A whole series of events have happened in various Prenda cases around the country, and Ken at Popehat, once again, has the best summary around. I'll do this bullet-style, and suggest you go read his full post for the details.
Paul Duffy is trying to dismiss the counterclaims filed against him in his defamation lawsuit against Alan Cooper, arguing that the counterclaims make no reference to him personally, but rather John Steele and Paul Hansmeier. Of course, if they were all working together, as an awful lot of evidence seems to suggest, that may be a problem for Duffy. The more hilarious issue is that Duffy claims that Cooper's lawsuit against Prenda (for allegedly falsifying his name on documents) is an "unrelated matter," rather than the whole freaking reason that Duffy is suing. Ken breaks down how incredibly stupid this statement is:
Yeah, sure, Cooper's suit is "completely unrelated" — except that (1) it involves the same parties, (2) it concerns Prenda's operations, (3) it accuses Prenda of stealing Cooper's identity, which Prenda's and Duffy's complaints suggest is a defamatory statement, (4) John Steele used all three suits to threaten and intimidate Cooper as soon as Cooper filed his complaint, and (5) Prenda's and Duffy's complaints specifically identify the Cooper complaint as one of the forms of defamation they are suing over. This is not just a lie to a federal court. It's not even a plausible lie. It's a stupid, ineffectual, desperate lie.
Ken explains the reasons why Cooper and Godfread decided to file using Minnesota's anti-SLAPP law, rather than Illinois's. As we had mentioned earlier, the case is in Illinois, so it took many of us by surprise that they were relying on Minnesota's anti-SLAPP law. However, Ken notes that since the key issue in an anti-SLAPP situation is that it forces the plaintiff to present their evidence early, this means that Duffy will be caught in a tough spot: responding with evidence would eviscerate the 5th Amendment protection he took in California.
But here's the beauty of this situation for Cooper and Godfread — the anti-SLAPP statute forces Duffy and Prenda to come forward with actual evidence establishing that they might win. To do that, they have to come forward with evidence that the statements that they are complaining about are false. But those statements are about exactly the things that Steele and Hansmeier and Duffy took the Fifth rather than address. Duffy and Prenda can't carry their burden unless they reverse the decision to take the Fifth. Ultimately, Cooper's and Godfread's narrower argument is elegant and well-suited to the circumstances. It's not always the right strategy to make every possible argument.
That "narrower" argument he's talking about is the (slightly surprising) decision by Cooper and Godfread not to point out that many of the statements that Duffy and Prenda are claiming defamatory are either insults or statements of opinion, rather than fact, and thus not subject to defamation. Instead of going down that road, they're focused on forcing Duffy's hand. We noted earlier that Cooper and Godfread had called Prenda's bluff. That may have been premature. Now they're really calling the bluff, and Duffy's going to have to show his cards.
Back in the main showdown case in California, we had already pointed out that (over the objections of Team Prenda), Judge Otis Wright had allowed lawyer Morgan Pietz (representing some of those sued by Prenda) to file more evidence. And he's done so. White summarizes the situation nicely.
Pietz can be excused for sounding a bit triumphant after the attorneys opposing him took the Fifth rather than address the questions he raised. He leads by pointing out that although John Steele claims there is no evidence that he has any ownership interest in Prenda Law's clients, Steele's own attorneys previously told the Florida State Bar the opposite — and a Prenda law local counsel also said that Steele had an interest in AF Holdings. Pietz attacks the credibility of Brent Berry, the real estate agent who claimed that Alan Cooper was in on the scheme and is violent and mentally ill. Pietz points out that Berry is Steele's agent and just sold a house for him in February. Pietz also points out that Berry signed the declaration in February, but Prenda law oddly withheld it until after the hearings before Judge Wright. Finally, Pietz echoes what everyone has been saying — Berry's testimony might suggest that Cooper knew his name was being used, but if accepted it proves that Cooper was a mere shill for the Prenda Law attorneys who actually controlled the plaintiff entities. Pietz also offers rebuttals to the Prenda lawyers' other arguments — he argues that Judge Wright's powers allow him to award attorney fees as sanctions based on the record before him, and he offers the declaration of a technical expert to rebut Prenda's arguments that its investigation of downloaders was reasonable and sufficient.
Given Judge Wright's clear questions about Prenda's actions, I would imagine that this extra fodder isn't going to be particularly helpful to John Steele, Paul Duffy and Paul Hansmeier.
And that's not all. Ken also has updates on a few other Prenda cases around the nation where people are hitting back at all things Prenda. Go check out his post for all the details.
