Latest Filings In Our First Amendment Fight; Please Help Keep True Independent Journalism From Being Silenced

from the fighting-to-report dept

Fri, Apr 14th 2017 8:20am — Mike Masnick

As we mentioned a few months ago, we are currently in a First Amendment fight for our very survival against Shiva Ayyadurai, who has announced his desire to shut us down for explaining, in detail, why we feel he did not invent email (given the long history of the development of email that preceded Ayyadurai's particular software application). Ayyadurai has retained the lawyer Charles Harder in this lawsuit, and Harder has been successful in getting another media property, much larger than Techdirt, to go bankrupt and be sold off in the face of a number of similar lawsuits. Last month, we asked for the case to be dismissed for a variety of reasons, including under California's anti-SLAPP law. Ayyadurai has opposed these motions. Yesterday, we filed our reply to Ayyadurai's opposition.

We recommend reading our reply carefully, along with all of the other filings in the case, and familiarizing yourself with all of the details in order to make up your own mind. If you believe that free speech and a free press matter in holding powerful people accountable -- or if you are worried about claims by public officials that it's time to "open up" or change our libel laws to go after a press that may report less than flattering things about them -- then please consider contributing to our Survival Fund at ISupportJournalism.com. As I have noted before, this lawsuit has been a massive distraction. It has already forced us to delay multiple projects that we were working on, and to postpone other projects that we were scheduled to begin. It has, similarly, limited our time and resources to continue reporting on a variety of topics that we would normally cover. In short, no matter what the outcome of the actual case, the lawsuit alone has already been tremendously costly for us in terms of how we operate.

At a time like this when truly independent reporting is so important, especially on a variety of matters concerning free speech online, net neutrality, copyright, patents, innovation and more, we hope you'll consider supporting our continued ability to report on these topics.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: charles harder, free speech, shiva ayyadurai

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TechDescartes (profile), 14 Apr 2017 @ 8:51am

Reputation Management

There is only one statement that Plaintiff tries to argue was unsupported by facts: the claim that Plaintiff “has built up his entire reputation” on his claim to have invented email.

So Ayyadurai wants to argue that he is famous not just for inventing email, so that it is defamatory to say he built his reputation around his claim that he invented email?

The guy has a registered trademark for DR. EMAIL. I pulled his substitute specimen of use submitted with the application, advertising his "Dr. Email™ Consulting Services". And guess what it says?

Shiva Ayyadurai. a scientist-technologist, entrepreneur, inventor and educator, invented [sic] of one of the world's first E-MAIL systems for which he received the first U.S. Copyright on E-MAIL. He founded EchoMail, Inc. in 1993 and is an expert in the field of E-Mail.

In other words, in 1996, Ayyadurai admitted that other email programs existed at the time he wrote his program—which is exactly what TechDirt has been reporting since day one.

P.S. If you want us to read all the materials, post Ayyadurai's 77-page response along with the reply. And the affidavit. Especially the affidavit.
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That Anonymous Coward (profile), 14 Apr 2017 @ 8:59am

Re: Reputation Management
https://ia801509.us.archive.org/32/items/gov.uscourts.mad.185980/gov.uscourts.mad.185980.docket.html
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aerinai (profile), 14 Apr 2017 @ 9:03am

Good Luck Guys
Thoughts and prayers go out to you in this fight. I think it is a slam dunk win for you, but I would have thought the same for the Gawker case as well... Harder and Ayyadurai are scum of the earth and its unfortunate that this lawsuit is even a thing.
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Adam Steinbaugh (profile), 14 Apr 2017 @ 9:08am

Re: Reputation Management
Nice catch.

The "one of the world's first" email systems line isn't a one-time slip-up. Ayyadurai's companies and websites have used that type of language for a long time. I've collected a few of them here: https://twitter.com/adamsteinbaugh/status/836223767974117380
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Unanimous Cow Herd, 14 Apr 2017 @ 9:09am

Defamation
Seems like the article/comments written by "janice" are the real defamation in this case. Maybe TD should pick up the libel bat and give a good swing at her.
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Anonymous Coward, 14 Apr 2017 @ 9:25am

It's interesting to compare the similarities between the behavior and censorious thuggery of Ayyadurai (SA) and Brett Kimberlin (BK)

Both have filed frivolous lawsuits for the sole purpose of "punishing" victims who wrote either provable fact or protected opinions about them. The main purpose is not always to win in court, but subject the lawsuits' victims to hardship, through lost money and time.

Both plaintiffs' lawsuits are entirely devoid of supporting facts or law.

Both plaintiffs try to ignore inconvenient laws and court rules to avoid having their lawsuits thrown out expeditiously.

