Case Dismissed: Judge Throws Out Shiva Ayyadurai's Defamation Lawsuit Against Techdirt

from the the-first-amendment-means-something dept

As you likely know, for most of the past nine months, we've been dealing with a defamation lawsuit from Shiva Ayyadurai, who claims to have invented email. This is a claim that we have disputed at great length and in great detail, showing how email existed long before Ayyadurai wrote his program. We pointed to the well documented public history of email, and how basically all of the components that Ayyadurai now claims credit for preceded his own work. We discussed how his arguments were, at best, misleading, such as arguing that the copyright on his program proved that he was the "inventor of email" -- since patents and copyrights are very different, and just because Microsoft has a copyright on "Windows" it does not mean it "invented" the concept of a windowed graphical user interface (because it did not). As I have said, a case like this is extremely draining -- especially on an emotional level -- and can create massive chilling effects on free speech.

A few hours ago, the judge ruled and we prevailed. The case has been dismissed and the judge rejected Ayyadurai's request to file an amended complaint. We are certainly pleased with the decision and his analysis, which notes over and over again that everything that we stated was clearly protected speech, and the defamation (and other claims) had no merit. This is, clearly, a big win for the First Amendment and free speech -- especially the right to call out and criticize a public figure such as Shiva Ayyadurai, who is now running for the US Senate in Massachusetts. We're further happy to see the judge affirm that CDA Section 230 protects us from being sued over comments made on the blog, which cannot be attributed to us under the law. We talk a lot about the importance of CDA 230, in part because it protects sites like our own from these kinds of lawsuits. This is just one more reason we're so concerned about the latest attempt in Congress to undermine CDA 230. While those supporting the bill may claim that it only targets sites like Backpage, such changes to CDA 230 could have a much bigger impact on smaller sites like our own.

We are disappointed, however, that the judge denied our separate motion to strike under California's anti-SLAPP law. For years, we've discussed the importance of strong anti-SLAPP laws that protect individuals and sites from going through costly legal battles. Good anti-SLAPP laws do two things: they stop lawsuits early and they make those who bring SLAPP suits -- that is, lawsuits clearly designed to silence protected speech -- pay the legal fees. The question in this case was whether or not California's anti-SLAPP law should apply to a case brought in Massachusetts. While other courts have said that the state of the speaker should determine which anti-SLAPP laws are applied (even in other states' courts), it was an issue that had not yet been ruled upon in the First Circuit where this case was heard. While we're happy with the overall dismissal and the strong language used to support our free speech rights, we're nevertheless disappointed that the judge chose not to apply California's anti-SLAPP law here.

However, that just reinforces the argument we've been making for years: we need stronger anti-SLAPP laws in many states (including Massachusetts) and, even more importantly, we need a strong federal anti-SLAPP law to protect against frivolous lawsuits designed to silence protected speech. The results of this case have only strengthened our resolve to do everything possible to continue to fight hard for protecting freedom of expression and to push for stronger anti-SLAPP laws that make free speech possible, and not burdensome and expensive.

You have not heard the last from us on the issue of the First Amendment, free speech and anti-SLAPP laws -- or how some try to use the court system to silence and bully critics. Step one of this is our new Free Speech edition, which we announced just a few weeks ago, where we are focusing more of our reporting efforts on issues related to free speech and anti-SLAPP. We intend to do a lot more as well. For years, we've talked about these issues from the position of an observer, and now we can talk about them from the perspective of someone who has gone through this process as well.

Of course, if you have to face something like this, it helps to have great lawyers--and we're immensely grateful for the incredible hard-work of Rob Bertsche, Jeff Pyle and Thomas Sutcliffe along with the rest of the team at their firm, Prince Lobel Tye LLP.

Finally, I can't even begin to thank everyone who has supported us over the past nine months -- whether by kind words (you don't know how much that helped!) or through our survival fund at ISupportJournalism.com or by becoming a Techdirt Insider. We just passed Techdirt's 20th anniversary and while it's one thing to think that people like and support you, it's another thing altogether to see how people come out to support you when it matters most. And we were overwhelmed by the support we received over the past nine months, and the kind words and help that many, many people offered. It was beyond heartening, and, once again, it reinforces our resolve to continue to speak up for free speech and to do what we can to protect others' ability to speak out as well.

