For those interested in following the progress of my appeal currently with the Georgia Supreme Court as well as learning the history of this case, I have presented a table of essential appellate court case documents here.
Oral Argument Videos: October 7, 2014 – Downtown Atlanta. (Oscar Michelen & Eugene Volokh arguing for Appellant Matthew Chan, Elizabeth W. (Betsy) McBride & Timothy B. McCormack for Appellee Linda Ellis)
A complete listing of all court documents including letters, pleadings, press releases, and other minor court documents can be found in the Matthew Chan v. Linda Ellis Georgia Appeal collection on Scribd.
I, however, did not quickly publicize this court filing as I typically do with my other court filings. First, I was busy with other responsibilities and it wasn’t a high priority for me. Second, the filing was already reported publicly by two friends. And finally, I was curious to see if there were going to be any court responses by Linda Ellis and/or her bimbo lawyer, Elizabeth (Betsy) McBride. Quite surprisingly (and stupidly) to me, they finally did. But that is okay, I will share this response in my next post.
IN THE SUPERIOR COURT OF MUSCOGEE COUNTY STATE OF GEORGIA
CIVIL ACTION FILE: SU-13-DM-409
LINDA ELLIS, Petitioner,
v.
MATTHEW CHAN, Respondent
.
RESPONDENT’S DECLARATION REGARDING PETITIONER’S MISREPRESENTATIONS & OPPOSING COUNSEL’S PROFESSIONAL MISCONDUCT
COMES NOW, Matthew Chan, as Respondent, declares to the Court the as follows:
1. I am the Respondent in this case. In the original hearing, I chose to represent myself “pro se” in this Court and I continue to represent myself now.
2. This Declaration may come as a “surprise” because it comes at a relatively late date. However, I wanted to take the time to think and reflect carefully before I submitted this Declaration. I have no desire to burden this court with any more pleadings, communications, or submissions unless absolutely necessary.
3. The purpose of this Declaration is to serve the “greater good” by including it as part of the court record. I take no joy in filing this Declaration but feel it is necessary. Over the last few months, I have gone back and forth in my mind whether I should file this Declaration. Ultimately, I have done so because I have learned that no one will ever advocate or represent me as passionately or determinedly as I would for myself. If I do not speak for myself on the matters herein then no one else will. Given the two-plus years that my supporters and I have devoted in time, energy, money, publicity, and other resources on my behalf, I want to address residual issues and matters of concern that have arisen during the “aftermath” period.
4. Because I continue to live and work in the jurisdiction of this Court, I have a strong vested interest in ensuring that every court views me fairly and credibly in any possible hearings in the future (related or unrelated to this case) and not let any possible bias, animosity, or ill will from this case negatively affect me or unfairly taint my reputation in any possible court matters in the future. I don’t expect favoritism but I strongly desire and request that any court be fair and respectful to me in the future whether I choose to represent myself “pro se” or through counsel I may retain.
5. I was vigorous and passionate in my own defense at the evidentiary hearing (as well as through two appellate courts and the court of public opinion) and I continue to hold high respect and regard for all courts. Despite my strong disagreement with the Court’s original ruling and the subsequent protective order that was issued against me, I believe that the Court was well-intentioned. I believe that because I was not a trained lawyer and chose to represent myself “pro se,” that it contributed to the ruling against me. To what degree, I may never know. Certainly, in reviewing the court record many times, I feel strongly that I made errors and did an inadequate job in presenting my case in certain parts. Indisputably, I was less educated with legal procedure than opposing counsel but I believe the Court knows I did my best while being respectful to the Court. I have had considerable time to relive, reflect, study, and analyze the circumstances up to the hearing of my case.
6. One of my larger concerns I want to express in this Declaration is the fact that opposing counsel, Elizabeth W. McBride is married to Judge Gil McBride, a Superior Court Judge. I want to be clear that I have never met Judge McBride and have no feelings or impressions of him one way or another. I did not know at the time of the original 2013 evidentiary hearing that Ms. McBride was related to, much less married to Judge McBride. I never made the connection although I had heard of Judge McBride’s name prior. This was a point of surprise and speculative discussion amongst my supporters when we later discovered this relationship. Some of us were concerned that Ms. McBride’s spousal connection to Judge McBride might have had a subtle influence on the Court in this case. Let me be clear, there is no evidence that the Court was ever influenced by this. I make no accusations of anyone that Judge McBride or his spousal relationship to Ms. McBride had any influence whatsoever on the Court in my case. However, I think it is reasonable that outside observers might speculate and wonder if cases Ms. McBride represents and wins in this Court will be entirely based on the merits and not her spousal relationship to Judge McBride especially given the relatively small number of Superior Court judges that serve the Columbus/Muscogee County area.
7. Prior to this case, I was already an avid supporter, advocate, and well-informed in matters of free speech and the First Amendment especially as it relates to the Internet. In particular, it is one reason that I chose to represent myself without a lawyer. I did not have the belief or confidence that I could easily find a sufficiently qualified lawyer locally that would passionately assert or argue my First Amendment rights or my rights as a website owner and discussion forum provider under Section 230 of the Communications Decency Act. Further, I did not have the confidence that any local lawyer would take the time to truly understand or sufficiently explain the intricacies, operations, context, style, and culture of my website, ExtortionLetterInfo.com (ELI) and its online community.
I want to recap the pertinent facts, events, and circumstances leading to this Declaration:
1. On February 13, 2013, Petitioner Linda Ellis, sought and was granted by the Court a “Stalking Ex Parte Temporary Protective Order” against me, Respondent Matthew Chan. A hearing was then scheduled for February 28, 2013.
2. The hearing did occur on February 28, 2013 as scheduled. Ms. Ellis was represented by opposing counsel, Elizabeth W. McBride, and I represented myself “pro se.”
3. Ms. Ellis, through her counsel, sought a Stalking Protective Order against me. I, as “pro se” Respondent, vigorously and passionately defended my position by asserting that I never contacted or stalked Ms. Ellis under O.C.G.A. §16-5-90. But even if the Court concluded that I had “contacted” Ms. Ellis under said statute, I argued that my speech fell well within the scope of the First Amendment and did not constitute “stalking”. Ms. Ellis, through her counsel, attempted to place responsibility of forum posts I had not written upon me based on the flawed and incorrect argument that because I was able to delete the forum posts and chose not to do so, as equivalent to me endorsing or authoring the content of said forum posts. I asserted 47 U.S.C. § 230 (Section 230 of the Communications Decency Act of 1996):
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This federal law preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
In simpler terms, the author of any forum post is only responsible for what he writes and no one else. This has been and continues to be well supported in state and federal cases throughout the U.S.
4. Although I acknowledge that the Court has no responsibility of what other lawyers have said to me or about me in the past or might say to me in the future, I want to inform the Court of a particularly shocking and appalling incident that occurred during an afternoon break of the 2013 hearing. The Court might recall that I openly complained that I, as an untrained non-lawyer, knew sufficiently enough to produce three sets of exhibits (one for myself, one for the Court, and one for opposing counsel) yet Ms. McBride, a trained, professional lawyer in good standing, did not have the respect or professional courtesy to provide me (a “pro se” defendant), not one extra copy of ANY exhibit during the hearing. Not one. During one of the afternoon breaks, a female lawyer whom I did not know or ever met before openly said to me “That is what you get for not hiring a lawyer.” This unsolicited and open statement directed at me was shocking, appalling, and entitled. Every citizen has the right to represent themselves “pro se” and expect to be treated fairly, respectfully, and professionally by opposing counsel and any court. What this says to me is that there is at least one practicing lawyer (perhaps many others) in Columbus/Muscogee County that has a general disdain and disrespect towards “pro se” litigants such as myself. On behalf of myself and all future “pro se” litigants, I respectfully request this court to consider that in any future hearings that the simple professional courtesy of additional copies of exhibits for opposing “pro se” litigants be enforced. This is not a controversial or unreasonable request especially since most opposing counsel themselves would insist that they receive the same.
5. Coming into any hearing before the Court, practicing lawyers in good standing already have a substantial “natural advantage” over any untrained non-lawyer “pro se” litigants such as myself. Given this substantial “natural advantage”, I assert that opposing counsel, Ms. McBride, was unprofessional and took unfair advantage of me and my “pro se” status during the February 28, 2013 hearing by not providing me ANY copies of ANY exhibits even when requested. In fact, because of her “natural advantage” as a lawyer in good standing, she had a duty to exercise extra caution and act fairly towards me as a “pro se” defendant. Taking unfair advantage of a “pro se” litigant can result in unintended consequences. In my view, she wasn’t “doing her job”. She cheated and deprived my rightful ability to easily reference those exhibits used against me. And yet, she sat with copies of all my exhibits conveniently in her possession that she could refer to anytime during and after the hearing. I was forced to rely on my memory and brief notes I made during one of the breaks.
