there that people can't access any more.

To that end, the EFF has helped a guy in Ohio file a request with the court to preserve the data, noting that it's important to his business. The guy in question was filming school sports around Ohio and used Megaupload as a way to backup those files. Because of a hard drive crash just before the feds took down Megaupload, the guy has lost a bunch of his videos. As the EFF notes in its filing (pdf and embedded below):

It is one thing to take legal action against an alleged copyright infringer. It is quite another to do so at the expense of entirely innocent third parties, with no attempt to prevent or even mitigate the collateral damage.

That is what has happened here. When the government shut down Megaupload, it was one of the 100 most popular websites in the world, with reportedly 150 million registered users. One of those users, Kyle Goodwin, had recently started a business reporting on local high school sporting events across Ohio. In addition to backing up his files on a hard drive, Mr. Goodwin joined many others like him in placing his files on Megaupload’s servers, paying for a premium account, and taking advantage of the remote backup cloud-based system for storage and remote access to an unlimited number of files.

I'm still amazed that the feds went through with this takedown, rather than telling the MPAA to file a civil lawsuit for copyright infringement against Megaupload.

Almost exactly a year ago, we saw yet another trick come out of the copyright troll's bag. To justify the increasingly failed attempts to sue a ton of people in a single lawsuit, there was a claim that all of the people connected to a single BitTorrent swarm represented a conspiracy to infringe on copyrights together. As we said at the time, this seemed like an incredibly weak argument, and it appears that at least one court agrees. A judge in Illinois has rejected that argument pretty soundly:

Moreover, it appears that the claims of civil conspiracy themselves are unfounded, because the plaintiffs have not pleaded the existence of an agreement among the alleged conspirators... Additionally, based on what has been pleaded, it does not appear plausible that plaintiffs could plead the existence of a conspiracy. Consequently, the court finds that the complaints’ allegations of civil conspiracy are only unjustified attempts to bolster the obtaining of irrelevant discovery about non-parties.

The court also notes (as many more are doing) that it's quite clear that this lawsuit was filed not to litigate the actual issues, but to uncover the identities of those they identified to try to threaten them into "negotiating a settlement."

It's good to see both of these things. Courts recognizing that these arguments are huge stretches of legal theory just to justify a bogus joinder argument is a huge step forward. On top of that, the fact that more and more judges seem well aware of the true intention of copyright trolls in using the court system as a part of their business model, rather than for a legitimate judicial reason, means that fewer and fewer courts will be willing to accept such an abuse of the court system.

After the US shutdown of Megaupload, we noted that there were serious issues with the indictment, in that the US Attorneys seemed to make all sorts of leaps of logic to make their case, and it suggested that they had come into the case with a pre-determined idea (take the site down), and then cherry picked and distorted evidence to make the case. For example, we noted that the indictment used the lack of a search engine on Megaupload to indicate that it was a "criminal conspiracy," because it was "hiding" the infringement on the site. But that made little sense, considering that previous cases had found that having a search engine was an indication of inducement, and made a site against the law. The US government seemed to be saying that having search is inducement, but not having search makes you a conspiracy. That's crazy.

Kim Dotcom is continuing to make his case publicly, sharing a bunch of details of why he's confident that he'll win and why the US Government's case is wrong. In particular, he takes aim at the claims that he's guilty of direct infringement for uploading and sharing some songs. He claims that the government misses the fact that he uploaded songs he owned, but he never actually shared them publicly:

“A link distributed on December 3, 2006 by defendant DOTCOM links to a musical recording by U.S. recording artist ’50 Cent’. A single click on the link accesses a Megaupload.com download page that allows any Internet user to download a copy of the file from a computer server that is controlled by the Mega Conspiracy,” the indictment reads.

Dotcom told TorrentFreak that the file in question wasn’t infringing at all. He explained that he actually bought that song legally, and that he uploaded the file in private to test a new upload feature. He quickly picked a random file from his computer, which turned out to be this song.

“The link to the song was sent using the private link-email-feature of Megaupload to our CTO with the file description ‘test’. I was merely testing the new upload feature,” Dotcom said.

