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September 21, 2015

Text of Ellis v. Chan: My Declaration Regarding Petitioner’s Misrepresentations & Opposing Counsel’s Misconduct

On August 14, 2015, I filed with the Muscogee County Superior Court my “Declaration Regarding Petitioner’s Misrepresentations & Opposing Counsel’s Misconduct“. This was first reported publicly by Copyright-Trolls.com entitled: “Columbus Attorney Elizabeth (Betsy) McBride about to have a bad day“ and April Brown’s “Poetic Justice” Facebook page.

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.

At this time, I am posting the text of “Respondent’s Declaration Regarding Petitioner’s Misrepresentations & Opposing Counsel’s Misconduct” that I filed August 14, 2015 for everyone to read. I believe the text more than speaks for itself.

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IN THE SUPERIOR COURT OF MUSCOGEE COUNTY
STATE OF GEORGIA

CIVIL ACTION FILE: SU-13-DM-409

LINDA ELLIS, Petitioner,

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

Ellis v. Chan: Declaration Regarding Petitioner’s Misrepresentations – Opposing Counsel Misconduct by ExtortionLetterInfo.com

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February 2, 2015

Attorney Venkat Balasubramani Comments on Chan v. Ellis Appeal Case

As we enter February 2015, the anticipation of the decision from the Georgia Supreme Court on my appeal grows with each passing week. Based on our estimates, the time for their decision is fairly imminent. By imminent, I would be surprised if we didn’t get a decision by the end of March 2015. As we wait for the decision, I wanted to take some time revisit notable comments made by a legal/lawyer blogger in support of my case.

On October 10, 2014, Seattle attorney Venkat Balasubramani wrote a legal commentary titled, “When Does Online Criticism Become ‘Stalking’?” on law professor Eric Goldman’s Technology & Marketing Law Blog. I’ve been an occasional reader of Professor Goldman’s Technology & Marketing Law blog because I have both a personal and professional interest in both Technology and Marketing Law. Imagine my surprise when I discovered that my case was a topic of interest for them.

As a matter of disclosure, I have never met or communicated with Venkat Balasubramani or Eric Goldman. I have no relationship with either of them. As far as I know, Venkat has no particular inclination to be biased towards me or my legal adversary, Dash Poet Linda Ellis. It appears his interest in my case is entirely professional and his comments reflect that.

Given this, I carefully read his impressions of my case. And while Venkat does not explicitly state how many or which of the court documents he actually read, it certainly appears he did a much deeper reading than most people who have written about my case. Venkat also appeared to have watched the oral argument video of my case with the Georgia Supreme Court.

I give extra weight to Venkat’s legal commentary because he appears to be an experienced lawyer that doesn’t have a vested interest in the outcome of my case one way or another.

Venkat does an excellent job recapping ELI’s history, my background, and the events that led to the original hearing.

This is an online harassment dispute. Ellis, the plaintiff/petitioner, is the author of a poem called “The Dash”. She has achieved some degree of public figure status through the poem’s notoriety. The poem is about a person who speaks at a funeral, and Ellis encourages people to recite (but not publish) the poem. According to Chan, the defendant/respondent, Ellis also engages in scorched-earth copyright enforcement tactics, sending threat letters and extracting settlements from a wide-ranging group of people or entities who post or publish her poem without permission. In other words, she is alleged to be a copyright troll.

Chan runs the “Extortion Letter Info” website. He’s a Georgia businessman involved in a range of ventures. Receipt of a demand letter from Getty prompted him to start the ELI site, which has become a clearinghouse of sorts where people discuss, strategize, and vent about copyright enforcement campaigns. In 2012, after receiving information from a Seattle businesswoman about Ellis’ collection efforts, Chan added a forum to ELI titled “Linda Ellis/Linda’s Lyrics/Dash Poem Forum”.

According to Chan’s brief, one of Ellis’ employees sent a DMCA notice targeted at a document that Chan posted to Scribd. Ellis then sent an “abuse notice” to ELI’s web host, saying that ELI had posted harmful content about (or directed to) her.

