When “Support” is Really a “Tantrum”

Facts are sexist!

Ann Bartow posted a piece over at Feminist Law Professors that started out seeming to be a rather nice bit supporting Prof. Mark Lemley, one of the attorneys representing Brittan Heller and Heide Iravani in the AutoAdmit suit, — and a defendant in Anthony Ciolli’s countersuit — a case that the Eastern District of Pennsylvania has allowed to go forward — in part.

Bartow writes:

Mark Lemley got involved with this case, in my opinion, because he is a progressive, good-hearted, moral and generous person. (source)

I can’t be sure why Lemley got involved in that case. I directly asked him that question, and he didn’t answer me. Nevertheless, I believe that Prof. Bartow’s assessment of him is accurate. He does seem like a genuinely good-hearted, generous, and moral person, and I have never heard a single person say otherwise. His involvement in the case did puzzle me, which is why I asked him about it. While his silence was disappointing, I can understand that for liability reasons, it was better that he not reply.

I suspect that he got bamboozled into the case — that he wasn’t told the whole truth until he was already waist deep in the muck, and then it was too late to back out gracefully. Accordingly, I think it is kind of nice that Bartow supported Prof. Lemley. Hell, the man was one of my heroes before I saw the Auto Admit case with his name on it. I still reverently respect him and personally like him, and a part of me hopes that he can disprove the allegations against him. However, if the allegations do stick, like him or not, adults must answer for their actions.

Regardless of Lemley’s motivations, Prof. Bartow’s piece is not at all about supporting Lemley. Behind all of her compliments for him, this post is just Bartow’s latest anti-free-speech diatribe (see commentary on a previous one here), further demonstrating that second-wave feminists have turned the Auto Admit case into their cause-celebre. They just can’t wrap their heads around the fact that sometimes, occasionally, the poor female victim(s) can lie, be spiteful, be unethical, be misled, or just plain wrong. Or, if they can wrap their heads around it, they would rather set themselves on fire than admit it.

Bartow writes:

[I]t seems pretty obvious to me why Anthony Ciolli was named in the original law suit. ISP immunity under Section 230 does not apply to the authors of contested material. Ciolli was clearly posting comments at the AutoAdmit discussion board under at least one pseudonym, “Great Teacher Onizuka.” The plaintiffs had every reason to suspect that he was posting under others as well, and that he could have been personally responsible (and liable) for some of the actionable material. They could not rule him out without conducting discovery in the context of litigation, and they could not do a thorough investigation of the matter unless Ciolli was a named party. Once the plaintiffs knew either that Ciolli was not a bad actor or that they would be unable to prove that he was a bad actor, they dismissed him. Any competent lawyer would have done the same thing. This is Civil Procedure 101. (emphasis added)

Ciolli was “clearly” posting under a pseudonym. Was he? Was it clear? Was it about the girls? Was it negative? Then why include this?

Lets teach Prof. Bartow a little bit about Civil Procedure. Or, better yet, lets teach everyone else about it, because I can’t see Bartow getting off her shrill perch — but I’d rather not let people in the blawgosphere be misled.

Even if Ciolli were not a defendant, the plaintiffs would have had every right to subpoena and depose any person who may have possessed relevant information. In fact, after Ciolli was dropped from the case, Heller and Iravani’s lawyers did, indeed, take his deposition to make sure that they did not leave any stones unturned. Any competent law professor would know that this was not only possible, but proper. Any competent blogger would have at least read Ciolli’s complaint to find that fact. But, lets not let a pesky thing like the facts get in the way of a Dworkin wanna-be’s tirade.

If the reason Heller & Iravani sued Ciolli was because he “might have” posted under multiple personas, then why did they not name each and every moniker on Auto Admit? Everyone on Auto Admit could have had multiple monikers. In fact, law professor Brian Leiter is rumored to have posted on Auto Admit under the name “Tokyo Rose.” I posted on AutoAdmit under my real name. Why not name me? By Bartow’s post-hoc rationalization, Leiter and I both could have been one of the defendants until we were ruled out in discovery, no? Furthermore, if there was ever a suspicion that Ciolli used another moniker, then why wasn’t that allegation ever made, on information and belief, in the complaint?

