Tagged: Legal Threats

Bless Her Heart, Cartoonist Donna Barstow Complains To Google About Popehat

Print This Post

Remember Donna Barstow? She's the cartoonist with a history of bogus legal threats who got into an ill-considered internet fight with the forum goons of Something Awful when they posted some her cartoons in a thread that criticizes awful cartooning. I wrote about her in July 2012, which resulted in a truly surreal phone call from her. I also wrote about her odd follow-up rant in which she suggested that copyright is a federal crime. Apparently she actually meant that copyright violation is a federal crime. I think.

Anyway, this morning (that is, nearly 17 months after I wrote about her) I got an email from Google indicating that she had complained that my post contained private information:

Hi,

We're writing from Google.com to bring the following page to your attention:

http://www.popehat.com/2012/07/06/cartoonist-donna-barstow-engages-in-modern-online-version-of-hey-guys-watch-this/

A Whois search indicated that you're the host for this page.

A concerned user contacted us to report that handwritten signature is published on this page. We hope that you'll assist this individual in restricting access to this private information by removing the page from the web. If it's changed to return a true 404 error via the http headers, please let us know and we'll also remove the listing from the Google index.

We appreciate your assistance. Should you have any questions, please don't hesitate to contact us.

Regards,
The Google Team

On 11/18/13 15:54:25 donnabarstow@gmail.com wrote:
your_name: D. Barstow
email: donnabarstow@gmail.com
webmaster_info_live: agree
number_url:

http://www.popehat.com/2012/07/06/cartoonist-donna-barstow-engages-in-modern-online-version-of-hey-guys-watch-this/

results_url_ssn:

https://www.google.com/search?q=donna+barstow&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a&channel=fflb

webmaster_info_contacted: agree
webmaster_info_whois:

http://www.networksolutions.com/whois/results.jsp?domain=popehat.com

hidden_subject_signature: Your personal information removal request for a
handwritten signature

As far as I can tell, Ms. Barstow has used a Google tool asking Google to remove my post about her from Google's search results. Her premise is that I published "private information" about her — to wit, her "handwritten signature."

There's only one place Ms. Barstow's signature appears in my post about her — it's in her cartoon about Mexico, which I put in the post to comment upon it, criticize it, and report on ongoing allegations that some of her cartoons are racist or otherwise obnoxious. It's the signature that she displays to the world in all of the cartoons she publishes. It's "private" in the sense that you can't see it unless you look at one of her cartoons on her web site or published elsewhere by her.

I've written back to Google. I presume they won't fall for what I can only characterize as a dishonest — and even fraudulent — attempt to de-list criticism.

Seriously?

I've written Ms. Barstow seeking comment. I'll update this post if I get a reply.

You Gotta Fight For Your Right To Parody

Print This Post

In 1987, the Beastie Boys wrote this:

Girls – to do the dishes
Girls – to clean up my room
Girls – to do the laundry
Girls – and in the bathroom
Girls, that's all I really want is girls
Two at a time I want girls
With new wave hairdos I want girls
I ought to whip out my girls, girls, girls, girls, girls!

That's a rare instance where a reference to new wave hairdos isn't the most embarrassing part of the lyric.

A company called Goldieblox, which sells toys designed to get girls designing and building rather than princessing and preparing to be drunkenly pawed by oafs, did a parody cover as part of an advertisement:

Girls to build the spaceship,
Girls to code the new app,
Girls to grow up knowing
That they can engineer that.
Girls. That’s all we really need is
Girls.To bring us up to speed it’s
Girls.Our opportunity is
Girls.Don’t underestimate Girls.

Compare the videos here.

Goldieblox claimed that the Beastie Boys cried copyright infringement and threatened action. So Goldieblox sized the initiative and sued for declaratory relief, seeking a declaration of non-infringement in federal court in San Francisco. Seizing the initiative like that is often an effective tactic. Goldieblox isn't playing around; they are represented by giganto-firm Orrick.

The Beastie Boys are playing wounded innocence:

Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad.

We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.

As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.

When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.

Awwww. The Beastie Boys may be using this as a continuation of the "sorry for being douchebags" tour. Goldieblox may be using it for very clever pre-Black-Friday self-promotion. But the core issue is interesting.

The song is clearly a gleeful parody of the Beastie Boys' lyrics, which display typical and banal sexism. If someone did it to promote a nonprofit, or for art, or for fun, it would rather clearly be protected as fair use. It only uses part of the song, it transforms the song through parody, and it doesn't interfere with the market for the song. But this is a commercial use. Does that one factor outweigh the others? Not necessarily. In 1994, addressing 2 Live Crew's song "Pretty Woman" (a parody of Roy Orbison's song), the Supreme Court held that commercial vs. noncommercial use is just one of the fair use factors, and is not necessarily determinative.

