Dog Shooter SLAPP Suit Shot Down

By Marc J. Randazza

It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements.   But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01.

Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:

770.01 Notice condition precedent to action or prosecution for libel or slander.

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory

The plaintiff took the position that the words “other medium” did not apply to blogs. The defense argued that the language “or other medium” includes blogs. The court agreed with the defense.

The court’s opinion is available here.  Under its reasoning, § 770.01 applies to bloggers and, since its requirements were not met when filing suit against VanVoorhis, the Defendant wins on Summary Judgment.

Those of you who understand the legal process might ask why this was a summary judgment motion instead of a motion to dismiss. The Defendant did file a motion to dismiss, but at the hearing on the motion to dismiss, the judge seemed inclined to rule in the defendant’s favor. (See Transcript at 7:25-8:1. At that point, the plaintiff’s attorney told the judge that they had sent the 770.01 notice, but that they had merely neglected to allege it in their complaint. (See Transcript at 8:2-14). That statement was unsupported by any facts. Nevertheless, since the plaintiff was given the right to file an amended complaint alleging that they had served the proper notice, it required factual development in the case to disprove that claim.

This case is only a trial level case, but it is an important lesson for Florida defamation defense counsel. Do not neglect the importance of Fla. Stat. 770.01. Most SLAPP plaintiffs will not send one, and if they do, they will frequently get it wrong.

As Mr. VanVoorhis is a client of Randazza Legal Group, and his counterclaim for abuse of process is ongoing, I decline to say more at this time.  This is, however, a bright day for free speech in the sunshine state.

How you can help Kimberly Kupps, victim of Polk County Sheriff Grady Judd

By J. DeVoy

As we previously reported, Theresa Warren, a/k/a Kimberly Kupps, has been charged with several counts of producing obscenity in the backwoods of backward Polk County, Florida.  Kupps and her husband are represented pro bono (i.e. free) by Larry Walters, a friend of the blog.  However, there will be some costs associated with the case, namely for experts and investigators who can establish that Kupps and her husband not guilty.

A legal defense fund has been started for Kupps and her husband, which you can donate to here.  Marc has already made a donation to the cause.  While the legal fees are covered in this case, investigators and experts, the testimony and findings of whom can be crucial to acquittal, are not free.  In the interest of free speech, we encourage those with the means to donate to do so.

Righthaven suffers new setback

That's what happens....

I am not going to comment extensively upon this, since Myself and Jay DeVoy of Randazza Legal Group are counsel for the defendant.

However, I will share that Righthaven filed suit against a guy for posting a news article into a newsgroup. We felt that this was fair use. We moved for summary judgment, and while that motion was pending, we discovered that it seemed that Righthaven did not have standing in the first place. The judge agreed on both grounds, and Mr. Hoehn has prevailed.

Judge Pro’s opinion is here.

Rep. Steve Cohen on SLAPPs

Representative Steve Cohen, the Legal Satyricon’s favorite Congressman (source), provides an editorial in Roll Call on SLAPP litigation and the Dan Snyder case (prev. blogged on here).

Open letter to Mr. Bardamu: Why won’t you pay for porn?

By J. DeVoy

On Ephemeral Notebook, Ferdinand Bardamu – skilled writer and friend of the blog – writes that Kayden Kross’ takedown of pirates won’t make him stop stealing porn.  While “stealing” is an emotionally charged word, and copyright infringement laws only affect uploaders on bittorrent, tubes and file locker sites (assuming, very generously, the latter two are DMCA compliant), that is ultimately what piracy of porn and anything else is about: Getting something for nothing.

I’m fond of Ferdinand, and his primary blog, In Mala Fide, is on our blogroll.  He links to my posts when they’re interesting and not too legal, and I link to his if I think readers here might appreciate them.  I’ve both written for his blog and written him in for the U.S. Senate.  To the extent I call him on the carpet like this, as if our blogs were some rap battle mixtapes, it’s nothing personal – I end up having this discussion with everyone I consider a friend.

So, Ferd:

Why won’t you pay for porn?  Or will you pay, but just for certain subsets of it?

I find that this attitude is common in men of our age.  It is hard to justify paying for something when so much is available for free.  But the shortcomings of these methods are readily apparent as people rave about discovering long-retired actresses whose content has just finally trickled onto some seedy overseas-based site.

What would it take to make you pay?  Is there a technological breakthrough you can think of that would make porn a worthwhile investment?  Or, if you were sued for copyright infringement, how much money would you have to pay before you’d never pirate again – $5,000? $15,000?  Or would it be some other amount on the continuum between a harsh lesson and complete and utter financial ruin?

