Bold: Matthew Storman, Sans Lawyer, Counter Sues Nintendo For False Allegation Of Copyright Infringement

from the rom-com dept

The ongoing fight between Nintendo and RomUniverse continues! While most of the targets of Nintendo's ire in its war on ROM sites folded to the company fairly quickly, RomUniverse's Matthew Storman boldly chose to fight in court. That led to Nintendo suing the site for copyright infringement. Storman attempted to crowdsource his legal defense, failed at that, and has been fighting this battle without legal representation. That likely explains the site's lame argument that somehow first sale doctrine makes the Nintendo ROMs on its site non-infringing, as though owners of game cartridges could copy the content to the site and resell or give them away there. The court saw through Storman's argument and allowed the trial to move forward.

Which brings us to the present, in which Storman has not only responded to the lawsuit by claiming, again, that first sale doctrine protects him, but has now added a claim that he had no idea infringing files were on the site at all, and has demanded that Nintendo pay him for false claims of infringement. This reply was supposed to be due to the court in January, but the judge delayed that due date... so that Storman could attend a Federal Pro Se Clinic, where he got advice on how to represent himself.

After the brief delay, Storman filed his answer to the complaint at the California federal court. Still without an attorney, he maintains his innocence and denies all allegations of piracy and infringement.

The site operator states that he is unaware of any infringing content that was uploaded to the website. And if there is any, these uploads may be legally protected by the first sale doctrine.

This is not going to work. Claiming ignorance as to the infringing material is fairly laughable. The first sale doctrine argument is a likely loser as well. And the fact that RomUniverse sold memberships in order to get around download limits makes it so as Storman was profiting off of the infringing material. That Nintendo didn't request takedowns of infringing ROMs, giving Storman a chance to comply and stay on the right side of the law, is annoying, but it doesn't suddenly make his other legal arguments any more valid.

Storman goes on to claim, perhaps not entirely without merit, that RomUniverse is actually good for Nintendo.

In an attempt to turn the tables, Storman argues that Nintendo profited from his site. RomUniverse.com and the associated NDSUniverse.com, serve as free advertising vehicles for the gaming company which generated profit from it, for which the site owner never received a penny.

“Copies on the Website originally from Nintendo when seen by users is a positive advertising asset to Nintendo. It is part of an implied contract with Nintendo over the last 10 years. This advertising asset can be calculated and measured by Nintendo in cooperation with Defendant,” Storman adds.

It's an argument we've made ourselves and it probably has some legs. The problem here is that there is no implied contract and Nintendo is well within its rights to sue for copyright infringement, even if that infringement has benefits for Nintendo.

The real bonkers part of this, however, is Storman's counterclaim for damages from Nintendo.

Instead of compensating Nintendo, Storman wants the gaming company to pay up instead. He demands $150,000 per copyrighted work for the false allegations of infringement, as well as $2,000,000 for each false counterfeiting claim.

On top of that, Storman also wants Nintendo to “permanently approve all copying, distributing, selling, performing, displaying, playing, or otherwise using any copy of an [Nintendo] copyrighted work, or any derivative thereof.”

I don't even know where to begin. Storman's play isn't going to work. Whatever lessons he learned in the Pro Forma classes, his actions aren't a good advertisement for those classes. RomUniverse, whatever its benefits to Nintendo, pretty clearly was a purveyor of infringing material. The site made money off of it. Nintendo, whatever you think of the company, is well within its rights here.

It'd be best if Storman would realize he's digging his hole deeper and cut his losses.

Filed Under: copyright, first sale doctrine, matthew storman, pro se, roms
Companies: nintendo, romuniverse

Man Sues Twitter For $1 Billion Claiming His Account's Suspension Violated His Right To Worship President Trump As A Demigod

from the suing-Twitter-to-own-the-liberal-construing-of-his-complaint dept

Several stupid lawsuits have been brought against social media companies. Some feature actual lawyers (but mostly from the same law firms) helping clients throw money away on allegations that Twitter and Facebook are at least indirectly responsible for terrorist attacks.

Others also use real lawyers, but lawyers willing to misread precedent to declare large social media platforms "public squares" and advance some very questionable arguments about First Amendment violations.

Then there's everyone else: the kind of people who think being temporarily suspended from a platform is a billion dollar Constitutional violation. (h/t Eric Goldman)

In this lawsuit, Adrian Rangel alleges his brief suspension violated the Constitution harder than it's ever been violated before. Rangel's Twitter account is no longer suspended and it's not because he emerged victorious from this lawsuit. It has already been tossed by the federal court.

Rangel's short-lived lawsuit [PDF] asked for $1 billion in damages for his brief suspension, which he alleges violated his First Amendment right to yell "HANG THEM ALL" in a crowded platform. While we can agree Rangel's heated response to "topics from the mundane to the comical" probably should not have resulted in a suspension, we can also agree Twitter's moderation call did none of the following:

Plaintiff contends that by suspending Plaintiff's account religiouserpico Defendants Twitter Foundation and Vijaya Gadde violated Adrian Rangel's constitutional rights to ( (1) freedom of speech, (2) freedom of expression, (3) freedom of religion, (4) freedom of assembly, (5) freedom against unlawful seizure, (6) due process, (7) substantive due process and (8) equal protection of the United States Constitution.

This despite Rangel's claim on his own Twitter feed that he is a "CONSTITUTIONALIST."

Rangel logically points out his "HANG THEM ALL" tweet was not a threat. It targeted no one and was a hyperbolic expression of Rangel's general exasperation with the status quo. (I'm construing his complaint liberally. Rangel doesn't actually reference the tweet his responded to, but judging the rest of the complaint, it probably had something to do with liberal politicians.)

Now, while you might be familiar with misguided assertions that moderation by private platforms violates First Amendment rights (including freedom of assembly), you're probably unaware that account suspensions also violate religious rights.

Before the Defendants suspended Plaintiff's account, Plaintiff used Twitter to proclaim his religious beliefs to the public of being a Born Again King James Bible Only Christian. Plaintiff included the being Born Again King James Bible Only Christian in his Twitter profile. ln addition, Plaintiff followed and was followed by a number of people on Twitter - one group being people of like-minded religious beliefs.