It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of "Oh, Pretty Woman" rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one.

Instead, the case may involve detailed inquiry into how much GoldieBlox's version departed from the Beastie Boys' version:

This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free. In parody, as in news reporting, see Harper & Row, supra, context is everything, and the question of fairness asks what else the parodist did besides go to the heart of the original. It is significant that 2 Live Crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics for its own ends. 2 Live Crew not only copied the bass riffand repeated it, [n.19] but also produced otherwise distinctive sounds, interposing "scraper" noise, overlaying the music with solos in different keys, and altering the drum beat. See 754 F. Supp., at 1155. This is not a case, then, where "a substantial portion" of the parody itself is composed of a "verbatim" copying of the original. It is not, that is, a case where the parody is so insubstantial, as compared to the copying, that the third factor must be resolved as a matter of law against the parodists.

This will be a thoroughly entertaining fair use case to watch — if the Beastie Boys don't decide to find a graceful exit first.

Updated to add: GoldieBlox has taken down the parody ad, apologized (allegedly because they didn't realize that the late Adam Yauch had asked that Beastie Boys songs never be used to advertised), and said they will dismiss the lawsuit if the Beastie Boys agree not to sue. This doesn't determine the fair use question, but it does suggest to me that either (1) GoldieBlox and its lawyers never thought this through, or (2) it was all a publicity scam from the start. The fair use analysis aside, I think the Beastie Boys come out looking better in this dispute.

University of Texas-Austin And Some Students Choose Censorship Over More Speech

Print This Post

A college campus is a perfect place for more speech leading to social consequences. Lorenzo Garcia of the University of Texas-Austin Young Conservatives of Texas learned that quickly when he and his organization promoted a "catch an illegal immigrant" event at UT-Austin:

The "game" goes like this. On Wednesday, volunteers will walk around the UT campus with tags that say "illegal immigrant." If a UT student catches one of the bozos, they can bring them back for a $25 gift card.

Mr. Garcia, in common with people do do such things, says he's just trying to get a discussion started:

Lorenzo Garcia, chairman of UT's YCT chapter, said Wednesday's event is not intended to instill anger or promote prejudice, but instead to educate college students about a serious issue.

It's intended to “spark a campus-wide discussion about the issue of illegal immigration and how if affects our everyday lives,” he said in a statement.

Mr. Garcia did start a discussion, though perhaps not the one he wanted. He and the Young Conservatives of Texas were subjected to widespread condemnation and ridicule both locally and nationally. Politicians — including conservative politicians — distanced themselves. Garcia thinks people are just mean:

He nonetheless took issue with the backlash he received on Monday and said he hoped the controversy would stir debate on the issue of immigration.

"I have been called an 'Uncle Tom.' I have received emails and comments via social media filled with obscenity," Garcia said in the statement. "The reactions of some who claim that YCT is creating a demeaning or degrading environment on campus have been truly disgraceful."

If the matter had stopped there, it would be a free speech success story: group engages in speech that others find offensive, others exercise their right to response speech, marketplace of ideas distributes social consequences for free expression.

But it didn't stop there. As the FIRE points out, threats of official censorship played a role.

It's completely fine for the administration of UT-Austin to say that Garcia and the YCT are being assholes and that UT-Austin doesn't share their views. As I've argued before that's the right way for a university to respond. But the UT-Austin administration both condemned the speech and ominously suggested that the speech violated the university's honor code, which can trigger discipline up to and including expulsion. As The FIRE points out, that's a threat of official retaliation against protected speech:

UT-Austin had no business making thinly-veiled (arguably, not veiled at all) threats against students planning to engage in political theater. Such threats have detrimental effects on the community’s willingness to debate, curtail the free exchange of ideas on campus, and seriously risk chilling protected speech.

Garcia and the YCT caved:

In a statement, Garcia partially blamed a statement issued by UT President Bill Powers and Vice President of Diversity and Community Engagement Dr. Gregory Vincent for the cancellation. Garcia said, "I spoke with our chapter's members, and they are both concerned that the university will retaliate against them, and that the protest against the event could create a safety issue for our volunteers."

