Another Amended Complaint in the Auto Admit Case

The Auto Admit plaintiffs have finally named a defendant. Other than that, not much of note in this latest installment in the AutoAdmit saga. The plaintiffs claim complete diversity of citizenship with respect to the new named defendant (formerly identified only as “:D”). However, they don’t make any such statement with respect to all the other defendants. Given the flimsy copyright claim in this complaint, I presume that the plaintiffs are trying to manufacture diversity jurisdiction. However, given the statements in the complaint, it seems like there couldn’t possibly be complete diversity with respect to all plaintiffs and defendants.

At paragraph 7, the plaintiffs seem to be invoking the Calder v. Jones standard for personal jurisdiction. Some courts still follow Calder in the internet context. I look forward to seeing how the D.Conn handles it.

At paragraphs 44 and 59, the plaintiffs include some nasty, offensive, and mean language posted by the newly-named defendant. However, I fail to see what is legally actionable in those statements.

What I find shocking is that this complaint still names some defendants who could clearly prevail in a motion for judgment on the pleadings. “A horse walks into a bar” - to name one. I’ll wear a New York Yankees T-Shirt for 24 hours if anyone can put forth a non-frivolous argument to support keeping him in this action.

In other words, the long-awaited amended complaint is a big yawn. The only really interesting thing about it is how sloppy it is. Of course, the sloppiness pales in comparison to this.

IDENTITY UPDATE

For anyone who is curious, I have personally spoken to the University of Texas adjunct who happens to bear the name of the newly-outed defendant (Matthew C. Ryan). He IS NOT the person in question (”:D”). I would appreciate it if any readers would keep that in mind, and educate anyone who might hold this mistaken belief. I can confirm with 100% certainty that the guy in the complaint is neither an attorney nor a law professor.

I find the press coverage on this case to be terribly irresponsible. Listing a name like this without doing some basic fact-checking to figure out if they have the right man seems to be foolish (from a legal standpoint) and shameful (from an ethical standpoint).

So far, it seems that the only people who have been made to suffer from the inception of this complaint are “collateral damage” parties.

Where is Richmond, again? D’OH!

Check TEH MAP before filing!

Another Update - in the little discovery skirmish going on in this case in the Western District of Virginia, we have the following lulz.

This matter is before the court on the motions to quash third party subpoena to AOL, LLC of non-party movants Anthony Ciolli, Jane Roe and John Roe. After reviewing the record in this case, the court is now concerned regarding the validity of the subpoena at issue and its jurisdiction to enforce said subpoena. Federal Rule of Civil Procedure 45(a)(2)(C) requires that a subpoena for production or inspection must issue from the court for the district where the production or inspection is to be made. In this case, the subpoena in the underlying case of Doe I and Doe II v. Individuals whose true names are unknown, et al., Civil Action No. 07:CV00909, filed in the District of Connecticut, was issued from the Western District of Virginia but was directed to AOL, LLC at its office in Richmond, Virginia and requires production at the Ikon location which is also in Richmond, Virginia. Richmond is in the Eastern District of Virginia, however, not the Western District. Therefore, it appears that the subpoena at issue in this matter may be invalid on its face as it was issued from the wrong court.

Before issuing a ruling on the motions to quash, however, the court invites the plaintiffs to submit a supplemental memorandum of law addressing the validity of the subpoena directed to AOL, LLC. Any such supplemental memorandum must be submitted to the court within ten (l0) days from the date of this Order. The non-party movants will then have seven (7) days from the date any such supplemental memorandum is filed in which to file a response.

I look forward to seeing that memo. How many times can one firm fumble the ball in a single case?

If you are going to lie in a UDRP case - at least be smart about it! Hydentra, LP. v. Xedoc Holding SA

The recent domain name decision, Hydentra, LP. v. Xedoc Holding SA, WIPO Case No. D2008-0454 is of interest for a few reasons:

The Best Part - Cybersqatter Busted and PWNED

The Complainant alleged that the domain in question, metart.com, was owned and controlled by a man by the name of Slavik Viner. The Complaint further alleged that given Viner’s standing in the adult entertainment community, he must have known about the Complainant’s trademark and website (www.met-art.com) when he registered the domain in question, www.metart.com.

The Respondent claimed that Mr. Viner was not the owner of the domain name.

In support of its position, the Respondent also files a declaration in the name of Paul Raynor Keating that is said to be given “under the penalty of perjury”. Mr. Keating asserts:

(i) That he is an attorney licensed to practice by the State of California.

(ii) That he is a director of the Respondent and familiar with the ownership of the corporation and that “Mr. Viner is not listed in the records of the corporation as a shareholder”. (source at 5.22)

Perhaps Mr. Viner was “not listed in the records of the corporation as a shareholder,” but does that make the statement honest? Lets keep exploring:

The respondent then continued to deny any involvement by Mr. Viner:

“Mr Viner does not control all or any part of Xedoc. Xedoc is a duly registered Luxembourg corporation. None of its shareholders are US citizens or residents. Its directors are publically listed. They include Mr. Keating who is a director of a number of corporations”. (source at 5.26)

The Panel was provided with various emails between the Respondent and the domain broker.