Filed Under: anti-slapp, defamation, email, first amendment, shiva ayyadurai
Companies: floor64, techdirt

The Chilling Effects Of A SLAPP Suit: My Story

from the no-fun-at-all dept

Last week, I presented at the always excellent Personal Democracy Forum event in NY, talking publicly for the first time about the lawsuit that's been filed against us. Specifically, what I chose to talk about is the real chilling effects that such a lawsuit can have -- and has already had on us. We've written about SLAPP defamation suits for many, many years. But it's (unfortunately) different (and much, much worse) to experience it yourself. You can see the video here, which got more emotional than I had expected it to be.

If you agree that these chilling effects are a dangerous attack on free speech, please consider supporting our ongoing reporting via any of the following methods: ISupportJournalism.com, Patreon.com, our own Insider Shop, or perhaps you want to buy some t-shirts, hoodies, mugs or stickers. However you support us: thank you. Related to this, I also want to thank both the staff and attendees at PDF, who were amazing, kind, thoughtful and helpful to me over the course of the event.

Separately, Ars Technica just published a long deep dive article on the claims that the plaintiff in the case against us, Shiva Ayyadurai, has made. It's a worthwhile read.

Filed Under: anti-slapp, charles harder, chilling effects, defamation, email, free speech, shiva ayyadurai, slapp, techdirt
Companies: floor64, techdirt

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.

As we noted before, this lawsuit is a huge distraction for us, and we appreciate everyone who has stepped up already to help keep us going and to keep publishing through this ordeal. Please check out the site ISupportJournalism.com to let us know you support our reporting on a variety of important issues. Or, check out some of our t-shirts, hoodies and other gear, as we've been refreshing some old favorites and some new designs as well.

Filed Under: anti-slapp, lawsuit, motion to dismiss, shiva ayyadurai
Companies: floor64, techdirt

Techdirt's First Amendment Fight For Its Life

from the the-first-amendment-has-to-mean-something dept

As you may have heard, last week we were sued for $15 million by Shiva Ayyadurai, who claims to have invented email. We have written, at great length, about his claims and our opinion — backed up by detailed and thorough evidence — that email existed long before Ayyadurai created any software. We believe the legal claims in the lawsuit are meritless, and we intend to fight them and to win.

There is a larger point here. Defamation claims like this can force independent media companies to capitulate and shut down due to mounting legal costs. Ayyadurai's attorney, Charles Harder, has already shown that this model can lead to exactly that result. His efforts helped put a much larger and much more well-resourced company than Techdirt completely out of business.

So, in our view, this is not a fight about who invented email. This is a fight about whether or not our legal system will silence independent publications for publishing opinions that public figures do not like.

And here's the thing: this fight could very well be the end of Techdirt, even if we are completely on the right side of the law.

Whether or not you agree with us on our opinions about various things, I hope that you can recognize the importance of what's at stake here. Our First Amendment is designed to enable a free and open press — a press that can investigate and dig, a press that can challenge and expose. And if prominent individuals can make use of a crippling legal process to silence that effort, or even to create chilling effects among others, we become a weaker nation and a weaker people because of it.

We are a truly small and independent media company. We do not have many resources. We intend to fight this baseless lawsuit because of the principles at stake, but we have no illusions about the costs. It will take a toll on us, even if we win. It will be a distraction, no matter what happens. It already has been — which may well have been part of Ayyadurai's intent.

I am beyond thankful to the many of you who have reached out and offered to help in all sorts of ways. It is heartening to know so many people care about Techdirt. At some point soon, we may set up a dedicated legal defense fund. But, in the meantime, any support you can provide us will help — whether it's just alerting people to this situation and the danger of trying to stifle a free press through meritless lawsuits, or it's supporting Techdirt directly (or, if you have a company, advertising with us). As always, you can support us directly as a Friend of Techdirt, or check out some of the other perks you can get in our Insider program. You can also support us via Patreon.

If freedom of expression and the press is to actually mean something, it needs to be protected, not stomped on with baseless lawsuits that silence independent voices and opinions.

