Roca Labs Exec Claims Marc Randazza Bribed Nevada Politician To Get Anti-SLAPP Law Passed

from the say-what-now? dept

The Roca Labs story just keeps getting weirder and weirder. You can click that link to go back through the earlier stories, since I won't rehash them all here, but the latest is that Don Juravin, the "vice president" of Roca Labs who filed an earlier affidavit in the case (which caused some problems with actor Alfonso Ribiero's lawyers), has apparently decided to go directly after Marc Randazza, the lawyer representing Consumer Opinion Corp. (better known as PissedConsumer.com) in the lawsuit that Roca filed against that company.

Juravin has put out a press release accusing Randazza of bribing a Nevada politician in order to get Nevada to pass an anti-SLAPP law (thanks to Adam Steinbaugh for the pointer). You kind of have to read the whole thing to get a feel for it. The press release is clearly designed to attack Randazza's (somewhat well known) reputation for defending the First Amendment rights of folks who work in the adult entertainment industry.

It is said that politics make strange bedfellows; so what could be stranger than Democratic State Senator Justin Jones, a Mormon with family values, and Marc Randazza, a porn attorney and a speech advocate for pedophiles whose client list includes Phillip Greaves author of "The Pedophile's Guide”, Kink.com, Bang Bus and Milf Hunter. So what brings these two opposite personalities together: money and politics.

So what's the specific details of the supposed "bribery"? Randazza recently wrote a blog post -- since taken down -- talking about how he had met Justin Jones and promised to support his campaign if he'd support an anti-SLAPP law:

"Two years ago, my partner, Ron Green, introduced me to a guy. That guy’s name was Justin Jones. Justin was running for State Senate in Nevada. … I shook his hand and said “if you will sponsor an Anti-SLAPP bill, I’ll vote for you, and I’ll contribute to your campaign.” He promised me that he would do so. Within days of taking office, he made good on his promise. Today, Nevada has the strongest Anti-SLAPP law in the country"

Now, this is perhaps not a particularly wise thing to say either in private or in public concerning a politician. It's possible that the statement on the blog is exaggerated as well. But to Juravin -- who amusingly describes himself as a "concerned public citizen" who "believes in the integrity of our electoral system and that no one person should wield undue influence over government officials" -- it's apparently a sign of our failing republic. Uh huh.

Juravin -- whose company it should be noted has threatened us with what I would argue would be a SLAPP lawsuit -- also claims that the reason Randazza likes anti-SLAPP laws is because he can make money with them, and not because, you know, free speech is a good thing and thuggishly trying to shut people up is a bad thing.

Mr. Randazza is a proponent of an Anti-SLAPP law (pornography lawyers generally want to be able to say and show anything), and he has brought numerous SLAPP lawsuits and generated tens of thousands of dollars in revenue for himself and his law firm. A stronger Nevada Anti-SLAPP law means more money for Randazza.

Either way, it will be interesting to see whether the "integrity complaint" Juravin filed with the Nevada Attorney General actually goes anywhere. It does seem worth noting, of course, that many states have been passing anti-SLAPP laws (because they're a good thing, and we really should have a federal anti-SLAPP law) and that the Nevada one passed unanimously without a single negative vote (there was one "excused" -- and everyone else voted in favor). That certainly makes Juravin's statement that he "speculate[s]" that "the law would not have passed" if the Nevada legislature were aware of Randazza's promise to contribute to Jones' campaign.

Again, making any sort of statement of "if you support this bill then I'll give you money" is not a good idea (even as it's often done implicitly). So, it's reasonable to at least question Randazza's statements on the matter, but considering it "bribery" seems like a pretty big stretch -- and Juravin is far from an unbiased party. At the very least, at the end, Juravin does admit that Roca Labs is in litigation with a company represented by Randazza, but either way, it seems like playing dirty. It appears to be similar to Roca Labs' behavior throughout this entire effort, basically attack or threaten almost everyone calling the company out.

Filed Under: anti-slapp, bribery, dan juravin, free speech, justin jones, marc randazza, nevada
Companies: roca labs

Roca Labs Lawsuit Gets Even More Bizarre: Now With An 'Unauthorized' Guest Appearance By 'TV Celebrity' Alfonso Ribeiro

from the hey-everyone,-it's-carlton-from-the-fresh-prince dept

The Roca Labs saga continues to get more and more bizarre -- and now it's got an "unauthorized" appearance by "television celebrity" Alfonso Ribeiro, perhaps better known as Carlton Banks from The Fresh Prince of Bel Air, whose Carlton Dance has become the stuff of TV legend. On Monday, Roca Labs filed a motion in a (failed, but we'll get to that) attempt to file an affidavit from Roca's "director of marketing," Don Juravin, supposedly about how the PissedConsumer site is acting unfairly. The affidavit repeats a bunch of claims from the original questionable lawsuit against PissedConsumer's parent company, Consumer Opinion Corp., but then adds the following:

On September 22, 2014 I purchased a promoted review on pissedconsumer.com for a monthly fee of $5.99 (See Exhibit C attached).

I placed an approved statement by television celebrity Alfonso Riberio [sic] who is currently a contestant on Dancing with the Stars about Roca Labs.

On September 22, 2014 I received a notice from Pissedconsumer.com that my review was canceled.... I received no explanation of why it was canceled.

Roca Labs is using this as a (rather weak) attempt to argue that PissedConsumer is engaged in some sort of unfair practices because it (Roca claims) "will not allow positive information to come forward."

This filing was quickly rejected by the court for procedural issues, focused on the failure of Roca Labs' lawyers to first confer with opposing counsel. However, before even that happened, Roca Labs filed another motion to "shorten time" for when Roca can file a motion for sanctions against PissedConsumer's lawyer, Marc Randazza. The reasoning behind the claim of sanction is not clear (it says a draft is attached, but it does not appear in PACER right now), but it seems to suggest that it's because of Randazza filing for a temporary injunction against Roca Labs threatening or suing the witnesses that have come forward on behalf of PissedConsumer and against Roca Labs. As we mentioned in our previous post, within days of PissedConsumer's legal response to Roca Labs, the company's "general counsel" had sent legal threat letters to all three former customers who had filed statements, even though Roca Labs hadn't had any dealings with two of them for over three years.