This resulted in Chan having to change hosts, and Ellis sent an additional message flagging supposedly abusive content posted to ELI. This abuse notification was not as effective as the earlier one, because the new web host stood firm. Ultimately, Ellis sought a protection order under Georgia’s anti-stalking statute based on several different posts to ELI. She obtained an initial order ex parte, and after giving an opportunity for Chan to weigh in and conducting a (what one party described as a somewhat harried) hearing, the court made the order permanent.

The totality of the evidence in support of Ellis’s request for the protective order consisted of posts to ELI. Some of the posts were by Chan and others were from third parties.

Venkat astutely observed the “strange” involvement of Seattle attorney Timothy B. McCormack. Any conflict that the Dash Poet had with me had nothing to do with him. McCormack’s issues and complaints with me is entirely removed and separate from those of the Dash Poet. The only commonality is that both don’t like me or the ELI Forums very much for the public dialog and exchanges that occur between its readership and participants.

The court also considered the affidavit of a Seattle-based lawyer, who strangely weighed in on Chan’s supposed dangerousness, but then went on to author an amicus brief in support of Ellis. (I wasn’t really sure what the deal was here, although my uninformed guess is that the lawyer and Chan had tangled in the past, in correspondence or via email.)

Venkat gives his opinions on the content where the Dash Poet claimed I was “dangerous” to her.

Chan was admittedly antagonistic towards Ellis. He obviously disagreed with her tactics and had also apparently been paid, by one (or more) of the recipients of Ellis’ letters, to engage in a PR campaign to force Ellis to back down. Chan pushed some buttons. His posts did state a vague intent to engage with Ellis offline, but it’s tough to characterize any of them as truly threatening, or even intending to invade Ellis’s personal space:

A couple of posts from Chan did intimate that he had information about Ellis, including potentially unflattering information:

Chan mentions Ellis’s mailing address, but only in the context of wondering whether her letter-writing campaign is funding her mortgage payments on her house (with a commenter speculating about why her home shares an address with a day care center). The general tenor of his posts is that he has the ability to uncover information about Ellis from various sources, and he encourages others to do the same. None of the discussion is unrelated to her tactics or overall campaign–it may be personal, but it’s only personal because Chan doesn’t like Ellis’s style of copyright enforcement. There’s no dispute that Chan never met Ellis in real-space, followed her in real-space, or called her. (There is one post where Chan alludes to being in the same part of town as Ellis, but the two never crossed paths.) Nor is their any dispute that any of the ELI commenters engaged in these acts.

After sharing his opinion on the allegedly “dangerous” content, Venkat comments on the permanent protective order.

The court issues a permanent order against Chan, in part based on Chan’s supposed violations of the (ex parte) temporary order. Chan appealed. By request of his counsel, the appeal was transferred from the Georgia court of appeals to its supreme court. (Prof. Volokh participated as amicus on behalf of the EFF and Aaron Caplan, a law prof at Loyola who has written a bunch on how these types of ex parte no-contact orders can raise First Amendment issues.) The trial court’s order is striking in its breadth:

I am cautiously optimistic that the Georgia Supreme Court will formally recognize the merits of my arguments that the lower court ignored and disregarded. Nevertheless, I also understand that appeals are always an uphill battle for any appellant. Given this, it is reassuring to read Venkat’s assessment of the problems of the protective order.

It’s fairly obvious that this order has little chance of surviving unscathed. Three of the most glaring problems are: (1) even assuming some posts by Chan did make Ellis reasonably fearful for her safety, there is no basis to remove the other posts; (2) banning Chan from talking about Ellis in the future is a prior restraint; and (3) Chan is not responsible for the comments posted by others and neither the content of these posts nor his failure to remove them should form the basis of liability to Chan (nor should he be required to remove their posts).

Venkat provides further analysis by asking some very important questions that I believe the Georgia Supreme Court will acknowledge and answer.

More broadly, the order raises a question about what is enough to constitute a threat under the Georgia statute. Is a threat to cause her non-physical harm sufficient? Given that it is a stalking statute and references “safety,” one would think the answer would be no. Perhaps someone who engages in repeated one-to-one contacts or physical conduct can run afoul of the statute by communicating statements that are ambiguous threats, but there wasn’t any course of conduct or repeated contact here. Threatening to harm her business interests or her reputation should not suffice. Does disclosing Ellis’s personal information change the analysis? Given that her information is publicly available, the answer here should be no as well. (As a sidenote, the cases would give Chan and ELI wide berth from a defamation standpoint to characterize Ellis’s tactics as trolling or extortionate.)