“The URL to this song had zero downloads. This was a ‘private link’ and it has never been published,” he added.

That raises questions about whether or not you can upload your own music for private use -- but given things like Google's Music locker and Amazon's music locker, it seems that lots of companies let you do something quite similar. That said, I would imagine the government's response is just the fact that such a system lets you offer up "private links" means that it's a form of distribution. However, it does make the government's case a little trickier.

Separately, Dotcom reveals that the large movie studios, who were the key source pushing for the indictment in the first place, were eager to work with Megaupload and the company had relationships with many of those companies. There are full emails there, including Disney offering up an alternative agreement to Mega's terms of service, and Warner Bros. asking for easier ways to upload its content (and talking about being able to share key movie content). The WB email is pretty damning:

Hello Megavideo,

My name is Joshua from the Warner Bros. Advanced Digital Services department. I would like to know if your site can take a Media RSS feed for our syndications. We would like to upload our content all at once instead of one video at a time.

Thank you for your time and funny content,

Joshua D. Carver

This is, certainly reminiscent of the revelation that while Viacom was freaking out over YouTube and suing, its marketing people were uploading tons of clips, and that Viacom was so confused that it actually sued YouTube over clips it had uploaded itself.

All that said, I still think that Kim Dotcom's decision to fight this in the press is a huge mistake. Even though he makes it out like he's fighting the MPAA -- and I'm sure they were absolutely behind much of this -- he's really fighting the US Attorneys, a part of the Justice Department, and they don't deal well with things like this. They can be incredibly vindictive and are focused solely on winning the case, not on what the public thinks. They'll use everything Dotcom says publicly and turn it against him.

Along those lines, for all the parallels discussed to the YouTube case, or even the Hotfile case, it's important to recognize the key difference. Those cases were civil cases between two private parties, where the end results could be injunctions or monetary awards over copyright infringement charges. Megaupload's founders are facing criminal conspiracy charges, which are an entirely different ballgame. Yes, the conspiracy charges are based on copyright infringement, but arguing solely about the copyright infringement part misses the main thrust of the government's case. The conspiracy charge is why they can do something ridiculous like claiming the lack of a search engine is evidence of a crime (even if having a search engine is evidence of inducement). Having all of this rest on the "conspiracy" charge means that the rules in this case are different, and the evidence just needs to show conspiracy -- not necessarily focus on the infringement aspects.

I think that Dotcom and his lawyers absolutely should be making these points in court to show that the conspiracy angle falls down when you scratch beneath the surface. Furthermore, they should probably be making the case that, at best, this should have involved a civil copyright lawsuit. But fighting a criminal conspiracy charge as if it's the same thing as a civil copyright infringement dispute is a mistake, and it's one that federal prosecutors will jump on and exploit strongly. Dotcom is right to point out that there's a serious conflict of interest in the fact that Neil MacBride, the former anti-piracy boss for the Business Software Alliance, is leading the case against him -- but arguing that right now isn't going to do him any favors. MacBride is a smart guy, and he'll use all of this against Dotcom.

I think there are a lot of serious issues raised by this case, and I think the government has massively overreached in its indictment. But I do worry (quite a bit) that Dotcom's decision to take his arguments to the press first may backfire and could taint the case, where having strong legal arguments to counter the government's questionable claims are really really important.

You may recall that famed aviation lawyer Arthur Alan Wolk had sued a bunch of parties, suggesting that their discussions about an earlier defamation lawsuit against him were against the law. Specifically, Wolk had filed a defamation lawsuit against Overlawyered.com, which was later deemed by the court to have been filed past the statute of limitations. Wolk later claimed this judgment was in error because Overlawyered had changed its blogging software, which he believed reset the clock. After we wrote about all of this and after a court reiterated that the change in blogging software did not change its original ruling, Wolk also promised to sue us if we did not "correct" our post. Instead, we posted a direct reply to Wolk (at that link)... and never heard from him again.

