stories filed under: "ex parte"

Bob Murray Sends Judge Whiny Letter Saying That Losing Case To John Oliver Is Making People Say Mean Things To Him

from the consume-defication,-bob dept

Mon, Mar 26th 2018 12:05pm — Mike Masnick

Thought the whole Bob Murray / John Oliver story was over with the judge making it clear Murray had no case and preparing to dismiss the whole thing? It appears that Murray cannot let it go. As first spotted by YouTubing lawyer Leonard French, Murray (not his lawyers) sent the judge a letter whining about the whole thing (check out French's video for a wonderful dramatic reading of the letter):

Or just go check out the letter yourself (kudos to French for getting the document and posting it and doing the dramatic read, shame on the West Virginia courts for not having web-accessible electronic records, and a plea to French to stop putting lame ugly watermarks on public documents). Of course, the reason the letter is public is that (1) parties are not supposed to talk to the judge about their case without telling the other side, and (2) parties are not supposed to communicate with the court directly, rather than via their attorneys. And, thus, the judge added Murray's letter to the docket in the case, along with a bit of a benchslap:

This date the Court received the attached unsolicited missive from the Plaintiff, Robert E. Murray. As it does not appear Mr. Murray forwarded copies of the same to Defense Counsel, pursuant to Rule 2.9(B) of the West Virginia Rules of Judicial Conduct, the Court has copied and enclosed the correspondence herein and filed the original in the Court's file.

Mr. Murray's letter is an improper ex parte communication with the Court, therefore the request to reconsider the Court's decision cannot and will not be entertained.

The Court respectfully requests Plaintiffs' Counsel to advise Mr. Murray against future ex parte correspondence which could result in sanctions against the Plaintiffs in this matter.

In other words: don't do this shit, Bob.

But, of course, the real joy is in Murray's letter itself, which is absolutely hilarious. It starts off talking about how disappointed he is in the ruling, which, sure, is understandable but it's totally improper to send a personal letter to the judge about it.

We are deeply disappointed to learn that you intend to dismiss our lawsuit against Home Box Office, Inc., Time Warner Inc., Mr. John Oliver, and others (collectively "Defendants"). We will appeal that decision in due course.

Right. If you (stupidly) decide to appeal this, your lawyers should appeal it in due course. Reaching out to the judge on your own is... not part of that "due course."

The jobs of our 6,000 coal miners depend on me and my reputation.

Right, then maybe you shouldn't have done a bunch of things that caused John Oliver and many others to mock you. And those mockable things include suing John Oliver for mocking you in the first place. Because the "harm" to your reputation was caused by you -- not John Oliver. There is no right in this country not to have people mock you, and considering how frequently Murray seems to be flag waving about how proud he is to be an American, he might want to take some time to read the First Amendment of the Constitution.

So, if 6,000 coal miner jobs really depend on your reputation (which, also: citation needed), then perhaps the first thing you should do is improve your reputation (pro tip: sending a hilariously dumb letter to the judge in your case does the opposite of improving your reputation).

My name is on the Company, and I am the one who our 140 lenders, our utility customers, the regulators, and the public look to in order to keep these jobs. You have enabled the Defendants to further destroy our miners' families. We write you today to inform you of the continued personal attack and harassment by the Defendants in this case.

If your lenders and customers bail because John Oliver made fun of you, perhaps there are larger issues at play. And, of course, Murray presents no evidence that any such lender, customer, regulator or anyone else has done anything to the company as a result of Oliver's story, or the ruling in this case.

As for "continued personal attacks," again I have to point you to the First Amendment. Personal attacks are protected. Making fun of you is protected. Telling you to "eat shit, Bob" is protected. This isn't even close. Telling the court that just told you such things are protected that such "personal attacks" have continued is not a compelling argument. It suggests someone is acting like a sore loser without even understanding why he lost.

Just because you feel bad, Bob, it doesn't make it illegal.