Ken also points out that Judge Wright's response to all of this could come "any day," so stay tuned.
Here's yet another example of companies using lawsuits to censor speech -- a situation that would be stopped if there was a serious federal anti-SLAPP law in place. Paul Levy shares the incredible story of a company called "Med Express," an Ohio company, who appears to sell various medical equipment exclusively via eBay (there are other "Med Express" companies out there from what I can tell). One buyer, in South Carolina, purchased something, but was disappointed by the fact that the product arrived postage due. The woman noted it wasn't the fact that she had to pay, just the inconvenience of having to pay to get the delivery when it wasn't expected. In response, she left negative feedback on Med Express' eBay page.
While Med Express did express regret (while noting that some other customers had seen the same problem) and offered to reimburse the postage due, it also asked her to remove the negative review. However, as she noted, it wasn't the money issue, but the inconvenience, so she decided to leave her feedback up. At this point, Med Express and its lawyer, James Amodio, apparently decided that if she didn't like "inconvenience" it would subject her to more inconvenience and sued her for defamation in state court in Ohio and sought a temporary restraining order against eBay to block the review. While that failed, apparently the judge is allowing a hearing to happen for a preliminary injunction even though (as Levy points out) the same reason the TRO was rejected should apply to any preliminary injunction.
Amazingly, the complaint directly lays out the pretty clear fact that it's suing her for not removing a truthful review. They don't even attempt to argue that she said anything false or defamatory. Just that they feel she shouldn't have complained since they offered to reimburse.
This is where Levy, a former colleague of a relative of the customer in this case, Amy Nicholls, reached out to Amodio to point out that the lawsuit was a complete joke. Amodio's response is somewhat stunning, in that, according to Levy, he more or less admitted that he was filing a nuisance lawsuit:
I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers
Yet another case of felony interference with a business model, apparently, except in this case the company and the lawyer seem to be fine with abusing defamation law to stop a truthful review from appearing online because it might hurt them. Of course, suing a customer seems like the sort of thing likely to lead to significantly more negative feedback and fewer people willing to buy from them. Yes, a negative review can suck, but suing over it, while admitting that you don't really care about all the reasons that the lawsuit is censorious crap, is taking things to another level entirely.
As Levy notes, if a "public spirited lawyer in that part of Ohio" wants to take up a case to stand up for free speech and against censorious attacks, here's an opening.
Ah, the twists and turns of Prenda Law cases. While much of the focus has been on the big showdown in California, there are also the infamous defamation cases. As you may recall, three separate lawsuits were filed in state courts against Alan Cooper (John Steele's caretaker, who has accused Steele of identity fraud in signing his name to documents for various shell companies involved in Steele's copyright trolling operation), Paul Godfread, who is Cooper's lawyer, and a variety of anonymous internet bloggers and commenters. Two of the original lawsuits were filed in Illinois state court -- one with Prenda Law (the firm) as the plaintiff and another with Prenda's sole principal (or so they claim), Paul Duffy. Another was filed in Florida with John Steele as the plaintiff, though that one was quickly dropped by Steele himself (the rumor we've heard was that this was dropped after someone informed Steele of a fairly big procedural snafu concerning how defamation cases need to be filed in Florida).
As we noted, Cooper and Godfread quickly had the cases removed to federal court, which is a fairly common move. Defendants will often remove a case to federal court if they can, because generally speaking, federal courts have a lot more clear caselaw and precedent that the judges will follow, and (subjective statement here, but many agree with it) federal judges tend to just be better informed about the law and are somewhat less prone to wacky rulings. One common way to remove a case from state to federal court is by claiming "diversity," which is when the plaintiffs and defendants are in different states. That seemed like a no-brainer in this case, seeing as Cooper and Godfread are based in Minnesota, while Duffy and Prenda are in Illinois.
However, the latest filing in the case (as noticed by Raul, filed by Paul Duffy (yes, representing his own firm) claims that the case should be sent back to the state court. Here's where it gets tricky. The original complaint in the Prenda Law case, was filed on February 12th. However, on February 21st, Hansmeier notes that an amended complaint was filed, which also named Paul Hansmeier's own firm, Alpha Law Firm, as a plaintiff. While that complaint incorrectly claimed that Alpha Law Firm was organized under the laws of the State of Illinois it seems likely that was a sloppy copy-and-paste error in filing the amended complaint. Either way, the amended complaint correctly notes that Alpha Law Firm's principal place of business was in Minnesota.
