Judge Orders Unmasking Of Wikipedia Users; Fails To Follow Standard Anonymity Protections

from the dendrite-me dept

Mon, Jun 6th 2011 4:50am — Mike Masnick

Over the years, we've covered tons of lawsuits about attempts by people to uncover the identity of anonymous critics. Frequently, the aggrieved parties figure out some way to file a defamation lawsuit and use that to uncover the name of the person in question, without much interest in actually going through the rest of the legal proceedings. Judges tend to be a mixed bag on this issue, with many judges recognizing a strong First Amendment free speech value in allowing anonymous speech. In fact, many are (finally) coalescing around the "Dendrite" rules, which outline the conditions under which anonymous online users can or should be identified. The Dendrite hurdle is pretty high, and for a good reason: because anonymity is important.

However, it appears that a magistrate judge in Colorado who admitted he was unaware of the Dendrite case or the associated "rule," decided to just ignore it once being informed of it, and went forward with an order to unmask some anonymous Wikipedia users who the company Faconnable claimed defamed Faconnable. This is worrisome, and thankfully, Public Citizen is pushing back on this, highlighting the importance of protecting anonymity online. Thankfully, another court has put a stay on identifying the guy in question while this issue is hashed out, but it's still unfortunate how many judges are uninformed on issues they're ruling about.

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Filed Under: anonymity, defamation, dendrite, wikipedia

53 Comments

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John Doe, 6 Jun 2011 @ 5:13am

The real shame here
but it's still unfortunate how many judges are uninformed on issues they're ruling about.

I don't hold it against a judge for not knowing this. I do hold it against him for not researching and finding precedents and even worse, ignoring it once he is informed of it. There is little that can be done to judges and they know it.
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The eejit (profile), 6 Jun 2011 @ 5:24am

Re: The real shame here
Well, I suppose we could bribe them with free drugs and hookers...
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Anonymous Coward, 6 Jun 2011 @ 5:24am

Hum...

If I go to court and say "Geez, I'm sorry. I didn't know about that law/rule", I still get nailed in the head with that rule anyway. But I guess judges are special, huh?
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davebarnes (profile), 6 Jun 2011 @ 5:31am

Grammar Nazi Alert
Fa�onnable and not Faconnable.
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Anonymous Coward, 6 Jun 2011 @ 6:20am

After reading the Public Citizen blog post this whole lawsuit is over a few words tacked on to the end of a sentence suggesting that buying from this company who is (in a long chain) owned by a guy who heads an allience that funds terrorists might go to terrorists if you buy thier products. You have got to be kidding me, really need to pick thier battles.
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AJ, 6 Jun 2011 @ 6:35am

Proxy Time?
I guess it's time to rent a proxy server in a country that doesn't care about our laws, maybe then we comment in relative safety.
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Jeremy7600 (profile), 6 Jun 2011 @ 6:38am

Re:
Yes, because really all they've done is just brought more attention to this fact. So in the end, what will getting a defamation suit won really do? Identify/punish an anonymous critic AND the fact you are trying to hide becomes well known to many more people.

Unless of course it is false, but they will have to prove this is not the case, perhaps?
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Anonymous Coward, 6 Jun 2011 @ 6:42am

The fact is, Dendrite isn't "the rule" and the plaintiff wasn't "hiding the law" by not bringing it to the magistrate's attention. I read through Levy's brief and didn't see any mention of courts who eplicitly didn't follow Dendrite or who used a different standard. So who's really "hiding the law" here?
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Greg G (profile), 6 Jun 2011 @ 6:52am

Re:
Exactly what I was thinking. Ignorance is no excuse. You are still guilty.
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Mr. LemurBoy (profile), 6 Jun 2011 @ 6:52am

Re: Grammar Nazi Alert
Being a Grammar Nazi is sooooo last year.

Admit it, you're Fa�onnabley late
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DannyB (profile), 6 Jun 2011 @ 7:00am

Re: Re:
For a judge, there shouldn't be ignorance, because this is their field of expertise.

