from the zarrelli-school-of-reputation-management dept
Yelp -- both a frequent target of misguided lawsuits and the host of many, many targets of similarly-misguided lawsuits -- has instituted a nifty new flag that lets readers and reviewers know which businesses are issuing legal threats or filing lawsuits over negative reviews. The warning -- pictured below -- first showed up in May after Prestigious Pets went legal over a review it didn't care for.
Dayani, who says he gets plenty of positive and negative feedback on Yelp and is comfortable with both, says the claims by Rohs weren’t simply a negative review. He alleges her comments amount to defamation, and he sued Rohs two days after the review was posted. It’s an accusation the dentist has levied against at least four previous patients who have written negative reviews about his practice, according to a BuzzFeed News review of court records.
Dayani said false negative reviews like Rohs’ have harmed his practice over time. He said he laid off one part-time staff member because of a drop in business.
“[Rohs] accused me of malpractice by saying I didn’t diagnose her,” he said. “When you are publicly accusing someone of malpractice, you are damaging their reputation.”
This is an odd claim, considering Rohs never once uses the word malpractice in her review, or even alleges anything to that effect. She says she endured a very long wait to see Dr. Dayani and, when he finally did see her, he was "curt and dismissive."
Dr. Dayani was curt and dismissive, and seemed annoyed with the way I answered his questions. But he did seem to be genuinely interested in finding out what was causing my pain, and how it can be helped. However, it was an absurdly long wait. After about an HOUR, I was finally seen (my appt was at 11AM). Then after speaking with him for about 5-10 minutes, he left me for "just a second" to deal with another patient... I didn't see him for another half hour. Of the total TWO HOURS FIFTEEN MINUTES I was there, I think I was speaking to Dr. Dayani for about 30 minutes of that whole time. The rest was spent in his chair, without being offered a water or a magazine. And at the end of it all, he couldn't help determine what was bothering me. I left with a mouth full of pain and a recommendation to see my dentist for a possible cavity.
Four lawsuits against four unhappy patients is no way to run a business. Dayani may claim he only goes after those posting "false" information, but his summation of Rohs' complaint against him is so far off-base, it makes one wonder what he considers to be "false."
But more disturbing than his tendency to sue negative reviewers is the offer he made to Buzzfeed News, as pointed out by Adam Steinbaugh.
Dayani insists that he only goes after online reviewers who post false information. He offered BuzzFeed News the opportunity to visit his office and review records related to the cases where he has sued patients to prove their allegations are false. BuzzFeed News declined.
When a medical professional offers to potentially violate HIPAA privacy protections to protect his reputation, it's a pretty good sign the medical professional doesn't have much reputation left to burn. This indicates -- along with the lawsuits -- that Dr. Dayani isn't quite as receptive to criticism as he claims.
The upshot is that Yelp is now publicly calling out businesses who use legal threats and litigation to manage their reputations. It serves as a counterweight to those whose ratings might seem suspiciously high and serve as a warning to those who might be unhappy with their experience, but not quite ready to retain a lawyer.
Copyright is supposed to be a limited-use protection for creative works. The "limited" part went away with endless term extensions and auto-copyright for any creation attached to a "fixed medium." These days, copyright is the magical cure-all that doesn't actually cure anything. It's a weapon to be wielded dishonestly and inelegantly against the ignorant, in hopes of limiting speech to only what IP abusers like.
The case arose from a posting on a gripe site called Ripoff Report that recites a litany of insults and complaints written by Christopher Dupont against Massachusetts lawyer Richard Goren. Goren sued for defamation, and Dupont never showed up to defend the suit, so the court issued a "default judgment" in favor of Goren.1
Here's where things get odd. As part of the default judgment, Goren asked for and received a court order purporting to transfer Dupont's ownership of his copyright in the post to Goren. Goren and his company Small Justice then sued Ripoff Report's parent company Xcentric for copyright infringement.
The default judgment transferring copyright is indeed odd, as it has nothing to do with relief from defamation. The judgment simply should have resulted in a court order directed at Dupont to remove the review. (It's a default judgment so the question of whether or not the review is truly defamatory hasn't been explored, but...)
Ripoff Report isn't really helping matters with its policies. For one, it refuses to take down reviews for almost any reason, while also allowing entities to purchase services like statement retractions and the burial of negative reviews. It also prevents users from deleting posted complaints, presumably to head off legal threats issued by criticized parties. This doesn't do much for users who might delete something when threatened, but it also lets those who issue bogus threats know that this tactic won't work here.
Ripoff Report's copyright claim to the disputed review isn't much better than the lawyer's post-judgment claim. Anyone posting a complaint to Ripoff Report is forced to click through an "agreement" that hands over the rights to the complaint to Xcentric.
Unfortunately, Xcentric's legal theories haven't all been good for users, either: Xcentric claimed that it, in fact, is the true owner of the copyright in content posted to its site, not the users. The argument was based on the fine print to which users "agree" when they post content, which says that Xcentric gains an "exclusive license" to the content. It is a quirk of copyright law that this exclusive license language is actually code for transferring ownership of the copyright.
The EFF and Public Citizen argue against this "agreement," as well as Goren's abuse of IP protections, in its submitted brief [PDF]. In it, they make the point that Xcentric/Ripoff Report have a non-exclusive license to host users' reviews, rather than being in complete control of the content. While this may seem more favorable to the plaintiff and his infringement claim, it also insulates Xcentric from being sued for copyright infringement.
In contrast, users do clearly intend to give Xcentric permission to host the content, and understand that permission cannot be revoked. This is called an irrevocable, non-exclusive license, and in this case granting such a license to Xcentric advances the user's interest in censorship-resistant publishing on Ripoff Report and does not restrict their freedom to repost elsewhere. Therefore, even if Goren did obtain ownership of the copyright, Xcentric would not be liable because it has permission to host the content, and that permission cannot be retracted.
In lay terms, the terms of service are themselves a ripoff.
This explains why Ripoff Report wants the court to bypass any examination of its browsewrap "agreement" when considering the amicus brief, despite the fact that it would help defend it against bogus infringement lawsuits like Goren's.
Abusing IP law is often the path of least resistance. And that is true of Ripoff Report just as much as it is for the aggrieved lawyer.