Some of these are redacted but an explanation of this is given in a footnote. In particular, the Respondent states: “Some documents may have been partially redacted so as to preclude the inadvertent disclosure of highly confidential information such as bank account numbers, user names, passwords and the like.”(source at 5.17)

However, it seems that more than this “highly confidential” information was redacted.

Complainant’s Response to the Respondent’s Supplemental Submissions

5.29 The Complainant contends in this particular submission that notwithstanding the Respondent redaction of certain emails appended to its submissions, it was possible for the Complainant to see what was behind those redactions. In particular, some text was not fully obscured and when the pdf text was copied by it to a Microsoft Word file, the redactions disappeared in their entirety.

5.30 Once these redactions are removed, the Complainant contends that it is apparent that Mr. Slavik Viner was the individual who conducted the negotiations with Sedo in relation to the purchase of the domain name. (source at 5.29-5.30)

Oh SNAP! It is bad enough to be PWNED for lying to a tribunal — it is even worse when you get caught by being so utterly stupid as to not know how to properly obscure text in a PDF document!

5.31 As a consequence the Complainant contends that the Respondent has sought to deliberately hide Mr. Viner’s connection with the Respondent. Further, since the material discloses Mr. Viner’s email address, the Complainant has been able to discover further evidence to show that Mr. Viner frequently frequents and posts on various “adult webmaster forums” and it is “not conceivable that he would not be aware of one of the most well-known adult nude photography sites in existence”. (source at 5.31)

This is why even if you are ethically-challenged, honesty is still the best policy. You never know when a dumb maneuver will reveal your lack of honesty for all the world to see.

Although this is the most interesting part of this decision, there are other issues of interest:

Sam Brownback Can’t Spell Irony

One of my favorite targets for the ass-hat award, the normally-uber-swine Sam Brownback is on the right side of an internet freedom issue.

The Chinese government (enshrined with a permanent ass-hat award) monitors all internet service in the country, and has required foreign-owned hotels to install snooping equipment. Sam Brownback is outraged and held a press conference.

No mention was made, during the grandstanding, of the Bush Administration’s monitoring of animal rights, environmental and poverty relief activists, as documented by files released in 2005 as a result of a series of Freedom of Information Act lawsuits by the American Civil Liberties Union. (In those cases, the monitoring was done by the FBI.) (source)

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.

Kevin Martin, at it Again with his “Porn Free Broadband Proposal”

One wonders what awful experiences in Kevin Martin’s life must have twisted him into the modern day Comstock. His latest proposal is to provide free broadband nationwide, but the company that gets the bid (under little Kevvie’s proposal) must promise to block all porn from the network. See Artstechnica.

Third Circuit COPAcabana! COPA Struck Down Again

COPA is Congress’ attempt to revive the Communications Decency Act, which was a Congressional attempt to expand indecency rules to the Intertubes.

On the heels of United States v. Stevens, and CBS v. FCC, the Third Circuit just issued a unanimous opinion in ACLU v. Mukasey affirming the District Court’s holding that the Child Online Protection Act (COPA) is unconstitutional as it is overbroad and unconstitutionally vague.

The COPA statute (47 U.S.C. § 231(a)(1)) provides for up to six months imprisonment for anyone who knowingly posts “material that is harmful to minors” on the Web “for commercial purposes.” The statute defined “material that is harmful to minors” as follows:

any communication that is obscene or that:

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

The Third Circuit agreed that the stated Congressional intent, the protection of minors from harmful material on the Web, was a compelling state interest. Accordingly, the statute passed the first hurdle on the road to surviving strict scrutiny, but stumbled thereafter.

In examining whether the regulation was narrowly tailored, the Third Circuit took issue with the definition of “minor.” Under the statute, this could apply to an infant or a 17 1/2 year old. Citing its prior opinion, the Third (re)held:

Web publishers would face great uncertainty in deciding what minor could be exposed to its publication, so that a publisher could predict, and guard against, potential liability.” Id. at 255. We explicitly rejected the Government’s argument that the term “should be read to apply only to normal, older adolescents,” id. at 254, and stated that under either our definition or the government’s proffered definition, “the term ‘minor,’ viewed in conjunction with the ‘material harmful to minors’ test, is not tailored narrowly enough to satisfy the First Amendment’s requirements,” id. at 255. (source)

The court also held that COPA’s limitation to commercial enterprises did not sufficiently narrow its reach.

First, the court determined that COPA is impermissibly overinclusive because it “prohibits much more speech than is necessary to further Congress’ compelling interest. For example, . . . the definitions of ‘commercial purposes’ and ‘engaged in the business’ apply to an inordinate amount of Internet speech and certainly cover more than just commercial pornographers . . . .” Gonzales, 478 F. Supp. 2d at 810 (citations omitted). The court also concluded that COPA is overinclusive because it “applies to speech that is obscene as to all minors from newborns to age sixteen, and not just to speech that is obscene as to older minors . . . .” Id.