Both lawsuits are meant to protect the plaintiffs' false narratives about themselves.
SA's exaggerates the achievements of his past. (Claiming that a little program that in no way led to the already-in-progress development of e-mail makes him its inventor.)
BK's downplays his extensive criminal or suspicious past and present.(Claiming that setting off bombs in his hometown doesn't make him a "Terrorist"; claiming that he's not a pedophile despite the long and documented history of his lusting after underage girls, and allegedly forging his wife's birth certificate so he could marry her at 16; running "chariries" that some are of the opinion exist to shield his assets from an unpaid judgment against him.)

Both have some mentally incompetent toadies supporting them.
AS apparently has Janice Duffy.
BK has Bill Schmalfeldt (Described by Popehat's Ken White as a "deranged cyberstalker")

Both blame negative press about them on wholly imaginary conspiracies to defame them.

Both have claimed criticism of them is racially motivated.
SA says people can't stand the idea of a "dark-skinned Indian" inventing email, ignoring that people have mentioned RFCs that name "dark-skinned Indians" who, unlike Ayyadurai, actually contributed to the development of Email.
BK says that critics like that nutjob Stacy McCain were being racist to BK... despite that both of them are white.

Both blame defendants for the actions of third parties.
SA claims Leigh Beadon responsible for an anonymous comment.
BK claims his various defendents are responsible for various supposed harms that unidentified readers must somehow be responsible for.

Both have had trouble with service.
SA mis-served one of the defendants at first.
BK has forged service-related documents on multiple occasions to claim he'd properly served parties he had not.

BK, when one of his lawsuits inevitably fails, will either appeal his deserved loss, or file a duplicative lawsuit to continue the attack against his perceived enemies.
SA only has one lawsuit against Techdirt so far, but it seems to be Charles Harder's M.O. to throw frivolous lawsuits onto the courts and hope something eventually sticks.
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Anonymous Coward, 14 Apr 2017 @ 9:27am

Re: Good Luck Guys
Remember, their objective is not to win the case, but rather to bankrupt Techdirt. Therefore they will use every trick to increase Techdirst's costs, and appeal every loss, and a win if they award is not enough to get their desired result.
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That Anonymous Coward (profile), 14 Apr 2017 @ 9:28am

Re: Defamation
IMHO she is a nutbag, and its not worth the hassle of printing the documents upside down to pursue her in Oz.

IIRC She got very upset & worked herself into a tizzy when she started a pissing match with someone online & it didn't go her way. So she made all sorts of demands & sued Google for a bajillion dollars because they hurt her feels.

She actively stalks mentions of her name and appears to defend her reputation by screaming incoherent things & conspiracy theories about how all of these big players are out to get her. She can't accept that someone might think from reading about her actions & lawsuits that perhaps she is a bit fscking unhinged... so its all a plot.

I'm all for leaving her on the island where all the plants and animals are poisonous and wait for nature to take its course. But then I'm not nice people & hold a low opinion of her.
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l8gravely (profile), 14 Apr 2017 @ 9:34am

Do you have his motions linked anywhere
So you have the links to his motions as well kicking around? It would be interesting to read his opposing motion that you just replied to.
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Cdaragorn (profile), 14 Apr 2017 @ 10:26am

Re: Re: Good Luck Guys
Which is why the anti-SLAPP law is soooo important here. If they can win that, then at least they can get the attorney's fees back. Will still have wasted a lot of time fighting it, but it's a lot better than just a simple court win.
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Ryunosuke (profile), 14 Apr 2017 @ 10:45am

Re: Re: Defamation
so we should thus continue to post Janice quotes whenever Shiva Ayylmaovandari's name pops up.
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Adam Steinbaugh (profile), 14 Apr 2017 @ 11:55am

Re: Re: Re: Good Luck Guys
Don't count on Techdirt being able to recover attorneys' fees, even if they're able to get the court to dismiss the action. Federal courts will often, if they can, dismiss using federal procedure, then rule that the anti-SLAPP motion is moot because the case has been dismissed.

So if you haven't donated to the defense fund because you hope that Techdirt will win attorneys' fees, donate.
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Thad, 14 Apr 2017 @ 11:56am

Re: Good Luck Guys
Keep in mind that Ayyadurai's case against Gawker was never decided; it was settled out of court after Gawker's bankruptcy and sale.

