Tagged: Legal Threats

New From KlearGear: Free Speech, Only $3,500 Plus Shipping And Handling

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By popular demand — which is a polite way of saying yes, I heard about this, for the love of God stop sending me emails about it — it's time to talk about KlearGear, an online company that sells "desk toys" and gadgets and tchotchkes and such. Tim Cushing at Techdirt has the story.

KlearGear is not having a good week in the social media. That's because KlearGear attempted to enforce a jaw-droppingly repulsive and unethical fine-print-condition-of-sale to retaliate against a customer who complained about bad service.

The customer is Jen Palmer. She and her husband bought some bauble from KlearGear. It never came. They tried to reach customer service, and never could. So they left a negative comment about KlearGear on a gripe site. Three years later, KlearGear threatened them, saying they had violated a non-disparagement clause buried in those terms of use you never read before clicking "yes" when buying something online or using a website:

Non-Disparagement Clause

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

The link to that language is from a web archive, because KlearGear has now sent it to the memory hole upon public scrutiny. Tim Cushing at Techdirt points out that, according to the Internet Archive, the clause didn't even exist when Jen Palmer clicked "yes" and bought her bauble from KlearGear. That suggests that KlearGear made a demand for money to Jen Palmer based on a contract she never signed. There's a word for that: fraud.

Could Jen Palmer defend a lawsuit on the basis that KlearGear can't prove that she agreed to the non-disparagement clause, because it wasn't on the site when she clicked "yes"? Yes she could. Could she also defend a lawsuit based on a variety of doctrines and defenses available when companies attempt to enforce bizarre hidden clauses in form contracts — sometimes called "contracts of adhesion" — against consumers? Yes. But a lawsuit isn't at the heart of KlearGear's despicable tactic. Ruining the credit of its critics is:

The clause goes on to say if a consumer violates the contract they will have 72 hours to remove your post or face a $3500 fine. If that fine is not paid, the delinquency will be reported to the nation's credit bureaus.

Once again — if KlearGear asserts falsely that someone accepted a contractual term, and asserts a debt based on that false statement, and reports that debt to credit agencies, that's fraud. It's not just a civil wrong, it's a crime.

I tried to get a comment from KlearGear. I tweeted their Twitter account. I left a message on their Facebook page. I repeatedly called "Rob Key," their "Media Relations" person, at the number they provided; it was constantly busy over two days. I called the main number on their website; the recording always says that a customer representative is unavailable on this time and to check the website. It's almost as if Jen Palmer's online criticism — that it's impossible to talk to a live person at KlearGear — is true.

KlearGear's non-disparagement clause is probably an effort to salvage a reputation hammed by bad results like an "F" grade from the Better Business Bureau in 2010, earned through shitty service.

Kleargear.com claims to offer products to "make your home and desk more fun with our desk toys, cool gadgets, stress relievers, games, cube decor, geek toys, and unique computer accessories." However, consumers across the country tell BBB that dealing with this company is anything but fun. BBB has issued an F rating to San Antonio-based Kleargear.com for failing to respond to consumer complaints. Click here to view the company’s current BBB Reliability Report™.

Consumer disputes received by BBB allege Kleargear.com does not deliver products purchased online in a timely manner and, in some cases, fails to deliver any product at all. Consumers further allege that attempts to contact the company go unanswered. In the past three years, 95 of the 123 disputes forwarded by BBB staff to Kleargear.com have gone unanswered, though some consumers later notified BBB they did eventually receive their products.

KlearGear's BBB rating has since improved. However, the Western Michigan Better Business Bureau reported in 2012 that KlearGear was falsely displaying a positive BBB rating on its web site:

As of November 28, 2012, the BBB became aware that the company's website is displaying a BBB Accredited Business logo and BBB Rating A+; however, the comapny is not a BBB accredited business and the BBB rating is not A+.

The BBB contacted the company regarding these issues and this matter is pending the company's response.

As of November 28, 2012, the BBB discovered that some pages of the company's website display the BBB Accredited Business Logo and state "BBB Rating A+", when neither is true.

The BBB contacted the company at the Michigan mail drop address instructing the company to immediately remove the incorrect BBB logo and reference from their site.

This matter is currently pending.

Companies, through the people who run them, can make errors of judgment. They can correct those errors, and consumers can make rational decisions that the company is again worthy of their business.

This is not such a situation.

KlearGear's non-disparagement clause is a contemptible, unethical, and un-American. I say that whether or not KlearGear is defrauding customers by citing the clause to customers who didn't even agree to it. You should not — you cannot — trust a company that hides in its small print a clause saying you can't criticize it for bad service. Only a dishonest and amoral company would insert such a clause into its terms of use. Only amoral and dishonest people, deserving of our contempt — owners, officers, employees, and company lawyers — would create and attempt to enforce such language.

KlearGear has begun to reap what it has sown. Techdirt, Simple Justice, Consumerist, and more sites have written about it. KlearGear deserves to fail as a business based on this conduct, and hopefully will. But that's not enough. Somebody needs to use public records to identify the owners and decision-makers behind KlearGear who countenanced this conduct, and any lawyers who participated in the threats to consumers. Their identity should be published, and they should suffer social consequences. Their communities, and their future potential employers or customers, should see them for what they are: scum.

