Well that was a good read. Seems that someone needs to learn how the internet works. Just put it on reddit and watch the Streisand effect in action :).
Maybe MMM site is a good place for it, maybe not - but the idea sounds great - to have a place where people can submit info about when this happens to them as well to publicize and share advice.
MMM says there isn't "much" merit to the claim. So there is some merit apparently. This isn't a blueprint for handling anything. He hasn't determined with any certainty if the post is libelous but is charging ahead full force to defend it? It doesn't make sense.
He doesn't know if there's merit to the claim that the offending comment was libelous. The offending comment said kisstrust was a "scam" when they apparently meant that the kisstrust offer simply added no value to a tool that is already available to consumers for less cost. It appears he does know/believe, however, that there is no merit to the claim that MMM is responsible for the content of a comment in his forums.
* Maybe this was just an incompetent attorney, but regardless, taking legal action against a website for a comment posted really demonstrates that the company isn't capable of using its good reputation to handle the situation, and therefore lacks said reputation. Can't compete on the merits - GTFO. /rant
They seem to have a history of playing fast and loose with the law. See this thread on Bogleheads where forum posters discovered they took a forum member's post, put it on their site as a "review" with no link to the original thread, and had the gall to claim the text was "public domain": http://www.bogleheads.org/forum/viewtopic.php?f=2&t=107952
Slightly offtopic, but oddly enough MMM is also a name of the most famous Russian ponzi scheme from the 90s. Laughed a little bit, but no parallels, of course. All the luck to this blog.
Presumably, this a reference to the US District Court for the Eastern District of Texas, and apparently the reputation of E.D. Tex. relating to its popularity for patent litigation based on the way its patent-specific local rules has become generalized even further.
KISS Trust is a company that offers revocable trusts for people. Someone on the MMM forum said that this company was a scam and warned others to stay away. That post made the first page of Google for a search for KISS Trust, and the company noticed. They sent a cease and desist to the blog owner demanding that he take the post down. He refused. Now the company is getting more bad press because of the legal fight than from the original post. It might have been better to create an account and respond to the original poster directly to resolve the issue.
The first part of this post is correct. Except that after receiving the legal threat, the blog owner DID remove the offending forum thread.
But then the blog owner created a new thread describing the legal threat (can't be libelous to describe a business tactic they've actually employed, can it?), which has led to much additional discussion and bad press.
Oh, and there's apparently also a wikipedia editing war going on between the internet and the company PR person. Any guesses on how that one will end?
-new user, followed link from MMM blog to get here.
If done skillfully, it makes some of them go full tilt to the extent that they get themselves disbarred for insanely stupid things. Then you have to deal with being hated by a crazy unemployed ex-lawyer, so think twice about doing this if they live nearby.
FWIW, the kisstrust.com website appears to be down (giving a 404). Furthermore, I'd like to express my opinion that these lawyers are a bunch of douchebags.
It has come to our attention that the commenter "viggity" on your "Hacker News" internet discussion forum has suggested that the practising partners at the Law Office of Mark B Williams, PLC are, and I quote, "a bunch of douchebags".
My clients at the Intimate Hygiene Manufacturers Association maintain that this is an unfounded slur on their products, and insist that the forum posting and any derived or related content be removed forthwith.
From the article: "Never mind the fact that Section 230 of Title 47 of the United States Code holds that website owners cannot be held responsible for comments that their users make."
Wouldn't this be somewhat like the DMCA, where the host is only protected if they respond to claims? Or would it take an actual court injunction to order the material to be removed?
The plain language of the provision is starkly unconditional. 47 USC Sec. 230(c)(1) specifies: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
They are suing the forum owner/operator for something posted by a forum member. So roughly equivalent to me saying something here, and Paul Graham getting sued for it.
Also, the actual quote was "This scam product has been discussed here before. Stay away. It's a marketing ploy." Which I guess may be legally actionable, but given their behavior seems like it's quite likely true.