Tangentially, Plaintiff contends that President Donald J Trump was nothing short of miraculously elected by God into the Presidency; most specifically because of Donald Trump's victory in light of the tremendous media, political and social resistance to his election to the Presidency of the United States. Plaintiff used Twitter to support what Plaintiff contends is Donald J Trump's nothing short of miraculous election to the Presidency. As such, Plaintiff's religious beliefs are intertwined with Plaintiff's support of Donald J Trump as President of the United States of America.

Recourse options are limited for those who feel their cult-like admiration of elected leaders has been harmed by moderation efforts. "Limited" as in "zero." There are no options available to someone who has managed to "intertwine" their belief in God with their worship of a president.

Going from that surprising tangent, Rangel alleges the appeals process provided by Twitter doesn't approach the standards of due process provided by the Constitution. Of course they don't. They never will. Only the government has this obligation, much like the government's monopoly on First Amendment rights violations. The same goes for the Equal Protection clause, which is invoked in Rangel's lawsuit to make a perfectly valid point.

Plaintiff further contends that Defendants Twitter Foundation and Vijaya Gadde have illegally embarked upon an illegal circumvention of the United States Constitution in attempting to impose on United States citizens the legal cultures of foreign countries i.e. India, China, Russia, Germany, United Kingdom etc. Many of these foreign countries were once or still are considered third world countries because of their former or present totalitarian subjugation or colonizing regimes.

Unfortunately, valid points aren't the same thing as cognizable claims and the court has no jurisdiction or duty to prevent Twitter from aligning moderation efforts with foreign laws. I agree with Rangel that Twitter should not be humoring authoritarian regimes by complying with removal notices and/or suspending accounts, but a billion dollar lawsuit claiming a private company violated Constitutional rights isn't the place to make this argument.

Since there's no moving forward with the case, there will be no discussion of Section 230 immunity, which would have seen this case dismissed if Twitter (a "California nonprofit," according to the plaintiff) had needed to file a response. Love it or hate it, social media platforms can moderate as they please without violating Constitutional rights. Understanding this simple concept would save a lot of people time and money.

Filed Under: 1st amendment, account suspension, adrian rangel, content moderation, freedom of religion, freedom of speech, lawsuits, pro se, section 230
Companies: twitter

Guy Sues Facebook For Violating Basically All The Laws, For Shutting Down His Account And For Everything Else Bad Facebook Has Ever Done

from the not-how-it-works dept

"This case is likely one of the first filed in this Court that addresses the relationship between the First Amendment and the Internet-based [Facebook] communications platform" claims a new lawsuit filed against Facebook by a guy very angry that his account got shut down (case first spotted by John Roddy). Suffice it to say that this is not one of the first such lawsuits. Many have been filed, and literally every single one of them has failed. Facebook is not bound by the First Amendment. Courts are clear on this. Over and over and over again, courts have been clear on this. But this lack of understanding of what's come before is just the first of many fun things in this 174 page pro se lawsuit. The complaint is so long that only the first 91 pages were filed as the official complaint, and the rest were put in the docket as an "attachment."

The complaint is... something. It goes on and on about every historical Facebook scandal, going back nearly a decade, talking about the FTC consent decree, Cambridge Analytica, privacy questions, Elizabeth Warren's proposed plan to break the company up, before finally getting around to the reason he's actually suing. His account got shut down.

Contrary to FB' s purported mission to connect the entire world, FB blocked Plaintiffs business and personal accounts and by so doing violated Zimmerman's First Amendment right to publish his non-violent, pro-democracy, political views on FB's platform and market his political and non-political books on FB's platform, and in so doing knowingly, recklessly and unlawfully violated Zimmerman's free speech rights and his constitutionally-protected right to participate in free and fair elections as well as his Fourth Amendment privacy rights by willfully allowing third-parties to access his FB user information without seeking Plaintiffs authorization and without his knowledge.

That's in paragraph 77 after many dozens of paragraphs about stuff having nothing to do with the plaintiff, Robert Zimmerman. All the way back in paragraph 38, Zimmerman sets up what appears to be his argument: that in granting him "unfettered" access to its platform, Facebook can never then revoke said access:

FB violated Plaintiff Zimmerman's First Amendment rights by first granting him and his publishing company unfettered access to the FB platform and then unlawfully revoking that access causing Plaintiffs severe economic harm and other injuries.

Because someone will ask, Zimmerman, who describes himself as an author of "three political books" and "a grassroots Democratic candidate for the U.S. Senate," is not alleging anti-conservative bias, because he's at the other end of the traditional political spectrum. He's just claiming that Facebook can't delete his account, and doing so apparently violates more or less all the laws (Randomly, in his description of the parties, Zimmerman tells the court that he was once arrested for trespassing while distributing copies of the U.S. Constitution. It is not clear why anyone, let alone the court, needs to know this).

He then claims that Facebook "aids and abets" election rigging, terrorist activity, organized immigration crime, slavery trafficking, extreme and revenge pornography, incitement of violence, hate crime, harassment, intimidation, bullying, trolling, cyberstalking, sale of illegal goods and services (such as drugs and assault weapons), content unlawfully uploaded to and from prisons, sexting and distributing indecent or sexual images of children under the age of 18, children accessing pornography, children under 13 using dating applications, child sexual exploitation and abuse by pedophiles, distribution of enemy and adversary propaganda and disinformation, advocacy of self-harm, female genital mutilation, and suicide. Oh, and they shut down his account.

Also, the US government is partly to blame (though not a party to the lawsuit):

The U.S. government, much like it did when it failed to assert the dangers of smoking, has entirely failed to take the actions necessary to protect Americans from an unregulated FB.

He also accuses the company of being too big. But, given the above list, that seems like the least of the problems. It's basically a review of the literature of every news article or book that has criticized Facebook ever. Somehow, this is all relevant to Facebook shutting down Mr. Zimmerman's account. A few pages are taken up by reprinting the 2012 FTC consent decree with Facebook (a consent decree now superseded by the more recent one). There's an entire section arguing that Facebook helped sabotage the 2016 election (apparently this is the opposite argument for anti-conservative bias). He implies some sort of conspiracy between Russia and Facebook, which is a new one, even suggesting that perhaps Zuckerberg is a Russian asset who was possibly "compromised before he dropped out of college or shortly thereafter." Really.

At times it's unclear if Zimmerman is suing Facebook for ever letting him have an account... or for shutting down his account that he seems angry he had. I mean, considering the crux of the lawsuit is over Facebook shutting down his account, how is this relevant?

