New Filings In Our Ongoing Lawsuit
from the go-ahead-and-read dept
A quick update in the lawsuit filed against us. Today we filed additional motions for Leigh Beadon, part of the team here, who was also sued. We've filed a motion, on Leigh's behalf, to have the lawsuit thrown out on anti-SLAPP grounds, because this is a strategic lawsuit designed to chill our exercise of First Amendment rights. At the time of our initial filings in the case, Leigh had not yet been served. That happened a few days later, and now we've also filed the motions to dismiss for Leigh as well, and a related memorandum detailing the reasons why he should be dismissed. Please read the filings. Also, just to have them all in one place, we've posted our original filings below as well.
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Filed Under: anti-slapp, lawsuit, motion to dismiss, shiva ayyadurai
Companies: floor64, techdirt
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Ayyadurai has been directly profiting from what is a provably incorrect claim. Ayyadurai claims that he actually invented the entire concept of electronic mail, when such mail was sent way back in the early 1970s, well before Ayyadurai's claim of invention in the late 1970s.
This is just a SLAPP lawsuit, designed to stifle criticism, and the courts should be treating this accordingly.
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A guy giving journalism advice who doesn't know that he's not on a journalism site.
Mike is a blogger and this is a blog site. And it seems a very successful one to bring in loons on top of those who like the subjects brought up here.
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I strongly suspect you'll win this lawsuit, hands down. But what a pain to have to go through the process.
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I am curious though what makes for "actual journalism" in your mind? Also what are these guidelines?
If you are going to say this site is biased, then well, so what? Name a single "actual journalism" source that doesn't show some bias.
If your guidelines are something like "don't piss people off" then what is the point of a "free press"?
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As a result, even though the merits of the case will have been decided by the court early on, people will still have to show up to court on a regular basis, possibly for a couple of years, until the case can be closed with no question of re-opening or appealing.
That's unless the judge is aware of the prosecution's shenanigans and catches them in a misstep, at which point they'll throw the book at them and the ordeal is over.
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Legally speaking, Ayyadurai's claim that he is the inventor of email is an opinion based on cited facts. It can't be proven correct or incorrect.
However, Mike and Leigh have a different opinion, which is also based on cited facts. Which means it can't be defamatory.
At least, that's how their lawyer describes it in the filings.
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There are several issues to decide before the case even goes to trial.
IANAL, and I haven't read the latest set of filings yet, but I read the first set of filings, and here's what I got:
First, the judge will decide whether to dismiss the suit outright based on improper service. (If that happens, I suspect it will be dismissed without prejudice, meaning Ayyadurai and Harder can try again.)
If the suit is not dismissed due to improper service, the next decision is whether California's anti-SLAPP statute should apply. The suit was filed in Massachusetts, but Techdirt is located in California.
If California's anti-SLAPP statute is applied, I think it is very, very likely that the suit will be dismissed with prejudice. That means Ayyadurai and Harder can't file again. They can appeal the dismissal, but I'm not aware of any case where a suit dismissed under California's anti-SLAPP law has moved forward on appeal. (Feel free to correct me if such a case exists.)
If California's anti-SLAPP statute is not applied (or if it's applied and the judge determines that the suit doesn't meet SLAPP criteria), then it moves forward. At which point I'm with you; TD will probably win but it will be a long, hard process. The point of the suit is not that Ayyadurai and Harder have a case, it's that they have money to make their critics' lives difficult.
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Only the super-wealthy apparently. To (ironically) quote Peter Thiel, "If you're a single-digit millionaire like Hulk Hogan, you have no effective access to our legal system."
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Maybe I should name it "Heavier than air flying machine" so I can claim "I invented the first heavier than air flying machine!"
I could even include that name as the model of my airplane with my FAA registration so I would have PROOF from the US government that I invented the "Heavier than air flying machine"
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Fact: Ayyadurai claims to have singlehandedly invented the email system everyone uses today.
Fact: No parts of Ayyadurai's EMAIL program seem to have led to any contributions to the email system used today
Conclusion/opinion: Ayyadurai's a liar
Ayyadurai: that conclusion is false and defamatory
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Actual "cost-free" would require access to Justice in general to be free/subsidized in a way that actual merit (and not level of funding) will allow anyone to win without wasting his time.