Do you think KlearGear should suffer consequences for its actions? You can help by spreading the story.

Edited to add: In this life, you take your fun where you find it:

KlearGearFun

FINE, THOSE ROUTING NUMBERS SUCKED ANYWAY, SEE IF WE CARE

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There are few things more delightful to me than capable pro bono counsel putting a censorious bully in its place. The firm Martin & Associates of Vermont has delighted me today.

Our story begins back in June. As Mike Masnick at TechDirt reported, the American Banker's Association and its law firm, Covington & Burling, threatened a blogger named Greg Thatcher, who had compiled an online list of routing numbers for banks. Those numbers are publicly available on the Federal Reserve's web site. The ABA says it created routing numbers and doing so took "creativity" and Greg's infringing their copyright. This argument is like the Post Office suing you for posting a list of zip codes.

In stepped Andrew Delaney of Martin & Associates. Representing Greg Thatcher pro bono, Delaney sent one of the very best responses to a bogus and censorious threat I have ever seen, folding together wit, whimsy, forceful legal arguments, and cheerful abuse of footnotes. It received wide and justifiable praise. Go read it. This is my favorite part:

If you do feel it's necessary to sue our client, we are open Monday through Friday from 8:00 A.M. to 6:00 P.M. and We have lollipops for people who serve process. So if you do file a complaint and send someone over with a summons, please have them wear something with a bit of purple . . . we all like purple. We eagerly await your reply.

I write today with two delightful updates. First, Martin & Associates waited for some time for a reply. One must wait when dealing with a large and venerable firm like Covington & Burling, the sort of place where the stick up their ass has a stick up its ass. Eventually curiosity quite overcame the better angels of Andrew Delaney's nature and he sent this letter to the ABA's attorney Nigel Howard:

It has been just over two months since we last wrote. We expected a response but none has been forthcoming. We have therefore advised Mr. Thatcher to reestablish the routing-numbers section of his website. As a courtesy, we wanted to let you know.

We have not received any response or counter analysis, and we cannot conceive of any reasonable explanation why these identifYing numbers might fall within copyright protection's purview. If you have such an explanation, feel free to share.

If you're ever in Vermont, please stop in so we can chat. Lunch is on us.

This is a very polite lawyerly way of telling someone they are full of shit.

Today, Mr. Howard finally responded to Mr. Delaney's letter. Did he respond to Mr. Delaney's copyright arguments or meet the challenge to support his position? He did not. This was the sum total of his argument about the ABA's copyright:

The American Bankers Association's position has not changed and your client's re-posting of the routing function on his website is at his own risk.

As I've mentioned before, this is known as the Canadian Girlfriend school of legal argumentation.

Mr. Howard goes on to concern troll a bit:

In addition to infringing the ABA's copyright, Mr. Thatcher's actions may put the public at risk. We have found instances where unauthorized sites are disseminating inaccurate information.

Mr. Howard does not cite any inaccurate information on Mr. Thatcher's site. He simply says that there is inaccurate information out there, and that's bad, and mumble mumble [trails off awkwardly].

Even the data in the FedWire and FedACH files that are currently available from the Federal Reserve website are not entirely up to date.

If you're keeping score at home, the ABA just admitted that the data on the Federal Reserve's website may not be accurate, and they are responding by . . . hiring Covington & Burling to pester a blogger.

Mr. Howard also accuses Thatcher of misusing information from the Federal Reserve to populate his website:

The Federal Reserve website states that the information may not be sold, re-licensed or otherwise used for commercial gain. Your client is using the ABA Routing Numbers for his own commercial gain, namely to generate advertising revenues, in violation of this restriction.

Now, Mr. Howard doesn't say that he's representing the Federal Reserve now in addition to the ABA, so I'm sure he's just saying that to be helpful.

Mr. Howard concludes:

The ABA is committed to providing only the most accurate information possible on Routing Numbers and is continuing to take steps to address this problem.

That's the sound of a bully slinking away.

Kudos to Andrew Delaney and Martin & Associates.

Arizona Water Supplier Johnson Utilities Sues Homeowner Over Criticism

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Emily Hughes of Pinal County, Arizona was unhappy with her water quality and the services of her water provider, Johnson Utilities. She complained vocally and participated in groups devoted to criticizing Johnson Utilities.

They're suing her for it.

Johnson Utilities — which has a history of suing its critics for defamation — and its owner George H. Johnson have filed a defamation lawsuit against Hughes demanding $100,000. Johnson Utilities claims among other things that Hughes must have staged a local news interview in which her tapwater ran yellow in order to defame their good services. Alternatively, they claim, the yellow water was a result of her own bad heater or pipes, not their services. They further argue that Hughes is part of some sort of conspiracy to harm Johnson Utilities because she supports a local mining project they oppose. It's . . . colorful.

But Johnson Utilities' complaint is very curious. It seems almost calculated to draw a First Amendment or anti-SLAPP attack.