Filed Under: defamation, first amendment, free press, free speech, techdirt
Companies: floor64, techdirt

24 Hours Left To Support Our Crowdfunding Campaign On Net Neutrality: Now With Stretch Goals

from the almost-at-the-finish-line dept

Home stretch: Less than 24 hours left
to support our net neutrality coverage »

In the last 24 hours or so, you guys came through in an amazing way to shoot us past our target goal in our crowdfunding campaign to support our net neutrality reporting. Following yesterday's amazing post from former Congressional staffer Jen Hoelzer about how much reporting like Techdirt's can make a difference in DC, there was a flood of support, which was great. There's still another 24 hours or so to go in the initial campaign and we've decided to add some stretch goals, because all the crowdfunding kids are doing it (and we can't resist the peer pressure). The support has continued to flow in, but the more support we can get in these last 24 hours, the more we can do, and the more impact we can hopefully have in making sure that the public's voice is heard in DC and that the future of the internet isn't just decided by "DC insiders."

Home stretch: Less than 24 hours left
to support our net neutrality coverage »

Filed Under: crowdfunding, net neutrality, stretch goals
Companies: floor64, techdirt

As Deadline Approaches, Imgur Pledges Matching Funds To Support Techdirt's Net Neutrality Campaign

from the helping-out dept

Final days to support our crowdfunding campaign »

Last week we gave a special thanks to Twitch and Namecheap for providing matching funds for our big crowdfunding campaign, and today we want to welcome (and thank!) the greatest photo site on the internet, Imgur, for joining the campaign as well. As the company's CEO, Alan Schaaf said:

Imgur would not have been possible without the tidal wave of innovation that net neutrality makes possible. We're stoked to support Techdirt in paving the way for a genuine, important public dialogue about these issues.

It's been great to see these three companies step up to support the campaign, but it's been you guys, our community, that has gotten us so far already. We're still a bit short of the target -- and I know that money is tight for many and that there are lots of competing offerings where you can put your money (though, if you donate money to the Potato Salad Kickstarter thing and not to us, I don't think we can be friends... because, really?), but any help that folks can give to either get us over the target or to share with others, recognizing how important this issue is, would be greatly appreciated.

Thanks again to all of you who have already supported it or shared it with others. With a little more help we'll be able to meet our goal, and focus that much more of our time and energy on bringing you the best reporting on the fight to keep the internet free and open. As noted earlier, our plan is to bring in additional voices on this issue, to interview key players, to dig deep into some of the more unexplored stories around this fight and much much more. But it's only possible with your help, and the deadline is rapidly approaching.

Please support our net neutrality reporting today »

Filed Under: crowdfunding, net neutrality, techdirt
Companies: floor64, imgur, techdirt

Techdirt's Comments To The FCC On Net Neutrality And Preserving An Open Internet

from the speak-up dept

While the FCC has thankfully extended its deadline for filing comments on the net neutrality issue through Friday after its site melted down (again), I also wanted to share with you exactly what it is that we're submitting to the FCC. In short: we support reclassification under Title II in combination with clear forbearance, to limit the regulatory power of the FCC to just the specific issues dealing with keeping the internet free and open for competition. We note how important this has been to us on a variety of levels. For example, as a small company, we've been able to effectively compete against much larger news organizations. That would be much more difficult when those organizations could negotiate and pay to be on "fast lanes" while smaller operations like ourselves would be unable to do so.

Furthermore, we note the harm that this would cause to free speech. Given that we are frequent critics of the major broadband players, it's likely that even if we were able to afford to pay for "priority access," those companies would make it difficult for us to actually do so, using some sort of pretense to limit the ability of vocal critics to get access to the "fast" internet.

In addition, we urge the FCC not to ignore the interconnection issue, by which broadband access players have "shifted" the debate away from the last mile, but have effectively achieved the same result: getting big internet companies to pay double for the bandwidth consumers already thought they were paying for. Beyond that, though, we hope that the FCC will actually do what it's been promising for the better part of a decade and encourage actual competition in a variety of ways: knocking down barriers to entry, increasing (vastly) the amount of spectrum available and exploring possibilities to encourage competition at the service level, rather than just at the network level. You can read our entire comment below. While some friends in Washington DC have promised to deliver our comments by hand today, we'll keep trying the electronic way as well. Hopefully we'll get them delivered by the end of the week.

PS: If you like our reporting on net neutrality issues, please consider supporting our crowdfunding campaign, which will allow us to put even more resources towards reporting on this key issue.