Zimmerman could not have been reasonably expected to know that FB's stored user' information could be plundered, aggregated, targeted and then used for improper and illegal purposes, including the sabotage of the 2016 U.S. presidential elections.

Eventually, on page 110, we finally, finally get to causes of actions. And, it's basically that Facebook violated all the laws. First there's a CFAA claim. Then an unjust enrichment claim. A "violation of Constitutional rights" claim (by which he means the 1st Amendment, even though Facebook is not a state actor).

A fundamental principle of the First Amendment is that all persons have unfettered access to places where they can speak and listen, and then, after reflection, speak and listen once more. A basic rule is that a street or a park is a quintessential forum for the exercise of First Amendment rights.

Yeah, but that's because streets and parks are public spaces, controlled by the government. Facebook is not. As has been established in multiple lawsuits, despite Zimmerman's repeated insistence that "this case is likely one of the first filed in this Court that addresses the relationship between the First Amendment and the Internet-based FB communications platform." Also, he makes a 4th Amendment claim, citing Packingham, which he mistakenly calls Puckingham. But Packingham is not about the 4th Amendment at all. He at least tries to argue that Facebook is a "quasi-state actor" but comes nowhere close to satisfying that standard (as detailed in multiple cases, you need to show that the private party is handling duties normally performed exclusively by the state). This is not that:

FB is also a quasi-state actor because it wields potent monopolistic and political powers and is currently getting ready to launch its own international currency.

[...]

FB Defendants are quasi-state actors because they regulate and control the FB platform that served Plaintiffs and at least a billion other FB users' as a public and private communications platform.

He does allege "discrimination" and "bias" but... apparently it's just discrimination against Zimmerman himself.

FB Defendants discriminated against Zimmerman by blocking his unfettered access to his FB accounts for no expressed substantive reason, thus unlawfully censoring Plaintiff's political messaging, disallowing Zimmerman's communications with his thousands ofFB "Friends," thus denying Zimmerman his right to express and promote his political and non-political ideas and to otherwise advertise and market his political and non-political books and to his FB "Friends" and others.

Back to the claims in the lawsuit: after the "constitutional" stuff, there's a "breach of implied covenant of good faith and fair dealing." Then invasion of privacy. Civil conversion, because, why not? Negligence and gross negligence (covering all the bases). Negligent and/or fraudulent misrepresentation. Breach of contract. Willful infliction of emotional distress. Common civil law conspiracy. That one's interesting. He argues that Facebook conspired with the Trump campaign, Robert Mercer and Russian officials. Kinda funny at the same time Trump is claiming anti-Trump bias on Facebook, this guy is accusing them of conspiring to steal the election. More claims: "Deceit by concealment or omission." Fraud. Willful misrepresentation. And, eventually, on "count 15" we get Ken White's favorite: Civil Rico Conspiracy (It's Not Rico, Dammit). But he's not done yet. Violation of the Stored Communications Act/ECPA. That's it on the federal claims. He then repeats a bunch based on California state laws.

Look, I get being mad at Facebook over lots of stuff, and especially mad that your account got deleted. But, that doesn't give you anything to sue over. Still, if you really do want a slightly incoherent rant about everything bad Facebook has ever done, Zimmerman's got you covered. I expect this will get tossed out in short order.

Filed Under: free speech, pro se, robert zimmerman, section 230
Companies: facebook

Libel Lawsuit Has A Bunch Of Crazy Ideas About How Section 230 Immunity Works

from the and-RICO-too! dept

If you want a masterclass in misunderstanding pretty much everything about Section 230 of the CDA, this libel lawsuit -- filed by a massage business owner against a Redditor, Reddit, and a few board members -- will fill this really weird hole in your life. I won't judge. But I will ask questions. Judgmental questions. (h/t Eric Goldman)

Also, it's a RICO lawsuit.

There's a lot to unpack here, so we'll start at the top. The plaintiffs claim someone known as "DiggDejected" on Reddit libeled their massage business by claiming… well, the claims aren't exactly clear. The lawsuit claims the disputed content is "libel per-se," but never actually details the content of the disputed posts other than say one of them suggested the its spa parties for kids "gave kids diseases."

The complaint [PDF] complains Reddit has never removed the posts the plaintiffs claim are "illegal" defamation. It also asks the court to ignore the fact that the statute of limitations has run out on some of the content they're suing about. It's that kind of a lawsuit.

The RICO allegations are as bad as you'd expect. Possibly even worse. First, the plaintiffs claim the Redditor, Reddit board members, and the site itself are conspiring to keep this libelous content on the site. That's only part of it, though. There's also a conspiracy theory (in the Alex Jones way, not the "actionable tort" way) presented that says the members of Reddit's board being sued are also involved with Y Combinator, the famous startup accelerator.

Apparently, Y Combinator funded a mobile on-demand startup called "UnwindMe." The plaintiffs claim this company is in direct competition with their company, which also provides on-call massages. This startup is now dead -- the one directly funded by Y Combindator. It was then acquired by Soothe, Inc., another competitor not linked with the defendants, but the lawsuit imagines whatever compensation they obtained from the sale of UnwindMe motivated Reddit's refusal to take down derogatory posts about the plaintiffs and their massage company.

After delivering several paragraphs detailing this highly-attenuated conspiracy theory (and doing irreversible damage to readers' brain cells and patience), the plaintiffs arrive at this conclusion.

The above statements establish that there was a financial and racketeering motive for the maintenance of this post. This could have easily been at the request of Justin Bassett, Alexis Ohanian, or Samuel Altman, or anyone else who was invested in Soothe, in order to prevent our success as a major competing brand to Soothe, Inc. It is quite possible and, in fact, likely, that the other founders of Reddit are also invested in Soothe, Inc., with the potential for racketeering profits hanging in the balance of the success or failure of our competing company.

So... that's the RICO end of it, summarized but probably not clarified. I'm sorry. I tried.

Here's the Section 230 end of it, which has to be read to be believed. And by "believed," I mean proof exists that people are failing to comprehend Section 230 immunity in new and exciting ways.

The first way is to claim that Section 230 immunity for social media platforms shouldn't exist because it prevents plaintiffs from suing platforms for content they didn't create. Seriously.