First, much of the complaint is consumed with setting forth clearly protected activities:

9. Since early 2013, Defendant has repeatedly expressed extreme hostility towards Plaintiffs.

10. Defendant has repeatedly harassed Plaintiffs as a result of such hostility.

11. At some point in late 2012 or early 2013, Defendant participated in forming and/or joined a group called "Citizens Against Johnson Utilities."

12. This group,was renamed the "San Tan Valley Safe Water Advocates" in or
about August of2013. Both Citizens Against Johnson Utilities and the San Tan Valley
Safe Water Advocates are hereinafter referred to as the "Group."

13. During her involvement with the Group, Defendant has repeatedly issued disparaging statements concerning Plaintiffs.

14. Indeed, Defendant has taken every opportunity to disparage and harm Plaintiffs' interests, and has engaged in a ceaseless vendetta against Plaintiffs.

15. The Group has hosted a Facebook page which has been accessible to an undetermined number of individuals.

16. Defendant has made numerous disparaging postings on this Facebook page concerning Plaintiffs.

That's all classic protected speech under the First Amendment with no hint of how it might be defamatory. Later, Johnson Utilities does cite a few statements of fact which, if proved false, might be defamatory (for instance, the claim that Hughes somehow staged the yellow water interview). But the complaint also focuses on specific statements that are clearly protected as opinion:

"George Johnson does not run an honest business."

Plaintiff Johnson Utilities, LLC "isn't exactly forthright with us."

On June 30, 2013, Defendant falsely stated on the Group's Facebook page
14 that Plaintiff Johnson Utilities, LLC's water was "smelly yesterday."

In other words, Johnson Utilities has used its complaint to attack not just a few potentially defamatory false statements of fact, but a wide array of statements of opinion and classic protest activities.

That's not even the oddest thing.

Arizona has a fairly modest anti-SLAPP statute. An anti-SLAPP statute, as our readers know, allows a defendant in a defamation case to file an early motion forcing the plaintiff to prove that it can prevail over the defendant's First Amendment defenses. In a state with a good anti-SLAPP statute, you don't have to wait until summary judgment or trial to show that the plaintiff is trying frivolously to censor you — you can force them to support their claims at the start of the case, and get attorney fees if they fail.

I say that Arizon's anti-SLAPP statute is modest because it's much narrower than statutes in California and Texas. In those states you can file a motion when a complaint attacks any protected speech. In Arizona — as in some other states — you can only file an anti-SLAPP motion if you've been sued based on petitioning the government:

A. In any legal action that involves a party's exercise of the right of petition, the defending party may file a motion to dismiss the action under this section. . . . .

B. The court shall grant the motion unless the party against whom the motion is made shows that the moving party's exercise of the right of petition did not contain any reasonable factual support or any arguable basis in law and that the moving party's acts caused actual compensable injury to the responding party.

It would be rather easy for Johnson Utilities to avoid application of the Arizona anti-SLAPP statute by focusing only on statements not made in the course of petitioning the government. Instead, bizarrely, Johnson Utilities has decided to emphasize that Hughes was petitioning the government, portray it as sinister, and complain about it:

17. In June of 2013, Plaintiff Johnson Utilities, LLC was going to be appearing before the Arizona Corporation Commission regarding the rates to be authorized for its water and wastewater services.

18. Due to the costs associated with operating the utility (specifically including the costs associated with income tax expenses), Plaintiff Johnson Utilities, LLC intended to request permission from the Arizona Corporation Commission to increase the rates to be charged for such services to take into account those expenses.

19. Defendant had the intent to oppose any rate changes that could be beneficial to Plaintiff Johnson Utilities, LLC.

20. Plaintiff Johnson Utilities, LLC was scheduled to appear before the Arizona Corporation Commission on June 11,2013 at 12:00 P.M. to request the increase in rates.

21. Throughout the spring and summer of2013, Defendant had complained of low water pressure at her residence.

22. In a bid to derail Plaintiff Johnson Utilities, LLC's request for a rate increase, Defendant formulated a scheme to defame and disparage Plaintiff to influence the Arizona Corporation Commission to deny the request.

. . . .

115. Upon information and belief, as a contributing result of Defendant's actions, the Arizona Corporation Commission postponed Plaintiff Johnson Utilities; LLC's rate hearing and delayed the implementation of the requested rate increase.

Put another way, Johnson Utilities just conceded that the speech it is complaining about was part of a campaign to petition the government, and that part of the harm it is complaining about is government action in response to her petitioning, thus admitting that the Arizona anti-SLAPP statute applies. Perhaps there is some sort of deep legal strategy behind that. If there is, it eludes me. Hughes' attorney should consider an anti-SLAPP motion, which would allow an attack on the portions of the complaint that target opinion and protected speech and force Johnson Utilities to offer proof its conspiracy theory about Hughes.

Complaining to a government body about a utility is the classic example of what anti-SLAPP statutes are designed to protect. There's nothing closer to the heart of the statute. Johnson Utilities' requests to the government have generated controversy before. Some citizens specifically complained that Johnson Utilities sues its critics and that such a business should not be trusted. That's a fair argument. Suing consumers over criticism has a cost in credibility with the government and the public, and it should.