Filed Under: broadband, fcc, forbearance, nprm, open internet, title ii
Companies: floor64

Techdirt Sued For $10 Million In A Frivolous Lawsuit For Posting An Earlier Frivolous Lawsuit

from the surprisingly,-defendants-not-accused-of-racism-by-acknowledged-racist dept

Publisher's note from Mike Masnick: As you can see in the story below, we were sued. While we get an average of about one legal threat per month (though, always in bunches, rather than evenly spread out), until this case, we'd never actually been sued (we were once named in another filing, but it was procedurally rejected by the court, and when the plaintiff refiled later, he left us out). On advice of our lawyer, we had been waiting to see if Kenneth Eng actually bothered to have the filing served on us, as is required to move forward with the lawsuit. For rather obvious reasons, as you can see below, we had little fear that this lawsuit would last very long, but a failure to serve us would have been even more fatal to the case. Thankfully, it appears that Judge Vitaliano didn't even think it was worth waiting to hear from us to dismiss the lawsuit with prejudice. No matter how confident you are in prevailing in a lawsuit, getting sued is still both a waste of resources and a massive distraction. Thus, we're quite pleased with Judge Vitaliano's handling of the case in this manner.

Roughly a month ago, I wrote about Kenneth Eng's doomed copyright lawsuit against author L'Poni Baldwin for allegedly stealing his techno-dragon ideas. As was pointed out by the judge in the lawsuit's dismissal, copyright doesn't apply to ideas -- only to the expression of ideas. And Eng's ideas (and expression thereof) weren't sufficiently distinctive from a host of other technology-meets-mythology creations. The judge did, however, allow Eng to re-file his complaint, both to refine his copyright claims and to actually make some sort of actionable claim.

Eng did amend his complaint. Here's the entirety of that amendment, in all of its ignorant, racist glory.

Furthermore, Baldwin copies from Japanese anime. This is copyright infringement that proves that coons cannot come up with their own ideas. In addition, she mentions that the dragons in her story came from Pre-Cambrian Earth. I also had a similar history in my story, in which dragons evolved from the dinosaurs.

Eng is a self-described racist and "Asian supremacist." In his mind, this is the smoking gun his copyright lawsuit was missing. It wasn't enough that his previous complaint basically stated that the "copying" of his ideas was racially-motivated because L'Poni Baldwin is "black," at least according to Eng's "research."

Cue dismissal with prejudice and further instructions that Eng will not be allowed to appeal this decision in forma pauperis.

That was only part of Eng's many legal filings during a very busy month. Here's another, filed June 19th:

I. Plaintiff Kenneth Eng resides at 4266 Saull Street, Flushing, NY 11355

Defendant Tim Cushing resides at Floor64, Inc., 370 Convention Way, Redwood City, CA 94063
Defendant TechDirt resides at Floor64, Inc., 370 Convention Way, Redwood City, CA 94063

II. The jurisdiction of the Court is invoked pursuant to 28 U.S. Code 4101.

III.
Journalist Tim Cushing published my address and other personal information on two websites (at least). Please see the following:

[links to documents uploaded to Document Cloud]

He did this for the purpose of harassing me and writing this slanderous article:

https://www.techdirt.com/blog/?tag=kenneth+eng

Cushing and his publisher TechDirt have been reported to the police*. I have contacted "documentcloud.org", and they told me that they would not remove the material; that it was the journalist's responsibility.

IV. I am seeking $10,000,000 in damages from Tim Cushing.

[*Eng actually emailed Techdirt to inform us that he had "called the police" on me. If he did in fact do this, presumably the NYPD told him that Redwood City, CA is a bit out of its jurisdiction. {Not to mention the fact that I don't actually "reside" at TD HQ.}]

Beyond the fact that Eng fails to state a claim, there's the underlying wrongness of his entire premise: that the contents of public records aren't actually public and that people can be sued for making public documents public.

Within a few days of this filing, Eng sued PACERMonitor, a site that (duh) monitors PACER for new filings. Once again, Eng asserts his mistaken belief that information contained in public records can't be published.

Defendants PacerMonitor.com, which is owned by Joe Rosen of Harros LLC has unlawfully published my address on their website:

https://www.pacermonitor.com/public/case/3746119/Eng_v_Captain_Blue_Hen_Comics

The above link has my address under the tab labeled "Parties."

I wrote them two emails instructing them to remove this information. They did not comply. Ergo, I am filing this lawsuit.

I am seeking $10,000,000 in damages from all parties named above.