And that should be true for both plaintiff and defendant alike: you shouldn't need unlimited funding to win (and survive) a case that someone brought against you without merit; but you should also be able to sue anyone with merit even if you're way poorer than the one who did you wrong. (eg. companies or government branches)
The current system is only fair (then again, only to an extent) when plaintiff and defendant are on roughly equal financial grounds. In any other cases, some measure of extra force is needed to level the scales. (For example, making your case famous and sympathetic to the masses.)
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https://en.wikipedia.org/wiki/Journalism
I expect some bias in nearly all reporting.
For the least amount, I'll try a source that has 'no dog in the fight'. For instance, Japan Today for western news.
A free press is what I consider the 4th branch of government. Which is why Drumpf is so opposed to it.
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Okay, I've read the new filings, and I don't have much to add except that there's one more argument for dismissal of the claims against Leigh: the filing doesn't cite anything he said, it cites a "funniest/most insightful" post where he quoted someone from the comments section.
Leigh's not responsible for comments, per the CDA's safe harbor provision. I'm honestly not sure whether safe harbor applies to a post where a blogger deliberately repeats something from the comments section, but the Memorandum of Law cites several prior cases to indicate that it does (see pages 6-7).
So that's one portion of the suit that could be dismissed with prejudice before ever going to trial.
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That argument is a load of horseshit and you know it. Ayyadurai’s claim sounds exactly like he is trying to claim a specific fact (“I invented email”), rather than trying to state an opinion (“my EMAIL program was better than what we have today”).
His name does not show up in the RFCs that finalized the standards for ARPANET’s electronic messaging system. His program does not appear to be the foundation or inspiration for any such system in any place outside of the school where he implemented “EMAIL”. His program was not the one widely adopted by the rest of the world. And he was not even the first person to either use the contraction “email” or have the idea of an electronic mail system. If he is trying to make a claim based on fact, he is doing a piss-poor job of backing that claim up.
Realistically, this could all be settled by Ayyadurai answering one question: “What factual evidence suggests he had anything to do with the development and widespread adoption of the electronic messaging system that became email?” If he cannot answer that question, his lawsuit has no real merit.
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It's not my argument, Steve, it's Techdirt's lawyers' argument. Have you read the filings?
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This is what I was calling “horseshit”:
His opinion of being “the inventor of email” can most certainly be proven incorrect — because, as I said above, there is no factual evidence to support his “opinion”.
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I invented the internet. It's just like, my opinion, based on the fact that I invented something 10 years later and named it Internet.
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Their intent is not to make their critics lives difficult, but rather to destroy them by forcing the into bankruptcy by imposing legal costs on them.m
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Plaintiffs can be successful appealing grants of Anti-SLAPP motions, albeit at a much lower rate than defendants (reversing anything on appeal has a much lower probability of success than having a decision affirmed).
For example, in the Episcopal Church Cases, 198 P.3d 66, the district court granted an Anti-SLAPP motion. The California Court of Appeals reversed that decision and the California Supreme Court affirmed the dismissal.
What I am surprised about is that they managed to serve Leigh Beadon, a Canadian so far as I understand, properly under the Hague Convention. PACER doesn't show any affidavit of service for Beadon, just the defective one for Floor64.
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No idea if Teespring also uses Stripe, but if they don't that would seem to be a good way to donate as well if you want to throw some money TD's way.
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What about calling Ayyadurai a liar/fraud? Is calling someone a liar/fraud because of an opinion based on cited facts defamatory? Or is it itself an opinion based on cited facts?
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As we saw last week when a judge ordered Perfect 10's assets seized and liquidated to reimburse Giganews's 5.5 million dollar legal costs resulting from Perfect 10's bogus DMCA lawsuit, could something similar happen with Techdirt?
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"Liar" and (in this context) "fraud" are protected opinion.
