Re: Decreasing Yelp Value both perceived & monetary
Spot on. In the main, the suit is for breach of contract, and the contract (ToS) says that you can't do things that undermine the value of the site for others.
Less spot-on is MikeM's take: "I'm just not convinced that means it violates the law." A contract is private law, and, while a court will decide officially if it does, it seems pretty apparent that the fake posts violate that law. (MikeM's take is appropriately equivocal to the extent it deals with statutes regulating advertising.)
Re: Re: Re: Re: Re: Re: Not Sure That This Ranks as an Outrage
Earlier in this thread, I quoted direct proof that Chevron alleges the non-parties to be involved. Judge Kaplan stated: "The email addresses listed in the subpoena belong to non-parties who allegedly were involved directly or indirectly in the Ecuadorian litigation" (the Ecuadorian litigation being part of the factual basis for the RICO claim).
It's in the passive voice, but I can't think of any interpretation of it other than as Judge Kaplan's recitation of Chevron's allegation. An allegation is saying something that has yet to be proven.
Discovery can reveal the existence and actions of parties who are properly then added to the case. That could be what's going on here. As I said earlier, if you assume the non-involvement of these parties, the discovery is indeed wrong, but the allegation exists, and what courts do with allegations is allow discovery so allegations can be examined.
Re: Re: Re: Re: Re: Not Sure That This Ranks as an Outrage
In Dendrite, the sufficiency of the claim of harm (and thus the existence of wrongdoing) could be ascertained from looking at the anonymous communications without unmasking the speaker. In this case, we have known individuals whose participation in the alleged wrongdoing may be revealed by discovery. They could be added as defendants. It's a textbook use for discovery (though I'll admit it's been a long time since I looked at a discovery textbook! ;-)
You probably agree with me (and I hope so) that there is not First Amendment protection for speech that facilitates criminal and civil wrongdoing.
If you start with the premise that these parties were not involved in wrongdoing, their communications would be protected by the First Amendment, but if you don't start with that premise, their communications are subject to discovery.
I'm picking up that you take as a premise that non-parties were not involved in wrongdoing, that you disagree with Judge Kaplan about the facts, and that discovery will not show they were involved. When you say "no showing" and "no evidence," are you sure you're not discounting and dismissing evidence that actually does exist? (Weak evidence is evidence.)
I just don't come to this case with the same premises. If you disagree with Judge Kaplan about the facts, I can't argue with you because I don't have an opinion of the facts. Taking the facts and allegations as he states them, I don't find his application of the law outrageous.
Re: Re: Re: Not Sure That This Ranks as an Outrage
The ruling says: "The email addresses listed in the subpoena belong to non-parties who allegedly were involved directly or indirectly in the Ecuadorian litigation." The judgment in that case, Chevron argues, is the product of fraud and violations of the RICO Act. This makes the email communications relevant to the case and within the bounds of appropriate discovery. It may help Chevron prove the fraud and RICO violations they allege.
The company is arguing in court that the defendants and their associates violated their rights. To prove the allegations, they need access to information about who did what. There isn't a First Amendment right to bar discovery of information (whether it be about your organizing, speech, associating, or religion) if it is plausibly relevant to a lawsuit.
To illustrate: Let's say Ann is videotaping Bob at a protest. Bob is wearing a mask to hide his identity, but as he yells "Fuck Exxon!" and throws a brick through Exxon's window, his mask falls off. He picks it up and quickly puts it back on.
Ann and Bob were both doing things that are protected by the First Amendment: videotaping a newsworthy event and protesting/speaking. Bob was trying to maintain his anonymity, which he is generally entitled to do. But Exxon has full rights to subpoena Ann's videotape in a lawsuit against Bob to get access to information about what happened and who did what.
For some reason, the ruling turns on the fact that the people trying to keep the information out of court are not proven to be Americans, but I don't think that really matters.
Chevron has indeed shown why it needs the information. It has a RICO case. To prove RICO allegations, you have to know a lot about people's communications with one another.