Those who wish to censor will try to use whatever area of law has the weakest protections for free speech. We encourage the First Circuit and other courts to bolster speech protections in the copyright realm, to resist attempts to dress up other claims as copyright infringement in order to censor speech, and to look askance at clickthrough "contracts" that compromise users' freedom.
In a comment posted yesterday to my blog post last week about an amicus brief that Public Citizen and EFF filed in the First Circuit, Ripoff Report founder Ed Magedson announced that his company is going to modify the browsewrap agreement that it has been imposing on users, whereby the company purported to obtain an exclusive license to carry reviewers’ critical content. This is progress for which that company deserves praise.
Progress, yes. But Xcentric still asserts its control of the copyright, albeit now in nonexclusive form. Magedson claims this control is needed to battle scraper sites, and will never (and has never) been used to go after site users. But Levy is not so sure this "protection" is actually necessary.
Indeed, when I pressed Magedson in a conversation after he made his comment, it seemed to me that the justification for taking copyright was two-fold – that scrapers take traffic from his web site, and that scrapers make it less valuable for companies to buy into the “Corporate Advocacy Program.” Neither of those arguments suggests that there is any reason why the interests of consumers who write reviews on Ripoff Report are advanced by the taking copyright ownership away from them.
Not sure what's going on in California, but it's been suddenly issuing a bunch of really bad rulings concerning Section 230 of the CDA (the most important law on the internet). As we've explained many times, Section 230 says that online services cannot be held liable for actions of their users (and also, importantly, that if those platforms do decide to moderate content in any way, that doesn't impact their protections from liability). This is massively important for protecting free speech online, because it means that platforms don't have to proactively monitor user behavior out of fear of legal liability and they don't feel the need to over-aggressively take down content to avoid being sued.
Over and over again the courts have interpreted Section 230 quite broadly to protect internet platforms. This has been good for free speech and good for the internet overall (and, yes, good for online companies, which is why some are so against Section 230). But, as we've been noting, Section 230 has been under attack in the past year or so, and all of a sudden courts seem to be chipping away at the protections of Section 230. Last week we wrote about a bad appeals court ruling that said Section 230 did not protect a website from being sued over failing to warn users of potential harm that could come from some users on the site. Then, earlier this week, we wrote about an even worse ruling in San Mateo Superior Court (just a block away from my office...) exempting publicity rights from Section 230.
And now, Eric Goldman points our attention to an even worse ruling coming out of California state's appeals court for the First Appellate district. In this ruling, the court determines that Yelp can be forced to delete reviews that the court found defamatory (though entirely based on a default judgment, where the defendant didn't show up in court). In previous cases most courts have found that even if content is found to be defamatory, a third party website cannot be forced to delete it, because of the pesky First Amendment.
In this case, the court doesn't care. The background of the case involves a lawyer, Dawn Hassell, who sued a former client, Ava Bird, who allegedly posted negative reviews of Hassell's work. Hassell sued, Bird ignored, and the court ruled for Hassell as a default judgment. As part of this it also ordered Yelp to remove the reviews. Yelp protested. The court then twists itself into all kinds of questionable knots to ignore both Section 230 and the First Amendment. The court first questions whether or not Yelp can even make the First Amendment argument, seeing as it's also claiming that it's not the author of the content in question. Of course, that totally misses the point: it's not necessarily just about the content in the review, but also Yelp's First Amendment rights in presenting content on its website.
In order to claim a First Amendment stake in this case, Yelp characterizes itself as a publisher or distributor. But, at other times Yelp portrays itself as more akin to an Internet bulletin board—a host to speakers, but in no way a speaker itself. Of course, Yelp may play different roles depending on the context. However, in this context it appears to us that the removal order does not treat Yelp as a publisher of Bird’s speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews.
But, uh, the administrator of a forum still has separate First Amendment rights in determining how they present things in their forum. That's kind of how it works. As Eric Goldman notes:
What the hell is an “administrator of the forum,” and what legal consequences attach to that status? We’re not talking about the free speech rights of a janitor with a mop. This case involves a curator of speech–and even if the curator is just “administrating,” telling a curator how to administrate raises significant speech interests that deserve more respect than this court gave it.
The court then suggests that the First Amendment doesn't apply because Yelp has no right to question a court.
To the extent Yelp has ever meant to contend that an injunction requiring Bird to remove defamatory statements from the Internet injuriously affects Yelp, we disagree. Yelp’s claimed interest in maintaining Web site as it deems appropriate does not include the right to second-guess a final court judgment which establishes that statements by a third party are defamatory and thus unprotected by the First Amendment.
Yikes! That of course, ignores the actual issue at play -- especially the fact that the finding of defamation was on default, rather than through an actual adversarial process.
But the really scary part is how the court gets around Section 230. Goldman refers to it as "jujitsu" and that's a pretty apt analogy:
Yelp argues the authority summarized above establishes that the removal order is void. We disagree. The removal order does not violate section 230 because it does not impose any liability on Yelp. In this defamation action, Hassell filed their complaint against Bird, not Yelp; obtained a default judgment against Bird, not Yelp; and was awarded damages and injunctive relief against Bird, not Yelp.
Okay... but then it's ordering Yelp to remove the reviews, despite being a non-party. And if Yelp does not remove the reviews, then it's in contempt of court, which means that yes, the court is absolutely applying liability. But, no, says the court, because [reasons].
If an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp. Violating the injunction or the removal order associated with it could potentially trigger a different type of liability which implicates the contempt power of the court.
Got that. It's not liability because it's "a different type of liability." WHAT?!? Where in the law does it say that "a different type of liability" (with no clear definition) is allowed? The court clarifies by muddying the waters some more:
In our opinion, sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not impose liability on Yelp as a publisher or distributor of third party content.
This makes no sense at all.
Separately, the court keeps relying on the fact that Yelp itself was not sued by Hassell, and that all other cases involved service providers that were parties to the case. But that leads to ridiculous results:
As we have pointed out, Hassell did not allege any cause of action seeking to hold Yelp liable for Bird’s tort. The removal order simply sought to control the perpetuation of judicially declared defamatory statements. For this reason, Yelp seriously understates the significance of the fact that Hassell obtained a judgment which establishes that three reviews Bird posted on Yelp.com are defamatory as a matter of law, and which includes an injunction enjoining Bird from repeating those three reviews on Yelp.com. Indeed, that injunction is a key distinction between this case and the CDA cases that Yelp has cited, all of which involved allegations of defamatory conduct by a third party, and not a judicial determination that defamatory statements had, in fact, been made by such third party on the Internet service provider’s Web site.
