Oatmeal v. FunnyJunk, Part VIII: Charles Carreon Gets Sued, Paul Alan Levy of Public Citizen Joins The Fray
[All of our coverage of Charles Carreon's legal voyage of self-discovery is collected under this tag.]
Everyone knows what you do when someone like Charlie the Censor sues you. You lawyer up. If you're very lucky, you have funds to hire a good lawyer, or you can get the backing of extraordinary advocates like those at the Electronic Frontier Foundation.
But what do you do if someone like Charlie the Censor just threatens to sue you at some unspecified future time or place, but doesn't yet? Do you simply wait and see? Do you live your life under that cloud?
Well, you could. But that's chilling. Fortunately, once someone like Charlie the Censor utters frivolous censorious threats, the law offers a remedy to the bold.
You lawyer up, and you take it to him.
A couple of weeks ago, when Charles Carreon began his douchetastically logarithmic process of doubling down and redoubling and redoubling again upon his bad behavior, blogger John Doe (not, I believe, his actual name) started a satirical blog called "Censoriousdouchebag — a satirical diary about Charles Carreon" at charles-carreon.com. On the blog, John Doe offers apt satirical commentary on Charlie the Censor's rhetoric, approach to law, and general behavior. You know what happens next, don't you? The "real" Mr. Carreon responded with a responded in characteristic form with a threatening letter to Register.com, asserting that he would sue Register.com if they did not reveal the identity of John Doe and close down his site.
Fortunately John Doe didn't have to stand up to this alone. Somebody put him together with Paul Alan Levy of Public Citizen, whose pro bono efforts on behalf of bloggers and website owners I have praised before. Paul blogs at the Consumer Law & Policy Blog and specializes in litigation involving free speech on the internet. Paul agreed to step in for John Doe. He wrote to Mr. Carreon and calmly and professionally refuted his claims with citations to relevant cases — several of which Paul had personally litigated and won.
Now normally, when a formidable subject matter expert like Paul Alan Levy steps up to oppose you, citing cases that he previously won that demonstrate your claim is without merit, you might moderate your tone a bit. Not Charles Carreon. He turned the censorious thuggery to 11:
As far as when and where I will sue your client, be certain that it will occur if your client does not cede the domain, and advise her of ten things:
1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that's an equitable defense that asserts "you waited too long to file this."] would not kick in for at least three years.
2. That venue in this action can be validly laid in at least three places, maybe four, if she doesn't live in Arizona, Florida, or California.
3. That I am capable of employing counsel to handle my claim against her, who will incur attorneys fees and seek recovery of the same. I filed pro se against Inman simply for the sake of convenience and the need for speed, and not from a lack of resources.
4. That the law in this area cannot be predicted with certainty, will evolve substantially over the next three years, during which I will be using digital forensics to establish actual trademark damages in addition to seeking the maximum cybersquatting penalty of $100,000.
5. That a judgment that recites that the domain was obtained by fraud upon the registrar, in the form of a misrepresentation that she did not know of my trademark on the name, might well be non-dischargeable in bankruptcy.
6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.
7. That you cannot guarantee that Public Citizen will provide her with free legal services on June 1, 2015, when I may very well send the process server 'round to her door.
8. That I have the known capacity to litigate appeals for years (check my Westlaw profile, and of course, the drawn out history of Penguin v. American Buddha, now in its third year, having passed through the Second Circuit and the NYCA, and still hung up in personal jurisdiction in the SDNY).
9. That the litigation, being of first impression in virtually every Circuit, grounded in a federal question, involving a registered trademark, and dispositive of many open issues in the field of Internet commerce and speech, might very well continue for a decade.
10. That Public Citizen might well be unable and/or unwilling to provide her with representation until the resolution of such an extended course of litigation.
Mr. Carreon also demanded that Paul Alan Levy convey Mr. Carreon's disquiet about this case, and Public Citizen's involvement in it, to Ralph Nader. I am unable to make the preceding sentence any more hilarious, and so will hang my head in shame and move on.
Confronted with competent opposing counsel with a mastery of the relevant law explaining that his claims are meritless, Charles Carreon went full thug. His threat amounts to saying "you know, sure, your client has this nice 'legal authority' and 'rule of law.' But I might sue tomorrow or I might sue three years from now. I might sue in any one of three or more states. Your client might not have pro bono help then. And however meritless my claim might be, I will grind your client forever. So surrender." As I said in Chapter Two of this saga, Charlie the Censor is engaged in the sort of thuggish bullying endorsed and licensed by our broken legal system.
In the face of what amounts to an extortionate threat to abuse the legal system, some clients would cave, or live in fear for years. Some lawyers would advise their clients to cave, or would abandon the cause. John Doe is not such a client, and Paul Alan Levy is not such a lawyer.
So they've sued Charles Carreon for declaratory relief in the same federal court in which Charlie the Censor previously sued Matt Inman, IndieGoGo, and two charities. Read Paul's post about it here — it's informative, measured, and also tells the tale of how Register.com screwed the pooch and betrayed John Doe. I've also uploaded a copy of the lawsuit here. The lawsuit seeks declaratory relief — that is, it establishes that there is a legal dispute between Charles Carreon and John Doe, and asks the federal court to resolve it by ruling that John Doe's site is protected satire and does not violate Carreon's rights. The complaint is simple and straightforward, and attaches the relevant exhibits, including Paul's argument about the law to Carreon and Carreon's responsive thuggish tirade quoted above.
Paul Alan Levy isn't alone. I put up the Popehat Signal seeking local pro bono counsel, and Cathy Gellis — Bay Area attorney and blogger at Digital Age Defense — graciously responded and has stepped in as pro bono local counsel.
The willingness of lawyers like Paul and Cathy to stand up against people like Charles Carreon is essential to the defense of the First Amendment. I disagree with both of them on some issues, but I have nothing but admiration and respect for their service here.
Read Paul's complaint and the exhibits. I'll provide details on the case as it progresses.
[Disclosure: I provided limited legal assistance to Mr. Doe, mostly including helping him find suitable pro bono counsel. Nothing in this post reveals attorney-client communications between Doe and me, nor is intended to. The quotes above are taken from the exhibits to the public record complaint.]
A closing word about proportion: This is not something on which I should throw the first stone from my glass house. However: Charles Carreon isn't the worst person in the world. He's not the worst person on the internet. If his antics illuminate the flaws in our legal system and encourage people to support free speech and change the system, that's good. If he's just the freak of the week, that's not particularly good. Just sayin'.
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