Here's the relevant part of the Memo in Support to Dismiss (please excuse the formatting of the copy-paste from the PDF):
I know it takes time to sit down and read the filings, but I've gone through them all and found them to be edifying; I'm not a lawyer but they're written in pretty plain language. If you've got the time to spare, they're well worth reading in their entirety. I figure everybody here is interested in free speech law in general and this case in particular, and the filings are interesting and informative on both those subjects.
(Tangentially: If you were to use the word "fraud" in a technical, legal context, there are circumstances where that might be considered defamatory. But that's not what Mike (or the anonymous commenter quoted by Leigh) did; he used it in a conversational sense, in an article that was clearly expressing an opinion about a public figure citing known and undisputed facts.)
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That sounds pretty fucking difficult to me.
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Still, if the court applies California's standard, I like Techdirt's odds. Harder's case for defamation is a pretty flimsy one.
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Not sure what their options are if the suit proceeds but TD goes on to win in court; maybe someone else can answer that.
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If asked, make an analogy to the 'First National Bank' name used by banks that were not first and not national banks.
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Prior Art: Murray Turroff,
You may find this source useful, if you do not already know about it.
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Starr Roxane Hiltz and Murray Turroff, _The Network Nation: Human Communication via Computer_, Addison-Wesley, 1978, 528pp.
Has a bibliography of 250-300 items, dated 1977 or before, including Turoff's own progress reports. Turoff was a leading developer of computer conferencing (or what we would call blogs), starting about 1970. His first system was developed to help manage President Nixon's Wage-Price freeze in 1971. Computer conferencing was of course the stage after e-mail. Turoff was building system which incorporated e-mail, but also conferences, and various other features. There is a lot of material about the psychological and sociological significance of online communication. Also explanations of how computer conferencing differs from E-mail.
The usefulness of a source such as this, just before the priority date, is that it tends to present features as part of a consolidated set, rather than separately, and that it was widely disseminated. For example, Turoff did a general article for _Creative Computing_ in 1977, which must have been virtually an advertisement for the forthcoming book. What's-his-name can hardly claim to have been ignorant of what was published in _Creative Computing_, the archetypal twelve-year-old-with-a-computer magazine.
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The best weapon comes from your opponent's arsenal
Reading through some of the filings, I can't help but love the fact that they're using Shiva's own words against him.
Shiva's own claims about how well known he is clearly puts him in the 'public figure' category, which raises the bar he has to meet much higher than it otherwise be, such that if he wants a defamation claim to stick he has to demonstrate 'actual malice', which is going to be rather tricky given Mike was careful as always to back up his statements with supporting evidence when he wrote the 'defamatory' articles.
Couple that with the fact that to make it past the motion to dismiss via California's anti-SLAPP law he has to demonstrate a solid chance to win the case, and it would seem he hamstrung himself before he even began.
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Odd bit I haven't seen mentioned
Something I haven't seen mentioned in most of the coverage of this is that Mr Ayyadurai, by his own admission, was directed to create his "EMAIL" (it's actually capitalized in the filing) program by Les Michelson.
Justice Roberts, in US v Dubilier, stated the following on the act of invention.
So, granting his assertion for the sake of argument alone, Mr Ayyadurai can be at most no more than one of the inventors of email. And, to get back to reality here, he was in truth no more than an inventor of that particular implementation of the abstract concept of mail on a computer. As the Alice decision made clear, an abstract concept cannot be an invention under the law (as in qualifying for the grant of a patent) just because it's "done on a computer".
Heck, this is almost the quintessential example of that very problem! In my opinion, the fact that Mr Ayyadurai has not brought forward any evidence that he ever sought a patent for this implementation f the abstract idea of "mail on a computer" means he probably recognized at the time that there was no real invention as the US Government would see it. It was only many years later when the bogus issuance of many patents on software had created the problem the Alice decision set right that he seems to have thought he could try and make such a sweeping claim.
But, and again we must assume his position as true for the sake of argument alone here, he can at most be one of the two inventors of email on a computer since he did not have the actual idea at all! Moreover, since it's obvious that the legal definition of an invention under a patent does not apply, it would be by Mr Ayyadurai's own admission, Les Michelson who "invented" email since it was he who apparently came up with the idea for it and essentially directed Mr Ayyadurai to code up an implementation of that concept!