The purpose of our court system is providing a lawful forum for the redress of grievances. Section 230 of the Communications Decency Act should not, then, be read, in such a manner, that a libeled, or otherwise illegally and unlawfully violated, person, persons, business, or service provided by a business, cannot find suitable legal remedy for provable crimes of libel, and others, with no means of having such harmful statements deleted, retracted, or have anyone whatsoever, held liable for various damages arising from violations of various rules and laws.

Just to be clear: at the federal level, libel is not a crime. Just to be even clearer, Section 230 immunity only prevents plaintiffs like these from suing Reddit over content created by third party users. It does not prevent them from suing the person who posted it. All these plaintiffs have to do is remove every defendant but the one that actually posted the supposed libel and all these "problems" with Section 230 will simply melt away.

But no. There's more wrong to be had. The plaintiffs are right the CDA was enacted to help protect children from online pornography. But everything else is just wrong. The lawsuit actually claims FOSTA and its Section 230 collateral damage was not just instrumental, but essential, to the shutdown and prosecution of Backpage and its owners.

In addition, a more recent law has removed many of the protections afforded by Section 230, in giving specific redresses to persons who have been violated by certain forum type websites. In fact, BackPage.com was literally shut down (actually seized by the federal government "as part of an enforcement action by the [FBI], the [USPIS], and the [IRS] Criminal Investigation Division", without warning, upon passage of the FOSTA act) over third party posting of content to their site on the basis of the newly enacted FOSTA Bill. This bill removes the legal shield for websites that post content created by others, and enables states and victims to obtain redress and recover damages.

This law, specifically, caused the shutdown and seizure of the website backpage.com, which was a known advertising forum for prostitution, human trafficking, and sex slavery, while hiding behind the shield of Section 230. Just as in that instance, the laws should be interpreted as they were designed to be interpreted, and, as stated before, should not allow perpetrators of real crimes to hide behind laws that were never meant to protect them from prosecution for true criminal acts.

This is wrong. Just completely wrong.

The other stuff in there, I assume, alludes to the RICO, but it's impossible to tell since the plaintiffs fervently believe libel is also a criminal act -- something evidenced by all the FBI raids targeting suspected defamers.

Building on the premise that the CDA was meant to protect children, the plaintiffs say Section 230 immunity should be ignored by the court and replaced with some sort of Section 230 protection for the plaintiffs. I can't try to understand this for you. You're on your own.

PROTECTION UNDER SECTION 230 FOR PLANTIFFS, RATHER THAN DEFENDANTS. A Child who has gone to our parties, or a classmate, or friend, of a kid who has attended our parties, may see the post and (wrongly ) believe they, themselves, or their fnend who attended, has contracted a disease. Such is not beyond reasonable,as we host Kids Galleries that the children visit, and we've had thousands of attendees. Such would clearly be traumatic and stress-producing, possibly causing social stigma, and is clearly within purview of the main intent of Section 230. So rather than Defendants being protected. Plaintiffs assert that we, Donn Albano, Heather Miller, Mountainside Diversified,and our brands. Mobile kids Spa Parties and Mountainside Diversified, and websites NJmassages.com, and NJmassage.info, are in fact, the protected parties in this instance.

I guess I can get behind this. I agree the plaintiffs shouldn't be sued for derogatory content posted by Redditors.

The lawsuit ends on a hopeful note though. Well, it actually goes on for a few more paragraphs, including demands for $1 million, immediate and permanent removal of "hateful and harassing statements," and for the judge to order this removal even if it finds Section 230 immunizes Reddit against this lawsuit. But the hopeful note is exactly that: the airing of a wishlist, following the airing of grievances.

It is my hope that this court will understand that there is a lot more going on in this particular case than simply a case of a third party posting a random statement on Reddit, and that this particular case actually seems to involve collusion and conspiracy, in violation of multiple federal laws and statutes, and that even smaller businesses should be protected from predatory companies, whether they are social media sites or other types of sites. Section 230 should not be broadly interpreted in this instance, as it does not apply when conspiracy, as demonstrated herein, has occurred. The CDA was not drafted to serve as a blanket immunity against redress, or a nullification of legal due process.

Ok, then. The "understand" part of this wish is going to need a hell of a lot of hope. This lawsuit, like many other lawsuits (pretty much all other lawsuits, actually) is simply asking for the court to find in favor of its legal theories and punish/reward appropriately. That's fine. But you can't win if you're so completely wrong about the law, as these plaintiffs are.

Filed Under: alexis ohanian, cda 230, defamation, diggdejected, donn albano, heather miller, libel, pro se, rico, section 230
Companies: mobile kids spa parties, reddit, ycombinator

Court To Revenge Porn Bro Suing Twitter: You Agreed To Twitter Picking The Courtroom Every Time You Created A New Alt Account

from the pro-se-at-life dept

Craig Brittain's $1 billion lawsuit against Twitter is still rolling slowly towards its inevitable dismissal. Bringing with him his usual legal expertise -- which includes badly misreading the Knight Institute v. Trump decision and asking for some weird hybrid judgment/injunction/perma-unbanning -- Brittain has so far forced Twitter to… move his case to another venue. (via Eric Goldman)

Twitter invoked the forum selection clause of its terms of service -- terms Brittain agreed to time and time again as he created new accounts only to have them permanently suspended later. The terms say Twitter can move your lawsuit to its preferred venue (California federal court) and if you don't like it, well… you can just not use Twitter and/or sue Twitter.

Brittain's attempt to avoid having his Arizona lawsuit moved to California contains some rather novel legal arguments. First, he claimed Twitter's terms of service were invalid because [checks filing] it doesn't contain the mandatory "option" of arbitration. Here's the court's take [PDF]:

Brittain asserts that the Terms are unconscionable because they contain no arbitration clause and “have changed over time without arbitration.” Doc. 27 at 4. But Brittain cites no legal authority suggesting that Twitter is required to include an arbitration clause in its Terms. Nor has he otherwise shown that the Terms are unconscionable or illusory.

Second, he claimed it would be impossible for him to continue his doomed lawsuit in another state because he has no way of getting to California. It may be true -- and forum selection does tend to create unnecessary expenses for plaintiffs/defendants -- but in this case it isn't because the federal courts are accessible by those with limited travel options.