I’ll tell you why not, because the Plaintiffs’ own published statements contradict Bartow’s made up “facts.” The “theory” that Mr. Ciolli was another pseudonymous poster never arose until Heller & Iravani’s lawyers started grasping for a way out of possible sanctions, and their cheerleaders started to see their lovely pre-packaged daydream unravel.

A competent attorney does not file suit against each and every person who could hypothetically be a defendant. (As in if the facts and the law were stretched like a goatse about to snap). If that were the case, then every lawsuit would name hundreds of defendants, including people who did nothing wrong, and let discovery sort out who was actually liable. Meanwhile hundreds of additional defendants would need to report that they were defendants in civil actions and live under the cloud of litigation while plaintiffs took their own sweet time figuring out if they had sued the right person. No, it doesn’t work that way and Professor Bartow should know that.

Bartow then throws out her own “theory.”

My theory on why Ciolli is suing Lemley and the plaintiffs? To scare away other potential plaintiffs, and to discourage other lawyers from representing them.

To scare other potential plaintiffs who might bring a lawsuit against him? I should hope so, since pages 23-29 of this decision make it pretty clear that Ciolli has brought a proper claim for wrongful initiation of civil proceedings against Iravani and her attorneys. Ethics and judgment are supposed to discourage lawyers from bringing baseless claims. It is a shame when someone must file suit in order to “scare” potential plaintiffs from abusing the courts and filing frivolous claims for an improper purpose.

The AutoAdmit case has been shown to be more of a shakedown, legal extortion, than a suit calculated to vindicate any real legal interests. While some might point out that over-inclusiveness and scattershot complaints are more common than I might like, the fact is that Bartow’s post is less about backing a nice guy – and more of a way of backpedaling and acting as an apologist for misuse of the legal system. Ethics matter, and the reason that so many lawyers miss that lesson is professors like this seem to disagree.

Ciolli had some pretty damning evidence to present in his case. Unfortunately for him, the E.D. Pa. ruled that it was excluded by FRE 408. Lets sit back and see if Ciolli’s lawyer in that case can find an alternate way of getting the information before the court. If he can, I’d imagine that Ciolli will prevail — which will probably give Bartow an excuse to blame it on the “patriarchy,” because in Bartow-world, the only women who are ever wrong or ill-motivated are those who disagree with her.

Tennessee Court Upholds the Right to Remain Anonymous

by Jason Fischer (follow me on )

Defamatory material, like obscenity, is not protected by the First Amendment. But just like obscenity, a particular message cannot be considered defamatory until it has been adjudged to be so by a court of competent jurisdiction. A Tennessee court, recognizing this principle, allowed a blogger who is accused of publishing defamatory comments to remain anonymous, absent a prima facie showing that the plaintiffs have in fact been defamed. (source)

Remember: If you don’t have anything nice to say, you should just say it on teh Internets

by Jason Fischer (follow me on )

Google was in court this week over allegedly defamatory comments made on an anonymous blog that the search giant hosts. Chris Thompson’s post describes the gory details, including references to two of our favorite cases: Hot Chicks With Douchebags and AutoAdmit.

Update: If you want to start an anonymous blog, here are some guidelines.

James Madison – 18th Century Spammer?

by Jason Fischer

Virginia’s Attorney General is trying to override a ruling of that state’s highest court, which struck down an anti-spam law as violating the First Amendment. The law, as written, did not limit potential violations to the sending of purely commercial spam emails. Since the legislation made it possible to prosecute senders of, for example, bulk political emails, Virginia’s Supreme Court held that it was no good.

“[I]f the Federalist Papers were written today and disseminated by e-mail, the sender would be guilty of a felony under Virginia’s anti-spam statute.” (source)

What about that Algerian prince who keeps contacting me? Are his emails “political” speech, like the Federalist Papers?

Personally, I have a hard time accepting that the Framers intended that stuffing my Inbox with unsolicited communications, whether containing commercial speech, political speech, or otherwise, should be a fundamental right. The concept of Free Speech, as I understand it, is meant to protect one’s ability to express their own viewpoint and opinion, without fear of persecution. If someone doesn’t like my particular viewpoint, they should be able to ignore it by refusing to purchase the newspaper that features my editorial, or changing the channel, or simply not listening. The analogy to bulk email is imperfect; I cannot “ignore” or “refuse to accept” an unsolicited communication from a spam emailer. Unless I had “opted in” to receive The Federalist Papers as an email, I would not have wanted Madison and Hamilton sending me their political message.

