Another day, another silly lawsuit. Michael Scott points us to this hilarious lawsuit from Majed Moughni, who tried to run for Congress last year in Michigan. He came in fourth in the primaries, but he's suing Facebook, claiming it's responsible for his loss. How so? Well, he claims that he was accumulating friends on Facebook in the lead up to the primaries, and then Facebook killed his account. Facebook notes that his account was halted because of activity that appeared to be doing things similar to spammers -- and that users who face this issue are alerted to it before their accounts are cut off. It seems likely that this lawsuit will get tossed out pretty damn quickly, as soon as Facebook points out that it has every right to deny service to folks based on a desire to protect users. Section 230 allows companies to filter as they see fit and not see any liability for those choices, and it seems that this case should be covered. Of course, for someone running for Congress, you would hope they actually understood the law on these issues, but I guess that's not really a requirement.
Eric Goldman has the details on an interesting trademark dispute involving Facebook. It involves two separate day spas, who both go by the name "Complexions," but in different regional areas, so there was no real problem in the past. But thanks to a global internet, things get trickier. One of the spas sent a takedown notice to Facebook claiming "copyright" infringement of the Facebook fan page of the other Complexions. As Goldman notes, the claim of copyright was almost certainly in error, as it probably meant trademark (though, we're seeing trademark holders exploit this confusion regularly these days, to pretend that the DMCA and its takedown process covers trademark too).
The Complexions who lost its fan page has gone to court to get a declaratory judgment that it didn't infringe against the other Complexions... and is seeking to have the court order Facebook to put the page back up. As Goldman points out, even if it makes sense for Facebook to put the page back up, the court almost certainly cannot legally mandate that, since Facebook is protected in taking down whatever content it wishes to take down:
The issue is so interesting because the DJ plaintiff's desired relief should be categorically unavailable. A court can't order a web service to restore an user's account/content for at least two independent reasons. First, such an order clearly violates the First Amendment-- the order would impermissibly circumscribe the service's freedom of speech and the press. Second, even if you don't want to get into the constitutional debate, IMO Congress resolved this issue in 47 USC 230(c)(2), which immunizes websites' "filtering" decisions. If Facebook takes down a fan page because it thinks the page is trademark infringing, 230(c)(2) says Facebook still has the full editorial discretion not to publish the page even if it later learns that the page wasn't trademark infringing at all.
A court *can* order the IP owner to stop sending takedown notices. See, e.g., Biosafe-Hawks, Design Furnishings, and Amaretto. My hope is that a web service would listen carefully to such orders in deciding if/how to remediate its prior responses to the takedown notices. My hope is that web services would also build in enough due process to their private adjudicatory processes so its users can fairly combat false takedown notices without needing judicial intervention at all. However, it remains fair game for the web service to make "bad" choices on both fronts, though we as consumers should draw our own conclusions about those who do.
Separately, Goldman points out that the suing Complexions is also claiming "false advertising," in noting that the Complexions who issued the takedown also sent friend/fan requests to its fans. He predicts that we'll start seeing more lawsuits over attempts to "poach" Facebook fans.
At the beginning of January, we wrote about a troubling court ruling in Florida, where a judge ordered XCentric, the operators of Ripoff Report, to remove some content from their website, despite the company's policy against such removals and the clear and well-established safe harbors for Ripoff Report from Section 230. There were some serious problems with this ruling beyond just the Section 230 questions, including the prior restraint issue, whereby content was ordered taken offline despite the lack of a full evidentiary hearing on the merits.