But under that standard, the court has just offered up a huge hole to avoid Section 230: just don't name the service provider, and then you can force the service provider to take down the content. If that stands, very bad things will happen as a result. As Goldman points out in response to this, the court is simply wrong:
So the court is flat-out wrong. While I believe it’s correct that none of the cases were posed as contempt proceedings, the actions in both Blockowicz and Giordano also came after lower court findings of defamation. And in any case, WTF? Is the court saying that Section 230 preempts a direct lawsuit against a UGC site seeking injunctive relief, but it’s totally OK to reach the same result by not naming the UGC site in the lawsuit and then enforcing an injunction via contempt proceedings?
Goldman goes on to note how this ruling will create all kinds of mischief opportunities:
Step 1: sue the content poster for defamation in California state court. Do not sue the UGC site because (a) they are immune under Section 230, or (b) they might decide to fight substantively.
Step 2: take advantage of loose service of process rules and or otherwise hope the poster doesn’t appear in the case. For example, non-California residents aren’t likely to fight in a California court even if they get notice.
Step 3: get a default judgment finding defamation. If the user does make an appearance, a stipulated judgment with the user could reach the same result.
Step 4: seek an injunction requiring removal by the UGC site. Once the judge accepts the service of process and concludes the defendant didn’t show, the judge will probably do just about whatever the plaintiff asks. With the default judgment, the plaintiff can then use the coercive effect of contempt to force the UGC site to remove the content so long as the UGC site is under California’s jurisdictional reach–which most UGC sites are.
Voila! A right to be forgotten in the US, despite the First Amendment and Section 230.
As an added bonus, in the same lawsuit, the plaintiff can target multiple items of unwanted content by claiming it’s also written by the defendant or someone working in concert with the defendant. For example, I don’t believe it was ever confirmed that Birdzeye and JD are the same person, but consistent with the less-stringent approach deployed by judges when faced with default proceedings, the court treats both reviews as if the author(s) of the opinions was in court. If, in fact, JD is a different person, then Hassell successfully scrubbed JD’s content without ever suing the actual author or serving proper notice on the author. As you can see, there’s a great collateral damage potential here.
Goldman also warns that this ruling may not be easy to overturn. Yelp can (and should) appeal to the state Supreme Court, but there's no guarantee it will take the case. There are legislative solutions, but those are unlikely as well. But for the time being, this ruling is a ticking time bomb. It can and will be abused. We see so many attempts to censor content by abusing copyright law, and now California has given people a playbook for how to abuse defamation law to do the same thing.
Burned by negative reviews, some health providers are casting their patients' privacy aside and sharing intimate details online as they try to rebut criticism.
In the course of these arguments -- which have spilled out publicly on ratings sites like Yelp -- doctors, dentists, chiropractors and massage therapists, among others, have divulged details of patients' diagnoses, treatments and idiosyncrasies.
One Washington state dentist turned the tables on a patient who blamed him for the loss of a molar: "Due to your clenching and grinding habit, this is not the first molar tooth you have lost due to a fractured root," he wrote. "This tooth is no different."
In California, a chiropractor pushed back against a mother's claims that he misdiagnosed her daughter with scoliosis. "You brought your daughter in for the exam in early March 2014," he wrote. "The exam identified one or more of the signs I mentioned above for scoliosis. I absolutely recommended an x-ray to determine if this condition existed; this x-ray was at no additional cost to you."
And a California dentist scolded a patient who accused him of misdiagnosing her. "I looked very closely at your radiographs and it was obvious that you have cavities and gum disease that your other dentist has overlooked. ... You can live in a world of denial and simply believe what you want to hear from your other dentist or make an educated and informed decision."
Health professionals are adapting to a harsh reality in which consumers rate them on sites like Yelp, Vitals and RateMDs much as they do restaurants, hotels and spas. The vast majority of reviews are positive. But in trying to respond to negative ones, some providers appear to be violating the Health Insurance Portability and Accountability Act, the federal patient privacy law known as HIPAA. The law forbids them from disclosing any patient health information without permission.
Yelp has given ProPublica unprecedented access to its trove of public reviews -- more than 1.7 million in all -- allowing us to search them by keyword. Using a tool developed by the Department of Computer Science and Engineering at the NYU Polytechnic School of Engineering, we identified more than 3,500 one-star reviews (the lowest) in which patients mention privacy or HIPAA. In dozens of instances, responses to complaints about medical care turned into disputes over patient privacy.
The patients affected say they've been doubly injured -- first by poor service or care and then by the disclosure of information they considered private.
The shock of exposure can be effective, prompting patients to back off.
"I posted a negative review" on Yelp, a client of a California dentist wrote in 2013. "After that, she posted a response with details that included my personal dental information. … I removed my review to protect my medical privacy."
The consumer complained to the Office for Civil Rights within the U.S. Department of Health and Human Services, which enforces HIPAA. The office warned the dentist about posting personal information in response to Yelp reviews. It is currently investigating a New York dentist for divulging personal information about a patient who complained about her care, according to a letter reviewed by ProPublica.
The office couldn't say how many complaints it has received in this area because it doesn't track complaints this way. ProPublica has previously reported about the agency's historic inability to analyze its complaints and identify repeat HIPAA violators.
Deven McGraw, the office's deputy director of health information privacy, said health professionals responding to online reviews can speak generally about the way they treat patients but must have permission to discuss individual cases. Just because patients have rated their health provider publicly doesn't give their health provider permission to rate them in return.
"If the complaint is about poor patient care, they can come back and say, 'I provide all of my patients with good patient care' and 'I've been reviewed in other contexts and have good reviews,' " McGraw said. But they can't "take those accusations on individually by the patient."
McGraw pointed to a 2013 case out of California in which a hospital was fined $275,000 for disclosing information about a patient to the media without permission, allegedly in retaliation for the patient complaining to the media about the hospital.
Yelp's senior director of litigation, Aaron Schur, said most reviews of doctors and dentists aren't about the actual health care delivered but rather their office wait, the front office staff, billing procedures or bedside manner. Many health providers are careful and appropriate in responding to online reviews, encouraging patients to contact them offline or apologizing for any perceived slights. Some don't respond at all.