I guess Harbin and I won’t agree on this one.

Judge Warns Litigants Against Unprofessional Litigation Tactics

For those of you who are new to the profession, or those of you who are simply wondering why your job as an attorney is so stressful, David Maister offers some advice.

The toughest lawyer is not the one who is the most obnoxious. Clients will say they want a tough son of a gun to make somebody life’s miserable, a real bulldog, etc.

Don’t be that person. It’s been my 100% uniform experience that the bulldog only adds time, expense, stress and confusion to an otherwise inevitable result. Even clients can’t stand them after a couple of months. You want to be tough? Have the best preparation on the facts, the law and the strategy. Judges care only about those things, not a whit for bluster. Bullies are jerks, they wreck the profession for everyone, and you can beat them every time.

And finally and hands down most importantly, and please pass this on to your friends and your children, because it’s really important — Be nice and have fun. Just doing that makes life better for everybody, mostly you.

Fortunately, most of the lawyers I have met as opposing counsel already know this. I learned it very early in my career from a great guy in Fort Myers, and as a result, most of my best friends in the profession are former opposing attorneys. Unfortunately, I have encountered my fair share of douchebags in this profession as well. That’s fine, I think that despite Maister’s wisdom, one does need a punching bag to get out one’s aggression — douchebag lawyers serve that purpose for me.

In an ongoing SLAPP suit in Arizona, it seems that someone has been ignoring Maister’s advice and engaging in a little bit of litigation douchebaggery. See Best Western v. Doe, Case 2:06-cv-01537-DGC (D. Ariz.)

The Court assumed that the case would settle or be tried in a relatively simple proceeding. The Court again was wrong. On October 15, 2008, the parties filed 2,939 pages of material. These include a 125-page joint proposed final pretrial order, 31 motions in limine, and three longer motions that should have been motions in limine. In a remarkable feat of microscopic dissection, the parties sliced four modest claims into 51 separate factual disputes and 30 issues of law. Plaintiffs listed 52 potential witnesses and Defendants listed 69. Plaintiff listed 434 exhibits (with 175 pages of objections to defendants’ exhibits), and Defendants listed 320 exhibits (with 63 pages of objections to Plaintiff’s exhibits). The parties claim the need for 102 hours of trial time, which would require a five-week trial.
These filings are wasteful in the extreme.

The Court is not a forum for the parties to expend every possible dollar seeking to litigate every conceivable issue, no matter how insubstantial. The Court will no longer tolerate the excesses of this case. (Op. at 3-4, emphasis added)

HT: Eric Goldman

Memphis Police Director Targets Anonymous Bloggers

By Sam Lea,
Legal Satyricon Correspondent

Memphis Police Director Billy Godwin has filed a lawsuit aimed at discovering the identification of the persons behind a Blog that is particularly critical of the Director as well as the Memphis PD (source ). The Blog is known as MPD Enforcer 2.0, which has become a popular place for Memphis Police Officers to anonymously vent their frustrations with the Department and its leadership.

Most of the documents associated with the case have been sealed by the court, so it is unclear if the objective of the suit is to simply identify “leaks” in the department, or if it is to simply shut the site down. Memphis Police officials have refused to comment on the pending legal action, but what is clear is that the actions taken by the City of Memphis on behalf of Director Godwin have stirred up a hornet’s nest of controversy over the right to anonymous speech.

The person responsible for the blog identifies himself only as “Dirk Diggler” (name of the porn star in Boogie Nights). In an anonymous interview, Mr. Diggler states that he found out about the suit only after receiving an email from AOL which contained a copy of the subpoena requiring them to hand over “all information related to the identity of an email address linked to the site.”

Recent decisions dealing with anonymous speech on the internet appear to be in favor of preserving the right of an individual to remain anonymous, requiring the plaintiff’s claims to be able to survive summary judgment (Cahill v. Doe), with some courts requiring a “prima facie” showing that he or she has a valid legal claim (Krinsky v. Doe).