Meanwhile, Ms. Hughes has set up a defense fund.

So You've Been Threatened With A Defamation Suit

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Note: this is not legal advice. You pay for legal advice. You should not look for legal advice from the Internet, the place you go to get pictures of ungrammatical cats and theories about why the Belgians are behind 9/11. You should go to a real lawyer to get legal advice suited to your situation and your jurisdiction.

Hi! I'm Ken White. You may remember be from such defamation-related posts as "You can't call a Bigfoot hunter crazy, that's libel!" and "If all critics of dentists go to jail, then only criminals will criticize dentists!"

So. You have a website, or a Facebook page, or you comment on a forum, and somebody just sent you an email saying that they are going to SUE YOU FOR DEFAMATION because of SOMETHING TERRIBLE that you said.1

OMG! OMG! OMG! OMG!

You'll lose your job! Your spouse will divorce you! You'll lose everything and have to eat your pets, even the ones that don't clean themselves properly! You'll be in depositions all day every day and they won't let you leave to go to the bathroom and you'll soil yourself right there in the Aeron chair! You'll have to talk to a lawyer! WHAT WILL YOU DO? WHAT WILL YOU DO?

Okay. First things first:

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Andrew Colton And "Boca News Now" Get In The Business of Smearing Their Own Credibility

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Would you be surprised to learn that a journalist is acting like an eager censor?

You shouldn't be. First, any disturbed freak can call himself a "journalist" and any lunatic can set up a website and call it a newspaper. You can't expect people who call themselves journalists will display the judgment or professionalism of professional "mainstream" journalists. Second, you can't expect competence, honesty, decency, or professionalism from "mainstream" journalists in the first place. Third, even even "mainstream journalists" can develop a taste for censorship when criticized; it's a moral and civic failing common amongst all professions.

So we shouldn't be surprised that the guy running a "news site" called "Boca News Now" is trying, to the best of his modest abilities, to be a censor.

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A Fight-For-Free-Speech Story: What The Hell Is It With Dentists?

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This is a story about dentists, legal threats, and pro-bono badassery.

What the hell is the deal with censorious dentists?

There's this guy. Let's call him Bob. Bob's wife had a bad experience at a dentist. Bob set up a site complaining about the dentist. Bob learned, in this process, that the dentist had a history of threatening negative Yelp reviewers with bogus lawsuits.

There's a bad lawyer. Let's call her Bogus Betty. The dentist hired Bogus Betty, and Bogus Betty filed an application for a temporary restraining order and injunction under California's harassment law against Bob, under the theory that a gripe site about a dentist is dangerous harassment that requires a restraining order. This is the law that you use to keep your abusive ex from showing up at your door with a baseball bat, or your nutty former employee from crank-calling you 80 times a day.

Bob wasn't threatening or harassing the dentist. Bob made a web site critical of the dentist.

Bob needed help, very fast. I put out a request. The thoroughly awesome David Casey stepped up. Dave's in San Diego and Bogus Betty filed in LA County, but Dave stepped up anyway, because he believes in free speech.

Dave and Bob got the help of Adam Steinbaugh and Nicholas Weaver and put together a kick-ass brief. Dave wrote it, Adam assisted, and Nicholas acted as an expert demolishing Bogus Betty's technological arguments. Before the filing, Bogus Betty was threatening and refusing to negotiate. After receiving the filing, Bogus Betty was asking to negotiate. At the hearing, Bogus Betty asked for more time to cut a deal; the judge refused, required her to dismiss, told her there was nothing in her application warranting a restraining order, and told her not to come back with a case like that.

A beaten Bogus Betty cut a deal very satisfactory to Bob. Why am I not naming and shaming? Because Bob likes the deal and it's in his best interests and that's what I care most about. If I catch the dentist or Bogus Betty being censorious thugs again I'll drop the hammer on them in a heartbeat.

I say this over and over: the system is broken, because it allows people like this dentist and Bogus Betty to silence people like Bob by making low-risk threats and filing low-risk lawsuits. Most people can't afford to hire a lawyer to resist. The California anti-SLAPP statute is great, but it requires a capable lawyer up front.

There's only one way under the current system that people of modest means can be protected from thuggery. That way is the generosity and service of capable lawyers like David Casey and Adam Steinbaugh, as well as concerned non-lawyers like Nicholas Weaver. Thanks, gentlemen. You rock.

Will you answer the call?

We're Here, We're Snivelling Censors, Get Used To It!

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Straight Pride UK is an organization that fights for the equal social and legal rights of heterosexuals and sentence fragments:

The celebration of one's heterosexuality. It is not a bigoted or intolerant thing to proclaim-it is simply stating the truth, that you are straight and not ashamed of that fact.

Straight Pride UK — which also has a Twitter presence — is concerned with heterosexuals being "silenced and abused." Now, it's perfectly reasonable to be concerned about mounting censorship in the UK, though I see no indication that heterosexuals are subjected to it more than absolutely anyone who says anything abrasive to absolutely anybody's delicate fee-fees. But you'd think that an organization concerned with "special rights" and "silencing" would not be a hair-trigger censor itself.