6. While Ms. McBride can make the argument that she could not immediately leave the courtroom to provide me copies of any court exhibits, the Court amply provided her at least two substantial breaks for her to correct this alleged “oversight”. Despite my open complaints in court (which are in the transcript), she chose not to do so. For this, I do not blame her client, Ms. Ellis, for this. I place full responsibility and blame upon Ms. McBride. She is a lawyer in good standing and has practiced law for many years. She is not a newcomer to courtroom procedure. She knows better and she deliberately cheated to gain unfair advantage against me.
7. Further, there is no good argument that she can make for not providing copies of the exhibits to me AFTER the hearing. I reached out to her several times by phone and email (Exhibits A & B). She was nonresponsive and completely ignored me. Her actions (or lack thereof) were willful, irresponsible, unprofessional, and unfair. It greatly delayed and hurt my (and my lawyers’) efforts to properly evaluate my appellate position for many months. My grievance and complaints against Ms. McBride might be beyond this Court’s jurisdiction but nonetheless I state this here and document it for the record.
8. During the days and weeks following the hearing, I sought and received legal advice of whether I should appeal my case or not. I felt that most appellate cases are generally costly, uphill battles where lower court decisions are often upheld. I was fully aware of this and it was told to me by my appellate lawyers. For any appellate lawyer to fairly evaluate my case, he would need to see the evidence (exhibits) that was used against me. However, I did not have them due to Ms. McBride’s disregard, disrespect, and professional misconduct towards me as “pro se” defendant.
9. Shortly after the original hearing, I (still acting in “pro se” capacity) attempted to contact Ms. McBride four times. Twice by telephone (when I left voice messages with her assistant) and twice by email (Exhibits A & B) I tried to retrieve a draft copy of the final protective order and copies of Ms. Ellis’ court exhibits. I also inquired as to whether or not she wanted to jointly order the court transcript. She was nonresponsive and ignored me every time.
10. Although the Court announced a general ruling at the conclusion of the 2013 hearing, I had no specific instructions and the order had not been immediately written. As such, I, as “pro se” defendant, appropriately sought to inform and advise Ms. McBride to write an appropriate and reasonable order that was not overbroad and one that would not likely result in an appeal filed against her client. I clearly did not want a protective order issued against me but, if necessary, I was prepared to accept a minimal protective order as a compromise. I wanted to make sure that any court order against me was fair, reasonable, lawful, and constitutional. Unfortunately, the final order as written by Ms. McBride and issued by the Court on March 6, 2013 was not. This was not only my opinion. It was the opinion of many lawyers (including First Amendment legal scholars) which greatly influenced me to initiate the appellate process against Ms. Ellis.
11. As I stated, Ms. McBride had the responsibility to ensure that a reasonable and fair court order was written as to not compel me to appeal the case against Ms. Ellis. That would result in unnecessary legal cost and expense for both me and her client. It would not surprise me if Ms. Ellis has since become unhappy with Ms. McBride. Ms. McBride’s poor and unprofessional choice to ignore my requests to see her draft of the protective order and deny me copies of the exhibits unnecessarily harmed not only me but also Ms. Ellis, her client. Ms. Ellis did not have the legal education, background, or experience to understand the negative ramifications of Ms. McBride’s poor choices and actions. Unlike Ms. Ellis, I am far more informed on such matters. I understand the consequences of Ms. McBride’s poor choices. I assert and make the complaint that Ms. McBride forced both her client and me into an unnecessary and costly appellate case which cost both sides several thousands of dollars in legal fees, costs, and expenses in addition to lost time and energy. Although I ultimately prevailed in appellate court, it was all so unnecessary and could have entirely been avoided had Ms. McBride simply handled her client’s case more responsibly. I cannot place blame upon Ms. Ellis in this instance. I blame Ms. McBride.
12. An interesting anecdote I want to share is that on October 7, 2014, in the Supreme Court building where I was represented by three lawyers, Ms. McBride twice approached and attempted to communicate with me directly. It seemed to be an unusual action to take. Once, she called out to me when I was walking from the sidewalk to the entrance of the Supreme Court building. I briefly glanced at her and then ignored her. The second time, I was standing and conversing with my five out-of-state friends/supporters (who traveled to Atlanta to meet me and watch oral argument) in a waiting area. She approached me (us) and asked, “Are you with the Chan v. Ellis case?” I was clearly standing there and she recognized me earlier. She also asked if one of us was Oscar Michelen. This was a disingenuous question as Mr. Michelen’s photo has been and continues to be prominently displayed on the ELI website for seven years. It is ironic that when I wasn’t represented by any counsel that she would not respond to or communicate with me in any fashion. But somehow at the Supreme Court, she felt the strange inclination to try to communicate with me twice despite the fact that I made efforts to physically avoid both her and Ms. Ellis. The time for Ms. McBride to speak with me was during March 2013, not when we finally arrived in the highest court in the state for oral argument a year and a half later.
13. Ms. McBride also had the responsibility to vet her client’s exhibits to ensure they were true, authentic, and representative of the actual forum posts and not let her client submit altered, modified, or obscured exhibits mislead or deceive the Court. I have since discovered that several exhibits shown to the Court were not true, authentic, or representative of the actual forum posts.
14. The point of my presenting “new” exhibits now is not meant as a “retrial”. It is meant to inform the Court and place into the record that the original exhibits presented in the original hearing were not true, accurate, or representative. I had always been bothered by the poor quality of Ms. Ellis’ original exhibits. I never understood why Ms. Ellis presented such extremely poor, distorted, cropped, and marked up exhibits. Conversely, I presented to the Court very “clean”, organized, and easily readable exhibits. It was only after the Supreme Court reversed the order on March 27, 2015 and Ms. Ellis’ continued to make defamatory public statements about me in the media and press as a “stalker” and “cyberstalker” did I finally feel compelled to go into the forum archives (hidden from public view) and personally review every single exhibit she submitted against me at its original online source. I was informed very early on by my appellate lawyers that no new evidence could be submitted during the appellate process. Thus, no matter how poor quality or cropped the original exhibits were, they were the only ones allowed to be discussed and referenced in appellate briefs. I did not like that but I respected the rules. It would be two years later in April 2015 (after Ms. Ellis’ public defamatory statements against me would not cease) that I finally decided to compare and analyze Ms. Ellis’ poor-quality exhibits with the original source material online.
15. Although I prevailed in the Supreme Court, there were still matters of public perception and my online reputation I wanted to rectify. Ms. Ellis seemed determined to defame me and my reputation even after the Supreme Court decision. There is no denying that my own writings in prior forum posts and one video don’t paint me in a flattering light. I (along with my supporters) became very unhappy with Ms. Ellis’ continued online antics of taking my words entirely out-of-context and distorting the actual meanings. Because Ms. Ellis used such tactics publicly as her primary weapon against me to damage my online reputation, I had to discover for myself how far she took it with the original court exhibits. What I discovered in the forum archives when compared to her court exhibits was upsetting to me.
16. In Exhibit C, my comment about Ms. Ellis being “dead right” seems to stand alone. However, my comment is actually an open response to April Brown’s comment from June 23, 2012 which was cropped out of the court exhibit and not at all directed to Ms. Ellis. The cropping and omission was not an accident.
17. In Exhibit D, the court exhibit implies that April Brown embedded the “death” lyrics of the “Hearse Song” in the forum post. And yet the actual forum post (below the court exhibit version), never had any “death lyrics” whatsoever. It was simply a lone posting of a “Hearse Song” YouTube video. I included the follow-up post to the YouTube video which clearly shows April Brown’s comments that have NOTHING to do with death or violence. The addition of the “death lyrics” was intentional.
18. In Exhibit E, I provide the first three never-before-shown posts of “Ellis – Get Ready – We Are Coming After You!” as the originating context for that thread of discussion. Ms. Ellis emphasized (through an oval mark) that boisterous topic title. And yet, if the Court reads the first three posts, it has to do with April Brown’s moral outrage over Kalka & Baer’s (Ms. Ellis’ attorneys) $100,000 demand letter issued on behalf of Ms. Ellis to a book author over an unknowing sharing of her poem. Part of the argument for my position in my appeal was that the Court was unable to fully view the true and full context of the exhibits because what Ms. Ellis presented was cropped, modified, obscured, or out-of-context.
19. In Exhibit F, Ms. Ellis presented her exhibit as if it were “current” as of the February 28, 2013 hearing that ELI user, Robert Krausankas, posted a photo of her home and Ms. McBride implied that it was still online. And yet in the forum archives, the full post shows that as of January 17, 2013, Mr. Krausankas modified the post to display only the hyperlink, not the photo. In other words, on February 13, 2013 when Ms. Ellis applied for the Ex-Parte Temporary Protective Order, she made the false statement in her petition that the photo of her home was still being posted online, when in fact, as of January 17, 2013, Mr. Krausankas had already removed the Google Street View photo of her home of his own accord! At the February 28, 2013 hearing, Ms. Ellis and Ms. McBride again made the false assertion that the photo of her home was still being shown online for the purpose of threatening Ms. Ellis. It was not. The Court was mislead. The full, uncropped forum post clearly shows that Mr. Krausankas was illustrating what Ms. Ellis publicly reported to the State of Georgia as the address of her daycare center business (Kindercare Learning Centers)! Mr. Krausankas did not post the photo to “threaten” Ms. Ellis in any way. Ms. McBride irresponsibly echoed Ms. Ellis false assertions and helped perpetrate a lie without checking online for herself her client’s “exhibits” prior to the hearing.