As a nihilist, it is not your duty to care about whether other people earn a living.  You recognize the broad costs imposed by a coarsening of society.  But, from a self-interested perspective, you can appreciate what the deluge of sex and pornography means for your personal life.  By buying porn, you’re supporting the arts; under an extreme view, it could be like patronage for creators you particularly support, like the Medicis of Renaissance Italy.  Just as Renaissance art was inextricably linked with culture, so too is pornography wrapped into the modern zeitgeist.  Thanks to the lifetime oeuvre of, for example, John “Buttman” Stagliano – someone who risked a lengthy prison term to follow his principles – anal sex is not merely a reality for many men, but expected.  Sure, Stagliano got wealthy in the process, but his work and that of those he influenced have ensured that north of 80% of girls in our age range are up for some greek – and I’m not talking about gyros.  This is just one example of how what happens in porn affects real life, and, from my perspective, is worth preserving.

Again, FB, this isn’t an ax I have to grind with you; I’m not going to stop reading IMF or pull my links because we disagree.  To the extent you deign to acknowledge this letter, I trust you’ll articulate a thoughtful explanation for your positions on the issue.  As someone in the once-target demographic for porn, though, your thought process on this issue is important to understand – mostly because you’ll be able to state it so damn well.

Kayden Kross slams pirates in lengthy screed

By J. DeVoy

The I Shoot Porn blog republished this letter from adult actress Kayden Kross to pirates, originally posted to a BitTorrent forum.  Read the whole thing – it’s well done for someone who isn’t intimately involved with content protection, and simultaneously amusing.  Here’s a sample so you get the flavor of it:

You modern day pirates are pussies, hiding behind your computer screens and outside of jurisdiction, speaking some foreign language, or pretending to, in your mother’s offshore basement that maybe isn’t offshore at all (it’s very piratey of you not to have a known address), wiping grease stains off your unbearded faces with cease and desist letters and probably showering regularly and missing the symbolic irony of how completely out of touch you are with your pirate roots.

And I’d maybe understand it if you were rolling in gold coins and required large suited bodyguards with tiny earpieces to protect your pirate interests, but you’re not, because you’re not even really monetizing it. Pirates never did get the monetization thing down. That’s why they raped and pillaged and kept it simple. Then they waltzed off with tangible goods, and it didn’t matter that they didn’t really invest in much, because when they ran out of goods they could rape and pillage some more. But what are you waltzing off with? Increased broadband usage? Some redirected traffic? This is nothing. You don’t even instill fear.

via Ferdinand Bardamu

Being beta is bad for you

By J. DeVoy

A recent conversation led me to contemplate how destructive being beta is – for the body, for the wallet and for the soul.  Regular readers should not be surprised by the proposition that the “dark triad” personality characteristics of narcissism, machiavellianism and psychopathy attract women.  Newcomers and naysayers should ponder why their women friends are always complaining about being ignored by the “assholes” they love.

Today begins the weekend.  For the typical beta, this means one dinner date – possibly two – that might conclude with awkward kissing on her front step and unreturned phone calls.  I’ll assume that each date will cost $80 in any real city, possibly up to $140 if he’s going to engage in the folly of trying to impress a girl with money – an idiotic proposition with anything less than a seven-figure trust fund or equivalent thereof, since having money above a fairly low point of sustenance has exponentially diminishing returns in the attraction market.

If he’s not on a date, the homo erectus beta is at the bar with his equally clueless friends, servilely buying drinks for girls they don’t even know.  Want to subtly insult a woman and make her feel kind of cheap?  Buy her a drink as a pretext to talking to her.  Worse, it’s demeaning to the buyer, and communicates that his time and attention is so unwanted that he needs to provide something – in this case, alcohol – to get someone to pay attention to him.  For our calculations, I’ll figure that this weekly misadventure costs $60.

On a cheap week, this routine costs $140, nearing $300 on more prosperous ones.  This is before factoring in other demeaning expenditures like flowers, jewelry and other gifts that arise over the course of a year or lengthier courtships.  It also ignores the probable costs of even reaching the “date” starting block, such as pointless memberships to dating sites like match.com.  Assuming the average month has four weeks, the average monthly baseline cost of being a beta is $560, and as high as $1200.

(In contrast, not flashing money may be better strategy to get you what you want.  If you don’t spend money on women, and ostensibly don’t have any, you won’t get shunted into the category of suitors with relationship potential.  Thus, she’ll be less likely to hold out for a commitment when offering affection, as you will not be mistaken for a provider to be relied upon as a checkbook.)