As I have stated, the Dash Poet played the “frightened female and mother” card to garner sympathy from the local court. It absolutely worked. Venkat picked up on that undertone presented by the Dash Poet’s lawyer during oral argument.

The oral arguments of both sides really highlight their different conceptions of what it takes for online speech to be considered threatening. Ellis’s argument also implicitly raised the question of whether her gender should factor into the question of whether the speech is considered threatening. (This has come up a lot recently in discussions about the types of online harassment women face.) Without mentioning it specifically, Ellis’s lawyer took the tone that “taken in context, of course these are threatening.”

Venkat brought up a case I had not previously known about but is especially appropriate for those who would be accused of criminal “cyberstalking”.

The case also brought to mind US v. Cassidy, where a judge said that a federal stalking indictment based on online commentary could not withstand First Amendment scrutiny. As in Cassidy, Ellis is somewhat of a public figure and the posts are clearly spurred by Chan’s disagreement with Ellis’s tactics. There’s also no personal relationship between the parties.

Venkat doesn’t specifically mention Section 230 of the Communications Decency Act but it seems implied. He also seems unconvinced that I was inciting or advocating illegal actions towards the Dash Poet. (I wasn’t, not even close.)

It’s also interesting whether someone who operates a website (such as Chan) should be held responsible for the actions of his commenters that he allegedly encouraged. In other words, can Chan somehow be held liable for encouraging others to harass and stalk Ellis? Is he guilty of stirring up a so-called digital lynch mob? I’m not exactly sure how someone would tee up this type of a claim, but Chan was careful about what he encouraged others to do and it seemed clear his speech did not cross the line into illegal advocacy. The factual basis for such a claim was slim, or non-existent. Not to mention that First Amendment concerns counsel a close look at the factual underpinning of any liability in this scenario.

Venkat shares his thoughts regarding using certain laws to inappropriately reign in speech allowed by the First Amendment.

I’ve mentioned in passing that anti-stalking laws are often used to squelch criticism, and this is a good example. Ellis’s complaint is that Chan (and his commenters) are talking about her in ways they should not be. In fact, one of Ellis’s qualms seemed to be that Chan’s site ranked highly in search results, and as a result, people searching for Ellis online would be more likely to see the critical statements about her on Chan’s site. Ellis’s lawyer (or perhaps amicus who argued supporting Ellis) likened Chan’s actions to spray painting an epithet on a high school kid’s locker, or to a “virtual cross burning” [yikes .. strained analogy alert!].

I confess it was nice to read Venkat’s comments about Seattle attorney Timothy B. McCormack. Venkat doesn’t state McCormack by name which of the Dash Poet’s lawyer in the oral argument he is referring to: Elizabeth W. McBride or Timothy B. McCormack, but he does refer to “amicus counsel”. Neither lawyers were very credible but McCormack was the least credible of the two lawyers. The oral argument rarely showed the facial reactions of the Georgia Supreme Court Justices but I can promise you that most of their incredulous facial reactions went towards McCormack’s many outrageous assertions and arguments.

Ellis’s lawyer seemed oblivious to the First Amendment interests at play, trying to cast Chan as some sort of ringmaster, directing a circus of harassment towards Ellis. Although it’s always tough to judge from oral argument, it seemed like the justices picked up on the First Amendment issues at stake, and on the many problems with the trial court’s order. They had some tough questions for Ellis’s lawyers.

Venkat offered one final comment about the oral argument video.

It’s worth watching.

Overall, reading Seattle attorney Venkat Balasubramani‘s article on my case was validation of many important points I made in the lower court. However, the lower court chose to listen to the Dash Poet’s emotional arguments and ignore the true context of the posts in question as well as the First Amendment, in general. I am looking forward to reading the Georgia Supreme Court’s decision when it is released.

Win, lose, or draw, this has been an educational and life-changing experience and case.