This, Duffy argues, kills the diversity claim and means that the federal court has no jurisdiction. I am, of course, not a lawyer, and my expertise in the nuances of federal court jurisdiction is limited, but from my understanding of these things, this is a case where Duffy may be legally correct, though there's all sorts of sleaziness associated with this. The general rules for removing to federal court under diversity includes that no plaintiffs live/work in the same state as any defendants. If Alpha Law is in the same state as Cooper and Godfread (as they are), they can argue that there is no diversity, and a federal court very likely could agree. Of course, it's not difficult to speculate that some of the Team Prenda folks realized this after the initial filing, which is what inspired the decision to suddenly add Alpha as a plaintiff, solely for the point of killing the diversity claim. There are situations in which courts will claim that some parties have been added to a lawsuit as "nominally" or "fraudulently joined" defendants, solely for the purpose of avoiding a diversity claim. Perhaps Cooper and Godfread's lawyer can make that claim, but it's a crapshoot whether or not the court will buy it.
Of course, aiding the claim that this is a bogus addition solely to block a diversity claim is the fact that it is not explained anywhere in the amended filing, why Alpha Law was added as a plaintiff to the lawsuit. None of the statements quoted in the filing which the plaintiffs claim to be defamatory actually refer to Alpha Law. Hell, none of them even refer to Paul Hansmeier. The only Hansmeier mentioned is Peter, Paul's brother. Nearly all of the statements mention Prenda, not Alpha. Reading the amended complaint, it's not at all clear what Alpha Law is even complaining about, since the comments do not reference it.
There are other oddities here as well. The lawyer representing Cooper and Godfread, Erin Russell, never acknowledges Alpha as a plaintiff in any of her filings. Duffy's filing argues that this is a purposeful omission to hide this fact for the sake of getting diversity, and also claims that he emailed Russell the day her original Notice of Removal was filed to point her to the amended complaint. If this is true, then that could be seen to reflect poorly on Russell. Even if there are questionable motives behind adding Alpha, if the firm were legitimately added, Russell should have acknowledged that. That said, given how many times we've seen the crew of folks around Prenda make statements that were less than totally forthcoming about litigation they were involved in, I'll reserve judgment until we see more details and the inevitable reply from Russell.
Duffy even seeks legal fees in response to this, though that seems like a huge long shot.
It will be interesting to see what happens here, but there is a very real possibility that the judge might send this back to the state court for lack of diversity. Of course, while that's not ideal, it's hardly the end of the world. The case itself seems so weak, and there is so much other information now available concerning Prenda's actions, that I can't see the original case getting very far, even if it is stuck in a state court in Southern Illinois. On that note, Russell has already been trying to move the federal case from Southern Illinois to Northern Illinois arguing (quite reasonably) that no one involved in the case is from Southern Illinois at all, but Prenda/Duffy are based in Northern Illinois). It does make you wonder why the case was filed in st. Clair County in the first place -- other than that was also the state court that Prenda has used for some of its lawsuits. Still, this move reeks of playing legal games, for which Prenda is quite famous. It sometimes seems like there isn't a loophole they're unfamiliar with. In the long run, all this gamemanship isn't going to help them in the bigger cases concerning their conduct.
We recently wrote about how academic publisher, Edwin Mellen, was both suing an online critic as well as having its lawyers send highly questionable threat letters to blogs and commenters who were criticizing the company. As part of that, we were disappointed to see the website Scholarly Kitchen, a blog of the Society of Scholarly Publishing, cave in the face of legal threats and pull down the blog post when it was clear that the post broke no laws (the threat letter even admitted as much). The board of SSP has since talked about it and agreed to reinstate the blog post.
For many reasons I won't go into the ingredients of the sausage by explaining why the posts came down and why they went back up. I will say that the Board and the Scholarly Kitchen volunteers stand behind Rick's posts. The Board also stands behind the business and editorial decisions to take them down last week, until we could gather our busy volunteer leaders to fully evaluate the situation.
I can understand why a blog might pull such a post after getting such a letter. It's no fun to be the target of a legal nastygram, no matter how sure you may be that you're right. Even if you know with 100% certainty that you would win any such lawsuit, just the very threat of one could be attention, time and money draining. This is why such legal nastygrams can often be so effective in creating chilling effects around speech.