And what does all that money get?  If our example beta is an “average” man, it results in a lifetime total of 7 sexual partners.  All that for the low, low cost of thousands of dollars and endless rejection!

Time spent sitting down and eating dinners is also time not spent in the gym.  While betas wine and dine, waiting for the inevitable “let’s just be friends” ax to fall, they are not able to cultivate one of their most valuable assets – their respective bodies.  Pop quiz: If you want to attract the best women you can, is your time better spent enhancing your physical appearance, or spending 3 hours listening to one girl talk about which of her friends she doesn’t actually like?

Worst, though, is the self-deprivation of the beta.  Being beta means constant self-censorship and suppression of one’s true thoughts and urges – either consciously or due to social conditioning.  Saying “that sucks” becomes “I’m sorry.”  Monologues about her pet(s) inexcusably elicit any configuration of language other than “nobody could ever possibly care about this.”  Instead of doing what you want, from seeing a concert to playing Nintendo, you cater to what she wants to do, when she wants to do it.

I wouldn’t take issue with any of this if it worked, but it doesn’t.  The reward for self-denial and sacrifice is rejection.  Loneliness.  Nothing.

There is no good reason to be a beta.  Aside from being a losing position in the dating market, it adversely affects every other important element of the beta’s life.  It may not be easy to stop being a beta.  It’s not easy to run a mile in under 6 minutes, or to bench press 250 pounds, or to write comprehensibly, either.  Nobody disputes that these are worthwhile endeavors that pay valuable rewards with persistence.  Ending beta servitude is at least as worthwhile, and provides meaningful gains – financially, physically and spiritually – immediately.

A few caveats: techniques for long-term relationships are different.  You look callous, rather than desirable, by “forgetting” things like your anniversary or her birthday.  At that point, you’ve won her attraction and long ago bonded – giving gifts is acceptable, even recommended, provided you maintain her attraction through other means.  Also, it’s good to be a bit “beta” and occasionally pick up the tab on dinners for women who are actually your friends, free of romantic designs.  Never underestimate the value of a handful of good, reliable (and attractive, if possible) female friends.  Yes, this post has nothing to do with law, but neither does the “Holy Crap! Erin is Blowjob Girl!” post that dominates this blog’s Google referrals day after day.  Somehow, you’ll live.

Grady Judd, at it again, in America’s Wang

By Marc Randazza

Following a three-month-long investigation of Theresa and Warren Taylor – Theresa being better known as “Kimberly Kupps” – the Polk County sheriff arrested them both on charges of promotion and distribution of obscene material.  The crime?  Creating pornography in their own home, then selling it both on their paysite and the popular distribution site clips4sale.com. (Source.)

Sadly, this is par for the course in Polk County.  The same Polk County where Philip Greaves, then living in Colorado, was indicted on obscenity charges for writing a book concerning pedophilia.  Let’s not forget the 15-year-old who was suspended from using the bus for three days after he passed gas on it.  And then there was the antique store owner who was charged with obscenity production for taking nude photos of willing participants – even if, at first blush, child porn charges may have been more appropriate.  Maybe I have Polk County all wrong and this is all the doing of dedicated gestapo fuckhead Sheriff Grady Judd.  But then again, Polk County is home to all the drooling, meth-addled retards who keep electing him.

It would be comforting to write this off as another Judd-ism, write a blog post about it, and put the incident behind me.  I don’t even live in Florida anymore; to hell with the place.  This case, however, goes too far.  Consenting adults, in the sanctuary of their own home, filmed themselves having sex — and by all accounts, the content they produced was pretty vanilla (e.g. no fisting, no watersports, no extreme bondage or BDSM, etc.).  In addition, the couple wasn’t exactly rolling in dough from this venture: by available reports, their porn activities brought in $700 per month. (Source.)
Enough for a few nice meals, sure, but not enough to finance a credible criminal defense.

Never one to let common sense or the First Amendment to come between him and a camera, Judd went to the press shortly after these arrests. Fox 13 had the initial interview.

“We want a wholesome community here, we don’t want smut peddlers,” Judd said, “and if they try to peddle their smut from Polk County or into Polk County we’ll be on them like a cheap suit.”

[...]

“They should heed the warning: If you engage in creating or selling obscene materials we are going to lock you up, and we enjoy that,” he said.