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January 31, 2015

ELI Forums Revisit: Timothy B. McCormack is a Free Speech Thug & First Amendment Butcher

Writing about Todd, his website RestrainingOrderAbuse.com (ROA), and Todd’s alleged court order and instructions to remove all named references of his accuser and legal adversary sparked another unhappy memory. Seattle attorney Timothy B. McCormack twice foolishly interjected himself into legal dispute between myself and the Dash Poet (Linda Ellis). He interjected himself by sharing a copy of a 2007 unconstitutional permanent (lifetime) stipulated injunction/order he proudly crafted that essentially snuffed out the First Amendment rights of an individual, Brent David Simcosky, who made online rants of his unhappiness with Host America Corporation. The following copy of this unconstitutional permanent (lifetime) stipulated injunction/order sat on my desk since March 2013 and it never fully registered with me (until September 2014) how truly damning it was to both McCormack and Host America Corporation.

I revisit this post here on Defiantly because it further supports my assertion that many individuals get their First Amendment, online speech rights snuffed out because of overstepping judges, local courts that have little oversight, “dirty” lawyers, and, of course, legal ignorance by those self-represented individuals ill-equipped and inexperience in the local judicial system.

This obscure “local” case of Host America Corporation (a Colorado Corporation) vs. Simcosky from 2007 in the Thurston County Superior Court of the State of Washington is a prime example and a prelude of local judges and lawyers using dirty tactics to take advantage of a non-lawyer’s legal ignorance to give up his First Amendment rights to speak ABOUT someone.

The full original thread of discussion is on the ELI Forums. However, I have taken the liberty to selectively cut-and-paste parts of that discussion so that Defiantly readers can come up to speed.

I can now come out and say with great certainty that Timothy B. McCormack is not only a copyright extortionist, Timmy is also a free speech thug and a First Amendment butcher.

It is interesting that although I had the information since February 2013 where Timmy tried to insert himself into a case that had nothing to do with him. (Ellis vs. Chan and the subsequent appeal Chan vs. Ellis), it didn’t click with me that Timothy B. McCormack was an experienced Free Speech Thug & First Amendment butcher, not just a copyright thug.

One of the legal scholars, Eugene Volokh, who authored an amicus brief in support of my case and legal position…

http://www.scribd.com/doc/238796451/Chan-v-Ellis-EFF-Amicus-Brief-for-Appellant?in_collection=4336412

… made a casual mention of “cases we may never hear about”. That immediately triggered a memory of one of the “exhibits” McCormack submitted against me.

It was the 2007 case of Host America Corporation (Colorado corporation) vs. Brent David Simcosky.

In Timmy’s effort to silence me, he provided a copy of the restraining order he wrote for his 2007 client Host America Corporation against Brent David Simcosky, as an sample to my local judge to follow. Fortunately, my local judge wasn’t that insane.

It appears that Simcosky had some grievances against Host America and he was quite vocal about it on the Internet. Like many of us, Simcosky used discussion forums to openly vent and communicate his frustrations as well as to legally influence other people through the sharing of opinion and commentary.

http://www.scribd.com/doc/238810281/Host-America-v-Simcosky-Washington-State-Thurston-County-Superior-Court

I don’t have access to the exhibits but it would appear that Timmy produced what he considered the most offensive comments made by Simcosky. Here is the thing… these are rants and “threats” Simcosky made on a public forum. He threatens to tell others about how Host America wronged him. He uses rhetorical hyperbole, profanity, derogatory, and insulting language. However, nothing that is shown in the complaint (minus the exhibits) qualifies it as a “true threat”.

Unfortunately, Simcosky didn’t have the legal insights I did or he wasn’t lucky or resourceful enough to get access to legal minds like I did. But Simcosky was “forced” to sign an unconstitutional restraining order. Simcosky may be forbidden to talk about Host America but the rest of the Internet and Interwebs are not.

http://www.scribd.com/doc/238815136/Timothy-B-McCormack-Unconstitutional-Restraining-Order-Against-Brent-David-Simcosky

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF THURSTON COUNTY

HOST AMERICA CORPORATION, a Colorado Corporation
Plaintiff,

v.

BRENT DAVID SIMCOSKY AKA DAVID BRENT SIMCOSKY,
Defendant.

