In March 2013, the Linda Ellis / Linda’s Lyrics / Dash Poem Letters Forum with 2,000 information and discussion posts concerning Linda Ellis’ / Linda’s Lyrics’ / Dash Poem copyright infringement and copyright enforcement letter program was ordered taken down due to an overreaching court order. (In April 2015 following my GA Supreme Court victory, that forum was fully restored as a read-only resource). That court order specifically forbade me (thereby violating my First Amendment, free speech, freedom of press rights) from writing anything about her, her business operations, her copyright infringement settlement demand letter, and her copyright enforcement program within the ELI Forums on the ExtortionLetterInfo.com website. However, that court order does not forbid me from writing about and sharing information about her, her business model, her poem, and the copyright infringement settlement demand letters on this website.
At this time, the quickest way for victims to learn about this copyright infringement settlement demand letter and copyright enforcement letter program is to read these websites below.
Copyright-Trolls: Several sections of this website that humorously discuss and comments on Linda Ellis, John W. Jolin, and the Linda’s Lyrics / Dash Poem Copyright Infringement / Settlement Demand Letters.
Poetry Trolls: This entire website is devoted to Linda Ellis’ / Linda’s Lyrics / Dash Poem Copyright Infringement Settlement Demand Letters.
LETroll:Mini-website dedicated to victims of the Linda Ellis / Linda’s Lyrics / Dash Poem Copyright Infringement Settlement Demand Letters.
April Brown: This section of April Brown’s website discusses Linda Ellis, John W. Jolin, and the Linda’s Lyrics / Dash Poem Copyright Infringement Settlement Demand Letters.
Get Poetic Justice: April Brown has launched a new book titled “Poetic Justice” about Linda Ellis, her copyright enforcement scheme, and her victims’ stories. There is also a “Get Poetic Justice” Facebook page devoted to that book project.
ABA Journal: Scorned as ‘copyright troll,’ poet fights back in verse
Jewish Federations: Citing Poem Leads Synagogue Into Treacherous Legal Waters
Connecting Directors: Living in “The Dash” is getting Funeral Homes Fined $7,500
Once you read these websites, you may need Premium Support to help deal with this overbearing, obnoxious letter demanding money from you or your organization.
If you need affordable phone support or affordable expert (non-lawyer) consultation regarding the Linda’s Lyrics / Dash Poem Copyright Infringement Settlement Demand Letters, I provide expert knowledge and information through the ELI Phone Support Callprogram.
If you need affordable legal representation from a lawyer who is very knowledgeable of the Linda’s Lyrics / Dash Poem Copyright Infringement Settlement Demand Letters, I highly recommend Attorney Oscar Michelen’s Defense Letter Program.
I wrote an Amazon book review of the paperback version of April Brown’s “Poetic Justice”. It felt a bit strange to do so considering I am a “character” in her book, and some of my own story overlaps with April’s story. I reviewed some early versions of certain chapters. But to see the completed book package is still very impressive to me. I did financially support the project by paying full price for my copy of the paperback. I give disclosure of my light involvement and relationship to the book.
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The Very First Book on Copyright Extortion and the Dash Poem.
As a disclaimer and full disclosure, I am one of the “characters” frequently mentioned in April Brown’s new book but I am also a legitimate buyer / customer of the book because I advanced purchased the book at full price directly from April to support this project.
I can confidently say for myself and many others, that no one ever imagined the Dash Poem would affect so many people in unexpected ways. Since 2012, I have watched April Brown’s personal journey and becoming, by default, the most outspoken victim advocate on behalf of the “Dash Poem Extortion” victims I have ever seen. It is the premise of “Poetic Justice.” And “Poetic Justice” is also the culmination of her personal journey through this.
When you do Google searches on the “Dash Poem Extortion” all roads point to April Brown. It is inescapable simply because no one has taken on the role of victim advocate as vocally as April has. Linda Ellis wrote a poem in the mid-1990’s that has been mentioned in countless websites and media sources. In today’s vernacular, it would be called a “viral” poem. But that viral poem has a very dark and ugly side to it.
If you share the poem on your website, you run the high risk of becoming a victim of the “Dash Poem Copyright Extortion”. What is truly amazing is this “extortion” operation is run by only two people operating from their respective homes. And yet, the terror and fear they strike into so many people and organizations is astounding. April thoroughly describes the details in her book.
I have reported and spoken out on the issue of copyright extortion since 2008. But until 2012, I never knew there was such a thing as “poem copyright extortion”. In fact, I was initially skeptical of April’s claims and didn’t believe that such a small operation run by a housewife could paralyze so many people and organizations into silence and fear that they do and successfully generate tens of thousands of dollars per year for Linda. Again, April describes the beginnings of the community that would become her friends and allies as a victims’ advocate.
My early role in this is that I extended April a communication platform and invitation to my online community. I then attempted (without much success) to be a victim advocate for “Dash Poem Extortion” victims. It turns out I was not a good victims’ advocate in this situation because I did not relate to this particular group of victims’ irrational fears where I was publicly critical of their cowardice. But April was the one constant throughout the months and years.
In my one attempt to directly assist a victim from a $100,000 extortion letter in 2012, I inadvertently placed myself in the line of fire. Because of my very outspoken writings that allegedly “threatened” Linda, Linda took legal action against me in February 2013 in a way no one ever foresaw. April describes the legal drama that would unfold in the next two years.
April, already unhappy with being a victim and hearing dozens of victim stories, suddenly watched in horror, disgust, and anger that I (a friend, supporter, ally, and online community leader) become “victimized” by Linda. Linda utilized the local court and a court order to shut down the one important communication platform April and many others used to share information with others about the “Dash Poem extortion”. April suddenly became the lone victims’ advocate again, publicly.
After battling through two appellate courts for two long years, I ultimately prevailed. Behind-the-scenes out of the public eye, April was there and she is one of the most important allies and supporters I had during this time. She watched it all happen and describes it all from her perspective. Of course, my portion of the story is one small piece among many people’s stories told in the book.
The “Poetic Justice” book is about April’s journey and her story. It is the very first book that discusses the phenomenon of copyright extortion. April writes her accounts and stories of the many people who have intersected and come into her life. She shares her experiences in fighting Linda, the “Dash Poem copyright extortion”, her personal observations and opinions of Linda, and ultimately brings the seemingly array of unrelated people and events together into one compelling narrative.
Even though I was there for certain portions described in her book, it is still fascinating to read her accounting of all the disparate, intertwining events since 2011. It is worth your time to read this book. I recommend it. I think you will be amazed, angered, shocked, and surprised by the revelations as it relates to the famous (and now also infamous) Dash Poem.
This is Part 5 of the “Cleaning Up the ‘Chan v. Ellis’ Mess” commentary series. If you have not read Parts 1, 2, 3, and 4 you should do that first and then come back here. Everything will make more sense to you.
Linda and her lawyer, Elizabeth W. (Betsy) McBride, through their unwise choices wasted many people’s time, energy, and resources over all this. Although many unintended benefits and priceless relationships were formed along the way through this two-year ordeal, none of this had to happen. Hindsight is often 20/20. I cannot say for certain that even with all the knowledge and experience I gained in the last two years, that if I had a chance to go back and redo the February 2013 hearing all again, that I could have prevailed. I think my chances would have improved significantly with what I know today but, perhaps, there was never really any way out of this for me except by going through it.