It's difficult to see how anything Randazza did was sanctionable (Roca Labs' lawyers' actions, on the other hand...). Either way, Randazza has now filed a rather revealing response, opposing the motion to shorten time, noting that it fails for the same procedural issue (and more) as the earlier filing and because there's basically no chance that the sanctions succeed. It notes that the court has reviewed his motion for the injunction and passed it along to a magistrate judge, who has asked Roca Labs to respond -- something that would be unlikely if the court felt his filing was somehow frivolous. It also fails to actually cite any legal authority for shortening the length of time.

And then there's this:

Finding its bullying tactics unsuccessful, Roca filed an unsupportable complaint, along with it, an unsupportable motion for injunctive relief. Thereafter, Roca began trying to intimidate witnesses. Then, Roca got even more desperate – submitting an affidavit... that contained demonstrable perjury – that the actor Alfonso Ribeiro (“Carlton” from “The Fresh Prince of Bel Air” and current “Dancing with the Stars” contestant) endorsed the Roca product..... See Exhibit A, a demand letter from Ribeiro’s attorneys attesting to the perjurious nature of Roca’s claims that their client approved any such statement.

Whoops. As can be seen in this letter, Ribeiro's lawyers appear rather upset about his likeness being used in this way and make it clear that it's unauthorized:

Ribeiro unequivocally is not, has never been and has no intention of ever becoming a paid spokesperson of the Product [Roca Labs]. Furthermore, Ribeiro has never personally used the Product and in no manner whatsoever endorses the Product.

The unauthorized Review and deceitful use of Ribeiro's name, image, likeness and falsely attributed quotes violates California Civil Code Section 3344, invades Ribeiro's common law rights of privacy and publicity, amounts to unfair competition, is an unfair business practices, and constitutes copyright infringement, among other causes of action.

I'm not sure that Roca Labs' usage would actually be "unfair competition" or "copyright infringement," but that might depend on other specifics. However, they make it clear that he has not and will not endorse the product, which would make this a total slam dunk publicity rights case (this is the exact type of situation that publicity rights law was designed for, even if people keep trying to stretch it). It is worth noting that the letter in question is to PissedConsumer, concerning its hosting of the review. That review -- which was up earlier this week when I saw it, has since been removed, noting the letter from Ribeiro's attorney.

Much more tellingly, a page that used to be on Roca Labs' own website showing the very same endorsement from Ribeiro has also disappeared from the site, though (as of this posting) it's still viewable via Google cache. Here's a screenshot to show that it absolutely existed: There is a photo of what appears to be Ribeiro holding Roca Labs' product -- so there may be some questions raised about whether he did or did not endorse the product at some point, but his lawyers seem fairly definitive in saying he did not. The fact that Roca has removed the page from its own site also says a lot (and none of it good for Roca Labs).

And, we're not done yet. Roca Labs' lawyer, Paul Berger, also sent threatening emails to Randazza himself, suggesting that Randazza had been "making defamatory comments" to the media. The email exchange, which Randazza filed as an exhibit with his filing, shows Randazza responding to Berger asking what specific defamatory quote he's talking about. Berger instead quotes PissedConsumer's legal filing (about calling Roca Labs' product "snake oil"), which we (and, I believe) other news publications, quoted. Randazza pointed out to Berger that it was not a quote from him but rather in his pleadings, and then asked (one assumes, sarcastically) if Berger is truly asking Randazza to retract a statement from his motion for preliminary injunction. I would assume that Berger is aware of the concept of litigation privilege, so either he didn't fully read Randazza's earlier filings, he forgot about litigation privilege, or he's just blustering for the sake of blustering. Randazza's latest filing suggests the latter may be the case:

The desperation continued with Roca threatening personal claims against the Defendants’ attorney for statements made in the course of litigation.

Also, for whatever it's worth, Berger accuses Randazza of distributing the filings to reporters, perhaps unaware that we reporters are also allowed access to PACER and can (and do!) download documents ourselves. Shocking, I know.

Either way, the Roca Labs case is taking on the stench of Righthaven- and Prenda-like desperation. Given what's happened so far, I imagine there are still more interesting things to come.

Update: And... just like that, the court has denied the motion to shorten time on the procedural issues around the failure to confer with opposing counsel.

Filed Under: alfonso ribeiro, endorsement, marc randazza, opinions, paul berger, publicity rights, reviews, sanctions
Companies: consumer opinion corp., pissedconsumer, roca labs

Roca Labs Threatens To Sue All Three Former Customers Who Provided Evidence Against Roca In PissedConsumer Case

from the the-ultimate-in-sleazy dept

The Roca Labs story keeps getting more and more ridiculous. Each time you think the company couldn't act in a way that seems even more sleazy and questionable, it raises the bar. If you don't recall, Roca Labs sells a "dietary supplement" (they describe it as a "food additive" or a "nutraceutical") that, according to one doctor, "consists primarily of industrial food thickening agents" which the company claims is an "alternative" to gastric bypass surgery. More importantly, the company has some crazy terms of service that say if you buy the product the company will offer a "discount" in exchange for agreeing to never say anything negative about the product ever in any form (and requiring you to allow the company to showcase any positive results). One of our readers went through the ordering process and claims that the "discount" is a mirage -- as there appeared to be no way to order without the "discount" (i.e., without agreeing to the gag clause). Despite all this, there are numerous complaints about Roca Labs and its product both with the Better Business Bureau (which gives the company an F grade) and with PissedConsumer, where people have complained about both the company and the product.

In response, Roca Labs used some unique legal theories to sue PissedConsumer's parent company, Consumer Opinion Corp., claiming that it's "tortious interference" to solicit consumer reviews, given the company's gag order. PissedConsumer fought back, arguing that the gag clause was clearly unenforceable, questioning the quality of Roca's products, and highlighting the company's history of threatening lawsuits when people complained to the Better Business Bureau. On top of all that, we noted that Roca Labs decided, in the midst of all this, to sue a former customer for complaining to the Better Business Bureau. This lawsuit was filed the day after PissedConsumer responded to Roca's lawsuit, the timing of which will become more interesting as you read a little further.