It appears that Wolk and at least some of those he's sued have now come to various settlements. The Reason Foundation has announced that it has settled the lawsuit Wolk filed against it:

On August 1, Wolk dropped his Pennsylvania complaint, and on the same day he filed a similar one in California, where the Reason Foundation, the nonprofit organization that publishes Reason magazine and this website, is based. On August 12 he dropped the California complaint as well, and he recently agreed to a resolution consisting of mutual releases in which he promises not to sue us again for our past posts and we promise not to sue him over his litigation so far. That's about as good an outcome as we could have reasonably expected, since the main issue for us all along has been maintaining the freedom to report and comment on issues of public concern. We are glad the litigation is over and grateful to Gayle Sproul for her patient, able, and indefatigable assistance in achieving that end.

Overlaywered.com has also settled with Wolk, and placed the following statement on its site -- though not in a blog post:

Arthur Alan Wolk, Esquire, Walter K. Olson, David M. Nieporent, Esquire and Overlawyered.com agreed to settle Wolk's longstanding libel claims against Overlawyered.com, et al.

The parties agreed to dismiss with prejudice all litigation pending between them and also agreed to release each other from all claims. Overlawyered.com removed from its web site certain posts about Wolk that led to the case as well as other posts that commented on the case's dismissal by the Court last August. Wolk removed from his web site a post he wrote about Overlawyered.com.

Upon submission of materials to Overlawyered.com in the litigation, Overlawyered learned that Wolk took protections for his clients in the Taylor v. Teledyne case.

With the release of this statement, Overlawyered.com and Wolk will have nothing further to say on these matters and ask all others on the internet to take down their posts concerning this dispute since the controversy now has been settled on an amicable basis and should be laid to rest.

The Reason post, on the other hand, notes that just because the case has been settled, it "does not mean it never happened, so we are keeping our original posts and adding a link to the joint statement by Overlawyered.com and Wolk." Similarly, we don't believe that there is any benefit to taking down factual posts on historical events, even if they ended in an out-of-court settlement. In fact, we're a bit disappointed that Overlawyered would agree to take down historical posts without a court-ordered reason to do so. Meanwhile, the Reason blog notes that because it does "not want to see any further lawsuits filed as a result of comments on our site," it was disabling comments on that post.

We will neither remove historical posts nor disable comments. As we noted in our last post on Mr. Wolk's email to us, we believe his intent in these lawsuits and threats was to silence people from talking about him -- and we do not intend to be silenced by such threats when they do not appear credible to us.

Not quite sure where to start on this one, but I will just say that while the embedded (below) legal filing clocks in at 100 pages, it's worth taking the time to read it, just to get a sense of the legal filing stylings of one Arthur Alan Wolk, a lawyer who apparently has made quite a name for himself over the years as a trial lawyer specializing in aviation accidents. In April of 2007, the blog Overlawyered published a post with some speculation about some of Wolk's activities in a particular case -- speculation that Wolk insists is false.

In April of 2009, Wolk came across that blog post, and sued for defamation in state court on May 12th. It was quickly kicked up to federal court, and last summer the case was dismissed (pdf), with the court noting that the statute of limitations on defamation is one year, and more than that had passed by the time Wolk filed his suit. Wolk apparently tried to argue that he only discovered the blog posts in April of 2009, and thus he could still file. The judge disagreed. The blogger who was sued, and some other blogs, posted about the dismissal, properly noting that the court had dismissed Wolk's lawsuit, with some claiming it was a "victory" for free speech.

Wolk is apparently not one to give up easily. First, he has asked the judge to set aside the dismissal order, claiming that because Overlawyered changed blogging platforms in 2008, and it changed the URLs for stories, this counts as "republishing" the original story, and the statute of limitations shot clock was restarted. He also argued that because Overlawyered engaged in search engine optimization via the new platform and that SEO helped "thrust [the story] to the forefront of all internet search engine results and infiltrated every search performed of Plaintiff by anyone...," his original lawsuit was within the statute of limitations. It seems that this would be a rather unique interpretation of the single publication rule, which most states use to set the statute of limitations on defamation claims at the time of first publishing.