That said, I also think it's important for people to recognize the value of standing up for their rights in the face of such threats. Otherwise those rights get eaten away. On that note, I think that SSP could have and should have also reposted the "comment" which they say they took down. As we discussed in our initial article, Kristine Hunt's comments (which were actually mostly supportive of Edwin Mellen) seemed unlikely to reach the level of defamation -- but, much more importantly, this has no bearing on SSP's liability. Section 230 of the CDA is pretty clear that, as the service provider, they are not liable for such comments, even if they are aware of them and leave them up. It is, of course, SSP's decision as to whether or not to remove any comments (or posts) on its site, but I'm a bit surprised they'd remove that comment when the caselaw on Section 230 is pretty clear. Some courts have even ruled that sites have no obligation to remove such content even after the statements have been judged to be defamatory (though that's not agreed upon across the board). But, at this stage, merely on accusation, SSP is clearly protected by Section 230, so it's unfortunate that they still chose to remove that comment.
Well here's a story that might fit in with what our friend Ken White at Popehat generously refers to as the activity of censorious asshats. There's so much bad activity in this one story, it's almost difficult to know where to start -- so let's actually work backwards and reveal each new layer of censorious activity one step at a time. It begins with this: the blog, Scholarly Kitchen, from the Society of Scholarly Publishing, published a blog post this morning, saying that it had removed some posts from its site due to threatening letters from a lawyer representing Edwin Mellen Press, an academic publishing house. While I disagree (strongly) with Scholarly Kitchen's decision to remove those posts, they did at least publish the letters from the lawyer, Amanda R. Amendola, which we will republish here:
There is all sorts of wrongness here, but that only starts us down the rabbit hole. First of all, it's pretty weak that Scholarly Kitchen folded after receiving a mere legal letter, which doesn't even allege any actual law breaking. As the letter clearly states, they're just upset about what was written, but even they don't think that the original blog post reached the level of defamation. Instead, they just don't like it, and are promising that "we are putting you on notice that the moment Mr. Anderson publishes or provokes any statement about our company or authors that is the slightest bit defamatory, we will pursue legal action not only against him, but your organization as well." And Scholarly Kitchen folded and took down the posts. Nice job, Edwin Mellen Press for creating chilling effects on free speech. Also, claiming that if he publishes something that then provokes a defamatory statement that they can sue... well, that's a stretch.
Next up, this line is pure crap:
We are bringing this information to your attention because you are the publishers of both Ms. Hunt's statement and Mr. Anderson's blog. As such, you have a legal obligation to monitor these types of comments. In order to limit any damage from such events, we request the immediate removal of Ms. Hunt's comments from your blog.
With regards to Hunt's comments, in particular, Amendola is simply incorrect. Either she does not know about or simply chooses to ignore section 230 of the CDA and the piles upon piles upon piles of case law that make it clear that a blogger is not the publisher of user comments and has no legal obligation to monitor them. But, in either case, she's wrong. As for whether or not that applies to Mr. Anderson's blog post, that's at least a little fuzzy. It is possible that the blog post itself could lead to liability for the owner of the blog, but there are also numerous cases that involve people forwarding defamatory emails, in which the courts have found that doing so is protected by Section 230. Is publishing a guest blog post the same as forwarding an email? Seems like there would be a pretty strong argument for that, but either way, the argument does not matter here since Amendola has already admitted that they can't find anything defamatory in the original blog post by Anderson.
Of course, this made me curious. What was in that original blog post. While a cowardly Scholarly Kitchen had caved and taken down the post, Google cache still has it, at least for now. Since the text of it and the comments beneath it are critical to understanding all of this, I've saved the text as a PDF and embedded it here:
It quickly becomes clear that the threat letters are even more dubious than initially suggested. Anderson's post is directly about an interaction he had with Dr. Herbert Richardson, the owner of Edwin Mellen Press, in which Richardson was asking why Anderson -- the interim dean of the library at the University of Utah -- was purchasing fewer Edwin Mellen books. Anderson pointed out his reasons: that he wasn't impressed with the quality of the books and felt the prices were too high. He also turned down a proposed "gift" of books. The conversation moved on to a discussion about a librarian who had worked there before Anderson was there, named Dale Askey. And that's where it comes out that Richardson was upset about a blog post Askey had written years earlier about Edwin Mellen Press, which has since been removed but is available as a part of the lawsuit. Lawsuit? Yes, hold on, we're getting there.
Anyway, there's nothing in the post that I can see that's even close to defamatory. Anderson is telling his recollection of a conversation from a few months earlier, including a few statements of opinion about the quality and price of EMP's offerings (he's not impressed by either). And then he discusses the lawsuit -- which we'll get to (I promise). But first, there's the comments. Remember, according to Amendola, representing EMP, comments from Kristine Hunt were libelous. Here's the amazing thing about that comment though: it appears to actually be one of only two commenters in the whole thread that is at least mildly supportive of EMP! While she does make a few claims that could be seen as statements of fact, the point of her comment was actually to defend EMP in noting that there is room for publishers like EMP in the market. The thanks she get is to be threatened with a defamation lawsuit?
