This page lists the essential court documents relating to the unusual Baltimore Circuit Court Case of Mitul R. Patel v. Mathew Chan (misspelled in court documents). It is a lawsuit purportedly filed by Suwanee Georgia dentist Mitul R. Patel on June 15, 2016. I was never served or otherwise notified of this case or lawsuit. I only found out on August 10, 2016 when Yelp emailed me and informed me they received a court order with a request by Patel to Yelp to take down my Yelp review of Mitul R. Patel. So far, we believe Patel hired Richart Ruddie’s reputation management firm, Profile Defenders, who used its suspicious and questionable Lawsuit Removal scheme to defraud the Baltimore Circuit Court into issuing a court order to compel various consumer review websites to remove my negative reviews of Patel.
Patel v. Chan: Revised Order Denying Defendant’s Motion to Vacate Consent Judgment/Order is Vacated [By Judge-in Charge Althea Handy] (July 7, 2017)
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As of July 8, 2017, it appears that the case of Patel v. Chan is now dismissed and closed with the bogus consent judgement/order properly disposed by Judge Althea Handy.
In summary, after waiting eight long months from my first filing and contacting the Baltimore Court with my original Motion to Vacate Consent Judgment/Order (September 2, 2016), that motion was shockingly and frustratingly denied by Judge Philip Senan Jackson (May 1, 2017) due to his belief that my affidavit did not conform to Maryland standards.
I subsequently refiled a revised and updated Motion to Vacate Consent Judgment/Order (May 22, 2017) with a corrected affidavit. Judge-in-Charge Althea Handy stepped in June 28, 2017 and vacated Judge Jackson’s order denying my motion. Additionally, she signed a series of court orders that properly brought the many disturbing outstanding issues to proper closure.
By vacating Judge Jackson’s denial order, Judge Handy effectively revived my original Motion to Vacate Consent/Judgment Order. She also granted Mitul Patel’s Motion to Intervene & Motion to Strike Judgment (which I supported). Ultimately, between my and Patel’s Maryland lawyers efforts, we were able to bring the case to a proper close by:
Vacating of the bogus July 22, 2016 Consent Judgment/Order
Striking the bogus June 15, 2016 Consent Motion for Injunction & Final Judgment
Dismissal of the case
Unfortunately, Judge Handy dismissed the case without specifically stating with or without prejudice. My assumption is that because she did not specifically state that the case was dismissed with prejudice, she was dismissing the case without prejudice. I don’t agree with that particular stance but I am prepared to accept it for the sake of closure moving on from the Baltimore City Circuit Court.
I communicated with Patel’s lawyers several times over the course of the past year over various issues concerning the case. Because I was “pro se” (representing myself), I appropriately dealt with matters that mutually affected my and Patel’s case. I am happy to report that my communications with Patel’s lawyers were civil, professional, and respectful. They never attacked, disrespected, or disparaged me. They did not inflame the situation. They clearly knew I was not a lawyer and was careful.
We disagreed on a couple of issues. We found the long wait on the Baltimore City Circuit Court frustrating. We also found the initial denial by Judge Jackson over my affidavit surprising. It is especially notable given the fact that Patel’s own Georgia affidavit was similar in format to mine. If Judge Jackson was going to disregard my affidavit due to not conforming to Maryland rules, he would eventually have to do the same with Patel’s affidavit as well. Fortunately, it never came to that because Judge Jackson never ruled on Patel’s Motion to Intervene/Motion to Strike.
As I said, as far as I am concerned the issues relating to the Baltimore City Circuit Court have come to a close. However, there are remaining “wrap-up” communications I need to make with Patel’s Maryland lawyers before I move to the next step.
I will provide comments on what my “next steps” might be in a future update.
This page compiles notable articles and commentaries on the unusual Baltimore Circuit Court Case of Mitul R. Patel v. Mathew Chan (misspelled in court documents). It is a lawsuit purportedly filed by Suwanee Georgia dentist Mitul R. Patel. I was never served or otherwise notified of this case or lawsuit. I only found out on August 10, 2016 when Yelp emailed me that they received a court order with a request by Patel to Yelp to take down my Yelp review of Mitul R. Patel. So far, we believe Patel hired Richart Ruddie’s reputation management firm, Profile Defenders, who used its suspicious and questionable Lawsuit Removal scheme to defraud the Baltimore Circuit Court into issuing a court order to compel various consumer review websites to remove my negative reviews of Patel.
Most recent articles listed first. (This page will be periodically updated as the story unfolds and reported.)
The story of Profile Defenders, Richart Ruddie, and their illicit Lawsuit Removal scheme using bogus lawsuits with fake defendants was uncovered through the Baltimore Circuit Court Case of Mitul R. Patel v. Mathew Chan (misspelled in court documents).
The story actually begins with the media & press coverage of Patel v. Chan but the story abruptly turns upon the revelation by Suwanee Georgia Dentist Mitul R. Patel (through his court documents) that he hired Profile Defenders and Richart Ruddie for unspecified “reputation management services.” My supporters and I have inferred that this unspecified “reputation management service” included a shady system to file secretive lawsuits against fake defendants, defrauding courts and judges, to obtain supposed “consent” court orders to quietly remove and delist/deindex negative and unwanted content from consumer review websites and search engines. The story continues to unfold so check back for updates.
Most recent articles listed first. (This page will be periodically updated as the story unfolds and reported.)
For those interested in following the progress of my appeal currently with the Georgia Supreme Court as well as learning the history of this case, I have presented a table of essential appellate court case documents here.
Oral Argument Videos: October 7, 2014 – Downtown Atlanta. (Oscar Michelen & Eugene Volokh arguing for Appellant Matthew Chan, Elizabeth W. (Betsy) McBride & Timothy B. McCormack for Appellee Linda Ellis)
A complete listing of all court documents including letters, pleadings, press releases, and other minor court documents can be found in the Matthew Chan v. Linda Ellis Georgia Appeal collection on Scribd.
Because the Georgia Supreme Court only allows public viewing of any oral argument video for 30-45 days, I made special arrangements to preserve and host the Chan v. Ellis Georgia Georgia Supreme Court Oral Argument video from October 7, 2014 at 2pm.
In attendance in support of Appellant (Matthew Chan) were: Oscar Michelen, Eugene Volokh, Darren Summerville. Unseen attendees in the audience were: Greg Troy, Robert Krausankas, April Brown, Matthew Chan, and Stinger.
In attendance in support of Appellee (Linda Ellis) were: Elizabeth W. (Betsy) McBride, Timothy B. McCormack. Unseen attendees in the audience were: Linda Ellis, John W. Jolin.
The Complete Uncut Oral Argument (41-minutes)
For those who prefer to watch each segment separately or specific segments, there are five videos representing each distinct presentation.
1. Opening & Oscar Michelen (10-minutes)
2. Eugene Volokh (8-minutes)
3. Elizabeth W. (Betsy) McBride (11-minutes)
4. Timothy B. McCormack (9-minutes)
5. Oscar Michelen Rebuttal & Adjournment (2-minutes)
I, however, did not quickly publicize this court filing as I typically do with my other court filings. First, I was busy with other responsibilities and it wasn’t a high priority for me. Second, the filing was already reported publicly by two friends. And finally, I was curious to see if there were going to be any court responses by Linda Ellis and/or her bimbo lawyer, Elizabeth (Betsy) McBride. Quite surprisingly (and stupidly) to me, they finally did. But that is okay, I will share this response in my next post.
IN THE SUPERIOR COURT OF MUSCOGEE COUNTY STATE OF GEORGIA
CIVIL ACTION FILE: SU-13-DM-409
LINDA ELLIS, Petitioner,
v.
MATTHEW CHAN, Respondent
.
RESPONDENT’S DECLARATION REGARDING PETITIONER’S MISREPRESENTATIONS & OPPOSING COUNSEL’S PROFESSIONAL MISCONDUCT
COMES NOW, Matthew Chan, as Respondent, declares to the Court the as follows:
1. I am the Respondent in this case. In the original hearing, I chose to represent myself “pro se” in this Court and I continue to represent myself now.
2. This Declaration may come as a “surprise” because it comes at a relatively late date. However, I wanted to take the time to think and reflect carefully before I submitted this Declaration. I have no desire to burden this court with any more pleadings, communications, or submissions unless absolutely necessary.
3. The purpose of this Declaration is to serve the “greater good” by including it as part of the court record. I take no joy in filing this Declaration but feel it is necessary. Over the last few months, I have gone back and forth in my mind whether I should file this Declaration. Ultimately, I have done so because I have learned that no one will ever advocate or represent me as passionately or determinedly as I would for myself. If I do not speak for myself on the matters herein then no one else will. Given the two-plus years that my supporters and I have devoted in time, energy, money, publicity, and other resources on my behalf, I want to address residual issues and matters of concern that have arisen during the “aftermath” period.
4. Because I continue to live and work in the jurisdiction of this Court, I have a strong vested interest in ensuring that every court views me fairly and credibly in any possible hearings in the future (related or unrelated to this case) and not let any possible bias, animosity, or ill will from this case negatively affect me or unfairly taint my reputation in any possible court matters in the future. I don’t expect favoritism but I strongly desire and request that any court be fair and respectful to me in the future whether I choose to represent myself “pro se” or through counsel I may retain.
5. I was vigorous and passionate in my own defense at the evidentiary hearing (as well as through two appellate courts and the court of public opinion) and I continue to hold high respect and regard for all courts. Despite my strong disagreement with the Court’s original ruling and the subsequent protective order that was issued against me, I believe that the Court was well-intentioned. I believe that because I was not a trained lawyer and chose to represent myself “pro se,” that it contributed to the ruling against me. To what degree, I may never know. Certainly, in reviewing the court record many times, I feel strongly that I made errors and did an inadequate job in presenting my case in certain parts. Indisputably, I was less educated with legal procedure than opposing counsel but I believe the Court knows I did my best while being respectful to the Court. I have had considerable time to relive, reflect, study, and analyze the circumstances up to the hearing of my case.