Indeed, just yesterday, the Defendants aired worldwide the enclose attack on the undersigned and our Compay, whereby John Oliver taunted us, once again, stating "Eat Sh-t Bob" and announcing that, once your order is issued, he will "gloat" and he will be "rubbing it in the face of the person that lost over and over again."

Oooooooooooooh. He taunted you again. I mean, that's positively Pythonesque, and we all know how King Arthur v. French Knight turned out, don't we?

This clearly demonstrates the vindictiveness and intentional destruction that the Defendants have caused.

No. It means that you were mocked, had such thin skin that you sued in a case that you quickly lost, and thus were called out on filing a bad case (pretty mildly too, frankly). It doesn't show "vindictiveness." You know what shows vindictiveness? Suing a television comedian for reporting on your antics because you don't like how you were portrayed. And, really, if anyone's trying to "destroy" anyone, I think that honor must go to the person who sued someone for making fun of them, demanding "general damages," "special damages," "punitive damages," "attorneys' fees" and "a permanent injunction" against the person who made fun of you.

It shows that these attacks will continue in perpetuity, as a result of your order.

No, not as a result of the order. As a result of you doing silly, mockable things up to and including filing a lawsuit over someone expressing their opinion that things you did were silly and mockable.

I am a dying old man, but our employees will pay for your decision.

Nice baseless appeal to emotion. But, of course, if you're dying, then how does your earlier statement about how all these employees relying on your reputation for their jobs make sense? Does that mean once you die they're all out of work? If so, isn't that a bigger threat to their jobs?

Further, since your ruling, we have been subjected to multiple insulting and threatening email and telephone messages, including these: "BOB, KISS MY A--"' "Hey Bob, I guess John Oliver f---ed you in your a--. You are a real evil piece of s--t"; "Consume defecation, Bob."; "What an old and selfish c--t of a human being. You and your industry are no longer relevant and the entire world knows it."; "Congratulations on having HBO make you look like a big fat lardass loser in court. Idiot.;" And "Ha ha you fat pig, you lost your lawsuit... burn in hell dr. evil." This is a very small sampling of the flagrant and extremely damaging personal attacks that we continue to receive on a daily basis.

First off, Bob, thank you for sharing those. We never would have seen them otherwise. I'm assuming that Bob self-censored the dashes in the curse words, which is nice of him. But, really, the "consume defecation, Bob" statement is a really tremendous work of art.

Oh, and Bob, defamation is not "people made fun of me and I'm sad." It requires false statements of fact made with actual malice. That's not what's happening. And you don't even bother to allege that's what's happening, because it isn't.

Accordingly, we respectfully request that you reconsider your decision to dismiss this lawsuit and allow this case to proceed on the merits.

What merits? There are no merits, which is what the judge has already made clear.

Indeed, this lawsuit is extremely important to our employees, who rely on Murray Energy and me for their continued livelihoods, and to our lenders, customers, and suppliers who depend on our integrity and performance. We cannot sit idly and allow our jobs and livelihoods to be destroyed by the cruel and baseless attacks of these defendants.

Wait. This lawsuit -- in which a key part is about John Oliver quoting one of your employees writing "Eat Shit Bob" on a bonus check he was voiding over safety concerns -- is "important" to your employees? You sure about that, Bob?

And, again, it's not the people making fun of you that's "destroying livelihoods."

The ACLU of West Virginia's Legal Director, Jamie Lynn Crofts, put out a nice statement in response to all of this:

“Other than the fact that Bob Murray’s case against John Oliver is a ridiculous attempt to quell speech by abusing our legal system, it really is the gift that keeps on giving. With the disdain Mr. Murray has shown for our constitution and our legal system, I’m not surprised that he would also improperly try to influence a judge in this way (or with such a hilarious letter). Unfortunately for Bob, everything John Oliver has said on his show was and continues to be protected speech. It is, in fact, legal for anyone to say, ‘Consume defecation, Bob.'”

Yes, all together now: Consume Defecation, Bob.