20. The four exhibits (Exhibits C through F), are more than sufficient to illustrate my points. I was both foolish and naïve to assume that any forum posts Ms. Ellis would show to the Court would be complete and in its full context. I never suspected that she would submit such extremely altered, modified, and obscured forum posts. Nor did I suspect that Ms. McBride would not vet her client to ensure that the exhibits provided were in fact true, authentic, and representative of the actual posts. As an inexperienced non-lawyer, I did not request from the Court that Ms. Ellis show and display the full forum discussions in its proper context and that it be printed out for all parties to review and scrutinize. Nor did I ask the Court to instruct Ms. Ellis to go online while in court to confirm the accuracy of their exhibits. Ironically enough, the “affidavit” submitted by Seattle lawyer, Timothy B. McCormack (which I fought to have put aside), provided the “cleanest”, most readable, and unaltered versions of forum posts (although they were still isolated from the fuller context of online discussion.)
21. Another significant factor that influenced my decision to submit this Declaration is that my appellate lawyer, Oscar Michelen, felt compelled (with my authorization) to send Ms. Ellis a Cease-and-Desist Letter (Exhibit G) on my behalf on April 13, 2015. This letter speaks for itself. It was written to clearly inform and put Ms. Ellis on notice that we would not stand idly by while she continued to publicly and defamatorily refer to me as a “stalker” and “cyberstalker” when the legal matter of whether I “stalked” her was ruled and settled unanimously in my favor by all seven Justices of the Supreme Court.
22. During the trial, through my own oversight, I never presented the 18 testimonial letters (Exhibit H) written on my behalf. These testimonials letters come from supporters throughout the U.S. and even internationally such as Israel, Canada, and Australia. You will find that these letters are from intelligent, well-informed individuals who were witness to me, ELI, and online discussions about Ms. Ellis. I present them now as part of the overall record.
IN CONCLUSION, barring any unexpected developments or follow-up responses by Ms. Ellis or Ms. McBride, I consider this Declaration my capstone statement on the matter with this Court. After everything I have seen and experienced, Ms. McBride and Ms. Ellis have proven to be dishonorable and untrustworthy. I (along with my supporters) remain vigilant and keep a watchful eye of signs they might falsely attack me or my reputation again. If that happens, I will once again be compelled to vigorously defend myself as I did before.
At this juncture, I do not request anything from this Court except to respectfully consider and take into account everything I have written in this Declaration. No one can change or undo the past but perhaps others can learn and benefit from this case by being informed and cognizant that things are not always what they appear to be. I have learned much from the last 2.5 years. This case has been an educational and life-changing experience I will never forget and hope to never repeat.
This 14th day of August, 2015.
Respectfully submitted,
Matthew Chan, PRO SE P.O. Box XXXX Columbus, GA 31917
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.
For the last several weeks, I’ve largely stayed offline because contrary to some of critics’ belief, I actually do have a business and personal life offline. For those I criticize and write about, they got a small reprieve. However, April Brown’s book release of “Poetic Justice” on Amazon revived many old memories of the untold, behind-the-scenes stupidity we dealt with the last two years.
For example, some people cannot leave things well enough alone as in the example of Seattle Bozo / Clown Attorney Timothy B. McCormack who had the bright idea of sending me his so-called copyright infringement / harassment / defamation letter last year (January 2014). I went into an indefinite self-imposed exile from ExtortionLetterInfo.com (ELI) in March 2013. Essentially, I was waiting for the Chan v. Ellis appeal process to run its course and had no foreseeable plan to coming back to ELI. But my online silence and exile was not good enough for Timmy and he wanted to pick a fight with me because it was just too quiet for him. It became clear to me that he took my self-imposed exile as a sign of weakness and I decided it was time end my silence and make a comeback along with a pointed reply to the Seattle’s resident Getty Clown / Bozo Attorney.
In an incident from June 2013, I was forwarded a copy of John W. Jolin’s libelous and defamatory statements about me. I have BOLDED the outrageous defamatory statements that John wrote.
.
Thank you for your email. There are damages to consider. You used a product that costs money for FREE to promote your website. You unlawfully used a product without permission. We also see that you have been in contact with a previous infringer of Ms. Ellis’ work and anti-copyright advocate Ms. April Brown. Ms. Brown’s comments in her blog that you copied in your email are completely untrue! We in no way pursue individuals of someone whose daughter just died! That is absurd. I highly recommend you contact an attorney for legal advice. Ms. Brown is not an attorney. She is a vindictive copyright infringer that spews out bad legal advice. Ms. Brown is a Lead Advocate, Contributor and Ambassador to a proven stalker of Ms. Ellis, Mr. Matthew Chan. Ms. Ellis recently received a permanent restraining order against Mr. Chan in March. Mr. Chan has also been accused of additional stalking, child molestation and of being an abuser to women on many other websites. Please see the below link for more information on April Brown and Mr. Chan. I am sure your company would not want to be associated with these type of individuals.
Just to be clear our settlement offer is in lieu of possibly filing suit in federal court and pursuing statutory damages. Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of the loss suffered by the victim. Because of the ease of infringement, federal law authorizes copyright owners, like Ms. Ellis, to automatically recover statutory damages of up to $30,000.00 for each copyright violation in addition to the automatic recovery of all attorneys’ and costs involved in pursuing the copyright violation. 17 U.S.C. §§ 504(c)(1) and 505. If a court determines the infringement intentional or “willful,” the law authorizes a court to award statutory damages of up to $150,000.00 per copyright violation. 17 U.S.C. § 504(c)(2). Courts will find “willful infringement” when someone continues to publish copyrighted material after receiving a letter like ours from the copyright owner requesting its removal.
I am sure you are an intelligent person. Please review the below link from the US copyright office and see that there are damages when you use copyrighted work without permission. Then contact an attorney for real advice. http://www.copyright.gov/title17/
We hope to hear from you promptly to discuss our offer of settlement in a professional manner. Our offer of settlement is open for 10 more days before we turn this clear copyright infringement matter over to our attorney for further action.
Sincerely,
John W. Jolin Intellectual Property Coordinator Linda’s Lyrics, LLC 1050 E. Piedmont Road Suite E-135 Marietta, GA 30062 www.lindaellis.net Phone: 678-521-6216 Fax: 770-977-0077
NOTICE: This message and accompanying documents are covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and contains information intended for the specified individual(s) only. This electronic mail transmission is for the use of the named individual or entity to which it is directed and may contain information that is privileged or confidential. It is not to be transmitted to or received by anyone other than the named addressee (or a person authorized to deliver it to the named addressee). It is not to be copied or forwarded to any unauthorized persons. If you have received this electronic mail transmission in error, delete it from your system without copying or forwarding it, and notify the sender of the error by replying via email or by calling Linda’s Lyrics at (678) 521-6216, so that our address record can be corrected.
There are a few points I want to make here. First, if John didn’t want his email forwarded to anyone, he should never have sent it. No one can bind anyone to NOT share an email they legitimately received even with that ridiculous notice he attaches at the end of his email. I was forwarded his email legitimately and did not hack into his email account. Thus, I have a right to share it with anyone I please.
Second, John KNOWS I am not a “child molester” or an “abuser of women”. If I truly were, I guarantee he would not be so secretive or carefully worded about it. But he chose to take extreme creative liberties over posts made by a nutjob named Ari Hinnant who was upset at me for exposing her as an online scammer in 2009. One only needs to Google search “Ari Hinnant scam” to get what she is all about. Convicted sex offenders in all 50 states are listed in online federal databases. Anyone can easily do a search on anyone’s name. Needless to say, my name does not appear anywhere in these sex offender databases.. For that matter, aside from a few speeding tickets, I have no criminal record. And yet, here you can plainly see John engaging in some good old-fashioned libel and defamation of me in his efforts to discredit me (and April by association) so that he can collect money from his victim.
Third, John tells people to get “real advice from an attorney”. However, what he doesn’t say is “except if that attorney’s name is Oscar Michelen”. That is because Oscar knows better about how John and Linda operate and not at all intimidated by them. In fact, John wrote someone that he REFUSED to deal with Oscar because of his association with me.
An email from Summer 2013 (which I will not publish at this time), John tries to associate Oscar to the protective order I received and accuses both of us of “defaming entities” that protect copyrights. Because I received a protective order and Oscar made public statements in support of me and “associated” with me, John “refuses” to negotiate or “work with” Oscar. This unwise email John sent made Oscar unhappy because of its libelous and defamatory content that compelled Oscar to send a very stern cease-and-desist letter to John warning him of HIS defamatory, libelous, and possible tortious interference language.
Conveniently, John ran to “mommy” Linda. She stood up for and defended John by claiming she wrote and edited the entire email that was signed in John’s name. How convenient for him. John threatens legal action every other day to his victims but the one letter he receives from Oscar, he became silent and ran to Linda to defend him.