6. One of my larger concerns I want to express in this Declaration is the fact that opposing counsel, Elizabeth W. McBride is married to Judge Gil McBride, a Superior Court Judge. I want to be clear that I have never met Judge McBride and have no feelings or impressions of him one way or another. I did not know at the time of the original 2013 evidentiary hearing that Ms. McBride was related to, much less married to Judge McBride. I never made the connection although I had heard of Judge McBride’s name prior. This was a point of surprise and speculative discussion amongst my supporters when we later discovered this relationship. Some of us were concerned that Ms. McBride’s spousal connection to Judge McBride might have had a subtle influence on the Court in this case. Let me be clear, there is no evidence that the Court was ever influenced by this. I make no accusations of anyone that Judge McBride or his spousal relationship to Ms. McBride had any influence whatsoever on the Court in my case. However, I think it is reasonable that outside observers might speculate and wonder if cases Ms. McBride represents and wins in this Court will be entirely based on the merits and not her spousal relationship to Judge McBride especially given the relatively small number of Superior Court judges that serve the Columbus/Muscogee County area.
7. Prior to this case, I was already an avid supporter, advocate, and well-informed in matters of free speech and the First Amendment especially as it relates to the Internet. In particular, it is one reason that I chose to represent myself without a lawyer. I did not have the belief or confidence that I could easily find a sufficiently qualified lawyer locally that would passionately assert or argue my First Amendment rights or my rights as a website owner and discussion forum provider under Section 230 of the Communications Decency Act. Further, I did not have the confidence that any local lawyer would take the time to truly understand or sufficiently explain the intricacies, operations, context, style, and culture of my website, ExtortionLetterInfo.com (ELI) and its online community.
I want to recap the pertinent facts, events, and circumstances leading to this Declaration:
1. On February 13, 2013, Petitioner Linda Ellis, sought and was granted by the Court a “Stalking Ex Parte Temporary Protective Order” against me, Respondent Matthew Chan. A hearing was then scheduled for February 28, 2013.
2. The hearing did occur on February 28, 2013 as scheduled. Ms. Ellis was represented by opposing counsel, Elizabeth W. McBride, and I represented myself “pro se.”
3. Ms. Ellis, through her counsel, sought a Stalking Protective Order against me. I, as “pro se” Respondent, vigorously and passionately defended my position by asserting that I never contacted or stalked Ms. Ellis under O.C.G.A. §16-5-90. But even if the Court concluded that I had “contacted” Ms. Ellis under said statute, I argued that my speech fell well within the scope of the First Amendment and did not constitute “stalking”. Ms. Ellis, through her counsel, attempted to place responsibility of forum posts I had not written upon me based on the flawed and incorrect argument that because I was able to delete the forum posts and chose not to do so, as equivalent to me endorsing or authoring the content of said forum posts. I asserted 47 U.S.C. § 230 (Section 230 of the Communications Decency Act of 1996):
“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.” This federal law preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
In simpler terms, the author of any forum post is only responsible for what he writes and no one else. This has been and continues to be well supported in state and federal cases throughout the U.S.
4. Although I acknowledge that the Court has no responsibility of what other lawyers have said to me or about me in the past or might say to me in the future, I want to inform the Court of a particularly shocking and appalling incident that occurred during an afternoon break of the 2013 hearing. The Court might recall that I openly complained that I, as an untrained non-lawyer, knew sufficiently enough to produce three sets of exhibits (one for myself, one for the Court, and one for opposing counsel) yet Ms. McBride, a trained, professional lawyer in good standing, did not have the respect or professional courtesy to provide me (a “pro se” defendant), not one extra copy of ANY exhibit during the hearing. Not one. During one of the afternoon breaks, a female lawyer whom I did not know or ever met before openly said to me “That is what you get for not hiring a lawyer.” This unsolicited and open statement directed at me was shocking, appalling, and entitled. Every citizen has the right to represent themselves “pro se” and expect to be treated fairly, respectfully, and professionally by opposing counsel and any court. What this says to me is that there is at least one practicing lawyer (perhaps many others) in Columbus/Muscogee County that has a general disdain and disrespect towards “pro se” litigants such as myself. On behalf of myself and all future “pro se” litigants, I respectfully request this court to consider that in any future hearings that the simple professional courtesy of additional copies of exhibits for opposing “pro se” litigants be enforced. This is not a controversial or unreasonable request especially since most opposing counsel themselves would insist that they receive the same.
5. Coming into any hearing before the Court, practicing lawyers in good standing already have a substantial “natural advantage” over any untrained non-lawyer “pro se” litigants such as myself. Given this substantial “natural advantage”, I assert that opposing counsel, Ms. McBride, was unprofessional and took unfair advantage of me and my “pro se” status during the February 28, 2013 hearing by not providing me ANY copies of ANY exhibits even when requested. In fact, because of her “natural advantage” as a lawyer in good standing, she had a duty to exercise extra caution and act fairly towards me as a “pro se” defendant. Taking unfair advantage of a “pro se” litigant can result in unintended consequences. In my view, she wasn’t “doing her job”. She cheated and deprived my rightful ability to easily reference those exhibits used against me. And yet, she sat with copies of all my exhibits conveniently in her possession that she could refer to anytime during and after the hearing. I was forced to rely on my memory and brief notes I made during one of the breaks.
6. While Ms. McBride can make the argument that she could not immediately leave the courtroom to provide me copies of any court exhibits, the Court amply provided her at least two substantial breaks for her to correct this alleged “oversight”. Despite my open complaints in court (which are in the transcript), she chose not to do so. For this, I do not blame her client, Ms. Ellis, for this. I place full responsibility and blame upon Ms. McBride. She is a lawyer in good standing and has practiced law for many years. She is not a newcomer to courtroom procedure. She knows better and she deliberately cheated to gain unfair advantage against me.
7. Further, there is no good argument that she can make for not providing copies of the exhibits to me AFTER the hearing. I reached out to her several times by phone and email (Exhibits A & B). She was nonresponsive and completely ignored me. Her actions (or lack thereof) were willful, irresponsible, unprofessional, and unfair. It greatly delayed and hurt my (and my lawyers’) efforts to properly evaluate my appellate position for many months. My grievance and complaints against Ms. McBride might be beyond this Court’s jurisdiction but nonetheless I state this here and document it for the record.
8. During the days and weeks following the hearing, I sought and received legal advice of whether I should appeal my case or not. I felt that most appellate cases are generally costly, uphill battles where lower court decisions are often upheld. I was fully aware of this and it was told to me by my appellate lawyers. For any appellate lawyer to fairly evaluate my case, he would need to see the evidence (exhibits) that was used against me. However, I did not have them due to Ms. McBride’s disregard, disrespect, and professional misconduct towards me as “pro se” defendant.
9. Shortly after the original hearing, I (still acting in “pro se” capacity) attempted to contact Ms. McBride four times. Twice by telephone (when I left voice messages with her assistant) and twice by email (Exhibits A & B) I tried to retrieve a draft copy of the final protective order and copies of Ms. Ellis’ court exhibits. I also inquired as to whether or not she wanted to jointly order the court transcript. She was nonresponsive and ignored me every time.
10. Although the Court announced a general ruling at the conclusion of the 2013 hearing, I had no specific instructions and the order had not been immediately written. As such, I, as “pro se” defendant, appropriately sought to inform and advise Ms. McBride to write an appropriate and reasonable order that was not overbroad and one that would not likely result in an appeal filed against her client. I clearly did not want a protective order issued against me but, if necessary, I was prepared to accept a minimal protective order as a compromise. I wanted to make sure that any court order against me was fair, reasonable, lawful, and constitutional. Unfortunately, the final order as written by Ms. McBride and issued by the Court on March 6, 2013 was not. This was not only my opinion. It was the opinion of many lawyers (including First Amendment legal scholars) which greatly influenced me to initiate the appellate process against Ms. Ellis.
11. As I stated, Ms. McBride had the responsibility to ensure that a reasonable and fair court order was written as to not compel me to appeal the case against Ms. Ellis. That would result in unnecessary legal cost and expense for both me and her client. It would not surprise me if Ms. Ellis has since become unhappy with Ms. McBride. Ms. McBride’s poor and unprofessional choice to ignore my requests to see her draft of the protective order and deny me copies of the exhibits unnecessarily harmed not only me but also Ms. Ellis, her client. Ms. Ellis did not have the legal education, background, or experience to understand the negative ramifications of Ms. McBride’s poor choices and actions. Unlike Ms. Ellis, I am far more informed on such matters. I understand the consequences of Ms. McBride’s poor choices. I assert and make the complaint that Ms. McBride forced both her client and me into an unnecessary and costly appellate case which cost both sides several thousands of dollars in legal fees, costs, and expenses in addition to lost time and energy. Although I ultimately prevailed in appellate court, it was all so unnecessary and could have entirely been avoided had Ms. McBride simply handled her client’s case more responsibly. I cannot place blame upon Ms. Ellis in this instance. I blame Ms. McBride.
12. An interesting anecdote I want to share is that on October 7, 2014, in the Supreme Court building where I was represented by three lawyers, Ms. McBride twice approached and attempted to communicate with me directly. It seemed to be an unusual action to take. Once, she called out to me when I was walking from the sidewalk to the entrance of the Supreme Court building. I briefly glanced at her and then ignored her. The second time, I was standing and conversing with my five out-of-state friends/supporters (who traveled to Atlanta to meet me and watch oral argument) in a waiting area. She approached me (us) and asked, “Are you with the Chan v. Ellis case?” I was clearly standing there and she recognized me earlier. She also asked if one of us was Oscar Michelen. This was a disingenuous question as Mr. Michelen’s photo has been and continues to be prominently displayed on the ELI website for seven years. It is ironic that when I wasn’t represented by any counsel that she would not respond to or communicate with me in any fashion. But somehow at the Supreme Court, she felt the strange inclination to try to communicate with me twice despite the fact that I made efforts to physically avoid both her and Ms. Ellis. The time for Ms. McBride to speak with me was during March 2013, not when we finally arrived in the highest court in the state for oral argument a year and a half later.
13. Ms. McBride also had the responsibility to vet her client’s exhibits to ensure they were true, authentic, and representative of the actual forum posts and not let her client submit altered, modified, or obscured exhibits mislead or deceive the Court. I have since discovered that several exhibits shown to the Court were not true, authentic, or representative of the actual forum posts.