Or, if you're referring to the Bollea/Hogan suit that caused the bankruptcy, keep in mind that the judge in that case denied Gawker the opportunity to appeal by refusing to allow it to defer payment of damages until the appeals process was exhausted.
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That One Guy (profile), 14 Apr 2017 @ 11:58am

Re: Re: Re: Re: Good Luck Guys
Which rather defeats the entire purpose of having an anti-SLAPP law on the books, making for a rather absurd decision if that's the case.
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Thad, 14 Apr 2017 @ 11:59am

IANAL, but to my read it looks like Techdirt's got a good team of attorneys here -- and like Harder's got nothing and is just stalling and misleading.

Good luck.

If the hearing is April 20, how soon can we expect a ruling on the defendants' motions?
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Thad, 14 Apr 2017 @ 12:03pm

Re: Re: Re: Re: Re: Good Luck Guys
Which is why we need a strong federal anti-SLAPP law.

I don't have a lot of hope about getting Congress to agree on much of anything, but even a deeply-divided Congress passed federal laws protecting consumers from being sued for writing negative reviews of businesses, and this strikes me as a very similar issue. Hope springs eternal. (Would Trump veto if it passed? Who knows. He's made comments about "opening up libel laws" in the past and a federal anti-SLAPP statute would be the opposite of that, but it's not like he's never pushed a policy that was the opposite of something he said during the campaign. If an anti-SLAPP law were a popular bipartisan bill, then signing it into law would make him look good, so I think he'd probably do it.)
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Bob, 14 Apr 2017 @ 12:21pm

Was Janice while writing her article as high as Alice was when she went through looking glass.
Kudos for working in a quote from "through the looking glass".

Also I had a good laugh from exhibit B and the rubbish that the analysis presented. Especially the part about how TechDirt does present facts. With all the sound logical analysis and links you guys put into each article I find it funny that more people don't read your articles.
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Chuck, 14 Apr 2017 @ 12:32pm

Re:
IANAL either, but I'm a paralegal in Alabama. The answer to your question is that it's entirely up to the judge. Lawyers on both sides have deadlines to file various things (time to file an Answer after a Complaint, time to file responses to various Discovery, etc.) but judges get to set their own deadlines for whenever they feel is reasonable. Which is usually actually reasonable, but if you get a particularly lazy judge - or more often, one who has a serious backlog left by his/her predecessor - a "reasonable" time to rule on a motion can range from "right there in court during the hearing" (with a written order following usually no more than an hour later) to 2-3 months later.

Other than the fact that the judge has to rule on this before the actual trial date (which the judge can reschedule, if he chooses) there's literally no limit on how long he can sit there and think about it.
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Trails (profile), 14 Apr 2017 @ 2:01pm

Re: Reputation Management

P.S. If you want us to read all the materials, post Ayyadurai's 77-page response along with the reply. And the affidavit. Especially the affidavit.

Let's groklaw this shit!
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Derek Kerton (profile), 14 Apr 2017 @ 3:01pm

Re: Was Janice while writing her article as high as Alice was when she went through looking glass.
The problem IS that it requires intelligence to be a regular reader. Not immense smarts, but better than average.

If you want a big following, you need to write at a 5th grade level. Like our POTUS.
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Bob, 14 Apr 2017 @ 4:25pm

Re: Re: Was Janice while writing her article as high as Alice was when she went through looking glass.
The current POTUS made it to 5th grade? Hard to believe when his interviews are so incoherent.
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Anonymous Coward, 14 Apr 2017 @ 4:41pm

Re: Re: Good Luck Guys
Yeah that judge followed no rules and seems to have been bribed or blackmailed into siding against Gawker on every single opportunity.
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Pixelation, 14 Apr 2017 @ 5:14pm

Re: Defamation
Is this the same Janice Duffy that is a stalker? Sure seems creepy.
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anonymous me, 14 Apr 2017 @ 8:49pm

Re: Good Luck Guys
Definitely, good luck, guys. (p.s. I gratefully donated to your survival fund. I love Techdirt's "voice.")
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That One Guy (profile), 14 Apr 2017 @ 10:01pm

Re: Re: Good Luck Guys
Or, if you're referring to the Bollea/Hogan suit that caused the bankruptcy, keep in mind that the judge in that case denied Gawker the opportunity to appeal by refusing to allow it to defer payment of damages until the appeals process was exhausted.

"I've already said that you're guilty and you're going to be treated accordingly. If you survive the fines resulting from my ruling, then you can appeal my decision and try to recover your money back should you win under a different judge(because you'll only get more of the same if I have to deal with you again).

What's that you say, the fines I'm handing out will mean that you will no longer be able to appeal the decision? You should have thought of that before entering my court, now shouldn't you have?"