To the best of my knowledge, John or Linda never wrote anything libelous or defamatory about Oscar again. It seemed to me that they didn’t want to risk Oscar coming down to Georgia sue either of them personally. After all, it wouldn’t be hard to find them to get them served if Oscar wanted to. And HE would certainly not need to hire a lawyer to sue either John or Linda.
Both John and Linda have skirted the libel and defamation issue with both me and Oscar (but much moreso with me) the last two years when my case was under appeal. Desperately, they took advantage of the protective order that was in effect in 2013-2014 to stop people from listening to what Oscar, April, and I were telling victims regarding the Dash Poem extortion letters.
April’s book “Poetic Justice” is now available on Amazon. Sales have already ticked upwards based on online word-of-mouth alone. April has written about me, Oscar, ELI, and many people I’ve not met in her book. However, I only read very early drafts and have not come close to reading the final version. I am looking forward to reading her perspective of the dozens of victims (and their stories) she has communicated with and accumulated the last three years.
It is interesting note that had it not been for Linda and her foolish choices, it is entirely possible April would not have been so driven to become an author. Or if April wanted to become an author, certainly not with such urgency and passion.
April is likely to embark on an interesting journey in the months and year ahead. Those of us who are her friends cannot help but be fascinated with what she has planned. I am also an author of several books and audio programs but never on a subject so volatile. As a street-wise entrepreneur and businesswoman, she will take an unconventional and unorthodox approach to promoting the book. It will be interesting when people who are fans of “The Dash” encounter April’s book. It could be very eye-opening to Linda’s readership and fanbase.
I have kicked around the idea of writing a book about copyright extortion for years but it is April who was finally driven to make it happen. I commend her for committing the time, energy, and resources to make it happen. I know from personal experience that it is not an easy project to undertake especially the first book. The last book I wrote was in 2009, well over six years go. It is time I get back on the saddle.
Having said that, I am announcing that I will be writing about the Chan v. Ellis saga, I have no title yet. It will include the cast of characters and the MANY behind-the-scenes stories never told to the general public. It will likely debut in electronic format, not printed format. I want to be able to add and update it easily. In addition, Oscar Michelen has expressed interest in participating in this project and writing from his perspective. I am still in discussions with him. It would be a privilege to have Oscar as a co-author in this project. There is no timeline yet on this project but the Chan v. Ellis saga project is a definite go even if I have to write it alone.
With April’s book “Poetic Justice” hitting online shelves, I will have to play catch up to her!
I am happy to announce that I am probably the first “victim” to have ever made Linda Ellis, Author of the Dash Poem, pay real money to one of her victims as partial recompense for the unnecessary aggravation and legal shenanigans she and her side causes and engages in.
Last month, I received a money order from Linda Ellis as payment to recover some of my appellate costs which was entitled to me. It was not an automatic process. I filed a motion in April 2015 asking the court for a judgment against Linda to collect appellate costs, and that motion was incorrectly responded by her lawyer Elizabeth W. (Betsy) McBride in May 2015 claiming a full payment. But because Linda seems to enjoy engaging in passive-aggressive behavior against me (and her lawyer Betsy once again doesn’t check Linda’s “facts”), Linda shorted me payment by $0.01. I took the high road and chose not to have the Court “force” Linda to pay that $0.01. But as far as I am concerned, she still owes me that $0.01. It’s obvious that I don’t really care about that $0.01 as much as getting the facts correct. This is yet one more thing that Linda and Betsy gets wrong.
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While I am not one of her copyright extortion victims, I now consider myself a legal victim of Linda Ellis. She managed to get a bogus lifetime stalking protective order against me in 2013 using heavily modified, obscured, distorted, out-of-context forum posts against me (some which I never made to begin with!) to give the impression that I was a physical “danger” to her and her family. She was so desperate to shut me and the ELI Community up by portraying herself in court as a helpless fear-fraught female against me, a boisterous, opinionated, highly-critical, outspoken activist male blogger. And yet, she and her “employee” John W. Jolin, have no problems whatsoever demanding (“extorting”) thousands of dollars from others for the innocent sharing of her poem. They insinuate they “might” file a copyright infringement lawsuit to anyone who don’t pay. With only one exception (against a convict, Aronson, many years ago), she has never successfully filed a copyright infringement lawsuit on anyone.)
The Georgia Supreme Court saw through the bogus story, Linda and her lawyers, Betsy and Timothy B. McCormack were trying to peddle. This was made abundantly clear on October 7, 2014 when these two so-called lawyers made a ridiculously embarrassing and poor showing at the Chan v. Ellis oral argument.
The difference between me and 97% of her legally ignorant, cowardly victims is that I refuse to shut up and stay silent. After all these years, it has only been my friend and author of “Poetic Justice”, April Brown, and a very few special individuals who has ever spoken out in a big way and make a stand against Linda and Jackass John W. Jolin. Many of Linda’s victims will forever stay her victims by the ridiculous cowering in fear of her and Jackass Jolin. I, on the other hand, am not fearful of Linda or John. Even when I was under the protective order, I was aggravated and pissed at them, not fearful. To find out more about John Jolin’s latest shenanigans, I encourage you to visit copyright-trolls.com for the latest discoveries uncovered by Robert Krausankas.
My appeal case was not a silent affair where I huddled in a small, dark room depending and praying for my lawyer to miraculously save me. I was entirely active and deeply involved throughout the entire two-year process. I did not let a detail like my being a non-lawyer from getting into the trenches. I had eyes, ears, brain, mouth, telephone, computer, keyboard, email, and Internet connection, I was going to use everything I had access to. I was not passive. I was constantly thinking, analyzing, brainstorming, strategizing, and trying out offbeat ideas to fight back.
Linda hated all the critical and insulting dialog on the Linda Ellis / Linda Lyrics / Dash Poem Letter Forum launched in 2012. She managed (through her court-submitted evidence manipulations) to shut that forum down in March 2013. (It has since been restored as a READ-ONLY forum in April 2015). But because of my unanimous legal win at the Georgia Supreme Court, this stage of the legal fight is over. However, I do not take things for granted. Linda is probably pissed that she had to pay my appellate costs and I am guessing that is why she shorted me $0.01. If it was an intentional passive-aggressive act on her part, it has obviously backfired. My supporters and I remain vigilant. It is never over until it is truly over.
I do not trust Linda or her lawyers, My supporters help me maintain a watchful eye on them. I think they should know by now if they want to reinstate any legal or reputational attacks against me or my team in any way, they can expect us to rally and engage in a very hard and public fight.
Linda may have been legally ignorant in some aspects of the ordeal we went through but her two lawyers SHOULD HAVE KNOWN BETTER. This was ENTIRELY PREVENTABLE. They were either too STUPID or they tried to TAKE ADVANTAGE of me as a non-lawyer. I think I have shown that I might be a legally-uneducated non-lawyer but I managed to rally pretty well by being determined, creative, and resourceful. As I said two years ago, I don’t fight alone. And if I do have to fight alone, it won’t necessarily be pretty.
I may not be a copyright extortion victim of Linda’s but her copyright extortion victims can take some solace that someone (me!) was finally able to make Linda pay real money for her years of legally intimidating and financially extorting people. The image of that Linda Ellis’ money order payment to me will be preserved for many years to come.
Make no mistake, what she paid me is a tiny reimbursement compared to the collective time, energy, and resources that was gathered and galvanized to get to this stage.
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.
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.
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.
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…
… 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.
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.
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.
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.
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.
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.
SUPPLEMENTAL BRIEF OF APPELLANT IN RESPONSE TO SECOND AMICUS CURIAE BRIEF OF TIMOTHY B. MCCORMACK
.
Respectfully Submitted,
Oscar Michelen (Courtesy Admission)
NY State Bar No.: 2058477
CUOMO LLC
9 East 38th Street
New York, NY 10016
William J. McKenney
GA State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
.
.
TABLE OF CONTENTS
Table of Citations ……………………………………………………… ii
I. Preliminary Statement ……………………………………………….. 1
II. Discussion of Facts …………………………………………………. 1
II. Argument and Citation of Authorities ………………….…………… 2
A. THE US SUPREME COURT HAS ANALYZED CIVIL INJUNCTIONS BETWEEN PRIVATE LITIGANTS AS PRIOR RESTRAINTS ON SPEECH ………….. 2
B. BECAUSE APPELLANT’S POSTS ARE NOT “TRUE THREATS” THEY ARE PROTECTED BY FEDERAL LAW AND WERE THE SUBJECT OF AN OVERLY BROAD RESTRICTIVE ORDER …………………………………………… 4
C. APPELLANT HAS NOT WAIVED HIS RIGHTS ……………………………… 7
D. THE COMMUNICATIONS DECENCY ACT MAKES APPELLANT IMMUNE FROM LIABILITY FOR POSTS MADE BY OTHERS ……………………………… 8
E. THAT APPELLANT CAN POSSIBLY SPEAK ABOUT APPELLEE ON OTHER OUTLETS HAS NO BEARING ON WHETHER THIS ORDER IS CONSTITUTIONAL . . . 9
IV. Conclusion …………………………………………………………… 10
.