14. The point of my presenting “new” exhibits now is not meant as a “retrial”. It is meant to inform the Court and place into the record that the original exhibits presented in the original hearing were not true, accurate, or representative. I had always been bothered by the poor quality of Ms. Ellis’ original exhibits. I never understood why Ms. Ellis presented such extremely poor, distorted, cropped, and marked up exhibits. Conversely, I presented to the Court very “clean”, organized, and easily readable exhibits. It was only after the Supreme Court reversed the order on March 27, 2015 and Ms. Ellis’ continued to make defamatory public statements about me in the media and press as a “stalker” and “cyberstalker” did I finally feel compelled to go into the forum archives (hidden from public view) and personally review every single exhibit she submitted against me at its original online source. I was informed very early on by my appellate lawyers that no new evidence could be submitted during the appellate process. Thus, no matter how poor quality or cropped the original exhibits were, they were the only ones allowed to be discussed and referenced in appellate briefs. I did not like that but I respected the rules. It would be two years later in April 2015 (after Ms. Ellis’ public defamatory statements against me would not cease) that I finally decided to compare and analyze Ms. Ellis’ poor-quality exhibits with the original source material online.
15. Although I prevailed in the Supreme Court, there were still matters of public perception and my online reputation I wanted to rectify. Ms. Ellis seemed determined to defame me and my reputation even after the Supreme Court decision. There is no denying that my own writings in prior forum posts and one video don’t paint me in a flattering light. I (along with my supporters) became very unhappy with Ms. Ellis’ continued online antics of taking my words entirely out-of-context and distorting the actual meanings. Because Ms. Ellis used such tactics publicly as her primary weapon against me to damage my online reputation, I had to discover for myself how far she took it with the original court exhibits. What I discovered in the forum archives when compared to her court exhibits was upsetting to me.
16. In Exhibit C, my comment about Ms. Ellis being “dead right” seems to stand alone. However, my comment is actually an open response to April Brown’s comment from June 23, 2012 which was cropped out of the court exhibit and not at all directed to Ms. Ellis. The cropping and omission was not an accident.
17. In Exhibit D, the court exhibit implies that April Brown embedded the “death” lyrics of the “Hearse Song” in the forum post. And yet the actual forum post (below the court exhibit version), never had any “death lyrics” whatsoever. It was simply a lone posting of a “Hearse Song” YouTube video. I included the follow-up post to the YouTube video which clearly shows April Brown’s comments that have NOTHING to do with death or violence. The addition of the “death lyrics” was intentional.
18. In Exhibit E, I provide the first three never-before-shown posts of “Ellis – Get Ready – We Are Coming After You!” as the originating context for that thread of discussion. Ms. Ellis emphasized (through an oval mark) that boisterous topic title. And yet, if the Court reads the first three posts, it has to do with April Brown’s moral outrage over Kalka & Baer’s (Ms. Ellis’ attorneys) $100,000 demand letter issued on behalf of Ms. Ellis to a book author over an unknowing sharing of her poem. Part of the argument for my position in my appeal was that the Court was unable to fully view the true and full context of the exhibits because what Ms. Ellis presented was cropped, modified, obscured, or out-of-context.
19. In Exhibit F, Ms. Ellis presented her exhibit as if it were “current” as of the February 28, 2013 hearing that ELI user, Robert Krausankas, posted a photo of her home and Ms. McBride implied that it was still online. And yet in the forum archives, the full post shows that as of January 17, 2013, Mr. Krausankas modified the post to display only the hyperlink, not the photo. In other words, on February 13, 2013 when Ms. Ellis applied for the Ex-Parte Temporary Protective Order, she made the false statement in her petition that the photo of her home was still being posted online, when in fact, as of January 17, 2013, Mr. Krausankas had already removed the Google Street View photo of her home of his own accord! At the February 28, 2013 hearing, Ms. Ellis and Ms. McBride again made the false assertion that the photo of her home was still being shown online for the purpose of threatening Ms. Ellis. It was not. The Court was mislead. The full, uncropped forum post clearly shows that Mr. Krausankas was illustrating what Ms. Ellis publicly reported to the State of Georgia as the address of her daycare center business (Kindercare Learning Centers)! Mr. Krausankas did not post the photo to “threaten” Ms. Ellis in any way. Ms. McBride irresponsibly echoed Ms. Ellis false assertions and helped perpetrate a lie without checking online for herself her client’s “exhibits” prior to the hearing.
20. The four exhibits (Exhibits C through F), are more than sufficient to illustrate my points. I was both foolish and naïve to assume that any forum posts Ms. Ellis would show to the Court would be complete and in its full context. I never suspected that she would submit such extremely altered, modified, and obscured forum posts. Nor did I suspect that Ms. McBride would not vet her client to ensure that the exhibits provided were in fact true, authentic, and representative of the actual posts. As an inexperienced non-lawyer, I did not request from the Court that Ms. Ellis show and display the full forum discussions in its proper context and that it be printed out for all parties to review and scrutinize. Nor did I ask the Court to instruct Ms. Ellis to go online while in court to confirm the accuracy of their exhibits. Ironically enough, the “affidavit” submitted by Seattle lawyer, Timothy B. McCormack (which I fought to have put aside), provided the “cleanest”, most readable, and unaltered versions of forum posts (although they were still isolated from the fuller context of online discussion.)
21. Another significant factor that influenced my decision to submit this Declaration is that my appellate lawyer, Oscar Michelen, felt compelled (with my authorization) to send Ms. Ellis a Cease-and-Desist Letter (Exhibit G) on my behalf on April 13, 2015. This letter speaks for itself. It was written to clearly inform and put Ms. Ellis on notice that we would not stand idly by while she continued to publicly and defamatorily refer to me as a “stalker” and “cyberstalker” when the legal matter of whether I “stalked” her was ruled and settled unanimously in my favor by all seven Justices of the Supreme Court.
22. During the trial, through my own oversight, I never presented the 18 testimonial letters (Exhibit H) written on my behalf. These testimonials letters come from supporters throughout the U.S. and even internationally such as Israel, Canada, and Australia. You will find that these letters are from intelligent, well-informed individuals who were witness to me, ELI, and online discussions about Ms. Ellis. I present them now as part of the overall record.
IN CONCLUSION, barring any unexpected developments or follow-up responses by Ms. Ellis or Ms. McBride, I consider this Declaration my capstone statement on the matter with this Court. After everything I have seen and experienced, Ms. McBride and Ms. Ellis have proven to be dishonorable and untrustworthy. I (along with my supporters) remain vigilant and keep a watchful eye of signs they might falsely attack me or my reputation again. If that happens, I will once again be compelled to vigorously defend myself as I did before.
At this juncture, I do not request anything from this Court except to respectfully consider and take into account everything I have written in this Declaration. No one can change or undo the past but perhaps others can learn and benefit from this case by being informed and cognizant that things are not always what they appear to be. I have learned much from the last 2.5 years. This case has been an educational and life-changing experience I will never forget and hope to never repeat.
This 14th day of August, 2015.
Respectfully submitted,
Matthew Chan, PRO SE P.O. Box XXXX Columbus, GA 31917
This is Part 6 of the “Cleaning Up the ‘Chan v. Ellis’ Mess” commentary series. If you have not read Parts 1, 2, 3, 4, and, 5, you should do that first and then come back here. Everything will make more sense to you.
Linda Ellis (Dash Poem author) and her lawyer, Elizabeth W. (Betsy) McBride, through their unwise choices wasted many people’s time, energy, and resources by forcing me and my team into the Georgia appellate process. Although many unintended benefits and priceless relationships were formed along the way through this two-year ordeal, none of this had to happen.
But the Chan v. Ellis appeal happened, it was ultimately decided by the Georgia Supreme Court Justices, and that case and decision is now part of Georgia legal history. Following the decision, one might think it is now resolved and all over. I was hoping it might but, unfortunately, the often-foolish Linda Ellis made certain declarations and took actions post-decision that were brought to my and my lawyer’s (Oscar Michelen) attention.
What people need to understand is that no matter how much Linda desperately tries to portray me in a “stalky” fashion, I can easily and objectively prove my claims and assertions all using the proper context. Linda is so foolish that she cannot see the havoc and collateral damage she has caused so many people in her efforts to smear me. She might have succeeded in creating some collateral damage for me and ELI but as time passes, she might one day see that she is being self-destructive and will have caused immeasurable harm to herself, her “employee” John W. Jolin, and her lawyer co-horts, Timothy B. McCormack and Elizabeth W. (Betsy) McBride and quite possibly even the law firm Betsy works for.
Oscar Michelen’s Cease-and-Desist Letter to Linda Ellis
But first things first. After a great deal of discussion and reflection, I am now publicly releasing Oscar Michelen’s Cease and Desist Letter (on behalf of Matthew Chan) to Linda Ellis. It was sent to Linda’s lawyer, Elizabeth W. (Betsy) McBride on April 13, 2015. We have no way of knowing for certain if or when Betsy received Oscar’s letter. He informed me that he had both emailed her and mailed a copy to her using the U.S. Postal service. As far as we know, Betsy still represents Linda in all matters between the legal dispute between me and Linda including matters following the Georgia Supreme Court decision. Hence, Oscar sent his letter to Betsy which should then be delivered or communicated to Linda.
Given that it has been two full business days with no acknowledgement of receipt or response by Betsy, I see no reason to further withhold Oscar Michelen’s Cease and Desist Letter to Linda Ellis from public viewing. It is our intention to settle once and for all the matter of her potentially defamatory language when she makes false statements of fact about me and the case. I believe Betsy is capable of clearly explaining to Linda that she is perfectly able to use the words “stalker” or “cyberstalker” in her vernacular. But as it relates to me, we now regard the style of her usage as potentially defamatory against me. Certainly, no one can make Linda do anything she does not want to but going forward she has been issued a formal, legal notice.
I have never issued a formal “cease and desist” letter through a lawyer before. This is my first time to do so. But only because Linda caused such a public, legal train-wreck that continues to cause collateral damage that I agreed to have a Cease & Desist letter written.
Cease & Desist Letter to Linda Ellis Was Not My Idea
I want it known that Oscar Michelen’s Cease and Desist Letter to Linda Ellis was not even my idea. I didn’t even push for it. Full credit goes to my friend and ELI supporter, Robert Krausankas. He read something that Linda posted online about me which irritated and bothered him. Robert then emailed me and Oscar and suggested that a “letter” needed to be sent to Betsy and Linda.
To Oscar’s credit, he quickly replied to Robert’s email and said he would get right on it. And yet, I was slow on the uptake and didn’t even understand what kind of “letter” Robert was referring to that Oscar immediately agreed to write. I had to call Robert and ask him what kind of “letter” he was referring to! And before I really had a chance to think and consider what verbiage might be in the letter, Oscar had quickly drafted and emailed me an early version of the current letter for my review. I was pleasantly surprised at what I read.