Anyhow, it's interesting to me that I haven't seen this line of reasoning ever really discussed much. Obviously, I do not believe either Mr Ayyadurai or Mr Michelson actually invented email, as such. At most they may have independently came up with the idea but it was an obvious one anyhow. For the many reasons others have so well covered, any assertion to the contrary flies in the face of reasonable discussion and any realistic view of the history of the idea. But the fact that Mr Ayyadurai seems to claim he alone invented it when the reality was he was at most one of two persons involved is telling of his grandiose view of his own importance.
My personal opinion, based on the facts as presented by Mr Ayyadurai himself at the URL above is that it's much more likely Les Michelson was a teacher who saw a fairly brilliant 14 year old and tasked him with a project to stretch his skills somewhat. This was no more an inventive act inherent there than a woodshop teacher assigning a particularly skilled student to craft a nice inlaid box would have been an example of wither said woodshop teacher or said skilled student had created the concept of an inlaid wooden box.
It is, to me, truly sad to see Mr Ayyadurai stake his own personal reputation so firmly on this specific issue. He was apparently, by any reasonable measure, quite brilliant as a 14 year old. That said, many 14 year olds are pretty smart for being 14 years old. This does not, however, a modern Da Vinci make.
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Good luck with it
As for Leigh, he's Canadian. Your anti-SLAPP arguments may not carry weight as it could be argued that the writing and publishing happened from Canada, and not in California. So the judge may just say "sorry, you have to take it up in the jurisdiction it was filed in".
The Kim Dotcom defense, trying to argue the case outside of the jurisdiction it was filed in, may or may not fly. It may have to do with something as technical as where your servers are located, where each of the writers live, and so on. There are many ways to win and to lose this one. Kim Dotcom is losing it (but slow playing it to apparently use up all of the funds before he has to really face justice), and you may have to watch your bottom line to assure that you can keep throwing money into what may or may not end up as a pit.
On the plus side, if you win and recoup legal costs, you could end up with a windfall of cash if they lawyers don't take any of your "raised" funds as payment.
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Re: Odd bit I haven't seen mentioned
See, that there's the true lesson behind using intellectual property laws for protection and profit. Why use the system like it was supposed to, when you can use your failure to protect your own property to shake down people for petty settlements at the behest and blessing of government agencies to cover for your own incompetence?
Same reason why Malibu Media doesn't watermark their shit. It's much more lucrative to sue people and hope the judges don't notice.
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Re: The best weapon comes from your opponent's arsenal
Their lone argument about the Gawker settlement proving malice is not only ridiculous (the case settled out of court when Gawker went bankrupt, so therefore TechDirt knew he invented email?), it clearly doesn't apply to many of the statements because they were made before that settlement. Which means that there is literally NO argument for actual malice for those statements, not even that ridiculous one. To me, when you have literally no argument for much of what you are accusing your opponent of, that shows bad faith. It seems like the only reason to add those to the complaint is to force the defendant to spend their lawyer's time to address them, causing their legal fees to increase.
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The sum of money is one thing but its the removal of the stories from the site(s) that is meaningful.
With a settlement in his pocket mr email appears to have at least enough in hand to drive thus case to discovery and court. The facts of if he did or did not create mail are for a court to decide. With a settlement in his pocket the courts are probably not going to dismiss especially considering the somewhat nasty tone of the postings here.
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Re: Re: Re: The best weapon comes from your opponent's arsenal
The removal of the articles doesn't mean squat. Much like the monetary award it was just part of the settlement itself, and the fact that Gawker had to fold and accept any terms presented to them due to not being able to fight back makes their removal pretty useless as an indicator either way.
As for the 'that's for the court to decide', no, not really, as that's not what the lawsuit is about. The lawsuit is about opinions expressed by Mike, supported by evidence that was presented at the time, where the one filing the lawsuit objects to the opinions that were expressed based upon that evidence. Evidence that didn't magically change just because Gawker was forced into a settlement and had to remove some articles as part of the settlement.
The lawsuit isn't about who did or did not invent something, it's about opinions expressed based upon evidence, regarding a public figure, which sets the bar high in two ways, overcoming the protections of free speech and demonstrating actual malice.