.
TABLE OF AUTHORITIES
Cases
Austin v. Keefe 402 U.S. 415 (1971) ……………………………………….. 2
Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008) …………………………………………………………………………………………. 9
Jones v. Dirty World Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED Ky. 2012) ………………………………………………………………………………………………..10
Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994) …………………………. 4
“Social Shaming Works Faster Than Legal Recourse”
https://www.techdirt.com/articles/20120730/07105419881/social-shaming-works-faster-than-legal-recourse.shtml ………………………………………………………… 7
“Why Social-Media Shaming is Okay”
http://www.buzzfeed.com/mattbuchanan/why-social-media-shaming-is-okay ….. 7
.
.
PRELIMINARY STATEMENT
This supplemental brief is submitted by Appellant in response to the Supplemental Amicus Curiae Brief of Timothy B. McCormack, filed in support of Appellee.
.
DISCUSSION OF FACTS
The Supplemental Amicus Curiae Brief (referred to hereafter as “SACB”) attempts to paint the few Internet posts involved in this case as “true threats” in order to have the Lifetime Protective Order survive the strict scrutiny analysis required of content-based restrictions on speech. The only way the SACB can do that is by mischaracterization of the facts in the record and mischaracterization of Appellant’s argument. Appellant will highlight some of those factual mischaracterizations in this section.
(A) On page 8 of the SACB, the Appellant is accused of cyber-bullying Appellee’s daughter when the only post about Appellee’s daughter was “MEE, museum” -her initials and her workplace. T. at pages 53 and 66;
(B) On page 10 of the SACB, one of the purported threats was characterized as a “ransom note” when the only evidence of the purported note was Appellee’s uncorroborated testimony that she “received a letter from [ELI], which I am currently trying to locate so I can honestly say yes, I have been notified with a ransom note type letter.” (T. at page 62). No such note is in the record.
(C) The SACB, on pages 10-11, then lists other purported threats contained on ELI but not the context in which they were made or that, as Appellant testified, they were just “figurative” speech (T. at pages 21-24). Appellant’s Brief and Supplemental Brief in Response to the Amicus Brief analyze and discuss these posts in detail.
.
ARGUMENT AND CITATION OF AUTHORITIES
.
A. THE US SUPREME COURT HAS ANALYZED CIVIL INJUNCTIONS BETWEEN PRIVATE LITIGANTS AS PRIOR RESTRAINTS ON SPEECH
The SACB argues that the First Amendment is not implicated in this case as the order does not qualify as “State action” because it only deals with the rights of private parties.
Since Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), the United States Supreme Court has evaluated injunctions against speech as prior restraints. In Austin v. Keefe, 402 U.S. 415 (1971), the Court struck down a preliminary injunction granted in a civil action between private parties for violating the First Amendment. The order banned a community organization from distributing leaflets in a Chicago suburb which were critical of a real estate agent’s business practices.
In overturning the order, the Court stated that it was not important that the matter was between two private parties because the order served to stop the dissemination of information to the general public. Id. at 418-419. The Supreme Court stated that it was also irrelevant that the community organization’s primary motive was “not to inform the public but to force the respondent to sign a no-solicitation agreement.” Id. at 419. Justice Burger, writing for the majority, used language that could not be more applicable to the case at bar had it been written by Appellant instead:
The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent’s conduct by their activities; this is not fundamentally different from the function of a newspaper. Petitioners were engaged openly and vigorously in making the public aware of respondent’s real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.
Id. (internal citation omitted).
Much of the Supreme Court’s First Amendment jurisprudence regarding abortion clinic buffer zones also has been the result of analyzing injunctions sought by and/or levied against private parties. See, e.g., Schenck v. Pro-Choice Network of Western New York. 519 U.S. 357 (1997); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).
The SACB cites only one case for its proposition that an injunction between private parties cannot invoke State action sufficient to warrant First Amendment scrutiny, McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2004)(an abortion clinic buffer case as well). While McGuire did state that every First Amendment claim requires State action, the court also stated that “enforcement [of a content-neutral statute] against a given person in a particular situation could be invalid on an as-applied basis.” Id. at pg. 59. That is what Appellant is arguing here. There is also State action here as the court below required Appellant to remove all posts about Appellee, even though that was not the relief Appellee was seeking before the court (T. at pages 84-86)(Appellee’s counsel stating they do not want entire forum taken down just alleged threats).
In another case directly on point, the United States Supreme Court held that a civil injunction issued against protests outside a lawyer’s office was an unconstitutional infringement of the protesters’ First Amendment rights. Tory v. Cochran, 544 U.S. 734 (2005). Moreover, the Tory court held that a “person subject to a court’s injunction may elect whether to challenge the constitutional validity of the injunction when it is issued, or to reserve that claim until a violation of the injunction is charged as a contempt of court.” Id. at 737. Here, Appellant has chosen to challenge the injunction against his speech upon its issuance and not wait to be held in contempt of court.
There is also State action here as the court required Appellant to remove all posts about Appellee, even though that was not the relief Appellee was seeking before the court (T. at pages 84-86)(Appellee’s counsel stating they do not want entire forum taken down just alleged threats).
.
B. BECAUSE APPELLANT’S POSTS ARE NOT “TRUE THREATS” THEY ARE PROTECTED BY FEDERAL LAW AND WERE THE SUBJECT OF AN OVERLY BROAD RESTRICTIVE ORDER
The SACB next analyzes Appellant’s posts and the posts of others on ELI as “true threats.” Rather than repeat Appellant’s response to the original Amicus Brief filed on behalf of Appellee, Appellant refers the court to the Amicus Brief filed in Support of Appellant and to the Appellant’s Supplemental Brief in Response to the Amicus Brief on behalf of Appellee.
The SACB relies heavily on Appellee’s subjective statement that she was reasonably placed in fear of her life but recognizes that it is Appellant’s intent to intimidate and create fear that causes [his posts] to lack First Amendment protection. SACB at page 17 (emphasis added). There was no evidence, however, that Appellant intended to place Appellee in fear of her life; all the evidence pointed to the opposite – that Appellant was discussing Appellee’s business practices and wanted to publicly embarrass and expose her for engaging in them.
At worst, Appellant was engaging in a relatively new Internet phenomenon called “doxing.” Internet encyclopedia Wikipedia defines the term as follows:
Doxing (spelling variant doxxing) is an abbreviation of document tracing, the Internet-based practice of researching and publishing personally identifiable information about an individual. The methods employed in pursuit of this information range from searching publicly available databases and social media websites like Facebook, to hacking, and social engineering.
https://en.wikipedia.org/wiki/Doxing
A prominent recent example of “doxing” occurred when journalists with the Westchester County, New York newspaper, The Journal News, were accused of publishing the home addresses of gun owners in the region in a story the paper published in December 2012. While “doxing” can often involve illegal hacking to retrieve the information posted, in Appellant’s case, all the information was publicly available and there was no hacking or even allegations of hacking.
Doxing is one form of “social shaming” another Internet phenomenon that uses social media to expose conduct that the poster of the information believes to be immoral, illegal or worthy of contempt. See, e.g., “Social Shaming Works Faster Than Legal Recourse” published on TechDirt.com on July 30, 2012 and available at https://www.techdirt.com/articles/20120730/07105419881/socialshaming-works-faster-than-legal-recourse.shtml; “Why Social-Media Shaming is Okay” published on BuzzFeed.com on November 13, 2012 and available at http://www.buzzfeed.com/mattbuchanan/why-social-media-shaming-is-okay.
The trial court even stated as part of its basis in granting the Lifetime Protective Order that the Appellant’s purpose was to intimidate Appellee about her copyright infringement program. At pages 122-123 in the transcript, the court states:
There’s no question that The Dash is a constitutionally-copyrighted document, and the illegal use of –a violation of the copyright certainly gives her the right to enforce all the copyright infringement laws, and that is not a grounds or basis to give the Respondent in this case the constitutional right to use the website to intimidate her, which he says has been his intent.
T. at pages 122-123.
While Appellant denies that the record supports a finding that it was his intent to intimidate Appellee, even were that the case, such conduct may be immoral but it is not illegal or even outside the confines of Constitutionally-protected speech. It cannot constitute “stalking” under the statute as the intent must be to place someone in fear of physical harm. There is simply no evidence that this was Appellant’s intent.
The Eleventh Circuit also requires that true threats be “a serious expression of an intention to inflict bodily harm.” U.S. v. Alaboud, 347 F.3d 1293 (11th Cir. 2003). There was no evidence that these posts constituted a serious expression of an intention to inflict bodily harm or that it was Appellant; intent to make Appellee fear bodily harm.
.