No. 07-2-01732-5
PERMANENT STIPULATED INJUNCTION

The parties to this action HEREBY STIPULATE to the following Permanent Injunction against Defendant.

D. Brent Simcosky

Host America Corporation 9/25/07

Based on the consent of the parties and the court’s own good judgment it is Ordered:

1. Defendant and any officers, agents, servants, employees, and attorneys, and all other persons in active concert and participation with defendant who receive actual notice of this order, are enjoined from:

a. interfering with plaintiff’s contracts or prospective economic relations;
b. posting on web sites, sending letters or otherwise discussing in any way information about plaintiff or its Board of Directors or its employees, vendors, channel partners or attorneys;
c. doing any other act or thing calculated to, rending to, or likely to unfairly compete with the plaintiff or to unfairly harm the value of plaintiff s stock;

2. Defendant will agree never to mention HOST again, publically (sic), to anyone ever again outside his own attorneys, unless by court order; Defendant will not appear or otherwise participate in any message boards or discussion forums that are affiliated with or that specifically discuss HOST or its affiliates or successors or assigns.

3. Defendant agrees to sign a Clarification Letter regarding misrepresentation of specific facts about the plaintiff and any intemperate or offensive communications for which he was responsible in the form attached to the parties settlement agreement The letter will be sent to David Murphy, the Host America Board of Directors, Channel Partners; plaintiff may use or discuss the letter with anyone in its effort to mitigate any damage caused by defendant or as might otherwise be required by law.

4. Each side will bear their own costs and attorneys, fees, except as noted.

5. The case will be removed from the court’s docket and be considered dismissed and adjudicated but the court will retain jurisdiction for enforcement of this injunction and any judgment that might be filed pursuant to the parties settlement agreement; counsel for plaintiff will retain subpoena power for compliance purposes;

6. If this injunction is violated, upon a good cause showing to the court, the following sanctions against the defendant will be imposed:

a. Payment of attorneys’ fees and costs for any follow-up enforcement action;
b. Surrender of any and all personal computers;
c. Agreement to not use the Internet for 10 years, unless for work; and
d. Damages in the amount of $250,000 and $25,000 in attorneys’ fees (in form of consent judgment).

This order shall go into effect immediately and shalt remain in effect until further order of this Court.

Done in Open Court, Dated: 28th of September 2007.

ANNE HIRSCH
SUPERIOR COURT JUDGE

Presented by Timothy B. McCormack, WSBA #28074
McCormack Intellectual Property Law
Business Law PS
617 Lee St.
Seattle, WA 98109
p. 206.381.8888 / fx. 206.381-1988
tim@McCormackLegal.com

The putz and lawyer hack we call Timmy McCormack unconstitutionally shut down Simcosky and deprived him of his free speech rights. Let’s look at this closely.

In Point 1, Simcosky can’t send letters to anyone any opinions about Host America to anyone? Even non-threatening ones? WTF.

In Point 2, Simcosky can never mention Host America again? WTF, are we in China? He can’t even breathe a word of that company without an attorney? He can’t post anything whether it is true or his opinions on Host America even if it is non-threatening? WTF.

In Point 6, if he violates the order, Simcosky has to surrender all his computers? WTF. Since when can anyone take anyone’s personal or business property over a civil issue? That gives him or Host America the right to just help themselves to Simcosky’s computers? WTF.

And he is going to forbid Simcosky from using the Internet for 10 freaking years except for work purposes? So, Simcosky can’t use the computer to make travel arrangements, make Facebook posts, Twitter posts, play online games, view Netflix movies, make memes on the Internet, make music, write a blog, do Google searches, and all the infinite variety of things people do that don’t have anything to do with work? WTF.

And Simcosky is going to be liable for quarter-million ($250,000) dollars damages/penalties and $25,000 in attorney fees for breathing or posting one word about Host America? WTF.

And the judge who allegedly agreed to this is Anne Hirsch, A Superior Court Judge? WTF.

http://www.co.thurston.wa.us/superior/judge-hirsch.htm

Someone please tell me, who is the bully and extortionist. This is why Timmy is so well hated by so many people. Timmy uses his alleged legal expertise to be a legalized thug.

He accuses Simcosky of extortion? You be the judge who the true extortionist is.