The Truth of Why This Battle Started
Linda wants to give the impression to others that I, April Brown, and ELI Supporters are simply irrational human beings who simply decided to one day start “picking on her” and “bullying” her. That is truly laughable considering Linda’s long history of legal bullying against churches, non-profits, and other organizations. The reality is that Linda never had anyone who dared speak out or challenge her publicly regarding her overbearing, heavy-handed copyright enforcement scheme. Although minor (and anonymous) complaints about Linda could be found on the Internet, it was April Brown in early 2012 who first used her real name and identity to complain and vocally fight back against Linda and her antics of trying to compel April to submit and pay for an innocent sharing of Linda’s poem. I won’t go into the details here (you can find out more at GetPoeticJustice.com) but suffice it to say, it was more than sending letters and emails to April.
When April came across my radar through her tweets in June 2012, she brought to my and ELI’s attention the issue of poetry copyright extortion. Because ELI had only dealt with copyright extortion as it related to stock photos, imagery, clip art, and newspaper articles, I found the idea of extracting thousands of dollars for the innocent sharing of a poem fascinating and incredulous. April has said to me she felt that I was initially skeptical of her and questioned her credibility. As I told her, it had nothing to do with her. At that time, I simply found the idea of poem extortion hard to believe and comprehend. In fact, the dollar amounts Linda was asking for poem infringements were far higher than anything we typically saw with most stock photos and image infringements.
It didn’t take long for me to start pursuing and researching the matter and a Linda Ellis/Linda Lyrics/Dash Poem Letter Forum was launched as a way to generate dialog, share information, and help victims strategize defend themselves. As we gathered letters from Linda’s letter recipients, we began posting copies of her letters on Scribd for public viewing and commentary. Since then, there have been other letters that have been posted and shared.
On June 6, 2012, John W. Jolin initiated his first “attack” on the ELI Scribd account by submitting a bogus DMCA complaint to Scribd over a document that we legally obtained from a demand letter recipient.
The bogus DMCA complaint irritated me because I then had to waste my time to write a customized DMCA Counter-Notification Letter to explain that the document we shared was legally obtained.
Following this incident, more complaints and stories came in. This ultimately led to the infamous $100,000 demand letter issued by Atlanta law firm, Kalka & Baer, on behalf of Linda to a California author which created quite a stir.
I’d heard of this $100,000 demand letter a couple of months earlier from April but it was not until around December 2012 that I actually spoke with the California author and saw the full copy of the demand letter that was later posted for everyone to comment on. April became friends with this author and was morally outraged by the stunning demand amount. Quite frankly, I understood April’s moral outrage as well as many ELI regulars who followed the “Dash Poem extortion scheme”.
In my moral outrage and misplaced zeal to assist the California author, I obviously went overboard in what I wrote in some forum posts. I let my emotions get the better of me. Nevertheless, read objectively and in full context, the forum posts clearly did not indicate making physical threats or physical danger to her or anyone else.
Linda stirred the pot some more in January 2013 by filing outrageous complaints to Eapps, my web host provider at the time, that ELI was engaged in “death threats” and “threatening and dangerous” activities by reporting on publicly available information. This created a series of unhappy events for me which necessitated the sudden move of ELI to Robert Krausankas’ web host provider. Had Robert not stepped up when he did to assist, I would have had to scramble to find a web host provider that actually had enough of a spine to stand up for its clients unlike Eapps. I would like to add that Robert generously contributes web hosting services to ELI to this very day to support me, Oscar Michelen, and ELI supporters. I can say that Oscar and I continue to be grateful to Robert’s ongoing loyalty, contributions, assistance, and service to the ELI cause.
And when we moved ELI to Robert’s web host provider, Linda once again initiated another “attack” against ELI by her ridiculous complaints to Robert’s upstream provider. Fortunately, he was apprised of Linda’s tactics and was prepared for them unlike Eapps. Although no harm was caused to ELI by this set of complaints, Linda succeeded to once again irritate and annoy us in ways very few copyright extortionists did.
To summarize my “beef” with Linda which contributed to a few “ungentlemanly” posts about her, I prepared a presentation slide for the lower court.
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The Truth About ExtortionLetterInfo.com (ELI)
One of the toughest things to do is to explain to “outsiders” what ELI is all about. In a broad sense, ELI discusses copyright issues, copyright enforcement, and copyright extortion in its various forms. However, the “culture” of ELI goes beyond traditional online discussions. There is a “rebellious”, “get educated, get empowered”, and “stand up and fight for yourself” attitude that I encourage and cultivate. The First Amendment legally allows for all kinds of speech, not just the polite, socially-acceptable, politically-correct kind. Because the American Colonists escaped the oppression of the English, the Founding Fathers wisely allowed for smaller, weaker, minority interests to speak out against larger, stronger, majority interests.
While Linda wants to place blame upon the Georgia Supreme Court for ruling incorrectly, even if I had been ruled as “stalking”, there is no way that the Georgia Supreme Court could ignore well-established historic decisions by the U.S. Supreme Court which has repeatedly supported people’s rights to free and open speech (with some very narrow First Amendment exceptions such as “true threat”, “child pornography”, “false statements of fact”, “incitement of violence”, etc.) Linda and her lawyer would do well to pay heed that Linda and Seattle attorney Timothy B. McCormack have treaded on thin ice regarding what I believe to be intentional “false statements of fact”. It is unfortunate that Betsy is not privy to written documents written by Timmy about me and others. If she did, she wouldn’t have been so quick to embrace him.
Linda supposedly believes in the First Amendment and was not trying to shut down the ELI Forums and yet, that is precisely what she and her lawyer, Betsy McBride did with great success. They “permanently” shut down a portion of the ELI Forums because Linda and her cohorts convinced the lower court that I was so “dangerous” that my and ELI users’ right to speak out on ELI was unceremoniously shut down. Even if I had been “stalky”, why were the dozens of other ELI users forbidden to share and post their comments? Because Section 230 of the Communications Decency Act was entirely ignored and disregarded by the lower court.
In the lower court, I presented slides that tried to succinctly explain what ELI was all about as of February 2013. Aside from some small changes in the last two years, these slides are still largely representative of ELI.
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I believe the slides do a fairly good job in visually explaining and encapsulating what ELI is all about, not the distorted views Linda tries to peddle.
In my last post (Part 1), I began the “Cleaning Up the ‘Chan v. Ellis’ Mess” commentary series. My legal adversary, Linda Ellis, has caused a mess for many people with her reckless, irresponsible choices which was supported by other poor choices by her lawyer, Elizabeth W. (Betsy) McBride.
After two years, I finally went back into the ELI Forums archive to find the original, unblemished version of the forum posts that Linda Ellis submitted as court exhibits. What I found was both distressing and upsetting to me. It showed not only how poor quality her court exhibits were but how much was left out altogether misleading the lower court. I believe it was an intentional act by Linda to shield certain facts that she did not want the lower court to see or know. Betsy did not did herself any favors by failing to vet her client’s so-called exhibits. She is going to get some blowback from what Linda did.
Through strategic concealing, cropping, obscuring, and altering the photocopies of the original forum posts, the true context of the forums posts were greatly skewed against me. Because I didn’t have access to my computer or the original posts in the courtroom, I was forced to make do with the poor quality, misleading, and deceptive Ellis exhibits.
In my last post (Part 1), I directly confronted and called out Linda’s false assertions within the WXIA TV interview. I am now continuing to directly challenge and refute the other false assertions she is making about me (out of context) on her Facebook page and other websites.