"There's certainly ways to respond to reviews that don't implicate HIPAA," Schur said.
In 2012, University of Utah Health Care in Salt Lake City was the first hospital system in the country to post patient reviews and comments online. The system, which had to overcome doctors' resistance to being rated, found positive comments far outnumbered negative ones.
"If you whitewash comments, if you only put those that are highly positive, the public is very savvy and will consider that to be only advertising," said Thomas Miller, chief medical officer for the University of Utah Hospitals and Clinics.
Unlike Yelp, the University of Utah does not allow comments about a doctor's medical competency, and it does not allow physicians to respond to comments.
In discussing their battles over online reviews, patients said they'd turned to ratings sites for closure and in the hope that their experiences would help others seeking care. Their providers' responses, however, left them with a lingering sense of lost trust.
Angela Grijalva brought her then 12-year-old daughter to Maximize Chiropractic in Sacramento, Calif., a couple years ago for an exam. In a one-star review on Yelp, Grijalva alleged that chiropractor Tim Nicholl led her daughter to "believe she had scoliosis and urgently needed x-rays, which could be performed at her next appointment. … My daughter cried all night and had a tough time concentrating at school."
But it turned out her daughter did not have scoliosis, Grijalva wrote. She encouraged parents to stay away from the office.
Nicholl replied on Yelp, acknowledging that Grijalva's daughter was a patient (a disclosure that is not allowed under HIPAA) and discussing the procedures he performed on her and her condition, though he said he could not disclose specifics of the diagnosis "due to privacy and patient confidentiality."
"The next day you brought your daughter back in for a verbal review of the x-rays and I informed you that the x-rays had identified some issues, but the good news was that your daughter did not have scoliosis, great news!" he recounted. "I proceeded to adjust your daughter and the adjustment went very well, as did the entire appointment; you made no mention of a 'misdiagnosis' or any other concern."
In an interview, Grijalva said Nicholl's response "violated my daughter and her privacy."
"I wouldn't want another parent, another child to go through what my daughter went through: the panic, the stress, the fear," she added.
Nicholl declined a request for comment. "It just doesn't seem like this is worth my time," he said. His practice has mixed reviews on Yelp, but more positive than negative.
A few years ago, Marisa Speed posted a review of North Valley Plastic Surgery in Phoenix after her then–3-year-old son received stitches there for a gash on his chin. "Half-way through the procedure, the doctor seemed flustered with my crying child. ...," she wrote. "At this point the doctor was more upset and he ended up throwing the instruments to the floor. I understand that dealing with kids requires extra effort, but if you don't like to do it, don't even welcome them."
An employee named Chase replied on the business's behalf: "This patient presented in an agitated and uncontrollable state. Despite our best efforts, this patient was screaming, crying, inconsolable, and a danger to both himself and to our staff. As any parent that has raised a young boy knows, they have the strength to cause harm."
Speed and her husband complained to the Office for Civil Rights. "You may wish to remove any specific information about current or former patients from your Web-blog," the Office for Civil Rights wrote in an October 2013 letter to the surgery center.
In an email, a representative of the surgery center declined to comment. "Everyone that was directly involved in the incident no longer works here. The nurse on this case left a year ago, the surgeon in the case retired last month, and the administrator left a few years ago," he wrote.
Reviews of North Valley Plastic Surgery are mixed on Yelp.
Health providers have tried a host of ways to try to combat negative reviews. Some have sued their patients, attracting a torrent of attention but scoring few, if any, legal successes. Others have begged patients to remove their complaints.
Jeffrey Segal, a one-time critic of review sites, now says doctors need to embrace them. Beginning in 2007, Segal's company, Medical Justice, crafted contracts that health providers could give to patients asking them to sign over the copyright to any reviews, which allowed providers to demand that negative ones be removed. But after a lawsuit, Medical Justice stopped recommending the contracts in 2011.
Segal said he has come to believe reviews are valuable and that providers should encourage patients who are satisfied to post positive reviews and should respond -- carefully -- to negative ones.
"For doctors who get bent out of shape to get rid of negative reviews, it's a denominator problem," he said. "If they only have three reviews and two are negative, the denominator is the problem. ... If you can figure out a way to cultivate reviews from hundreds of patients rather than a few patients, the problem is solved."
from the 'this-will-end-the-criticism-once-and-for-all!' dept
Copyright: for when you just don't feel like being criticized. (Currently available for periods up to, and including, seventy years past your death!)
Matt Hosseinzadeh, a.k.a. "Matt Hoss," a.k.a. "Bold Guy," a.k.a. "Horny Tony," runs a moderately successful YouTube channel containing his moderately well-done videos of his "characters" performing feats of pickup artistry and parkour. It's all fairly ridiculous, but considering the depths pickup artists can plumb, the HossZone videos are actually fairly tame.
According to H3H3, it all began with a demand for the removal of the video and $3,750 in legal fees racked up so far by Hoss's lawyer. From there, it got stupider. After failing to secure instant capitulation, HossZone's lawyer altered the terms of the deal. ("Pray I don't alter it stupider...") H3H3 could avoid paying any money by apologizing via their channel for misappropriating Hoss's "art," say some nice stuff about him in their apology video, and throw additional compliments HossZone's way for a period of no less than 60 days. (I am not kidding. Watch the video above.)
H3H3 refused to do so, so Hoss has now filed a copyright infringement lawsuit against Ethan and Hila Klein. Hoss also hit H3H3 with a copyright strike, despite the fact that the video central to the complaint had been set to "private" shortly after his lawyer began issuing legal threats.
Unlike others who have sought to abuse copyright to censor critics, Hoss appears to have his end of it pretty much nailed down. He has a valid, registered copyright that predates the H3H3 reaction video and his complaint isn't filled with vagues assertions about ethereal property and even vaguer assertions about how it's been violated.
That being said, detailed allegations aren't always credible allegations. It appears that fair use is still misunderstood by a great deal of the population, including those representing plaintiffs in copyright infringement lawsuits. From the complaint:
On or about February 15, 2016, Defendants published a video on their YouTube channel that copied and displayed virtually all of Mr. Hoss’s original Work (the “Infringing Video”).
The Infringing Video features the Defendants purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop in the Defendants’ “comedy routine.”