As the FIRE also points out, the reaction of some students is deeply disappointing. Some are demanding that UT-Austin revoke recognition of YCT for its speech:

While we, the undersigned, acknowledge and respect the university's role in allowing a diverse range of political organizations and demonstrations under the banner of "free speech", the University has an obligation to its students to roundly denounce harmful, alienating narratives and, in doing so, make the University a safe environment to historically oppressed groups. The YCT have routinely hidden behind the University's adherence to "free speech" as a means of attacking, intimidating, and degrading non-white students on campus. They have a documented history of attacking specific racial groups, playing on xenophobic hysteria, and being, as Faulkner said, "inhumane". Therefor, we formally request that the Dean of Students revoke the YCT's status as an officially registered student organization. Should the university fail revoke the YCT's status as an officially registered student organization, it will be making the implicit claim that not only are outlandishly racist events ignored by the tower, but that all students of color are fair targets for future "hunts".

I find Lorenzo Garcia and the YCT to be mundanely douchey. But their belabored trolling can be effectively addressed by the marketplace of ideas. Their proposed game has led to internet-infamy, an outpouring of support for the people they targeted, and a surge in discussion of political ideas opposed to them, and will probably impact their social interactions on campus for the foreseeable future. Speech has consequences.

But the sentiments of the students who want to invoke the power of the state to censor Garcia and the YCT are disturbing. Imagine a nation of voters and leaders like that — people who think that free expression is something to be put in scare quotes, who think that upsetting speech should be addressed by government mechanisms, who think that the purpose of the state is to make people feel good about themselves by stifling ugliness and stopping people from being "inhumane."

Lorenzo Garcia, YCT, and their ilk are losing. The response to their speech shows it. I'm not afraid of them. But I'm afraid of the America imagined by the anti-YCT petitioners. What powers will state administrators in that America crave, and what powers will those students — trained to think that they are entitled to be free of offense or upset — give them?

WordPress Goes On The Offensive Against DMCA-Abusers

Print This Post

As I mentioned in my post earlier today about the demon-haunted world of Gordon Klingenshmitt, people who want to write about controversial subjects online face a persistent problem: dishonest, thin-skinned, censorious people who are willing to abuse the Digital Millennium Copyright Act – or DMCA — to force hosts and writing platforms to take down content they don't like. We've seen it happen with a glassy-tongued poet and an over-sensitive lighting company that doesn't like negative reviews and even Ecuador, and we've even been the subject of a bogus DMCA demand ourselves filed by a wire-fraudster extortionist.

The DMCA does have a provision allowing a cause of action for bogus takedown demands, under Section 512(f):

(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Unfortunately, courts have been interpreting Section 512(f) narrowly to apply only to false statements of ownership of the copyright, as opposed to false statements that the targeted material is infringing. In other words, courts have often refused to use this section to impose consequences on censorious liars or fools who claim copyright infringement when faced with parody, satire, criticism, and other stuff clearly protected by fair use and the First Amendment. The Ninth Circuit, for instance, requires plaintiff citing this section to show that the DMCA takedown was subjectively, knowingly false — even if the person sending the takedown was objectively unreasonable and even if they didn't conduct a reasonable investigation. The music and movie industries would like to go further — they want to argue that the only thing you need to be truthful about in a DMCA takedown demand is your ownership of the copyrighted work, not the infringing nature of the target. The music and movie industry like that rule because (1) they don't want to spend money to hire competent or honest people to write DMCA demands for them, and (2) they are perfectly happy to deter satire, criticism, parody, reviews, and discussions if it makes it easier for them to fight the Great War on Piracy. That's why when the MPAA or RIAA complains their industries are dying, I'm tempted to ask how soon I can piss on the grave.

But even under the entertainment-industry-castrated version of Section 512(f), there are still opportunities to stomp censors. Today WordPress announced that it has filed federal lawsuits against two abusers of the DMCA. One defendant is none other than Nick Steiner, the head twerp of StraightPride, which resorted to a bogus DMCA complaint to make a false claim of copyright as to an interview to which it consented. The other defendant filed false DMCA demands against our friends at Retraction Watch, which has been subjected to numerous threats before. The Retraction Watch DMCA abuse was on behalf of the fake-Rhodes-scholar Anil Potti, previous subject of Patrick's wrath.

These suits fit into even the narrowed interpretation of Section 512(f) because both involve not just false statements about whether the targeted items are infringing, but false statements about the existence or ownership of the copyright in the first instance.

These will be lawsuits to watch. Mike Masnick, who has done good work on 512(f) issues, is on the case and his coverage will be worth watching. The Technology & Marketing Law Blog is another great source for Section 512(f) analysis.

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

Print This Post

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

Print This Post

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

Print This Post

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

Print This Post

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:

(more…)

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

Print This Post

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.

(more…)

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

Print This Post

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!

Print This Post

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.

(more…)

Rotolight Tries To Unring The Censorious Bell

Print This Post

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.

Print This Post

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

Print This Post

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.

(more…)

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

Print This Post

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.