The Year In SLAPPs: From The Oatmeal To Pink Slime

from the slapp-happy dept

2012 has been yet another year filled with meritless lawsuits filed solely to chill First Amendment free speech rights -- so-called Strategic Lawsuits Against Public Participation (SLAPP). As websites relying on user-generated content continue to increase in popularity, we also see a rise in SLAPPs targeting online speech, from the everyday blogger to the one-time online reviewer. Some of the most talked about SLAPPs this year include:

The Oatmeal SLAPP -- Matthew Inman wrote a blog post condemning FunnyJunk for posting hundreds of his comics without crediting or linking back to his website, The Oatmeal. Through attorney Charles Carreon, FunnyJunk sent Inman a threat letter over the blog post, claiming it was defamatory and demanding $20,000. Inman’s response? To publicly post the letter with a hilarious critique and start an online fundraising campaign to raise $20,000. Yet, instead of reaching his $20,000 goal and sending the money to FunnyJunk, he raised over $200,000 and gave all of the money to charity. Carreon couldn’t let it go and filed a lawsuit to try to derail the fundraising campaign, but later voluntarily dismissed it.

SLAPP 4 Jesus -- Even churches are SLAPP happy, as evidenced by a SLAPP filed by Beaverton Grace Bible Church in Oregon against former church members who had blogged and written online reviews of their experiences at the church. The judge ruled that the case was a SLAPP and ordered the church to pay the defendants' attorneys fees.

Rachel Maddow SLAPPed 4 Jesus -- A defamation suit against Rachel Maddow was filed by Bradlee Dean, an anti-LGBT preacher from Minnesota. Dean sued Maddow after she ran a story on The Rachel Maddow Show, where she aired a segment from Dean's radio show where he said that Muslims were "more moral than even the American Christians" because they were "calling for the execution for homosexuals." Luckily for Maddow, Washington D.C. enacted a strong anti-SLAPP law last year. The judge ruled that the case was a SLAPP and ordered Dean to pay Maddow's attorneys fees.

"The Pink Slime" SLAPP -- Beef Products, Inc., a South Dakota beef producer, recently filed a defamation lawsuit against ABC News, seeking at least $1.2 billion in damages, claiming the broadcaster unfairly disparaged its beef additive by labeling it "pink slime." The Complaint was filed last month and ABC has not yet responded.

Fortunately for Inman, the church SLAPP defendants and Rachel Maddow, California, Oregon and Washington DC have all enacted anti-SLAPP statutes. Unfortunately for ABC, Beef Products filed their defamation lawsuit in South Dakota, which does not have an anti-SLAPP law. What this means is that they will not be able to bring an anti-SLAPP motion and potentially get the case dismissed early and have their attorneys’ fees awarded. However, South Dakota is not alone -- almost half of the states have not enacted anti-SLAPP laws, demonstrating the need for a federal law to protect against meritless SLAPPs.

2012 marked the second time federal anti-SLAPP legislation was introduced in Washington DC. In 2009, Congressman Steve Cohen introduced the Citizen Participation Act in the House of Representatives, which ultimately died when it was referred to committee. This year, retiring Senator John Kyl introduced the Free Press Act of 2012. Unfortunately, Sen. Kyl's bill has a very narrow anti-SLAPP provision that only applies to representatives of the news media. But hopefully Senator Kyl's bill can be a starting point to build bi-partisan support for strong and robust federal anti-SLAPP legislation after the November elections. With a recent endorsement of federal anti-SLAPP legislation from the American Bar Association, a national association of attorneys and the world's largest voluntary professional organization, a fresh session of Congress in 2013 looks promising for the future of anti-SLAPP legislation protecting all Americans' right to speak out.

Evan Mascagni is an Organizer with the Public Participation Project, the only organization in the country whose sole mission is to enact federal anti-SLAPP legislation.

Filed Under: federal anti-slapp law, free speech, lawsuits, slapp

The Dark Patent Troll Rises: Now 40% Of All Patent Litigation

from the leeches dept

With story upon story upon story (upon story) of how patent trolls, those non-producing entities that derive income solely through litigation and threat thereof, are enormous leeches on innovation and progress, you may have noticed something. You possibly thought to yourself, "it sure seems like we're hearing more about these vampiric bastards these days". Guess what? You are, because there's more of them. Vastly more.