Also, there is one other "positive" comment in the thread, from a "Thomas Anthony Kelly." However, as other commenters have noted, nearly the identical comment from the same "Thomas Anthony Kelly" can be found on on a bunch of articles and blog posts about the Askey lawsuit (yes, we're still getting there), raising at least some suspicion about who is diligently posting an identical comment, supportive of EMP, on many stories about a defamation lawsuit filed by EMP.
Finally, on to that other lawsuit, which Richardson filed against Dale Askey and his current employer, McMaster University. You can see the details embedded below, but it includes Askey's original blog post that explains his own opinions of EMP (and which was written before he was employed by McMaster, even though EMP argues that McMaster is vicariously liable for Askey's statements). EMP is seeking $3 million -- which is an impressive sum in response to an experienced librarian basically stating publicly his opinion that they publish crappy books. While defamation law is definitely messier up in Canada, where the bar is much lower than it is in the US, it still seems pretty ridiculous to argue that the blog post was defamatory (and even that the post is "defamatory in its tone" -- a tone can be defamatory?).
Within the blog post in question, as attached to the lawsuit, EMP's lawyers "underline" the allegedly defamatory sentences, many of which appear to be clear statements of opinion. For example: "I find myself amazed at the durability of Mellen" or statements that are about his own actions and can't be defamatory at all. Example: "I made a snarky comment about Mellen on a mailing list." How is that defamatory? Furthermore, reading through the blog post and Askey's further comments, it also looks like many of the claimed "defamatory" statements about Mellen in the lawsuit are taken out of context.
For example, it says the claim that EMP is a "vanity press" is a defamatory statement. But, in the blog post, he actually writes: "No, they are not technically a vanity publisher..." And, even if he claimed they were, it's difficult to see how that would rise to the level of defamation. Also, pretty much all statements about quality are clearly statements of opinion.
Either way, as noted in the now deleted Anderson blog post, this particular lawsuit has generated quite a storm of publicity against Edwin Mellen Press. Inside Higher Ed wrote about the case, highlighting significant criticism for EMP's decision to sue, including from James Turk, the executive direction of the Canadian Association of University Teachers, who found the move to be "deeply concerning" and noted his concerns that it was an attempt to "silence Askey's exercise of academic freedom by legal action."
It should be noted, by the way, that it's not just "academic freedom" that's at stake here, but pure free speech. McMaster University has noted that it stands behind Askey and that it believes strongly in both academic freedom and individual freedom of speech. Meanwhile, the Association of Research Libraries and the Canadian Association of Research Libraries have both also put out a statement in support of Askey and against Edwin Mellen Press. Martha Reineke, a professor at the University of Northern Iowa, even put together a petition asking EMP to drop the lawsuit.
Oh, and there's one other interesting tidbit in all of this: It's come out that Richardson did something similar 20 years ago, to disastrous results. As Anderson noted in his original blog post:
In 1993, Dr. Richardson brought a similar suit against Lingua Franca magazine in response to an article (not available online) by Warren St. John, titled "Vanity's Fare: How One Tiny Press Made $2.5 Million Selling Opuscules to Your University Library." Dr. Richardson lost that suit. In 1994, he was found guilty of gross misconduct by an academic tribunal and fired from his tenured position at the University of Toronto; his press subsequently published a book about the affair titled Envy of Excellence: Administrative Mobbing of High-Achieving Professors.
So a similar effort two decades ago didn't work out that well. Though if you click through that link, the article from the Times Higher Education lists out a variety of other claimed misdeeds by Richardson -- whom they claim was the first tenured professor fired from the University of Toronto in 25 years. It says he was fired for "conflict of interest and the abuse of a four-month paid medical leave in 1993' when investigators found that he was engaged in outside activities.
Of course, he was able to continue building the publishing house. This time, however, with the internet broadcasting this story far and wide when the lawsuit was originally filed, along with this latest censorious move to shut down another critical blog post, it makes you wonder if any university library will ever want to buy EMP books again. His own actions are leading to much greater publicity over these questionable lawsuits and what clearly appear to be attempts to use the law and legal threats to silence criticism (even mild criticism).
