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<item>
<pubDate>Thu, 20 Dec 2012 11:04:42 PST</pubDate>
<title>Japanese Police Arrest 2Channel Founder Because Users Talk About Illegal Stuff Occasionally</title>
<dc:creator>Timothy Geigner</dc:creator>
<link>http://www.techdirt.com/articles/20121220/09581721452/japanese-police-arrest-2channel-founder-because-users-talk-about-illegal-stuff-occassionally.shtml</link>
<guid>http://www.techdirt.com/articles/20121220/09581721452/japanese-police-arrest-2channel-founder-because-users-talk-about-illegal-stuff-occassionally.shtml</guid>
<description><![CDATA[ As we wrap up 2012, I think it's an appropriate time announce the first annual "Most Incorrect Law Enforcement Action Of The Year" award (yes, I just made that up). While it would be obvious hyperbole to claim that law enforcement in general is somehow inept or evil, it's been a hallmark year for silly LEOs. We once again saw several countries attempt to make it illegal for citizens <a href="http://www.techdirt.com/articles/20121019/02210720759/spanish-govt-wants-to-make-it-crime-to-photograph-cops.shtml">to film</a> police in action, despite such filming often occurring in public places. We also discussed how the German government <a href="http://www.techdirt.com/articles/20121009/08281520662/german-govt-inadvertently-reveals-police-monitor-gmail-skype-facebook-use-snooping-malware.shtml">whoopsie'd</a> its way into informing the world of all the ways it monitors its citizens. Seriously, if you're going to go all 1984 on us, at least have the capability to not shove it in my face. These are just a few examples we've seen this year.
<br /><br />
That said, for the truly deficient aficionado, you just can't beat the Japanese police, <a href="http://www.japanprobe.com/2012/12/20/police-to-charge-2channel-founder-over-drug-related-forum-post-from-2010/">who recently announced charges against the founder of 2Channel</a> (the super popular Japanese forum site), named Hiroyuki Nishimura, because some users of the site have been found to discuss illicit narcotics. And it all appears to have stemmed from one nonsense news report on one single little 2Channel post.
<blockquote>
<i>Since last year 2channel, Japan&rsquo;s largest internet forum, has been subject to pressure from Tokyo police. According to a January 2012 post by Avery (2channel Fights Police Pressure, So-Called &ldquo;Viral Marketers&rdquo;), the whole police investigation began after Fuji TV aired a sensational news report about drug dealers making posts on the site. The news report was aired only a few days after 2channel users helped organize street protests condemning Fuji TV&rsquo;s alleged anti-Japanese bias.</i>
<br /><br />
<i>"Their evidence for the drug trade was a single post from 2010 that used code words to refer to MDMA, marijuana, and cocaine&hellip;.investigators are calling 2ch a &ldquo;hotbed of crime&rdquo; because moderators did not delete the single post from 2010. (Over 1,800,000 posts are made on 2channel every day.)"</i>
</blockquote>
So, let's get the obvious stuff out of the way, because then we can <i>really</i> have fun. 2Channel is Japan's largest internet forum. It's <i>huge</i>. Policing every post on it would be similar to owners of a private beach checking each individual grain of sand on their property. If such forums are going to exist, forum operators need to be protected from these kinds of charges in order to survive. On top of that, just as with Craigslist, dedicated law enforcement officers should be able to make at least some <a href="http://www.techdirt.com/articles/20100503/1100119284.shtml">use</a> of the forums themselves for their own activities, but not if they attack the site's owners.
<br /><br />
Great, the normal stuff out of the way. Now let me explain why these charges are <i>really</i> stupid.