Thankfully, the judge who made this clearly incorrect ruling was not re-elected, and the case was handed off to another judge who quickly righted the wrong, noting that Ripoff Report was clearly protected by Section 230 of the CDA. Perhaps even more interesting is that Paul Alan Levy, who was preparing an amicus brief for the appeal, was able to get his hands on the original transcripts of the hearing and highlights just how troubling the initial ruling was on a prior restraint basis, in that the order was not based on any findings of the likelihood of success of the original defamation claims:
The transcript of the hearing at which the original TRO against the author was adopted is particularly revealing. The order was not based on any findings of likelihood of success that the author would be found liable on the defamation claims; everybody understood that the only objective was to facilitate an order against XCentric. The author never conceded that she was even negligent in making her statement that Giordano was a convicted felon, not to speak of acting with actual malice as would be required for a judgment of defamation assuming that Giordano is a public figure. Indeed, there was some suggestion that Giordano had told the author that he had previously been in trouble with the law. So, perhaps he was a felon, just not a convicted felon? The author apparently stood by everything else she had said about Giordano; yet the judge ordered XCentric to take the entire statement down because, the judge said, he didn't want to be involved in editing the statement.
And this is exactly part of the problem. The judge was in such a rush to shut down the content, no effort was made to determine if there was a true legal basis for removing the content.
Paul Levy alerts us to yet another case of companies looking to abuse the legal process to shut down negative reviews and opinions. In this case, amazingly, someone involved in the company even seems to admit this in writing to the site being threatened. The situation involves a company called Javelin Marketing, but which is doing business as ProspectMatch.com -- a company that supposedly sells leads. Over at InsuranceForums.net, a site run by Melnet Media, there are a few different threads where multiple people give negative reviews of ProspectMatch, which the Javelin Marketing/ProspectMatch folks weren't very happy about.
While Levy has the details of the rather aggressive legal threat sent by a lawyer hired by ProspectMatch, Levy also notes that someone from Javelin Marketing also contacted Insurance-Forums.net's operator directly and explained:
"I really don't care what the law allows you to do. It's a more practical issue. Do you want to send your attorney a check every month indefinitely as I continue to pursue this? Now, we will both spend needless money and when you get sick of paying your attorney, you will take down the posts."
Of course, the case looks like a typical Section 230 deal, where the forum owner has no liability over statements made in the forums -- and it appears that ProspectMatch knows this, but doesn't care. Of course, saying that -- in writing no less -- probably was not a wise move, and might expedite a quick dismissal for any legal action.
On top of that, there are number of interesting moves by ProspectMatch's lawyer, a guy by the name of Richard Newman. First, in his threat letter to Melnet, he tried to avoid the likely Streisanding of the threat by declaring:
Please be aware that this letter is copyrighted by our law firm, and You are not authorized to republish it in any manner whatsoever, including in a posting, in full or in part. Doing so will subject You to further legal and equitable causes of action.
We've been seeing this sort of technique more frequently these days (unfortunately), and it is pretty pointless for lawyers to include. They do so for fearmongering purposes, but publishing and discussing such a threat letter would almost universally be declared fair use, so Levy has posted the full letter (pdf).
On top of this, it appears that Newman is trying to get around Section 230 claims by (1) pretending that Melnet has more direct involvement than it does and (2) claiming false advertising and trade libel under the Lanham Act. Basically this is an attempt to rebrand "defamation" (which is covered by Section 230) as a "trademark violation" (which is not). But, just because you try to make that claim, it doesn't mean any court in the land will believe you.
Finally, Levy notes that, despite being in California, it was interesting that Newman indicated plans to avoid filing the lawsuit in California, and suggests a reason why he believes Newman did this:
It struck me that the most likely explanation is that Newman understood that, if he sued in either California state court or a federal court in California, the suit would be subject to dismissal under California’s anti-SLAPP statute.
The reason we were particularly interested in defending this otherwise plain-vanilla section 230 immunity case is that it presents the opportunity to argue that a California libel plaintiff is still subject to California’s anti-SLAPP laws even if it sues elsewhere, because under common choice of law principles, the law of the plaintiff’s domicile applies to libel and other intentional tort claims. And because the anti-SLAPP law is substantive rather than procedural, we could file a special motion to strike and seek an award of attorney fees.
This does seem like an interesting legal question, and Levy indicates in his letter to Newman (embedded below), that he fully intends to test this theory if ProspectMatch does decide to file a lawsuit. Anyway, you can read Levy's full letter below. As with most of Levy's letters, it's well worth reading.