If you're keeping score at home, among the questionable actions by Roca Labs (leaving aside any questions about the efficacy and safety of the product), we've got (1) a gag order that both demands silence if you're unhappy and compels endorsement if you are happy, (2) a questionable legal threat against a website that collects consumer reviews, and (3) legal threats and lawsuits against unhappy customers for merely complaining to the BBB about Roca Labs.

And now the company has taken it up to another level. As we noted, when PissedConsumer fought back, it included declarations from three former customers, all of whom had complained to the BBB. It had been a while since any of those former customers had heard from Roca Labs, but four days after PissedConsumer's response, all three of those customers received new letters from Roca Labs, threatening legal action for "breach of contract."

Marc Randazza, the lawyer for PissedConsumer, has now filed for a temporary restraining order against Roca Labs, claiming that the company is engaged in witness intimidation.

Via the attachments in the filing, you can see that Randazza had a ridiculous email conversation with Roca Labs' lawyer, Paul Berger, in which Randazza bent over backwards offering to allow the company to file such lawsuits if needed to avoid a statute of limitations, but otherwise asked the company to defer any such threats or legal action until after the court expresses an opinion on the legitimacy of Roca's gag order (which is expected next week). Berger appears unwilling to respond directly to what Randazza is clearly offering, and also makes some bizarre claims about not being able to respond as the legal representative of Roca Labs, despite his own email signature noting that he's the "independent general counsel" for the company and the fact that all the threat letters came directly from him (his reason: not being admitted to the bar in that part of Florida -- a meaningless excuse for the purpose of communications between lawyers, since that only concerns his ability to appear in court).

In the threat letters to the three customers sent on Monday morning, September 22nd, Berger directly references that one lawsuit he filed the previous Friday, September 19th, as evidence of the "seriousness" with which Roca takes these issues. So, the timeline: on Thursday, September 18th, PissedConsumer responds to Roca's lawsuit, including declarations from three former customers who complained to the Better Business Bureau, only to receive initial threats from Roca soon after, though no actual lawsuit (two of these happened in 2011, one earlier in 2014). On Friday, Roca sues a different former customer who complained to the Better Business Bureau. Then, early Monday morning, Roca sends letters to the three former customers whose declarations were part of the Thursday filing, pointing to the Friday lawsuit as evidence of how the company will sue customers who complain to the BBB. You can see all three threats embedded below.

As Randazza notes in his own filing, this appears to be a fairly clear attempt to "intimidate and harass defense witnesses." From the filing:

So far, three of Roca’s prior customers have agreed to serve as witnesses. Most others declined to respond, wishing to not get involved, out of fear that Roca would retaliate against them for testifying. Those concerns proved to be well-founded, as Roca threatened all three of the witnesses Opinion Corp. identified. The timing of its aggression against these three women makes its intentions transparent – Roca wants to intimidate them and any other potential witnesses in this case.

As for Ms. Walsh and Ms. Anderson, it has been in excess of three years since they lodged their complaints with the Better Business Bureau. Roca threatened litigation at the outset, demanding they retract their complaints. Roca then went completely silent for more than three years. However, after such a long period of dormancy Roca now seeks to threaten imminent legal action against these witnesses. Nothing could have motivated Roca to reach out to these women after such a long period other than to try and intimidate witnesses in this case.

The filing only seeks a rather brief temporary restraining order, asking the court to block Roca from any such threats or lawsuits until after the October 8th hearing in this case, when it's likely the judge will determine if the original gag order from Roca Labs is legit. As Randazza notes, the only possible "harm" to Roca is delaying a possible lawsuit by less than two weeks (which seems completely minor given that Roca Labs ignored the issue with at least two of the customers in question for over three years). Furthermore, Randazza asks for any and all communications with those and other potential witnesses in the case to make sure that there hasn't been anything else that might be deemed witness harassment or intimidation.

Filed Under: consumer reviews, evidence, intimidation, lawsuits, marc randazza, opinions, paul berger, reviews, tampering, threats, witness
Companies: consumer opinion corp., roca labs

Pissed Consumer Slaps Back At Company That Filed A SLAPP Suit

from the good-for-them dept

Opinion Corporation runs the site PissedConsumer.com -- which, if you're not already familiar with it, does pretty much what you'd expect: allows angry consumers to call out companies that have done them wrong. One of those companies, apparently, is Nevada Corporate Headquarters which has some negative reviews on PissedConsumer. There appear to be similar negative reviews on other sites, including Ripoff Report and Scambook.

Last spring, Nevada Corporate Headquarters did the exact, wrong thing in response to the reviews on Ripoff Report: filed a lawsuit against the company. It lost. The court found, rightly, that Ripoff Report was protected by Section 230 of the CDA, and dismissed the initial lawsuit with prejudice. You would think that Nevada Corporate Headquarters and its lawyers might take the time to understand Section 230 and the nature of the internet. They, apparently, did not. Instead, a few months later, they filed a nearly identical lawsuit, in small claims court, against Opinion Corporation. Back in January, the court similarly dismissed that lawsuit, again pointing to Section 230 of the CDA which grants immunity to service providers from the content their users post. Opinion Corporation sought legal fees in response to this, but was denied, since legal fees are not recoverable in small claims court.

Now, in an interesting move, Opinion Corporation, represented by Marc Randazza, haves filed an anti-SLAPP lawsuit in a Nevada state court, under Nevada's Anti-SLAPP law, which does give attorney's fees to those who have been slapped down by bogus lawsuits trying to silence public discussion. It's an interesting legal move, as Opinion Corp. is basically arguing that since it was clearly SLAPP'd, even though via a small claims court, in can now file for attorneys' fees in state court under the state's anti-SLAPP law. The company argues, somewhat convincingly, that without this, Nevada Corporate Headquarters would be free to continue SLAPPing other sites in small claims court, knowing that there's no real downside to doing so. Furthermore, the fact that NVCHQ had already lost its case against Ripoff Report demonstrates that it clearly knew the SLAPP suit was nothing but a SLAPP in the first place, making the action even more egregious.