Filed Under: anti-slapp, bob murray, defamation, ex parte, john oliver, reputation, slapp
Companies: bob murray energy, hbo

After Microsoft Returns All Of No-IP's Seized Domains And Settles Lawsuit, No-IP Is Still Angry

(Mis)Uses of Technology

from the reasonably-so dept

Fri, Jul 11th 2014 9:58am — Mike Masnick

We recently wrote about Microsoft going to court and convincing a judge to (with no adversarial hearing) allow it to seize a bunch of domain names from No-IP, redirecting all traffic to them through Microsoft's own servers. Those servers quickly encountered problems, meaning that many people who relied on No-IP's dynamic DNS system, found that they couldn't access their sites. Microsoft later blamed this on a "technical error" but it still appeared that the seizure effort was a gross abuse of the legal process. Remember, in the lawsuit that allowed Microsoft to seize the domains, it had claimed that No-IP parent Vitalwerks had been breaking the law.

Either way, it appears that Microsoft has now returned all the domains to No-IP and settled the lawsuit. According to a joint statement by the companies:

Microsoft has reviewed the evidence provided by Vitalwerks and enters into the settlement confident that Vitalwerks was not knowingly involved with the subdomains used to support malware. Those spreading the malware abused Vitalwerks’ services.

Microsoft identified malware that had escaped Vitalwerks’ detection. Upon notification and review of the evidence, Vitalwerks took immediate corrective action allowing Microsoft to identify victims of this malware. The parties have agreed to permanently disable Vitalwerks subdomains used to control the malware.

In the process of redirecting traffic to its servers for malware detection, Microsoft acknowledges that a number of Vitalwerks customers were impacted by service outages as a result of a technical error. Microsoft regrets any inconvenience these customers may have experienced.

No-IP for its part has also put out a more detailed explanation for how all of this happened. It's worth reading. It also takes apart a number of Microsoft's claims, including the company's claim that, prior to returning the domains, it had "fixed" the problems people were having accessing their sites. No-IP reiterates that if Microsoft had just contacted the company first, it would have taken down the abusive customers. Clearly, even though the situation was settled, No-IP is reasonably upset that it happened in the first place:

While we are extremely pleased with the settlement terms, we are outraged by Microsoft’s tactics and that we were not able to completely and immediately restore services to the majority of our valuable customers that had been affected.

At No-IP, we are firm believers that the Internet should be free and open. We will continue to fight for the rights of our users and our business. Moving forward, we have provisioned a solution that will reduce the risk of domain seizures.

Later it notes:

We hope that Microsoft learned a lesson from this debacle and that in the future they will not seize other companies domains and will use appropriate channels to report abuse.

Wouldn't that be nice.

Filed Under: domain seizures, dynamic dns, ex parte
Companies: microsoft, no-ip, vitalwerks

31 Comments

Microsoft Insists That No-IP 'Outage' Was Due To A 'Technical Error' Rather Than Gross Abuse Of Legal Process

Say That Again

from the not-so-sure-that's-true... dept

Tue, Jul 1st 2014 4:03pm — Mike Masnick

Earlier today, we wrote about a ridiculous situation in which Microsoft was able to convince a judge to let it seize a bunch of popular domains from No-IP.com, the popular dynamic DNS provider, routing all their traffic through Microsoft servers, which were unable to handle the load, taking down a whole bunch of websites. Microsoft claimed that this was all part of a process of going after a few malware providers, though No-IP points out that Microsoft could have easily contacted them and the company's fraud and abuse team would have cut off those malware providers.

A little while ago, Microsoft PR emailed over the following, somewhat questionable claim from David Finn, the company's Executive Director and Associate General Counsel, Digital Crimes Unit, in which he claims that all of that collateral damage was merely a "technical error" and it's all good now:

“Yesterday morning, Microsoft took steps to disrupt a cyber-attack that surreptitiously installed malware on millions of devices without their owners’ knowledge through the abuse of No-IP, an Internet solutions service. Due to a technical error, however, some customers whose devices were not infected by the malware experienced a temporary loss of service. As of 6 a.m. Pacific time today, all service was restored. We regret any inconvenience these customers experienced.”