In the end, there are so many wrong moves in this story, it's impossible to highlight the worst one. However, it's really disappointing to see a site like Scholarly Kitchen immediately cave on such a questionable threat. Furthermore, Amanda Amendola should know better than to send out threat letters on such a flimsy basis. But, at the core of this, it appears that Richardson has a history of reacting poorly to criticism. But, as we've pointed out over and over again, just because you don't like what someone says about you, it doesn't mean you get to sue.
The EFF has a blog post about a very troubling ruling in a Georgia state court that effectively orders the censoring of an anti-copyright trolling blog including user comments. The blog in question, ExtortionLetterInfo.com, is run by a guy named Matt Chan. He recently took up the cause of people who have been hit by copyright infringement demands from Linda Ellis, a poet who is somewhat infamous for going after lots of people, demanding payments after they posted her sappy poem "the Dash." She apparently threatens people (ridiculously) with the statutory maximum awards of $150,000 per infringement, but will "settle" for a mere $7,500 -- often going after non-profits, charities and churches who want to share the "positive message" of the poem. Yes, she demands $7,500 for posting her poem to a website.
Her actions have been written about and talked about in a wide variety of places online, and when ELI took up the issue, some of the comments got nasty. And apparently, some of the comments made on the ELI site did get pretty aggressive, which is unfortunate. As much as people dislike trolling behavior, there's simply no reason to ever go that far. However, even if the posts went too far, the judge went much further in ordering Chan to remove all mention of Ellis from his site, whether by him or any user.
Respondent is hereby ORDERED to remove all posts
relating to Ms. Ellis. Respondent is hereby enjoined and
restrained from doing or attempting to do, or threatening to do
any act constituting a violation of O.C.G.A- §§ 16-5-90 et seq.
and of harassing, interfering, or intimidating the Petitioner or
Petitioner's immediate family. Any future acts committed by the
Respondent towards the Petitioner which are in violation of this
statute and this Protective Order can amount to AGGRAVATED
STALKING, pursuant to O.C.G.A. § 16-5-91, which is a felony. A
person convicted of Aggravated Stalking shall be punished by
imprisonment for not less than one nor more than ten years and
by a fine of not more than $10,000.00
As the EFF points out, this order goes way, way too far by violating a variety of existing laws and the First Amendment.
Removing "all posts relating to Ms. Ellis" is neither narrowly tailored nor the least restrictive means of addressing any true threats. It fails the First Amendment test because of the collateral damage: it will take down constitutionally-protected criticism of the copyright troll and her demands for money. For example, Ellis complained that "there were vile posts of blasphemy." While blasphemy is doubtless offensive to Ellis, it remains protected speech.
The Georgia Court's overreaching order against Chan also contradicts federal law because it holds a service provider to account for users' posts. Section 230 protects websites that host content posted by users, providing immunity for a website from state law claims (including criminal law) based on the publication of "information provided by another information content provider."
The court, incorrectly, insists that because Chan has the ability to remove posts, he is obligated to do so.
As the owner and operator of the site, Respondent has the ability
to remove posts in his capacity as the moderator. However,
Respondent chose not to remove posts that were personally
directed at Ms. Ellis and would cause a reasonable person to
fear for her safety. Because the Respondent's course of conduct
was directed at Ms. Ellis through the posted messages and
information relating to Ms. EIlis, and the conduct was intended (and in fact did) create fear and intimidation in the Petitioner.
Except, as the EFF reminds us, under section 230, there is no duty to remove content and no liability for failing to remove that content even if you can. In the famous Zeran case, the court clearly held:
[L]awsuits seeking to hold a service liable for its exercise of a publisher's traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred. The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium.
As the EFF post notes, this does not mean that those who said illegal things are not liable, but "the responsibility lies with the speaker." Having the court issue such a broad order barring speech and pinning the blame on the site for statements of users goes beyond what the law allows.
We were somewhat surprised by Prenda Law, John Steele and Paul Duffy choosing to sue various critics for defamation, and specifically charging Alan Cooper and Paul Godfread with defamation. Cooper, of course, was the home caretaker for some John Steele Properties who discovered that his name was somehow involved in Prenda Law's shell games with (at least) AF Holdings and Ingenuity 13. He eventually sued Prenda claiming that his identity was used without his permission. Following this, as we heard at the big Prenda hearing, Steele started leaving a bunch of voicemails for Cooper, potentially violating ethics rules about directly contacting parties on the other side in a lawsuit. Also, from the voicemails, it seemed clear that the intention was to intimidate Cooper.