<blockquote>
<i>Nishimura will be charged with abetting drug dealing. However, some twitter users have pointed out that the statute of limitations for the drug law in question is 3 years, and Nishimura sold 2channel more than 3 years ago.</i>
</blockquote>
Oops. So charges are being brought against the guy who simply founded the site that someone else may have once used to talk about something illegal, even though he sold the site 3 years ago and the statute of limitations has expired. I'm certain Unites States LEOs will soon be bringing charges against the long-rotting corpse of E.L. Cord, founder of American Airlines, since terrorists used a plane of his to attack the World Trade Center. I mean, they really have no choice at this point, assuming they want to make a late entry into this year's "Most Incorrect Law Enforcement Action Of The Year" award.<br /><br /><a href="http://www.techdirt.com/articles/20121220/09581721452/japanese-police-arrest-2channel-founder-because-users-talk-about-illegal-stuff-occassionally.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121220/09581721452/japanese-police-arrest-2channel-founder-because-users-talk-about-illegal-stuff-occassionally.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121220/09581721452/japanese-police-arrest-2channel-founder-because-users-talk-about-illegal-stuff-occassionally.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>here's-your-award</slash:department>
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<pubDate>Tue, 12 Jun 2012 04:03:00 PDT</pubDate>
<title>When The Entertainment Industry Can't Legally Shut Down A Site It Doesn't Like, Bogus Charges Can Do The Trick</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120611/03043319267/when-entertainment-industry-cant-legally-shut-down-site-it-doesnt-like-bogus-charges-can-do-trick.shtml</link>
<guid>http://www.techdirt.com/articles/20120611/03043319267/when-entertainment-industry-cant-legally-shut-down-site-it-doesnt-like-bogus-charges-can-do-trick.shtml</guid>
<description><![CDATA[ Back in 2009, we wrote about how anti-piracy organization FACT worked closely with UK law enforcement to have the guy who operated Filesoup <a href="http://www.techdirt.com/articles/20090805/1847415781.shtml">arrested</a>.  At the time, we noted that it wasn't at all clear what he was doing that was illegal, as the site was merely a forum.  Though some people did, in fact, use that forum for the sake of infringement, that shouldn't implicate the forum host.  And, in fact, after about a year and a half, the courts <a href="http://www.techdirt.com/articles/20110225/10324413257/uk-court-dismisses-yet-another-bogus-criminal-lawsuit-against-torrent-tracker-admins.shtml">dropped the case</a>, realizing that the arguments the industry kept feeding law enforcement didn't add up to anything illegal.  The court noted that the charges never should have been brought in the first place.  Of course, that's small comfort to the folks who ran the site and had to go through this ordeal.  The site has announced <a href="http://torrentfreak.com/worlds-oldest-bittorrent-site-shuts-down-120605/" target="_blank">that it's shutting down</a>, and the arrests and lawsuits were a big part of what killed it.<br /><br /><a href="http://www.techdirt.com/articles/20120611/03043319267/when-entertainment-industry-cant-legally-shut-down-site-it-doesnt-like-bogus-charges-can-do-trick.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120611/03043319267/when-entertainment-industry-cant-legally-shut-down-site-it-doesnt-like-bogus-charges-can-do-trick.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120611/03043319267/when-entertainment-industry-cant-legally-shut-down-site-it-doesnt-like-bogus-charges-can-do-trick.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>industry-bullies</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20120611/03043319267</wfw:commentRss>
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<pubDate>Wed, 16 Mar 2011 07:41:00 PDT</pubDate>
<title>EA: Banned From Forums? Can't Play Single-Player Game Either</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20110315/12420813503/ea-banned-forums-cant-play-single-player-game-either.shtml</link>
<guid>http://www.techdirt.com/articles/20110315/12420813503/ea-banned-forums-cant-play-single-player-game-either.shtml</guid>
<description><![CDATA[ <a href="http://www.techdirt.com/profile.php?u=lucretious">Tom Landry</a>  was the first of a bunch of you to send in the news that EA has taken forum banning to a new level.  Obviously forums ban people all the time for whatever reason, but it appears that EA went way beyond just a forum banning in this case.  First, the guy was banned for saying in the comments: "Have you sold your souls to the EA devil?"  Seems pretty tame compared to some of the stuff that goes on in plenty of forums.  But, whatever.  If EA wants to be thin-skinned like that, that's its own insecure decision.  Where it goes overboard is that not only did the company ban him from the forums, but it also <a href="http://www.bluesnews.com/s/119621/ea-forum-ban-prevents-game-access" target="_blanK">blocked him from activating a single-player game that he had purchased</a>, Dragon Age II, from BioWare.  In the <a href="http://social.bioware.com/forum/1/topic/141/index/6459941/1" target="_blank">thread where this is discussed</a>, a company rep notes that this is EA's policy, and since BioWare is a part of EA, this was done at a higher level:
<blockquote><i>
EA Community bans come down from a different department and are the result of someone hitting the REPORT POST button. These bans can affect access to your game and/or DLC
</i></blockquote>
That seems ripe for a lawsuit.  Selling someone a video game for 50 euros (what the guy says he paid for it), and then telling him he can't play it, even as a single player game on his own computer, because he said something mildly anti-EA in a forum?  Honestly, all that really seems to say is that you should never "buy" (yeah, right, you didn't "buy" anything) from EA since they can vindictively make whatever you bought stop working if someone who works there doesn't like you.  That seems like a much worse message than some forum person talking about "selling your soul."  <b>Update</b>: And of course, once the publicity came out on the story, EA is now claiming it was a glitch and has been fixed.  Doesn't change that this appears to be part of EA's official policy, though (also, corrected the name of the game).<br /><br /><a href="http://www.techdirt.com/articles/20110315/12420813503/ea-banned-forums-cant-play-single-player-game-either.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20110315/12420813503/ea-banned-forums-cant-play-single-player-game-either.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20110315/12420813503/ea-banned-forums-cant-play-single-player-game-either.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>overkill</slash:department>
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<pubDate>Fri, 18 Feb 2011 15:12:18 PST</pubDate>
<title>ProspectMatch Threatens Forum That Hosts Negative Reviews; Says It Will Bury Forum Owner In Legal Fees</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20110217/00544313146/prospectmatch-threatens-forum-that-hosts-negative-reviews-says-it-will-bury-forum-owner-legal-fees.shtml</link>
<guid>http://www.techdirt.com/articles/20110217/00544313146/prospectmatch-threatens-forum-that-hosts-negative-reviews-says-it-will-bury-forum-owner-legal-fees.shtml</guid>
<description><![CDATA[ Paul Levy alerts us to yet another case of companies looking to abuse the legal process to shut down negative reviews and opinions.  In this case, amazingly, someone involved in the company even seems to <b>admit</b> this in writing to the site being threatened.  The situation involves a company called Javelin Marketing, but which is doing business as ProspectMatch.com -- a company that supposedly sells leads.  Over at <a href="http://www.insurance-forums.net/forum/" target="_blank">InsuranceForums.net</a>, a site run by Melnet Media, there are a few different <a href="http://www.insurance-forums.net/forum/prospect-match-thread27268.html" target="_blank">threads</a> where multiple people give <a href="http://www.insurance-forums.net/forum/prospectmatch-com-thread26741.html" target="_blank">negative reviews</a> of ProspectMatch, which the Javelin Marketing/ProspectMatch folks weren't very happy about.
<br /><br />
While Levy has the details of <a href="http://pubcit.typepad.com/clpblog/2011/02/javelin-marketing-seeks-to-suppress-criticism-of-its-insurance-leads-sales.html" target="_blank">the rather aggressive legal threat sent by a lawyer</a> hired by ProspectMatch, Levy also notes that someone from Javelin Marketing also contacted Insurance-Forums.net's operator directly and explained:
<blockquote><i>
"I really don't care what the law allows you to do.  It's a more practical issue.  Do you want to send your attorney a check every month indefinitely as I continue to pursue this? Now, we will both spend needless money and when you get sick of paying your attorney, you will take down the posts."
</i></blockquote>
Of course, the case looks like a typical Section 230 deal, where the forum owner has no liability over statements made in the forums -- and it appears that ProspectMatch knows this, but doesn't care.  Of course, saying that -- in writing no less -- probably was not a wise move, and might expedite a quick dismissal for any legal action.
<br /><br />
On top of that, there are number of interesting moves by ProspectMatch's lawyer, a guy by the name of <a href="http://www.hinchnewman.com/internet-attorney/richard-b-newman/" target="_blank">Richard Newman</a>.  First, in his threat letter to Melnet, he tried to avoid the likely Streisanding of the threat by declaring:
<blockquote><i>
Please be aware that this letter is copyrighted by our law firm, and You are not authorized to republish it in any manner whatsoever, including in a posting, in full or in part.  Doing so will subject You to further legal and equitable causes of action.
</i></blockquote>
We've been seeing this sort of technique more frequently these days (unfortunately), and it is pretty pointless for lawyers to include.  They do so for fearmongering purposes, but publishing and discussing such a threat letter would almost universally be declared fair use, so Levy has <a href="http://www.citizen.org/documents/Newman_Cease_Desist.pdf" target="_blank">posted the full letter</a> (pdf).