The Government contends that COPA is narrowly tailored because it applies only to commercial pornographers and only to material that is harmful to “older” minors. But we addressed and rejected the Government’s arguments in ACLU II, when we found there is nothing in the text of COPA to limit its application solely to “commercial pornographers” or to limit the phrase “material that is harmful to minors” to include material that only is harmful to “older” minors. See 322 F.3d at 253-57. Our prior decision is binding on these issues on this appeal. (source)

The decision also recognizes that the statute’s affirmative defenses available to websites that implement effective age-verification procedures do not cure it of its unconstitutionality. While they might keep kids from accessing porn websites, they were largely ineffective since kids can get access to credit cards quite easily. More importantly, the court was unwilling to allow the chilling effect that such affirmative defenses might create. The court held that age verification would cause some adults to avoid visiting websites that ask for their personally identifying information, and they would impose impermissible costs on Web publishers.

We conclude that the District Court correctly found that implementation of COPA’s affirmative defenses by a Web publisher so as to avoid prosecution would involve high costs and also would deter users from visiting implicated Web sites. It is clear that these burdens would chill protected speech and thus that the affirmative defenses fail a strict scrutiny analysis.

The Government contends that nevertheless these burdens “are no different in kind or degree from the burdens imposed by state laws regulating the sale and commercial display of ‘harmful to minors’ materials. . . . [T]he effect of the statute is simply to requir[e] the commercial pornographer to put sexually explicit images behind the counter.” Appellant’s Br. at 43 (citations and certain internal quotation marks omitted) (second alteration in original).

We rejected this argument in ACLU II. See 322 F.3d at 260 (“Blinder racks do not require adults to compromise their anonymity in their viewing of material harmful to minors, nor do they create any financial burden on the user. Moreover, they do not burden the speech contained in the targeted publications any more than is absolutely necessary to shield minors from its content.”). Blinder racks do not require adults to pay for speech that otherwise would be accessible for free, they do not require adults to relinquish their anonymity to access protected speech, and they do not create a potentially permanent electronic record. Blinder racks simply do not involve the privacy and security concerns that COPA’s affirmative defenses raise, and so the Government’s attempted analogy is ill-fitting. (source)

The court also found that there were less restrictive ways to achieve the government’s stated goal — like the use of internet filters by parents.

Given the vast quantity of speech that COPA does not cover but that filters do cover, it is apparent that filters are more effective in advancing Congress’s interest, as it made plain it is in COPA. Moreover, filters are more flexible than COPA because parents can tailor them to their own values and needs and to the age and maturity of their children and thus use an appropriate flexible approach differing from COPA’s “one size fits all” approach. Finally, the evidence makes clear that, although not flawless, with proper use filters are highly effective in preventing minors from accessing sexually explicit material on the Web. (source)

Accordingly, the Third Circuit (for the third time this week) breathed new life into our long-suffering First Amendment.

In sum, COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional. We reach our result both through the application of the law-of-the-case doctrine to our determination in ACLU II and on the basis of our independent analysis of COPA and would reach the same result on either basis standing alone. (source)

Personally, I like this quote from the trial court decision — and it is one that I frequently quote when I am confronted with the “what about the children” red-herring/hysterics:

Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.” ACLU v. Gonzalez, 2007 US DIST LEXIS 20008 (E.D. Pa. 2007)

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Note: Bob Corn-Revere, a fellow First Amendment Lawyers’ Association brother was lead counsel in both this and the CBS v. FCC case. Bob is this week’s First Amendment Bad Ass.

Addendum - Ever the humble professional, Bob issued this statement:

While I filed an amicus brief in the COPA case, all the heavy lifting was done by the ACLU, which did a masterful job. Congratulations go especially to Chris Hansen, who gave a brilliant oral argument. I was just happy to be associated with the case, even if just to provide some support.

He still keeps his FABA award.

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.

Internet Solutions Corporation v. Marshall Update

I blogged about this case a few weeks ago here.

The Plaintiff has appealed to the 11th Circuit, and my firm has taken Ms. Marshall’s case, pro bono, to defend the appeal.

Virginia’s “minor solicitation” law not unconstitutional

The MSNBC “to catch a predator” phenomenon has brought internet solicitation of minors into the spotlight. The Virginia Court of Appeals decided a case this week in which the petitioner claimed that Virginia’s anti-solicitation law was Constitutionally invalid. See Podracky v. Virginia., __ Va. App. _ (June 10, 2008).

Relying in large part on the logic of United States v. Williams (“Offers to engage in illegal
transactions are categorically excluded from First Amendment protection.”), the Virginia Court of Appeals held that the state could Constitutionally prohibit adults from engaging in speech that was intended to solicit a child into meeting them for a sexual act, as long as the adult knew, or had reason to believe, that the person on the other end of the chat room was a minor.

And the Auto Admit Drumbeat Continues

The latest installment in Teh AutoAdmit Lulz hit PACER yesterday. That’s how crappy it is, I didn’t even bother to blog on it the day it was posted.

You will recall that Anthony Ciolli filed a pro se motion to quash a subpoena filed in the Western District of Virginia.

The response is here. As they say, this is TTT.