However, even more ridiculous is that he has now filed a new lawsuit against the same defendants and a lot more people, including the lawyers of the original defendants. In this filing, Wolk is representing himself. On what basis is he suing again for a case already dismissed? Well... sit right back and take the time to read. There are a number of interesting theories, starting, of course, with again claiming that the original post was defamatory, based on what he now believes is the relevant date. Though, um, that date is in 2008, so even if he gets the court to buy that as the date of publication, I don't see how it passes the statute of limitations test (again).

Next up... he puts forth a series of conspiracy claims. Apparently, Wolk believes that everyone on the long list of people he sued is against what he stands for, and all of the articles published about him were part of a conspiracy to discredit Wolk because people disagree with his views on tort law. Earlier in the filing, there are many attempts to paint some of the defendants with very broad brushes -- claiming certain sites are "partners" and also labeling certain websites and institutions (such as Reason and the CATO Institute) as being "ultra right wing," which is funny if you know much about Reason or Cato.

The series of conspiracy claims get stranger and stranger as you read each one, but it seems that they can be summed up as... a lot of people online have been making fun of Wolk, and that continues because the original post remains online, and these new posts have continued to draw attention to the original post. Absent all of these claims is the recognition from Wolk that (a) his initial lawsuit made the original story -- defamatory or not -- newsworthy again, long after it had gone into the archives (b) the judge did, in fact, dismiss his original lawsuit, whether rightly or wrongly and (c) bloggers and other journalists highlighting this fact are highlighting this fact, not engaging in some conspiracy.

But Wolk seems to be insisting that because he believes the dismissal was incorrect, it's defamation to report on it. He also alleges that even though the statute of limitations has passed, everyone is required to remove the original post. Separately, he claims that some of the blog posts reporting on the dismissal are themselves defamatory. For example, he's suing Reason for reporting that he "missed the deadline" to file his original lawsuit -- even though that's exactly what the court said. That Wolk believes that ruling was in error doesn't change the fact that Reason accurately reported the ruling. Furthermore, he claims that these other blogs posts served to "encourage and incite" readers to "further defame" Wolk, though I don't see any specific points where readers are specifically encouraged to defame Wolk.

Not surprisingly, he also sues a bunch of pseudonymous commenters on these blog posts, who made statements about Wolk, but also claims that the comments on these blogs shows that the Trustees of the Reason Foundation need "to cease and desist their abdication of their legal responsibilities to manage and supervise Manhattan and Reason for solely charitable or educational purposes..." He also claims that this is a violation of their non-profit (501(c)(3)) status. Huh? Really? Having commenters mock you is a violation of their non-profit status? How?

It gets better.

Next up, Wolk notes that he, himself, hired someone to go on Wikipedia and "place truthful, favorable information about the plaintiff." But... you see, everyone else got in the way:

The defendants, hell bent on torpedoing the Wikipedia attempt to minimize their conduct's impact on the plaintiff's reputation, by themselves or some of their incited adherents or their own employees, including but not limited to Frank and Olson, edited the site with their false and defamatory logs so plaintiff could not effectively restore in some small way his reputation.

This, apparently, means they're guilty of "Internet Stalking and Bullying."

Next up... he claims that they're guilty of extortion. Extortion?!? Yes, extortion:

The defendants are attempting to extort something of value from the plaintiff, his reputation to enhance the visibility and credibility of their websites and to use that destruction as a means to obtain more illegal tax deductible contributions.

They are continuing to libel him so they can cause him to sue them, and thus make them appear as victims on the internet and thus enhance and encourage others to contribute to their tort reform causes.

The defendants want to publish the sorrow of their plight being sued repeatedly for their libel so their membership can blog more and more hate against the plaintiff.

Separately, Wolk hasn't just sued the original defendants and some others who wrote about the case, but has also sued the original defendants' lawyers, claiming that their own blog posts about the original ruling were defamatory. Paul Alan Levy (whose writeup on this case we linked to above) explains why he finds this part to be problematic:

But to my mind, the most obnoxious aspect of the new lawsuit is the transparent attempt to interfere with the defense of the libel suit by joining the defense lawyers as defendants in the case. Not only does this create a potential conflict of interest between the defendants and their lawyers, but it also poses the possibility of making the lawyers witnesses in the case. Yet it appears that the lawyers were doing no more than providing zealous representation to their clients by making reasonable legal arguments in defense of their clients’ free speech. The date of the blog post was set forth in the complaint; defendants were entitled to argue for dismissal based on that date. Nor is such litigation necessary: if Wolk believes the lawyers engaged in litigation misconduct, he is free to seek sanctions against them from the judge before whom the alleged misconduct took place.

