eugene volokh – Techdirt (original) (raw)

Terrible People Are Still Using Forged Court Orders To Disappear Content They Don’t Like

from the shitheels-are-forever dept

Copyright is still high on the list of censorial weapons. When you live in (or target) a country that protects free speech rights and offers intermediaries immunity via Section 230, you quickly surmise there’s a soft target lying between the First Amendment and the CDA.

That soft target is the DMCA. Thanks to plenty of lived-in experience, services serving millions or billions of users have decided it’s far easier to cater to (supposed) copyright holders than protect their other millions (or billions!) of users from abusive DMCA takedown demands.

There’s no immunity when it comes to the DMCA. There’s only the hope that US courts (should they be actually involved) will view good faith efforts to remove infringing content as acceptable preventative efforts.

But terrible people who neither respect the First Amendment nor the Communications Decency Act have found exploitable loopholes to disappear content they don’t like. And it’s always the worst people doing this. An entire cottage industry of “reputation management” firms has calcified into a so-called business model that views anything as acceptable until a court starts handing down sanctions.

“Cursory review” is the name of the game. Bullshit is fed to DMCA inboxes in hopes the people overseeing millions (or billions!) of pieces of uploaded content won’t spend too much time vetting takedown requests. When the initial takedown requests fail, bullshit artists (some of them hired!) decide to exploit the public sector.

Bogus litigation involving nonexistent defendants gives bad actors the legal paperwork they need to silence their critics. Bullshit default judgments are handed to bad faith plaintiffs by judges who can’t be bothered to do anything other than scan the docket to ensure at least some filings exist.

At the bottom of this miserable rung are the people who can’t even exploit these massively exploitable holes effectively. The bottom dwellers do what’s absolutely illegal, rather than just legally questionable. They forge court orders to demand takedowns of content they don’t like.

Eugene Volokh of the titular Volokh Conspiracy has plenty of experience with every variety of abusive takedown action listed above. In fact, he’s published an entire paper about these multiple levels of bullshit in the Utah Law Review.

Ironically, it’s that very paper that’s triggered the latest round of bogus takedown demands.

Yesterday, I saw that someone tried to use a different scheme, which I briefly mentioned in the article (pp. 300-01), to try to deindex the Utah Law Review version of my article: They sent a Digital Millennium Copyright Act notice to Google claiming that they owned the copyright in my article, and that the Utah Law Review version was an unauthorized copy of the version that I had posted on my own site:

Welcome to the party, “I Liam.”

But who do you represent? Volokh has some idea(s).

The submitter, therefore, asked Google to “deindex” that page—remove it from Google’s indexes, so that people searching for “mergeworthrx” or “stephen cichy” or “anthony minnuto” (another name mentioned on the page) wouldn’t see it.

So what prompted Google to remove this content that “I Liam” wished to disappear on behalf of his benefactors (presumably “mergeworthrx,” “stephen cichy,” and “anthony minnuto”)?

Well, it was a court order — one that was faked by whoever “I Liam” is:

Except there was no court order. Case No. 13-13548 CA was a completely different case. Celia Ampel, a reporter for the South Florida Daily Business Review, was never sued by MergeworthRX. The file submitted to Google was a forgery.

And definitely not an anomaly:

It was one of over 90 documents submitted to Google (and to other hosting platforms) that I believe to be forgeries.

You can’t blame Google. Google deals with millions of content removal requests a year. It can’t be expected to scour every local court’s docket to ensure the court order it’s presented with is actually legitimate.

So, the bad guys get unearned wins. The only backstop tends to be the people targeted by bogus takedown notices. And they’ve got the fewest tools at their disposal.

Multiple nations all want Google to target different things. Millions of Google users expect Google to provide factual information when they perform searches. In the middle of all this, there’s a multi-billion dollar company that cannot possibly satisfy everyone, no matter how much money it earns. And so we end up with things like these, where the unpaid users are expected to police the internet to push back against bogus takedowns.