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The Truth About Me Allegedly Posting “Death Threats”
Linda has more than once accused me of making “death threats” against her. Her assertion largely comes from two poorly photocopied forum posts submitted as court exhibits. The first one is the “Hearse Song” Exhibit. It contains the “Hearse Song” YouTube video along with the print lyrics beside it. The title of the forum post is:“Ellis – Get Ready – WE ARE COMING AFTER YOU!”. It is the 7th post within an extended online discussion (I will come back to this later.)
“Hearse Song” exhibit post with lyrics overlay.
In the “Hearse Song” Exhibit that Linda provided, the first point I want to make is that I wasn’t the person that posted it. It was April Brown, author of “Poetic Justice”. This one simple point is clearly seen even in the modified court exhibit. Even if it had been a veiled “death threat” (which it wasn’t), I didn’t post it plain and simple.
The second point I want to make about this exhibit is that you see lyrics next to the YouTube screenshot. It implies that the original forum post contained visible lyrics, hence, conveying a written message of death. You will see below that the actual forum post was far less “threatening”.
Original “Hearse Song” post plus a follow-up post for context purposes.
The original, untouched forum post of the “Hearse Song” did not have any text or lyrics whatsoever. It contained no lyrics, text, or comment, only April’s lone post of the “Hearse Song” YouTube video. I included, in my screenshot, one of April’s follow-up posts to show the proper context. As you can see by April’s comments, April was angry that Linda was trying to go after the California author who had received the $100,000 demand letter.
“Linda Ellis and Johnny Boy – the gift that just keeps on giving. They just had to revisit the famous author. Just couldn’t drop it. They just had to try one more time to get him to pay their extortion demands. Had they left him alone, the A-Team might have just limped along waiting for another high profile person to get really pissed off and go public. Now, thanks to Linda and John our fight back campaign just got the boost of high octane we needed. Linda, you simply do not posses the ability, the cash or the integrity to go up against Mr. Big. Your history is so tainted, your words so revealing and your tactics so unscrupulous that now the world will finally hear the truth about Live Your Dash and You! little missy.”
April was certainly angry at Linda but at no point is April even hinting anything violent or physical against Linda, much less a “death threat”.
Another complaint Linda made was the title of the forum post “Ellis – Get Ready – WE ARE COMING AFTER YOU!” which was actually the 6th carryover title from the original first forum post.
Below is the first three posts of that forum discussion. I wish I had a copy of it at my original hearing but I didn’t know what Linda had as “evidence” beforehand. My team and I never imagined I would be dealing with highly modified, cropped, obscured, and incomplete screenshots. I naively assumed that any screenshot of forum posts presented to the lower court would have been reasonably clear and complete and that most of them would speak for themselves as NOT being physically dangerous. Again, I was quite naive.
As you can see, April was the originator of the discussion thread “Ellis – Get Ready – WE ARE COMING AFTER YOU!” and it was concerning Linda hiring Atlanta lawyers to issue a $100,000 demand letter to the California-based author. April expressed her anger by naming a forum topic the way she did. But if you read the first three posts and all the subsequent posts, the discussion is far tamer and largely surrounds others reactions to the $100,000 demand letter. No physical threats of any kind were express much less a “death threat”.
The next forum post relating to the “death threat” assertion is Linda’s Exhibit where I make a comment about Linda being “dead” right. As you see, the word “dead” is in quotes. It is a figure of speech being “dead” right.
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Compare the exhibit version to this one, the uncropped version of that forum post.
Once again, you can see that Linda conveniently leaves off the quoted text written by April which my post was responding to.
“Just when I thought I might get a good night’s sleep.”
It had nothing do do with physical threat or violence much less a “death threat”. And yet, Linda considers all of these disparate forum posts as “death threats”.
As a final comment on Linda’s “death threat” assertions, Justice Keith Blackwell rather astutely observed that Linda’s poem is often associated with “death and a tombstone.” I need not say anything more regarding the issue of death as it relates to Linda.
https://vimeo.com/108666514
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The Truth About the “Cult Leader” Title
I find it both amusing and sad that Linda seems to think that calling me a “cult leader” might actually convince someone that I am one. It is true that I have referred to myself as a “cult leader”. Does it really need to be said that it is meant as a “tongue-in-cheek” title?
In any case, I did write a commentary on my “cult leader” status on January 11, 2015 titled “Can I Convince You I Might Be a ‘Cult Leader’?” However, what I left out is where it actually came from because I forgot when I first used that title. In looking through my computer files, I came across a rebuttal letter from June 2012 that I wrote to Seattle attorney Timothy B. McCormack in response to his unsolicited, unwelcome letter to me and Oscar Michelen regarding his views and remarks about my opinions of recording telephone conversations as a defense tool against overly aggressive collection calls from copyright extortionists.
As some might expect, I wrote Timmy an unhappy and snarky rebuttal letter to him in my own “unique style”. I disrespected him so much, I didn’t print the letter out to waste a perfectly good envelope and postage stamp to send the letter to him. I efaxed the letter to him and posted my rebuttal letter (from June 2012) online for everyone to see. The one paragraph, out of the 17-paragraph letter, that Linda really enjoys and shares with others:
“You should realize that creating and managing an online cult such as ELI is actually more challenging than one where you physically meet and interact with my followers. My dazzling, hypnotic, persuasive, and entrancing words and prose are somewhat masterful I must confess. I can convince the most intelligent, self-determined, and self-motivated person to blindly follow any public suggestion I might make.”
Although that whole communication between me and Timmy McCormack had NOTHING to do with her whatsoever, Linda has “adopted” this one paragraph from that 17-paragraph letter to share with others. She can knock herself out with it. In many ways, it would really be cool if it was true. Alas, I know my influence is relatively low. I am not delusional in that regard.
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.
Oscar Michelen
(Courtesy Admission)
NY State Bar No.: 2058477
CUOMO LLC
9 East 38th Street
New York,NY10016
William J. McKenney
State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
.
TABLE OF CONTENTS
Table of Citations ……………………………………………………………..…..…… ii
I. Preliminary Statement ……………………………………………..……………….. 1
A. Nature of Matter and Order Appealed …………………..…………………………. 1
B. Jurisdiction …………………………………………………..……………………..… 1
C. Statement of Facts ……………………………………….…………………………. 1
II. Enumeration of Errors …………………………………..……….………………..… 11
A. Jurisdiction ………………………………………………..…………………………… 11
B. Errors Below ……………………………………….……….………………………….. 11
III. Argument and Citation of Authorities ………………………….…………………. 12
A. THE FEW INTERNET POSTS MADE BY APPELLANT DO NOT ESTABLISH
THE ELEMENTS OF OCGA 16-5-90(a)(1) ………………………………….……………. 12
B. APPELLANT WAS DEPRIVED OF DUE PROCESS WHEN COURT RULED ON EVIDENCE OF CONDUCT WHICH WOULD ONLY VIOLATE OCGA 16-5-90(a)(2) WITH WHICH APPELLANT WAS NOT CHARGED ………18
C. THE COURT IMPROPERLY ADMITTED AN EX-PARTE AFFIDAVIT INTO EVIDENCE ………………… 21
D. THE FIRST AMENDMENT PROTECTS APPELLANT’S SPEECH AND THE COMMUNICATIONS DECENCY ACT OF 1996 PROTECTS A PERSON FROM BEING HELD RESPONSIBLE FOR OTHER’S POSTS ………………. 22
E. THE ORDER WAS OVERLY BROAD AND BANNED ALL SPEECH ABOUT APPELLEE ………………………. 29
IV. Conclusion ……………………………………………………………………………….……… 30
.