According to a recent study by Robin Feldman of UC Hastings College of Law and Lex Machina, the percentage of patent cases finding their way to court jumped from 22% in 2007 to 40% in 2011. Note that the following graph is a corrected graph issued after the initial report by the authors.

The study was inspired by the America Invents Act, last year's largely toothless overhaul of the patent system. In it, Congress asked the Government Accountability Office (GAO) to study the impact of non-practicing entities—a more clinical term for patent trolls—on the economy. Because Lex Machina already had a database of patent litigation, the GAO asked it to produce a random sample of 100 patent lawsuits for each year from 2007 to 2011. In addition to supplying the GAO with the data it needed for its forthcoming study, Lex Machina decided to publish its own interpretations of the sample.

As the Ars Technica piece notes, that shocking statistic above doesn't even tell the whole story. When you consider that patent litigation as a total has jumped in volume, coupled with the number/percentage of patent troll threats settling well outside of the courtroom, experts figure that the size of the patent troll leeches are roughly double the size of your average adult kraken.

"From all appearances, lawsuits filed are only the tip of the iceberg (editors note: kraken-sized leeches often hide under iceberg tips), and a major operating company may face hundreds of invitations to license for every lawsuit," the authors write.

The America Invents Act was enacted in the final months of the study period. And there was at least one minor change designed to deter troll behavior: the law made it harder to name many defendants in a single lawsuit. But the law's main provisions, such as the switch from a "first to invent" rule to "first to file" is unlikely to affect the volume of troll litigation.

Hell, this all sounds like promoting the progress to me. That, or some flavor of patent abuse. Surely it's one of the two...

Filed Under: lawsuits, litigation, patent trolls, patents

If You Can't Sue The Feds For Spying, Sue Them For Lying About Spying

from the again-and-again dept

There have been numerous attempts by various parties (including, in a few cases, the EFF) to sue the US government concerning various aspects of its warrantless spying on Americans. Pretty much all of these cases end up failing, often for reasons that are suspect. However, it appears that the EFF is going to try again. As you may recall, back in July, the feds admitted to Senator Wyden that their own analysis discovered that they had violated the 4th Amendment on occasion in carrying out surveillance under the FISA Amendments Act.

In response to this, the EFF filed Freedom of Information Act requests, asking for documents concerning the situation in which such searches were deemed unreasonable under the 4th Amendment. The feds more or less ignored the FOIA request. So the EFF is suing for violations under the FOIA. It may not be as sexy as suing about the actual spying, but that path has already been shut down plenty of times. I'd guess that this approach won't succeed either (though I hope it does!). But, at the very least, hopefully it can call some attention to the massive secrecy by the feds as Congress gets ready to re-approve the FISA Amendments Act without bothering to understand how it's being used.

Filed Under: 4th amendment, foia, lawsuits, privacy
Companies: eff

Warner Bros. Sues A Ton Of Amazon Resellers For Selling 'Counterfeit' DVDs

from the counterfeit?-resale? dept

The Hollywood Reporter has a story on Warner Bros. filing a lawsuit against a bunch of individuals who use Amazon's marketplace offering to sell DVDs that Warner Bros. claims are counterfeit. The lawsuit is pretty weak on details so far. The THR report speculates on whether or not this is about packaging up downloaded or camcorded movies and pretending they're official.

However, if you look at the Amazon profile of the named defendant, Todd Beckham, you see that he has very good reviews. Currently, he has a 4.9 star rating with over 2,000 reviews. If he were selling inferior counterfeit products, you'd think people would complain, because his listings certainly suggest they're new official copies. So buyers seem to feel they're getting what they thought they bought. It's possible that he's just a really good counterfeiter, but THR wonders why WB doesn't just use Amazon's existing internal controls to terminate service for users who sell infringing works.