But that’s not on Google. It’s on the people who willfully abuse the system for their own gain. This is on [people like Stephen Cichy](http://In 2016, Google received a copy of a Miami-Dade County default judgment in MergeworthRX, Inc. v. Ampel, No. 13-13548 CA. 1 A certain web page, the judgment said, was libelous: 2. The reports posted on or about December 30, 2014 by Defendant, CELIA AMPEL on www.bizjournals.com regarding Plaintiffs, MERGEWORTHRX, INC. and STEPHEN CICHY %28the “Report”%29, which is available at http://www.bizjournals.com/southflorida/news/2014/12/30/miamiacquisition-cpmpany-mergeworthrx-to-dissolve.html contains defamatory statements regarding Plaintiffs.2) and [Anthony Minnuto](http://In 2016, Google received a copy of a Miami-Dade County default judgment in MergeworthRX, Inc. v. Ampel, No. 13-13548 CA. 1 A certain web page, the judgment said, was libelous: 2. The reports posted on or about December 30, 2014 by Defendant, CELIA AMPEL on www.bizjournals.com regarding Plaintiffs, MERGEWORTHRX, INC. and STEPHEN CICHY %28the “Report”%29, which is available at http://www.bizjournals.com/southflorida/news/2014/12/30/miamiacquisition-cpmpany-mergeworthrx-to-dissolve.html contains defamatory statements regarding Plaintiffs.2) who — along with MergeworthRX — previously used a fraudulent court order to get Google to delist critical content about them.

The problem is too big to solve. Only those hit with bogus takedown demands are able to bring these matters to the attention of the public. Google has to do what it does because it’s simply impossible to moderate content perfectly, much less at the scale Google deals with. Unfortunately, this means the good people are expected to police the bad guys using inadequate tools and limited funds. The bad guys know this and that’s why they know to head to the biggest tech shop in town and wave legal-looking paperwork around until the internet believes they’ve done no wrong.

Ezekiel 25:17, mfers.

This won’t always work and the longer these people engage in the same tired tactics, the less likely they are to work the next time around. The internet is forever. Opportunists like Stephen Cichy and Anthony Minnuto and “I Liam” are only a blink of an eye. At the end of the day, they’re still terrible people who engage in fraud to get what they want. The rest of us are at least self-assured and self-aware enough to recognize our reputations are earned.

Filed Under: copyright, dmca, dmca abuse, eugene volokh, forged court orders, suppressing speech

NY’s ‘Hateful Conduct’ Social Media Law Blocked As Unconstitutional

from the some-good-news dept

Last summer, we wrote about New York’s law to require websites to have “hateful conduct” policies, noting that it was “ridiculous” and “likely unconstitutional.” The law was passed in the wake of the horrific Buffalo super market shooting, where the state’s Governor and Attorney General sought to blame the internet, rather than the government’s own failings that contributed to the death toll.

While we noted the law wasn’t quite as bad as some other state laws, it was very problematic, in that it was pretty clearly trying to force websites to pull down content even if it was constitutionally protected speech. Some people argued back that since the law didn’t really require anything other than having a policy and some transparency, that it would pass muster.

Thankfully, though, the first court to take a look has agreed with me, and granted an injunction barring the law from taking effect over constitutional concerns. The ruling is… really good, and really clear.

With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc (“the Hateful Conduct Law” or “the law”). Yet, the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even where that speech is offensive or repugnant, Plaintiffs’ motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED.

The ruling then digs into the details, and notes that the requirement for a hateful conduct policy is compelling speech, which is a problem under the 1st Amendment:

Plaintiffs argue that the law regulates the content of their speech by compelling them to speak on an issue on which they would otherwise remain silent. (Pl.’s Mem., ECF No. 9 at 12; Tr., ECF No. 27 at 47:5–13.) Defendant argues that the law regulates conduct, as opposed to speech, because there is no requirement for how a social media network must respond to any complaints and because the law does not even require the network to specifically respond to a complaint of hateful content. (Def.’s Opp’n, ECF No. 21 at 9.) Instead, the law merely requires that the complaint mechanism allows the network to respond, if that is the social media network’s policy. (Tr., ECF No. 27 at 11:25–1212:4.)