Many people seem to think I am the “instigator” of many controversial ideas. That is sometimes true. But in this case, Robert wholly initiated the idea and Oscar quickly acted upon the idea. Apparently, Oscar also became dismayed at what my supporters were emailing to Oscar. My friends and supporters were emailing him screenshots and links to webpages and videos of Linda using potentially defamatory language and making false statements of fact about me and the case. And what they emailed Oscar became a “hot mess” collection he viewed and sorted through.
Linda made factually incorrect public comments about me and actually encouraged her followers the dissemination of such false statements about me and the case. It was interesting to read her Facebook followers various responses suggesting she exercise her Second Amendment rights as well as luring me into range so that a gun might legally be used against me.
Meanwhile, I was taking a careful, methodical approach to evaluating the court exhibits and taking the time to write and directly acknowledge some of the crazy, paranoid assertions Linda made in the last two years. The Cease and Desist Letter Oscar wrote was modified several times because Linda kept adding to the list that my supporters were compiling on her about me and the case. Many of my friends and supporters wanted Oscar’s Cease and Desist letter to go out quickly. However, I felt I needed time to take careful inventory of how much and how far Linda would go during her online rampage and smear campaign of me. I asked Oscar to withhold sending the letter until I could get a good assessment of how far Linda was going to go. I also needed time to write and publish the first 5 parts of the “Cleaning Up the ‘Chan v. Ellis’ Mess” commentary series. I thought it would save Oscar a lot of time by simply having him and everyone else refer to those crucial blog posts. There was no need to recount the same explanations and discoveries more than once if it could be avoided.
While I do not want to put words into Oscar’s mouth, I think everyone plainly understands Oscar’s position (through his choice of words within the cease-and-desist letter) of this big, hot mess Linda started of which Betsy only made worse. Even when the matter has been decided and resolved, Linda continues to be a troublemaker and unnecessarily draws attention to Betsy McBride and her role of not vetting her client and her case more carefully and doing a horrendous job vetting her client’s exhibits. If Betsy is able to be objective enough and step back to look at what I uncovered with the cropped, obscured, modified, and altered exhibits contributing to the lower court’s wrong decision, she should realize Linda has caused a great deal of potential embarrassment to so many people. That list might include herself, Judge Frank Jordan, Muscogee County Superior Court, and Betsy’s law firm: Page, Scrantom, Sprouse, Tucker, Ford. Tangential to that list is the fact that Betsy’s husband, Gil McBride, is a Superior Court Judge for Muscogee County Superior Court who works alongside Judge Frank Jordan in hearing cases for the greater Columbus/Muscogee County area.
Can anyone else besides me see how this can become a big, hot embarrassing mess? Unfortunately, Linda is at Ground Zero! If I were Linda’s lawyer, I would tell her to just “shut the hell up and move on”. But I suppose that is why I could never be a lawyer because what I just proposed is “unlawyerly” behavior.
Even without regard to the embarrassment issue to Betsy herself, does Linda honestly think that Oscar (with whom I have worked with and fought so many battles against copyright extortionists for seven years) will continue to stay silent while one of his long-time business associate’s reputation gets pounded into dog-meat? Oscar absolutely hated that the 2013 PPO that was issued against me. He insisted that I appeal the order and he insisted that he be my lawyer. He didn’t want anyone else to handle my case. When my appeal was transferred to the Georgia Supreme Court in July 2014, Oscar insisted on flying down to Atlanta to do oral argument when I was simply content with the legal briefs. Smearing and damaging my reputation also indirectly damages Oscar’s business reputation. One day, Oscar may want to part ways with me. But for the here and now, does Linda really want to invite more “unhappiness” from Oscar, as well?
Does Linda need to be reminded that around 1.5 years ago, Oscar sent a cease-and-desist letter addressed to her “employee”, John W. Jolin, for engaging in potentially defamatory behavior trying to tarnish Oscar’s name and reputation by slyly insinuating he contributed to my alleged (but now wholly disproven) “stalking”? Oscar doesn’t get riled up easily but John managed to get a serious rise out of Oscar because Oscar is very protective of his reputation. John must have thought we would never see the outrageous emails to his victims. But with special thanks to April Brown (author of “Poetic Justice“) and her special relationship with fellow Dash Poem extortion letter victims, she kept us informed. From what I can tell since then, John had the good sense to never engage in such despicable behavior where Oscar’s name was concerned.
However, I do have copies of John W. Jolin’s emails about ME that are pseudo-defamatory because John makes a veiled reference of Ari Hinnant’s (online scammer from 2009-2010) so-called “accusations” about me, who intentionally made seriously outrageous and OUTRIGHT DEFAMATORY statements about me. Timmy McCormack has tried a similar tactic of trying to make veiled references to Ari Hinnant without owning up to the fact that he knows they are entirely untrue and would be considered absolutely defamatory. It is a slippery slope that John and Timmy have walked. Time will tell if they want to try that again.
To be clear, Ari Hinnant’s statements about me weren’t pseudo-defamatory, they were PLAINLY DEFAMATORY. Ari Hinnant is the one person I have seriously considered filing a defamation lawsuit against. I did not do so because there was no meaningful money or assets to go after. No matter how I might feel about Linda, John, Timmy, or Betsy, I want there to be no confusion as to how I feel about Ari Hinnant. To give some basis of comparison of my contempt and disgust of Ari Hinnant, I would sooner become friends and allies with Linda, John, Timmy, and Betsy than deal with the scum known as Ari Hinnant. Objectively speaking, I know it’s hard to fathom, but in that hypothetical scenario, I believe Linda, John, Timmy, and Betsy are much better human beings than Ari Hinnant.
I give fair warning to anyone that if someone ever wants to go down the Ari Hinnant path and want to embrace her words and insinuations as truth, they can expect I will be calling in a LOT of favors to remedy the situation. I don’t often ask or call in favors but if I do, I promise it will become very unpleasant.
I rarely scream “defamation” as I know the general standards to meet the level of defamation. But “defamation” and “false statements of fact” are clear exceptions to the First Amendment. Linda Ellis is now being warned and put on legal notice to “cease-and-desist”.
I have to believe the irony is not going to be lost to my readers that the the Dash Poem extortionist who has issued so many legally-threatening letters is now on the receiving end of one.
Greg Troy, of CABALaw.org, has come out with his most informative post yet relating to our favorite Dash Poet, Linda Ellis, and her smear campaign against me and April Brown, author of “Poetic Justice”. The succinct title of his recent post is “Who is Stalking Whom?” Of course, none of the information Greg provided would be necessary if the Linda’s Lyrics / Dash Poem Letter Forum on the ExtortionLetterInfo.com (ELI) Forums was not ordered taken down by court order (now under appeal).
In the absence of that valuable resource, Greg decided to shed some light into the history of what is currently an online war with me, Greg, Robert Krausankas of Copyright-Trolls.com, and April Brown on one side and the Dash Poet using an “anonymous” account named “Good Prevails” on the other.
Greg’s article largely speaks for itself. However, I did find some interesting nuggets from all the screenshots Greg captured and shared. It appears that on the day that the Dash Poet conducted a “cyber-strafing run” on Greg’s various business online accounts, she made a total of 12 hits to his Google+, YouTube, Twitter, and WordPress accounts. There were two Google+ posts, two YouTube comments, one Tweet, two Facebook posts, and five WordPress comments. Based on the time-stamps I saw, it occurred approximately from 3:25pm to 3:40pm (15-minute span) using mostly cut-and-paste types of posts, nearly all of them included her 60-second clip of my online rant from the 9th Episode of The ELI Factor and her snide and snarky remarks.
Prior to this incident, some of us suspected that the Dash Poet was posting “anonymously” using the handle “Good Prevails”. This is in keeping with her prior pattern of online behavior. However, we never had “proof” it was actually her, just a strong suspicion. However, if you look at Greg’s WordPress screenshot, it clearly shows the IP address (162.235.197.19) of the commenter and the “Good Prevails” email address (goodprevails11@gmail.com) that is typically hidden. (Note: Click on image to magnify.)
IPLocation.net is a nice online tool that queries six IP address databases and reports on approximately where the IP address originates and the Internet Service Provider (ISP). When I input 162.235.197.19, the screenshot to the left was the result that was displayed. I think the screenshot speaks for itself. Nearly all of the IP address databases report that the IP address that WordPress recorded from Greg’s website came from Marietta, Georgia with AT&T as the ISP. (Note: Click on image to magnify.)
(UPDATE: This Facebook screenshot was provided after release of the first version of my article.) In this screenshot provided by Greg, we see the Dash Poet makes no efforts to disguise her identity with these two posts on Greg’s business Facebook account with, of course, her links to her YouTube clip of me. The whole idea is that she wants to “expose” his clients to Greg’s association with me.
Does anyone else besides me find her wording amusing? The words used in her Facebook posts to Greg certainly doesn’t sound much like those coming from a poet, does it? (Note: Click on image to magnify.)
Next up, we have Greg’s screenshot of his Twitter account, that clearly identifies the Dash Poet herself along with a photo! I don’t think it gets much more clear that it was her. (Note: Click on image to magnify.)
When you look at the big picture and see someone making 12 posts and comments across someone’s business web accounts, you have to wonder what exactly is the point and how will that serve her? Is this supposed to be a hint or a veiled threat to Greg to beware his decision to publicly be my friend and supporter? If that is the case, she is late to the party. I already forewarned him. Greg already knows an awful lot about me and yet, stunningly, he is still a loyal friend, supporter, and volunteer.
My guess is that the Dash Poet won’t like this very much. It must be very perplexing to her why I have such strong and loyal support. Some might say, there is no accounting for bad taste in friends or it might be my “cult leader” status and influence on people! *wink* I try not to think too hard about it. I am grateful for the smart and capable people who lend their names to be my friends and supporters.
Admittedly, the information and screenshots Greg provided are largely circumstantial evidence. However, we are not in a court of law trying a criminal case. We are dealing with a civil matter using common sense. It is clear to us that it has been the Dash Poet herself all along cyber-strafing Greg’s online accounts (within 15-minutes) as well as bouncing through the interwebs leaving her “stalkie-talkie” comments about me.
She has long been riding the horse that I am a “stalker”. She has been riding and grinding that horse so hard, you would think she was a nympho trying to kill the horse. Well, as Greg asked, “Who is Stalking Whom” here? She goes into April’s “Get Poetic Justice” Facebook page and leaves her inane marks there. She bounces around the interwebs “seeding” her pathetic, out-of-context clip of me, making a fool out of herself. And now, she wants to cyber-strafe Greg’s accounts in the hopes Greg might back down?