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Which is why Mr. Ayyadurai will never let this go to court: He will lose, badly, if he hinges his case on the (non-existent) factual merits of his claims.
His goal, like the goal of most SLAPP actions, is to silence Techdirt and Mike Masnick by filing a lawsuit designed only to drain the defending parties of their resources. With the bankroll of someone such as Peter Thiel in his back pocket, the plan even has a small chance of success. But “success” here means achieving a single outcome: getting a settlement before everything goes to court.
If Techdirt wins this case in court, everyone in the world will have all the firepower they need to decry Ayyadurai’s “inventor of email” claims without fear of a SLAPP action. That is why he will do everything he can to destroy Techdirt while he still has a chance.
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Karma is a real bitch, isn't it?
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It's not "someones opinion" that the earth is round or that the sun isn't a small childs teddy bear that got dropped from an airplane during turbulence.
And its a simple fact that Ayyadurai's is a liar who claims he invented something he simply didn't.
In essence he's as bad as snake oil salesman and "crystal healing" scum who lie and profit off that lie.
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Yes, actually, it can. If the 'facts' you cite are demonstrably flawed, or if the claims you make are drawn from a demonstrably flawed observation of those facts, then yes, they can be proven to be incorrect.
Ayyadurai got the copyright for something called "EMAIL" which was a small, standalone project that had no demonstrable impact in the history or development of the software we call email today. He may have created an email system from scratch by himself and gotten a copyright for a program called "EMAIL", but that does not mean he was the first person to create an electronic mail system. Indeed, the vast body of historical evidence shows that electronic mail systems existed and were in development long before. And those systems had far more of an impact on what we currently know as email.
It's really quite simple - he's using his copyright to troll for money.
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Did you read the filing, you pathetic loser?
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Did you read the filing?
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Yes, Anon, I know.
Gawker (or rather its new owners at Univision) also decided to settle and take its posts down (in the Ayyadurai case, not the Bollea one). If I were to guess, I'd say Harder and Ayyadurai were expecting that Techdirt would do that rather than go to court. But I'm sure they'd be happy with bankrupting the company too.
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Re: Re: Re: The best weapon comes from your opponent's arsenal
Why? Out-of-court settlements don't set legal precedent.
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Re: Odd bit I haven't seen mentioned
I certainly don't think Ayyadurai invented e-mail, but I also don't agree with your premise that executing someone else's concept doesn't qualify as invention.
Lots of people conceived of flying machines, electric lights, and long-distance voice communication before those things were implemented practically. The inventor isn't the person who said "we should make a flying machine", it's the person who made a flying machine.
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So, since I wrote that -- which, again, is a summary of what's in the legal filings linked in this article -- I've had one guy call this "a load of horseshit", another call me a "pathetic loser", and a third guy (who was rather politer than the first two, at least) give me a "well, actually".
Seeing as multiple commenters do not seem interested in reading the documents that this article is about before criticizing the arguments in them, I'm going to quote the relevant section here, from the memo in support of motion to dismiss (and again, pardon the formatting from copy-paste of a PDF):
That's not me making that argument. I'm not a lawyer. I'm deferring to the legal filing written by people who are lawyers. Because they know more about law than I do.
(At least, I hope they do, because if Mike has hired a legal team that doesn't know any more about the law than I do, then he's in real trouble.)
If anyone here has legal training and believes that this argument is incorrect as a matter of law, then I urge you to contact Techdirt's legal representatives and warn them that they have gotten it wrong, so that they can correct their mistake.
And be sure to open by calling them pathetic losers. That's how they know you're about to make a well-informed, accurate legal argument on the merits of their case.
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Seems to me that the liar (and people like you, who make excuses for him) are the pirates here.
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The billionaire who has decided that the first amendment really has to go, and is bankrolling people who seek to set precedents to do exactly that.
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Re: Good luck with it
Several of your other comments indicate otherwise.
_I also think that it is a perfect application of the legal system against you_
You would, authoritarian arselicker.
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Re: Odd bit I haven't seen mentioned
Let's add another odd bit not yet mentioned.