Defendant likens the Hateful Conduct Law to the regulation upheld in Restaurant Law Ctr. v. City of New York, which required fast-food employers to set up a mechanism for their employees to donate a portion of their paychecks to a non-profit of that employee’s choosing. 360 F. Supp. 3d 192 (S.D.N.Y. 2019). The court found that this did not constitute “speech”—nor did it constitute “compelled speech”—noting that the “ministerial act” of administering payroll deductions on behalf of their employees did not constitute speech for the employers. Id. at 214. As such, the court applied rational basis review and found that the regulation passed muster. Id. at 221.

However, those facts are not applicable here. The Hateful Conduct Law does not merely require that a social media network provide its users with a mechanism to complain about instances of “hateful conduct”. The law also requires that a social media network must make a “policy” available on its website which details how the network will respond to a complaint of hateful content. In other words, the law requires that social media networks devise and implement a written policy—i.e., speech.

Furthermore, the court notes that the law more or less demands a specific kind of “hateful conduct” policy.

Similarly, the Hateful Conduct Law requires a social media network to endorse the state’s message about “hateful conduct”. To be in compliance with the law’s requirements, a social media network must make a “concise policy readily available and accessible on their website and application” detailing how the network will “respond and address the reports of incidents of hateful conduct on their platform.” N.Y. Gen. Bus. Law § 394-ccc(3). Implicit in this language is that each social media network’s definition of “hateful conduct” must be at least as inclusive as the definition set forth in the law itself. In other words, the social media network’s policy must define “hateful conduct” as conduct which tends to “vilify, humiliate, or incite violence” “on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” N.Y. Gen. Bus. Law § 394-ccc(1)(a). A social media network that devises its own definition of “hateful conduct” would risk being in violation of the law and thus subject to its enforcement provision.

It’s good to see a court recognize that compelled speech is a 1st Amendment problem.

There are other problems as well that will create real chilling effects on speech:

The potential chilling effect to social media users is exacerbated by the indefiniteness of some of the Hateful Conduct Law’s key terms. It is not clear what the terms like “vilify” and “humiliate” mean for the purposes of the law. While it is true that there are readily accessible dictionary definitions of those words, the law does not define what type of “conduct” or “speech” could be encapsulated by them. For example, could a post using the hashtag “BlackLivesMatter” or “BlueLivesMatter” be considered “hateful conduct” under the law? Likewise, could social media posts expressing anti-American views be considered conduct that humiliates or vilifies a group based on national origin? It is not clear from the face of the text, and thus the law does not put social media users on notice of what kinds of speech or content is now the target of government regulation.

Last year, we had Prof. Eric Goldman on our podcast to discuss how many lawmakers (and some courts…) were insisting that the “Zauderer test” meant that it was okay to mandate transparency on social media policies. Both the 11th Circuit and the 5th Circuit‘s ruling in the Florida and Texas social media bills actually found the transparency requirements to be okay based on Zauderer. However, Goldman has argued (compellingly!) that both courts are simply misreading the Zauderer standard, which was limited to transparency around advertising, and only required transparency of “purely factual information” that was “uncontroversial” and for the purpose of preventing consumer deception.

All of that suggests that the Zauderer test should not and could not apply to laws mandating social media content moderation policy transparency.

Thankfully, it appears that this court in NY agrees, rejecting the attempts by the state to argue that because this is “commercial speech,” the law is fine. Not so, says the court:

The policy disclosure at issue here does not constitute commercial speech and conveys more than a “purely factual and uncontroversial” message. The law’s requirement that Plaintiffs publish their policies explaining how they intend to respond to hateful content on their websites does not simply “propose a commercial transaction”. Nor is the policy requirement “related solely to the economic interests of the speaker and its audience.” Rather, the policy requirement compels a social media network to speak about the range of protected speech it will allow its users to engage (or not engage) in. Plaintiffs operate websites that are directly engaged in the proliferation of speech—Volokh operates a legal blog, whereas Rumble and Locals operate platforms where users post video content and comment on other users’ videos.

Goldman wrote a detailed post on this ruling as well and notes the importance of how the court handles Zauderer:

The court’s categorical rejection of Zauderer highlights how Zauderer evangelists are using the precedent to normalize/justify censorship. This is why the Supreme Court needs to grant cert in the Florida and Texas cases. Ideally the Supreme Court will reiterate that Zauderer is a niche exception of limited applicability that does not include mandatory editorial transparency. Once Zauderer is off the table and legislatures are facing strict scrutiny for their mandated disclosures, I expect they will redirect their censorial impulses elsewhere.