C. APPELLANT HAS NOT WAIVED HIS RIGHTS
The SACB then presents the circular argument that because Appellant was “convicted of stalking” he “has waived his First Amendment protections of such activity.” Appellant was not convicted of stalking as he never faced any criminal charges. Secondly, Appellant is appealing the order restricting his speech on First Amendment grounds, so he has not waived those rights. That is one of the main purposes of the appeal -to determine if the order amounts to an improper restraint on Appellant’s First Amendment rights. This position of Amicus for Appellee further demonstrates that the Lifetime Protective Order is a prior restraint on speech.
.
D. THE COMMUNICATIONS DECENCY ACT MAKES APPELLANT IMMUNE FROM LIABILITY FOR POSTS MADE BY OTHERS
The SACB raises the argument that because Appellant commented on some of the posts made by others, Appellant cannot claim the immunity provided by the Communications Decency Act of 1996 (CDA).
This issue is fully briefed in the Appellant’s Brief and Reply Brief; the Appellant’s Supplemental Brief in Response to Amicus Curiae Brief on Behalf of Appellee; Appellant’s Supplemental Brief regarding recent case law in this arena; and in the Amicus Curiae Brief filed in Support of Appellant.
To summarize, the Appellant did not actively participate in illegal conduct like the defendant in Fair Housing Council of San Fernando Valley v. Roomates.com, 521 F.3d 1157 (9th Cir. 2008) (creating online questionnaire to help users violate the Fair Housing Act) or actively participate in posting allegedly defamatory content about a person like the defendant in Jones v. Dirty World Entertainment Recordings, LLC. 840 F. Supp 2d 1008 (ED Ky. 2012) (website allegedly posted libelous and defamatory content about schoolteacher). Instead, the Appellant’s case fits squarely in the protection afforded by the CDA: He is a provider of an interactive computer service being treated as a speaker for the content posted by another speaker.
.
E. THAT APPELLANT CAN POSSIBLY SPEAK ABOUT APPELLEE ON OTHER OUTLETS HAS NO BEARING ON WHETHER THIS ORDER IS CONSTITUTIONAL
The SACB makes the argument that there may be other outlets on which Appellant can talk about Appellee and that therefore the order is narrowly tailored and not overbroad. The SACB, however, makes no argument why this speech would not violate the Lifetime Protective Order which required Appellant to remove “all posts” about Appellee regardless of their content. The SACB even contradicts its position that Appellant is free to discuss Appellee anywhere else but ELI when it claims that Appellant has “moved the Ellis content to another website.” Not only does the SACB offer no proof of this alleged fact but it immediately states thereafter “Whether this activity violates the Protective Order has not been litigated yet.” SACB at page 24 fn 1. This statement alone reflects the chilling effect and prior restraint on speech that the Protective Order has had and will have on Appellant’s right to free speech.
The US Supreme Court has long-ago decided that whether the speaker has another alternative outlet for their speech is not relevant to First Amendment analysis. See, e.g. Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546 (1979)(municipal theater’s ban on play was impermissible prior restraint even though play could be performed elsewhere).
As the Court stated in that case “One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Id.
.
IV. CONCLUSION
The Supplemental Amicus Brief on Behalf of Appellee does not bring to the court’s attention any arguments that support or justify the broadly restrictive order below. The PPO must be reversed.
Dated: September 25, 2014
.
/S/ Oscar Michelen
Oscar Michelen
NY State Bar No.: 2058477
CUOMO LLC
9 East 38th Street
New York, NY 10016
/S/ William J. McKenney
William J. McKenney
GA State Bar No.: 494725
MCKENNEY & FROEHLICH
50 Polk Street NW
Marietta, GA 30064
.
.
CERTIFICATE OF SERVICE
This is to certify that in accordance with Georgia Supreme Court Rule 14, I have on this day served this Supplemental Brief of Appellant in Response to Second Amicus Curiae Brief of Timothy B. McCormack before filing with the Court by mailing a copy of same to the opposing counsel listed below in a properly addressed envelope with adequate postage:
Page, Scrantom, Sprouse, Tucker, Ford
Attorneys for Appellee
1111 Bay Avenue
Third Floor
Columbus, GA 31901
Mr. Timothy B. McCormack
Amicus Filer on Behalf of Appellee
167 Lee Street
Seattle, WA 98109
This 25th day of September 2014
/s/ Oscar Michelen
Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38th Street
Third Floor
New York, NY 10016
(212) 448-9933
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:
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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
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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.
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January 29, 2014
Mr. Timothy B. McCormack
617 Lee Street
Seattle WA 98109
Re: Cease and Desist Letters
Dear Mr. McCormack:
This letter is sent to respond to two cease and desist letters recently issued by you. The first letter was issued to www.copyright-trolls.com; the second was issued to me personally and to www.extortionletterinfo.com and its owner Matthew Chan. I will address them one at a time.
Please be advised that I represent this site with respect to your claim regarding the use of an image purportedly owned and copyrighted by you. Please direct all future correspondence on this matter to me and not my client.
In an exercise of caution and to not to have to have continued correspondence with you on this matter, the site has complied with your cease and desist request and removed any display of your picture. The rest of your demands will not be complied with however. As to any purported claim of “defamation” I remind you that the First Amendment greatly protects speech, parody and comedy. In fact, last week or so, the Ninth Circuit (which covers Washington State), in Obsidian Finance Group v. Cox, ruled that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove malice (if they are public figures) or negligence (if it is a matter of public concern regardless of their status) to win damages. The Court further reiterated the public’s right to post opinions, even if they are nasty and crude. It stated it looks at three factors to distinguish between “fact” and “opinion” as follows:
“(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.”
All three of those factors point to the obvious: that any statements or references to you in the posts to which you object are at best statements of opinion and are not defamatory. There was no false fact contained in any of the post of which you complain. They are merely jokes or expressions of opinion that amount to parody. No one believes that the posts are actually saying you are actually a “turd;” that is just an opinion and an attempt at humor. Particularly when aimed at someone who is a public figure like yourself, these types of sarcastic, even negative, parodies and commentaries are protected.
Moreover, your continued use of boilerplate, threatening letters on behalf of digital image warehouse companies, while likely lucrative to you, naturally exposes you to being the target of scorn and commentary. You cannot pretend to ignore the numerous sites, bloggers and journalists who have decried “copyright-trolling” as a scourge of the Internet. That places the subject matter and those who engage in it in the public eye and open to expression of opinion contrary to their pursuits. Far be it for me to tell another lawyer how to run his practice, but I would venture to guess that the more you continue in this method of practice, the more you will continue to be criticized by third parties. Copyright-trolls.com has no less right to express negative opinions and make negative comments on what you and others do than the Washington Post or the NY Times. Accordingly, I hope and expect that this communication ends this issue.
Much more troublesome is your communication to me regarding ELI. First of all, I do not practice out of my home; I am a partner in a litigation law firm with two offices – one in Manhattan and one on Long Island. While in the past you have unsuccessfully tried to embarrass me by writing my partner Matthew Cuomo at our Manhattan office which he manages, I ask that you direct all future correspondence to me at our Long Island office, which I manage. There is no reason for you to communicate with me at my home; any further communication about a client or potential client of mine that is directed to me at my home will be taken as harassment and reported to your State Bar.
Next, your letter refers to ELI as “your [meaning my] website” and asserts that you are writing to me so that I may use my “ownership” of the site to influence compliance with your demands. Too many times to mention it has been made clear to you that I do not own ELI in whole or in part. Your participation in the Linda Ellis matter also served to further instruct and advise you that Matthew Chan is sole owner of ELI. Your continued assertion that I am an owner of ELI is frivolous, baseless and beyond explanation – you clearly do not care that you are making a wrong and insupportable accusation.
You then also reference me as “opposing counsel.” On what matter am I opposing counsel to you with respect to ELI? Are you writing me as ELI’s lawyer or as ELI’s owner? Or both? Currently, I am in fact neither. Matthew Chan will likely want to respond to your letter directly himself. If I am going to respond on behalf of ELI, I will lead my letter with a sentence advising you that I am acting as ELI’s attorney. (See the section above dealing with copyright-trolls.com. as an example). You then intimate that I am somehow behaving in violation of Rule 8.4 of the Rules of Professional Conduct while at the same time asking me for “professional courtesy.” This request for courtesy is laughable, coming from an attorney who:
(a) made a completely frivolous and baseless multi-page complaint against me with the Grievance Committee of my State Bar; (b) included it as an exhibit in the improper affidavit submitted in the Linda Ellis matter so that the complaint is now also a matter of public record in the Georgia Court system; (c) who wrote to my law firm partner, as if writing to scold a child to his parent; (d) who writes me repeatedly at home over business issues; and (e) who continually and falsely claims that I own a website I have no ownership in. In my 27 years of practice as a litigator in one of the most litigious States in the Union, I can recall only one or two attorneys that I have less respect for than you Mr. McCormack. So before you ask me for “professional courtesy,” I suggest you find the nearest mirror. While I always extend professional courtesy to my adversaries, it is a two-way street and I will afford you precisely as much courtesy and respect as you seem to afford me.
To that end, let’s look at Rule 8.4 which you cite:
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Of course, like most of your demand letters, you provide no factual basis or explanation as to why any of these sections should apply to my conduct. I ask that you send me a detailed explanation of which of these sections I may have violated (or will violate) and the facts you rely upon to support such claim. Otherwise I will deem this part of your letter to constitute yet another frivolous and baseless accusation against me.