Defendant deliberately brought an action against Plaintiff it knew to be groundless and in violation of N.R.S. 41.660, as evidenced by the dismissal of its earlier identical action against Ripoff Report.

Even if the Defendant had not received virtually identical orders in the past, any reasonable party would know, or should have known, that Opinion Corp. was immune from liability.

The Defendant implicitly acknowledged that the claims were legally baseless by submitting an opposition to the motion that was devoid of even a singe citation to any authority.

Filed Under: anti-slapp, marc randazza, nevada, pissedconsumer, section 230, slapp
Companies: nchq, nevada corporate headquarters, opinion corporation, ripoff report

Judge Not Impressed By Rakofsky v. The Internet; Dismisses Defamation Claims

from the don't-sue-a-bunch-of-lawyers dept

Two years ago, we wrote about the case dubbed Rakofsky v. the Internet. The details are too numerous to go into, so I suggest reading that post, but the very short summary is that Joseph Rakofsky, a recent graduate of Touro law school, somehow got himself onto a case defending someone accused of murder. The case was not going well, with the judge asking the defendant a few times if he was happy with Rakofsky's representation. After a supposed "communications breakdown" the defendant let the judge know he was no longer comfortable with Rakofsky -- and the judge declared a mistrial. As part of that, the judge also clearly expressed his belief that Rakofsky was not qualified to be in the position he was in:

I was astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.

It appeared to the Court that there were. . . defense theories out there, but [Rakofsky had] the inability to execute those theories. It was apparent to the Court that there was ... not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to the detriment of Mr. Deaner."

Also of concern was that an investigator hired by Rakofsky in the case had revealed to the court an email from Rakofsky in which Rakofsky told him:

I) Please trick Leigh (old lady) into admitting:
a) she told the 2 lawyers that she did not see the shooting and
b) she told 2 lawyers she did not provide the Government any information about [the] shooting.

Rakofsky later refused to approve a voucher for that investigator's payment, leading the investigator to claim to the court that he was "terminated and uncompensated... based on his refusal to follow an e-mail request from Mr. Rakofsky ...instructing him to try to 'trick' a witness into changing her testimony."

After all of this, Rakofsky, oddly, appeared to celebrate the ruling in a post on his Facebook account, suggesting he was happy with the results. That posting resulted in more mockery in online circles.

Again, all of this was reported widely, including here at Techdirt. However, what we mainly reported on was the fact that after lots of people talked about this and mocked Rakofsky (with some questioning the claims on his website), Rakofsky appeared to sue nearly everyone who wrote about him and the case -- including a whole bunch of bloggers, but also the Washington Post (who did the initial report) and the American Bar Association (no joke) whose blog wrote about the story as well.

At the time, we said the story would be an interesting one to follow. That was two years ago. Six months after that, Rakofsky filed an insanely long amended complaint which, among many other things, attempted to add us to the lawsuit with a bunch of claims (including some that were factually untrue). Of course, once again hinting at Rakofsky's experience level and proficiency with the court systems, the motion to file that amended complaint later had to be withdrawn, because he filed it while a stay was in place barring him from such a filing. It took a while, but the case finally progressed -- and we have yet to be officially added to the lawsuit, something I certainly hope remains the case because suing us for reporting factually on what happened, while also providing some statements of opinion, is generally not going to end well. And indeed, so far, Rakofsky's case is not going well.

In a ruling on Friday, the Supreme Court of the State of NY basically shot down every single one of Rakofsky's claims, and granted the motions to dismiss of various defendants. The court very carefully details the factual background and then explains why the motions to dismiss are being granted. The court rejects Rakofsky's motion to file a second amended complaint based on a failure to state a claim:

granting plaintiffs' motion to amend would be futile since the allegations set forth in the proposed Second Amended Complaint are not sufficient to state a cause of action; as will be discussed below in defendants' motions to dismiss. dismiss.

First, the court rejects the jurisdictional argument. Not surprisingly, the non-NY bloggers pointed out that a NY state court did not have jurisdiction over them, and the court was not convinced by various arguments by Rakofsky to the contrary:

It is quite clear that defendants" herein who operated legal blogs or posted comments' on those blogs residing out of the country in Canada, or even in the United States ranging from Washington, D.C. and Florida in the east, to Texas and California in the west, had virtually no purposeful activity or minimum contacts with this state. There was certainly no purposeful activities in this state which were substantially related to the alleged defamatory statements as defendants neither wrote the alleged defamatory statements in this state nor did they direct them to our state alone. The statements were posted on the internet with potential world-wide accessibility.

This Court rejects plaintiffs' primary argument in opposition that defendants received "commercial benefits" from the hyper-links contained in their websites to invoke long-arm jurisdiction. This connection to New York, if any, is too attenuated to exercise personal jurisdiction over the out-of state defendants. Plainly stated, there are insufficient contacts with this state to "hale" into court multiple defendants living thousands of miles away in other states which would "chill" their right to free speech.

Good, clean ruling on that one. Moving on to the defamation claims. Again, Rakofsky runs into trouble. The court rules that the reporting on both the "trick" email and the mistrial may not have been exactly worded, but was close enough. On the email:

While the precise words are not exactly identical, they are similar enough to convey a fair report of the Rakofsky e-mail and the Bean motion that were inextricably intertwined with the judicial proceedings before Judge Jackson in the Deaner case. Even though the "trick" e-mail, the Bean motion and Judge Jackson's comments do not portray Rakofsky in a positive light, and Rakofsky may wish to disavow or interpret them in a different way, the defendants were permitted to publicly disseminate them as a report of a judicial proceeding.

On the mistrial question:

You can not look at Judge Jackson's comments in isolation, but in context considering all of his comments and Rakofsky's trial performance. The clear import of Judge Jackson's rulings was to excuse Rakofsky due to his lack of competence and inexperience to defend Deaner in a murder trial. It is acknowledged that the Deaner murder trial was Rakofsky's first trial in a foreign jurisdiction and with which he was totally unfamiliar, and Judge Jackson was vigilant in protecting Deaner's right to effective assistance of counsel.