Brittain asserts that his status makes it “gravely difficult” for him to participate in the litigation. Doc. 27 at 2, 5. He notes that he “is traveling primarily by bicycle and/or public transportation to file, upwards of 40 miles per trip[.]” Id. at 2. But the Northern District of California permits filing by mail, eliminating the need for Brittain to bicycle or use public transportation to file court documents.3 The fact that Brittain is a self-represented, indigent litigant is no basis for not enforcing the forum selection clauses. As noted, the private interests of the parties must be weighed in favor of the preselected forum. See Yei, 901 F.3d at 1087. Brittain has not shown that litigating in California “will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” M/S Bremen, 407 U.S. at 18.

Brittain also claims millions of social media users would cry out at once and be silenced if Twitter was allowed to take Craig's unwinnable lawsuit to California. Brittain asserts… reasons.

Brittain further asserts that enforcement of the forum selection clauses would “contravene a strong public policy of the venue in which the suit was brought,” and “the public policy of . . . the District of Arizona is superior to that of the requested forum.” Doc. 27 at 5. He cites the purported “public interest of over one billion total users,” including “tens of millions who have been censored, deverified, or suspended by Twitter,” but draws no connection between the interests of those alleged users and Arizona public policy.

The court is not swayed.

Twitter notes, correctly, that Arizona public policy favors enforcing forum selection clauses. Doc. 30 at 8. “Enforcement of a forum selection clause such as the one[s] at issue does not contravene any strong Arizona public policy as Arizona courts routinely hold that forum selection clauses are presumptively valid and that the party claiming the oppressiveness or unreasonableness needed to invalidate such a clause must meet a heavy burden of proof.”

Brittain's lawsuit is still alive for the time being. He'll just have to lose it in California, rather than in front of the home crowd.

Filed Under: content moderation, craig brittain, jurisdiction, pro se, revenge porn
Companies: twitter

Court Awards $12,500 For 'Emotional Harm' From Bogus Copyright Lawsuit

from the it's-something dept

Almost a year ago, we wrote about a somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. Paula White did not take kindly to this criticism and sued Johnson... for copyright infringement (though, the details suggest that the decision to sue actually came from White's son, Brad Knight, and White agreed to it at Knight's suggestion). This was because Johnson used video clips and images in her own videos. This seemed like a pretty clear copyright abuse case as it was obviously filed to stop criticism that involved fair use, and not for any legitimate purpose. The case was dismissed, but Johnson countersued for "malicious prosecution." As we noted in our article from last September, Johnson then also filed a separate lawsuit for a DMCA 512(f) abuse claim. If you don't recall, 512(f) is the (mostly toothless) part of the DMCA that bars "misrepresentations" in DMCA claims. So, there are two parallel cases going on, brought by Johnson (representing herself, without a lawyer), against Paula White and her various entities, for filing a bogus copyright claim against Johnson.

That case around 512(f) is still going as far as I can see. However, the malicious prosecution case has now concluded with the court awarding Johnson $12,500 for the "emotional harm" from the bogus copyright claim. Of course, before this happened, as the court itself says (and I'm not joking): "all hell broke loose." That is directly from the court's ruling back in January, which details a convoluted mess of discovery fights and bad behavior. It's not at all worth going into what a complete and utter mess it became, but feel free to check out that link if you want. The short summary, though (quoting the court) is that Paula White Ministries "have exhibited a patent disregard for the Court’s discovery orders and processes" and "maintained that they did not have to comply with discovery, demonstrating a preordained belief that they were above this process." Given that, the court gave a default judgment in favor of Johnson. Default judgments usually occur when one party fails to show up. In this case, the court just decided to do this because of what appears to be outright frustration with Paula White Ministries. The judge literally said "been there, done that" in the ruling:

The Court now finds that the interests of justice require default judgment as the only effective remedy. Motion Defendants willfully failed to comply with the Court’s discovery orders. Lesser sanctions would be ineffective. Indeed, the Court balks at Motion Defendants’ suggestions to allow Johnson additional discovery, impose more monetary fines, or again push back the litigation calendar. (Doc. 171, p. 3.) Been there, done that—to no avail. Motion Defendants have made clear their refusal to comply with discovery orders, and they “richly deserve[] the sanction of a default judgment.” See Malautea, 987 F.2d at 1542. Their willful disregard of discovery orders has prejudiced Johnson and brought this action to a standstill for eighteen months. Motion Defendants’ obstreperous conduct warrants the sockdolager of default. See Nat’l Hockey League, 427 U.S. at 643 (“[T[he most severe in the spectrum of sanctions must be available to the district court in appropriate cases.”); Adolph Coors, 777 F.2d at 1543; (upholding default judgment when the defendants refused to turn over crucial documents from the get-go, claiming privilege, and the district judge “exhibited great sensitivity” to the defendants’ concerns)

Given that, Johnson then moved for monetary awards. And here, while the judge is clearly pissed off at Paula White Ministries and its actions in this case, it found little basis for most of Johnson's requests. It agrees to the reimbursement of $1,207.93 in costs by Johnson, but rejects most of the other requests for damages, including nominal damages (there were none) and punitive damages for lack of sufficient evidence. But what is interesting, is that the court did award the $12,500 for emotional harms -- though that number is limited because Johnson apparently did not seek medical treatment for the harm:

Johnson’s testimony about the mental anguish she suffered from the Copyright Infringement Action was credible. Specifically, Johnson testified about the lack of sleep, diminished enjoyment in various hobbies, and overall worry about the litigation and its consequences on her life. The Court finds that Johnson, as an individual unfamiliar with the legal process, credibly suffered emotional harm from the Copyright Infringement Action. But as Johnson did not seek medical treatment and her symptoms have abated, the Court finds a minimal award for these damages appropriate. Thus, the Court awards Johnson $12,500.00 for these damages.

So, the interesting news here is an actual award of damages in response to a bogus copyright filing. But, the cases all seem like a complete clusterfuck due to both sides doing all sorts of things you shouldn't actually do. Despite the somewhat amusing expressions of exasperation from the judge, Roy Dalton, in the case, he actually seems to have done a pretty good job separating out what actually happened and coming to a reasonable conclusion.

Filed Under: brad knight, copyright, dmca, emotional harm, malicious prosecution, paula white, pro se, shirley johnson
Companies: new destiny christian centers, paula white ministries

Author Sues Half The Internet For Defamation, Copyright Infringement, Cyberbullying, Use Of Section 230

from the WRONGED-UNIMAGINABLY-WRONGED dept

Why settle for copyright infringement accusations when you can have it all? That seems to be pro se filer Michael Henry Smith's rationale. Apparently, his self-published fictional account of the Waco biker/cop shootout hasn't racked up as many sales as he believes it should. And now, the Internet must pay.