I'm not endorsing the case or even the RICO law, but I think this subpoena is well within bounds for a case like this.
It is indeed standard practice to get as much information relevant to a case as you can. I was a document clerk on a civil case brought by a farmer once, and because he alleged anquish, pain, and suffering, I got to (had to) see documents about his urology visits.
I don't see anywhere in the ruling, Josh, that the people seeking to quash access to data are doing so on the basis of attorney-client privilege. Maybe they're not entitled to it, or maybe their lawyers didn't argue it. When you don't argue something, you're guaranteed to lose...
I know little about this case, and I don't endorse Chevron's side (or anyone's), but my spidey-sense is picking up bad lawyering on the side of the people trying to quash the subpoena. Where's the argument that this is a SLAPP (strategic litigation against public participation)? There is an anti-SLAPP law in New York state (which may or may not apply), but then I don't know if NY's anti-SLAPP law protects non-NY individuals, which gets us back to whether the people seeking to quash are even U.S. persons entitled to the protection of U.S. law. That's what the ruling turned on, whether non-U.S. persons get First Amendment protection.
It's worth reading the ruling -- not that I did that before I first commented!... ;-)
It's data about participants in the dispute, not ALL Americans, NSA-style, right? That makes it pretty much ordinary discovery for litigation. I suppose if the merits of the lawsuit itself are weak, getting this data is also weak, but it's not an additional, separate outrage for a court to require access to data relevant to the dispute.
I should have taken care to note that violence and threats of violence are interchangeable in my opposition to violence. I think it is wrong for a person to hold a knife as if it he'd plunge it in your chest if you refuse his request for money. And I think it is wrong for the state to threaten to imprison you if you refuse its request for money, and do worse if you try to resist the imprisonment.
1) I was using theft as an anology to simplify and illustrate. The "Here," at the beginning of the next paragraph was meant to signal that.
2) Whether the holders of the domain are or are not taking advantage of consumer confusion is a factual issue that Paul obviously would dispute. And that's the point: There is a dispute, and it is consistent with libertarian principle to dispute what one views as a violation of one's rights, including trademark rights as they exist in the UDRP.
This is challenging stuff, so it's not surprising to have comments this confused.
It is not hypocritical to live under the current regime while advocating for another. That goes for roads, taxes, schooling, and every other thing, including domain-name-allocation rules.
The best legal explanation for domain names is that they are licenses-to-use, not the outright property of the domain name holder. The terms of the license bar fraudulent use and trademark violation. Paul believes that his trademark is being violated by the owners of the RonPaul.com domain and he is using the channels available to him to bring his case.
It might be preferable for domain names (more accurately, the right to associate a string in a given top-level domain with a given IP address) to be a piece of property, in which case Paul would bring a trademark action, or a common law fraud or trade disparagement action, against the holders of the domain. It's very much an open question whether the holders of the domain can be brought into a court that offers Paul the remedies he believes he's due. The current law allows him to move against the domain, and this is what he's doing.
Paul is not obligated to forgo the benefits of the law in this area just because he might structure the law differently.
A libertarian does not have to buy back stolen property to avoid charges of hypocrisy because the dispute resolution procedures of the police and courts are something libertarians embrace as part of the limited role of the state.
Here, Paul believes he has a case against the holders of the domain based on trademark (in that the holders of the RonPaul.com domain are taking advantage of confusion about the source of goods). He does not have to buy the domain, but can use the procedures in place to resolve the dispute without being hypocritical.
I don't know if that charge sticks to Mike, but there are Internet users who demand strict privacy protections as if they're cost-free, then bray against inconveniences and lost benefits that those privacy protections require.
What Carlos might do instead of arguing with the lawyers is to scrape the comments off the site, then marry them back up with the posts, or just scrape all posts, publicly available post data, comments, and available comment data. Pain in the ass, but then the data won't have been transferred by B&N.
Given the hostility of the FTC to companies transferring data, the B&N lawyer appears to be making the prudent decision.