However, this case is unique in that it involves a public agency and public employees. The courts have routinely recognized that the state possesses great leeway to control employee speech that threatens to undermine its ability to perform legitimate functions. Director Godwin may contend that the Blog undermines the leadership of the MPD, which may have adverse effects on its ability to effectively prevent crime.

However, along with his criticism of department leadership, Mr. Diggler claims to only post blogs based on information already available to the public, so the Pickering Test (clicke here) and its progeny would likely protect the anonymous bloggers if some sort of retribution is sought by the department. After all, corrupt, ineffective police leadership is a matter of public concern. The problem is that these protections will only be available once they are ousted.

Mr. Diggler claims the suit has already had a “chilling effect” on officers contributing to the site. If their names are revealed it would effectively shut the site down and Director Godwin would achieve his objective without even continuing the suit. Can you say SLAPP suit?

Gators Attack Juicy Campus

University of Florida Student Body President, Kevin Riley, and Chief Information Officer, Marc Hoit, recently issued this letter to the Florida Attorney General asking that the Florida Office of the Attorney General launch an investigation into Juicy Campus, the well-known gossip site. They did not elaborate on what kind of investigation they expect the state to launch.

I agree that JuicyCampus.com contains terribly defamatory posts about many people. However, if you are gullible enough to believe anything you read on JuicyCampus.com, your opinion cannot be all that influential. I also think that asking the government to launch an investigation because a few thin-skinned people have had their feelings hurt is asking for a level of governmental paternalism that used to (in my day) piss college students off. Kids these days…

The letter reads:

“[JuicyCampus] is used to anonymously post gossip regarding students. The anonymity, and the guarantee that information about a user’s identity will not be tracked, provided by JuicyCampus emboldens users to post false and damaging statements about others. These posts often amount to cyberbullying and raise issues of public welfare and safety.” (source)

Mr. Riley and Mr. Hoit, in their zeal to go crying to the teacher, seem to have neglected to do their homework. JuicyCampus.com is protected from liability for the actions of its users by 47 U.S.C. § 230, which was passed in order to ensure that online businesses would not have to grind to a halt while they police their users’ actions. The phone company is under no obligation to make sure you don’t use your phone to set up a contract killing, a drug deal, or to make sure you don’t say nasty things about your co-workers. Similarly, internet service providers should receive the same laissez-faire treatement, lest censorship become the bastard child of technology. See Robert Corn-Revere, New Technology and the First Amendment: Breaking The Cycle of Repression, 17 Hastings Comm. & Ent. L.J. 247, 264 (1994). Naturally, the internet =/= phone lines. However, unless the website in question actually assists in the production of the offending material, it is not liable. See, e.g., Craigslist Wins Section 230 Case. The much-misunderstood Fair Housing Council v. Roommates.com decision did not change that rule, but rather reinforced it. In that case, Roommates.com provided pull-down menus that guided users to create potentially discriminatory housing postings. Therefore, they lost their Section 230 immunity. Craigslist is, like JuicyCampus, free-form and fully protected.

Despite their claim that JuicyCampus raises issues of public welfare and safety, the signatories of this foolish missive appear to be clueless as to how JuicyCampus has cooperated with the authorities in the past.

In situations where Juicy Campus posts have crossed the boundary from nuisance or harassment to outright threat, the site has cooperated with authorities. In December, Carlos Huerta, a senior at Loyola Marymount University, in Los Angeles, posted a message on Juicy Campus alleging that he would start a shooting spree on campus. At the request of the police, Mr. Ivester traced the threat to Mr. Huerta, who was arrested and released without charges. (source)

I agree JuicyCampus most likely hurts a few people’s feelings. There may even be an anecdote or two that raises the complaints beyond mere alligator tears. However, the vast majority of the content on JuicyCampus is innocuous or just plain silly. It seems to me that the only purpose served by this letter was a desire to appear to care about a non-problem.

I have been to bathrooms at the University of Florida where I saw defamatory material written on the wall. No investigation was launched – at least not at the level of the state Attorney General – and nobody called for the building to be torn down. The logic of blaming the forum for the actions of the participants is as illogical as closing a public park because someone held up a defamatory sign.