While these lawsuits alleging the civil violation of "publishing public records" sat awaiting a judge's review, Eng sent letters to the courts (Eastern and Southern Districts of New York) he was filling with frivolous filings the following letter asking for the redaction of his personal information. Here's the one that was filed on the Techdirt docket:

Vitaliano/Bloom:

I would like to redact my address from all of my lawsuits. Someone has posted my address on the internet after having acquired a copy of a few of my lawsuits. I was instructed to list the case numbers of the lawsuits in question, but upon attempting, i realized that I do not have the numbers to certain cases I recently filed.

This means that I would also like to redact my address from lawsuits I filed in the past that have been sealed/closed. I would also like to redact my address on this letter.

Well, Mr. Eng, there are things you'd "like" and things that are actually permitted. Please see the following screenshot for further clarification:

The court isn't going to redact information unless you can give them a legitimate reason to do so. See also: the following lawsuit filed by Kenneth Eng against "Officer X." [Complaint states the "X" is not a stand-in, but actually the officer's given name. It is also filled with derogatory terms for African-Americans.]

It didn't take long for Eng's lawsuit against Techdirt to get thrown out. In a short but pointed decision, Judge Vitaliano of NY's Eastern District Court tossed Eng's suit against Techdirt, along with his complaint against PACERMonitor… with prejudice.

Eng's solitary gripe in these cases is that defendants have publicly reproduced copies of some of the many frivolous civil action complaints filed by him in recent months. These complaints and accompanying cover sheets are, of course, official court documents, and matters of public record. As is expected in a court filing, Eng's address -- as well as the mailing addresses of those he has attempted to sue -- appears on the face of these court documents. That defendants have distributed copies of these documents in the media is a practice that is by no means unusual or a violation of Eng's right to privacy. Put simply, he has no privacy interest in such publicly-accessible records.

So, who's really hurting Eng here? Vitaliano states it plainly: Eng is the biggest threat to his own privacy.

In short, it was not defendants that thrust Eng's home address into the public record: it was Eng, himself, and he has done so repeatedly.

If you don't want your name, address and phone number in public records, stop filing frivolous lawsuits. Public records are public. By filing a lawsuit in a federal court, you create a nationally-accessible document that will contain both the information of the plaintiff as well as the information of the defendant(s). Both are exposed by this action, but Eng somehow feels only his should be redacted.

Defendants, by merely reproducing Eng's court filings and reporting on his legal antics, have committed no impropriety, and plaintiff can state no claim against them on those grounds.

Vitaliano is obviously tiring of Eng's numerous in forma pauperis filings, most of which state no claim and load up on racist language.

For the foregoing reasons, Eng has failed to state claims upon which relief may be granted, and his factual allegations make clear that, even if amended, his pleadings could not possibly state any valid cause of action. Pursuant to 28 U.S.C. § 1915(e)(2)(B), therefore, Eng's complaints are dismissed in their entirety with prejudice.

The judge also warns that Eng's days as a free-riding serial litigant are coming to an end.

Eng has, the Court's records reflect, filed a spate of these meaningless lawsuits in recent weeks. In light of his ongoing practice of filing lawsuits of this frivolous nature, the Court again reiterates its warning that, should he continue to file such lawsuits, he will face a filing injunction and/or monetary sanctions, upon notice and opportunity to be heard.

Eng's remaining open lawsuits are being closed down rapidly. Three recent copyright infringement suits were simultaneously dismissed for the usual reasons: inability to state a claim and the attempt to claim ownership of ideas.

Eng, however, appears to be determined to abuse the in forma pauperis rules until slapped with sanctions or asked to cough up a filing fee. He's also been busy filing lawsuits in the Southern District court, perhaps to avoid running into Vitaliano again. His most recent infringement filing in that court targets an internet meme:

There is a website called "The Philosoraptor" http://www.philosoraptor.com that infringes upon one of my characters, Philosoraptor. My character appeared in my book The 0th Dimension, written in 2003 and published in 2007 by FurNation, and published again by Double Dragon Publishing in 2012. Both characters, mine and the adversary's, are anthropomorphic raptors.

I am unable to ascertain any personal information about who created the website in question. There appears to be a copyright notice dated year 2000; but I cannot verify the validity of this.

I am seeking $200,000 in damages from the creator of the Philosoraptor website.

"Adversary."

Well, then.

I'm not sure how many dismissals it will take before Eng realizes that public records are public records, and generic ideas/expressions aren't protectable under copyright law. My guess is it won't be the dismissals that stop him but the courts' decision to start charging him filing fees. Notably, no case dismissed has ever been appealed because each dismissal comes with the same warning attached: you're paying for the next round.