Timothy B. McCormack abuses the restraining order process and tramples over the First Amendment and free speech.

The funny thing about this extortionate and abusive restraining order that outright crushes free speech for Simcosky, is that McCormack is actually proud of it and presented it to the judge in MY case to set an example on me!

Well, the legal boomerang has swung. I have brought along a few legal allies to my side who truly are legal scholars in this field. I have learned much from them these past months. This extortionate and First Amendment crushing restraining order that Timothy B. McCormack authored will likely receive the “Streisand Effect” it truly deserves. The interwebs enjoy learning about this kind of free speech thuggery.

We, at ELI with its many community members, agree that Timothy B. McCormack is a putz and legal hack.

As I stated earlier, for anyone interested in reading the follow-up discussion and commentary to my opening post, please visit that discussion thread on the ELI Forums.

=====

January 24, 2015

CABALaw.org Wants to Help Dash Poem Demand Letter Victims for FREE!

Greg Troy of CABALaw.org is on a roll this week. He has made a stunning public offer to help victims of the Linda’s Lyrics / Dash Poem Extortion Letter for FREE. In Greg’s recent article titled: You Received Linda Ellis’ Dash Poem Settlement Demand Letter. Now What? Copyright Anti-Bullying Act Wants to Help. (As a side note, I created the The “Linda Ellis / Linda’s Lyrics / Dash Poem Copyright Infringement Letter” Resource Page that assembles various web resources for anyone needing information on the subject. Greg’s newest article has been added to that page.)

In his latest article, Greg outlines the major options every Linda’s Lyrics / Dash Poem extortion letter victim should consider. They include calming down and getting educated, then get mad and fight back with complaint letters, and finally getting qualified legal counsel. Both he and I highly recommend Oscar Michelen for legal representation. There is no lawyer more qualified to go up against Linda Ellis and her offensive and greedy copyright enforcement operation than Oscar. In fact, Oscar is currently my lead attorney in my legal battle against Linda Ellis herself to overturn a local court’s overreaching protective order.

What makes Greg unique from other solutions discussed by others (including myself) in the past is that he wants to spearhead a letter-writing campaign to the appropriate government agencies, namely the Governor’s Office of Consumer Protection against the Dash Poem copyright enforcement operation. Greg has had good success with his efforts against Getty Images on ExtortionLetterInfo.com (ELI) with the ELI Forums. In fact, Greg holds the special distinction of leading “An Experiment Against Getty”, the longest single thread of discussion on ELI ever (currently at 18-pages). It all centered around his efforts to spearhead that letter-writing campaign against Getty Images and their girlie-lawyer, Timothy B. McCormack, which caused a great deal of annoyance and heartache for Getty Images. It is all entirely legal and a wonderful exercise in the First Amendment when angry people band together in a common cause to make public complaints about a much larger, more powerful, and legally threatening adversary.

Unfortunately, the Linda’s Lyrics / Dash Poem Letter Forum on the ELI Forums was ordered taken down in March 2013 (now being aggressively appealed with the Georgia Supreme Court), it would have hosted that online discussion. For now, Greg is taking this project on entirely independent of ELI resources.

Greg is often highly underestimated due to his low-key, diplomatic, easy-going demeanor. But when provoked, as Linda has clearly done with her recent cyber-strafing of his online web and social media accounts, in addition to her online attacks of me and April Brown, author of “Poetic Justice”. Greg is now making this letter-writing campaign his pet project. I almost feel sorry for her. Almost. It is my opinion (I haven’t asked him) that Greg is seeking to bankrupt the ugly and greedy Dash Poem copyright extortion operation once and for all. I could be wrong but far be it for me to stand in Greg’s way.

On a selfish note, it is kind of nice to see others take up a sword in this fight. For a long time, it was just April and I taking most of the arrows from her. It should be interesting to see Greg’s results in the weeks and months to come.

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January 21, 2015

CABALaw.org Asks: Who is Stalking Whom?

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.

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September 20, 2014

Spanking Timothy B. McCormack’s Annoying Infringement-Defamation-Harassment Letter

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.

Copyright-trolls.com

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.

Extortionletterinfo.com

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;

(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.

Sincerely,

OSCAR MICHELEN