Notice and take down is a process operated by online hosts in response to court orders or allegations that content is illegal. Content is removed by the host following notice. Notice and take down is widely operated in relation to copyright infringement, as well as for libel and other illegal content. In US and European Union law, notice and takedown is mandated as part of limited liability, or safe harbour, provisions for online hosts (see the Digital Millennium Copyright Act 1998 and the Electronic Commerce Directive 2000). As a condition for limited liability online hosts must expeditiously remove or disable access to content they host when they are notified of the alleged illegality.[1]
The sweeping exemption in 47 USC 230 doesn't (unlike the DMCA safe harbor) have any notice and takedown provisions attached to it, so your link and text is, while accurate, irrelevant.
Every time I see another example of frivolous litigation threats like this, I feel like one of the biggest shortcomings of the U.S. justice system is not enough pain inflicted on frivolous litigators.
This goes for patent trolling, too, obviously.
There should be a healthy fear of filing baseless legal challenges. Disbarment? Large fines? What's the effective remedy here, that doesn't go so far it dissuades legitimate cases?
No, the parent is right. My own attorney even describes the current system as extortionate.
Even if this claim is not found to be technically frivolous (a legal term that carries a standard), the current system offers little or no penalty to those who use the courts as a bullying tactic.
If you say or do something that someone doesn't like, then they just sue you and force you to spend exorbitant amounts of money and time to defend yourself, or otherwise just capitulate to their demands. Even the effort required to show that something is frivolous can be expensive, as the standard is high.
The current design absolutely favors those with money. The defendant can win handily but stand very little chance of even recovering their attorney's fees.
MMM is not a lawyer. As an analogy, consider CFAA and other "hacking" related prosecutions where the layman might not be able to tell if a charge is without merit, but a domain expert acting in good faith can.
US should just adopt the European system for lawsuits. You lose, you pay. Yes, it has a downside, as does everything else in the world, but I think the downside is much smaller than the upside (compared to the current US system).
Wouldn't a shared payment system work better for asymmetric opponents, where any legal fees either side wants to pay are contributed to a shared pool and divided equally, with some minimum/maximum amount based on income and/or net worth?
The downside is it tilts the balance even further in favor of the richer party, as the poor party is forced to surrender if there is any risk of losing, since a party with a non-frivolous but risky case can't limit their risk by controlling their own expenditures.
Since I don't think not being tilted enough in favor of wealthy litigants is a real problem with the US system, I'm completely opposed to this method of deforming the system.
Um... isn't the exact opposite true, namely that under the current system a poor person can't even afford to win a lawsuit and thus have to avoid them at all cost, no matter how certain they are of winning?
> Um... isn't the exact opposite true, namely that under the current system a poor person can't even afford to win a lawsuit and thus have to avoid them at all cost, no matter how certain they are of winning?
Not as plaintiff, where there own legal costs are less than the amount at issue.
As a defendant, maybe, or a plaintiff in a case where the costs of prosecution outweigh the potential recovery, yes. (The former is clearly undesirable, the latter less clearly so.)
OTOH, with this change, it makes the position of the (largely mythical) certain-to-win party (plaintiff or defendant) somewhat better, while making a significantly less wealthy party worse off in pretty much every other case.
The outline of the current system, where awards of costs have a higher standard than just "whoever wins also gets costs". That's not to say that there aren't tweaks to the details of when costs and/or additional sanctions for abuses are awarded that would make the current system better, but switching to loser pays as a rule isn't one of them.
This is 100% incorrect. The loser doesn't have to pay an unlimited amount of money to the winner. If I do a lawsuit against Google and they spend $10 billion on it then I don't need to pay then $10 billion. The judge awards a reasonable amount.
Also, empirically, there are a whole lot more frivolous lawsuits in the US. In many cases, like with patents, this is basically extortion enabled by the legal system. We sue you which means that you will have to spend at least $10000 on your defense even if you win, or we can settle for $1000.
There is a reason why virtually all modern democracies except the US use loser pays.
> Also, empirically, there are a whole lot more frivolous lawsuits in the US.
"Frivolous" is not an objective descriptor and, therefore, this is not a statement which can be made empirically. At any rate, a higher rate of meritless lawsuits is an intentionally-accepted cost of minimizing the disincentive to pursue potentially meritorious lawsuits.