Also for a poet, she certainly has a way with words.
“Dude work must be slow since you have so much time to spend defending your best friend, stalker. This is free speech and I KNOW how you are an advocate, so I’m sure it will be left here. Screenshot taken so after you delete, we can show you how much you believe in free speech. Here’s you (sic) good good buddy in action: https://www.youtube.com/watch…”
Apparently, her lawyer didn’t explain that free speech doesn’t mean you get to invade someone else’s online accounts with their unwanted speech. It means you stay on your fucking side of the fence or you go to a place where the public is allowed to make such speech, not on someone’s privately-owned website. Greg has the absolute right to kick anyone out off of his website. April was the only one that allowed the Dash Poet’s drivel on her “Get Poetic Justice” Facebook page. Although admittedly, April wanted to show the world the idiotic behavior by the Dash Poet.
It’s kind of funny how the Dash Poet “threatens” to take screenshots of her comments to Greg’s business website but it is Greg who has HAPPILY taken his own screenshots and disseminating it to whoever wants to see them or report on them.
I highly recommend everyone interested in this “online war” to read Greg’s post, “Who is Stalking Whom?” You decide for yourself.
Before I begin, I want to do a full disclosure that Greg is a friend of mine, ExtortionLetterInfo (ELI) forum administrator & moderator, and a member of the ELI Support Team. I did not ask or instruct him to write this blog post. He did this of his own volition and only shared it with me after he was nearly completed. To be sure, I am grateful for his friendship and ongoing support of me and ELI. I have forewarned him that he places himself at some degree of “reputational risk” by publicly associating his name with mine as well as our mutual support of April Brown, author of “Poetic Justice”.
Greg, in his anger over watching has been happening with April and me, enters the fray and unleashes his story recounting some of the significant and dramatic Dash Poet events since 2012. Greg’s post is a must-read for anyone who wants to learn the history of the Dash Poet’s battle with me, April, and ELI. Certainly, many of you have read my version of recent and past events but it is always fascinating to read what someone else writes about you and their recollections. Remember, Greg is a friend but I didn’t write his blog post. This is all his baby and he has a good story to tell.
Greg has “come out” with certain events that I was reluctant to discuss like the recent “shirtless” video incident. Greg came out with it because he knew I was angry about the distortion of the context of the “shirtless” video from a few years ago when I was testing the UStream video streaming service. I didn’t discuss it because it appeared the Dash Poet took down the video very quickly. She took it down so quickly I didn’t have a chance to make a copy of that video. The clip she used was an extremely poor version of the original which has been long deleted. As Greg pointed out, that video “conveniently” blocks out much of the context and description of the video. Fortunately, there was enough to make out what it’s true purpose was, to test a video streaming service, not some secret sex-related video as was seemingly implied by the Dash Poet.
Anyone that knows Greg knows that he is a respectful, polite, mild-mannered guy. But under that demeanor lies a man that isn’t afraid to speak his mind, taking up a cause, and making a stand to support his friends. For that, I am grateful for his loyalty and friendship.
On January 7, 2015, Dash Poet, Linda Ellis opened fire on April Brown by posting comments, remarks, and warnings on her book marketing website GetPoeticJustice.com and informed April about smear-and-shame website JustFreeSpeech.com and LindaLogic.com/obsession.html by posting on April’s “Get Poetic Justice” Facebook page. They were the Dash Poet’s attempt to dissuade and discourage April from releasing her book. As a consequence, knowing April as well as I do and because of our friendship as well as our shared distaste for the Dash Poem copyright extortion scheme, I felt compelled to publicly defend and support April in a way that very few could.
When someone attempts to commit reputational harm through out-of-context information, incomplete information, or outright fiction, the only way to combat it is to call the offending party out on it, challenge it, and passionately present your facts and argument armed with empassioned logic, reason, transparency, disclosure, explanation, and allow others to critique and make their own judgments. I tend to believe most people have the ability to discern the truth if there is complete information, disclosure, and transparency without the need to erect Chinese walls (as the Dash Poet continues to do).
I support April the way I do because part of the Dash Poet’s strategy has been her attempt to damage April’s reputation by desperately tying her personal and business reputation to me and my so-called “stalking” case. Certainly, the Dash Poet has every right to call me a “stalker” until she passes out from sheer exhaustion (one can only dream). Likewise, I can and do call her a “hypocritical copyright extortionist” as well as many other politically-incorrect, insensitive, occasionally-sexist, profanity-laced names, which of course, is reflective of my own human failings, flaws, pettiness, and occasional stupidity.
But guess what? I am not a perfect human being and they are all allowed by the First Amendment as long as I don’t engage in physical or safety threats which I have never done. People who know me absolutely know about most of my personal flaws and human failings where I engage in blunt profanity, name-calling, personal insults, rants, and occasionally petty behavior. It is no shock to them. I do all of these things in person, in my writings, and even in videos. I am reasonably consistent no matter what subject matter I am discussing or media platform I use.
The reputational assault on April by the Dash Poet was not something I was going to tolerate and stand aside on especially when I am well qualified to speak to both parties especially in the “unique” case I have with the Georgia Supreme Court. So, yes, I was absolutely going to aggressively and passionately speak out on behalf of April. I also knew, at some point, that the Dash Poet would aim her shotgun my way. I was informed that JustFreeSpeech.com was registered October 11, 2014, four days after my and the Dash Poet’s Georgia Supreme Court oral argument session. That tells me that despite the fact it currently hosts “smear-and-shame” information about April, that website was originally intended for me.
Opening shots on me and my reputation have already been fired by the Dash Poet. I cannot say I know what other bullets and grenades are in her arsenal but she is stupid if she thinks that I am alone. It would appear for reasons she and her copyright extortionist allies like girly-Getty Images lawyer Timothy B. McCormack cannot fathom, I seem to attract and maintain a group of seasoned, intelligent, independent-minded, entrepreneurial-spirited, and resourceful supporters. (We come from similar asylums. *wink*.) To be clear, they all do so for their own personal reasons (psst… a dirty little secret is that I blackmailed all of them or otherwise bribed them *wink*). Gosh knows, I would NEVER win a popularity contest or likeability contest. That ship sailed long ago when I hit 18 three decades ago. I personally think that some of my supporters are sycophants which is why they stand near me if they don’t stand by me. *wink*
I believe that talk is cheap. I said years ago that I am a stern defender and fighter for my friends and business associates ESPECIALLY if they are being attacked with bullshit tactics and false or distorted accusations. It is clear that the Dash Poet crossed the line by making veiled threats on April and launching her “smear-and-shame” website against April. It is a damned good thing I spent lots of time getting to know April both on a personal and a business level. It makes it easy for me to write about her. Pssst. I know this might be a shocker to many of you but I actually discovered that April is an imperfect human being who has made mistakes in both her personal and business life over the years. Can you imagine that? And she has the nerve to actually share that information with others. Despite all these personal flaws, April has the gall to think (with all her personal failings and dumb mistakes in life) she can actually still do some good in the world by giving free counsel to people who were dumb and ignorant enough to share a sappy, “Dash”ing poem with others and help those nincompoops get out of paying thousands of dollars in damages by writing a book! Is April a lunatic, sicko, or what? *wink*
Since April and I came from similar asylums, we understand each other and we are in competition to see who can make the dumbest mistakes and embarrass themselves the most. *wink* It is okay for me and April’s friends to do it but it is not okay for the Dash Poet to do it. She isn’t a member of the “Mean Boys & Girls” club so she doesn’t know the rules of the game. Some of those rules we follow are:
Stop blocking important pieces of fact and data.
Stop blocking, twisting, and distorting the actual context.
Try to show some real transparency, not a mirage of one.
Don’t build Chinese walls when telling your story.
Try not to be a walking, breathing hypocrisy.
I know there are more rules than that but those were the five I immediately thought of.
I never expected I would be involved with April’s book marketing efforts of “Poetic Justice” in quite this way. I thought I would simply pass the word along about her book. But April’s decision to release “Poetic Justice” and speak out on behalf of April has apparently resulted in my receiving my own “smear-and-shame” grenades thrown my way courtesy of the Dash Poet. I have no regrets standing up for April as she works to release her book. But I hope all of you will forgive the fact that I will also have to defend myself from the “smear-and-shame” grenades now being tossed my way. The upside to all this is that I think some of you might enjoy the drama as it unfolds. If you are the sort of person who wants to watch an imperfect and obnoxious person get grenaded upon and fight back with the weapon of words, come back to Defiantly. Better yet, subscribe by email! I promise I will do my best and tell some entertaining stories at my own expense! Admit it, we are all rubber-neckers to this sort of stuff. Need I say anything more?
It appears that my outspoken defense of April and her right to publish her book about the Dash Poet and the Dash copyright extortion scheme is resulting in getting more collateral damage my way.
The Georgia Supreme Court website has posted the oral argument video for public viewing. I am currently reserving personal commentary for the time being. But believe me, LOTS of personal commentary by me and my supporters will be trickling out in the weeks and months to come. Although I continue to maintain my presence and periodically post on ExtortionLetterInfo.com, my best and most brutally frank commentaries will be found here on Defiantly.
Pay close attention to Justices David Nahmias, Harold Melton, and Keith Blackwell in the last 20 minutes. You will find their questioning and comments quite insightful and perhaps even entertaining. Also note their voice inflections and facial expressions.
Please note that this video will only be up for one month for public viewing on the Georgia Supreme Court website. I am in the process of having a copy and transcript of this video made and the video hosted elsewhere for ongoing reference and viewing after the removal of the video from the Georgia Supreme Court website.
UPDATE (November 16, 2014): I have since purchased the DVD video of the Chan v. Ellis Oral Argument from the Georgia Supreme Court. The videos have since been posted on my YouTube and Vimeo accounts. Please visit this post to get access the oral argument videos.
SUPPLEMENTAL BRIEF OF APPELLANT IN RESPONSE TO SECOND AMICUS CURIAE BRIEF OF TIMOTHY B. MCCORMACK
.
Respectfully Submitted,
Oscar Michelen (Courtesy Admission)
NY State Bar No.: 2058477
CUOMO LLC
9 East 38th Street
New York, NY 10016
William J. McKenney
GA State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
.
.