On his website, Ayyadurai states, "Email is the direct translation of the interoffice, inter-organizational paper-based mail system." And in an interview with Mo Rocca on that Ayyadurai posted to YouTube, he said:
In other words, Ayyadurai admits that his program merely performs the functions of an interoffice mail system "on a computer". Under the Supreme Court's Alice decision, his program could not be patented, even now that computer programs are patent-eligible.
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What the AC likely means is that the $750k Gawker settlement provided Ayyadurai with a war chest to pay for discovery and trial. Without that monetary settlement, this case presumably doesn't get filed in the first place.
Maybe you meant to quote the AC's subsequent sentence:
Clearly, the dismissibility of this case does not hinge on the fact that Ayyadurai obtained a settlement from Gawker. As for the "somewhat nasty tone" argument (i.e., motion for hurt feelz) that's not a defense to an Anti-SLAPP motion or a motion to dismiss.
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The defendants argue in their motions to dismiss that "Assuming the plaintiff isn't lying his ass off, his lawsuit still fails because it's deficient in these matters of law." Such as targeting speech that's squarely under First Amendment protection. The motion doesn't need to prove that Mike is right, just that his speech is protected.
If by some anti-miracle the lawsuit survives being thrown out, when facts come into play, at which point Techdirt and their lawyers can the drown the court in truth while Ayyadurai tries to keep afloat with lies and money.
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On the one hand, I'd like to see Techdirt get it over with as quickly as possible so their time and money doesn't continue to be unduly wasted. On the other, it would be nice to see the facts brought forth for a judge to see and once and for all that Ayyadurai's claims are full of shit, thereby setting a legal precedent so we don't have to keep hearing about we should all be grateful to him for a non-influential program he wrote, or deal with any future bullshit lawsuits from him.
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There are two problems with that. First, it would cost a hell of a lot more money than summary judgement motions. Second, by not following procedure precisely with regard to every particular, it leaves a possibility that the plaintiff will prevail on facts or motions where they would otherwise have lost.
People often talk about winning or losing on a technicality, and that's exactly what they mean. You can have the best case in the world but if your attorney screws up on one minor point of procedure, you may as well have hired JoeBob the DOllar Attorney instead.
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Sorry I wasn't clear originally - it wasn't aimed at you specifically; it was just me venting that the motion to dismiss seemed like it had some flimsy reasoning. I'm no legal expert, but for instance saying "The debate over who “invented” email is inherently incapable of objective proof." sounds really weak. We can certainly point to proof to show who DIDN'T invent email as we know it, namely Ayyadurai.
As another commenter pointed out, it's early in the lawsuit and Techdirt understandably wants to try and get it dealt with as quickly as possible so their time and money isn't wasted, so they're trying to have it dismissed on the basis that even if Ayyadurai's lawsuit was filed in good faith (which we know is bullshit) the defamation claims don't hold any water legally.
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Whether or not that would stop his self-aggrandizing efforts is anyone's guess though...
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Well, assuming we aren't speaking about invention as patent law defines it, it actually is rather subjective. Sure, we can say Ayyadurai wasn't the sole inventory, but any analysis of the facts leaves it clear that who invented email as we now define it is a subjective matter.
The reason that's important to state in the filing is if a fact cannot be proven true, it may well be more a matter of opinion. As opinion cannot be defamatory, that's actually a key point moving forward, assuming it does so.
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But I think the plaintiff actually has a winning case. Techdirt would like to keep on writing in the style of making reasoned, logical arguments that should be taken seriously by readers, but would like to not be liable on the grounds that these arguments that it tries to make in a reasoned, logical-sounding, serious manner are actually just meaningless rhetoric not to be taken seriously by a court of law.
But I don't think libel laws work like that. And I think the court will think likewise and will deny the anti-SLAPP motion.
Techdirt will fight very, very hard to prevent this case from going to trial. Not just because of the expense, but because Techdirt is very likely to lose.
Mine is going to be a very unpopular opinion here, where mostly Techdirt fans hang out. Fortunately I don't think the judge will go by the opinions of the echo chamber.
I would like to see this lawsuit actually go to trial. I think Techdirt will lose.
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