TABLE OF CITATIONS
Cases
Adkins v. Hutchings, 79 Ga. 260 (1888) ……………………………………………………….. 21
Autry v. State, 306 Ga.App. 125 (2010) ………………………………………………………….. 16
Bartnicki v. Vopper, 532 U.S. 514 (2001) ………………………………………………………… 23
The Communications Decency Act of 1996. …………………………………………………..12
.
Treatises
American Heritage Dictionary (3d ed. 1992) ……………………………………………………………….14
Review of Selected 1998 Georgia Legislation, 15 Ga. St. U. L. Rev. 62 (Fall 1998) ……17
.
Constitutional Provisions
Article VI, Section VI, Paragraphs II and III of the Constitution of the State Georgia ……… 1
First Amendment of the United States Constitution …………………………………………………….. 1
I. PRELIMINARY STATEMENT
A. Nature of Matter and Order Appealed
Appellant Matthew Chan (“Appellant”) brings this appeal of an Order of the Honorable Frank J. Jordan of the Superior Court of Muscogee County entered March 6, 2013, which granted Appellee Linda Ellis (“Appellee”) a final Stalking Permanent Protective Order pursuant to OCGA §16-5-94 (e) and 19-13-4 (c) (hereinafter referred to as “the Order”).
B. Jurisdiction
This case raises Federal and State constitutional issues and while Appellant filed his initial notice of appeal pro se in this court, Appellant’s counsel on September 23, 2013, filed a motion to transfer the matter to the Supreme Court of the State of Georgia. This subject matter is reserved to the Supreme Court of Georgia under Article VI, Section VI, Paragraphs II and III of the Constitution of the State Georgia. This argument was raised in the court below in Appellant’s Memorandum of Law at pages 32-37. See Court Exhibit Packet at pages 92-97 (future references to this packet will be made as “Packet at pg ___”).
C. Statement of Facts
Appellee brought a petition pursuant to OCGA § 16-5-90 et seq. seeking a stalking protective order against Appellant due to certain posts made on a website owned by Appellant known as “ExtortionLetterInfo.com.” (hereinafter referred to as “ELI”). See, Transcript of Motion Hearing, held on February 28, 2013 at pages 3 and 10. (Future references to this transcript will be made as “T-#”).
At the hearing, it was not disputed that Appellant (who appeared pro se) and Appellee have never met; have never had any form of personal relationship; have never corresponded with each other; and have never even so much as spoken over the phone with each other. T-62. The petition was brought solely because of Internet discussion forum posts on ELI which were critical of Appellee’s attempts and methods to enforce her copyright in a poem she wrote called “The Dash.” T- 64 line 16. When Appellee’s lawyer began her presentation of evidence, the court admonished her to focus not on all the posts on the website, but on those that are the subject of the stalking complaint, especially because the court “had limited time.” T-19 lines 13-19.
Appellee began with a post written by Appellant eight months earlier, on June 23 2012, where he refers to a post made by a third party, April Brown, who posted a series of emails she exchanged with Appellee over her copyright enforcement methods. In the post, Appellant refers to Appellee wishing to be “right” and states “well she is ‘dead’ right now.” Packet at page 3.
When Appellant responded that this was a figure of speech and not a threat, Appellee then moved on to another Internet post by Appellant from June 11, 2012. Appellee carefully parsed out snippets from the lengthy post that, taken out of context, sounded vaguely threatening – (“So maybe she will understand potential consequences to her personally” or “I will pull that trigger much quicker if need be”). When read in context of the entire post, however, the comments clearly referred to Appellant’s intent to publicly expose Appellee’s methods and not to inflict harm or physical injury upon her. T – 23-24; Packet at pg. 4. Appellee then moved on to engage in the same form of selective editing with respect to a third post made by Appellant on December 12, 2012, after Appellant was hired as a public relations consultant by a person threatened with being sued by Appellee for $100,000. T – 28-32; Packet at pages 5-6. In that post, Appellant posted the name of Appellee’s husband and the subdivision in which she lived. T – 28-32. Appellant testified that while he was in some way communicating to Appellee through this post, it was also directed at the open forum to discuss again the business dispute between Appellant’s public relations client and the Appellee. T – 30 line 13 to 32 line 15. Appellee then begins the first in a great number of questions throughout the examination of Appellant about whether Appellant had deleted any of the posts complained of. T- 32 line 24. Appellant repeatedly stated he did not delete any posts because he wanted all the evidence to be before the court. T – 32 line 21 to 33 line 5; 37 lines 8-16; 57 lines 18-24. Appellant also tried to explain to the court that the forum contains between 19,000- 20,000 posts and therefore all of these posts must be taken in the proper context. T-39 lines 13-22.
The next item discussed was a cartoon of five people in Revolutionary War dress (who are all engaged in sending out threatening letters in efforts to enforce copyright claims), with Appellee in the middle. The cartoon shows them with their pants down and their hands over their crotches and is captioned “Ready, Aim, Fire.” T-37 line 22 to 38 line 22; Packet at page 10. No evidence was presented as to who created or posted this cartoon or when it was posted. The next post discussed at the hearing was a video where Appellant is having a conversation about Appellee with a third party, Robert Krausankas. The video was not offered into evidence on the record and no transcript was made of it.T-41 line 20 to 43 line 10. While the record shows that Appellee played only a small portion of the video, Appellant advised the court that the entire conversation was part of a thirty minute broadcast of an Internet TV show on the Vimeo website called “The ELI Factor.”T-42 lines 4-23.
Finally, with respect to anything posted by Appellant, the last piece of evidence was a comment he made on ELI on February 9, 2013, about his having visited Marietta, Georgia, the Appellee’s hometown, and having been near her subdivision. T-35 lines 16-21; Packet at pg 7. The post was written after Robert Krausankas had posted a Google Street View image of Appellee’s house on December 14, 2012, and after Appellant had been to Marietta for a date. T-35 line 16 to 36 line 19; 37 lines 1-4. When asked if he thought it was “okay to post a picture of her house on your website” Appellant responded that he was neutral about it as he did not post it and as it was a Google Street View image. T-36 lines 17-22. Again, he was asked whether he could have deleted the post and again he stated he was neutral about it. T-36 lines 23-25.
Appellee then testified on her own behalf and the only additional evidence presented was a post made by April Brown, dated December 4, 2012, which was under a forum topic labeled “Re: Ellis – Get ready – We are coming after you!”. The post was the seventh reply to the initial post and was a link to a YouTube video clip of a song called “The Hearse Song.” T-54, line 1 to 57, line 14; Packet at page 58. The original post did not contain the song’s lyrics as shown in the court exhibit; the lyrics were added to the exhibit by Appellee. Appellant again explained that he did not post it on ELI and again, Appellee raised that Appellant had not deleted this post after service of the temporary protective order. T- 57 lines1-14.Appellee, on cross-examination, conceded that Appellant and she had never met (T-62 line 4); had never emailed each other (T-62 line 8); that Appellant had never even tried to telephone her (T-62 lines 9-12); Appellant never texted her T-62 line 25); Appellee never saw Appellant come to her house (T-63 line 13); and that Appellant never followed her (T-63 line 15). Appellee also acknowledged that she was aware “The Hearse Song” video and the Google Street image of her home were posted by others and not Appellant. T-61 lines 10-24.