TABLE OF CONTENTS
Table of Citations ……………………………………………………… ii
I. Preliminary Statement ……………………………………………….. 1
II. Discussion of Facts …………………………………………………. 1
II. Argument and Citation of Authorities ………………….…………… 2
A. THE US SUPREME COURT HAS ANALYZED CIVIL INJUNCTIONS BETWEEN PRIVATE LITIGANTS AS PRIOR RESTRAINTS ON SPEECH ………….. 2
B. BECAUSE APPELLANT’S POSTS ARE NOT “TRUE THREATS” THEY ARE PROTECTED BY FEDERAL LAW AND WERE THE SUBJECT OF AN OVERLY BROAD RESTRICTIVE ORDER …………………………………………… 4
C. APPELLANT HAS NOT WAIVED HIS RIGHTS ……………………………… 7
D. THE COMMUNICATIONS DECENCY ACT MAKES APPELLANT IMMUNE FROM LIABILITY FOR POSTS MADE BY OTHERS ……………………………… 8
E. THAT APPELLANT CAN POSSIBLY SPEAK ABOUT APPELLEE ON OTHER OUTLETS HAS NO BEARING ON WHETHER THIS ORDER IS CONSTITUTIONAL . . . 9
IV. Conclusion …………………………………………………………… 10
.
.
TABLE OF AUTHORITIES
Cases
Austin v. Keefe 402 U.S. 415 (1971) ……………………………………….. 2
Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008) …………………………………………………………………………………………. 9
Jones v. Dirty World Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED Ky. 2012) ………………………………………………………………………………………………..10
Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994) …………………………. 4
“Social Shaming Works Faster Than Legal Recourse”
https://www.techdirt.com/articles/20120730/07105419881/social-shaming-works-faster-than-legal-recourse.shtml ………………………………………………………… 7
“Why Social-Media Shaming is Okay”
http://www.buzzfeed.com/mattbuchanan/why-social-media-shaming-is-okay ….. 7
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PRELIMINARY STATEMENT
This supplemental brief is submitted by Appellant in response to the Supplemental Amicus Curiae Brief of Timothy B. McCormack, filed in support of Appellee.
.
DISCUSSION OF FACTS
The Supplemental Amicus Curiae Brief (referred to hereafter as “SACB”) attempts to paint the few Internet posts involved in this case as “true threats” in order to have the Lifetime Protective Order survive the strict scrutiny analysis required of content-based restrictions on speech. The only way the SACB can do that is by mischaracterization of the facts in the record and mischaracterization of Appellant’s argument. Appellant will highlight some of those factual mischaracterizations in this section.
(A) On page 8 of the SACB, the Appellant is accused of cyber-bullying Appellee’s daughter when the only post about Appellee’s daughter was “MEE, museum” -her initials and her workplace. T. at pages 53 and 66;
(B) On page 10 of the SACB, one of the purported threats was characterized as a “ransom note” when the only evidence of the purported note was Appellee’s uncorroborated testimony that she “received a letter from [ELI], which I am currently trying to locate so I can honestly say yes, I have been notified with a ransom note type letter.” (T. at page 62). No such note is in the record.
(C) The SACB, on pages 10-11, then lists other purported threats contained on ELI but not the context in which they were made or that, as Appellant testified, they were just “figurative” speech (T. at pages 21-24). Appellant’s Brief and Supplemental Brief in Response to the Amicus Brief analyze and discuss these posts in detail.
.
ARGUMENT AND CITATION OF AUTHORITIES
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A. THE US SUPREME COURT HAS ANALYZED CIVIL INJUNCTIONS BETWEEN PRIVATE LITIGANTS AS PRIOR RESTRAINTS ON SPEECH
The SACB argues that the First Amendment is not implicated in this case as the order does not qualify as “State action” because it only deals with the rights of private parties.
Since Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), the United States Supreme Court has evaluated injunctions against speech as prior restraints. In Austin v. Keefe, 402 U.S. 415 (1971), the Court struck down a preliminary injunction granted in a civil action between private parties for violating the First Amendment. The order banned a community organization from distributing leaflets in a Chicago suburb which were critical of a real estate agent’s business practices.
In overturning the order, the Court stated that it was not important that the matter was between two private parties because the order served to stop the dissemination of information to the general public. Id. at 418-419. The Supreme Court stated that it was also irrelevant that the community organization’s primary motive was “not to inform the public but to force the respondent to sign a no-solicitation agreement.” Id. at 419. Justice Burger, writing for the majority, used language that could not be more applicable to the case at bar had it been written by Appellant instead:
The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent’s conduct by their activities; this is not fundamentally different from the function of a newspaper. Petitioners were engaged openly and vigorously in making the public aware of respondent’s real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.
Id. (internal citation omitted).
Much of the Supreme Court’s First Amendment jurisprudence regarding abortion clinic buffer zones also has been the result of analyzing injunctions sought by and/or levied against private parties. See, e.g., Schenck v. Pro-Choice Network of Western New York. 519 U.S. 357 (1997); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).
The SACB cites only one case for its proposition that an injunction between private parties cannot invoke State action sufficient to warrant First Amendment scrutiny, McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2004)(an abortion clinic buffer case as well). While McGuire did state that every First Amendment claim requires State action, the court also stated that “enforcement [of a content-neutral statute] against a given person in a particular situation could be invalid on an as-applied basis.” Id. at pg. 59. That is what Appellant is arguing here. There is also State action here as the court below required Appellant to remove all posts about Appellee, even though that was not the relief Appellee was seeking before the court (T. at pages 84-86)(Appellee’s counsel stating they do not want entire forum taken down just alleged threats).
In another case directly on point, the United States Supreme Court held that a civil injunction issued against protests outside a lawyer’s office was an unconstitutional infringement of the protesters’ First Amendment rights. Tory v. Cochran, 544 U.S. 734 (2005). Moreover, the Tory court held that a “person subject to a court’s injunction may elect whether to challenge the constitutional validity of the injunction when it is issued, or to reserve that claim until a violation of the injunction is charged as a contempt of court.” Id. at 737. Here, Appellant has chosen to challenge the injunction against his speech upon its issuance and not wait to be held in contempt of court.
There is also State action here as the court required Appellant to remove all posts about Appellee, even though that was not the relief Appellee was seeking before the court (T. at pages 84-86)(Appellee’s counsel stating they do not want entire forum taken down just alleged threats).
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B. BECAUSE APPELLANT’S POSTS ARE NOT “TRUE THREATS” THEY ARE PROTECTED BY FEDERAL LAW AND WERE THE SUBJECT OF AN OVERLY BROAD RESTRICTIVE ORDER
The SACB next analyzes Appellant’s posts and the posts of others on ELI as “true threats.” Rather than repeat Appellant’s response to the original Amicus Brief filed on behalf of Appellee, Appellant refers the court to the Amicus Brief filed in Support of Appellant and to the Appellant’s Supplemental Brief in Response to the Amicus Brief on behalf of Appellee.
The SACB relies heavily on Appellee’s subjective statement that she was reasonably placed in fear of her life but recognizes that it is Appellant’s intent to intimidate and create fear that causes [his posts] to lack First Amendment protection. SACB at page 17 (emphasis added). There was no evidence, however, that Appellant intended to place Appellee in fear of her life; all the evidence pointed to the opposite – that Appellant was discussing Appellee’s business practices and wanted to publicly embarrass and expose her for engaging in them.
At worst, Appellant was engaging in a relatively new Internet phenomenon called “doxing.” Internet encyclopedia Wikipedia defines the term as follows:
Doxing (spelling variant doxxing) is an abbreviation of document tracing, the Internet-based practice of researching and publishing personally identifiable information about an individual. The methods employed in pursuit of this information range from searching publicly available databases and social media websites like Facebook, to hacking, and social engineering.
https://en.wikipedia.org/wiki/Doxing
A prominent recent example of “doxing” occurred when journalists with the Westchester County, New York newspaper, The Journal News, were accused of publishing the home addresses of gun owners in the region in a story the paper published in December 2012. While “doxing” can often involve illegal hacking to retrieve the information posted, in Appellant’s case, all the information was publicly available and there was no hacking or even allegations of hacking.
Doxing is one form of “social shaming” another Internet phenomenon that uses social media to expose conduct that the poster of the information believes to be immoral, illegal or worthy of contempt. See, e.g., “Social Shaming Works Faster Than Legal Recourse” published on TechDirt.com on July 30, 2012 and available at https://www.techdirt.com/articles/20120730/07105419881/socialshaming-works-faster-than-legal-recourse.shtml; “Why Social-Media Shaming is Okay” published on BuzzFeed.com on November 13, 2012 and available at http://www.buzzfeed.com/mattbuchanan/why-social-media-shaming-is-okay.
The trial court even stated as part of its basis in granting the Lifetime Protective Order that the Appellant’s purpose was to intimidate Appellee about her copyright infringement program. At pages 122-123 in the transcript, the court states:
There’s no question that The Dash is a constitutionally-copyrighted document, and the illegal use of –a violation of the copyright certainly gives her the right to enforce all the copyright infringement laws, and that is not a grounds or basis to give the Respondent in this case the constitutional right to use the website to intimidate her, which he says has been his intent.
T. at pages 122-123.
While Appellant denies that the record supports a finding that it was his intent to intimidate Appellee, even were that the case, such conduct may be immoral but it is not illegal or even outside the confines of Constitutionally-protected speech. It cannot constitute “stalking” under the statute as the intent must be to place someone in fear of physical harm. There is simply no evidence that this was Appellant’s intent.
The Eleventh Circuit also requires that true threats be “a serious expression of an intention to inflict bodily harm.” U.S. v. Alaboud, 347 F.3d 1293 (11th Cir. 2003). There was no evidence that these posts constituted a serious expression of an intention to inflict bodily harm or that it was Appellant; intent to make Appellee fear bodily harm.
.
C. APPELLANT HAS NOT WAIVED HIS RIGHTS
The SACB then presents the circular argument that because Appellant was “convicted of stalking” he “has waived his First Amendment protections of such activity.” Appellant was not convicted of stalking as he never faced any criminal charges. Secondly, Appellant is appealing the order restricting his speech on First Amendment grounds, so he has not waived those rights. That is one of the main purposes of the appeal -to determine if the order amounts to an improper restraint on Appellant’s First Amendment rights. This position of Amicus for Appellee further demonstrates that the Lifetime Protective Order is a prior restraint on speech.
.
D. THE COMMUNICATIONS DECENCY ACT MAKES APPELLANT IMMUNE FROM LIABILITY FOR POSTS MADE BY OTHERS
The SACB raises the argument that because Appellant commented on some of the posts made by others, Appellant cannot claim the immunity provided by the Communications Decency Act of 1996 (CDA).