[More documents from Kenneth Eng's lawsuits can be found here, including a lawsuit against the college he used to attend, which sheds some light on his general attitude towards anyone who isn't Kenneth Eng.]

Filed Under: eric vitaliano, frivolous lawsuit, kenneth eng, public records, tim cushing
Companies: floor64, pacermonitor, techdirt

Techdirt Receives Its First 'Right To Be Forgotten' Request

from the which-we-will-not-follow dept

Following the ridiculous right to be forgotten ruling in the EU Court of Justice last month, we knew that it would open the floodgates to crazy requests from people trying to take down embarrassing things about them online. Immediately after the ruling, politicians and pedophiles alike rushed to ask Google to take down links to content about them. Once Google set up a form for handling such requests, tens of thousands of requests poured in.

But, of course, it was only a matter of time until people started trying to stretch the ruling further and further impacting other sites -- including ours. We've already noted how former NSA top lawyer Stewart Baker has asked Google to "forget" all Techdirt posts about him, though he was doing it to highlight the absurdity of the "right to be forgotten" concept (though, I imagine he wouldn't mind if all such posts disappeared).

However, over the weekend, we received our first request to remove comments from Techdirt, with the request referencing Europe's new ruling on the right to be forgotten. Over the years, we've received many, many legal threats in attempts to get us to remove comments, but (to date!) no actual lawsuits, because nearly all the threats are bogus (usually they ignore the protections Section 230 of the CDA provide to Techdirt, but they also tend to have extreme -- and extremely incorrect -- definitions of what kind of content is "illegal"). This particular situation appears to be a bit more complicated, but we're still not removing the comments.

The request references three comments on this story from 2011, which was about a (very bad) ruling by a California state appeals court, that found two advertising firms could be held liable for spamming actions done by their affiliates (and sub-affiliates). We found this problematic for a variety of reasons, but mainly because it totally ignored Section 230, and put the blame on one party for actions done by another. In the comments, someone named "Bill Silverstein" popped up to defend the ruling. In what appears to be something of an aside, he mentions in passing that he, himself, is engaged in some sort of similar litigation against two individuals, David Szpak and Emmanuel Gurtler. To be honest, the details of Silverstein's lawsuit are not at all clear from the comment, but he clearly thinks that this ruling helps his case.

I responded to his comment suggesting that the ruling was still problematic and that the focus should be on going after the people actually responsible for the spamming. Silverstein then responded, disagreeing with me and ranting about spammers -- again mentioning Szpak and Gurtler.

Over the weekend, we received an email from Emmanuel Gurtler demanding that all three comments be deleted, based on what we believe is his own misreading of both the claimed settlement between Gurtler and Silverstein and the new right to be forgotten ruling. Here is the main part of the email we received (leaving all typos in place):

I am contacting you in regards to the comments in the above URL by Bill Silverstein (#6, #31) and Mike Masnick's quote (#26). The comments refer to a lawsuit which has been settled with Mr Silverstein. Part of the settlement offer, the Platiniff (Bill Silverstein) is supposed to remove all information about the lawsuit. Having the fault infromation and false claims listed on your site is causing great deal of reputational probl

"8. Silverstein to Remove Materials from Websites and Refrain from Future Publication. Within ten (10) calendar days of the confirmation that all payments have been completed, Silverstein shall remove from the Websites and all other media under his control and/or ownership, any reference to the Lawsuit, the Dev8 Defendants and/or Affiliated Entities, including but not limited to any personally identifying information regarding the Dev8 Defendants and/or Affiliated Entities. As of the Effective Date, Silverstein agrees not to publish or cause to be published, in any form of media heretofore known and/or subsequently invented, devised, or discovered any reference to the Lawsuit, the Dev8 Defendants and/or Affiliated Entities, including but not limited to any personally identifying information regarding the Dev8 Defendants and/or Affiliated Entities. Silverstein acknowledges that should he violate this Section it shall constitute a material breach of this Agreement. He further acknowledges and agrees that it will be difficult to determine the resulting damages to the Dev8 Defendants and/or Affiliated Entities, and, in addition to any other remedies the Dev8 Defendants and/or Affiliated Entities may have, they shall be entitled to temporary injunctive relief without being required to post a bond and to permanent injunctive relief without the necessity of proving actual damage. The Dev8 Defendants’ and/or Affiliated Entities’ failure to seek any or all remedies with respect to any given breach of this Section does not restrict them from seeking any remedies with respect to any other breach, and shall not constitute a waiver of rights."