MICHAEL HENRY SMITH, Plaintiff

Vs.

ALPHABET INC., AMAZON.COM, ATTRACTSOFT GMBH, AUTOMATTIC/GRAVATAR, BEAM.TO, BESSEMER VENTURE PARTNERS, BOX/BOX, INC/OPEN BOX/MEDXT, COATUE MANAGEMENT, DFJ GROWTH, EZINECENTRE, FACEBOOK, FREEHOSTINGEU, GENERAL ATLANTIC, GOOGLE, ITOCHU TECHNOLOGY VENTURES, MACNICA NETWORKS USA, INC., MITSUI & CO, MY SOCIAL HUB XP, NEW ENTERPRISE ASSOCIATES, SAP VENTURES, SCALE VENTURE PARTNERS, SOCIAL + CAPITAL PARTNERSHIP, TELEFONICA DIGITAL, TELSTRA, AND TELSTRA VENTURES, TPG CAPITAL and TUCOWS INC.

Bring on the "defendants shielded by aliases!"

ALA KID, LONG DONG, JIMBO KING, CINDY LOU, BRIANNA NATFIALY, LONG JOHN, NUKE DUKEM, PETER WILL HARDEN, CAPTAIN SPRAWLING, CAPTAIN SPAULDING, THEREAL MIKESMITH, THEREAL MIKESMITH1ER.

Smith has filed this case under multiple causes. PACER lists it under both "Copyright Infringement" and "Assault, Libel and Slander.".

That's not enough, though. Smith alleges a host of wrongs.

LAWSUIT FOR THE THEFT AND DISSEMINATION OF MY INTELECTUAL PROPERTY, FOR CYBER BULLYING, CYBER STALKING, CYBER HARASSMENT, LIABLE, SLANDER AND DEFAMATION OF CHARACTER, THE USE OF HATE LANGUAGE IN THE PURSUIT OF THESE ACTIONS and/or FOR PROVIDING A SAFE HAVEN THE DEFENDNATS CONDUCTING OF THESE ACTIVITIES and/or FOR FAILING TO PROTECT MY WORKS FROM THESE ACTIVITIES

Following this is the meat of the complaint, most of which is composed of allegations copy-pasted under each defendant's name. Amazon receives a little more personal attention because that's where Smith's saga begins.

Smith self-published his book ("The Waco Biker Massacre") using Amazon's CreateSpace and Kindle Direct Publishing. "Within weeks," his book was available elsewhere on the web and he was allegedly being subjected to personal attacks from a variety of internet ruffians. I've lapsed into archaic slang as a gentle segue into Smith's depiction of his fortunes, post-Amazon upload.

As of today,it is my estimation that some 100,000 copies of my work have been distributed without my receiving a single Sioux in compensation.

As a nation, we've long since moved to paper currency. The backing of our currency by government stores of precious metals/Native Americans is but a dim memory. Smith is demanding well over 100 million dollars/Sioux, but only the former is actually possible to obtain here in the US. Smith notes the lack of Sioux has pushed back Volume 2's release date indefinitely.

From there, the allegations against each tech defendant are remarkably similar… and remarkably unhinged. Every defendant has allegedly encouraged the proliferation of child pornography, earning "hundereds of millions of dollars" in the process -- all the while refusing to hand over personal details on their users to Smith. In Smith's view, the Internet is all mobbed up.

One of those industries is the theft and distribution of my intellectual properties. Some of the others are the aforementioned sites that solicit children for exploitation and the distribution of child pornography. This defendant makes hundreds of millions of dollars hosting criminal enterprlses; every year.

In my endeavors to stop the proliferation of the illegal distribution of my works and the personal attacks on me personally, I have contacted these various entities and their sub-entities to obtain the identities of the criminals behind the theft and distribution of my works and to petition these hosting services to stop distributing my works. This defendant and its sub-entities and aliases has refused. They invoke the Internet Omerta.

And so on for most of the defendants: theft, child porn, hundreds of millions of dollars, Internet Omerta, etc. A few defendants receive their own special accusations, though. Like Facebook:

Facebook is a corporation and online social networking service. It also harbors criminals and cyber predators.

Smith seems most upset at the fact that Facebook -- like many of the other defendants -- won't just hand over user info without a court order. Somehow, this is viewed as wrong.

Just as all of the other defendants, similarly situated, it refuses to take definitive action; or reveal the identities of the other cyber criminals; unless I bring it into court and then that they receive a court order to disclose the identities of these other criminals.

With this added detail, it is now apparent that "Internet Omerta" actually means "will only comply with a lawful requests like a court orders, not the angry, ranting email/messages of some random dude on the internet."

In the end, it all comes down to money. Lots of it. The child porn pandering. The cyberbullying. The copyright infringement. It all adds up.

The minimum retail value of a copy of my short story is $3.99. The maximum retail value of a copy of my short story is $9.99. None of that includes the bonuses and awards for selling 100,000 copies of my work. None of that includes the notoriety for the work that could have garnered it recognition from a movie/television company that would have led to even more income. The personal stress and anxiety and physical injuries that I have suffered as a result of this continuous onslaught of cyber bullying, cyber stalking, liable, slander and defamation of character, and being subjected to hate speech is nearly unquantifiable.

Nearly "unquantifiable:"

For all of the foregoing I am requesting that this Honorable Court direct this action to a trial before a jury. That upon the finding of the jury in my favor that this Honorable Court direct the defendants to pay me $1,000,000.00 each for my losses, damages, pun, suffering, emotional distress and harms to my life. That is with the exception of the defendants BEAM.TO and MY SOCIAL HUP XP. That these vagabond defendants be held liable to me for the amount of $100,000,000.00.

As a majority of these parties are protected by Section 230, it looks like this case is going nowhere -- even if Smith had managed to state a coherent claim, which he has not. I can understand Smith's concern about copyright infringement and the harassment he's apparently experienced. (The exhibits contain two screenshots of accounts attacking him. They also contain two screenshots supposedly showing Beam.To's participation in child pornography distribution, but only actually show normal Google search results and a splash ad for a [legal] porn site. The abuse seems to have been a reaction to Smith's habit of showing up anywhere the Waco shootout is discussed and plugging his book/calling other people liars.) But making outlandish claims and demands won't put any more cash in your pocket. From the looks of it, it may not even put anymore filings on this docket… at least not from Michael Smith.