Section 230 is an example of Congress getting an issue right — internet commerce must be allowed to grow, even if that growth causes a few stretch marks.

Kevin Grierson said:

I don’t think it’s the job of the law to limit the options of law-abiding citizens and businesses because of the potential harm to the Darwin-Award-winning segment of our society.

Similarly, it is not the job of the state to intervene in every example of hurt feelings – even if it is a widespread issue. The next time you take a flight, look at the immense hassle you have to go through. Flying in America is an experience that is a pain in the ass because we passed rules designed to affect the behavior of a few of the worst people in society. Then, we handed the rulebook to dumbest nitwits we could find. Do you really want the government passing rules and launching investigations that may wind up placing the same kind of restrictions on the greatest tool for mass communication ever invented? I sure don’t.

If a student feels aggrieved by the content on Juicy Campus, he or she has the right to file a private cause of action. If the speech rises to the level of a true threat, the police will get involved. Asking the government to launch an investigation into a public forum because of the actions of a minority of participants in that forum is an act of abject foolishness.

There are some areas where the government should never venture – including criminal investigations of activities involving free speech. Fortunately for us, I do not believe that Bill McCollum will take any action. Mr. McCollum, a die-hard Republican, has an excellent record when it comes to free speech issues. McCollum has tirelessly pursued child predators and human traffickers, but he has courageously resisted calls from social conservatives to investigate and prosecute mainstream pornography. McCollum understands the meaning of being a conservative, and is not likely to intervene in a situation that could be cured either through the marketplace of ideas or over-cured by government intervention.

I don’t mind Mr. Riley or Mr. Holt raising the alarm about Juicy Campus. They were well within their First Amendment rights to express their opinion, and to petition the government to take any steps they liked. They crossed the line by purporting to speak for the tens of thousands of students at the University of Florida. I called McCollum’s office, which confirmed that there has been exactly ONE complaint about Juicy Campus by University of Florida students — and that was launched by the student body president himself. Who were these two ass-hats speaking for but themselves?

I encourage Mr. Riley and Mr. Holt to do their homework before they try to start a government investigation into people saying naughty things about one another. I have always found the University of Florida to be a shockingly intellectually complacent institution (and yes, I am a Gator), but this is a new low. Had this been a less enlightened attorney general, their foolish letter very well could have caused real damage to free speech on the Internet.

Memphis Police Sue to Out Anonymous Critic

From Commercial Appeal via hawkhead at biglawboard

Memphis Police Director Larry Godwin and the city of Memphis have filed a lawsuit to learn who operates a blog harshly critical of Godwin and his department.

The lawsuit asks AOL to produce all information related to the identity of an e-mail address linked to MPD Enforcer 2.0, a blog popular with police officers that has been extremely critical of police leadership at 201 Poplar.

“In what could be a landmark case of privacy and the 1st Amendment,” the anonymous bloggers write on the site, “Godwin has illegally used his position and the City of Memphis as a ram to ruin the Constitution of the United States. (source)

There is a suggestion that this may have something to do with stopping investigation leaks, so I’ll reserve judgment for the moment. However, it certainly looks like an angry public figure stomping on the First Amendment. Comments from anyone who knows more about the case are invited.

Pseudonymous Speech and Message Board “Acting” and the AutoAdmit Case

A fascinating post on Big Law Board:

Isn’t it obvious, from all we’ve seen throughout the years on various message boards, that monikers are mainly acting names behind which someone hides in order to provide entertainment value for the owner of the moniker and/or others?

Now, I don’t condone the googlebombing and outing of the female Does in the XOXO case, and I think they will get what’s coming to them for causing damage to REAL law students, but I believe some of them just made some stupid comments, not directed at any one person, all in the name of acting and entertainment.

If Brad Pitt starred in a movie, playing a role as a racist asshole, that’s fine. What’s the difference? Teh interwebz should allow for acting without the formal title of “actor.” (source)

This seems like a valid point. As the court noted in Reno v. ACLU:

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.

If that is the case, then why can’t everyone also be an actor? I follow a few chat boards, and I do enjoy waiting for the next hilarious post by “Creepy Old Guy” or “Pale Blue Dot,” and I am certain that the real-life people behind these monikers are nothing like their online personas. And, I don’t expect them to be.