This is a few weeks old, but Michael Scott points us to the story of how Backpages is asking a court to dismiss the lawsuit filed against it by a teen who was sold as a prostitute on the site. We covered the lawsuit when it was first filed, and had a rather frustrating discussion in the comments with people who simply couldn't understand the difference between blaming those actually responsible and blaming the tools those people used. We've discussed how the attempts to blame tool providers often helps those who are involved in child trafficking. It attacks the sites that work with law enforcement and help them identify those actually responsible, and instead drives traffickers to seek out other sites that don't work with law enforcement. In this case, the teen tries to claim that Backpages (owned by Village Voice Media) isn't protected by Section 230 because it "helped develop the ads":
"The website is a highly tuned marketing site with search tools, adult sex focused categories, and directions and features offered regarding how to increase the impact of your ads for a fee," M.A. argues. "Defendants advertise its website to increase page views of the ads; defendants removes spam from its website to increase page views of placed ad," M.A. adds. "All of these acts make defendants the creators and developers of the posted advertisements."
I don't see how any of those things overrides Section 230 safe harbors. It seems like a huge stretch to claim that advertising your service somehow makes you responsible for the content and the uses. Also, the fact that the site removes spam is totally meaningless, as the various Section 230 cases have shown time and time again that removing other content does not remove Section 230 safe harbors (if it did, no one would ever remove anything). Still, given the highly emotionally charged nature of this case, it wouldn't surprise me if a court ruled the other way, though the end result of that would be quite damaging -- especially to the people who many think this lawsuit is designed to protect.
The NY Times recently had an odd review of a new book about anonymity online. The book, called The Offensive Internet, is a collection of essays from various legal scholars, apparently taking a look at the fact that (gasp!) some people are just nasty online. The review, by Stanley Fish, makes some claims that don't make much sense, either logically or legally. If his summaries of the book accurately reflect what was written, then it suggests that the professors might not really have a firm grasp on what they're talking about. For example, Fish notes that multiple authors in the book seem willing to toss out Section 230's safe harbors for third party service providers, because some anonymous commenters might be mean:
An unconstrained marketplace of ideas is often said to facilitate informed decision-making by providing all the information, even erroneous information, that is out there. But how, asks Brian Leiter in a powerful essay, is the process of deliberation helped by the anonymous poster who reports falsely “that Jane Doe has herpes” and announces “that he would like to sodomize her?” The Internet and the real world, Leiter concludes, “would both be better places” if Internet providers were held accountable for the scurrilous and harmful material they disseminate.
Later, Fish quotes others, with similar arguments:
Saul Levmore (Nussbaum’s co-editor) suggests that immunity might be conditioned on the willingness of a provider either to take down a message after notice of its falsity or defamatory character has been given, or “to enforce non-anonymity” and thus open the way for an injured party to seek redress. The law, writes Anupam Chander, “should allow the individual to find information to lead her to the person who committed the privacy invasion.” As it is now, with an expansive reading of Section 230, “the law no longer puts any obstacles in the way of the Sociopath” who, traveling on the Internet, can go anywhere and spray venom that lasts forever. (Leiter)
Except, as Paul Levy points out in great detail in a response to Fish's column, if Fish accurately reported what these law professors wrote, then those law professors don't actually know the law.
They appear to be confusing anonymity with safe harbors for service providers. But there's nothing at all in Section 230 that forbids or prevents a person who has been wronged -- say via defamation -- from going to court and getting a service provider to identify an anonymous commenter. All the safe harbor does is prevent the service provider from being liable for the user's speech. But it does nothing to protect their anonymity. Arguing otherwise is simply wrong. As Levy notes:
Under current law, if actionable expression is communicated online, the victim of the statutory, tort or contract violation can sue the author for that expression, but can no more sue the host of the web site, or the provider of the email service, than he could sue the postal service for carrying a defamatory book or newspaper, or sue a library for lending such a book out. Moreover, even if the name of the author is not provided with the expression, generally speaking the host of a web site that contains offending content (or an email provider) maintains at least for a period of time the data that is needed to identify the author.