Yeah, assuming your comment(and my reading of it) is accurate, refusing to allow them to hold off on paying the fines until they exhausted all appeals was essentially ruling that they weren't allowed to appeal the decision, that the current ruling was the final ruling on the case and it would end there, no matter what the law might have otherwise allowed.
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Anonymous Coward, 14 Apr 2017 @ 11:12pm

I, for one, will be happy to see the end of this fake news and fake commentary site (though I will miss Thad). IMHO, there is ZERO chance that this will be dismissed by the judge, and a very good chance that you will be facing a sitting Senator when you find yourself in front of a jury. America has had enough of paid leftist propaganda and the fakest news and commentary that money can buy, all from TechDirt. Your advertisers are smart enough NOT to put their name directly on this propaganda, and now you will have to "face the music" on behalf of your dishonest globalist leftist un-American masters. Your advertisers, it appears, have already abandoned you. Give it up, there is no upside to continuing, it is time to conform to a higher ethical stature or be financially and publicly punished for not doing so.
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That One Guy (profile), 14 Apr 2017 @ 11:31pm

Re:
7/10. Forgot to mention 'commies' and 'liberals', leaving me with two empty spaces on my 'buzzword bingo' sheet.
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Anonymous Coward, 14 Apr 2017 @ 11:49pm

Re:
You forgot the "/s" at the end.
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Anonymous Coward, 15 Apr 2017 @ 1:16am

Re:
The Hamilton University called, they want their raving lunatic of a mascot back.
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Anonymous Coward, 15 Apr 2017 @ 4:02am

Re:
but if the advertisers aren't paying for it, who is?
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Anonymous Coward, 15 Apr 2017 @ 5:13am

Here's the thing. All if these motions are pretty standard early lawsiit steps tgat generally don't succeed. If there is even the suggestion of enough material for the lawsuit to go forward then tge courts generally are loath to stop things early.

It seems much of the motion is a dispute of the facts. Its very posdible that the judge coukd summarily rule but it seems more likely that the answer would be ti move firward. The argument presented are those that would be argued during the trial. Why rule summarily?

Nice motion, i hope for your sake the judge rules in yiur favor. Of course that still won't be the end of it.
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Hans, 15 Apr 2017 @ 9:10am

Re: Re: Re: Re: Good Luck Guys
I dropped another $100 in the donation jar. Hope it helps, and that others contribute what they can.
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Pixelation, 15 Apr 2017 @ 9:30am

Re:
"...and a very good chance that you will be facing a sitting Senator when you find yourself in front of a jury. "

Oh, good God. He'll submit a couple of bills, copyright the term "Senate bills" and declare himself the "Inventor of Senate bills".
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Anonymous Coward, 15 Apr 2017 @ 9:45am

>> be sold off in the face of a number of similar lawsuits

It is statements like this, that prevent me from donating to your cause.

If you really believe you are "similar" to gawker, that you post sex tapes stolen from peoples private data stores. I dont think you want to compare your site to Gawker

Gawker was stain on humanity, it is GOOD it is gone, and I fully Support Hogan's lawsuit and the resulting verdict

There is ZERO similarities between Gawker and the Tech Dirt Lawsuit.
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Anonymous Coward, 15 Apr 2017 @ 10:24am

Re: Re:
His priority will be to put a rider on all bills to say that he is the inventor of email.
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Anonymous Coward, 15 Apr 2017 @ 10:33am

Re:
There is every similarity, someone deciding to use the legal system to destroy a critic and/or censor what other people can say. What is more there may be the same money backing this assault on free speech.

Freedom of speech mean that let others speak, even if you totally disagree with what they say. There is no need for you to listen to what they say, but when you try to stop their speech you are acting as a censor, and saying that you can decide what they are allowed to say.
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Anonymous Coward, 15 Apr 2017 @ 11:48am

Anonymous donations?
I was heartened to see that you support Bitcoin donations, but when I tried to donate, I hit a brick wall. Why does the site require an email, name, and address for donations? Why can't we donate anonymously?
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Anonymous Coward, 15 Apr 2017 @ 3:39pm

Re: Re:
>>Freedom of speech mean that let others speak, even if you totally disagree with what they say.

So you believe hackers should be allowed to steal sex tapes and Scum sites like Gawker should be allowed to display them.

Where did you stand on The Fappening, do you believe reddit should have taken all those Celebrities Nude down... Free Speech right

Jesus.

Gawker was not a Free Speech issue, it is a Privacy and Stolen Property Issue.

Gawker Media Received Stolen Property, choose to Use that property violate the privacy of a Minor Celebrity.