This is a value difference between the USA and countries that use loser pays.
> If I do a lawsuit against Google and they spend $10 billion on it then I don't need to pay then $10 billion.
Unless the lawyers Google spends billions on can convince the judge that those expenses were reasonably necessary to effectively prosecute the case -- and, incidentally, lawyers that are more proficient at convincing judges that their fees are reasonable will, have higher fees.
> There is a reason why virtually all modern democracies except the US use loser pays.
Yes, becaue most modern democracies value avoidance of private legal action more and effective venue of redress of legitimate disputes less than the US. Loser pays is a method of disincentivizing filing suits in general (it increases the expected costs for the plaintiff, particularly) as well as tilting the balance toward deeper-pockets litigants generally.
Reading your comment here makes it clear that you won't be convinced by any form of logic, but hopefully it helps some other readers:
> Unless the lawyers Google spends billions on can convince the judge that those expenses were reasonably necessary to effectively prosecute the case -- and, incidentally, lawyers that are more proficient at convincing judges that their fees are reasonable will, have higher fees.
This has never ever happened and will never ever happen for blatantly obvious reasons. If you think judges can be convinced of such ridiculous ideas by a sufficiently high paid lawyers we better just throw the whole legal system out of the window.
> Loser pays is a method of disincentivizing filing suits in general (it increases the expected costs for the plaintiff, particularly) as well as tilting the balance toward deeper-pockets litigants generally.
This is incorrect. Loser pays disincentivizes meritless lawsuits. If the plaintiff thinks he will lose, then the expected amount he has to pay is higher in a loser pays system. If the plaintiff thinks he will win the expected amount he will pay is lower in a loser pays system. Therefore loser pays incentivizes reasonable lawsuits compared to the US system.
As a lawyer who dabbles in IP/cyber law (not admitted in VA, so I can't help out), I really love seeing personal injury/criminal defense attorneys send cease and desist letters to publishers who are clearly protected under federal law.
91 comments
[ 3.4 ms ] story [ 179 ms ] thread[1]http://en.wikipedia.org/wiki/Strategic_lawsuit_against_publi...
* Maybe this was just an incompetent attorney, but regardless, taking legal action against a website for a comment posted really demonstrates that the company isn't capable of using its good reputation to handle the situation, and therefore lacks said reputation. Can't compete on the merits - GTFO. /rant
http://en.wikipedia.org/wiki/Kiss_Trust
"This article appears to be written like an advertisement. Please help improve it ..."
WTF?
http://en.wikipedia.org/wiki/Wikipedia:Neutral_point_of_view
The first part of this post is correct. Except that after receiving the legal threat, the blog owner DID remove the offending forum thread.
But then the blog owner created a new thread describing the legal threat (can't be libelous to describe a business tactic they've actually employed, can it?), which has led to much additional discussion and bad press.
Oh, and there's apparently also a wikipedia editing war going on between the internet and the company PR person. Any guesses on how that one will end?
-new user, followed link from MMM blog to get here.
http://webcache.googleusercontent.com/search?q=cache:tMinWjW...
People like this should be treated the way they act. Like children.
http://www.somethingawful.com/hosted/crabs/
http://www.somethingawful.com/legal-threats/
It has come to our attention that the commenter "viggity" on your "Hacker News" internet discussion forum has suggested that the practising partners at the Law Office of Mark B Williams, PLC are, and I quote, "a bunch of douchebags".
My clients at the Intimate Hygiene Manufacturers Association maintain that this is an unfounded slur on their products, and insist that the forum posting and any derived or related content be removed forthwith.
Yours etc.
Also, the actual quote was "This scam product has been discussed here before. Stay away. It's a marketing ploy." Which I guess may be legally actionable, but given their behavior seems like it's quite likely true.
If MMM gets a lawyer he's going to end up defending the content of the post, not his right to operate his site independently.