Even if ignorant of some precedent, once it is brought to their attention, they should have a responsibility to research it and abide by it unless there is an extraordinary reason to create new precedent.
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Anonymous Coward, 6 Jun 2011 @ 7:03am

I rarely click on links in TechDirt posts (let's just say that's because the commentary is already so excellent...), but I did click on the "Dendrite" link, just to find it's a paywalled site with just an abstract, and big links to pay for more access. There's a wikipedia article that I'm sure isn't as good as the $29.95 document, but it's free...

http://en.wikipedia.org/wiki/Dendrite_International,_Inc._v._Doe_No._3
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MAC, 6 Jun 2011 @ 7:10am

Buying from companies that support terrorist...
Two words;

Homeland Security.
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DannyB (profile), 6 Jun 2011 @ 7:15am

Re: Grammar Nazi Alert
Your never going to get you're way on this. Don't get upset about it. Their are just two many people out they're using there words wrong too get to upset about it. Many common examples exist of incorrect usage. But you'd have to be a fool to begin or end a sentence with the word "but". And only an idiot would begin or end a sentence with "and".
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Not That Chris (profile), 6 Jun 2011 @ 7:47am

Re: Re: Grammar Nazi Alert
Agreed. Hopefully no one looses any sleep over it.

(...and yes, I cringed typing that, regardless of the intended humor)
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PRMan, 6 Jun 2011 @ 7:53am

Re: Grammar Nazi Alert
We don't have that key on our keyboard and we don't care enough to use the character map. Sorry.
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Money Mike (profile), 6 Jun 2011 @ 7:56am

Interesting. The "Dendrite" company from that ruling (now known as Cegedim Inc.) makes the claim on their website that it "respects privacy..."

http://crm.cegedim.com/about-us/privacy-policy/safe-harbor/Pages/default.aspx

Gu ess they have a different definition of "respect."
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Atkray (profile), 6 Jun 2011 @ 8:21am

Re:
*looks for the "Thanks: button....hits insightful instead.*
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Gwiz (profile), 6 Jun 2011 @ 8:36am

Re: Re: Grammar Nazi Alert
But you'd have to be a fool to begin or end a sentence with the word "but". And only an idiot would begin or end a sentence with "and".

And here we have our first grammar lesson of the week. But, stay tuned, there may be more.

(I had trouble paying attention in school too) :p
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DannyB (profile), 6 Jun 2011 @ 8:59am

Re: Re:
I've often wished for an Informative button.
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aldestrawk (profile), 6 Jun 2011 @ 9:26am

Re:
click on the other link, for Public Citizen, and then click on the "dendrite rule" link within that article. This is free and contains the court documents.
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Anonymous Coward, 6 Jun 2011 @ 9:29am

Criticizing a big corporation is defamation no matter what. Corporate profits trump free speech.
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TWT, 6 Jun 2011 @ 10:45am

I think it odd that they're suing over posts that have apparently uncovered Faconnable's (a lebanese company) to terrorist organizations, including Hezbollah.
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Anonymous Coward, 6 Jun 2011 @ 10:51am

You know, there's some distinct irony here, when you're slamming a judge for ignoring proper process, and yet you were all applauding the "insightfulness" of commentators telling the police to do just that this Sunday.

Now, let's be clear here. I'm not on an Anti-TechDirt rant here. This is a rant against everyone who thinks the law should bend to whatever morality they believe in.

Do you want the law to make decisions based on the beliefs of the enforcers? If so, this is what you get - some judges and other law enforcement officials feeling that anonymity should not (and cannot) be hidden behind.

Do you want the law to follow the process, and be blind justice? Then yes, you have to deal with people being arrested for bad laws - and hopefully getting those laws overturned through due process.

What I can't stand, however, is people who want whatever suits their own beliefs best. The legal system is not tailored to appease individuals, nor should it ever.

(Just to be clear, I'm the green AC that posted a lot on that article, and yes, I'm on a tilt)
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Jeremy7600 (profile), 6 Jun 2011 @ 10:51am

Re:
Yes, because really all they've done is just brought more attention to this fact. So in the end, what will getting a defamation suit won really do? Identify/punish an anonymous critic AND the fact you are trying to hide becomes well known to many more people.