Significantly, the reported fact that Judge Jackson declared a mistrial in the Deaner case was not defamatory because even Rakofsky initially celebrated the mistrial as a positive development in his career. In other words, defendants' report that a mistrial occurred does not constitute defamation. Instead, the reported statements that Rakofsky was allegedly not competent, inexperienced and unethical are the operative words which may give rise to defamation, except that said content was privileged under the Civil Right Law § 74,

That last bit, Civil Rights Law § 74, says that you can't sue someone for libel "for the publication of a fair and true report of any judicial proceeding." Basically, the defamation claims fail because what people reported was more or less accurate.

The court goes on to give more reasons why Rakofsky's claims fail, including the fact that some defendants are protected by a "republication" exception to defamation law and that they were expressing opinions rather than statements of fact in many cases. It also rejects the idea that there was "intentional infliction of emotional distress" as Rakofsky claimed, or intentional interference with a contract. Rakofsky also, quite amazingly, tried to use NY's publicity rights (sometimes called privacy rights) law, basically arguing that people weren't allowed to use his name/likeness without his permission. That failed pretty spectacularly too:

This statute has been narrow construed to meet its limited objective to prohibit commercial appropriation of a person's name and likeness.... These sections also do not apply to reports of "newsworthy events or matters of public interest" otherwise known as the newsworthy exception.... To foster freedom of expression, the meaning of "newsworthiness" has been broadly construed to permit a wide and liberal interpretation....

In this case, it is abundantly clear that coverage of a murder trial in the Deaner case comes within the broadly construed newsworthy exception as a report of a newsworthy event or a matter of public concern. Thus, plaintiffs' fourth cause of action fails to state a claim for a violation...

The court also rejected Rakofsky request for sanctions on Marc Randazza, a lawyer who many of you are familiar with given his frequent appearance in stories on this blog. Randazza was representing many of the bloggers that Rakofsky sued, and Rakofsky apparently didn't like the way Randazza treated him, leading to a request for sanctions. The court rejected that too, noting that "Randazza's conduct was acceptable to practice law in this state, and impliedly not sanctionable."

On the flip side, the court did refuse to sanction Rakofsky, basically arguing that, viewed generously, some of the people reporting on the original case "did not fairly report Judge Jackson's comments." The court also notes that, since Rakofsky withdrew a claim of negligence against defendants he "partially acted in good faith."

We shall see what happens next, though Randazza certainly expects Rakofsky to appeal, and given Rakofsky's two-plus year aggressive pursuit of this case, I think it's likely that, indeed, there will be an appeal, though I find it unlikely that the results of any appeal will turn out any better for Rakofsky.

Filed Under: defamation, joseph rakofsky, marc randazza

Appeals Court Agrees That Righthaven's Copyright Assignment Was A Sham, But Tosses Key Fair Use Ruling

from the good-and-bad dept

This isn't a huge surprise, but in Righthaven's big appeal concerning the key issue over which it lost all of its cases -- whether or not it had standing -- has resulted in yet another huge loss for Righthaven. The court basically agreed with every single other court that has ruled on this matter, noting that when Stephens Media "assigned" the copyrights to Righthaven, it really did no such thing. Instead, it merely assigned the bare right to sue, which you can't do under copyright law. Considering how some of our critics insisted that Righthaven would win this point on appeal, I'm curious to see how they respond. The court basically agreed with all of the points that a bunch of district court judges had all pointed out: the Strategic Alliance Agreement (SAA) left all the power in the hands of Stephens, including ultimate control over every single one of the official rights associated with copyright law under section 106. Thus, it did not, in fact, assign the copyright, and Righthaven had no standing to sue.

The SAA provided that Stephens Media automatically received an exclusive license in any copyrighted work it assigned to Righthaven, so that Stephens Media retained “the unfettered and exclusive ability” to exploit the copyrights. Righthaven, on the other hand, had “no right or license” to exploit the work or participate in any royalties associated with the exploitation of the work. The contracts left Righthaven without any ability to reproduce the works, distribute them, or exploit any other exclusive right under the Copyright Act. See 17 U.S.C. § 106. Without any of those rights, Righthaven was left only with the bare right to sue, which is insufficient for standing under the Copyright Act and Silvers.

The appeals court walks through each one of Righthaven's attempts to get around this basic fact and shows how none are even remotely persuasive, because all ultimately show the same basic argument, which is that the copyright was assigned to Righthaven who then handed back an exclusive license to Stephens. The fact that Righthaven retained none of the key copyright rights shows that this was all a sham. Or, as the court notes, it "emphasizes form over substance." The court also rejects Righthaven's claim that the agreement was later fixed, by pointing out that what matters is the standing at the time of the lawsuit.

The ruling isn't all great, however. The court did overturn the part of the Hoehn ruling in which the court had said that his use of the Las Vegas Review-Journal article (even the entire article) was fair use. Basically, this is a bit of a procedural thing. Effectively, the court is saying that once the district court ruled that Righthaven had no standing, there are no other issues to rule on, so the fair use ruling is inappropriate. This was the part of the case that the RIAA, in particular, wanted thrown out, because it doesn't want any ruling on the books saying that using an entire work might be fair use. And, on this front, the RIAA got its wish. While the court doesn't say that the use was not fair use -- and in fact notes that "we understand why the district court reached the fair use issue" -- it also notes that, legally, the court really has no right to delve into that issue after it's decided that Righthaven has no standing.

because we agree that Righthaven did not have standing, it is not appropriate for us to go further or for the district court’s alternative ruling to stand. We therefore vacate the portion of the district court’s order that analyzed the merits of the fair use defense and granted the motion for summary judgment.

This is not a huge surprise, but it is unfortunate, because the original Hoehn ruling on fair use was a great example of how using an entire work can be fair use. There are other such cases, but losing one of those rulings is unfortunate.

Either way, this should confirm that Righthaven is officially dead and buried. I can't see them appealing to the Supreme Court, though stranger things have happened (just like Prenda took over the mantle of absolutely crazy copyright trolling from Righthaven a long time ago).