The final witness for Appellee was John Jolin, an employee of Appellee, who testified on rebuttal that on January 6, 2013, his girlfriend noticed she received a call from a number owned by Appellant. No conversation was had; no voicemail was left; no evidence was submitted as to who made the call. T-103 line 9 to104 line 1; Packet at page 59-60. Appellant denied making the call and stated it was likely a call made to his cell phone number using Google Voice and that he was very skeptical about it as he did not make the call. T-106 line 12 to 108 line 22. That ended Appellee’s evidence of the conduct complained of. All the “conduct” evidence presented by Appellee is summarized below:
The sum total of direct conduct attributable to Appellant was therefore five (5) sporadic posts that he posted on ELI between June 11, 2012 and February 9, 2013 (counting the video conversation). The balance of the evidence wasthree (3) posts made by others and proof that a phone number belonging to Appellant showed up on the cell phone of a girlfriend of Appellee’s employee.
Appellee, however, did present one other piece of evidence against the Appellant: a five-page ex-parte affidavit of Timothy McCormack, a Seattle, Washington attorney, containing approximately thirty-nine pages of exhibits mostly wholly unrelated to the case before the court, including petitions and orders for injunctions from cases in Washington State. Over Appellant’s objection, Appellee read from the affidavit and Appellant was forced to answer questions about comments, opinions and statements of fact made by McCormack in the affidavit. T-44 line 19 to 48 line 6.The bulky affidavit contained McCormack’s outlandish and unsupported opinion that he “believe[s] [Appellant] is a danger both to himself and to others” and that he “believe[s] Mr. Chan is likelyto follow through on his threats of physical retaliation against [Appellee]” Packet at pg.13 (emphasis in original).
When it was Appellant’s turn to present his case, he submitted a lengthy Memorandum of Law which was admitted into evidence. Packet at page 61. Appellant made a motion to dismiss the petition based on the memorandum of law, Georgia Law and the First Amendment of the United States Constitution, which the court reserved decision until the conclusion of evidence.T-76-80. He then testified in his own behalf. He testified he was forty-six years old; had no prior criminal record; and was a landlord in Georgia, having lived in Columbus for the past fourteen years. He explained that he is also a publisher, broadcaster and reporter writing about the phenomenon of “copyright trolling” on ELI. He stated that the Appellee and her family were never in any physical danger and he never threatened their physical safety; rather, the dispute between the parties arose out of a business dispute. T-81 line 25 to 83 line 3.
Appellant went onto explain that the subject petition was just the latest in a series of attempts by Appellee to stop ELI from discussing Appellee’s methods of copyright enforcement. T-84 line 9 to 89 line 24. He put into evidence the infringement letter and complaint Appellee brought against his public relations client. Packet at pg. 103, 118. Interestingly, during Appellant’s enumeration of the various ways that Appellee has tried to stifle the speech on ELI relating to Appellee’s program, Appellee’s counsel objected, stating that the business dispute bore no relation to the complaint. Appellee’s counsel stated in open court:
[W]e are not here to resolve the business dispute, we just want him to stay away and stop harassing her and making threats. We are not trying to do anything to his website or to stop his work in that fashion ….in other words, the stalking protective orders are very limited in their scope, in the sense of making him have to stay away, and making him stop making threats towards her and her family via any communications, Internet or otherwise. . . .We are not here to resolve the business dispute, we just want him to stay away and stop harassing her and making threats. We are not trying to do anything to his website or to stop his work in that fashion . . .. and we’re not trying to shut his website down. T-86 line 6 to pg. 87 line 15.
The Appellant then moved on to try and put the posts complained of into context by explaining ELI to the court. T-90 line 5 to 93 line 5. He pointed out that ELI has various discussion forums on numerous topics where individuals are free to post comments on their own, including putting into evidence a chart showing the various parts of ELI. T-90 line 20; Packet at pg 119. He talked about the boisterous, sarcastic and humorous language used and which is sometimes accompanied with venting of emotion using military tactical language. T-91 line 16-25; 92 lines 1-17. He also noted to the court, that due to the number of different areas on ELI, a user has to voluntarily click on a particular forum, then a particular topic and then a particular post to find a post; you cannot accidentally come across a forum post as it requires several “mouse clicks.” T-90 line 21 to 91 line 3. He described that the ELI Forums related to Appellee’s business have over 1,900 posts on 180 different sub-topics and that ELI has over 14,200 posts other posts across 740 topic threads in total. T-96 line 18-24.
Appellant’s testimony was uncontested by Appellee and rebutted only by the testimony of Appellee’s employee, John Jolin, regarding the phone number on his girlfriend’s phone, described above.
When the parties summed up, Appellant briefly summarized what he had just testified to. T-109 line 16. Appellee’s counsel, in her summation, not only set forth the elements of O.C.G.A. 16-5-90 (a)(1), but also argued that the Appellant, by not removing the allegedly offending posts, violated the temporary protective order even though that issue was not before the court via the petition. T-111 line 14 to 112 line 20.
The court, without taking any recess to thoroughly read all of the exhibits and Appellant’s memorandum of law,1 granted the petition for a protective order but in doing so found that Appellant not only violated the elements of OCGA § 165-90 (a)(1) (T-120 line to 121 line 7) but also the elements of (a)(2) which only applies to persons who are already subject to an order of protection. This was not before the court via the petition and could not be before the court because when the petition was filed, no order was in effect against Appellant. T-121 lines 8-19. The court issued an expansive order, more far-reaching than Appellee had even requested as per her attorney’s statements, which required Appellant to delete from ELI all posts referring to Appellee. It is from this order that Appellant appeals.
Footnote1: The record shows that the court was very pressed for time and even took short breaks in the case to hear from other lawyers with cases pending for that date. See Tr. at pgs. 22 line18, 41 line 12, 52 line 6, 122 line 9.
II. Enumeration of Errors
A. Jurisdiction: The Court’s jurisdiction is set forth in paragraph I(b) on p.1 infra
B. Errors Below:
1. The court below improperly found that the Appellee’s evidence constituted “contact” by the Appellant with the Appellee and a “willful course of conduct” under OCGA § 16-5-90(A)(1) so as to amount to “stalking” under the statute. Appellant’s Memorandum of Law, dated February 27, 2013 raises this issue at p. 24-38; Packet at 64-98.
2. The court below improperly penalized Appellant for conduct that only constitutes stalking under (A)(2) when Appellant was never made aware that this section of the statute was at issue at the hearing and the issue was not covered by the petition. This issue was not preserved by Appellant as he was unaware it was being argued. The error constitutes plain error, see p.19 infra;
3. The court below improperly admitted into evidence an ex-parte affidavit. Preserved by Appellant’s objection at T-48-49;
4. The application of this statute against the Appellant for this conduct violated the Appellant’s First Amendment rights and the Communications Decency Act of 1996.Appellant raised this issue on the record at T-76-80; T- 96 lines 9-12. It was also raised in Appellant’s Memorandum of Law at p.32-37; Packet at 92-97.
5. Were this Court to find that a protective order was proper under the statute, the order issued by the court below was overbroad, unduly burdensome and overly restrictive and even exceeded the relief demanded by Appellee below. This issue was not preserved by Appellant. The error constitutes plain error, see page 19 infra.
.
III. ARGUMENT AND CITATION OF AUTHORITIES
A. THE FEW INTERNET POSTS MADE BY APPELLANT DO NOT ESTABLISH THE ELEMENTS OF OCGA § 16-5-90(a)(1)
OCGA § 16-5-90(a)(1) prohibits very specific conduct only and does not reach conduct that is not listed in the statute. Under OCGA § 16-5-90(a)(1) A person commits the offense of stalking when:
“he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.”