That information can be subpoenaed from the host. And such a subpoena can be enforced by anybody who has a substantial claim of defamation or other actionable content. That is, they will succeed in the subpoena proceeding so long as they can identify the allegedly defamatory words about them, the words are actionable statements of facts and not just opinions, they have evidence of falsity and of damage, and there is no other reason to withhold identification, such as a real risk of extra-judicial retaliation.
In other words, the attack on Section 230 (if Fish is to be believed, mainly by law professor Brian Leiter) is woefully misplaced. He seems to be blaming safe harbors for third parties for the fact that some anonymous commenters can be jackasses. But the two things are unrelated.
Furthermore, I've noted in the past how misguided attacks on anonymity are. We've been running Techdirt for well over a dozen years and have always allowed anonymous comments. On the whole, we probably have just as many smart anonymous comments as we do smart "named" comments -- and the same is true of the annoying or abusive comments. To suggest that anonymity alone automatically leads to worse comments is a myth. It's something that some people want to believe, but there is little evidence to support it.
As I've said, we prefer that people identify themselves, because we like it, but we try to do that by offering positive reasons for people to identify themselves (if you're registered users there are various perks and such), but if people want to remain anonymous, that's fine too. But, the thing is, when someone does decide to comment anonymously, they are signaling something to the world, and part of that signal is often "this might not be as credible, so you might want to double check." So when the essays in this book complain about people making speech online anonymously, what they appear to be ignoring is the fact that such anonymous speech is already handicapped, in that it's a lot less believable on its face. For some reason, too often people seem to think that if someone says something, everyone automatically believes it. And that seems to be driving much of the conversation here, but it seems reasonable to go back and question that assumption.
In the end, there are lots of important benefits to anonymous speech. Yes, some people abuse it. But that's no reason to automatically throw out all the benefits of anonymous speech.
A little over a year ago, we discussed a district court ruling that said that the site Ripoff Report (and its parent company XCentric) was not required to remove content, even though the content had been found (in a default judgment, since the defendants did not show up) to be defamatory. The court ruled that Section 230 clearly protected Ripoff Report as a service provider from being liable for user actions. While some worried that this meant that it would be possible for defamatory content to not be removable, this seemed like an overreaction, and targeted the wrong issue. The real problem was with the default judgment practice, and the idea that just because you can't find the people actually liable, some people think it's okay to blame someone else instead. That's just not right.
Last week, in an appeal on that original case, the appeals court basically ruled the same way: Ripoff Report has no requirement to remove the content judged to be defamatory, because it is not a party to the lawsuit, and thanks to Section 230 it cannot be a party to that lawsuit. However, it is notable that Ripoff Report has put additional information on that page, indicating that the content was found to be defamatory, which more or less should alleviate much of the concern. Separately, as Eric Goldman notes in the link above, the fact that it's possible that defamatory content may be online with no way to take it down probably isn't a huge concern, as the situation is unlikely to happen all that frequently. Most sites seem willing to take down such content.
Separately, as Paul Levy astutely points out in his own analysis of the case, the courts in various states have made it clear that in order to deal with that pesky First Amendment issue, there shouldn't even be injunctions against defamatory speech -- only monetary awards:
I am much less worried about the normative consequences of holding that the web host can't be enjoined, because there is another significant problem with extending either injunction to Ripoff Report. There is a hoary doctrine holding that "equity will not enjoin a libel" -- that no matter how false and hurtful a statement may be, the only proper remedy for defamation is an award of damages, not an injunction.
And, indeed, this is probably how it should be. The way to deal with such speech is more speech.