With respect to the substantive matters addressed in the letter to Mr. Chan, I expect he will respond to you himself. But, as usual, this looks like a boilerplate copy of the letter you sent my client at copyright-trolls.com, so the same arguments would apply.
In conclusion, address all future correspondence on the copyright-trolls.com matter to my attention at my Long Island Office. Furthermore, cease and desist from making baseless and frivolous allegations about my professional conduct and my practice of law.
Oscar Michelen Georgia Bar No.: H10048 Cuomo LLC Attorneys for Appellant 9 East 38th Street Third Floor New York, NY 10016
William J. McKenney Georgia Bar No.: 494725 McKenney & Froehlich Attorneys for Appellant 50 Polk Street NW Marietta, GA 30064
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TABLE OF CONTENTS
1. Table of Authorities ………………………………………. ii
2. Preliminary Statement ………………………………… 1
3. Statement of Facts …………………………………….. 1
4. Argument …………………………………………….. 1
POINT I RECENT DECISIONS HAVE RECOGNIZED THAT THE FIRST AMENDMENT AND THE COMMUNICATIONS DECENCY ACT PROVIDE BROAD PROTECTION TO INTERNET SPEECH THAT IS REPUGNANT EVEN IF IT IS DIRECTED AT OR IS ABOUT ONE PARTICULAR PERSON
a. Virginia Federal Court holds Neo-Nazi’s posting of attorney and wife’s personal information and his posts mentioning possible attacks was protected speech and not subject to restraint or sanctions …………………………… 2
b. Eleventh Circuit upholds conviction for threatening the President of the United States due to context and nature of defendant’s Facebook posts ………………………….. 8
c. Sixth Circuit holds that Section 230 of The Communications Decency Act protects a blog site owner from the defamatory posts of others ……………………………. 9
5. Conclusion ………………………………………………. 13
6. Certificate of Service ……………………………………. 14
.
TABLE OF AUTHORITIES
Cases
Bartnicki v. Vopper, 532 U.S. 514, 527………………………….……………… 6
Fair Housing Council of San Fernando Valley v. Roomates.com LLC, 521 F.3d 1157 (9th Cir. 2008) ……….. 12
In re White, 2013 WL 5295652 (E.D.Va. Sept. 13, 2013) …………………….. 2
Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398 (6th Cir. June 16, 2014) ……………….. 9
U.S. v. Castillo, 564 Fed. Appx. 500 (11th Cir. May 2, 2014) ………………….. 8
U.S. v. Alaboud, 347 F.3d 1293, 1297 n. 3 (11th Cir.2003) …………………….. 5
Watts v. United States, 394 U.S. 705 (1969) ……………………………………… 9
.
Statutes
O.C.G.A. § 16-5-92 ……………………………………………………………… 13
.
PRELIMINARY STATEMENT
This supplemental brief is submitted by Appellant Matthew Chan (“Appellant”) to discuss relevant cases that have been decided since the submission of the original briefs in this appeal.
STATEMENT OF FACTS
The Appellant incorporates by reference the Statement of Facts set forth in Appellant’s Brief.
ARGUMENT
POINT I
RECENT DECISIONS HAVE RECOGNIZED THAT THE FIRST AMENDMENT AND THE COMMUNICATIONS DECENCY ACT PROVIDE BROAD PROTECTION TO INTERNET SPEECH THAT IS REPUGNANT EVEN IF IT IS DIRECTED AT ONE PARTICULAR PERSON
Since the submission of briefs to the Georgia Court of Appeals in this case, several courts around the country have had the opportunity to analyze and balance the right of courts and individuals to address perceived wrongs over Internet language and the language’s protection under the First Amendment and the Communications Decency Act of 1996 (“CDA”). These recent cases have reasserted the First Amendment’s broad and sweeping protection and the distinction between protected speech and “true threats.” These cases also serve to reinforce that Appellant’s conduct here was the type of freewheeling, robust speech common to the Internet and did not constitute actionable “true threats” or “attempts to intimidate” Appellee.
a. Virginia Federal Court holds Neo-Nazi’s posting of attorney and wife’s personal information and his posts mentioning possible attacks was protected speech and not subject to restraint or sanctions
The Eastern District of Virginia was asked to sanction Neo-Nazi William White after White made a series of posts about Kevin W. Mottley of Troutman Sanders LLP (“Mottley”) and his wife. In re White, 2013 WL 5295652 (E.D.Va. Sept. 13, 2013) (only citation presently available)1. Mottley was prosecuting a Fair Housing Discrimination action in the District surrounding allegations that a housing complex was discriminating against black residents based on their race. Id. at 2. White made numerous posts attacking the case and Mottley on various Internet forums including one to his white supremacist group’s home page that published his wife’s full name. The post then purportedly admonished his “comrades”
“not to go by the [Mottley] home at [Mottley’s home address], or call them at [Mottley’s phone number]. Do not open credit cards in their name, empty their bank accounts by Internet, hack their emails, or otherwise invade their privacy.”
Id at 14. This resulted in Mottley filing a motion for sanctions; the court then conducted an evidentiary hearing on the motion. Id.
At the hearing, Mottley testified that, upon learning of the posting, he and his law firm took a number of steps designed to ensure his safety, including notifying local law enforcement (which resulted in increased safety patrols in his neighborhood) and hiring private security guards to surveil his home. Mottley explained that he “perceived th[e] posting … to be a threat to [his] safety, not only [his] physical safety … but also the security of [his] financial accounts, [his] home, and most importantly, of [his] wife,” who was not involved in the underlying case. Mottley stated that he and his family suffered feelings of fear and intimidation as a result of White’s postings and that the postings caused him to question his continued representation of the plaintiffs in the underlying discrimination litigation. Id. at 24. Mottley also provided the court with various exhibits of White’s prior writings which talked about killing people opposed to his views. Id.
After the hearing, White again posted the Mottley’s home address and phone number as well as the home address of a Justice Department lawyer participating in the case advising his “comrades” to:
Write to them. Call them. Tell them what you think. Do not threaten them. Do not harass them. Do not commit crimes against them, at this point in time or any other point in time. But, legally, contact them and share with them your point of view. You have a right to contact people who are in activities that draw public attention. They do not have a right to conduct their activities in secret or to hide from you. And if they do something irrational, like hire police bodyguards to protect them from “threats” that exist wholly in their imagination, we are in now [sic] way responsible for that
Id. at 19. He then posted this additional comment:
I saw the movie “Funny Games ” the other night, and it occurred to me: Civil Rights Attorney Kevin Mottley of Troutman Sanders and his wife would star perfectly in the role of “the family”. [sic]Anyone think I’m off base on that?
Id.at 36. The court noted that “Funny Games” tells the story of “a middle-class family [who] submits both physically and mentally to the torture, violence, and death foisted upon them by two young, unexpected white-gloved visitors at their vacation retreat near the lake.” Id. In addition to the commentary regarding the underlying litigation, Mottley offered other examples of White’s writings, including comments endorsing the murder of “white people opposed to racism;” postings hypothesizing about the effect on the 2008 presidential election were then-candidate Barack Obama to be assassinated; and White’s postings calling for the murder of a Canadian civil rights’ lawyer whose home address White had also published. Id. at 38. The court also highlighted:
“[o]ne particularly deplorable posting [that] detailed White’s exhibitionistic and self-serving view of his physical altercation with an African American ‘crack dealer.’ White authored the post . . . after he was acquitted of the resulting assault charge. In it, White lamented the state of his community and what he viewed as a failure to act on the part of law enforcement. Justifying his actions, White stated, “I have additionally become convinced that the murder of wicked men, when conducted in a selfless manner, is a path to transcendence and to God. . . .White “recommend[ed] to all reading this that they consider taking a wicked man—a crack dealer, a pimp, an NAACP official defending black crime, or perhaps a newspaper writer supporting them—and killing them with your bare hands as a test of what I have to say.” Id.
Despite all this violent rhetoric and despite the posting of this personal information about Mottley, the District Court upheld the hearing magistrate’s finding that White’s speech was protected by the First Amendment. In so doing, the court undertook an analysis of all the Federal Circuits to determine whether, in deciding if speech constituted a “true threat,” the court should apply a “listener-based” or “reasonable person- based” approach. The court noted the Eleventh Circuit’s position that such a distinction is irrelevant because “[b]oth tests are basically a ‘listener-based’ test’ in that, even under the [listener-based] approach ‘the jury would have to decide how a reasonable listener would understand the communication in order to determine how a reasonable speaker would foresee the effect of his or her communication.’” In Re White¸ 2013 WL 5295652 at page 43 (citing United States v. Alaboud, 347 F.3d 1293, 1297 n. 3 (11th Cir.2003)).