Filed Under: copyright, copyright trolling, dibiase, fair use, hoehn, marc randazza, standing, thomas dibiase, wayne hoehn
Companies: righthaven, stephens media

Righthaven Copyrights 'Sold' Back To Stephens Media For $80k To Pay Legal Fees

from the is-this-finally-over-yet dept

Sure, sure, this year we've all moved on to the crazy stories about the Charles Carreons and Prenda Laws of the world, but let's not forget that last year there was just as much focus on Righthaven's copyright trolling operation collapsing after judges realized that it was all effectively a sham in which the real copyright holder (mainly newspaper publisher Stephens Media) had not really sold off its copyrights to Righthaven, meaning that Righthaven had no actual standing to sue. Technically, Stephens Media tried to give the copyright to Righthaven, but since it retained all of the listed rights under copyright law, it was clearly not an actual transfer. In one of those cases, concerning a guy named Wayne Hoehn, who fought back against a Righthaven lawsuit filed against him, Hoehn's lawyer, Marc Randazza fought for and won a request for legal fees. Righthaven stalled and complained and bullied, but the court told Righthaven to pay up.

Eventually, since Righthaven refused to cough up any money, the court granted Randazza's request to put Righthaven into receivership. That eventually led to the "sale" of various Righthaven assets, including the Righthaven.com domain name, which sold for $3,300 to a hosting company that promised to resist bogus takedown notices.

In May of last year, we noted that the receiver was now planning to sell Righthaven's copyrights, since they were the only remaining "asset" from Righthaven. Of course, this seemed fairly tricky when you thought about it. The whole reason Righthaven lost the case was because it didn't actually hold any copyrights. But, of course, it claimed it did, so in some twisted way, you could maybe sort of possibly argue that what was being sold was the possible rights to those copyrights if Righthaven ever got through its appeal and won. But that seemed highly speculative, and we couldn't figure out who would want to buy such a thing, other than for the novelty of it all.

Except... as has now come out, Randazza (somewhat brilliantly) approached Stephens Media (who started this whole thing in the first place) and asked them if they wanted to buy the copyrights (which, the court's ruling in this exact case had said they actually still owned). I don't know exactly how the conversation went, but you can think through the implications fairly quickly.

Stephens Media, who set up Righthaven, and would have liked for an appeal to go forward showing that Righthaven owned the copyrights, even though it was still using the works and retained all the control. But, suddenly, if Randazza is offering them back the copyrights and they refuse, they're somewhat screwed. Because... first, it's something of an admission that they don't actually believe Righthaven had the copyrights in the first place, which is an admission they don't want to make. Second, if those copyrights are sold to someone else, that someone else could likely sue Stephens Media for still having those stories up without a license -- and then suddenly Stephens Media could find itself in court with the most convoluted copyright case imaginable, in which any argument Stephens makes hurts them elsewhere. It's mindbogglingly amazing. Stephens was effectively tied into a pretzel with any move that doesn't involve buying back the copyrights they "already own" potentially leading Stephens to an involved and problematic court case.

Oh yeah, and also I would imagine that getting money into the receivership that "satisfies" the court's awards probably would mean that Hoehn and Randazza don't then go after Stephens Media directly for the funds, considering how much they controlled Righthaven. As such, Stephens "buying" back those copyrights was probably seen as a strategically wise move.

And so... Stephens bought back its "own" copyrights for $80,000, which Randazza and Hoehn have agreed ends the matter, even though technically they were still owed much more.

Presently, the Righthaven Receivership Estate consists of $85,000. $80,000 of this was obtained from a private sale of Righthaven’s rights back to Stephens Media LLC, the creators of the works underlying many of Righthaven’s more than 275 lawsuits. While this was not obtained at auction, prior auctions for Righthaven’s rights failed, largely due to their indefinite nature. After searching for buyers in the face of the auction’s failure, Righthaven’s rights acquired from Stephens Media were sold back to their original source in a commercially reasonable manner, as no other market existed for them. As the Receiver in this limited receivership, I am satisfied that no other method of sale could have brought a higher price.

In the end, the money was distributed with $11,600 going to the two different people who acted as receivers in the case, $18,400 going to Wayne Hoehn who brought the case, and the remaining $55,000 going to Randazza Legal Group for all the legal fees accrued. While the money to Hoehn and Randazza was less than the court had initially ordered, given the lack of any actual assets from Righthaven, the fact that they were able to get this much, out of Stephens Media, no less, is pretty impressive.

Filed Under: marc randazza, receivorship, steve gibson, wayne hoehn
Companies: righthaven, stephens media

Revenge Porn Magnate Gets Hit With $250,000 Defamation Claim

from the bam dept

While we've had a few stories about the "revenge porn" website "IsAnybodyDown," that site was really just a copycat of one of the most popular "revenge porn" websites, called "Is Anyone Up." Back in 2011, On The Media did an interview with Hunter Moore, the creator of Is Anyone Up, in which you learn what a swell human being he is (i.e., not at all). A few months later, however, Moore shut down the site and claimed he was turning over a new leaf. It later came out that he actually sold the domain (but not the content of the site) to a company called ViaView, which ran the anti-bullying website Bullyville. ViaView's President, James McGibney, had apparently been talking to Moore for a while, trying to get him to shut down the site. After buying the domain, McGibney had traffic routed to the Bullyville site.

Months later, for unclear reasons, Moore started going after McGibney and Bullyville online, claiming that McGibney was a pedophile, had failed to report child porn images, and was guilty of a variety of other charges. He also stated, strongly, that he intended to have sex with McGibney's wife. In response, McGibney sued Moore for defamation, represented by Marc Randazza, who has made it something of a personal mission to go after "revenge porn" sites (in case you're unaware, such sites solicit naked photos of people, often from ex-lovers, and then post them online, sometimes with contact info).

Moore failed to officially respond to the lawsuit, despite being served and apparently making it clear he was aware of the lawsuit on Twitter. In response, the judge ruled in favor of McGibney on default judgment, and also ordered Moore to pay $250,000 in damages, along with legal fees. Of course, getting Moore to actually pay may be difficult, but Randazza has a history of going after the assets of those who refuse to pay out in such cases.