A one-page order added to the docket suggests the judge is either going to ask for a full rewrite of the complaint or try to talk Smith out of pursuing this woefully misguided lawsuit.

This cause shall come before the undersigned on March 21, 2016, at 10:00 a.m., for a pretrial conference in Courtroom 3A, United States Courthouse, Mobile, Alabama. Plaintiff is ORDERED to appear for the pretrial conference for the purpose of inquiring about Plaintiff’s complaint filed on February 26, 2016.

I may be reading too much into a two-sentence order, but it seems unlikely Judge William Cassady is formally inviting ordering Smith to his courtroom to congratulate him on the gutsiness of his opening salvo on Google, Amazon, et al.

Filed Under: copyright, defamation, lawsuits, michael henry smith, pro se, section 230
Companies: alphabet, amazon, facebook, google, sap

Court Says Search Engines Not Making Things Disappear The Moment They're Deleted From Third-Party Sites Not 'Defamation'

from the the-definition-of-'tort'-is-NOT-'something-I-don't-personally-li dept

Eric Goldman brings the news of another misguided defamation lawsuit brought against search engines (plaintiff sued Google and Yahoo separately). The problem isn't that Google or Yahoo failed to comply with takedown requests. (There weren't any involved.) It was that the plaintiff -- Keyonna Ferrell -- deleted stuff she had posted to Pinterest and it kept showing up in search results for a few months after she vanished away the… well, I will now quote the complaint directly because anything otherwise wouldn't do it justice.

The facts of this case are:

I have a pininterest page. I changed it around Feb 5th of 2015. Before I put all the celebrity stuff up. I changed my screen name from Keyonna Ferrell to K Ferrell and the picture I had up for a week was also removed from pininterest. I have an email of the exact I did this But its vague. I have another emil from pininterest with proof it was removed but its in March. I will copy the emails below. The pictures were removed about 6 weeks after I complained but it was way too long. I have three threads all sent to legal legal@google.com they are not one message sent in one day they are messages sometimes once a day sometimes two and three times to legal a day over the course of three months google. Changed it settings, this is my email these are the threads. I usally send a copy to myself of each emails sent to google but all these emails were sent to LEGAL you cant tell unless you click inside. That's google for you. They changed their settings when I started taking pictures. I have pasted emails below. I am STILL having problems with them due to the page people are retaliating I ve been to four different hotels ive dealt wit stolen property, defemation of character, privacy being taken (picture wa deleted before celebrity went up pininterest and google resurfaced the images A month after I deleted it off my page) Defamation of character.

So, the crux of the case is that Google and Yahoo took "too long" to "forget" photos Keyonna Ferrell posted publicly on a third party's website. But nothing she alleges adds up to the injury she's claiming.

Ferrell alleges that she put information on the internet that remained accessible through the Yahoo search engine and thus available for viewing by the public after she had removed the images from Pinterest. She also alleges that a video not associated with her appears among search results based on her name. Nothing about this allegation suggests that the information made available was false. Ferrell therefore fails to state a claim for defamation.

Goldman notes that this is an interesting claim (albeit "interesting" in a way that pro se filings often are).

The court doesn’t say how many days elapsed between the alleged Pinterest removals and Google/Yahoo’s alleged failure to update their search database, nor do we know if Google and Yahoo had good reasons for delaying their deletions. I do know we’d see many dubious lawsuits if plaintiffs can sue search engines for taking too long to delete removed items from their databases.

This would be a ridiculous outcome, but all it takes is one significant case. This isn't it. As Goldman notes, US law differs significantly from the European legal interpretations of search engines' obligations in light of the "right to be forgotten" decision. Were that applicable here, Ferrell may have been successful in claiming damages for "delays" by third parties unrelated to the service where the content was originally posted.

If you're interested in reading some more of Keyonna Ferrell's legal excursions, she has also sued Quality Inn for... something. All I know is it revolves around a misplaced phone charger, some guy named TBOY, a missing roll of toilet paper, an unrecovered stash of personal documents and many, many incidents in which people failed to take Ferrell seriously.

Filed Under: defamation, keyonna ferrell, pro se, right to be forgotten, search engines
Companies: google, pinterest, yahoo

Frivolous Serial Pro Se Litigant Upset Journalists Portrayed Him As A Frivolous Serial Litigant

from the loaded-legal-filing-pressed-directly-to-his-own-temple... dept

It's extremely difficult to win a defamation suit when the allegedly defamatory statements are THINGS THAT ACTUALLY HAPPENED.

It was, on the surface, a bit ironic. A pro se plaintiff who was mentioned in an article about serial filers of lawsuits sued the article's authors and the newspaper that printed it.

But the New London Day newspaper, reporter Karen Florin, executive editor Timothy Dwyer and Wyatt Kopp, who was interviewed by the newspaper, prevailed when a judge ruled that no one was defamed in an article that focused on the costs incurred by the court system and defendants when low-income plaintiffs whose court fees are waived file dozens of dubious claims.

"After viewing all the revised complaints and evidence in this case, the court cannot identify any statement by Kopp that can be legally construed as defamatory," wrote New London Superior Court Judge Terence Zemetis, who added that "stating that a lawsuit is frivolous is an expression of opinion and is not defamatory."

The plaintiff was Sylvester Traylor, a frequent pro se filer whose legal battles (mostly losing) can be found here, as well as other places around the internet. The article at the nominal center of this lawsuit (which was also filed against numerous other parties covering the same proposed bill targeting the abuse of in forma pauperis [waived fees] filing) didn't make any defamatory statements.

Everything Traylor took offense to was the direct result of Traylor's own litigious activities. The article simply cites his multiple filings, as well as judges' reactions to his "protracted legal battles." It even directly quotes court orders and opinions -- which are far more damning than anything posted at the New London Day.

In July 2012, the Second Circuit Court of Appeals dismissed one of Traylor's filings and warned him that "the continued filing of duplicative, vexatious, or frivolous appeals, mandamus petitions or motions may result in sanctions, including a leave-to-file sanction requiring Traylor to obtain permission from this Court prior to filing further submissions in this Court."

In a November 2012 order dismissing a case Traylor brought against 12 state legislators, court officials and an insurance company, Hartford Superior Court Judge Carl J. Schumann wrote that Traylor's "litigious ferver is perhaps understandable, but it has clearly reached the point of becoming unnecessarily costly, wasteful and fruitless."