The profundity and wisdom of Judd is matched only by Yoda himself.  The last time I checked – I’m only a First Amendment attorney – “smut” is not a prohibited form of speech, much less a recognized category of speech.  Child porn is not protected by the First Amendment.  Nor is obscenity.  Smut, whatever the hell it is defined as, is protected by the First Amendment, as is everything not falling within the child porn and obscenity exclusions.  I’ll refrain from picking the low hanging fruit pointing out the hilarious irony of a peckerwood inbred like Judd mocking a cheap suit.

To Judd, this is a big game. He “enjoy[s]” when he can “lock you up.”  He’s not going to let a few founding principles get in the way of getting his jollies.  After a perusal of my prior coverage of Polk County affairs, I realized I’d left something unsaid that I want to say right now.

Grady Judd: fuck you.

And to the people of Polk County who enable this kind of bullshit for decades on end, fuck you, too.

When I’m not blogging, I’m busy running a law firm, Randazza Legal Group.  You may have heard of it; I have the privilege of defending bloggers, decorated war veterans and porn companies from attacks on their free speech rights.  I do not represent Mrs. Taylor or her husband.  I will, however, be making a donation to their legal defense fund.

I encourage everyone else who values free speech to do the same.  Inability to pay should not be a barrier to justice, especially in a case like this where the fundamental right to free expression is at stake.  Making only $700 per month from their adult business operation, Judd probably just expects the Taylors to roll over and plead guilty – quickly.  They shouldn’t, and we shouldn’t let them.  I do not know if this will be the case, but it’s time for someone to end Grady Judd.  Not to beat him, to ruin him.  To bescumber his legacy and make his name forever synonymous with the worst, most oppressive kind of home-grown terrorism that he’s inflicted onto the people of Florida, deserving though they may be, for decades.  I want him to have a forced, miserable retirement, and his children to quickly – in hushed shame – change their last names when he dies, to forever bury the shameful association.  It is long past time for Judd to be forced into the outhouse where he spends most of his time secretly thumbing through a crusty Fredericks of Hollywood catalogue from 1977, panting while doing so, forever. (Proverbially! rhetorical hyberbole ftw.)

Righthaven PWNED — District of Nevada finds Righthaven lacked standing to sue

By Marc J. Randazza

Today, in Righthaven v. Democratic Underground, Case No. 2:10-cv-01356 (D. Nev.), the court held that Righthaven does not have standing to sue Democratic Underground - and hundreds of others – based on the Strategic Alliance Agreement (“SAA”) Righthaven entered into with Stephens Media LLC – previously reported here.

As we predicted, Righthaven has no right to bring copyright infringement suits on behalf of the Las Vegas Review Journal. It’s “assignment” of rights, executed before the suits were brought, clearly shows that it had none of the rights of a copyright holder. The Court held that the clarification of the agreement – executed after litigation commenced – is ineffective because it attempts to change the facts of the agreement themselves, creating standing out of whole cloth, rather than amending or correcting facts erroneously conferring standing.

Righthaven argues that the SAA’s provisions, which necessarily include Section Righthaven from becoming “an owner of any exclusive right in the copyright. . . .,” Silvers, 402 8 F.3d at 886 (emphasis in original), regardless of Righthaven and Stephens Media’s post hoc, explanations of the SAA’s intent or later assignments, (see generally Dkt. #101, Decl. of Mark A. Hineuber; Dkt. #102, Decl. of Steven A. Gibson). Prior to the Assignment, Stephens Media possessed all of the exclusive rights to the Work and, therefore, the right to sue. Because the SAA limited the language of the Assignment, the Assignment changed nothing save for Righthaven’sclaim to have the right to sue. The companies’ current attempt to reinterpret the plain language of their agreement changes nothing. In reality, Righthaven actually left the transaction with nothing more than a fabrication since a copyright owner cannot assign a bare right to sue after Silvers. To approve of such a transaction would require the Court to disregard the clear intent of the transaction and the clear precedent set forth by the en banc Ninth Circuit in Silvers. (op. at 6)

The court goes on to identify Stephens Media, the publisher of the Las Vegas Review Journal, as the real party in interest, dressing down Righthaven as a middle-man to bring lawsuits without requiring Stephens Media to attach its name to the hundreds of actions brought against bloggers and individuals:

Accordingly, the Court dismisses Righthaven from this case. However, Righthaven requests that upon such a finding, the Court grant it leave to join Stephens Media as a plaintiff to cure the jurisdictional defect. Adding Stephens Media, however, would not cure the jurisdictional defect as to Righthaven. Eden Toys, 697 F.2d at 32 n.3 (“While [Federal Rule of Civil Procedure] 17(a) ordinarily permits the real party in interest to ratify a suit brought by 11 another party, the Copyright Law is quite specific in stating that only the owner of an exclusive right under a copyright may bring suit.” (internal citations and quotations omitted).) (op.)