This issue is fully briefed in the Appellant’s Brief and Reply Brief; the Appellant’s Supplemental Brief in Response to Amicus Curiae Brief on Behalf of Appellee; Appellant’s Supplemental Brief regarding recent case law in this arena; and in the Amicus Curiae Brief filed in Support of Appellant.
To summarize, the Appellant did not actively participate in illegal conduct like the defendant in Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008) (creating online questionnaire to help users violate the Fair Housing Act) or actively participate in posting allegedly defamatory content about a person like the defendant in Jones v. Dirty World Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED Ky. 2012) (website allegedly posted libelous and defamatory content about schoolteacher). Instead, the Appellant’s case fits squarely in the protection afforded by the CDA: He is a provider of an interactive computer service being treated as a speaker for the content posted by another speaker.
.
E. THAT APPELLANT CAN POSSIBLY SPEAK ABOUT APPELLEE ON OTHER OUTLETS HAS NO BEARING ON WHETHER THIS ORDER IS CONSTITUTIONAL
The SACB makes the argument that there may be other outlets on which Appellant can talk about Appellee and that therefore the order is narrowly tailored and not overbroad. The SACB, however, makes no argument why this speech would not violate the Lifetime Protective Order which required Appellant to remove “all posts” about Appellee regardless of their content. The SACB even contradicts its position that Appellant is free to discuss Appellee anywhere else but ELI when it claims that Appellant has “moved the Ellis content to another website.” Not only does the SACB offer no proof of this alleged fact but it immediately states thereafter “Whether this activity violates the Protective Order has not been litigated yet.” SACB at page 24 fn 1. This statement alone reflects the chilling effect and prior restraint on speech that the Protective Order has had and will have on Appellant’s right to free speech.
The US Supreme Court has long-ago decided that whether the speaker has another alternative outlet for their speech is not relevant to First Amendment analysis. See, e.g. Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546 (1979)(municipal theater’s ban on play was impermissible prior restraint even though play could be performed elsewhere).
As the Court stated in that case “One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Id.
.
IV. CONCLUSION
The Supplemental Amicus Brief on Behalf of Appellee does not bring to the court’s attention any arguments that support or justify the broadly restrictive order below. The PPO must be reversed.
Dated: September 25, 2014
.
/S/ Oscar Michelen
Oscar Michelen
NY State Bar No.: 2058477
CUOMO LLC
9 East 38th Street
New York, NY 10016
/S/ William J. McKenney
William J. McKenney
GA State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
.
.
CERTIFICATE OF SERVICE
This is to certify that in accordance with Georgia Supreme Court Rule 14, I have on this day served this Supplemental Brief of Appellant in Response to Second Amicus Curiae Brief of Timothy B. McCormack before filing with the Court by mailing a copy of same to the opposing counsel listed below in a properly addressed envelope with adequate postage:
Page, Scrantom, Sprouse, Tucker, Ford
Attorneys for Appellee
1111 Bay Avenue
Third Floor
Columbus, GA 31901
Mr. Timothy B. McCormack
Amicus Filer on Behalf of Appellee
167 Lee Street
Seattle, WA 98109
This 25th day of September 2014
/s/ Oscar Michelen
Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38th Street
Third Floor
New York, NY 10016
(212) 448-9933
The Streisand Effect is an interesting phenomenon and an invisible force that lives on the Internet. Some people learn very quickly, others are slow to learn. I have been fascinated with the Streisand Effect since I learned about it a few years ago and have learned to have a healthy respect for it. In fact, I have such a healthy respect for it, it has become a very powerful PR and strategic tool to shift the balance of power.
I view the Streisand Effect much like tidal force energy within the ocean. If you don’t respect and recognize the Streisand Effect, you can be capsized and washed away uncontrollably. If you do learn to respect it and learn how to channel the Streisand Effect, it can create unforeseen opportunities and take you on a journey that you could never have predicted and imagined.
In my ongoing saga of the Chan v. Ellis appeal, perhaps the slowest and most dimwitted person in this legal fiasco of the Streisand Effect is Seattle Attorney Timothy B. McCormack. Timmy has essentially hijacked the appellee side of the Chan v. Ellis appeal to such a degree, Linda Ellis is now only a symbolic figure. Linda apparently has refrained from commenting about me. And I don’t have much to say about her either. I don’t need to. Google search results and the appellate briefs of both sides speaks volumes. There is no question I don’t come out smelling like a rose in this case but based on anecdotal evidence, I am not coming out smelling like dog poo either. Linda has been very quiet and so the interwebs have left her alone. However, Timmy continues his wondrous warpath with his zany motions and briefs submitted on the record. Even Linda’s main attorney, Elizabeth W. McBride has been quiet so far.
The bottom line is the interwebs hate copyright trolls and copyright extortionists and those lawyers that partake in those fields. The interwebs also hate those that try to quash Internet free speech, the First Amendment, and Section 230 of the CDA. For me, it matters not whether I win my appeal or not to the extent that I have to write about Linda’s Dash Poem Extortion Scheme on ELI. Honestly, that is small potatoes. When Attorney Elizabeth W. McBride and the judge came up with that overbroad permanent protective order and I initiated the appeal, Linda’s online fate was sealed. By squelching me and ELI, Linda’s team inadvertently triggered the Streisand Effect. The more they fight their position, squelch the ELI 1,900 posts, try to convince people that I am ACTUALLY a “cult leader” vs. me sarcastically calling myself a “cult leader”, the dumber they look. The more they try to stick the “stalker” and “dangerous” title on me, the more Timmy and Linda will look like fools. I don’t think I could try to convince anyone that knows me that I would even engage in anything remote close to stalking.
Timmy keeps trying to bring up in his legal briefs of all these unnamed people who are allegedly afraid of my so-called “retaliation”. Timmy is only making it worse. First, it is not hard to verify my criminal background. I have no criminal record and no history of violence. Second, it is not hard to verify my professional background. It consists of my 20-year career spanning a variety of business and professional interests such as I.T., real estate investing, web broadcasting, independent book publishing, blogging, Internet media, and web presence strategy.
Does anyone seriously think I am going to throw all that away and do something stupid as being violent or take any physical actions against anyone that might land me in jail and the criminal justice system? The answer is an “easy” NO! The only “dangerous retaliation” that will occur is that I write more commentary and true stories, hardly anything that comes close to being a “true threat”. Reporting on the true stories is so abundantly more interesting that I have no need to create fiction. Not to mention all the stories that I kept private over the years that is just dying to come out and find an audience.
All the attacks and efforts to quash me, Oscar, and ELI has only spawned more websites, friends, and allies. It has only strengthened the force of the Streisand Effect. And if by some unpredictable and unforeseen circumstance that I lose this appeal with the Georgia Supreme Court (I am still a bit cynical of the Georgia court system), my guess that there will likely be more of a public backlash now than when I “lost” the case in the Muscogee County Superior Court last year. That legal “loss” from last year has ultimately translated into some unpredictably nice positive outcomes this year. I have plenty of untold stories to write about, publish, and monetize it.
The entrepreneur in me is going to publish and monetize this legal saga that I have lived through since last year. And I am going to tremendously enjoy writing about it.
Beware and respect the power of the Streisand Effect.
On a letter dated January 21, 2014, Seattle Attorney Timothy B. McCormack (Timmy) attempted to intimidate and threaten me with his annoying, ludicrous, and quite laughable “Infringement / Defamation / Harassment Letter“. He sent this letter while I was in an indefinite self-imposed exile from my own website, ExtortionLetterInfo.com (ELI) and The ELI Forums.
It apparently wasn’t enough for him that I chose to withdraw from posting and participating from my own website. I had been silent and uninvolved for 10-months letting ELI volunteers continue running and overseeing ELI. Timmy must have been delusional and figured that I was humiliated and beaten into submission over the bogus March 2013 Permanent Protective Order (PPO) in favor of the “The Dash” Poem Copyright Extortionist Extraordinaire, Linda Ellis. My case was under appeal with the Georgia Court of Appeals (now transferred to the Georgia Supreme Court) and I saw no reason to waste anytime on ELI while that was going on. Most of the Linda Ellis / Dash Poem victims were cowards and I saw no reason to stand up for them anymore. (However, April Brown is THE PERSON to contact for all things relating to fighting Dash Poem copyright extortion. (Google “April Brown Linda Ellis” and you will see what I mean.) The Linda Ellis victims have taught me that it is stupid to try to advocate for victims too frightened to even speak out. The Getty Images (among others) victims were well-represented and I wasn’t needed in the day-to-day operation any more.
Timmy apparently decided it was time for him to push on me and otherwise intimidate me while I was in self-imposed exile with his “threatening” letter. Unlike many of his victims, I am not so easily intimidated nor do I back down so easily. It was his letter that triggered me to come back to ELI in full force. He probably saw my absence as a sign of weakness. Since I made my fair share of enemies (nearly all whom are either lawyers working as or for copyright trolls and copyright extortionists), the only way to show that I wasn’t defeated was to come back in a very public way. I was only lying dormant, not defeated.
I wrote a few versions of my response letter to Seattle Attorney Timothy B. McCormack before I settled on the one I ultimately sent out on March 2, 2014. The text of that letter is provided below:
=========
March 2, 2014
Tim McCormack
c/o McCormack Intellectual Property Law PS
617 Lee St.
Seattle, WA 98109
FAX: (206) 381-1988
Via FAX & First-Class Mail
Tim,
This letter is my “formal response” to the frivolous and baseless form letter you sent me in January 2014 regarding the supposed infringement of your copyrighted headshot photo. Honestly, this letter is an exercise of repetition because you have shown that you are an avid reader and follower of the ELI website and the ELI Forums. The majority of the content and points of this letter has already been publicly posted and discussed on ELI. But I don’t want it said that I am incapable of being professional as challenging as it may be for me in this case.
Understandably, you have a high level of interest in any posts that may reference your name or business. I surmise you follow ELI daily to the degree you have shown an extensive screen-capture inventory of ELI posts in this and other communiques. Given this, I find your letter to be entirely frivolous, reckless, irresponsible, and unbecoming of a lawyer of your supposed stature and qualifications.
Your form letter included screenshots from July 26, 2012. However, we are now in 2014! It literally takes less than 30 seconds to verify that ALL your screenshots to those posts are outdated and obsolete. In fact, no user-posted images are currently displayed in the ELI Forums. This has been the case since March 2013. You should know this from your self-serving involvement in the Ellis case and the subsequent appeal. The ability to automatically display images (and other media) in the ELI Forums was deactivated to help prevent exactly the frivolous accusations such as the ones you are now making of me and ELI.