<br /><br />
On top of this, it appears that Newman is trying to get around Section 230 claims by (1) pretending that Melnet has more direct involvement than it does and (2) claiming false advertising and trade libel under the Lanham Act.  Basically this is an attempt to rebrand "defamation" (which is covered by Section 230) as a "trademark violation" (which is not).  But, just because you try to make that claim, it doesn't mean any court in the land will believe you.
<br /><br />
Finally, Levy notes that, despite being in California, it was interesting that Newman indicated plans to avoid filing the lawsuit in California, and suggests a reason why he believes Newman did this:
<blockquote><i>
It struck me that the most likely explanation is that Newman understood that, if he sued in either California state court or a federal court in California, the suit would be subject to dismissal under California&rsquo;s anti-SLAPP statute.
<br /><br />
The reason we were particularly interested in defending this otherwise plain-vanilla section 230 immunity case is that it presents the opportunity to argue that a California libel plaintiff is still subject to California&rsquo;s anti-SLAPP laws even if it sues elsewhere, because under common choice of law principles, the law of the plaintiff&rsquo;s domicile applies to libel and other intentional tort claims.  And because the anti-SLAPP law is substantive rather than procedural, we could file a special motion to strike and seek an award of attorney fees.
</i></blockquote>
This does seem like an interesting legal question, and Levy indicates in his letter to Newman (embedded below), that he fully intends to test this theory if ProspectMatch does decide to file a lawsuit.  Anyway, you can read Levy's full letter below.  As with most of Levy's letters, it's well worth reading.<br /><br /><a href="http://www.techdirt.com/articles/20110217/00544313146/prospectmatch-threatens-forum-that-hosts-negative-reviews-says-it-will-bury-forum-owner-legal-fees.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20110217/00544313146/prospectmatch-threatens-forum-that-hosts-negative-reviews-says-it-will-bury-forum-owner-legal-fees.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20110217/00544313146/prospectmatch-threatens-forum-that-hosts-negative-reviews-says-it-will-bury-forum-owner-legal-fees.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>and-there's-a-great-review</slash:department>
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<pubDate>Thu, 8 Jul 2010 15:49:37 PDT</pubDate>
<title>Users Revolt Over Blizzard's Requirement Of 'Real Names' In Forum Comments</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20100708/03054610123.shtml</link>
<guid>http://www.techdirt.com/articles/20100708/03054610123.shtml</guid>
<description><![CDATA[ Wasn't sure if this story was worth discussing here, but everyone keeps submitting it, so here goes.  Blizzard, once again showing how little it seems to actually understand its own users, has decided that to curb annoying commenters in its forums, it's now going <a href="http://news.bbc.co.uk/2/hi/technology/10543100.stm" target="_blank">to require everyone post with their real first and last names</a>.  Anonymity be damned.  I've always supported allowing some form of anonymous commenters in certain forums, though I can see why some sites prefer to require real names.  But a World of Warcraft forum seems like a very odd place for such a requirement -- especially since it involves worlds where people rarely, if ever, use their real names. 
<br><br>
There are some legitimate privacy concerns here as well, as some note that there is a stigma attached to people who play such games in certain areas, and that it could scare off lots of people who would like to partake in the forums, but would prefer Google searches on their names don't reveal to the world their WoW obsession.  Others worry that in the heated world of online gaming, it really might not be such a good thing for people to know the real names of others that they play with.
<br><br>
I can understand the desire to bring about more civility to a forum (though, let's face it, we're talking about a game where civility is not exactly the main goal), but it seems like this step goes far beyond the comfort level of many participants.