You'd be wrong.

UK history student Oliver Hotham wanted to learn more about Straight Pride UK and write about them, so he sent them an email describing himself as a "freelance journalist" and posed some questions. They responded. He did what any blogger would do:

About a week later they responded with an attached document with the title “press release”. I went through the questions, corrected the horrendous grammar, and organised it so it coherently answered the questions I’d posed. I also noted that two rather pointed questions I’d asked, regarding the problem of the bullying of LGBTI youth and the nature of other “pride” movements, had not been answered. I sent them an email about this, saying that I’d give them the opportunity to respond but, if they didn’t, I’d “make it clear in the article” that they avoided the questions. They didn’t get back to me for 2 days, which I thought ample time to write two sentences.

So Oliver wrote. Straight Pride UK's jimmies were rustled, and they demanded that he take the post down:

“It has been brought to my attention that you have published the email that I sent you to, you did not state this in your email request, nor you did have consent to do this.

I therefore request that you take down the article that you have placed on your blog.

You have 7 days in which to do this, failing this I shall submit a DMCA to WordPress to have it removed.”

Oliver laughed this off as very silly. What remotely rational person — straight or gay — would think that their response to a self-described journalist asking questions about their political organization would be kept private?

But Straight Pride UK did file a bogus DMCA notice to WordPress, which reflexively took Oliver's post down. Straight Pride UK redoubled its demands:

remove all references to Straight Pride UK, The Straight Forward Project, along with images, and links, from your Blog.

This is not having the impact that Straight Pride UK might have hoped for. Instead, they are encountering the Streisand Effect in an immediate and catastrophic way. Many bloggers are reprinting Oliver's post; Oliver has given his permission to do so.

Straight Pride UK is reacting . . . badly.

STOPMAKINGFUNOFUS

In fact, they are reacting in a manner that shows that they don't merely hold the completely ridiculous position that their "press release" is protected — they also think that they have a right to be free of criticism about their censorious twatwafflery.

STOPHURTINGSTRAIGHTPEOPLEFEELINGS

Look, I think straights are already very well represented in the culture, even in the UK. But I don't have any problem with people who want to express pride in being straight, or people who want to express how oppressed they feel by the modern culture's tolerance of sexual diversity. Let them have their special group! But speaking as a straight guy, would it be possible to have a straight-positive organization that isn't a pack of craven socially dysfunctional nitwits? I'd hate for a stereotype to develop.

Meanwhile, below the break, per Oliver's permission, I've republished his wrongfully taken down post, as to which Straight Pride UK's DMCA assertion is patently bogus.

Edit: New Straight Pride statement added at end of post.

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Rotolight Tries To Unring The Censorious Bell

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Rotolight makes photography lighting systems; Den Lennie discusses and reviews them. Den Lennie posted a video review of a Rotolight product on Vimeo. Rotolight thought it was misleading and unfair. So Rotolight left comments explaining their point of view and posted a rebuttal on their website and publicized it through social media.

No, wait. That's the way a rational and honest company would handle it. No, Rotolight got the review taken down with a fraudulent DMCA copyright violation notice, as discussed here and here and here and here. Den Lennie got the takedown notice. When Lennie wrote about it, Rotolight showed up to, in effect, confess that it had made a bogus DMCA demand because it thought the review was unfair, and to assert a very stupid trademark argument:

RotolightAdmitsBogusTakedown

The DMCA notice was utterly, preposterously bogus for many reasons others smarter than I have already pointed out. The DMCA doesn't even apply to trademarks (as opposed to copyright), and even if it did, a product review can name the product without violating its trademark.

Rotolight is now experiencing the Streisand Effect, and has posted a statement on its website. The statement is part apology, part justification, and part evasion. Rotolight complains that the review was inaccurate because it depicted a unit that had since been repaired to correct a problem. They apologize for a "breakdown in communication," offer to give Den Lennie's F-Stop Academy a very expensive free device, and make many of the right corporate-rehabilitation-tour noises.

But Rotolight's explanation for what happened falls far short. It claims:

In this specific case, the video was not removed for copyright infringement reasons as has been widely reported. Rotolight received external advice with respect to this particular video that it was potentially misleading and unrepresentative. This advice resulted in the only request the company has made to have a video removed from any video sharing website in the last 3 years.

This makes no sense. Is Rotolight saying that they didn't send a DMCA notice, and Vimeo is lying? If so, why don't they say so, and release what they actually sent? Otherwise, if it wasn't a copyright issue, why did Rotolight use the DMCA? If Rotolight had an objection to a review being "misleading and unrepresentative," why did they use a mechanism that required them to assert copyright infringement and affirm a statement that said "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed"? You say that you got "external advice" that the video was misleading, but carefully avoid saying you got advice to use the DMCA as a mechanism to attack it — did you or didn't you? If so, who gave you that idiotic advice? Oh — and if this was about an inaccurate review, why did Rotolight leave a comment on Den Lennie's post making a fatuous trademark argument?