Nearly every element of this statute was not met by the evidence below. It was undisputed below that the Appellant never followed or placed Appellee under surveillance. The only method of “contact” found by the court was the use of a computer to broadcast posts about Appellee. T-120 lines 12-22. Both OCGA § 16-5-90 and 16-5-91 require, in relevant part, that the proscribed act of making non-consensual contact with another person be ‘for the purpose of harassing and intimidating the other person.’ ”Johnson v. State 264 Ga. 590, 591(1994). There was no proof that this was the purpose behind the posts complained of; instead Appellant repeatedly testified and his posts revealed that his intent was to expose Appellee’s business practices and to show the hypocrisy between her poem’s message and how she conducted her business. The court below, in issuing its decision, highlighted a section of Appellant’s Trial Memorandum that stated “This again establishes that Respondent and ELI are trying to get Petitioner to see the errors of her ways to stop extorting people for their use of The Dash.”T-122 lines 18-22. The court found this was an admission that Appellant meant to intimidate Appellee. That is not supported by the record, as described above, and Appellee admitted she filed the petition in part because of her reputation and as ELI was now in second position on an Internet search of her product. T-72 lines 11-14.
The term “harassing and intimidating” is further defined in OCGA § 16-590 as a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself or to a member of his or her immediate family, and which serves no legitimate purpose.” Johnson v. State 264 Ga. at pages 591-592. (emphasis in original) There is no proof that Appellant engaged in a willful course of conduct with no legitimate purpose with the intent to place Appellee in fear of physical harm to herself or her family.
“To ‘contact’ is readily understood by people of ordinary intelligence as meaning ‘[t]o get in touch with; communicate with.’ American Heritage Dictionary (3d ed. 1992).” Johnson v. State 264 Ga. at page 591. In the case of Marks v. State, 306 Ga. App.824 (2010) the Georgia Court of Appeals specifically held that posting on the internet about someone does not constitute “contact” under the statute. In Marks, a defendant’s conviction for stalking and violating an order of protection was reversed because the court found that his posting on the internet of several untrue statements about his ex-wife on several websites and his having emailed links to the postings to several people was not “contact” under the statute. Id. at 826.Here, the court below distinguished Marks only by stating that in Marks “the court specifically found that no evidence was presented suggesting that the boyfriend actually authored the web postings.” T-119 line 20. But that is incorrect. In Marks, the court treated as undisputed that the boyfriend wrote the posts complained of. The court below also ignored that the two posts Appellee complained of the most vociferously — “The Hearse Song” and the Google Street View image of her house — were posted by others. The court also did not apparently take into account that no evidence was presented as to who posted the cartoon; or who, if anyone made the call to Appellee’s employee’s girlfriend. Similarly, the court ignored that in order to view the posts, Appellee had to make several mouse clicks into the discussion forum. T-90 line 21 to 91 line 3.
That Appellee had to access the posts voluntarily and repeatedly also means that the “place or places” element was not met. In Pilcher v. Stribling, 278 Ga. App. 889 (2006), the Georgia Court of Appeals held that the term “place or places” shall include any public or private property occupied by the victim other than the residence of the defendant. The law only applies therefore to contact made at a public or private piece of property occupied by the person – so while emails repetitively sent to someone’s home would qualify, general posts about the person on the Internet would not meet the definition of “place or places.”
There is similarly no proof that Appellant engaged in a willful course of conduct with no legitimate purpose, another statutory requirement. See, Johnson v. State 264 Ga. 590, 591-592 (1994). In Daker v. Williams, the Supreme Court of Georgia instructed that a “‘course of conduct’ refers to a series of successive actions, and, as such, is equivalent to a ‘pattern of behavior.’ ” 279 Ga. 782,785 (2005). Accordingly, in State v. Burke,267 Ga. 377 (2010), where there was only a single act at issue, one violation of a protective order, the Georgia Supreme Court held that the evidence “ simply [did] not establish ‘a pattern of harassing and intimidating behavior.’ ” 267 Ga. at 379. Indeed, in Burke, the Court reiterated that the “ ‘harassing and intimidating’ conduct must be established by, among other things, ‘a pattern of harassing and intimidating behavior.’ ”Id.(internal citation omitted; emphasis in original). So that it is clear that not only must there be a pattern, but it must be a pattern of harassing and intimidating behavior. Id. See also Krepps v. State, 301Ga.App. 328, 330(2), (2009) (noting that a conviction for stalking requires the state to prove, as part of establishing the element of “harassing and intimidating” behavior, a pattern or a course of conduct). Appellee complained of five posts over a period of eight months with no post occurring in four of those months; an insufficient number of acts to constitute a pattern of harassing behavior. In contrast to the Internet activities that Appellee complained of here, the serious nature and deep extent of the pattern necessary to reach the intent of the statute is shown by the Georgia Court of Appeals’ decision in Autry v. State, 306 Ga.App. 125 (2010),(cert. denied February 28, 2011). In that case, a defendant was charged under OCGA §16-5-90(a)(1) and was convicted after a jury trial. In appealing his case to the Georgia Court of Appeals, he argued that the evidence presented against him did not amount to “a course of conduct.” The appellate court agreed that a sufficient pattern was not shown even though there was evidence that the defendant had repeatedly followed the complainant at a series of destinations over the course of a day and the victim testified she was in fear for her safety. See, Autry v. State, 306 Ga. App at 125-128.
The Georgia General Assembly in 1998 specifically added the requirement that the victim’s emotional distress must be established by “a pattern of harassing and intimidating behavior.” This requirement was added “to help avoid abuse of the system by people who overreact or become vindictive.” Review of Selected 1998 Georgia Legislation, 15 Ga. St. U. L. Rev. 62 (Fall 1998).Appellee has overreacted and the statute was explicitly amended to avoid this abuse of the system by requiring a significant pattern of harassing behavior not shown here.
At best, Appellant operated an Internet discussion forum where Appellee and her business practices were discussed by Appellant and others. The only post that comes close to resembling a threat is a post mentioning Appellee in a forum topic entitled “Re: Ellis – Get Ready -We are coming after you!” Appellant was not the person who posted this topic or the post in question. Also, when taken in context, it is clear that the poster is not threatening violence. What is meant is that the poster and others will scrutinize and alert the public to Appellee’s doings regarding her copyright infringement scheme. That post was also made over seven months before the hearing date and is merely a link to a video on YouTube.
Because Georgia courts have specifically ruled that Internet posts do not constitute “contact” under this statute and because Appellant has not engaged in any other conduct governed by the statute as defined by the Georgia Supreme Court and because Appellee did not make out her burden that Appellant’s conduct met each and every element of the statute, including engaging in a pattern of harassing and intimidating behavior, the order must be reversed.
.
B. APPELLANT WAS DEPRIVED OF DUE PROCESS WHEN COURT RULED ON EVIDENCE OF CONDUCT WHICH WOULD ONLY VIOLATE OCGA § 16-5-90(a)(2) WITH WHICH APPELLANT WAS NOT CHARGED
Throughout the hearing, Appellee’s counsel repeatedly questioned Appellant about his leaving up the allegedly offending posts, including the Google Street View Image of her house despite his having been served with a temporary protective order as a result of the filing of the petition. See, e.g. T-36 lines 2325;T-32, line 24. Appellant repeatedly told the court he left the posts up after service of the order to allow the court to see all the evidence and not appear to be hiding anything. T-32, 37 line 8-16; 57 line 18. Appellant did not realize that Appellee’s counsel was baiting the Appellant into admitting conduct that would constitute a violation of OCGA §16-5-90(a)(2), which only governs conduct occurring after service of a temporary protective order and which was obviously not part of the petition the hearing was addressing as at the time of the filing of the petition as no protective order was then in place.