<bR><br>
<b>Update</b>: Well, it looks like with enough user complaints, Blizzard has <a href="http://www.wow.com/2010/07/09/mike-morhaime-real-names-will-not-be-required-on-official-forum/" target="_blank">backed down</a>.<br /><br /><a href="http://www.techdirt.com/articles/20100708/03054610123.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20100708/03054610123.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20100708/03054610123.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>not-everyone-wants-to-be-known-as-a-gamer</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20100708/03054610123</wfw:commentRss>
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<item>
<pubDate>Thu, 13 May 2010 01:39:59 PDT</pubDate>
<title>Scuba Diving Organizer Sues Web Forum After Debate Over Scuba Death Liability</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20100510/1047319358.shtml</link>
<guid>http://www.techdirt.com/articles/20100510/1047319358.shtml</guid>
<description><![CDATA[ When will companies learn?  Blaine points us to a story that's now a few months old, but still worth talking about.  Apparently, two years ago, there was a scuba diving accident where someone died and some others were injured.  On a particular scuba diving forum, ScubaBoard.com, there was a discussion about the incident.  Apparently there had already been some other somewhat negative postings about the travel agency, Maldives Scuba Diving, that organized (and potentially ran) the trip, and from there the conversation spiraled.  The person who owns the travel agency decided to <a href="http://divertodiver.scubadiving.com/tm.aspx?m=181921" target="_blank">sue just about everyone</a>, including ScubaBoard.com.  For ScubaBoard, it seems like this should be a quick Section 230 dismissal based on safe harbors, but the site's owner is apparently still scrounging up the money to deal with this.  Also, the complaint apparently tries to get around this by claiming that commenters on the message boards are "all agents or employees of Intermedia [ScubaBoard's owner], or made the postings at issue at Intermedia's direction."  That's an argument that is likely to get laughed out of court.
<br /><br />
There may be some cases against individual posters, but the comments sound like your ordinary comment board opinion and hyperbole.  At least in the quoted comments, it's difficult to see anything that's actually defamatory.  Upsetting?  Perhaps, but not defamatory.  It sounds like something bad happened, and whether or not the operator of this company was responsible, there were plenty of better ways to respond.  However, busting out the lawsuit, suing the message board itself, as well as 100 posters, just seems to reinforce the problems and bring even more attention to the accident and the concerns people have with this woman's company.<br /><br /><a href="http://www.techdirt.com/articles/20100510/1047319358.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20100510/1047319358.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20100510/1047319358.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>hello-section-230,-hello-streisand</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20100510/1047319358</wfw:commentRss>
</item>
<item>
<pubDate>Wed, 5 May 2010 23:14:24 PDT</pubDate>
<title>If A Site Uses Third-Party Moderators Who Do Something Bad, Does The Site Lose Safe Harbors?</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20100505/1251049312.shtml</link>
<guid>http://www.techdirt.com/articles/20100505/1251049312.shtml</guid>
<description><![CDATA[ Last year, we wrote about a rather straightforward case where a nutritional supplement company had sued the operators of the forum bodybuilding.com, because of some unflattering comments posted in the forum.  The court <a href="http://www.techdirt.com/articles/20090825/0415455990.shtml">quickly</a> tossed out the case on Section 230 grounds, noting that a site is not liable for the actions of its commenters.  However, Eric Goldman alerts us to the latest in that case, which is a bit more troubling. After having the case transferred to a different court, the supplement maker used a new argument,  claiming that it was false advertising <i>and</i> that since a third-party "moderator" posted one of the messages, the site <a href="http://blog.ericgoldman.org/archives/2010/05/troubling_rulin.htm" target="_blank">is now responsible</a>.  That's basically how the company tried to get around Section 230.
<br /><br />
The court, unfortunately, seems to have agreed.  While it does note that bodybuilding.com has Section 230 immunity despite having third party moderators, it allows for the possibility that since one of the moderators may have posted one of the messages in question, the moderator could be considered "a representative of the site."  This goes against a whole series of case law, which Goldman lists in his post, and could create all sorts of problems for sites that use volunteer or third party moderators.  Of course, this was just in response to the motion to dismiss, so the court could come back and say that third party moderators don't make a site liable, but it's worth paying attention to this case.  As Goldman notes: "I really can't imagine Web 2.0 succeeding without a robust cadre of site admins and moderators helping self-police an online community."<br /><br /><a href="http://www.techdirt.com/articles/20100505/1251049312.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20100505/1251049312.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20100505/1251049312.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>that-would-be-bad</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20100505/1251049312</wfw:commentRss>
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<pubDate>Wed, 5 May 2010 04:01:12 PDT</pubDate>
<title>Investment Bank Says Criticism Is Trademark Infringement; Gets Misplaced Injunction Against Web Forum</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20100504/1204399299.shtml</link>
<guid>http://www.techdirt.com/articles/20100504/1204399299.shtml</guid>
<description><![CDATA[ So many companies (and individuals) get up in arms over a bit of criticism, assuming that anything they don't like must be illegal.  On top of that, they regularly blame the owners of the websites where that criticism occurs, rather than whoever actually created the criticism.  Usually the courts see through this stuff, but sometimes companies are able to get around all of that with some quick lawyering.  In a particularly egregious example, the investment bank Houlihan Smith got upset at the websites 800notes.com and Whocallsme.com, both run by Julia Forte as forums where people can discuss telemarketing practices (we've pointed out how Forte has been fighting other misguided <a href="http://www.techdirt.com/articles/20100122/0236407864.shtml">legal attacks</a> in the past as well).  As with many companies that find people criticizing themselves on Forte's website, Houlihan Smith demanded that she remove comments.  She responded by pointing out that company representatives are free to respond to the complaints in the comments.