Notice and take down is a process operated by online hosts in response to court orders or allegations that content is illegal. Content is removed by the host following notice. Notice and take down is widely operated in relation to copyright infringement, as well as for libel and other illegal content. In US and European Union law, notice and takedown is mandated as part of limited liability, or safe harbour, provisions for online hosts (see the Digital Millennium Copyright Act 1998 and the Electronic Commerce Directive 2000). As a condition for limited liability online hosts must expeditiously remove or disable access to content they host when they are notified of the alleged illegality.[1]
This goes for patent trolling, too, obviously.
There should be a healthy fear of filing baseless legal challenges. Disbarment? Large fines? What's the effective remedy here, that doesn't go so far it dissuades legitimate cases?
Even if this claim is not found to be technically frivolous (a legal term that carries a standard), the current system offers little or no penalty to those who use the courts as a bullying tactic.
If you say or do something that someone doesn't like, then they just sue you and force you to spend exorbitant amounts of money and time to defend yourself, or otherwise just capitulate to their demands. Even the effort required to show that something is frivolous can be expensive, as the standard is high.
The current design absolutely favors those with money. The defendant can win handily but stand very little chance of even recovering their attorney's fees.
Since I don't think not being tilted enough in favor of wealthy litigants is a real problem with the US system, I'm completely opposed to this method of deforming the system.
Not as plaintiff, where there own legal costs are less than the amount at issue.
As a defendant, maybe, or a plaintiff in a case where the costs of prosecution outweigh the potential recovery, yes. (The former is clearly undesirable, the latter less clearly so.)
OTOH, with this change, it makes the position of the (largely mythical) certain-to-win party (plaintiff or defendant) somewhat better, while making a significantly less wealthy party worse off in pretty much every other case.
The outline of the current system, where awards of costs have a higher standard than just "whoever wins also gets costs". That's not to say that there aren't tweaks to the details of when costs and/or additional sanctions for abuses are awarded that would make the current system better, but switching to loser pays as a rule isn't one of them.
Also, empirically, there are a whole lot more frivolous lawsuits in the US. In many cases, like with patents, this is basically extortion enabled by the legal system. We sue you which means that you will have to spend at least $10000 on your defense even if you win, or we can settle for $1000.
There is a reason why virtually all modern democracies except the US use loser pays.
"Frivolous" is not an objective descriptor and, therefore, this is not a statement which can be made empirically. At any rate, a higher rate of meritless lawsuits is an intentionally-accepted cost of minimizing the disincentive to pursue potentially meritorious lawsuits.
This is a value difference between the USA and countries that use loser pays.
> If I do a lawsuit against Google and they spend $10 billion on it then I don't need to pay then $10 billion.
Unless the lawyers Google spends billions on can convince the judge that those expenses were reasonably necessary to effectively prosecute the case -- and, incidentally, lawyers that are more proficient at convincing judges that their fees are reasonable will, have higher fees.
> There is a reason why virtually all modern democracies except the US use loser pays.
Yes, becaue most modern democracies value avoidance of private legal action more and effective venue of redress of legitimate disputes less than the US. Loser pays is a method of disincentivizing filing suits in general (it increases the expected costs for the plaintiff, particularly) as well as tilting the balance toward deeper-pockets litigants generally.
> Unless the lawyers Google spends billions on can convince the judge that those expenses were reasonably necessary to effectively prosecute the case -- and, incidentally, lawyers that are more proficient at convincing judges that their fees are reasonable will, have higher fees.
This has never ever happened and will never ever happen for blatantly obvious reasons. If you think judges can be convinced of such ridiculous ideas by a sufficiently high paid lawyers we better just throw the whole legal system out of the window.
> Loser pays is a method of disincentivizing filing suits in general (it increases the expected costs for the plaintiff, particularly) as well as tilting the balance toward deeper-pockets litigants generally.
This is incorrect. Loser pays disincentivizes meritless lawsuits. If the plaintiff thinks he will lose, then the expected amount he has to pay is higher in a loser pays system. If the plaintiff thinks he will win the expected amount he will pay is lower in a loser pays system. Therefore loser pays incentivizes reasonable lawsuits compared to the US system.