In true "vexatious litigant" style, Traylor accused the paper of making "selective and calculated statements to slant the characterization of the plaintiff's legal cases," claiming its failure to cite the three judgments in his favor was some sort of defamation-by-omission. Even more legally-unsound, Traylor argued that the paper said something it didn't actually say.

[T]hough the article did paint a picture that Traylor's lawsuits were "frivolous," it was clear that it was Kopp—not the newspaper—drawing that conclusion, the judge ruled.

Not that Traylor has anything to worry about. The article he sued over (along with journalists covering the same bill for local TV stations) discussed an attempt to curb serial litigants who "abused" in forma pauperis privileges granted to indigent filers. The first sought greater legal review prior to allowing cases to advance. The latter suggested litigants could work off their comped filing fees by performing community service. Neither bill went anywhere, so Traylor is free to continue filing "frivolous" lawsuits until informed otherwise by presiding judges.

He's also free to fight speech with speech, which the New London Day allowed him to do by printing his short editorial against proposed limitations to waived-fee filings. It also contacted him for the January article he sued over, posting his defense of his actions. And none of that was enough to prevent Traylor from filing another lawsuit.

The ultimate defense against defamation accusations is the truth. This will probably be lost on Traylor as it's been lost on far too many serial litigants. If a person wants to complain (via the courtroom) that they've been misrepresented by "slanted" statements, they should at least have the self-awareness to recognize it's their actions that are creating this negative perception.

Filed Under: frivolous lawsuits, pro se, sylvestor traylor

Angry Lawyer Sues Wordpress Because Someone Set Up A Website Mocking Him

from the a-fool-for-a-client dept

What's that saying about a lawyer who represents himself? Yes, well, consider the case of lawyer Jeffrey Wilens, representing himself pro se, in a "trademark" lawsuit filed against Automattic, the company better known for WordPress, the content management system/hosting service that a large percentage of the internet now uses. Wilens appears to have someone who doesn't like him very much, who set up a bunch of websites using Wilens' name and the name of his legal practice, Lakeshore Law Center. Wilens is claiming that this is trademark infringement, based on a trademark on his name and the name of his law practice. Even if he were just going after whoever made the page, this would be a massive long shot. As we've covered for years, so-called "gripe sites" are not considered trademark infringement. There's no likelihood of confusion, they're almost never commercials, and shutting them down would often violate the First Amendment. But Wilens is pointing his legal guns not just at whoever made the site, but also at Automattic for allowing the site to be created and hosting it (he also sued Google, but recently dismissed the company from the case).

Automattic has sought to dismiss the case, which is scheduled to go to trial shortly, pointing out that there simply is no legitimate trademark claim against Automattic at all. The filing is worth reading as it lays out, quite clearly, why this case is a joke. There is no trademark infringement in the first place, and even if there was, it wouldn't be on Automattic. It cites numerous cases that have shown that gripes sites are not trademark infringement and that registrars are not liable if someone registers a trademarked name. It also highlights how there's clearly no direct trademark infringement, and Wilens doesn't allege secondary (contributory) trademark infringement, and even if he did, it still wouldn't be applicable.

Wilens hit back with a somewhat amusing reply, insisting that all of the caselaw that goes against him is "different" because he's pretty damn sure that whoever is making these sites is a competitor, and thus, it must be trademark infringement:

Defendants insist the offending websites are just criticism or “gripe” websites which are not covered by trademark law. But we don’t know that. It is quite possible that Doe No. 1 is a competitor of Plaintiff or acting on behalf of a competitor and not a former client. The FAC alleges Doe No. 1 created the websites to divert search engine traffic by clients and potential clients of Plaintiff from Plaintiff’s websites to the websites controlled by Doe No. 1.... Until Doe No. 1’s identity can be uncovered, and he is shown not to be a competitor, this allegations stands.

Of course, as we've discussed elsewhere, in many courts, the burden is quite the opposite. First you have to prove that a violation of the law occurred before you get to uncover the anonymous person. Even so, Wilens seems to be basing his claims on a whole bunch of hypotheticals and "maybe possiblys":

Defendants may argue the websites do not seem to contain any links to Doe’s own website, but it is possible that Doe reaches out to visitors by email or through the blogs’ message boards. There is a comments features to these websites. While public comments seem to be disabled that does not mean there have been no private communications. Before Plaintiff is allowed to conduct discovery, there is no way to know what communications have gone on between visitors and Doe No. 1, although Defendants may be in possession of that information.

However, as Automattic then notes in its reply, Wilens still seems to be totally misreading the case law -- and completely changing his story. While he now insists that it could be trademark infringement because it was done by a competitor, earlier in the lawsuit, he insisted that it was a former client:

Mr. Wilens has previously represented to this Court, under penalty of perjury, that he believes the websites to have been posted by the defendant in a lawsuit in which he was counsel for the plaintiff: “There are a few former defendants I suspect might be the anonymous poster on the website, course, but I am not going to name Doe without some supporting evidence. I have approached counsel for some of the suspects but none of their clients would come forward and admit they are the anonymous poster.” .... It is curious, to say the least, for Mr. Wilens to make a legal argument in a signed pleading based on the premise that Doe No. 1 might be a competitor, where he has sworn that he does not believe that to be the case.

Curious indeed.

Even worse, he seems to be switching the basis of his trademark infringement claim mid-stream. As noted above, in the original filing, Wilens only alleges direct trademark infringement. But in his response, he more or less admits that's not true here and now alleges secondary trademark infringement (even though Automattic's original response had already explained how that wasn't possible here):

Plaintiff appears to concede that the Amended Complaint does not adequately plead a claim for direct trademark infringement against Automattic. Opp. at 5-6. He argues now that the Amended Complaint contains facts that would support a claim for contributory trademark infringement. Id. The Amended Complaint does not mention any claim for contributory trademark infringement, but assuming that one is identified in the complaint, there can be no contributory trademark infringement claim against Automattic based on a user’s choice of a website name.

This really does seem like yet another case of "someone is doing something on the internet that I don't like, therefore it must be illegal!" Hopefully the court decides to explain that's not quite how the law works to Mr. Wilens by dismissing the case before it even needs to go to trial.

Filed Under: defamation, gripe sites, jeffrey wilens, pro se, secondary liability, trademark, wordpress
Companies: automattic