While it may not have been immediately apparent prior to March 2013, all ELI Forum user-posted images, memes, and videos were only “hot-links”. As you appear to be technically-unsavvy based on your baseless claims, I want to inform you that you can easily “right-click” any image or hyperlink from any contemporary web browser and you can easily determine where an object is actually hosted. Just because an image is displayed on a website does not automatically mean that website actually hosts it. To the best of my knowledge and my research, ELI has never hosted any image containing your headshot.
Considering that you insist on a formal reply from me when you could have done the necessary research yourself, I make the following additional points:
1. None of the posts you complain about was caused or posted by me. Hence, I cannot be harassing or defaming you. In fact, one of the posts you complain about doesn’t even exist anymore and was voluntarily deleted by the original poster in March 2013. I recommend you consult Section 230 of the Communications Decency Act. ELI hosts discussions and posts of other users. And while I certainly do participate and post on ELI, I am only responsible for those posts I make, not other users’ posts.
2. None of the alleged copyright infringed images have been displayed on ELI since March 2013. Even if they were displayed, that does not automatically constitute copyright infringement on any ELI users’ part. They were hot-linked images and memes hosted elsewhere from ELI. I recommend consulting the case of “Perfect 10 vs. Amazon”.
3. In two of your screenshots, your headshot photo is clearly part of screenshots of Google searches. I suggest that if you don’t want your image showing up on a Google search, then maybe you should consider removing your image from your own websites so it won’t show up on anyone’s screenshot of a Google search. FYI, screenshots for commentary purposes are perfectly allowed under “fair use” and that is exactly what it was used for in that post.
4. None of the messaging on the complained about memes are even remotely close to meeting the standard of defamation or harassment. Most reasonable people know by its simple appearance and messaging they are meant as parody, satire, or negative commentary. The fact that people are making negative commentary about you doesn’t automatically make it defamation or harassment.
I highly object to the ongoing abuse of your privilege as a licensed attorney to try to lie, mislead, and intimidate laypeople such as myself. I may not be a lawyer but, fortunately, I am aware of my rights and responsibilities as a discussion forum host and website host. You and your office have a track record of writing misleading extortion letters designed to trip up and mislead the legally ignorant and the legally spineless. I am not one of those people.
With regard to the other information you are asking for, I outright refuse to provide them to you as you have no legitimate basis or authority to do so. Regarding information on ELI’s traffic, consider visiting Alexa.com, for example.
Regarding how much income ELI generates for me, I will gladly provide you that information in exchange for how much the Getty Images copyright enforcement business generates for you. I consider that a fair trade. Absent that, you have no legitimate basis or authority to get that information from me.
As I have now acknowledged the relevant issues of your complaints, I am going to take the opportunity to make a few points of my own. You have demonstrated this past year your hatred of me, Oscar Michelen, and ELI, in general. Your ongoing attack campaign against everything ELI is self-evident. You have done everything within your power to attack, threaten, discredit, disparage, and damage me, in particular. You somehow continue to blame me for the ills of your so-called copyright enforcement business. Perhaps if alleged infringers weren’t treated as criminals trying to squeeze disproportionate amounts of money for what amounts to be a “speeding ticket” on the Internet, your professional life would be easier. Perhaps if you weren’t so sloppy professionally and didn’t behave like a hack lawyer, you would get a bit more respect.
You continue to blame me for everything other ELI community members have posted about you when, in fact, they are intelligent, independent thinkers and passionate, self-motivated contributors of the ELI Forums. Any perceived influence I might have over them is due to the intense disdain and hatred for Getty Images and your role and behavior as their collections lawyer. It is because of you and Getty Images’ ongoing “copyright enforcement” efforts in particular, that ELI, the ELI Forums, and the ELI community came into existence.
You and Getty Images’ relentless, merciless, and duplicitous pursuit of revenues-at-all-costs (under the guise of copyright enforcement activities) continues to generate more disdain and hatred towards yourself and Getty Images with every passing day. Can you not plainly see this? Can you not plainly see that Getty Images is using you as a pawn while your corporate counter-parts within Getty Images Corporate Counsel department remain comfortably in hiding while you take all the arrows and bullets? Have you never wondered why no one within Getty Images Corporate Counsel has ever publicly spoken out on your behalf? They are cowards hiding within the womb of their corporate mommy.
In closing, the next time you decide to send a complaint letter to me, do your research and get your facts straight. Just because you want to write to me making frivolous and baseless claims does not automatically mean I am legally obligated to respond to you.
Onward and upward,
Matthew Chan
On behalf of ExtortionLetterInfo.com
==============
ELI Legal Advisor Oscar Michelen was also sent a copy of the letter I received, presumably so that Oscar might exert his influence over me (as “Daddy Oscar”) to “cooperate” with Timmy’s request. Oscar was not happy about this and wrote a stern response back to Timmy.
=============
January 29, 2014
Mr. Timothy B. McCormack
617 Lee Street
Seattle WA 98109
Re: Cease and Desist Letters
Dear Mr. McCormack:
This letter is sent to respond to two cease and desist letters recently issued by you. The first letter was issued to www.copyright-trolls.com; the second was issued to me personally and to www.extortionletterinfo.com and its owner Matthew Chan. I will address them one at a time.
Please be advised that I represent this site with respect to your claim regarding the use of an image purportedly owned and copyrighted by you. Please direct all future correspondence on this matter to me and not my client.
In an exercise of caution and to not to have to have continued correspondence with you on this matter, the site has complied with your cease and desist request and removed any display of your picture. The rest of your demands will not be complied with however. As to any purported claim of “defamation” I remind you that the First Amendment greatly protects speech, parody and comedy. In fact, last week or so, the Ninth Circuit (which covers Washington State), in Obsidian Finance Group v. Cox, ruled that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove malice (if they are public figures) or negligence (if it is a matter of public concern regardless of their status) to win damages. The Court further reiterated the public’s right to post opinions, even if they are nasty and crude. It stated it looks at three factors to distinguish between “fact” and “opinion” as follows:
“(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.”
All three of those factors point to the obvious: that any statements or references to you in the posts to which you object are at best statements of opinion and are not defamatory. There was no false fact contained in any of the post of which you complain. They are merely jokes or expressions of opinion that amount to parody. No one believes that the posts are actually saying you are actually a “turd;” that is just an opinion and an attempt at humor. Particularly when aimed at someone who is a public figure like yourself, these types of sarcastic, even negative, parodies and commentaries are protected.
Moreover, your continued use of boilerplate, threatening letters on behalf of digital image warehouse companies, while likely lucrative to you, naturally exposes you to being the target of scorn and commentary. You cannot pretend to ignore the numerous sites, bloggers and journalists who have decried “copyright-trolling” as a scourge of the Internet. That places the subject matter and those who engage in it in the public eye and open to expression of opinion contrary to their pursuits. Far be it for me to tell another lawyer how to run his practice, but I would venture to guess that the more you continue in this method of practice, the more you will continue to be criticized by third parties. Copyright-trolls.com has no less right to express negative opinions and make negative comments on what you and others do than the Washington Post or the NY Times. Accordingly, I hope and expect that this communication ends this issue.
Much more troublesome is your communication to me regarding ELI. First of all, I do not practice out of my home; I am a partner in a litigation law firm with two offices – one in Manhattan and one on Long Island. While in the past you have unsuccessfully tried to embarrass me by writing my partner Matthew Cuomo at our Manhattan office which he manages, I ask that you direct all future correspondence to me at our Long Island office, which I manage. There is no reason for you to communicate with me at my home; any further communication about a client or potential client of mine that is directed to me at my home will be taken as harassment and reported to your State Bar.
Next, your letter refers to ELI as “your [meaning my] website” and asserts that you are writing to me so that I may use my “ownership” of the site to influence compliance with your demands. Too many times to mention it has been made clear to you that I do not own ELI in whole or in part. Your participation in the Linda Ellis matter also served to further instruct and advise you that Matthew Chan is sole owner of ELI. Your continued assertion that I am an owner of ELI is frivolous, baseless and beyond explanation – you clearly do not care that you are making a wrong and insupportable accusation.
You then also reference me as “opposing counsel.” On what matter am I opposing counsel to you with respect to ELI? Are you writing me as ELI’s lawyer or as ELI’s owner? Or both? Currently, I am in fact neither. Matthew Chan will likely want to respond to your letter directly himself. If I am going to respond on behalf of ELI, I will lead my letter with a sentence advising you that I am acting as ELI’s attorney. (See the section above dealing with copyright-trolls.com. as an example). You then intimate that I am somehow behaving in violation of Rule 8.4 of the Rules of Professional Conduct while at the same time asking me for “professional courtesy.” This request for courtesy is laughable, coming from an attorney who:
(a) made a completely frivolous and baseless multi-page complaint against me with the Grievance Committee of my State Bar; (b) included it as an exhibit in the improper affidavit submitted in the Linda Ellis matter so that the complaint is now also a matter of public record in the Georgia Court system; (c) who wrote to my law firm partner, as if writing to scold a child to his parent; (d) who writes me repeatedly at home over business issues; and (e) who continually and falsely claims that I own a website I have no ownership in. In my 27 years of practice as a litigator in one of the most litigious States in the Union, I can recall only one or two attorneys that I have less respect for than you Mr. McCormack. So before you ask me for “professional courtesy,” I suggest you find the nearest mirror. While I always extend professional courtesy to my adversaries, it is a two-way street and I will afford you precisely as much courtesy and respect as you seem to afford me.
To that end, let’s look at Rule 8.4 which you cite:
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Of course, like most of your demand letters, you provide no factual basis or explanation as to why any of these sections should apply to my conduct. I ask that you send me a detailed explanation of which of these sections I may have violated (or will violate) and the facts you rely upon to support such claim. Otherwise I will deem this part of your letter to constitute yet another frivolous and baseless accusation against me.
With respect to the substantive matters addressed in the letter to Mr. Chan, I expect he will respond to you himself. But, as usual, this looks like a boilerplate copy of the letter you sent my client at copyright-trolls.com, so the same arguments would apply.
In conclusion, address all future correspondence on the copyright-trolls.com matter to my attention at my Long Island Office. Furthermore, cease and desist from making baseless and frivolous allegations about my professional conduct and my practice of law.