Contrary to what Hoss's lawyer implies here, there is nothing in caselaw that forbids the use of "virtually all" of a work under fair use. Judges and juries may be more sympathetic if you don't, but this does not automatically make a work infringing, rather than fair use.
The 13 minute h3h3 productions video in questionuses about three minutes of HossZone’s skit, while the rest of the video features Ethan and Hila talking about the setting, script, character development, and even the costume design used by HossZone. They also talk about random things pertaining to their life, as most vlogs of theirs do.
The original video runs 5:25, so H3H3 used a little more than half of it, but that half only makes up about a third of the total reaction video runtime. Not that all this math makes much of a difference when fair use is raised as a defense, but it does serve two purposes: it illustrates there was a great deal of commentary surrounding Hoss's content and it appears to contradict the claims made by the plaintiff.
The Infringing Video was created and published without license from Mr. Hoss in direct violation of Mr. Hoss's exclusive rights as an author pursuant to 17 U.S.C. § 106.
Fair use does not require the obtaining of a license from a copyright holder (no matter what Sony Music claims...) because that's exactly what "fair use" is: the use of copyrighted works in a non-infringing way.
The Infringing Video does nothing to alter the original Work with new expression, meaning, or message
The Infringing Video fails to contribute a single substantive comment, criticism, or even parody to or of the original Work.
These are opinions, not factual assertions. The court will determine how substantive Hoss's take on H3H3's video is, but even those standing far outside of the IP-wonk circle can plainly see these are purely subjective statements.
Aside from the fact, as described in greater detail above, that the Infringing Video does not constitute a transformative fair use, it is also the fact that the Defendants operate the Ethan and Hila YouTube channel, where they published the Infringing Video, as an entertainment channel via which the Defendants generate advertising revenues.
People make money from fair use all the time. This argument has been debunked so often, it should ingrained in the mind of any decent IP lawyer.
What's interesting about this lawsuit is that HossZone also accuses H3H3 of filing a "false" DMCA counter notification in response to Hosszone's takedown request.
On or about April 26, 2016, the Defendants submitted to YouTube a counter notification, pursuant to 17 USC § 512(g)(3), affirming under penalty of perjury that the Infringing Video was improperly removed because it was, among other reasons, a fair use and “noncommercial.”
And if it's Hoss's takedown that delivered a strike to H3H3's account is determined to be bogus, what then? Still going to go HAM on the "perjury" angle?
Hoss's lawyer seems to take particular issue with the possibility that the Klein's may have received ad revenue from their reaction video. In addition to claiming YouTube's third-party advertising makes any uploaded video a "commercial" product, the attorney claims that most of H3H3's popularity is due to Hoss's talent and inherent likability, rather than the commentary added to the video or the rest of H3H3's video productions.
Upon information and belief, the Defendants have unfairly derived profit from the Infringing Video in the form of their YouTube channel, which generates advertising revenue, increasing in popularity during the two-month period that the Infringing Video was displayed.
Upon information and belief, the Defendants’ YouTube channel more than doubled its number of subscribers due, at least in part, to the popularity generated by the Infringing Video.
The lawsuit also claims that Hoss is so charismatic his 3-minute appearance in a video mocking him somehow resulted in the Kleins being able to generate income from Patreon and Kickstarter.
All in all, it's a fairly ridiculous lawsuit which is made worse by its apparent motivation: to remove something Matt Hoss doesn't like from the internet. Even if this somehow works out for the parkouring pickup artist, the battle is already lost. A supporter of the Kleins set up a fundraiser for their legal defense, which amassed over $100,000 in under 24 hours. Meanwhile, what's left of Matt Hosszone's web presence is being savaged by dozens of angry commenters -- most of it far more brutal than anything the Kleins said during their criticism of his video.
Here we go again: intellectual property laws being abused to silence critics. In this case -- which resembles the tactics exposed by Pissed Consumer recently -- bogus copyright claims contained in bogus DMCA notices are being used to remove negative reviews from websites.
[Annabelle] Narey, who is the head of programme at an international children’s charity, had turned to London-based BuildTeam for a side return extension, but almost six months later, the relationship had turned acrimonious. The build, which was only supposed to take 10–14 weeks, was still unfinished, she wrote. “On Christmas day a ceiling fell down in an upstairs bedroom,” she says, apparently due to an issue with the plumbing. “Mercifully no one was hurt. [That] there seem to be so many glowing reports out there it is frankly curious. Proceed at your own risk,” the review concluded.
BuildTeam disputes her account. In a letter sent to Mumsnet, which the site passed on to Narey, the builders complained that the comments were defamatory. They say it is “untrue” that the ceiling fell down due to an issue with plumbing, and cited a total of 11 statements they claimed were defamatory.
Mumsnet refused to remove the post, so BuildTeam decided to start harassing Narey at her home, showing up with printouts of the negative review and asking for it to be taken down. BuildTeam's reps refused to discuss Narey's accusations or verify for themselves the damage allegedly caused by their work. They were only interested in the removal of the review.
More unsatisfied customers joined Narey's thread at Mumsnet. So, BuildTeam decided to nuke the entire thread from orbit by abusing the DMCA process and IP laws meant to protect artistic endeavors, not shoddy construction work.
As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure.
But there was no copyright infringement. The DMCA notice links back to a bogus site created solely for the purpose of posting the review BuildTeam wanted removed, backdating it so it appeared to predate Narey's complaint, and use that post as the basis of a bogus takedown request.
The website crafted for the purpose of crafting bogus takedown requests follows the same M.O. we've seen elsewhere: random bits of content are scraped to create the appearance of a legitimate website. After that, the reviews companies/individuals want to see vanished are mixed in and DMCA notices issued.
I'm upset at finding out my article was copied without my permission starting at "Do not be taken in by the slick facade this company presents to the public", word for word, till the very end. My name was also removed from the post, and now it looks like it's not mine. I flagged the post and mentioned that it was stolen, but they did not remove it (about a month passed). At least I want it to be removed from Google. Thank you
As the Guardian's Alex Hern points out, there is no "Douglas Bush."
The post, headlined “Buildteam interior designers” was backdated to September 14 2015, three months before Narey had written it, and was signed by a “Douglas Bush” of South Bend, Indiana. The website was registered to someone quite different, though: Muhammed Ashraf, from Faisalabad, Pakistan.