Rotolight pleads with its detractors to think of its employees, saying that a bad review can hurt:

It is important to understand the damage that can be caused not just to our business, but to its hard working employees and their families, and also to the numerous other SME’s in our UK supply chain, whom we make a conscious effort to source components from in order to support our local business community, which is why we felt we needed to act.

Here's the thing, Rotolight. With all respect to Den Lennie, one review he posts on Vimeo is going to have a minor impact on your sales, particularly if you use your speech to rebut and correct it. By acting like a dishonest censorious douche, you have done greater harm to your reputation by — conservatively — three to four orders of magnitude. If your hard working employees and their families are angry, tell them to look to the Rotolight executives who made this decision and ask them: what the hell were you thinking? Why did you trash our company's reputation?

Edited to add: Commenter "guess who" provides evidence evidence casting substantial doubt on any assertion that Rotolight was ignorant of DMCA requirements.

Edited again to add: Vimeo has put the video back up. Want an idea of how awful Rotolight's judgment was? A source informs me that, prior to the takedown, the video had only 150 hits since March. This blog post alone — to say nothing of Techdirt, BoingBoing, or the others — has had 1500 so far today. That doesn't count people reading it on their feed. And it doesn't take into account the impact on Rotolight's Google results.

Third edit: I'm now allowed to mention that when I heard about this I offered Den Lennie to try to find pro bono counsel in case he needed it. Looks like he won't — Rotolight is in full retreat — but I want to thank Jason Sweet and Dan Booth of Booth Sweet LLP for stepping up and backing Den. Your rights depend on lawyers like that willing to step into the breach.

Listen, Don't Mention The Malshandir. I Mentioned It Once, But I Think I Got Away With It All Right.

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Gentle readers, I write with important legal, ethical, and spiritual advice: don't say "Malshandir".

Really the core of my advice is not to name anyone or anything "Malshandir". Don't name your baby "Malshandir"; name it, I don't know, George or something. Don't name your dog "Malshandir". Don't name your macaw who rides on your shoulder as you ride your second-hand bike to the ironic t-shirt store "Malshandir." And for the love of the all-merciful God, whatever you do, don't name your pretend Elf, the non-existent avatar you use in an online game, "Malshandir", even if — and I want to make this very clear — you believe he deserves special recognition for having completed the "Fetid Slug Imbalance" quest successfully.

Fetid Slug Imbalance was dropped from the DSM-V, probably for political reasons.

Fetid Slug Imbalance was dropped from the DSM-V, probably for political reasons.

But it's not just about naming things "Malshandir." It's really not even safe to say "Malshandir." You shouldn't say "that piece of halibut was good enough for Malshandir," or "I've been having trouble with that stuff that builds up in the crevices of my groin, where I sweat a lot — what's it called? Malshandir?"

You shouldn't do these things because a guy named Thomas Freyer may sue you or have you arrested using European courts, which apparently are magic and render decisions in two hours. This, apparently, is Thomas Freyer:

THIS IS THE FACE OF YOUR DESTRUCTION, IMPUDENT WORM.

THIS IS THE FACE OF YOUR DESTRUCTION, IMPUDENT WORM.

We know these things because Thomas Freyer has been engaged in a furious dialogue with a web site devoted to the online fantasy game Everquest 2. That site had a profile of an EQ2 character, an Elf named "Malshandir." Mr. Freyer maintains this is VERBOTEN, because even if his domain name malshandir.com has expired, and even if he has not registered an American trademark for "Malshandir", and even if his English company "Malshandir" closed in 2010, and even if the "Malshandir" character was created on EQ2 in 2008, he has a European trademark on "Malshandir," which prevents you from calling anything "Malshandir", even a pretend Elf. Using the name "Malshandir" can have grave consequences, including but not limited to being forced to "delist your site from nameservers within the EU and reject all requests from servers and clients from the EU," a "decision from a court within 2 hours," and exposure to worrisome paradoxes, such as "BTW: I talk with a trademark lawyer. trademark attorneys doesn’t exist."

Read more about Mr. Freyer's legal acumen, and why you should fear his wrath, here.

Mr. Freyer apparently believes based on legal advice — which may or may not come from attorneys that you or I could see or hear — that if he trademarks a name for commercial purposes in Europe, then you or I may not use that name for completely unrelated non-commercial purposes in America, for instance to denote a pretend Elf. This would mean, for instance, that if someone trademarked "Buster" to sell marital aids in Oslo, you could not name your World of Warcraft Orc Buster, even if Buster is not in the actual or pretend trade of manufacturing or selling marital aids. [Note to self: develop pitch for new profession in World of Warcraft. Assign associate with lowest billable hours and least inclination to sue.]

I could explain why that is silly, but I think my head might explode. I am concerned that my head exploding could made some sound that resembles some word Mr. Freyer has trademarked in Europe, which could lead to further litigation against my estate.