Unless of course it is false, but they will have to prove this is not the case, perhaps?
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Joseph K (profile), 6 Jun 2011 @ 11:21am

Trademark violation too
The linked article also says: "Fa�onnable also claimed that the use of its business name violated its trademark rights protected by the Lanham Act." So, they're claiming that I can't even talk about a company without their permission, else it's a trademark violation? Why? I guess because someone might confuse my criticism of a company as originating from that company. I don't even think that meets the "brain-dead zombie in a hurry" standard of trademark confusion.
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Gregory Kohs (profile), 6 Jun 2011 @ 11:27am

So, let me get this straight
Do I have this correct... A company that makes good clothes and wishes to keep their brand reputation in a good light should be berated by Techdirt readers because the company wants to know the name of the coward who used Wikipedia as a defamation platform to libel the company?

Talk about abuse of Section 230.
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FUDbuster (profile), 6 Jun 2011 @ 11:43am

Re:
I think the headline of this article is quite misleading. It's not accurate to say that the conditions listed in Dendrite form "standard anonymity protections." The court here is NOT compelled to use the conditions set forth in that case since it's not binding precedent. It's wishful thinking to suggest otherwise.
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Anonymous Coward, 6 Jun 2011 @ 11:58am

Re:
If only there were a better way to identify yourself and your arguments. Hmmm.....
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Any Mouse (profile), 6 Jun 2011 @ 12:00pm

Re: Grammar Nazi Alert
sorry, my keyboard doesn't have that fancy 'c' on it.
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Anonymous Coward, 6 Jun 2011 @ 12:01pm

Re: So, let me get this straight
It's not defamaztion or libel if it's true. ;)
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Anonymous Coward, 6 Jun 2011 @ 12:02pm

Re: Re: So, let me get this straight
*defamation
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Gregory Kohs (profile), 6 Jun 2011 @ 1:08pm

Re: Re: So, let me get this straight
So, even though you didn't see the actual Wikipedia edits (they've been expunged), and even though the court document suggests that they said M1 Group "supports" or "is a supporter of" Hezbollah, you are willing to say that these statements on Wikipedia were "true"? No wonder you're an Anonymous Coward.
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Anonymous Hero, 6 Jun 2011 @ 1:31pm

Re: Re: Re: So, let me get this straight
Anonymous Coward didn't say it was true (a statement). AC said that *if it were true, it wouldn't be libel* (a conditional). Elementary logic fail.
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Anonymous Hero, 6 Jun 2011 @ 1:31pm

Re: Re: Re: So, let me get this straight
Anonymous Coward didn't say it was true (a statement). AC said that *if it were true, it wouldn't be libel* (a conditional). Elementary logic fail.
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Anonymous Coward, 6 Jun 2011 @ 1:40pm

Re: So, let me get this straight
Gotta love how predictable Greg Kohs is. The company's acting against someone from Wikipedia, so suddenly he's singing their praises.

You've got to admit he puts a fair amount of effort into packing in the keywords, though.
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Anonymous Coward, 6 Jun 2011 @ 2:30pm

Re: So, let me get this straight
Nope. Now back to Examiner with you, so I can continue to block your existence.
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Mike Masnick (profile), 6 Jun 2011 @ 7:33pm

Re: So, let me get this straight
Do I have this correct... A company that makes good clothes and wishes to keep their brand reputation in a good light should be berated by Techdirt readers because the company wants to know the name of the coward who used Wikipedia as a defamation platform to libel the company?

No. Once again, you have it wrong.

The complaint is in the lack of due process to protect the anonymity of the person. There is a good process for identifying anonymous posters that involves alerting them, and allowing them to respond and meeting certain useful hurdles. This judge did not do that.

Talk about abuse of Section 230.