<br /><br />
Instead, it appears that Houlihan Smith went straight to court... and <a href="http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=3123" target="_blank">got a temporary restraining order against Forte</a> that prohibits people from posting comments -- even if they're factual -- about Houlihan Smith to Forte's websites.  So how did they get such a temporary restraining order when pretty much <i>all</i> case law notes that Forte is protected by Section 230?  Well, it looks like they're claiming that the critical comments (and there were lots of them) weren't just defamatory (the usual claim) but were <i>trademark infringement</i> -- which, by way of judicial accident is <i>not</i> covered by Section 230.  But people posting their opinions or factual information about a company cannot be trademark infringement.  The company also claims a violation of the "right of publicity," because some employees are named.  Of course, "right of publicity" is supposed to be used to prevent you from using someone's name or likeness in an <i>advertising</i> context.  Someone accurately claiming that "so-and-so called me" is not a violation of anyone's right of publicity.  Furthermore, the company apparently only gave Forte 90 minutes of notice via email that it was going to court (800 miles from where she lives) to get the restraining order.
<br /><br />
Totally blocking a website from allowing people to express their opinions and criticisms of a company's telemarketing practices seems like a blatant violation of the First Amendment.
<br /><br />
Either way, it seems like Houlihan Smith and its lawyers haven't realized a basic fact about the internet: if you try to stifle free speech that you don't like, it only draws a hell of a lot more attention to that speech.  Perhaps Houlihan Smith would have been better off <i>responding to</i> the criticism, rather than using questionable legal claims to try to silence an entire forum.<br /><br /><a href="http://www.techdirt.com/articles/20100504/1204399299.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20100504/1204399299.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20100504/1204399299.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>not-good</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20100504/1204399299</wfw:commentRss>
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<pubDate>Thu, 11 Feb 2010 06:22:00 PST</pubDate>
<title>Developer Seems To Think Trademark On 'Army Builder' Means No One Can Use It In Conversation</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20100205/0129478063.shtml</link>
<guid>http://www.techdirt.com/articles/20100205/0129478063.shtml</guid>
<description><![CDATA[ One of the downsides of the modern movement to include trademark law under the same "intellectual property" umbrella as copyright and patent law, is that you get people who think that trademark grants the same sort of overreaching  monopoly rights that copyright and patent law do.  But trademark law is really quite different -- it's designed as something of a consumer protection law, meant only to prevent confusing uses of the trademark in a way that would imply a product is made or endorsed by someone else.  But since people still think of trademarks like copyrights and patents, they often conclude that they can try to stop people who aren't violating the trademark at all.
<br><br>
Reader Reverand Dak alerts us to the news that Lone Wolf Development, a video game developer (who, we're told, has no relationship with Lone Wolf Roleplaying Games nor with Lone Wolf & Club manga), received a trademark on the term Army Builder in connection with a game that they created under that name.  No problems there.  But apparently Lone Wolf has been <a href="http://www.enworld.org/forum/news/271507-wednesday-3-february-2010-a.html" target="_blank">sending out cease-and-desists</a> to websites that <a href="http://www.tabletopgamingnews.com/2010/02/01/33231" target="_blank">have nothing to do with Lone Wolf's Army Builder</a>, and demanding that the phrase be blocked in forums on totally different subjects.  Yes, they're saying that no one can use the term in conversation:
<blockquote><i>
There are two things that need to be done. First of all, improper references to the Army Builder trademark on the forums must be addressed. This can be achieved in either of two ways, or potentially a combination of both, at your discretion. The first option would be to remove such posts. Since this could appear harsh and potentially disrupt forum discussions, an acceptable alternative would be to revise such posts to utilize a generic term (e.g. "roster construction tool", "list createor", or "points calculator") in place of the "Army Builder" name.