BuildTeam denies having anything to do with Ashraf, Bush, the bogus website, or its bogus DMCA takedown notice -- a statement that deserves no more credibility than "Douglas Bush" himself. This sort of thing does not happen in a vacuum. It may be that BuildTeam has created plausible deniability by placing a series of intermediaries between it and this bogus DMCA takedown, but it's no coincidence that a review it wanted removed badly enough it sent reps to Narey's house has now been destroyed by a scraper site doing double duty as a half-assed reputation management service.
Many of you likely know about Glassdoor.com, which is a website used by both employers and propsective employees for recruiting, job applications and reviews of companies by former employees as to what it's like to work at a given company. As with any source of crowdsourced reviews, it is not without its pitfalls and controversy, but most of that has to do with different methods by which companies and former employees try to promote or slam a partricularly workplace with anonymous reviews. Anyone who has done job placement research, however, knows how valuable the site is.
Yet the use of anonymous reviews, as is typical of other sites, breeds discontent amongst some. Typically you will hear complaints from companies being reviewed negatively about these anonymous reviews being unfair, untrue, or ginned up by a limited number of ex-employees. That's usually the end of it. Occasionally, however, you get a company that wants to sue over reviews like this. California law firm Layfield & Barrett is apparently one such firm.
California trial attorney Philip Layfield, joined by his firm, has filed a defamation claim against 25 John Does over anonymous comments they left online about Layfield, his current firm of Layfield & Barrett, and his former firm of Layfield & Wallace. Our network of tipsters is mighty, and we’ve gotten our hands on a third-party subpoena served upon Glassdoor.com, a jobs and recruiting website, that allows users to post anonymous reviews of places they are current or former employees of, in order to provide an assessment of the working environment for job seekers. The subpoena seeks the identifying information of several users who have taken to this anonymous online forum to complain about their allegedly miserable work.
You can see the full subpoena below, but it does indeed seem that some of the reviews left for the firm were quite nasty. Titles for some of the posts include "Deceptive, Unethical, Poorly Managed, No Sense Of Direction," "Working Here is Psychological Torture," and my personal favorite "For the love of God, do NOT work here." One can understand why an employer would be unhappy about the existance of these reviews.
Suing over them, however, is likely to be as feeble as it is misguided. This is typically the part of the post where we talk first about the difficulty of suing successfully over these types of opinion-based reviews, move on to then talk about the importance of sites like Glassdoor.com honoring its users' anonymity, before finally coming around to explain that the Streisand Effect will now take hold of this whole thing, with the lawsuit serving mostly to catapult the negative opinions the firm disliked into the forefront of more people's minds than otherwise would have been. And that would usually be the end of the post.
That is not the end of this post, in part because Glassdoor has promised to fight the attempt to out its anonymous contributors, but even more so because Philip Layfield agreed to comment on the story for Above The Law, and Oh. My. God.
With respect to the lawsuit filed, here is the reality. Our law firm has approximately 150 employees and 35 attorneys. We demand the best of the best. Many people lie about their skills, their experience and their desire to be the best when the interview. We pay top dollar for candidates and many of our attorneys earn in excess of $1 million per year. When people are lazy or incompetent, they either quit because the writing is on the wall or they are terminated. Unfortunately, most of those people are unwilling to recognize their shortcomings and they turn to anonymous blogs to spit their venom. The reality is that they should be upset with their parents for raising lazy and incompetent young adults, but they choose to spew false information on blogs such as Glassdoor. The majority of these posts contain blatantly false information. We are going to obtain the identities of these cowards and bring them to justice.These people are going to have to answer for their conduct and we will shine a light on this very cowardly practice that has become an epidemic. People need to realize that just because you are sitting anonymously behind a keyboard, you can’t break the law. Ultimately, future employers will have to decide whether they want to employ people who post false and hateful information about former employers. The same way that Glassdoor operates as a hate forum for disgruntled employees, employers have a right to know information about job applicants.
Unfortunately, most employers are too busy to spend time posting negative information about former employees on job sites, although that would probably do a lot of good for society. For example, I would love to post information about employees who graduated law school, but can’t put two sentences together, or those that are sick at least one day every week.
We will not give any further comments until the case is over.
Imagine yourself for a moment as someone who was willing to give Layfield and his firm the benefit of the doubt thus far. Are you any longer? Probably not. This comment does nothing to verify the accuracy of the complaints at Glassdoor, but it does solidify them in the mind to some degree, does it not? In addition to the demeaning nature with which Layfield addresses his former employees, the aggrandizing tone with which he describes his own firm, and his silly labeling of Glassdoor as a hate forum, he does us all a service by outlining his desire to have employers act every bit as vindictively towards former employees as he complains about in reverse. That kind of delicious hypocrisy isn't in rare supply, of course, but that doesn't make it any less scrumptious to behold.
And, to the previous point, whatever Streisand-y Effect might have resulted from the legal action the firm had already taken will now be supercharged by this boorish comment at a well-read legal industry blog. And here at Techdirt. Any likely many other places as well. If the goal was to make the firm a more attractive place to work, it's difficult to think of a better strategy than this to achieve the opposite.
There are lots of dumb ways for companies to combat online critics. You can simply claim copyright over the criticism as a way to try to silence it, although that tends to end poorly for the silencer thanks to public backlash. You can go to the court to ask for an injunction against the critic as a way to try to silence it, although that tends to end poorly for the silencer thanks to the Streisand Effect. Or you can ask the courts to test whether the criticism amounts to defamation, although, again, The Streisand Effect, the public backlash, and the fact that those types of suits are rarely successful.
This story is an extended example of the last of those, with game developer Digital Homicide deciding to file suit against game critic Jim Sterling to the tune of ten million dollars, all because Sterling's shtick is to post online reviews mocking what he considers to be crappy video games.
Digital Homicide claims Sterling, whose real name is James Stanton, has "falsely accused [Digital Homicide] and caused damage" to the company. According to court documents, the company is asking for $2.26 million in direct product damage; $4.3 million in emotional, reputational, and financial distress; and $5 million in punitive damage requests. That adds up to $10.76 million, and it's nothing to scoff at.