The court saved its most brutal assessment for the end, however, ordering Righthaven to show cause why the Court should not sanction it for failing to identify Stephens Media as an interested party in this suit.  Recall that Righthaven’s SAA with Stephens Media splits the proceeds from the infringement suits 50/50 between the parties.  Yet, Righthaven apparently did not disclose this to the court.  Judge Hunt, who initially issues several rulings favorable to Righthaven on the matter of personal jurisdiction, concluded the Order with the following:

Making this failure more egregious, not only did Righthaven fail to identify Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this District. Accordingly, the Court orders Righthaven to show cause, in writing, no later than two (2) weeks from the date of this order, why it should not be sanctioned for this flagrant misrepresentation to the Court.

We predicted this, and it feels good to be on the right side not only of free expression, but of the law, and history as well.  I have only one word for Righthaven at this time: PWN3D.

Protected Expression or Privacy Violation — Discuss…

(Source)

Acceptable third alternative: Crazy-ass zombie cannibal worshiper needs something better to do with his time.

“kill a cop cop, kill a cop”

By J. DeVoy

I would not believe this if I didn’t hear it myself. Apparently genres have ceased to exist and death metal, long the province of epic tributes to satan and the abyss’ total darkness, now espouses murdering law enforcement officers – normally the subject matter of aggressive rap, Irish tavern songs (Whiskey in the Jar) and Bobby Fuller (“I fought the law and the law won”).

To say this is a disappointment from Morbid Angel is letting them off too easily. Notorious historical figures share my outrage.

Democrat shaming strategy beginning already

By J. DeVoy

In addition to last month’s anemic job growth, other numbers are mounting up against Barack Obama.  In particular, the youth who handed him his 2008 victory, are slowly deserting him.  With 85% of the class of 2011 moving back into their parents’ basements, it’s easy to understand why.  Yes, the president doesn’t control the economy, but he surely hasn’t made it better, or taken actions that would improve the situation – cutting spending, using whatever tools he has to end the Federal Reserve’s quantitative easing program (the most potent of which being to tell people what it is), and not getting into a land war in Libya would be good starting points.

Out of political ammunition and burdened by the yoke of being proven political failures, democrats are using the only blunt tool they can frantically grab: shame.  If you don’t support Obama, you’re racist.  It’s already happening, as the GOP’s initiatives are likened to Jim Crow-era America by the DNC.  As being merely accused of racism has become America’s high holy sacrilege, even if the claim is meritless, the social and professional stigma of not publicly supporting Obama will leave an indelible stink on all Americans who are not right-thinking and right-voting (and who have dulled their senses enough to find Jon Stewart funny).  Imagine the folly of those who dare to criticize him!

If Obama wins re-election, it won’t be based on substance.  There’s very little of it, and what we’ve seen is unimpressive.  Still waiting for those Bin Laden death pics, dude!  Instead, victory will be achieved by convincing average people that they’re bad – even worse, racist – for not attempting to fix something that’s very clearly broken.

Reps. Lee and Weiner: The case against pay dating sites

By J. DeVoy

While normally totally useless, Congress has taught us quite a bit about online dating.  Namely, paying for it is a fool’s game.  Chris Lee trolled for women and transsexuals on Craigslist.  Weiner, now infamously, used twitter and facebook to set up his fwb’s.  I have no judgment about what these men did or liked, other than believing Weiner is a dumbass for crafting an elaborate web of lies that later collapsed under its own weight, and deserves to lose his office for that alone.

What do all of these services have in common? Craigslist: FREE. Facebook: FREE. Twitter: FREE AND UNPROFITABLE. ALL OF THEM ARE FREE.  Why are you paying $12-20/mo for Match.com when dudes obviously are having success using Facebook and Twitter and, hell, even Craigslist?  Niche dating sites make sense, and I would pay $20/month for conservative-future-stepford-wife-in-a-sundress-dating.com if it had real female members.  But for an aimless service like Match.com when you just want to hook up?  Skip the charade of dating and go the free, somewhat seedy routes; clearly it’s where all the action is.

Wingsuit Flying

By J. DeVoy

via Ferdinand Bardamu at his new NSFW project, Ephemeral Notebook, a collection of short rants, cool links and naked ladies.