The court held that the various postings did not amount to “true threats” to inflict violence upon Mottley and his wife. Id. at 51. The court also said the “Funny Games” post was similarly protected because it “at most conveyed a serious desire that [Mottley] be harmed by others” and not “a serious expression of [White’s] intent to do harm from the perspective of a reasonable recipient.” Id. at 52 (emphasis in original). The court added “Thus, although the Court finds the republication of Mottley’s personal, identifying information repugnant, based on the language of the postings it was not apparently unlawful. Id. at 53 (citing, among other cases, Bartnicki v. Vopper, 532 U.S. 514, 527(2001)) (“Defendant cites no authority for the proposition that truthful lawfully-obtained, publicly-available personal identifying information constitutes a mode of constitutionally prescribable speech. Rather, disclosing and publishing information obtained elsewhere is precisely the kind of speech that the First Amendment protects.”)
More importantly for the present issue before this Court¸ the White court then analyzed and stressed the importance of the context in which the statements were made. While first noting that Internet speech is entitled to no greater or lesser protection under the First Amendment, the court stated that the Internet provides 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.” Id. at 55. It found that White’s postings on Internet forums as opposed to private direct communications to the Mottley weighed in favor of First Amendment protection; this was especially true, the court stated, when the objectionable posts were taken in context with all of White’s other myriad posts:
White, indeed, is a prolific writer who regularly publishes to the Internet his criticisms of people and groups with whom he disagrees. This fact is relevant to the Court’s determination of whether a subset of such writings constitute “true threats,” because it speaks to White’s intent in authoring the postings at issue here. Specifically, the fact that White regularly publishes his social and political views on the Internet suggests that, when he expressed similar views concerning the underlying litigation, generally, and Mottley, specifically, he did so with the intent to engage in similar political or social discourse.
Id. at 56. The court also said it was important that the posts were available to the general public and not just privately transmitted to White’s Neo Nazi followers. Id. The court acknowledged that the speech did cause Mr. Mottley to be in fear and take action to protect himself and his family and that two early morning hang-up calls were made to the Mottley’s home phone. This evidence was not dispositive however, merely “corroborative” that the postings were true threats. Rather, the court stated, it was more important that there was no evidence that the many posts of White were ever directly attributed to any acts of violence.
In concluding that it would not sanction or restrain White, the court stated that “[a]lthough the court is sympathetic to Mottley’s plight and the very real fear that White’s postings inflicted on him and his family” sanctioning White for his Constitutionally-protected speech would not be an appropriate exercise of discretion. Id.
Appellant’s posts come nowhere near the language used by White; his prior writings do not propose to incite anyone and did not incite anyone to violence; the evidence about Appellee’s fears caused by the post pales in comparison to the Mottley’s evidence; the extensive history and breadth of Appellant’s writings offline (as an author and publisher of several books, ebooks, and audio programs) and online (as a blogger, web publisher, forum administrator, and online community leader), and the thousands of other substantive posts on the ELI Forums show that the postings were not true threats but rather done “with the intent to engage in similar political or social discourse.” and were therefore protected speech.
b. Eleventh Circuit upholds conviction for threatening the President of the United States due to context and nature of defendant’s Facebook posts
In U.S. v. Castillo, 564 Fed. Appx. 500 (11th Cir. May 2, 2014), the defendant was convicted in the District Court for the Middle District of Florida of making a threat to injure or kill the President of the United States.
When someone posted a picture of President Barack Obama on Facebook, Castillo commented, “[T]hat’s the last straw. If he gets re-elected, I’m going to hunt him down and kill him and watch the life disappear from his eyes.” When another Facebook poster informed Castillo that threatening the President was a federal offense and that the Secret Service tracked down people who posted threats on social media, Castillo responded, “I wouldn’t call it a threat but more of a promise. Let them come after me. Be more than happy to take a few of them with me.” Id. at 503.
In upholding his conviction, the Eleventh Circuit distinguished the case from Watts v. United States, 394 U.S. 705 (1969) where during a protest against the Vietnam War a protester stated “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” The other protesters in Watts laughed at the comment, leading the Supreme Court to conclude that it was not a true threat. U.S. v. Castillo, 564 Fed. Appx. at 503. Because the defendant in Castillo reiterated his intention after being advised of the criminal nature of it, the court held that it rose to more than the “vehement, caustic and sometimes unpleasantly sharp attacks” on politicians” protected by the First Amendment. Id.
Here, the context of Appellant’s posts and the reaction of the readers of it is similar to the Watts case and reflects that there was no intention to inflict harm on Appellee in the manner of the true threat in Castillo.
c. Sixth Circuit holds that Section 230 of The Communications Decency Act protects a blog site owner from the defamatory posts of others
In Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398 (6th Cir. June 16, 2014), a cheerleader for the Cincinnati Bengals brought an action asserting state-law defamation claims against operators of TheDirty.com, a user-generated, online tabloid. After judgment was entered on a jury verdict in the cheerleader’s favor, the defendants appealed. The Sixth Circuit Court of Appeals held that the defendants had immunity under the CDA from plaintiff’s claims even though the defendants made comments about the derogatory posts.
The plaintiff in Jones was the subject of several negative, anonymous, submissions on TheDirty.com. For example, after a visitor to the site posted a photograph of plaintiff and speculated that she had two sexually transmitted diseases, one of the operators of the site commented “Why are all high school teachers freaks in the sack?” Jones, 755 F.3d at 403. After the site refused to take the content down, even after plaintiff sent twenty-seven emails asking for the content to be taken down, plaintiff filed suit in Federal District Court. The suit garnered national attention which led to even more harsh posts about plaintiff specifically and the Bengals cheerleading squad in general. Those posts were again commented upon by the site operator who complimented “The Dirty Army” for the posts by posting “Note to self: Never try to battle the DIRTY ARMY” and “I love how the DIRTY ARMY has a war mentality.” Id. at 404.
In reversing the judgment and dismissing the action, the Sixth Circuit noted that the CDA provides “broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Id. The court also noted that, via the CDA, Congress intended to treat the Internet differently in that, pre-CDA and in situations outside the Internet, publishers could be held responsible for the defamatory content of articles written by others. The court acknowledged that “close cases … must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties.” Id. at 409.
The Jones court said the only issue to be determined was whether by the comments made to the posts and the encouragement of discussion about the plaintiff, the site operators “developed” the information about plaintiff therefore acting as content generators and not just service providers. Id. The court held that merely commenting and even editing the post would not amount to “development” of the material unless it materially contributed to the illegal content of the posts. Id. at 411-412.
The court also held that the site could not be responsible for the content merely by refusing to take down the post and by continuing to display them. To do so would render the CDA’s immunity “meaningless as a practical matter.” Id. at 412 (citing Fair Housing Council of San Fernando Valley v. Roomates.com LLC, 521 F.3d 1157 (9th Cir. 2008). Finally, the court also held that “a website operator cannot be responsible for what makes another party’s statement actionable by commenting on that statement post hoc.” Jones, 755 F.3d at 415.
Here, the court below held Appellant responsible for the content on ELI posted by others and for refusing to take that content down at the time of the hearing. Appellant was constantly berated by opposing counsel for not taking down posts admittedly placed on ELI by others. Unlike the defendants in Jones, however, Appellant was never asked to take any of the posts down and none of the posts contain defamatory material. Jones establishes that Appellant had no obligation to take down any third party’s posts and that he cannot be held responsible for any of the content generated and uploaded by third parties due to the broad immunity provided by the CDA.
CONCLUSION
All of the recently decided cases cited in this brief support the reversal of the judgment below because they establish that Appellant’s conduct is protected by the First Amendment and the Communications Decency Act of 1996. Additionally, since all of Appellant’s conduct is legal and protected it cannot amount to “stalking” or “harassment” under Georgia’s stalking statute which is limited by O.C.G.A. § 16-5-92, which states that the stalking law “shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state.”
Respectfully Submitted,
/s/ Oscar Michelen Oscar Michelen Georgia Bar No.: H10048 Cuomo LLC Attorneys for Appellant 9 East 38th Street Third Floor New York, NY 10016 (212) 448-9933
/s/ William J. McKenney William J. McKenney Georgia Bar No.: 494725 McKenney & Froehlich Attorneys for Appellant 50 Polk Street NW Marietta, GA 30064 (678) 354-4700 wjm@wjmlaw.org
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CERTIFICATE OF SERVICE
This is to certify that in accordance with Georgia Supreme Court Rule 14, I have on this day served this Supplemental Brief and Exhibit before filing with the Court by mailing a copy of same to the opposing counsel listed below in a properly addressed envelope with adequate postage:
Page, Scrantom, Sprouse, Tucker, Ford Attorneys for Appellee 1111 Bay Avenue Third Floor Columbus, GA 31901
Mr. Timothy B. McCormack Amicus Filer on Behalf of Appellee 167 Lee Street Seattle, WA 98109
This 5th day of September 2014
/s/ Oscar Michelen Oscar Michelen Georgia Bar No.: H10048 Cuomo LLC Attorneys for Appellant 9 East 38th Street Third Floor New York, NY 10016 (212) 448-9933
Footnote [1]: Since there is no official or LEXIS citation, I have attached a copy of this case as an exhibit to this Brief.