Furthermore, as a resident of the European Union and per the above Settlement order, I am asking in reference to "European Data Protection Directive (Directive 95/46EC)" aka Right to be Forgotten, to have the aforementioned comments and/or quoted replies removed from your site.

First off, we have no way of confirming if the settlement happened or if that's in the settlement if it did. He provides no further information, case name, or anything. As far as I can tell, there is this lawsuit, which the defendants removed from California state courts to the federal court, but which was quickly sent back to the state courts, where it's much trickier to track down the records. And, either way, it shouldn't matter.

Second, and more importantly, even if everything about the settlement is entirely accurate, it pretty clearly says that Silverstein needs to remove statements about the case "from the websites and all other media under his control and/or ownership." Last I checked (and, hey, I just checked), Silverstein has no "control and/or ownership" of Techdirt. So that settlement term is entirely meaningless to use. Chances are it was directed more at pages like this one, which Silverstein created, tracking the docket of his own cases. Separately, any settlement between Silverstein and Gurtler is between those two parties. Techdirt and myself were clearly not parties to the lawsuit and are clearly not bound by any settlement terms in the lawsuit. So, uh, no, we have no reason to remove.

Third, moving on to the "right to be forgotten" claim. The recent ruling is quite clear that it applies to "the operator of a search engine" and even distinguishes search engine results from information on web pages that those search engines link to, pointing out that even if the original publication may be legal, it's the search engine (not necessarily the site) that would need to remove the links. Thus, there's nothing in the latest ruling that directly applies to us anyway. Furthermore, the EU directive in question is about "data controllers" for which Techdirt almost certainly does not qualify. Data controllers are organizations that collect data on people and then store it. Here, Silverstein just posted a couple of comments. Quite different. The latest ruling and the directive have nothing to do with us.

Fourth, as an American company based in the US, incorporated and headquartered in California, and with all of our servers within the US, we are not subject to European laws on this issue. This is just an attempt by someone in the EU to try to censor statements made in the US.

Either way, the entire situation is bizarre and silly -- but highlights the kinds of things that plenty of companies are probably now forced to deal with thanks to the ridiculous EU Court of Justice ruling. What's worse is that many smaller websites and companies that probably don't follow or understand these issues carefully are probably scared into taking down content based on similar threats. And, frankly, sending the email makes almost no sense at all for Emmanuel Gurtler. This was on a story from more than three years ago, getting basically no traffic at all. The only comments that reference his name are from Silverstein, and, in our opinion, don't necessarily reflect well on Silverstein, because myself and others argue that his interpretation of the law is suspect and troubling. It's difficult to see how any of that reflects poorly on Gurtler or hurts his reputation.

However, sending a bogus threat in an attempt to silence other people from mentioning his name? That doesn't seem to reflect particularly well on Gurtler.

Filed Under: bill silverstein, comments, david szpak, emmanuel gurtler, europe, free speech, right to be forgotten, spam, techdirt
Companies: floor64, techdirt

Over 100 Internet Companies Call On FCC To Protect The Open Internet

from the don't-fail-us-fcc dept

As the net neutrality debate has kicked into overdrive, over 100 internet companies -- including most of the big names such as Google, Facebook, Twitter, Microsoft, Netflix, Amazon, Ebay, Reddit, Automattic, Yahoo, Kickstarter, as well as many smaller names, such as us here at Floor64/Techdirt -- have all signed onto a letter to the FCC asking it to actually suck it up and protect the open internet. Consider this a warning shot to the FCC from the internet community. The community knows what's at stake in this fight and it's watching closely what the FCC does. Having helped to get some of the companies to sign on, I can say that many leaders at companies are both very informed on the topic, and very engaged about it. If the FCC thinks it can sneak one by the tech community, that may be more difficult than it expects.

Along those lines, one FCC commissioner, Jessica Rosenworcel, has suggested that the FCC should put the brakes on its net neutrality plans to think things through a bit more carefully -- though apparently FCC boss Tom Wheeler has rejected that idea and plans to move forward with his rule-making proposal next week.

Filed Under: broadband, fcc, jessica rosenworcel, net neutrality, open internet, silicon valley, tech industry, tom wheeler
Companies: amazon, automattic, ebay, facebook, floor64, google, kickstarter, microsoft, netflix, reddit, twitter, yahoo