The claims are, frankly, ludicrous, but they're the kind you occasionally see leveled against an online critic. As most of you will know, the claims being made will typically need to be shown to have been willfully fallacious to get past what will surely be Sterling's defense, that his criticism is either his opinion or that it is valid, or both. The monetary damages asked for are equally silly. The only real potential meat to this whole thing is the accusation that Sterling falsely accused Digital Homicide of committing offenses or crimes.
In an article titled "Digital Homicide And The Case Of The Sockpuppet Developers," Sterling remarked that another Digital Homicide game, Galactic Hitman, had artwork taken from elsewhere. Specifically, it may have been lifted from an artist on DeviantArt. Sterling later edited the piece to say it "may" have been purchased from Shutterstock, an online repository of media. In the lawsuit, Digital Homicide presented a July 2015 receipt for a Shutterstock subscription.
As Sterling dug into other companies Digital Homicide was connected to, he discovered that the people behind the studio had also started a company called ECC Games, which seemed to take its name from a different game publisher in Poland. Digital Homicide points to a line in Sterling's article where he argued it could lead to "potential legal trouble for folks who rebranded and accidentally defamed a completely different studio." In the piece, Sterling spoke with the Polish publisher, who said it had "already taken legal actions."
In other words, you have a commentator or critic raising the issue of potential legal issues, while not directly claiming them to exist as a matter of certainty. That couching language is likely going to mean that the false accusation portion of the suit will fail, as there's very little difference between how Sterling discusses this and how any media outlet deals with the existence of potential criminal or civil actions.
And that's really all a side show, because the fact is that Digital Homicide appears to be chiefly angry about the criticism of its games as leveled by Sterling.
The drama began when Sterling published a 10-minute video of Digital Homicide's first-person shooter Slaughtering Grounds in November 2014, dubbing it the "new" worst game of 2014 "contender" and a game where "the awfulness just doesn't stop." The game did not get much attention outside of Sterling's videos; in fact, one of Sterling's critical videos is the second Google result for Slaughtering Grounds and the first result when you do a search on YouTube. In response to this criticism, Digital Homicide published two videos — both removed, though archived on Sterling's channel — where the developers call Sterling "a fucking idiot" and accuse him of not playing the game correctly.
In another — again, now deleted — post, Digital Homicide explained its position.
"In the sole instance of Jim Sterling's 'Squirty Play' video," said the developer, "We find the usage of the terms 'WORST GAME OF 2014 CONTENDER!' and 'Absolute Failure' to describe the entirety of our product while not actually evaluating it in its entirety unfair and unreasonable use of our copyright material. While the reader may disagree with our claim, we believe the unbiased perspective of a court will agree there has been a violation of our copyright and for this reason we will be pursuing an attorney and proceeding with our complaint."
That last bit had originally come along with a DMCA takedown of Sterling's review, but Sterling appealed the takedown to YouTube, which put the video back up, because the claim that this kind of criticism is copyright infringement is insane.
So, how's everyone in the public reacting to the DMCA takedowns and the lawsuit? Well, Digital Homicide had put up a crowdsourcing site to fund its legal efforts against Sterling, but had to take it down because of the sheer number of people trolling the page. The press, meanwhile, is reporting on this issue, and not in a manner favorable to Digital Homicide. In true Streisand Effect form, Sterling's reviews are spreading as a result, and Digital Homicide comes off looking petty.
In other words, they had better win that ten million dollars, because it doesn't sound like the public is going to be happily buying their games at the same volume as they did before all this nonsense began.
from the or,-how-to-make-one-opinion-REALLY-MATTER dept
An anti-SLAPP win has just been handed down in Nevada, one of the few states with a strong anti-SLAPP law. At the center of the failed defamation lawsuit is (you guessed it) a negative review of a business posted at Yelp.
Pamela Boling (represented by Marc Randazza) hired IQTaxx to prepare her taxes, including the filing of a hardship notice. IQTaxx failed to do so. Boling tried to speak to the company about its failure to file the hardship paperwork, but after several attempts she was routed to a third-party number which informed her that the tax preparer's number was no longer in service.
Boling turned to Yelp and left a review detailing her experience with the company. Her review was headlined "This is MALPRACTICE!" Shortly thereafter, IQTaxx sent a cease-and-desist to Boling over her "exaggerated emotional rant review" -- wording it should have known would be fatal to its claims of defamation. Defamation does not cover exaggerations or emotional rants, but rather false statements purporting to be facts.
The court finds the company has failed to satisfy both prongs of Nevada's anti-SLAPP test. Not only that, but it has failed in pretty much all respects when it comes to pursuing a libel suit.
There is no dispute that Yelp is a well-known public forum. and Defendant has provided evidence that her allegedly defamatory statements were not made with knowledge of their falsity. Plaintiff failed to provide evidence tending to show that Defendant knew her statements were false when she made them. Defendant thus made the statements at issue in good faith under NRS 41.637(4). Defendant proved by a preponderance of the evidence that her statements were on a matter of public interest, in a public forum, and were made without knowledge of their falsity.
As for the second prong -- prevailing on the suit's merits -- the court similarly finds almost nothing to work with.
Plaintiff has failed to meet its burden under NRS 41.660(3)(b). Statements of opinion and rhetorical hyperbole are not actionable, as Supreme Court precedent establishes that "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, 418 US. 323, 339-40 (1974).
In other words, the Supreme Court has said the best defense against speech one doesn't like is more speech, not lawsuits.
The court adds that the context of the disputed assertions also plays a significant part in its interpretation.
Context is vitally important in determining whether a reasonable person is likely to view a statement as one of fact, or one of protected opinion or rhetorical hyperbole. The context of Defendant's statements is Yelp, a well-known online forum for consumer reviews. The Internet is the modern equivalent of the soapbox on the sidewalk, and web sites such as Yelp are the type of public forum that is protected under the First Amendment.
The public has become accustomed to seeing fiery rhetoric on online fora, and courts recognize that this context makes it less likely that a reader will interpret statements published in such places as actionable statements of fact.
The court then notes that IQTaxx's sole claim basically doomed its lawsuit from the start.
Plaintiff only asserts that the statement "This is MALPRACTICE!" is defamatory, meaning that only Defendant's September 11, 2015 Yelp review is properly considered in determining whether Plaintiff has met its burden. The statement "This is MALPRACTICE!" with the term "malpractice" in all capital letters and with an exclamation mark, in the context of a Yelp review, is a protected statement of rhetorical hyperbole that cannot make out a claim for defamation.