So: be sensible, be prudent, and don't say "Malshandir." And whatever you do, don't engage in any sort of contest to see which of you could photoshop the most creative use of "Malshandir" for commercial or artistic use, and especially what you do don't start with templates like this.

Edited to add: Dammit, people! I explicitly told you not to do things like this, from Aaron in the comments!

COME AT US BRO

COME AT US BRO

Updates: All right, who did this? That's very mean to Malshandir!

Meanwhile, Mr. Freyer seems to be very angry and threatening, and thinks that an EQ2 blog can take down posts from Popehat.

Two Guys, A Cop, And A Pizza Place: How A Police Officer Threatened A Yelp Reviewer

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We all know that cops are tasked to enforce criminal laws, occasionally shooting dogs or naked, confused, autistic 11-year-olds on the side of the road as circumstances require.

But did you know they enforce civil law too?

Well, at least some of them do. Some police think that it is their role to intervene in civil disputes, throwing their weight — the weight of gun belts and squad cars and the freedom to beat you senseless with a high probability of complete impunity — behind one side or the other.

That's what Joseph Grabko of Pennsylvania found out this month, when a police officer threatened him at the behest of a local pizza place.

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A Statement of Support in the Event of Legal Threats Or Lawsuits

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Elise Matthesen is a writer, artist, and activist. Sigrid Ellis is a writer, editor, blogger, and air traffic controller. Both are active in what I'll refer to as the fantasy and science fiction community.

Ms. Ellis gave a party at Wiscon; Ms. Matthesen attended. Ms. Matthesen experienced conduct she believed was harassment, and reported it. She later wrote a post — carried by several prominent figures in the science fiction community — about the process of reporting harassment at conventions. Ms. Ellis identified the person Ms. Matthesen reported.

Though I discuss harassment in the science fiction, fantasy, and gaming community on this blog, the purpose of this post is not to discuss that incident, or the nature of the conduct that led to the report.

Rather, I write to state my support.

As far as I know, Ms. Ellis and Ms. Matthesen have not received specific legal threats.

However, in the event that Ms. Ellis or Ms. Matthesen do receive legal threats or are subjected to litigation, I have agreed to give them my assistance in securing an effective and vigorous defense. That assistance will include the Popehat Signal. Thanks to the generosity of readers and the devotion of the community of First Amendment attorneys (including the First Amendment Lawyers Association, of which I am a member), the Popehat Signal has often been successful at pairing defendants with pro bono lawyers who have produced excellent results. I have also offered, to the extent appropriate and (depending on the jurisdiction) available, my personal assistance, which has also led to some success. Finally, I will do my part to encourage the Streisand Effect.

Does it sound like I boast? Maybe it does. Take it this way: I am utterly, unreservedly, mercilessly serious.

Conduct yourself accordingly.

Criticize Your Dentist? That's a Jailin'

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Confession time: I've always been a little nervous at the dentist. X-rays pointed at my head? Poking my mouth with sharp objects? Using rotating buffers with unidentifiable grape-flavored goo on my teeth? Prone in a awkward chair? Not if I can help it. My dentist is a distant cousin who I've seen my whole life and I still feel like he or his staff might go all Laurence-Olivier-versus-Dustin-Hoffman on me at any moment.

So you can imagine that I'd never trust a dentist who reacts to negative online reviews by having his lawyer threaten the reviewer with criminal charges. Would you?

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This Is The Most Wonderful Legal Threat EVER

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Various journalists are claiming they have seen a video of Toronto Mayor Rob Ford smoking crack.

This led to the most darling legal threat ever from a lawyer named Dennis Morris — who has represented Ford for some time — to Gawker:

Update: We've received an email from Dennis Morris, a gentleman with a hotmail.com email address purporting to be Ford's attorney. Here is the message. We haven't corrected its formatting.

Greetings;I am a lawyer,and have been contacted by Mayor Ford's office in reference to your indicating you will post a photo of Mayor Ford smoking crack cocaine. Mayor Ford denies such took place,and if such posting occurs,it is false and defamatory,and you will be held legally accountable.In reference to the photo,you wish to publish, Mayor Ford has his photo taken daily,sometimes with others.

If the person you mention is now deceased,it is sad,regardless of his alleged background.

Please govern yourself accordingly.

Dennis Morris.

This is delightful, like that video of the kitten freaking out when it sees a lizard.

First, nobody ever governed themselves accordingly based on a threat from a hotmail account. Second, are you using some sort of comma-based operating system? Third, what the fuck are you talking about?

This sets a high bar.

OMICS Publishing Group Makes A Billion Dollar Threat

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I'm in trial preparation mode, so this will be brief.

A publisher in India called OMICS Publishing Group has threatened to sue a blogger named Jeffrey Beal, who runs a blog called Scholarly Open Access. Beal critiques open-access publishing venues, and and ran a post asserting that OMICS engages in spamming and bait-and-switch. OMICS' threat would be mundane, except that its lawyer, Ashok Ram Kumar of the Indian firm IP Markets, has chosen to be so very ridiculous. He's threatening to sue for $1 billion, and to seek criminal penalties in India.