Filed Under: bullyville, defamation, default judgment, hunter moore, in anyone up, james mcgibney, marc randazza, revenge porn
Companies: viaview

Is Malibu Media About To Become The Righthaven Of Porn Trolls?

from the drop-the-bomb dept

Last month we wrote about an interesting case in which a judge effectively called the bluff of Malibu Media, a copyright trolling operation that has filed 365 lawsuits, targeting about 6,000 people. And, of course, it's never taken a single one to an actual trial, because that does not appear to be the goal. Instead, it's all about getting people to settle, and it sounds like Malibu has been successful on that front. In the case we mentioned last month, the judge made it clear that he wanted Malibu Media to actually go through a trial, and highlighted four defendants who had claimed innocence, and wanted to use those as a "bellwether" trial, to effectively test Malibu's theories. The judge, Michael Baylson, was pretty clear that he would not be happy if Malibu Media tried to squeeze out of the case.

At the beginning of the month, Malibu filed its "amended complaint" against the "John Does" in question, which gave up on some of the arguments in the original complaint and instead focused on direct infringement claims -- while also expanding the number of works infringed.

Yesterday, the Does hit back. It's interesting to note that they've signed up Marc Randazza (along with Jordan Rushie) to help them, as Randazza has both been on the other side of some porn copyright trolling cases and was also the lawyer largely responsible for bringing down the famed copyright trolling operation Righthaven. His work with porn studios to take part in similar cases has resulted in some worries of ulterior motives in taking on John Does in other cases, though that seems to be a bit paranoid.

Either way, the Does hit back hard. They're throwing the kitchen sink at Malibu Media. Among other things, they're claiming that the decision to expand the case to other possible infringements is ridiculous since the defendants use dynamic IP addresses, and Malibu is basing the other infringements on the same IP, but a totally different date or time. Also: the defendants claim that Malibu initially argued that all of the Does needed to be lumped together in a single lawsuit because they represented a "swarm" and as such had to be tried together. Except, in the amended complaint, they move away from that completely (no surprise, since the judge carved out just these few defendants). However, the defendants point out the inconsistency:

When considering litigating the “swarm theory,” Malibu was faced with the prospect of dozens of defendants, joined in their common defense against the plaintiff, with an initial seeder who very well may have had a license to publish the works to BitTorrent or elsewhere. When push came to shove, Malibu decided to dismiss more than eighty percent of the defendants it initially sued, despite its prior claims that the cases were brought against unified “swarms.” Malibu apparently thought better of the swarm theory, and decided to reduce the number of defendants. However, Malibu cannot properly abandon its foundational theory and still leave the case against Doe 13 intact. The swarm theory of liability relies upon a “swarm” of defendants and renders these now-dropped defendants indispensable to the action. Without even an allegation against the initial seeder, we have no idea whether Malibu itself seeded the relevant files. As Malibu does freely distribute the relevant films, it is entirely possible, if not most likely, that the initial seeder had permission to distribute the files via BitTorrent. If he or she did not, it is entirely likely that a participant in the swarm, from whom Doe 13 received the file, may have had such permission. Malibu’s omissions speak loudly in favor of dismissal. Unless Malibu re-joins these previous defendants, including the initial seeder, the Court must dismiss the action against Doe 13, who is by Malibu’s own theory incapable of according Plaintiff full and complete relief.

That paragraph has footnotes to point out that the company Malibu was using to obtain IP addresses, IPP (formerly Guardaley -- remember them?) is accused of actually seeding the files in the first place, which would suggest the copies were authorized. Of course, it's worth noting that Randazza, when on the other side of these cases, has used the swarm argument in the past.

Either way, that's just the warmup for the problems with the amended complaint. There's also a few other problems -- such as that it doesn't appear that Malibu legitimately owned the copyright in question. Oops. First, there's the fact that the filmmaker argued that the key film was a "work for hire" made for Malibu. Except, Malibu only came into existence in early 2011 and the movie was made years earlier. Malibu claimed this was an oversight in the registration process and then sought to register the copyrights properly just recently. However, again there are problems, as the assignment from the filmmaker failed to assign the specific rights under Section 106 of the Copyright Act, which are what you need if you want to sue. This was the critical defect in the Righthaven cases, in that they pretended to assign those rights, but it was in name only since the original copyright holder really retained all the key rights provided under Section 106. Furthermore, the defendants argue that the assignment statement does not really qualify as an assignment, and is, at best, a license.

In this case, the Assignment contains no provision of any exclusive rights from Field to Malibu Media. The assignment is silent as to what, if any, rights Field has within the films. Rather than transferring any discernible exclusive rights under Section 106 to Malibu Media, Mr. Field has executed what is essentially a quit-claim deed to Malibu Media, giving Plaintiff a jumble of unidentified rights (or perhaps none at all) that, on the face of the assignment, do not include the rights required to sustain an infringement action: exclusive rights under Section 106. Absent any indication that Field possessed full, undivided interest in the copyrighted works or exclusive rights therein, there is no basis on the face of the assignment for finding that Malibu Media acquired any exclusive rights and nothing in the assignment addresses past infringement.

Then they point out that even if the assignment is proper, it still doesn't help Malibu, because it is not clear when the assignment was made. And, under the law, while you can transfer the right to sue (along with other exclusive rights) for past infringements, that needs to be expressly stated in the assignment. That's not the case here.

Then there are other issues concerning the "swarm" argument. The defendants point out that if they were being sued as part of a swarm, the total awards across all the defendants can't surpass the maximum statutory rate. Yet with a bunch of defendants having settled, it's possible that Malibu has already been "made whole."

Malibu has already recovered significant funds in connection with the infringements alleged in the Amended Complaint. Prejudice against Does #6 and #19 before this action was set for a bellwether. (Dkt. Nos. 16 and 17). Presumably, this was because Malibu received adequate settlements from these defendants. In fact, Malibu may have received doubly-adequate settlements from them – in which case Malibu is now triple-dipping by seeking damages that have already been satisfied by third parties Malibu intentionally kept out of this litigation.