<br><br>
The second thing that needs to be addressed is that your forum users must be educated about the term Army Builder being a trademark and only applicable to our brand of products. This is necessary to avoid an ongoing problem and mitigate the future need for removal of improper posts. I'm sure you would also prefer that the forums continue to run smoothly and without interruption, so your assistance in getting forum users to utilize appropriate terms will benefit us all.
</i></blockquote>
Or, you know, instead of educating all forum users around the world that they can no longer use the term "Army Builder" in conversation, how about we just educate the folks at Lone Wolf Development on the limits of trademark law and why it almost certainly does not apply to random forum users using the term in a way totally unrelated to Lone Wolf Development's mark.
<br><br>
<b>Update</b>: As pointed out in the comments -- and in a friendly email from Lone Wolf's lawyers -- Lone Wolf has <a href="http://forums.wolflair.com/showthread.php?t=9735" target="_blank">backed down a bit</a> and <a href="http://forums.wolflair.com/showthread.php?t=9753" target="_blank">sorta, but not really, apologized</a>.  The guy claims that he's not a lawyer (though, whoever emailed us said they were a lawyer representing the company), and didn't quite realize what he was doing (and it showed).  They still claim they want to block "potentially confusing and infringing uses" but our commenters raised some serious questions about the descriptive nature of the mark, and whether or not it should have been allowed in the first place.  Still, let this be a lesson to folks, yet again, that acting as a bully tends to backfire.<br /><br /><a href="http://www.techdirt.com/articles/20100205/0129478063.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20100205/0129478063.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20100205/0129478063.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>time-to-learn-some-trademark-law</slash:department>
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<pubDate>Tue, 25 Aug 2009 19:22:00 PDT</pubDate>
<title>Another Good Section 230 Ruling: Forum Owner Not Liable For Posts</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20090825/0415455990.shtml</link>
<guid>http://www.techdirt.com/articles/20090825/0415455990.shtml</guid>
<description><![CDATA[ It's good to see judges getting things right -- and more often than not, they're being both quick and smart when it comes to misguided lawsuits from plaintiffs against sites that host content, but don't publish it.  The latest involves the owners of a bodybuilding forum website, bodybuilding.com, who were sued by a nutritional supplement maker, claiming that competitors had posted negative reviews on the site.  But the judge <a href="http://blog.ericgoldman.org/archives/2009/08/online_retailer_1.htm" target="_new">tossed out the lawsuit against the forum operator</a> using section 230.  The supplement maker tried to argue that the forum owners had teamed up with the competitor in a conspiracy to say bad things about the supplement, but the judge didn't buy it.  The only question was whether the website owners posted the content.  They didn't.  There's no case.<br /><br /><a href="http://www.techdirt.com/articles/20090825/0415455990.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20090825/0415455990.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20090825/0415455990.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>good-to-see</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20090825/0415455990</wfw:commentRss>
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<pubDate>Wed, 24 Dec 2008 04:10:00 PST</pubDate>
<title>Wait, You Mean Homeland Security Isn't Already Scanning Blogs &#038; Forums For Terrorists?</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20081223/2346453215.shtml</link>
<guid>http://www.techdirt.com/articles/20081223/2346453215.shtml</guid>
<description><![CDATA[ USA Today is reporting that Homeland Security is looking to <a href="http://www.usatoday.com/news/washington/2008-12-23-terrorblogs_N.htm" target="_new">start scanning blogs, forums and message boards to try to track terrorists and terrorist activity</a>.  My first reaction to this, honestly, was shock.  Shouldn't they have been doing this already?  As in, for many, many years?  To be fair, the article suggests that the real difference here is that in the past Homeland Security has done static searches that they check on every so often -- and now they're hoping for a more real-time solution.  Even so, it strikes me as odd that Homeland Security didn't already have something that was at least close to real-time in alerting them to certain things online.  For all the talk of sophisticated monitoring on internet activities, could it be that we're really that far behind in internet terrorist monitoring?<br /><br /><a href="http://www.techdirt.com/articles/20081223/2346453215.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20081223/2346453215.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20081223/2346453215.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>uh,-yikes?</slash:department>