There's a lot more in the filing itself. As I said, it's well worth the read. Whether or not the original blog post was defamatory, it seems that Wolk's response to it has not done himself or his reputation any favors. Furthermore, it seems to me that throughout the lawsuit filing itself, Wolk makes statements about the various defendants that could be deemed as defamatory as well, regularly referring to defendants as "Internet bullies," and making direct statements of fact like saying that Overlawyered.com has a "sole purpose to misrepresent, lie and present a warped view of lawyers, judges and the law to undermine the civil justice system of the United States." There's also this amazing paragraph about Reason:

Defendant Reason.com is another Internet bullying site organized under the laws of the State of California, with its principal place of business in Los Angeles, California. It is one of the mouthpieces for Overlawyered.com and its mentors, Manhattan, Cato and Enterprise, which are co-conspirators, and is the attack dog for inter alia, The Reason Foundation, a euphemism for the policies and goals of the Libertarian Party, a right wing fringe element that espouses what amounts to an abandonment of the institutions of our Republic and its substitution with a Govermnent by putative journalists, self appointed intellectuals and right wing pundits but whose real goal is to work with Overlawyered.com and Olson, Frank, Manhattan, Cato and Enterprise, and their respective trustees to assassinate the character of individuals chosen for that purpose because they are a threat to the America without laws Reason Foundation wants. Reason Foundation raises funds for their anti-consumer, anti-Government, anti-court, anti-judge and often anti-Semitic, anarchistic views by proving to their donors how vicious they can be on their various media sites including Reason television, Reason.com and Reason magazine Reason.com attempts to accomplish these ends by re-publishing with new commentary publications of Overlawyered, Frank and Olson for the purpose undermining the civil justice system in the United States, by forming an Internet tag team so if one of them is silenced for their falsity, the other simply republishes with more false and defamatory comment to keep the libel alive. The idea is to whip up a frenzy to prove their dedication to the causes of the Libertarian party, much like the Nazi's of the early 1930s, which will cull more donations from their very rich donors and blind them to the dangers to American institutions of their radicalism. It is believed and therefore averred that employees or agents of Reason. com are the anonymous bloggers.

Um. Yeah. Later, he claims that the "Trustees" of these various organizations "continue to suck the blood of the American people," which is quite a statement. He later says of the defendants: "These leaches on our society who take the tax money of the poor, impoverished, less fortunate, those struggling just to make it and use it to achieve their goals to ensure they retain their billions have selected the plaintiff Arthur Alan Wolk as their next victim, a big mistake."

For someone who appears to be so sensitive about the mere suggestion that, as was stated by a judge, he filed a lawsuit too late, it seems slightly odd that he engages in such vitriol against them in the lawsuit filing in response. From my vantage point, it appears that he goes significantly further in his statements than did the folks he accuses of various things in statements against him.

On top of that, as Paul Alan Levy also points out in his post, Wolk appears to undermine his own case in this filing, by claiming that the defendants did not check the facts before publishing the original blog post. As Levy notes: "Wolk is unquestionably a public figure, and a failure to investigate is negligence, not the actual malice that is needed to sustain a libel suit by a public figure." Oops.

Honestly, there's much more in this lawsuit than I've covered here, so have fun reading it. And, to be quite explicit, given Wolk's actions here, I am not in any way affiliated with Overlawyered or Reason, though I'm sure we've linked to them in the past on stories. Furthermore, because Wolk appears to claim that a blog post like this could be seen as inducement to post defamatory information, I would like to be very explicit in saying that if you are going to post a comment about Wolk, certainly consider the libel implications of what you say. Or else, it is entirely possible that you could wind up subject to a lawsuit, whether or not you believe it's legit.