Levy's link, unfortunately, shows that some courts don't recognize this, even in states whose laws are under this maxim. Levy notes that the day after the Seventh Circuit ruled in favor of Ripoff Report in the lawsuit above, a Florida state court granted a rather hasty temporary restraining order against Ripoff Report/XCentric, in a case with some similarities. It again involved charges of defamation. Ripoff Report was sued, but removed from the lawsuit thanks to Section 230. The woman who actually wrote the comment was also sued, and eventually settled, with a promise that she would make "good faith efforts" to remove content. Ripoff Report, famously, does not remove content (though, Levy notes that's not entirely true), so it refused. The plaintiff, John Giordano, asked the court for a temporary restraining order against Ripoff Report, requiring it to remove the comments. The court gave Ripoff Report one day's notice, before holding a hearing (Ripoff Report's lawyer had to call in from Arizona), and the court then granted the restraining order. Levy, again, explains why this ruling was clearly in error:
Part of the problem with the reasoning is that it is circular -- Xcentric is being ordered to take down the posting because it failed "to comply with [the previous] order," but that order did not compel XCentric to do anything; thus there was nothing for it not to comply with. And in other respects, the reasoning is just wrong. The order expressly treats XCentric as the "publisher" of the statements in defiance of the statute's express command that a provider of interactive computer services shall not be "treated" as the publisher of content provided by another; and the courts addressing section 230 have consistently agreed that the decision whether to remove posts is part of the "publisher" function that Congress intended to leave to web hosts' discretion. Nor does the court explain how it can issue the equitable remedy of an injunction -- especially an injunction forbidding speech -- against a party that has not been held liable for the speech.
Moreover, allowing motions for injunctive relief is inconsistent with the statutory language providing an immunity from suit as well as from liability, and with one of the basic reasons why host immunity is such an essential element of the system of online freedom of speech. Even if the host is protected against damages claims, the very need to respond to motions for injunctive relief imposes the expense of litigation and thus threatens to enable the heckler's veto that animated Congress to adopt Section 230 in the first place, and to make it a part of American law so fundamental that a foreign defamation judgment cannot be enforced in the United States unless it meets section 230's requirements. And hosts are understandably chary of being enjoined, because even if it is s very specific statement that has already been held to be false that is enjoined, the host has to worry about being held in contempt if somebody later posts that same statement online.
Also curiously not addressed by the Florida court was why it was entitled to issue a prior restraint on less than a full evidentiary hearing on the merits.... [In] many jurisdictions, the old rule that "equity will not enjoin a libel" remains good law to this day. But even the jurisdictions that allow the entry of a permanent injunction against speech after the defendant has had his day in court and a jury has decided that the enjoined speech is false, consistently hold that a preliminary injunction is a prior restraint. And as the Supreme Court said in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419-20 (1971), in overturning a preliminary injunction against leafleting on First Amendment grounds, "No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices . . . warrants use of the injunctive power of a court."
Hopefully this temporary restraining order is overturned.
The larger point remains, however. Section 230 remains not just a good, but an important law in protecting third parties from being held liable for the speech of others. The worries that it creates problems in cases such as the first one above seem overblown. Such situations are not only rare, but it seems clear that they can be dealt with by people adding additional details that explain the nature of the content in question. And, in the end, that fits best with the First Amendment. The response to "bad" speech should not be to block it, but to encourage more speech. That's the end result of Section 230, and that should be seen as a good thing.
One thing we often hear from folks is that Section 230 safe harbors only apply to service providers who do not actively participate in the services they provide. That is, some of our commenters insist that if you "moderate" or if you, as a service provider, are actively involved in what a user does, then Section 230 safe harbors do not apply. Yet, time and time again, courts have found this not to be the case. In the latest such example, Eric Goldman points us to a lawsuit filed against an online auction site, Proxibid, which apparently is similar to eBay, but the company is somewhat more involved in the auctions. That is, it reviews the auctioneers before letting them use the site, and in this particular case, a Proxibid employee apparently helped the company doing the selling unilaterally extend an auction. A bidder in that auction was upset about the unilateral extension, as well as the belief that the selling company was issuing shill bids to drive up the price. He sued both the seller and Proxiweb, and tried to claim that Proxiweb was liable, because its actions made Section 230's safe harbors inapplicable.