If they would have simply Reported on the story i.e a new outlet, it would have been a different trial. They Hosted and displayed the sex tape
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James P Burkhardt (profile), 15 Apr 2017 @ 7:52pm

Re:
Probably because primarily The lawsuit makes a legal claim, defemation, and then fails to state any facts which support that claim. Page 9 of the Techdirt response is dedicated to pointing out even if they do not apply the CA anti-SLAPP law, the suit is deficient of any basis for the legal claim, which is the standard necessary to dismiss the case. This is excatly what pre-trial motions are for. Techdirt is effectively saying "I agree with all the plaintiffs facts, but they do not provide basis for the legal claim." or to be more simple "Yeah. WHats your Point?" These motions might not work against cases with real legal questions, but Techdirt and popehat are filled with similar lawsuits to this one that were in fact dismissed because the lawsuit was deficient. To rule that the case should move forward the judge has to say that there is sufficent evidence in THe plantiffs filing to suggest the likelood of prevailing at trial. I dont see any evidence to that effect, nor does techdirt.
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Ishtiaq (profile), 16 Apr 2017 @ 2:33am

Re:
I can"t decide whether you are being sarcastic or not. If you are, your sarcasm is shite. If you"re not then you are just a gobshite. In that case maybe you should ask mummy if she will let you play outside. Preferably on a motorway…
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Anonymous Coward, 16 Apr 2017 @ 4:43am

Re: Re:
The basic fact that the plaintiff has prevailed in a similar lawsuit shows that he can and has prevailed.

It's a big mountain to climb.
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Anonymous Coward, 16 Apr 2017 @ 2:36pm

Re: Anonymous donations?
1. Always lie about names, addressess etc.

2. Get a throwaway email address too. Just keep it long enough for the confirmation link.

3. Browse through Tor.

4. Don't forget to wash your bitcoins, as these could trace back to you. Especially if you bought these at a market and paid by bank.

It's a classic case of CWF, RTD (donate).

A simple Bitcoin address would be so nice. That's why I haven't donated either yet.
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That One Guy (profile), 16 Apr 2017 @ 3:54pm

Re: Re: Re:
No actually he didn't.

Gawker went bankrupt and was forced to settle any remaining cases against them, including the one he brought. It would be a stretch to even call such a thing a 'win by default', as his 'victory' came about due to the actions of another party entirely and was a lucky(for him) side-effect of another lawsuit which was completely unrelated to his.

The merits or lack thereof regarding his case against Gawker was never determined either way, and as such it should have minimal if any impact on this case.
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Dahna Chandler, 16 Apr 2017 @ 9:28pm

Re: Reputation Management
His is a ridiculous assertion. I sent my first email in 1998 and it was called an "email" when I sent the message. I did my first what's now called "email marketing" campaign in 1991. That doesn't mean I get to claim its invention. I certainly hope you have a tech savvy judge who dismisses this bogus case. Suing because you get your feelings hurt when someone challenges in one article or blog post what the internet allows anyone to research ought to be illegal and the basis for a countersuit for defamation and harassment.
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Anonymous Coward, 17 Apr 2017 @ 3:35am

Good luck to you Techdirt. Fuck those guys.
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The Wanderer (profile), 17 Apr 2017 @ 5:03am

Re: Re: Re: Re:
I was going to post something similar, but I ran up against the fact that if you ignore the legal context and look only at the colloquial sense of the term, the events you describe do constitute him winning - or, in other words, "prevailing in" - his fight against Gawker.

Nothing about that win says that the court will be more likely to rule in his favor in this instance - but nothing about this instance says that the force-the-target-into-bankruptcy tactic won't be just as effective in this case as it was in the previous one, assuming that he has sufficient funds available on his end.

So that argument turns into arguing over the meaning of the word "prevail", and that type of semantic hairsplitting is not going to convince anybody who doesn't already agree with you.
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Anonymous Coward, 17 Apr 2017 @ 7:29am

Re: Re: Re:
The only person who believes he "prevailed in a similar lawsuit" is Ayyadurai himself, because he mistakenly thinks that a settlement due to bankruptcy is equivalent to a legal win.

He can parade that around like some kind of legitimization of his view that he's the inventor the email all he likes; it doesn't make it true, and does nothing to set legal precedent there.
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Anonymous Coward, 17 Apr 2017 @ 7:40am

Re:
You forgot to use "govern yourself accordingly" somewhere in there.
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G Thompson (profile), 17 Apr 2017 @ 9:28pm

Re: Re: Defamation
Janice Duffy is an idiot, vexatious litigant, a complete loon and has a few sheep short in the top paddock. (As a fellow Aussie she will understand the last reference - Oh and Janice.. come at me )
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Anonymous Coward, 23 Apr 2017 @ 5:05pm

It's an attack on independent journalism and internet freedom.
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