Because the swarm is global in scope, and the Plaintiff has likely already been made whole by other undisclosed swarm members, nothing short of full disclosure and setoff would allow Doe #13 to evaluate Plaintiff’s ability to bring this action that it repeatedly claims to be based on the uploading and downloading the exact same file. Since the Plaintiff seeks statutory damages, if the Plaintiff has already collected the statutory maximum for this work from other defendants, then the Plaintiff must stop visiting the well. Malibu filed Notices of Voluntarily Dismissal with

Thought they were done? Not yet. They also claim that Malibu is abusing subpoena powers outside of what was alleged in the complaint. In the amended filing, Malibu notes that its "partner" in identifying infringement, IPP, passed along the info that at least one of the Does has been accused by another IPP customer of infringement as well. As the defendants point out, that's completely irrelevant to the case at hand:

Nucorp, Ltd. is not a party to this action or any other action against Doe #13, and this allegation is scandalous and impertinent. Furthermore, set forth in more detail below, adding allegation also violated two court orders forbidding Malibu from abusing its subpoena power for purposes outside of what was alleged in the Complaint. Accordingly, Paragraph 53 and Exhibit “F” of the Amended Complaint should be struck .

In one of the other Motions to Dismiss, questions are also raised about whether or not Malibu has the proper and necessary licenses to do business in Pennsylvania where the lawsuit was filed.

There's more, but you get the idea. It certainly looks like some are trying to give Malibu the Righthaven treatment. And we all remember how that went...

Filed Under: copyright, copyright infringement, copyright trolls, marc randazza, swarm
Companies: malibu media, righthaven

Marc Randazza Goes To War Against Revenge Porn Site Over Alleged 'Takedown Lawyer' Business Model

from the got-it-all? dept

Well, well. Last year, there was a lot of attention paid to a so-called "revenge porn" site called "Is Anyone Up"? The site reposted submitted nude photos, linked to the person in the photo's social networking accounts. The "idea" (a horrific one) was that spurned people, who had naked photos of their ex's, could publicize them. Not surprisingly, many people were completely horrified by the concept and the media coverage was not kind. The site eventually went down, but others popped up to take their place. Lawyer Marc Randazza has decided to go to war with one of them, which uses the very similar name "Is Anybody Down" (and, no, I'm not linking to it). Randazza points out that he has no problem with porn or porn sites, but when the participants are not consenting (and not necessarily adults) he has serious problems.

However, his main issue with this other site is in what he believes to be its sneaky business model. There is apparently an "advertisement" on the site for a "lawyer" named David Blade, who will help you get your photos off the site for $250. Randazza argues that it's really the site's own business model:

Here’s their business plan:

Step one: Register the domain name “isanybodydown.com”

Step two: Get ahold of nude photos of people who never consented to having their photos published.

Step three:Publish them, along with their names, home towns, and links to their facebook profiles.

So now how do you “profit?”

Well, openly saying “I’ll take down the photo for $250,” would probably create some legal issues for you. So, instead, you create a fake lawyer persona and say “I am an internet lawyer, named David Blade, III, and I’ll get your pics down for $250.”

The "ad" goes on at length about how successful "David Blade" is in removing images from the site, and how it's much cheaper than going to any other lawyer. Blade has his own website, called TakedownLawyer.com. Randazza has a few damning facts. The registration info for both sites... are by the same person. The "ad" by "Blade" insists that they're different people, with Blade claiming to merely be a college friend of the operator of the site -- and someone who disapproves of the site. "Blade" claims that as he's tried to convince the operator of the site to take it down, their "compromise" is that the site owner has allowed him to place that "ad" that just so happens to help "Blade" make money any time someone wants their images down from the site. The other bit of damning evidence? There is no record of a David Blade as a registered NY attorney (where he claims to operate). Oops.

In an email discussion (pdf) with "Blade," he insists that he really is a lawyer, but that Blade isn't his real name. That, too, is a big issue, since lawyer advertising is pretty heavily regulated, and one of the common requirements is having your real name and contact info. Randazza points to the NY law to that effect, and "Blade" (still using that name despite admitting it's not real), insists there's no violation since he's not engaging in "case law, civil law or trial law," but merely doing "mitigated/mediated takedowns, which are not considered to be a legal service."

Of course, soon after this exchange, the website for "Takedown Lawyer" announced: "Due to ethical concerns our business and the website will now be called 'Takedown Hammer'." Uh huh. Meanwhile, the operator of the "Is Anybody Down" site sent Randazza a profanity laden email asking "why the fuck are you messing with me and Dave?" And it gets worse from there, resorting to ethnic slurs and much, much more. Of course, one could read that email to suggest that the site and "Dave" are, in fact, partners.

There are other little tidbits in this mess, including the fact that the Is Anybody Down site has a blog post asking for investors:

A. Investors, Funding, Etc.

We need more funding (i.e. seed money and/or potential Stage 1 funding) in order to upgrade our server and make T-shirts. Please click the “submit” button to contact an admin if you wish to invest, donate, etc. We are looking for investors, venture capitalists, angel groups, etc.

The seed money will be used for equipment/hardware (computers and server costs), software to be used in the production of the website and the manufacturing of T-shirts which will be sold for value.

Our goal is to raise $50,000+ in seed money to help expand this website, followed by a round one investment prior to an IPO which will return upwards of 600%

There are, of course, a whole bunch of other legal issues brought up by the site, but the statement above? Yeah, that's a pretty blatant violation of securities law. Publicly advertising for investors is already a no-no, but then also promising an IPO (I'm trying not to laugh) and a return of "upwards of 600%" go way beyond what you're allowed to say.

Oh yeah, and "Blade" eventually claims that he's going to hit back at Randazza for "extortion," which is interesting since Randazza didn't ask Blade to give him any money (though he does ask him to return the money from those who have paid up to remove their images).

All in all, this certainly feels like yet another one of these "only on the internet" stories where it may be time to get out the popcorn and wait to see what happens next.

Filed Under: advertising, lawyers, marc randazza, revenge porn