“Room 8″ Subpoenas and Prosecutors Running Wild

This post is a corrected version.

The New York Times and Simple Justice report on a Bronx District Attorney’s First Amendment overreach.

Somebody in the Bronx District Attorney’s office (nobody is taking credit for this foolishness) claims to have been investigating some poorly written death threats. (source) In the process, they issued a subpoena to the New York Political Blog Room 8 for the identity of some anonymous commenters.

The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”). Naturally, that freedom is not absolute, and a death threat

The petty little nazi who issued this subpoena wanted to make sure that he didn’t get whacked with a Streisand-Dozier effect so, for good anti-First Amendment measure, he added this line to the subpoena:

DO NOT DISCLOSE THE EXISTENCE OF THIS REQUEST BUT UPON THE ORDER OF A COURT OF COMPETENT JURISDICTION. ANY SUCH DISCLOSURE COULD IMPEDE THE INVESTIGATION BEING CONDUCTED AND THEREBY INTERFERE WITH LAW ENFORCEMENT.

Yes, apparently the Bronx D.A. has joined Dozier in thinking that he too can issue unconstitutional faux national security letters in order to try and quash criticism.

Not on Paul Alan Levy’s watch! Paul (today’s First Amendment Bad Ass Award Winner) jumped into action and gave the Bronx D.A. a royal PWNING. They have since retracted the subpoena and run off into the corner like the scummy little roaches they are.

Auto Admit Update

I have been meaning to blog about this, but I’ve been obsessed with fatherhood… fortunately, Dave Hoffman over at Concurring Opinions sums up the pwnage that was visited upon AK47 here.

AK47 Comes Back Swinging

AutoAdmit pseudonymous defendant “AK47″ has made a few errors in judgment. First his statements on the AutoAdmit board. Bad judgment? Yes. Legally actionable? Probably not. But, that didn’t stop anyone from including him as a defendant.

Next error in judgment – this pro se motion to quash.

Back on February 28, I wrote:

My prediction — had Mr. AK47 written his motion a little more skillfully, he might have had a great chance. Unfortunately for him, the motion is so poorly drafted that it will take some charity on the Court’s part for it to fly. I hope that for the First Amendment’s sake, the judge is feeling the love.

It appears that my prayers were answered by the First Amendment gods, because Judge Droney took the very unusual measure of appointing pro bono counsel for AK47 – John R. Williams (who seems to be pretty bad ass).

Williams argued the Motion to Quash on May 5. As a result of Williams’ work at that hearing, Judge Droney ordered Plaintiffs counsel to brief him on whether the court has subject matter jurisdiction. As discussed here, the entire case could potentially unravel, depending on how the judge rules on the subject matter jurisdiction question.

Plaintiffs counsel responded with this memorandum. I am not very impressed. I’d have given it a D plus if it were submitted in one of my classes.

Today, AK47’s attorney really opened up a box of PWNAGE. If Mr. Williams is correct, then the plaintiffs made a pretty bad tactical blunder (as if filing this frivolous case wasn’t enough of a blunder).

First off, it seems that Mr. Williams found the same ironic quote authored by the Plaintiff’s counsel:

The plaintiffs’ lead attorney in this case has appropriately written that “[b]y mischaracterizing tort claims as copyright claims, plaintiffs seek to take advantage of a more favorable legal regime. This sort of gamesmanship is undesirable.” Lemle, “Rationalizing Internet Safe Harbors,” Stanford Public Law Working Paper No. 979836 (April 10, 2007), http://ssm.com/abstract=9798736. That, of course, is exactly what the plaintiffs have done here. The only basis for federal jurisdiction of this action is the plaintiffs’ claim that one of them, Doe I, “owns valid copyrights in her photographs and has registered these copyrights with the United States Copyright Office.” The plaintiffs now admit that Doe I has no such copyright at all. They argue, somewhat disingenuously, that this inaccurate claim was a mere “typographical error” and that another plaintiff in fact owns and has registered a copyright.

D’oh!