WB apparently told THR that this isn't a case of going after used product sales (where it would have a tough case, given the first sale doctrine -- and, again, would likely lead to negative reviews, since the offerings don't seem to indicate "used" conditions), but it's unclear how or why the company thinks these DVDs are counterfeit. Again, given the sparseness of detail, it's entirely possible the targets are creating (apparently high quality) counterfeit flicks and selling them. But it would be nice to see a bit more evidence that that's the case, and this isn't just a case of being worried about being undercut by the secondary market. What's a little worrying is that, according to THR, WB is claiming that the sellers are violating its "distribution rights" to the films, not reproduction rights. That raises at least some questions over whether or not the concern is just competition, or actual unauthorized copies. At the very least, this will be a case worth following...

Filed Under: counterfeit, dvds, lawsuits
Companies: warner bros

Craigslist Demands 'Exclusive License' On Your Posts

from the good-luck-with-that... dept

When Craigslist sued PadMapper and 3taps, we questioned the legal basis for much of the lawsuit, in particular the claim that Craigslist even could sue over copyright, when any copyrightable content is created by the end-users and not Craigslist itself. It appears that someone at Craigslist realized that it was somewhere very close to the Righthaven line in claiming a bare right to sue over someone else's work, and made a tweak, demanding "exclusive" rights.

I first saw this via Slashdot on the Baligu blog, and was trying to go through the legal implications, but thankfully, Tim Lee over at Ars Technica did all the heavy lifting for us in speaking to IP lawyers James Grimmelmann and Mark Lyon who are quite skeptical of this move.

What's odd is that this "change" isn't even to its terms of use, which don't actually claim an exclusive license. Instead, the company has just added text to the posting page saying that you are granting the company such a right:

Clicking "Continue" confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.

The theory, as Lee notes, is probably that by more forcefully claiming exclusive rights, perhaps it can get over the hump and have the right to actually enforce those copyrights -- but that legal theory is speculative at best.

It's kind of interesting, because someone could also potentially argue that this statement contradicts the company's own terms of use since they're different but perhaps more interesting are the wider legal questions raised by this -- including what happens if you, the user, post your classified ad to any other site. Craigslist seems to be claiming that it can go after those other sites (and, um, potentially you, I think...) for reposting "its" work. That's crazy and something that completely goes against Craigslist's standard "user-friendly" approach to everything.

Once again, this is showing how Craigslist's pursuit of these kinds of legal issues really seems to go against what made Craigslist so successful, turning the company into much more of a cranky legal bully. Lots of companies that start out innovative and open, do later change and flip sides on things like this, but Craigslist always seemed like the kind of company that would stay on the right side of the "evil line." It's too bad to see that it seems to be so aggressively diving over to the copyright bully side of the line.

Filed Under: closed, copyright, exclusive rights, lawsuits, legal bullying
Companies: craigslist

Music Labels Have No Plans To Share Any Money They Get From The Pirate Bay With Artists

from the that's-not-how-labels-work dept

We see this every single time the music labels (usually RIAA or IFPI) "win" a big case against an alleged "pirate" site. They're awarded a bunch of money... and none of it goes to the artists. We've heard about it happening with Limewire and YouTube (though that was payoff to prevent a lawsuit, rather than the result of a lawsuit). And, once again, that appears to be happening with The Pirate Bay. TorrentFreak has the leaked document from the IFPI showing that it plans to reinvest whatever it gets... in the IFPI to continue its "anti-piracy efforts," such as going after other sites to get similar settlements for the same reason.

To be clear, the IFPI notes that it's unlikely to collect much, if any, of the money in this particular case, because (contrary to what it claimed all along), it certainly doesn't appear that TPB made very much money -- and the people sued "have no traceable assets." However, the ruling was clear that the money being awarded to the labels was "to compensate artists and rightsholders for the losses they suffered. But that's not how it would be used:

“There is an agreement that any recovered funds will be paid to IFPI Sweden and IFPI London for use in future anti-piracy activities,” IFPI writes.

TorrentFreak quotes Peter Sunde, one of the four who was convicted, noting that this is a case where money was directly promised to artists and not delivered. That seems a hell of a lot more like "theft" than anything that he did:

“They say that people who download give money to thieves – but if someone actually ends up paying (in this case: three individuals) then it’s been paid for. So who’s the thief when they don’t give the money to the artists?”

According to Sunde the news doesn’t come as a surprise.

“As far as I know, no money ever won in a lawsuit by IFPI or the RIAA has even gone to any actual artist,” Sunde says.