In India, Section 66A of the Information Technology Act makes it illegal to use a computer to publish "any information that is grossly offensive or has menacing character" or to publish false information. The punishment can be as much as three years in prison.

Lawyer, please.

Mr. Beal has little to fear from civil or criminal proceedings in India unless he wants to travel there.

First, if OMICS gets a civil judgment against him from India, they won't be able to enforce it here. The SPEECH Act prohibits any federal or state court in the United States from recognizing or enforcing a foreign judgment for defamation unless (1) the judgment creditor can prove that the foreign court offers equivalent protections for free speech as the defendant would have enjoyed in United States courts under the First Amendment, or (2) the judgment creditor can prove he or she would have prevailed even under the stricter standards in the United States.

Second, if OMICS seeks criminal charges against Mr. Beall in India, they won't be able to extradite him there. Like most extradition treaties, the treaty between the United States and India requires dual criminality — that is, that the offense is a crime in both countries. Hurting fee-fees isn't a crime in the United States. Moreover, under these circumstances, the chance that the U.S. Departments of State or Justice would cooperate with extradition requests is effectively zero.

So. OMICS can sue in the United States. If they do so, they'll have to satisfy their burden under U.S. law — for instance, by showing that Mr. Beall made provably false statements of fact. Attorney Kumar's bluster does not encourage confidence that they will be able to do so:

The rambling, six-page letter argues that Mr. Beall's blog is "ridiculous, baseless, impertinent," and "smacks of literal unprofessionalism and arrogance." The letter also accuses Mr. Beall of racial discrimination and attempting to "strangle the culture of open access publications."

"All the allegation that you have mentioned in your blog are nothing more than fantastic figment of your imagination by you and the purpose of writing this blog seems to be a deliberate attempt to defame our client," the letter reads. "Our client perceive the blog as mindless rattle of a incoherent person and please be assured that our client has taken a very serious note of the language, tone, and tenure adopted by you as well as the criminal acts of putting the same on the Internet."

Let us know how that works out for you, Mr. Kumar. Remember: you can't say "all the publishing credibility of COMIC SANS" without OMICS.

Former Bush Administration Attorney Threatens Bloggers As He Faces Federal Sentencing

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Scott Bloch used to be a deputy director to the Department of Justice's Task Force for Faith-based and Community Initiatives under President George W. Bush and a Special Counsel at the United States Office of Special Counsel. Now he's a defendant in a federal criminal case, and has pleaded guilty to a misdemeanor for approving a "seven level wipe" on certain Office of Special Counsel computers, and now faces sentencing. This represented a milder charge than ones the government previously pursued: the feds charged him initially with contempt of Congress but abandoned that charge after Bloch was allowed to withdraw a guilty plea to it.

In addition to all that, it appears that Scott Bloch is a censorious thug.

Empty Wheel — which has been following Bloch's prosecution closely — has a post describing how Bloch has threatened bloggers writing about his case. Empty Wheel attaches and quotes a letter on Scott Bloch's own law firm letterhead. It includes the following language:

I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer and you are not commenting on any public matters that are current. The prior legal defense fund is defunct and has not been active for over two years. Your demeaning and personal attacks impute to me qualities that tend to injure me in my business of representing contractors. Your website is dedicate [sic] to them and therefore you are targeting my business in Washington, D.C. intentionally, and my residence in Virginia, from where I draw some of my clients.

If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages. As long as the article remains on your website, you are publishing it. In addition, you are publishing it in various fora, including in Virginia and Washington D.C. where I represent employees and federal employees [sic] Continuing publication also subjects you to Virginia jurisdiction as long as the article remains on the web. I will institute an action in Virginia and in Washington D.C. against you for defamation and actual malice, together with damages and punitive damages.1 I will also seek damages for civil conspiracy to harm my business, and Virginia courts and juries have proved to be very protective of one’s business reputation when gratuitously harmed by publications. If I determine through discovery that you have worked with others to do this, I will join them as well. (emphasis added)

Were it not a vexatious attempt to chill free speech, Bloch's letter would be comical because it is so surpassingly ridiculous. First, Bloch does not specify which specific statements in the blog posts are false and defamatory. As I often say, vagueness in a defamation threat is the hallmark of meritless thuggery. Second, the assertion that Bloch's federal case — the prosecution of a former Department of Justice and Office of Special Counsel lawyer — is not a "public mater" that is "current" is freakishly frivolous. Third, the demand that bloggers remove all materials — not just specified allegedly false statements — is legally unsupportable and a reliable tell of censorious bullying, not merit. Fourth, the statement "As long as the article remains on your website, you are publishing it" is at best a highly questionable assertion of law. Virginia will probably follow the Single Publication Rule, and the District of Columbia definitely follows it; that rule provides that the statute of limitations for a defamation suit begins to run when a statement is first published, even if it remains on the internet thereafter.

Bloch's letter has all of the signs of bullying and none of the signs of truth. Empty Wheel notes that he has not threatened a larger blogger with a wider audience, but smaller blogs — perhaps ones more easily cowed.

I hope that someone finds a way to put this threat before the judge in Bloch's case to consider when he is sentenced.