Defendant's statements are protected statements of emotional hyperbolic opinion. The average Yelp user would not read the statement "This is MALPRACTICE!" with the central term in all capital letters and with an exclamation mark as a carefully considered legal opinion.
IQTaxx must now pay Boling $1,000 in statutory damages, and the person it tried to sue in shutting up can also go after it for legal fees. The tax preparer has several options available to address the negative review, but chose the one that hurt it the most. Rather than just being known for questionable customer service, the company is now known for suing critics and losing badly.
Nothing pushes a negative review of your product out of the public eye faster than a lawsuit, am I right? That's the line of thinking Enigma Software has chosen to entertain. It recently filed a lawsuit against BleepingComputer, alleging that its 2014 "review" (actually a forum post detailing Enigma's SpyHunter history as "rogue" software and the deceptive business practices the company has deployed) is defamatory.
Enigma Software claims in its lawsuit that BleepingComputer has the negative SpyHunter review because it takes part in an affiliate advertising program which grants BleepingComputer a commission for redirecting users to Malwarebyte’s site. The Enigma Software Group claims, “Bleeping not only has unlawfully benefited from its smear campaign to the detriment of ESG, it has damaged the reputation of ESG by refusing to take down its false and misleading statements which have been reposted numerous times on other anti-spyware related forums and websites.”
The content is provided by the volunteer efforts of security professionals and the more than 700,000 registered users who ask and answer all questions presented on the site. To summarize, Bleeping Computer is a valuable resource in the efforts to help users live in a malware free world.
Over at CSO's Salted Hash, Steve Ragan points out the reputation Enigma claims BleepingComputer is destroying has already been severely damaged by the company's own actions over the years.
[T]he lawsuit says, "Bleeping has a direct financial interest in driving traffic and sales to Malwarebytes and driving traffic and sales away from ESG."
While that claim is true at face value, the affiliate programs used by Bleeping Computer help keep the website online and they use affiliate links for a number of vendors, not just Malwarebytes.
Also, most of the comments that are critical of Enigma Software and SpyHunter exist because the company has gained a bad reputation over the years due to spam, as well as questionable detection rates.
Ragan then runs down Enigma's history, including the high number of refunds it's had to hand out to maintain its A+ BBB rating, as well as the years it spent being blacklisted as a security risk by respected anti-virus firms.
He also notes, as BleepingComputer did in its disputed forum post, that SpyHunter has never been classified as malware or targeted for removal by competing anti-virus products, but that's apparently largely due to Engima's past litigious efforts, rather than Enigma dropping the more questionable "features" of its product -- like automatic renewals, suspicious scan results and its "pay-to-clean" pricing. (The scan is free. The removal requires a six-month subscription, which will be automatically renewed by Enigma in perpetuity unless otherwise instructed.)
The lawsuit is already off on the wrong foot, what with it clearly being filed solely to shut down criticism. While Enigma may find New York's lack of a universal anti-SLAPP statute useful (the current version only protects speech related to the discussion of public permits, and even then, it only protects certain people [bloggers, non-traditional journalists] from SLAPP lawsuits brought by government entities), it's now facing Marc Randazza, who has taken up BleepingComputer's defense.
Adding to this is the fact that the specific statements Enigma claims are false and defamatory aren't even directly quoted from the posted review. They're rephrased to put words in the mouth of the forum moderator who posted it. This low-level deception might have made sense if Enigma hadn't included a screenshot of the post it's misquoting as an exhibit in the filing.
Here are Enigma's claims, followed by the actual wording used by BleepingComputer.
In these posts, Bleeping makes the following assertions falsely and without any reasonable basis to believe that the statements were true when made:
That SpyHunter 4 or ESG engage in "deceptive advertising which violates several consumer protection laws in many states";
[The "quoted" statement does not actually appear in this post, or in any of the ones following it in the thread.]
ES: That SpyHunter 4 or ESG has a "history of employing aggressive and deceptive advertising";
BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product on the Rogue/Suspect Anti-Spyware Products List because of the company's history of employing aggressive and deceptive advertising.
BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product on the Rogue/Suspect Anti-Spyware Products List…
BC: SpyHunter is not classified as malware or rogue security software and other antivirus and antimalware vendors do not target it for removal.
ES: That SpyHunter 4 or ESG have not cooperated in submitting their program for testing "most likely due to the program's ineffectiveness and high rate of false positives?";
[Again, this "quoted" phrase does not appear in the post, or in any the moderator's posts in the same thread. The moderator notes it has not been tested by other AV firms to determine its effectiveness, but does not make any related claim about false positives or ineffectiveness. The closest thing to it is this sentence, which is clearly an opinion.]
In my opinion SpyHunter is a dubious program with a high rate of false positives.
ES: That SpyHunter 4 or ESG engage in deceptive pricing;
BC: While there are mixed reviews for SpyHunter, some good and some bad, my main concern is the reports by customers of deceptive pricing, continued demands for payment after requesting a refund, lack of adequate customer support, removal (uninstall) problems and various other issues with their computer as a result of using this product. For example, some users are not aware that when purchasing SpyHunter, they have agreed to a subscription service with an automatic renewal policy.
[Again, these statements are supported by links to information sources. The addition of "my main concern" clearly shows the moderator is making a statement of opinion based on available information. And the connecting phrase "reports by customers" makes it clear he's making an inference based on statements by others.]
ES: That most users of SpyHunter 4 "are not aware that when purchasing SpyHunter, they have agreed to a subscription service with an automatic renewal policy"; and
[See the above quote and note, again, that multiple links in the review direct readers to outside sites backing up this statement, like the numerous complaints about this practice found at ComplaintsBoard and the Better Business Bureau.]
ES: That SpyHunter 4 is "malware" or "rogue security software" despite not being classified as such by security vendors.
BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product…
BC: SpyHunter is not classified as malware or rogue security software and other antivirus and antimalware vendors do not target it for removal.
[These two directly contradict the assertion being made by Enigma in its lawsuit. The author of the post never states that SpyHunter is "malware" or "rogue security software."]
Enigma doesn't have much of a case. But it has just enough of one to be troublesome. It's forced others to bend to its will in the past by aggressively litigating, and it can drain BleepingComputer of time, energy and money just by forcing it to defend itself from ridiculous claims.