I'm sorry, but that excuse just doesn't cut it, given the legal documents that we posted, which clearly showed that Microsoft made No-IP's parent company, Vitalwerks, out to be a part of a criminal conspiracy. The judge specifically said:

There is good cause to believe that, unless the Defendant Vitalwerks is restrained and enjoined by Order of this Court, immediate and irreparable harm will result from its ongoing violations the Anti-Cybersquatting Consumer Protection Act (15 U.S.C. § 1125) and the common law of negligence. The evidence set forth in Microsoft’s TRO Motion, and the accompanying declarations and exhibits, demonstrate that Microsoft is likely to prevail on its claim that this Defendant has engaged in violations of the foregoing laws through one or more of the following:
a. Leasing to Malware Defendants No-IP sub-domains containing Microsoft’s protected marks; and
b. Negligently enabling Malware Defendants to participate in illegal acts, and failing to take sufficiently corrective action to stop and prevent the abuse of its services, all of which harms Microsoft, Microsoft’s customers, and the general public.

That's not a "technical error." That's Microsoft blatantly making an extreme claim that convinced a judge to hand over a whole bunch of domain names without any kind of due process or adversarial hearing. While Microsoft may have then had a technical error on top of that, what kicked this off was a very, very big legal error.

Filed Under: domain seizure, dynamic dns, ex parte, malware, technical error
Companies: microsoft, no-ip, vitalwerks

44 Comments

Dangerous Ruling: Judge Lets Microsoft Seize & Redirect No-IP Domains Without Notice

(Mis)Uses of Technology

from the breaking-the-internet dept

Tue, Jul 1st 2014 9:58am — Mike Masnick

Microsoft posted a somewhat self-congratulatory blog post yesterday about how it was taking on a "global cybercrime epidemic" and effectively targeting systems used by malware. Of course, part of the details were that Microsoft totally misrepresented the nature of No-IP and how dynamic DNS solutions work. No-IP's parent company, Vitalwerks Solutions, was painted by Microsoft as being something of an accomplice to the malware epidemic, allowing Microsoft to convince a judge to seize a bunch of very popular No-IP domains without any notice or immediate recourse. Microsoft claims that it's just stopping malware, but the collateral damage from grabbing those domains is immense. According to No-IP:

Unfortunately, Microsoft never contacted us or asked us to block any subdomains, even though we have an open line of communication with Microsoft corporate executives.

We have been in contact with Microsoft today. They claim that their intent is to only filter out the known bad hostnames in each seized domain, while continuing to allow the good hostnames to resolve. However, this is not happening. Apparently, the Microsoft infrastructure is not able to handle the billions of queries from our customers. Millions of innocent users are experiencing outages to their services because of Microsoft’s attempt to remediate hostnames associated with a few bad actors.

As No-IP further notes, Microsoft could have easily contacted them, and the company would have taken action:

Had Microsoft contacted us, we could and would have taken immediate action. Microsoft now claims that it just wants to get us to clean up our act, but its draconian actions have affected millions of innocent Internet users.

Vitalwerks and No-IP have a very strict abuse policy. Our abuse team is constantly working to keep the No-IP system domains free of spam and malicious activity. We use sophisticated filters and we scan our network daily for signs of malicious activity. Even with such precautions, our free dynamic DNS service does occasionally fall prey to cyber scammers, spammers, and malware distributors. But this heavy-handed action by Microsoft benefits no one.

Except, instead, it appears that Microsoft went to court (secretly, without telling Vitalwerks/No-IP) and convinced the judge that the company itself was violating the law. And the court bought it:

There is good cause to believe that, unless the Defendant Vitalwerks is restrained and enjoined by Order of this Court, immediate and irreparable harm will result from its ongoing violations the Anti-Cybersquatting Consumer Protection Act (15 U.S.C. § 1125) and the common law of negligence. The evidence set forth in Microsoft’s TRO Motion, and the accompanying declarations and exhibits, demonstrate that Microsoft is likely to prevail on its claim that this Defendant has engaged in violations of the foregoing laws through one or more of the following:
a. Leasing to Malware Defendants No-IP sub-domains containing Microsoft’s protected marks; and
b. Negligently enabling Malware Defendants to participate in illegal acts, and failing to take sufficiently corrective action to stop and prevent the abuse of its services, all of which harms Microsoft, Microsoft’s customers, and the general public.