This has absolutely nothing to do with Section 230. Why even bring that up?
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Gregory Kohs (profile), 6 Jun 2011 @ 7:54pm

Re: Re: So, let me get this straight
Mike, because you say "there is a good process for identifying anonymous posters" does not mean that there is a good process for identifying anonymous posters. In fact, for those who have been libeled -- and I've seen cases much more savage and personal than what Faconnable has experienced, by far -- the current process of trying to find out who is wrongfully fucking with one's reputation is clumsy, overly protective of the masked aggressor, and (frankly) sickening. The pendulum is finally swinging back to at least a mote of accountability for one's outlandish claims in speech, and all I hear is "free culture" whiners, most of whom are too ashamed of their own outlandish views to stand behind them with a real name. I give you credit, at least, for putting your signature to your disagreeable views.
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Gregory Kohs (profile), 7 Jun 2011 @ 7:53am

Re: Re: Re: So, let me get this straight
Oops, I didn't mention why I brought up Section 230. It's because I no longer consider Wikipedia an "interactive computer service" like AOL or Charter. I consider it a publisher like World Book or the New York Times. After all, it bills itself as an "encyclopedia" not a "forum" or "chat board", which are the types of venues that Section 230 was meant to preserve. I'm surprised you'd think that this has "absolutely nothing" to do with Section 230, when (for the Wikimedia Foundation's viability as an ongoing defamation platform provider) it has *everything* to do with Section 230.
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Gregory Kohs (profile), 7 Jun 2011 @ 7:55am

Re: Re: Re: Re: So, let me get this straight
I'll see your elementary logic fail and raise you a duplicate posting fail.
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Gregory Kohs (profile), 7 Jun 2011 @ 7:58am

Re: Re: So, let me get this straight
I'm a happy customer of Faconnable. I bought one of their shirts in 1993, and it still looks great. High-quality material. I wonder if the Hezbollah alliance, though, now ruins that craftsmanship, since the seamstresses are clearly working half of their shifts sewing explosives into vests?
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FUDbuster (profile), 7 Jun 2011 @ 8:14am

Re: Re: Re: Re: So, let me get this straight
Do you mean "liability" and not "viability"? Wikipedia is not a party to the lawsuit, so their liability isn't really an issue. They are only the potential recipient of a subpoena.
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Mike Masnick (profile), 7 Jun 2011 @ 8:25am

Re: Re: Re: Re: So, let me get this straight
Oops, I didn't mention why I brought up Section 230. It's because I no longer consider Wikipedia an "interactive computer service" like AOL or Charter. I consider it a publisher like World Book or the New York Times. After all, it bills itself as an "encyclopedia" not a "forum" or "chat board", which are the types of venues that Section 230 was meant to preserve.

You may consider that, but you will quickly find that no court in the land agrees with you.

I'm surprised you'd think that this has "absolutely nothing" to do with Section 230, when (for the Wikimedia Foundation's viability as an ongoing defamation platform provider) it has *everything* to do with Section 230.

The lawsuit wasn't filed against Wikimedia. No Section 230 response was made. It's totally irrelevant. You're bringing up issues that have nothing to do with anything.
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Mike Masnick (profile), 7 Jun 2011 @ 8:25am

Re: Re: Re: Re: Re: So, let me get this straight
Do you mean "liability" and not "viability"? Wikipedia is not a party to the lawsuit, so their liability isn't really an issue. They are only the potential recipient of a subpoena

For once I agree with FB! :)
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Mike Masnick (profile), 7 Jun 2011 @ 8:27am

Re: Re: Re: So, let me get this straight
Mike, because you say "there is a good process for identifying anonymous posters" does not mean that there is a good process for identifying anonymous posters. In fact, for those who have been libeled -- and I've seen cases much more savage and personal than what Faconnable has experienced, by far -- the current process of trying to find out who is wrongfully fucking with one's reputation is clumsy, overly protective of the masked aggressor, and (frankly) sickening.

Sickening to you. Reasonable protections for privacy and anonymity to the rest of us.

The pendulum is finally swinging back to at least a mote of accountability for one's outlandish claims in speech, and all I hear is "free culture" whiners, most of whom are too ashamed of their own outlandish views to stand behind them with a real name. I give you credit, at least, for putting your signature to your disagreeable views

My views are not "disagreeable." People have always been accountable for outlandish claims, contrary to your assertion.