The Lemley-PWN aside, is Attorney Williams making too much hay out of a mere “typographical error?” Normally, I would say so. However, upon closer inspection of the argument, he seems to have a point. It seems that the plaintiffs have had multiple chances to fix the “error,” and only now raise it as a “typo.” Further inspection of the pleadings leads to the suggestion that perhaps it was not a typo at all.

Then comes the jurisdictional whup-ass.

The federal jurisdictional “hook” upon which the plaintiffs rely is gossamer thin in any event, as demonstrated by the fact that in their briefs opposing the motion to quash they do not even attempt to argue that they can win their copyright action. That it was manufactured specifically to allow the plaintiffs to get into federal court with their state law case can hardly be doubted, since the alleged copyright was not registered until a mere two days before this suit was filed, and it was registered by the plaintiffs’ attorney in this action. (source)

I don’t know if Judge Droney will simply toss this action – but he certainly seems to have adequate grounds to do so.

Read Williams’ memo here.

AutoAdmit update – AK47 motion to quash argued – plaintiffs respond

Pseudonymous defendant, AK47, had his motion to quash heard on Monday, May 5. He was represented by court-appointed counsel.

The fact that the court appointed counsel to represent AK47 in a civil case suggests that Judge Droney realizes the important First Amendment issue in this case, and he does not want to wind up being the judge in a “bad case” because the party was incapable of making his arguments pro se.

Judge Droney did not rule on AK47’s motion yet. He did ask plaintiffs’ counsel to file a supplemental memorandum within one week on whether the court has subject matter jurisdiction. That memorandum is attached here.

All of the claims in this case are state law claims except the copyright infringement claim. It is upon that claim that the entire federal case hinges, and that claim is (at best) only valid against one defendant — and questionable (at best) against even that single defendant. If that claim vaporizes, the whole federal case might be dismissed.

The supplemental jurisdiction argument seems rather flimsy. Allegedly, someone took a photograph of one of the plaintiffs from a public website, where she had posted it, then uploaded it to a website called “hide behind.” Technically, yes, that is copyright infringement (unless it was fair use, an issue I will not spend my time analyzing at this point). Then, someone linked to those images from other websites.

Since the copyright in that image was not registered until after the infringement, the only damages available are actual damages or disgorgement of the infringer’s profits — no statutory damages nor attorney’s fees are available. Since we are talking about a personal photo, not a commercial image, nor are we talking about a photo used for profit, the “actual damages” from the copyright infringement are unlikely to be more than a token amount.

This case is not about copyright infringement. The “real claims” are appropriation of another’s name or likeness, unreasonable publicity, false light, intentional and negligent infliction of emotional distress, and libel. If those claims have any merit against any of the remaining defendants, then those claims are more properly litigated in state court.

The copyright claim seems to be a manufactured excuse to get this action into federal court. As the plaintiffs own attorney has written. “By mischaracterizing tort claims as copyright claims, plaintiffs seek to take advantage of a more favorable legal regime. This sort of gamesmanship is undesirable.” Rationalizing Internet Safe Harbors, Mark Lemley at 11.

A constructive way to deal with offensive anonymous speech

Princeton University students seem to have figured out that the cure for bad speech is good speech, not crybaby censorship or really stupid lawsuits.

Maybe they should send Yale the memo.

See Fighting Gossip With Graphics

AK47 Pwned

Excuse me while I greedily devour this slice of humble pie.

It appears that the statements made by the infamous “AK47″ were far worse, and more extensive, than those that appeared in the AutoAdmit complaint.

I have previously railed against AK47, but suggested that he should be outed by a bounty, rather than by a subpoena. See here.

It appears that Keker & Van Nest opened up the whup ass file in drafting this opposition to AK47’s terrible motion to quash. However, I must say that it was a whole lot of overkill. The same thing could have been accomplished in a one-line opposition “the issue is moot.” Apparently, AT&T has already outed AK47. Accordingly, the 29 page opposition is a bit puzzling.

My guess is that KVN must be using this case as a “training exercise” for its younger attorneys. Otherwise, I can’t see why they would be going to the wasteful lengths they have thus far.

If you want to see the dumbest thing ever done in litigation, feast your eyes on this letter that AK47 sent to the Plaintiffs’ attorneys.