As we noted at the time, it would seem that filing these lawsuits would open them all up for significant discovery, which they probably would not like very much. The Prenda and Duffy lawsuits were filed in Illinois, and as we noted, Illinois has a relatively broad anti-SLAPP law. The Steele lawsuit was filed in Florida, though it was quickly dismissed. The two Illinois cases are ongoing, and the two named people sued -- Alan Cooper and his lawyer Paul Godfread -- have now filed their answers to the lawsuit. As is required in such cases, they go through each statement in the original suit, and confirm or deny (mostly deny) the various allegations made. Specifically, they deny making the vast majority of the random comments made on various blog comment systems that the lawsuits accuse them of being a part of.
Following this, they present their defenses, which again all appear to be fairly standard. They don't believe they've done anything illegal, any statements made were true, and thus not defamatory, information about their own lawsuit against Prenda are protected by legal privilege and they argue that it is a SLAPP suit.
They also bring up a whole bunch of counterclaims, and as part of that reveal that the "intimidation" campaign wasn't just limited to Steele calling Cooper, but included Peter Hansmeier's emails with Godfread as well, with the following email revealed to the court, which really highlights Hansmeier's pure hubris.
Dear Mr. Godfread:
My firm has been retained by Livewire Holdings LLC to pursue claims in the U.S. District Court for the District of Minnesota against you and your coconspirators arising from defamation, civil conspiracy and related acts. The alleged acts occurred in e-mail communications and blog posts describing my client as a criminal enterprise. As you know, such statements constitute defamation per se and are, quite frankly, wildly inappropriate. Less-egregious claims have resulted in multi-million dollar judgments, as I trust this one will. The facts of the underlying case are essentially a law school exam hypothetical of every possible variation of libel. Perhaps you can forward my client's complaint to your former professors at William Mitchell. My client is well-aware that you are a major contributor to these blog sites.
The purpose of this e-mail is to inform you of impending litigation so that you preserve all relevant evidence in your possession including, but not limited to, communications between yourself and David Camaratto, Morgan Pietz, Nicholas Ranallo and any other individuals associated directly or indirectly with the sites fightcopyrighttrolls and dietrolldie. Further, any and all other evidence that might
be relevant to this matter must, of course, be preserved.
I suspect that you aligned yourself with these defamatory efforts as a marketing strategy. I don't know if these efforts paid off, but I can assure you that making baseless accusations of criminal conduct is not a wise move for a licensed attorney. All of that being said, my client knows that you didn't work alone in these wrongful efforts. If you think we are missing out on more serious actors in your enterprise my client would be willing to consider decreasing your liability in exchange for information about these individuals. Of course, that interest will disappear if someone else comes forward first. Think it over and let me know. If you're willing to take the fall for whole group then you are decidedly a "true believer."
Welcome to the big leagues.
That sign off line is quite a piece of work, and I'm sure it will go over well in federal court, where it's likely that the judge will have a chance to learn about the case in front of Judge Otis Wright in California. Furthermore, as Ken White points out, that email is most telling for what's not in there:
...please take note of the dog that did not bark in the night. That is, note what the letter does not say. Consider the context. Godfread, on behalf of Cooper, is telling courts that Prenda Law has stolen Cooper's identity, and has filed a lawsuit on that basis. What would you expect in response, if Prenda Law had an answer for that? If I were representing Prenda Law, and had an answer, there is no doubt in my mind I would articulate it. I would say, "As you and Mr. Cooper know, and witnesses will attest, Mr. Cooper was a willing participant in AF Holdings LLC and fully consented to being an officer." Or I might say "You have recklessly and without adequate basis suggested that your client is the Alan Cooper who is an officer of AF Holdings, when even the briefest inquiry would show that AF Holdings is led by the distinguished Alan Cooper of Nevis and St. Kitts." I would say something articulating why Cooper's and Godfread's assertions are false. As I so often say, vagueness in legal threats is the hallmark of thuggery. But Hansmeier says nothing of the sort. He has only adolescent puffed-up threats and insults. What do you think that signifies?
There is one seeming oddity in the response. As we noted Illinois has a decent, though not wonderful, anti-SLAPP law. But rather than rely on that, Cooper and Godfread, instead claim Minnesota's anti-SLAPP law protect them. They're both based in Minnesota, but it's still a little odd. Minnesota's anti-SLAPP law is definitely stronger than Illinois and as White notes, provides "immunity" from such lawsuits.
More importantly, by filing a bunch of counterclaims, Duffy and Prenda cannot easily walk away from this lawsuit, which is probably not the situation that Duffy, Hansmeier, Steele and others really want to be in right now. They've been playing a bullying bluster game all along, and suddenly their bluff is getting called, repeatedly, and they seem to think that if they just keep bullying and bluffing maybe it'll work out in the end. Of course, by the time Judge Wright is done with these guys, these cases in Illinois might not even matter very much...