Indeed. I am unaware of any of the proceeds from any such lawsuits ever making it back to artists.

Filed Under: artists, lawsuits, money
Companies: ifpi, the pirate bay

Yet Again, Netflix Class Action Shows That Class Action Lawsuits Are Mostly About Making Lawyers Rich

from the not-stopping-people dept

For years, we've been pointing out that our class action lawsuit system is broken. It makes sense, in theory, that if a large group of people are wronged, they can team up to right that wrong—but in practice it has morphed into a system where a bunch of bottom-feeder lawyers sue just about any company at every opportunity... and then those lawyers end up taking the bulk of the money. The "class" (the people supposedly wronged) rarely get much, if any money at all. Of course, one of the first stories that clued me into all of this involved a settlement in a class action lawsuit against Netflix way back in 2005, in which the lawyers got $2.5 million... and everyone in the "class" just got their accounts upgraded for a month (and if you forgot to manually downgrade after that month was over, you were charged more). As I noted at the time, this seemed more like a promotional stunt for Netflix and a way for a bunch of lawyers to make a ton of money.

So it's interesting to see that with yet another class action lawsuit being settled involving Netflix, there are similar concerns. A whole bunch of folks sent in variations on the fact that Netflix will be paying out $9 million with a grand total of none of it going to the class (unless you happened to be one of the two named plaintiffs -- Jeff Milans and Peter Comstock -- who get to split $30,000). Most of the money is going to a charity. But somewhere around $2.25 million is going to the lawyers.

To be clear, I think the lawsuit itself is a bit silly anyway. It involves the fact that Netflix retained info on customers who quit. Big whoop. But whether or not you agree with the premise of the lawsuit, the end result seems even sillier: those supposedly "harmed" get nothing, but the lawyers walk away with over $2 million? It's this kind of thing that creates incentives for more such lawsuits driven by law firms in the hopes of cashing in.

Filed Under: class action, lawsuits, lawyers, settlements
Companies: netflix

Attendee At Batman Shooting Plans To Sue Warner Bros For Making Batman Too Violent

from the um,-really,-now? dept

We live in a litigious society. That's not a secret. So it's no surprise that, in the aftermath of the Aurora, Colorado Batman shootings, lawsuits will be filed. But as always the question is: who do you sue? Well, if the linked TMZ article is accurate, Torrence Brown Jr., who was in the theater, but not directly injured (though a friend of his was killed), has lawyered up, hiring an attorney named Donald Karpel to sue Warner Bros. for making the movie too violent. He's also apparently planning to sue the theater for not properly guarding the emergency exit, which is apparently where Holmes left and re-entered with the weapons. Oh yeah, and the doctors of shooter James Holmes for not properly monitoring him.

This certainly seems like a frivolous lawsuit. Going after Warner Bros.? For what? That's likely to get laughed out of court. This seems like a clear case of a "Steve Dallas lawsuit," named for the famous Bloom County comic strip in which lawyer Steve Dallas gets beat up by Sean Penn after trying to take a photograph of the star. He then explains why the proper target of a lawsuit is not Sean Penn, but the "Nikolta Camera" company, because "a major corporation with gobs of liquid cash ... was criminally negligent in not putting stickers on their camera which read, 'warning: physical injury may result from photographing psychopathic Hollywood hotheads." In a coincidence that you simply couldn't make up, it turns out that Karpel once represented (no, seriously) a paparazzi photographer beat up by Sean Penn. Life imitates comic strips.

Filed Under: batman, donald karpel, james holmes, lawsuits, shooting, steve dallas, torrence brown jr.
Companies: warner bros.