Unfortunately, the court below took the bait. In its ruling, the court specifically quoted from OCGA §16-5-90(a)(2)’s language by finding that the mere broadcasting of Appellee’s home address constituted “stalking.” T-121 lines 8-19.
Appellant had no notice that he would be judged and have to defend against section (a)(2)’s more stringent prohibition. ‘[R]easonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are “basic in our system of jurisprudence.” Ford v. Ford, 270 Ga. 314 (1998) quoting Taylor v. Hayes, 418 U.S. 488, 498(1974). See also Dowdy v. Palmour, 251 Ga. 135(2), (1983). To comport with due process, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Ford, supra at 315.The notice must be of such nature as reasonably to convey the required information. Id. In Ford, an action to collect sums due under a divorce decree, the appellee’s lawyer had written the court that appellant had not met his financial obligations and asked that the court impose sanctions. The court responded that it would hold a telephone conference to discuss “this matter.” After the conference, the court found appellant in contempt and appellant appealed. In reversing the contempt finding, the Georgia Supreme Court found that the notice received by appellant from the trial court was not reasonable because it failed to adequately inform appellant of the charge against him so that he would have the opportunity to defend himself against the charge at the specified time and place for the hearing. Id. at 315. The court stated that because appellant voluntarily appeared and defended at the hearing did not excuse the failure to comport with due process. Id. In a nearly identical situation here, appellant had absolutely no notice that he would be facing a hearing on OCGA §16-5-90(a)(2), had no opportunity to prepare for a defense under this section and yet was found by the trial court to be in violation of its language. T-121 lines 8-19.
Because appellant had no notice and did not understand what he was being charged with, he did not raise this issue below. Both Georgia courts and the United States Supreme Court allow appellate courts to review unpreserved errors if the errors are “plain errors.” Puckett v. U.S., 556 U.S. 129, 135 (2009); Culver v. State, 314 Ga. App. 492 (2012). This court set a four-prong test to determine if an issue amounts to plain error, all of which are applicable here:
First, there must be an error or defect—some sort of deviation from a legal rule— that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
State v. Kelly, 290 Ga. 29 (2011).
The order must be reversed as Appellant did not intentionally waive this issue; the error is clear; the error affected his substantial rights to due process; and failing to correct it would be fundamentally unfair and would affect the integrity and public reputation of judicial proceedings.
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C. THE COURT IMPROPERLY ADMITTED AN EX-PARTE AFFIDAVIT INTO EVIDENCE
The court below admitted into evidence a lengthy affidavit of Timothy McCormack, a Seattle-based attorney. The affidavit contained inflammatory, unsupported allegations and theories against Appellant and offered McCormack’s opinion on the alleged “dangerousness” of Appellant. Packet at pg.12.
This Court has long held that it is reversible error to allow ex-parte affidavits into the record as they deprive the adversary of an opportunity to cross-examine the affiant. Young v. Young, 209 Ga. 711 (1953) citing Adkins v. Hutchings, 79 Ga. 260 (1888). In Young, a divorce action, the affidavits stated matters that were highly detrimental to the plaintiff, and most of them related to matters based upon pure rumor or conjecture similar to the statements in McCormack’s affidavit. This error alone warrants reversal. Hartley v.Caldwell, 223 Ga. 333(1967)(admission of ex-parte affidavit on material issues in case was material rendering further proceedings nugatory);Tamiami Trail Tours, Inc. v. Georgia Public Service Commission, 213Ga. 418 (1957).
Georgia courts have also held that admission of ex-parte affidavits constitutes reversible error even if there was otherwise sufficient evidence to meet the burden of proof. Lanthripp v. Lang, 103 Ga. App. 602 (1961).
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D. THE FIRST AMENDMENT PROTECTS APPELLANT’SSPEECH AND THE COMMUNICATIONS DECENCY ACT OF 1996 PROTECTS A PERSON FROM BEING HELD RESPONSIBLE FOR OTHER’S POSTS
OCGA § 16-5-92 of the statute (“Applicability”) states:
The provisions of Code Sections 16-5-90 and 16-5-91 shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state or to persons or employees of such persons lawfully engaged in bona fide business activity or lawfully engaged in the practice of a profession.
a. Federal Constitutional Analysis
A brief analysis of the balancing done by courts, including the US Supreme Court, in deciding between (a) speech that incites persons to commit crimes or which involves criminal activity and (b) speech that is protected by the First Amendment establishes that Appellant was engaging in protected speech. There can be no greater protected activity than speaking in a public forum. When a government places restrictions on the content that may be placed on the Internet, it acts as a regulator of private activity and its restrictions are subject to strict scrutiny. Reno v. ACLU, 521 U.S. 844 (1997). The Supreme Court’s understanding of the Internet in Reno proved prescient when it observed that the internet constituted a:
dynamic, multifaceted category of communication [that] includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.”
Reno v. ACLU, 521 U.S. 844, 870 (1997).
The Supreme Court in Reno, also noted that the District Court below specifically found that “[c]ommunications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content ‘by accident.’ Id. at869. 2 Other Supreme Court precedent likewise requires that illegal action be almost contemporaneous with the inciting speech if the speech is to be excluded from First Amendment protection. See e.g. Brandenburg v, Ohio, 395 U.S. 444, 447 (1969). The reason for an imminence requirement derives from the notion that the means to deter unlawful conduct is to punish the actor rather than the advocate. Bartnicki v. Vopper, 532 U.S. 514 (2001). In Hess v. Indiana, 414 U.S. 105 (1973), the Court found no imminent action in a demonstrator’s shout, “We’ll take the fucking street later [or again],” as police attempted to move a crowd of demonstrators off the street. Id. at 106-108. Speech that incites others to violate the law is not protected by the First Amendment, but the incitement to lawless action must be imminent and likely. Id. Here, the speech did not incite anyone to lawless action but it was also not imminent or likely.
Footnote 2 This holding also undermines the claim that by posting about Appellee, Appellant “contacted” her. Appellee learned of the posts because she repeatedly chose to visit ELI, click into the forums and voluntarily read them.
Appellant’s posts arose out of a desire to get people to help combat what he believed is an abusive and extortionate copyright infringement scheme. It was a call to “rally the troops” to use public information about Appellee to show her hypocrisy vis-a-vis the theme of her poem. This type of language and speech is afforded great protection.
For example, in NAACP v. Claiborne Hardware, 458 U.S. 886 (1982)involving the efforts of civil rights leader Charles Evers and others to organize an NAACP-sponsored boycott of white-owned businesses in Claiborne County, the Court noted that the boycott had a “chameleon like character…; it included elements of criminality and elements of majesty.” Id. at 888:
Evers publicly proclaimed that “any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.” Id. at 900 n.28. He “warned that the Sheriff could not sleep with boycott violators at night,” and told his audience, “ ‘If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.’ ” Id. at 902.
The Court found that Evers’ speech – even set against a backdrop of violence, and even including apparent threats – did not exceed the limits of protected speech. The Court noted that the speeches consisted of impassioned political pleas within which Evers’ seemingly threatening language was used, and that no imminent unlawful conduct followed the speeches. Id. Focusing on the political nature of Evers’ speeches, the Court wrote:
Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. Id.