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<pubDate>Fri, 17 Oct 2008 00:38:07 PDT</pubDate>
<title>Massive Stolen Credit Card Number Site Shut Down</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20081017/0015502562.shtml</link>
<guid>http://www.techdirt.com/articles/20081017/0015502562.shtml</guid>
<description><![CDATA[ It took quite some time for authorities around the world to recognize the extent to which organized crime was using the internet for various scams and frauds, but in the last year or so, it seems like many agencies around the world really are looking to go after the criminals.  The latest example is that Darkmarket, an invitation-only secretive forum for buying and selling credit card numbers, <a href="http://news.bbc.co.uk/2/hi/uk_news/7675191.stm" target="_new">has been shut down</a>, and 60 people involved with the site have been simultaneously arrested.  This is definitely a step up from what we were hearing just a couple of years ago, where the best authorities could do was arrest kids <a href="http://www.techdirt.com/articles/20060104/1015250.shtml">messing around</a> with phishing scams, rather than actually going after the organized criminals who were the real issue.  Cracking down on one site and arresting 60 individuals isn't going to stop these scammers, but it's at least good to see authorities trying to focus on the real problem cases, rather than just the small fry. <b>Update</b>: As was pointed out in the comments, it appears the original BBC article we relied on has the story a bit wrong.  The site itself was actually <a href="http://blog.wired.com/27bstroke6/2008/10/darkmarket-post.html">an FBI-run honeypot</a>.  So, while the site was taken down, the story of how the whole process worked is quite different than what was implied in the first article.<br /><br /><a href="http://www.techdirt.com/articles/20081017/0015502562.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20081017/0015502562.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20081017/0015502562.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>good-work</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20081017/0015502562</wfw:commentRss>
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<pubDate>Fri, 7 Mar 2008 09:01:00 PST</pubDate>
<title>MobiTV Has A Totally Unsecured Feed, Threatens To Take Down HowardForums For Pointing That Out</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20080307/084641472.shtml</link>
<guid>http://www.techdirt.com/articles/20080307/084641472.shtml</guid>
<description><![CDATA[ If you follow the mobile communications world, you read <a href="http://www.howardforums.com/">HowardForums</a>.  It is, by far, the most comprehensive set of forums for anything having to do with mobile phones and mobile operators and applications.  It's a fantastic resource... and MobiTV is trying to shut it down.  MobiTV, if you don't know, provides a (fee-based) TV streaming service for mobile phones.  It has partnered with various mobile operators to allow them to stream TV to mobile phones (a subject we were <a href="http://www.techdirt.com/articles/20080304/012619428.shtml">just talking about</a>, noting how few people really are willing to pay).  For some totally unknown reason, it appears that MobiTV actually broadcasts its television streams totally out in the open on a <a href="http://qtv.mobitv.com/sprintTVlive.mcd">URL</a> that anyone can access.
<br /><br />
Someone noted this at Howard Forums and posted the information.  There is no  hacking going on.  There is no encryption broken.  There is nothing illicit whatsoever.  The feed is a public URL.  However, it appears that MobiTV thinks that because it did not properly secure its own feeds and left it on a public URL that somehow Howard Forums has broken the law.  In a series of emails, MobiTV's corporate counsel has <a href="http://howardforums.com/announcement.php?f=46" target="_new">threatened to take down HowardForums</a> and have contacted his web host (and are threatening to contact his registrar).  It's difficult to see what sort of claim they have here.  The URL is a public site.  They did not attempt to lock it down in any way.
<br /><br />
<a href="http://www.dslreports.com/shownews/MobiTV-Threatens-HowardForums-Shutdown-92429">Broadband Reports has more</a> on this story and thanks to reader <b>CQD</b> for pointing this out.  You would think that with all the attention Julius Baer got last week for a <a href="http://www.techdirt.com/articles/20080228/124631381.shtml">similar situation</a>, MobiTV's execs and lawyers would recognize how <a href="http://www.techdirt.com/articles/20080229/143915387.shtml">the Streisand Effect</a> might come back to bite them.<br /><br /><a href="http://www.techdirt.com/articles/20080307/084641472.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20080307/084641472.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20080307/084641472.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>under-what-law?</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20080307/084641472</wfw:commentRss>
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