MPAA Asks For Megaupload Data To Be Retained So It Can Sue Users... Then Insists It Didn't Really Mean That

from the how-not-to-win-fans-or-build-businesses dept

There are days that the actions of the MPAA just make you shake your head and wonder just what goes through the minds of the lawyers running that insane asylum. The latest is the news that they're considering suing Megaupload users directly, as if their reputation wasn't already mud. The details actually have to do with the fight over whether or not the data on Megaupload's servers is going to be deleted. There was a point, soon after the shutdown, when it was suggested that, due to a lack of anyone able to still pay the bills, the hosting provider that Megaupload used, Carpathia Hosting, would soon wipe the servers clean. That struck me as odd, because I would have thought that the data on those servers represented evidence in a criminal case -- but for reasons still not clear, the government insists it has no need for the data and that Carpathia is free to delete it. I won't even begin to speculate over the fact that the person who sent the letter to Carpathia suggesting this also happens to be the BSA's former head anti-piracy VP. An ex-anti-piracy exec for an industry lobbyist, now running a criminal anti-piracy case, basically telling the data center to delete evidence? Hmm...

Others, of course, were concerned about both the evidence that could exonerate Megaupload as well as the legitimate files that were going to be lost -- so there was an effort made to try to have the files retained, and the hosting firm has said (for now) that they won't delete the data, despite the fact it is costing the company $9,000 per day to maintain these servers and the 25 petabytes of data they contain. But it wants to.

So here's the surprise. Those fighting to keep the data have an unexpected ally: the MPAA. Yes, you see the MPAA wants to keep its options open and is considering directly suing users who may have used Megaupload for infringement -- and for that to work, they'd need that data to remain available. This came out in a filing by Carpathia to the court, in which it notes that there is significant interest in keeping the data around, but it wants out of the burden of paying for all of this and having to retain the data itself. The filing notes that Megaupload itself wants the data for its defense, the EFF wants to help users get legit files back... and the MPAA wants the data to sue people. Apparently, unbeknownst to the public until now, the MPAA sent Carpathia a letter arguing in agreement with Megaupload and the EFF that the data shouldn't be destroyed, but only because the MPAA wants to have access to the data in case it decides to go hogwild and completely and permanently destroy its reputation by suing users directly. From the letter the MPAA sent Carpathia:

Independent of the ongoing criminal proceeding, the Studios have civil claims against the operators of Megaupload, and potentially also against those who have knowingly or materially contributed to the infringement occurring through Megaupload...

... In light of the potential civil claims by the Studios, we demand that Carpathia preserve all material in its possession, custody, or control, including electronic data and databases, related to Megaupload or its operations. This would include, but is not limited to, all information identifying or otherwise related to the content files uploaded to, stored on and/or downloaded from Megaupload; all data associated with those content files, the uploading or downloading of those files, and the Megaupload users who uploaded or downloaded those files; all data reflecting or related to payments to third parties (including Carpathia) by the Megaupload operators; all data reflecting or related to payments to the Megaupload operators, including by users and other third parties, all electronic records regarding communications by the individuals involved in Megaupload's operations; and all internal documents and communications regarding Megaupload.

Of course, recognizing just how bad its own lawyers' statements are on the matter, the MPAA has sent in its PR folks to try to clean up the mess. Almost immediately after David Kravets at Wired published the original article highlighting this, MPAA PR people started calling him insisting that it wasn't true at all. MPAA PR VP Howard Gantman told Kravets that the MPAA has no intention to sue users, despite the clear language of the letter it sent Carpathia.

“The reason we did that filing so that there is a possibility that litigation might be pursued against Megaupload or various intermediaries involved in Megaupload’s operation. We’re not talking about individual users...”

That's not what the plain language of the letter itself clearly states -- but never let facts get in the way of a good yarn spun by MPAA PR people desperately trying to make the organization seem not 100% evil. But, this is how the MPAA thinks: lawyers shoot their mouths off with threats first, and the PR folks are left to do cleanup. That's what happens when you put the lawyers in charge, without any real knowledge of technology, business or just how ridiculously bad they make themselves look with their extreme positions. And then they wonder why no one sides with them in debates like the one over SOPA. Perhaps it's because their position is so crazy that anyone with the slightest bit of common sense would have known to stay miles away. But that's not how the MPAA rolls. It goes to crazytown and beyond, and then just denies it was thinking about suing users, despite claiming exactly that.