Not so, according to the court:
Plaintiffs have essentially asserted that Proxibid is liable to them in tort for tortious interference with a contract, aiding and abetting a breach of a fiduciary duty, negligence, unfair trade practices, and conversion because Proxibid allegedly helped Danhauer deprive Plaintiffs of the items for which they were the highest bidder in the auction at 4:00 a.m. Plaintiffs' sole bases for maintaining these claims against Proxibid arise from Proxibid's facilitation of Danhauer's reopening of the auction and Proxibid's alleged failure to thwart Danhauer's efforts to bid in its own auction in violation of the website rules. Plaintiffs do not dispute the fact that Proxibid is a website service provider, much like Ebay. Plaintiffs also do not dispute that Danhauer was responsible for conducting all aspects of the auction. There is no evidence that Proxibid posted any information or conducted any actions other than those provided by or at the direction of Danhauer. In this case, Proxibid is nothing more than an interactive computer service provider and cannot be held liable for the information and actions originating from Danhauer. Accordingly, Proxibid is also entitled to the immunity provided under the CDA, and Plaintiffs may not pursue the tort claims in their Complaint against Proxibid.
Yet another reminder that Section 230 safe harbors still apply, even if the service provider is somewhat more involved. There are, obviously, some limits to that involvement, but if it's merely moderating, or following the requests of users, it appears that the safe harbors remain -- as they should.
It's always impressive when you see lawyers file lawsuits which suggest they're not entirely familiar with the law. Eric Goldman points us to a lawsuit filed by a Nevada lawyer, Jonathan Goldsmith, suing Facebook and two Facebook users for defamation, due to some mean Facebook comments.
Of course, Section 230 clearly shields Facebook from the actions of its users in defamation cases. As a lawyer, aren't you supposed to be aware of the law? There are some other oddities in the lawsuit as well, such as claiming both slander and libel for the Facebook comments. Normally, slander applies to spoken comments, libel to written. Now, I recall at least one case (in the UK, not the US), where the court suggested online forums were more like slander than libel, but it still seems a bit odd to see it in this case. And, either way, he claims both slander and libel. There are a few other oddities as well, including a claim that the mean comments on Facebook caused him to "seize" advertising on the site. I'm assuming he meant "cease"?
Yet again, it seems like sometimes even when people say mean stuff about you online, which might not be true, it's better to just shrug it off than filing a lawsuit, drawing a lot more attention to the mean things... and anything else that might get attention.
We've recently had our own run-in with a ridiculous threat of a libel lawsuit from the UK, in what appeared to be a clear attempt to intimidate us, rather than an action with any serious legal basis. As we mentioned in that post, thankfully, the US recently passed an important and broad anti-libel tourism law that protects US websites against overreaching foreign libel claims that go against US laws, such as Section 230 safe harbors for service providers.
So, we're always interested in hearing about other similar threats, and here's a doozy that gets more ridiculous the further you read. It starts off with just such a libel tourism attempt, but then devolves into a true comedy of threats and errors, involving misaddressed threats, ridiculous claims of confidentiality and implied threats of copyright lawsuits on publishing the letters that reveal this comedy of errors. Make sure you read through the whole thing.
It starts out with a NY-based company, GDS Publishing, who was apparently upset about the complaints about its telemarketing practices found on the website 800notes.com, specifically calling out the NY-based phone number (212 area code) used by GDS. After GDS complained to Julia Forte, who runs the site, she removed the comments that violated the site's terms of service, but left plenty of the other (non-violating, but still complaining) comments up, which GDS apparently did not appreciate. It then had a UK law firm threaten to sue her in the UK under UK libel laws. Now, it is true that GDS's parent company is based in the UK, but Julia and 800notes are in the US, and thus protected by Section 230 and the libel tourism law. And, while it doesn't even matter, given 800notes' status, this was about actions by the subsidiary, which is incorporated in New York, and all of the actions and complaints concerned that NY company (using a NY phone number).
Already, this seems like a classic case of over-aggressive lawyering, perhaps from someone unaware of the SPEECH Act, or from someone who simply hoped to intimidate an American website into compliance. However, the story gets even more ridiculous. First, the lawyer in question, one Leigh Ellis of Gillhams Solicitors LLP in the UK, apparently made a typo when copying the email address of Ms. Forte from the whois page for 800notes, resulting in him sending the initial complaint to a totally different Julia Forte (who happened to be a lawyer) based in NY, rather than the 800notes Julia Forte (who happens to live in North Carolina). Oops.