While not equating the speech here to that of Evers’, and while not equating the issue over “copyright trolling” to the civil rights movement, the issue of intellectual property enforcement is an issue of national importance that is the subject of a large amount of speech on the Internet and in the media. See, for example, www.fightcopyrighttrolls.com; www.eff.org/issues/copyright-trolls and www.techdirt.com/blog/?tag=copyright+trolls. Appellant is entitled to protection similar to that of the traditional press. The Supreme Court has upheld an inclusive definition of “press,” including individual publishers who may not have special affiliations or education, but who may use leaflets and other sorts of publications that provide both information and opinion. Lovell v.City of Griffin, 303 U.S. 444, 452 (1935);Branzburg v. Hayes, 408 U.S. 665,704 (1972)(the newsgatherer’s privilege applies to “the lonely pamphleteer” as much as the “large metropolitan publisher.”)
Appellee most stridently objected to the posting of her home address and family information on ELI. T -35, line 17. But the Supreme Court has long held that there is nothing actionable about the posting of publicly available information. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494–96, (1975)(no claim can be based on a fact open to public inspection in government records; “We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man.”). In deciding that there was no invasion of privacy when a reporter in Georgia published the name of a rape victim in contravention of a Georgia law prohibiting such publication, the Court held that to the extent the law prohibits the publication of information already contained in a public document, the law is unconstitutional and unenforceable. Id. at 496-497.
Appellant only disseminated public information about Appellee, all of which was derived from public documents and records. T-46 line 15.
While the Cox case alone is sufficient to exempt Appellant’s conduct from the statute, persons who are public personalities have an even lower expectation of privacy. See, Carafano v. Metrosplash.com Inc. 207 F.Supp. 1055(Cent. Dist.Ca. 2002)(television actress could not complain of publication of a false profile of her on match-making site which contained her true address). Appellee is a public figure and therefore has an even lower expectation of privacy.
Finally, the image of her home and other posts complained of were posted by another party – not Appellant. Section 230 of the Communications Decency Act, 47 U.S.C. §230 (1996) (“CDA”) states:
“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.”
Effectively, this section immunizes interactive forums like ELI from liability for torts committed by others using their website or online forum. Carafano v. Metrosplash.com Inc., 339 F.3d 1119 (9th Cir. 2003)(CDA is intended to facilitate the use and development of the Internet by providing certain services immunity from civil liability arising from content provided by others). The CDA was held to immunize a publisher of an electronic newsletter from liability for publication of defamatory material even though the publisher edited portions of the defamatory material. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).
The Batzel decision joined the consensus developing across the country that § 230(c)provides broad immunity for publishing content provided primarily by third parties. See Green v. America Online,318 F.3d 465, 470-71 (3d Cir.2003) (upholding immunity for the transmission of defamatory messages and a program designed to disrupt the recipient’s computer);Ben Ezra, Weinstein, & Co. v. America Online Inc., 206 F.3d 980, 985-86 (10th Cir.2000) (upholding immunity for the on-line provision of false stock information); Zeran v. America Online, 129 F.3d 327, 328-29 (4th Cir.1997) (upholding immunity for both initial publication and delay in removal of false messages connecting offensive tee-shirts to the plaintiff’s name and home telephone number). Under the CDA, therefore, as long as a third party willingly provided the published content, the publisher is not deemed the “speaker” of the content and receives full immunity. Appellant cannot be held liable for the posts of others and cannot be held responsible for failing to take down the post of others. Zeran v. America Online, 206 F.3d at 985-986.
b. State Law Analysis
Georgia courts have held that the State Constitution provides even broader protection of speech than the First Amendment to the United States Constitution. Statesboro Pub. Co. Inc. v. City of Sylvania, 271 Ga. 92, 95 (1999);State v. Miller, 260 Ga. 669, 671 (1990). Therefore, Appellant’s words are entitled to protection under the State Constitution as well.
Without any threat of imminent illegal activity and without any incitement of anyone to imminently engage in illegal activity, even if the court finds that the actions of Appellant make out the elements of the statute, the statute’s exemption for constitutionally protected speech would apply to exempt the posts from the statute’s reach. Allowing Appellee to succeed on this petition would cast a chilling effect on future speech and has in fact stopped all discussion on ELI regarding Appellee. It would expose countless other websites to be subjected to orders of protection for similar legal behavior. See also, Smith v. Daily Mail, 443 U.S. 97 (1979) (punishing media for truthful reporting causes improper restraint on media).
.
E. THE ORDER WAS OVERLY BROAD AND BANNED ALL SPEECH ABOUT APPELLEE
The court below did not just require the Appellant to remove the few offending posts that Appellee placed in the record; it forced Appellant to remove all 1,900 posts on ELI related to Appellee and her business practices and it forced him to do so forever. T-124 lines 10-28.
This order was a far broader and more expansive restraint on speech than the law allows. It is even broader than the relief the Appellee was seeking. T-86 line 6 to pg. 87 line 15. While this argument was not raised by Appellant below it constitutes “plain error” as defined in page 20 of this brief.
Content-based speech regulations, like the court’s order below, face “strict scrutiny,” the requirement that the government use the least restrictive means of advancing a compelling government interest. United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000). Similarly, permanent injunctions that restrict First Amendment rights are proper only if they serve an overriding interest based on findings that the restriction is essential to preserve higher values and is narrowly tailored to serve that interest. U.S. v. Miami University, 294 F.3rd 797 (6th Cir. 2002). Here, the court unnecessarily violated Appellant’s First Amendment rights by requiring him to forever remove all posts regarding Appellee and to forever stop discussing Appellee. Therefore, even if this court denies all of Appellant’s other arguments, it must tailor the protective order issued more narrowly to allow Appellant to include posts by others and all posts which do not constitute a pattern of harassment or intimidation of Appellee; at most Appellant should have been required to remove only those posts of which Appellee complained.
.
IV. CONCLUSION
The court below improperly interpreted OCGA § 16-5-90(a)(1) and should not have held Appellant responsible for conduct that only violates OCGA § 16-590(a)(2). Furthermore, the court improperly allowed the admission of an ex-parte affidavit and held Appellant responsible for the posts made by third parties despite the language of the Communications Decency Act of 1996. As the Appellant was merely exercising his First Amendment rights in making posts about Appellee, the request for a protective order should have been denied or at the very least more narrowly tailored than the sweeping order issued by the court. Wherefore, Appellant prays that the order below be reversed and the petition dismissed or in the alternative, order that a new hearing be held on the petition.
Dated: September 30, 2013
/S/ Oscar Michelen
Oscar Michelen
NY State Bar No.: 2058477 (Courtesy Admission)
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
Marietta GA 30064
.
CERTIFICATE OF SERVICE
This is to certify that pursuant to Appellant Rule 6, I have on this day served counsel for the opposing party a copy of this “Brief of Appellant” before filing same by faxing a copy of the “Brief of Appellant” to the below listed opposing
counsel and by sending a copy of the “Brief of Appellant” to the below listed opposing counsel by United States Mail in a properly addressed envelope with adequate postage addressed to:
Elizabeth W. McBride, Esq.
Page, Scrantom, Sprouse, Tucker & Ford
1111 Bay Avenue Third Floor
Post Office Box 1199
Columbus, Georgia 31902
This 30th day of September, 2013.
/S/ Oscar Michelen
OSCAR MICHELEN
CUOMO LLC
Courtesy Admission
N.Y. State Bar No.: 2058477
9 East 38th Street
New York NY 10016
(212) 448-9933