While we've had a few stories about the "revenge porn" website "IsAnybodyDown," that site was really just a copycat of one of the most popular "revenge porn" websites, called "Is Anyone Up." Back in 2011, On The Media did an interview with Hunter Moore, the creator of Is Anyone Up, in which you learn what a swell human being he is (i.e., not at all). A few months later, however, Moore shut down the site and claimed he was turning over a new leaf. It later came out that he actually sold the domain (but not the content of the site) to a company called ViaView, which ran the anti-bullying website Bullyville. ViaView's President, James McGibney, had apparently been talking to Moore for a while, trying to get him to shut down the site. After buying the domain, McGibney had traffic routed to the Bullyville site.
Months later, for unclear reasons, Moore started going after McGibney and Bullyville online, claiming that McGibney was a pedophile, had failed to report child porn images, and was guilty of a variety of other charges. He also stated, strongly, that he intended to have sex with McGibney's wife. In response, McGibney sued Moore for defamation, represented by Marc Randazza, who has made it something of a personal mission to go after "revenge porn" sites (in case you're unaware, such sites solicit naked photos of people, often from ex-lovers, and then post them online, sometimes with contact info).
Moore failed to officially respond to the lawsuit, despite being served and apparently making it clear he was aware of the lawsuit on Twitter. In response, the judge ruled in favor of McGibney on default judgment, and alsoordered Moore to pay $250,000 in damages, along with legal fees. Of course, getting Moore to actually pay may be difficult, but Randazza has a history of going after the assets of those who refuse to pay out in such cases.
from the free-expression-shouldn't-be-horse-traded dept
For many, many years, we've discussed the problems of UK defamation/libel laws, which basically put the burden on the accused, and are very broadly applied. They've also given rise to cases of "libel tourism," whereby people sue in the UK for statements made online, even if neither party is in the UK. The chilling effects on speech in the UK have been quite massive, with the case about Simon Singh being one of the most prominent. Singh wrote some columns challenging some unsubstantiated claims by the British Chiropractic Association, and got hit with a massive libel suit in response. And since the burden is on Singh to prove it's not defamation, it's an incredibly difficult position to be in. Thankfully, the BCA eventually abandoned that case due to massive negative publicity, but it still highlighted the problems with UK defamation law and how it could be abused to create chilling effects on speech.
Of course, fixing the problem has been a long and ongoing process as well, with various defamation reform packages proposed, but never getting anywhere. It had looked like the latest proposal might finally have a chance of passing... but that may now be scuttled due to a different controversial idea that has been attached to the bill.
As you may recall, after the News Corp. phone hacking scandal, the UK set up a commission on "media ethics" to explore issues related to preventing such scandals from happening again, and tragically, the recommendations included heavy regulation for the press. The rules go way overboard if you believe in freedom of the press, and really seem more designed to prevent rich and famous people from being embarrassed by the press, rather than stop egregious ethics violations.
So, here's the problem. The defamation reform package was moving forward nicely, when some politicians decided to basically lump a "Leveson Amendment" onto the bill, so that the UK is now faced with an unfortunate tradeoff. They could fix the broken defamation laws, but would have to do so at the cost of giving up basic press freedoms. It's unfortunate that UK politicians, apparently led by David Puttnam, have put others in the position of having to make that kind of ridiculous tradeoff. A functioning democracy that believes in free expression should support both a very limited defamation law and protections for a free press. Asking people to trade one for the other is really quite a travesty.
from the perhaps-he's-got-other-things-to-worry-about dept
Today's quite a Prenda Law day around here. While the focus has reasonably been on the upcoming showdown on Monday, where Judge Otis Wright has ordered all of the Prenda players to be in his courtroom on Monday, John Steele has apparently dismissed his defamation case against Alan Cooper, Cooper's lawyer Paul Godfread and a bunch of anonymous commenters who have been mocking Steele mercilessly for months. Perhaps Steele realized that the case would open him up to discovery, which could reveal some things he'd prefer not to reveal to a court. Or, perhaps, he's suddenly realized that he's going to be busy dealing with the fallout from the Wright hearings. Or, perhaps there's another strategy as yet unrevealed. Given Steele's history of searching for and testing out all kinds of loopholes in the hopes that something works, it wouldn't surprise me to find out that this isn't the last we hear concerning this attempt to "out" his critics.