After the NY lawyer Julia Forte told Ellis of his mistake, rather than recognizing that he made a mistake, Ellis appears to have both emailed the same (wrong) Julia Forte again, and interpreted the email from the NY lawyer Julia Forte to mean that the North Carolina 800notes Julia Forte was denying her association with the site -- even though the NY lawyer Julia Forte told Ellis that he had the wrong email address. So, instead of correcting the mistake and emailing the correct Julia Forte, he sent a letter to 800notes' webhost, SoftLayer Technologies (pdf), claiming that the content on 800notes was defamatory, and saying that Forte "has informed us that she is not associated with the Website," and asking SoftLayer to confirm that Ms. Forte really is the account holder, and also demanding that SoftLayer take down the content GDS doesn't like, or face defamation charges itself.
Ah, the comedy of errors. Of course, it was the wrong Julia Forte who accurately denied being associated with the website. The correct Julia Forte has no problem standing behind her site. Thankfully, SoftLayer is well aware of the legal issues involved here, and well aware of Section 230 and the SPEECH Act that protects it, as well as Julia Forte, so it passed along the letters to Forte's lawyer, Paul Levy. If only the comedy of threats and errors ended there. But, it did not...
Levy responded in great detail to Ellis (pdf), highlighting the specific legal realities of Section 230 and the SPEECH Act, as well as detailing Ellis' own mistakes in emailing the wrong person. You should read the letter. It gets better and better as it goes along (or just skip to page 3):
Comedy of threats and errors over? Not by a long shot. After receiving Levy's letter, as well as an email correspondence in which Levy noted plans to publish Ellis's original letter to SoftLayer Technologies, Ellis' firm, Gillhams tried to warn Levy that publishing the original letter would be "unlawful" (pdf). Specifically, the law firm claims that since the original letter said "NOT FOR PUBLICATION" across the top, he had no license to publish it, and since all of their emails have a boilerplate "confidentiality notice" at the bottom, it prevents publication.
Of course, such things are simply not legally binding, leading Levy to (1) question whether or not Gillhams is charging GDS Publishing by the hour and (2) highlight how Gillhams appears to have misstated its own confidentiality clause and gotten confused over who might hold any copyright (and, thus, license-rights) to the letter in question. His response is here (pdf), though I'll restate the relevant paragraphs:
My question about whether you have been charging GDS Publishing by the hour
is relevant because, in the criticism of your conduct that I am drafting for
publication, I am trying to figure out whether your misadventures in trying to send
correspondence to Forte, and your subsequent threats directed to SoftLayer,
reflect only incompetence, or rather reflect an effort to run the meter at your
client's expense. I'd be grateful, therefore, if you would respond to my question.
Finally, I note your email referring to confidentiality notices that are contained in
your emails. Even if the emails purported to forbid publication, such notices do
not override fair use. Sad to say, however, you have misstated the fine print in
your own emails. I invite you to re-read that text. The disclaimer says that the
emails "may" contain privileged or confidential information, not that they do. I see
nothing in the emails that merits treatment as either privileged or confidential in
any event. Moreover, they instruct the recipients not to disseminate the emails if
they are NOT the intended recipients. By negative implication, these notices tell
the intended recipients that they ARE free to disseminate the emails. Your office
deliberately sent the emails to me, thus effectively giving me permission to
publish them.
Your letter also states that your "clients" are reserving their rights about the
publication of your letter and emails. However, I see no reason to believe that
your clients own the copyright in your letters. The owner would be you and/or
your firm. If you choose to try to enforce the copyright by raising a claim of
infringement, you will have to do so in your own name.
As Levy notes in his blog post on the whole situation: "I invite Ellis to bring suit here in the United States and show us that he is right. Ellis is also invited to use the comment feature to reply."
