My question about whether you have been charging GDS Publishing by the hour is relevant because, in the criticism of your conduct that I am drafting for publication, I am trying to figure out whether your misadventures in trying to send correspondence to Forte, and your subsequent threats directed to SoftLayer, reflect only incompetence, or rather reflect an effort to run the meter at your client's expense. I'd be grateful, therefore, if you would respond to my question.

Finally, I note your email referring to confidentiality notices that are contained in your emails. Even if the emails purported to forbid publication, such notices do not override fair use. Sad to say, however, you have misstated the fine print in your own emails. I invite you to re-read that text. The disclaimer says that the emails "may" contain privileged or confidential information, not that they do. I see nothing in the emails that merits treatment as either privileged or confidential in any event. Moreover, they instruct the recipients not to disseminate the emails if they are NOT the intended recipients. By negative implication, these notices tell the intended recipients that they ARE free to disseminate the emails. Your office deliberately sent the emails to me, thus effectively giving me permission to publish them.

Your letter also states that your "clients" are reserving their rights about the publication of your letter and emails. However, I see no reason to believe that your clients own the copyright in your letters. The owner would be you and/or your firm. If you choose to try to enforce the copyright by raising a claim of infringement, you will have to do so in your own name.

They are promised the shows will be educational in nature and reach an estimated 60 million American households on public television stations across the country.

But the programs aren't documentaries; they're marketing segments that will cost the firms that are their subjects roughly $25,000 apiece. And the spots, created by Vision Media of Boca Raton, Fla., are likely to receive little airtime, if any, on local PBS member stations.

"They are selling something that they generally cannot deliver," says Garry Denny, program director of Wisconsin Public Television and a past president of the professional association of programming officials for PBS member stations. "In fact, they are probably not carried by any public television station around the country."

Officials at PBS and at PBS member stations in California, Colorado, Kentucky, New York, South Carolina and Virginia were all aware of the Hugh Downs spots. Yet not one knew of a concrete instance in which the spots featuring Downs appeared on their stations or those of others. PBS and its member stations say they adhere to guidelines banning marketing programming paid for by subjects of the programs.

The caller suggests that the production will be shown on public television and major cable news stations. But the initial pitch, foundation representatives said, does not mention that the production would cost the university or foundation $20,000 or more.

PBS, the national public broadcasting program provider, has had a warning on its Web site for the last three years that it "is not associated with and does not endorse, distribute programming for, review underwriting for or otherwise have any business relationship" with a list of productions companies that includes Vision Media Television.

Lea Sloan, vice president for communications at PBS, said this week, "PBS has no actual knowledge of carriage of any Vision Media programming by any PBS member station."

On Tuesday, Rick Hersh, Downs' agent, said he had been unaware of Vision Media's practices. "It's not great for Hugh, the way that you portrayed them. We didn't know about some of the stuff you reported."

But Hersh said Downs' involvement was limited to a single day's shooting of generic introductions to the videos at a television studio in Phoenix two years ago. And Hersh said Downs bore no responsibility for how Vision Media sold the videos to clients or what they contained.

As Downs' appearance was contractually limited to public television, Hersh said, "We took comfort in relying on public television not to put something on the air that they didn't find legitimate and honest and straightforward."

As a result of the litigation, half the hits on the first page of a Google search for "Vision Media TV" now refer to the litigation and to the accusations against Vision Media.  The litigation taught many prospective customers about the anonymous charges made against Vision Media -- that Vision Media promotes its video production services by cold-calling non-profits and deceptively suggesting that it can get them free airtime on public television.  An experienced non-profit communications director, Jeff Cronin of the Center for Science in the Public Interest, detailed the various tricks Vision Media and associated enterprises had used to try to trick his group into buying its services.  

Vision Media's counsel made a ham-handed request for a gag order, complaining that public discussion of the lawsuit had become embarrassing and was threatening its relationship with Hugh Downs -- a name that Vision Media sales representatives used as entree to non-profit targets who recall Downs' former broadcast roles with respect.   And that attention led to a story on National Public Radio, embracing the anonymous accusations and reporting more detailed problems, as well as stories in the Chronicle of Philanthropy.  The Better Business Bureau withdrew its favorable rating; the rating has since been downgraded to C-, and a representative of Hugh Downs, who had been allowing Vision Media to play on his name and reputation, publicly announced plans to cut his ties with Vision Media.

When a company has been attacked online, and believes that it has hard evidence that the attacks are false, it faces hard choices about how to respond to those attacks.  What those companies don't need is the blandishments of lawyers who hope to make an easy buck by telling them that they can easily suppress criticism by suing the web sites where that criticism is hosted.  

As for non-profits, Vision Media has already tried to perpetuate its business by adopting the new name Great America HD.   Non-profits should be on the lookout for this same operation adopting new sheep's clothing.  At one point, Vision Media added the names of several staff members to the litigation.  That listing can be found here.   Non-profits who consider doing business with a TV production company employing any of these individuals -- be on your guard!

It pleaded claims for "false light," "tortious interference with business opportunity," and "trade libel," and attached a potpourri of documents that were apparently intended to show the loss of business that the message board postings had occasioned. In an effort to plead around Forte's Section 230 immunity, Vision Media repeatedly but generally alleged that Forte had authored some content on the web site, that she had deliberately removed favorable postings about Vision Media to make it look worse, that she had "substantially alter[ed] and edit[ed' others['] posts," and that she had "actively encourage[d] circumvention of legally binding agreements" that forbade unidentified persons from disparaging Vision Media.... The complaint also mentioned in passing Vision Media's trademark and used the terms "dilute" and "infringement," but did not plead any claim under the trademark laws. Although the complaint went on for 16 pages and included 20 pages of exhibits, the complaint neither set forth the allegedly defamatory (or false light) posts nor specified the portions of posts that were allegedly authored by Forte.