And, where do you get the idea that those who support free speech all have "outlandish views." Pretty hilarious for someone who claims to hate defamation to paint a large group of people with such a broad brush.
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FUDbuster (profile), 7 Jun 2011 @ 8:32am

Re: Re: Re: Re: Re: Re: So, let me get this straight
For once I agree with FB! :)

I was just reading your piece on Forever21 and thinking the same thing. Must be opposites day.
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Gregory Kohs (profile), 7 Jun 2011 @ 10:10am

Re: Re: Re: Re: So, let me get this straight
Oh, jeez, Mike. Have I really "painted" people with my broad brush? If you're deliberately ignoring the fact that many legal analysts have been discussing whether or not Section 230 pushed too far in favor of anonymous libelers, then that's reprehensible. If, however, you're simply uninformed, then let me give you some extra reading:

http://jolt.richmond.edu/v6i5/article4.txt

http://papers.ssrn.com/sol3/papers.cfm?abs tract_id=1352442

http://blog.ericgoldman.org/archives/2008/04/roommatescom_de_1.htm

http://ars technica.com/tech-policy/news/2009/03/a-friendly-exchange-about-the-future-of-online-liability.ars/

http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1122&context=vulr

Maybe you'll find some material in those papers that will round out your views about Section 230, responsibility, and defamation. Or, maybe you'll just toss them aside and go with your standard view, because that's easier.

If I may apply an analogy, you sound like an anti-abortion advocate, circa 1965, saying that "right to privacy has nothing to do with abortion", unaware that in just a few more years, not only would it have to do with abortion, it would have *everything* to do with abortion. I realize that CURRENTLY, the law states that my view is an outside view, but I (and others) are convinced it will not always be this way. Free culture excesses will see to that. I'm not unreasonable. Clearly, the open discourse of human beings on websites that do not themselves contribute to the discourse is a valuable and precious resource. However, I believe there is also room to adjust the culture in a way that respects the dignity and rights of REAL people at least marginally more than those of PSEUDONYMOUS people. You may disagree with that, but if you were to poll 100 human beings at random (I don't care if they're American, or Dutch, or Korean, or Ethiopian), I contend that if they are intelligent enough to understand the question, at least 90 of them would more agree with me than with you. That's why I describe your views as "disagreeable". I contend that your views run counter to the vast majority of regular people's opinions. Your views are right at home on Techdirt, but that is not reflective of humanity, I hope you know.

One last example... there's a website out there that pokes fun at me. I can manage the parody just fine, but I'd rather not point here to it with a link. However, in that site's text, it claims that my little 7-year-old daughter is "not of my seed" (or something like that). That was initially written three years ago, when my kid was 4 years old. The page was initially on a U.S.-based site which has shut down, it seems, but within days a free culture proponent, Sven Slootweg, was hosting a copy of the page in Europe, because he feels that "information wants to be free", I suppose. I asked if he would kindly take down the page, or at least withdraw the part that would be so offensive to a little girl. Guess what? He refused. That wouldn't be fair to the original author's right to free speech, he informed me. Could you describe for me, what is my course of action to find out who wrote this hateful comment about my relationship with my daughter? Or, should I just let it go (as I have), because the precious right of anonymous harassment should never be modified?
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dwg, 7 Jun 2011 @ 1:27pm

Re: Grammar Nazi Alert
Fa�onnable (R) and not without.
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dwg, 7 Jun 2011 @ 1:29pm

Re:
Sorry, Charlie: parties have an affirmative duty to bring to the court's attention caselaw that weighs against them. And for this plaintiff's attorney to claim ignorance of the leading case that would defeat his client's position is farcical.
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dwg, 7 Jun 2011 @ 1:31pm

Re:
You, my friend, are an idealist. Unfortunately, the law exists to serve the ends of those who know how to use it. That's why there are lawsuits and why lawyers make "arguments." Otherwise, a judge would be the only one necessary--he would read the rule, apply it to the facts, and call it a day.
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dwg, 7 Jun 2011 @ 1:34pm

Re: Re: Re: So, let me get this straight
Now if THAT was the claim on Wiki, THAT would be libel. Simple alliance with terrorists but strict adherence to quality standards? No defamation there.
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dwg, 7 Jun 2011 @ 1:34pm

Re: Re: Re: Re: So, let me get this straight
(label libel?)
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