Filed Under: copyright, data, lawsuits
Companies: megaupload, mpaa

Sorry Ron Paul, You Don't Get To Abuse Trademark Law To Unveil Anonymous Internet Users

from the how-very-unlibertarian-of-you dept

Back in January, we wrote about the bizarre decision by Ron Paul to file a lawsuit to unmask some anonymous internet users, who had created a controversial anti-John Huntsman video. At the end of the video, the anonymous videomakers had endorsed Paul, but some conspiracy-minded folks insisted that they were really working for Huntsman and staging an elaborate ruse to put up a video that looked bad about Huntsman to have that backfire on Ron Paul. For a variety of reasons that's either improbable or just downright stupid. But even if we assume the worst case scenario, Ron Paul's lawsuit not only made absolutely no legal sense, but it also seemed to go against nearly everything he believed in concerning internet freedom and the overreaching power of the government.

Either way, a judge has rejected Paul's attempt to unmask the videomakers on the narrow grounds that he failed to state a legitimate claim, since the video was not commercial in nature (necessary for a trademark violation). The judge did not go so far as to get into the First Amendment issues, but made clear that if Paul comes back with an amended suit with an actual claim, then the First Amendment considerations will be covered. Kudos to Paul Levy at Public Citizen for filing a pair of amicus briefs in the case to make sure the judge was aware of what was happening -- and hitting back at Paul's camp for its initial filing that completely ignored the relevant law and legal standards for unmasking anonymous internet users.

There are a number of especially troubling items in terms of how Paul and his camp went about this. First, just trying to unmask anonymous internet speech seems extremely problematic. Second, however, is the way in which he tried to twist trademark law to do so. As Eric Goldman explains, Paul's attempts to route around the clear requirements of trademark law were especially mockable:

To try to salvage the situation, Paul tries two mockable arguments. First, he argues that YouTube and Twitter are commercial sites, and that gives the dispute enough commerciality. The court rightly points out that the inquiry is about the defendant's conduct, not the websites where it took place, and notes the argument's illogic would mean non-commercial activity on any commercial website would be governed by the Lanham Act. In a footnote, the court adds that "using another company’s commercial website to post a comment or video is just far 'too attenuated' to result in an individual’s own conduct automatically meeting the Lanham Act’s commercial use requirement."

Second, Paul argues that "the video was intended to frustrate Plaintiff’s fundraising efforts and increase the amount of money contributed to Presidential nominees other than Ron Paul." The court says the Lanham Act is predicated on the defendant trying to improve its competitive status, and these defendants had no competing services; and the video on its face didn't try to solicit any donations.

Anonymous speech is protected under the First Amendment, and abusing trademark law to try to unmask anonymous speakers, whose speech was not commercial, is clearly an abuse of the law to try to "out" people online. As some have noted, it appeared to go against Ron Paul's own key principles -- and whether you agree with him or not, Paul certainly has the reputation for standing up for his principles. Yet here, suddenly, all of that went out the window:

What continues to amaze me, though, is how Paul is getting a free pass for this assault on free speech. Mitt Romney and Rick Santorum haven't filed lawsuits over identical videos that use their names in attacking Huntsman; why is Ron Paul the only candidate who filed such a suit? Indeed, so far as I have been able to discover, he is the only serious candidate for President in the past few decades who has ever filed a libel suit, and there are certainly Presidential candidates who have suffered far worse attacks. (I am not thinking of candidates who sued longer ago, but fifty years takes us back to the beginning of First Amendment protection against libel litigation brought by public figures). Why aren't the reporters who follow him around on the campaign trail not asking him how he can justify his use of litigation to oppress his critics and how it is consistent with the principles of liberty for which he claims to stand? How is this consistent with his First-Amendment based assault on campaign finance regulation such as McCain-Feingold? Does he just want to substitute the courts and privately financed litigation for the FEC?

Also surprising to me, is that even Paul's very vocal online supporters seem to refuse to recognize the issue here. I was amazed on our original post how many commenters came to Paul's defense here because they think that the videos were designed to make Paul look bad, and therefore the people "must" be revealed. That's not how the law works and that's not standing up for the basic principles of free speech, internet freedom and liberty that they supposedly stand for.

The sign of a truly principled person is when you're willing to retain those principles in the face of a situation where standing firm hurts you. Instead, Ron Paul folded and suddenly relied on big federal government regulations and abuse of the law to try to take away individuals' free speech rights.

Filed Under: campaign advertising, campaigns, defamation, john huntsman, lawsuits, ron paul, states rights, trademark