Given the nature of the ex-parte (without Vitalwerks being able to present its side of the story) proceedings, Microsoft was able to paint the fact that a platform provider (which has a full anti-abuse program), was somehow liable for actions of its users. This flies in the face of a variety of laws and caselaw on secondary liability, which protect the service provider from being held liable for abusive behavior by its users. Yet here, not only did the court ignore all of that, it simply flat out handed over to Microsoft a whole bunch of No-IP's domains (which, clearly, Microsoft was unable to handle), bringing down a big chunk of the web that relied on No-IP's dynamic DNS services.

This seems like a tremendously dangerous move for the internet in a variety of ways. Microsoft needs to take some of the blame. Even if its goal was to stop malware proliferation, there are better ways to do that than to falsely blame No-IP, and to misleadingly represent the service to the court, allowing the domains to be seized and rerouted.

Filed Under: cybercrime, cybersecurity, domain seizure, dynamic dns, ex parte, takedown
Companies: microsoft, no-ip, vitalwerks

US Court Secretly Lets Government Share Megaupload Evidence With Copyright Industry

from the government-copyright-industrial-complex dept

Fri, Dec 6th 2013 7:39pm — Mike Masnick

In the latest in a long list of travesties carried out by the US government in the Megaupload case, apparently it went to the US court handling the case, and without letting Megaupload know, got an ex parte order allowing the government to share evidence from the case with various copyright holders and then to issue press releases about the case. As Megaupload's lawyers point out, the whole thing is a clear due process violation.

The defendants have been indicted, their assets have been frozen, their business has been destroyed, and their liberty has been restrained. Given these constraints, it is unclear what evils the Government fears defendants will inflict if provided notice of the Government’s submission, beyond having Defendants’ counsel come into court to make opposing arguments.

Basically, Megaupload's lawyers are asking to be a part of this process, since it appears that the government wanted (and the court allowed) to cut them out. As Megaupload's lawyers note, allowing the government to sort through and cherry-pick evidence to share, without any context or potential additional exonerating information, is a clear due process violation.

“The Government’s request also substantially prejudices the defendants in the case. Permitting the Government to widely disseminate a one-sided, cherry-picked set of facts threatens to improperly infect the jury pool before defendants are afforded any opportunity to present their side of the story.”

Apparently part of the issue for the original filing to reveal this information was that some copyright holders are getting antsy that as the case drags on, they won't also be able to file civil cases against Megaupload before the three-year statute of limitations expires. However, as Megaupload's lawyers point out, there is no urgency here since the government itself made no move to share this information over the past two years. If it really wanted to share the information it had ample time to make the request and allow Megaupload's lawyers to review and take part in the process, rather than trying to route around them entirely.

I'm guessing the recent successes against IsoHunt and Hotfile may have contributed to the timing as well. The MPAA pretty clearly thinks it can use those two cases to go after Megaupload as well, outside of the criminal case which will continue.

Filed Under: civil case, copyright, doj, ex parte, kim dotcom
Companies: megaupload

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Bob Murray Sends Judge Whiny Letter Saying That Losing Case To John Oliver Is Making People Say Mean Things To Him

from the consume-defication,-bob dept

After Microsoft Returns All Of No-IP's Seized Domains And Settles Lawsuit, No-IP Is Still Angry

from the reasonably-so dept

Microsoft Insists That No-IP 'Outage' Was Due To A 'Technical Error' Rather Than Gross Abuse Of Legal Process

from the not-so-sure-that's-true... dept

Dangerous Ruling: Judge Lets Microsoft Seize & Redirect No-IP Domains Without Notice

from the breaking-the-internet dept

US Court Secretly Lets Government Share Megaupload Evidence With Copyright Industry

from the government-copyright-industrial-complex dept

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