Anyway, it’s good to see a clear rejection of this law. Hopefully we see more of that (and that this ruling stands on the inevitable appeal).

Filed Under: 1st amendment, compelled speech, eugene volokh, free speech, hateful conduct, new york, social media, transparency, zauderer
Companies: locals, rumble

Guy Who Forged A Court Order To Delist Content Issues More Bogus Takedown Notices To Remove Posts Discussing His Forgery

from the when-your-logic-is-a-flat-circle dept

The wholly-expected has occurred as a result of Eugene Volokh’s exposure of bogus takedown demands targeting unflattering content — like criminal complaints and factual news articles detailing criminal acts. The Volokh Conspiracy has been targeted by two bogus takedown requests by the same party who engaged in the bogus takedown requests Volokh previously wrote about.

The first one received targeted a post of Volokh’s hosted at the Washington Post. Hilariously, it claims Volokh is the real troll here.

A group of trolls/rivals are continually targeting us and creating copied content to bully, defame, and threaten our business and staff. Also, there is same content has been posted on different sites. The respective links of the copied content are mentioned below.

That’s not what DMCA notices are for, even if any of these assertions were true. But none of it is true, starting from word one. The publication of a criminal complaint cannot be defamatory, and in no way did Volokh “bully” or “threaten” Don Lichterman, who previously forged a court order to try to remove content detailing him being sued for copyright infringement. Volokh covered this case, as he has several others where the same tactics (forged court documents) have been used.

The DMCA notice doesn’t even claim there’s been any copyright infringement. I guess that’s a good thing, considering one of the URLs targeted links to the criminal complaint filed against Lichterman for forging a court order.

The second notice is a bit more on point, even though it’s no more honest than the first one. This one is a delisting request tied to a court order, so there’s no abuse of the DMCA process. That being said, the court order doesn’t say what Lichterman wants it to say. Here’s Volokh’s summation of the second bogus takedown attempt.

As best I can tell, the theory behind the deindexing request is that this order somehow requires that Mr. Lichterman’s name be redacted from the Criminal Complaint, and that therefore my post, which links to a copy of the complaint, should be deindexed. But of course nothing in this order so requires: It appears that the court ordered that the presentence report remain sealed (as is normal with such reports), and required the removal of information from certain “sentencing submissions” — but it says nothing about the Criminal Complaint, which is a public document. (The Complaint was originally filed under seal, but was unsealed a few weeks later, as the prosecution began.)

The Lumen Database’s post of the takedown request sums up the problem with this request a little more succinctly (although it’s unclear whether Google added this or Lumen did):

This Judgment does not apply to search engine providers, including Google Inc.

Not only is Lichterman wrong about the contents of the court order (perhaps deliberately wrong), but he’s wrong about who it actually affects. Lichterman is unclear about a lot of things and seems to assume just forwarding a court order referencing sealed documents should be enough to push Google into action.

But these tactics have been used too often to be effective anymore. Multiple sites have covered fraudulent takedown notices — some including forged court documents and others involving entirely falsified lawsuits snuck past inattentive judges. A rogue strain of “reputation management” emerged over the last few years — one that operates using nothing but disreputable tactics. Google is paying more attention to claims targeting press coverage of criminal actions or other unflattering content and, for the most part, has refused to humor these bogus requests.

All Don Lichterman has succeeded in doing here is draw more attention to his prosecution for forging court documents. He’s only bullying himself.

Filed Under: censorship, copyright, defamation, dmca, don lichterman, eugene volokh, fake lawsuits, takedowns
Companies: google

from the pigs-are-flying-over-hell's-frozen-tundra dept

Here’s one you don’t see everyday. The RIAA is telling a court that it needs to be careful about too much copyright protection. Really. This is in the lawsuit over “Stairway to Heaven” that we’ve been covering for a while now. As we noted, the 9th Circuit brought the case back to life after what had appeared to be a good result, saying that Led Zeppelin’s “Stairway” did not infringe on the copyright in the Spirit song “Taurus.” While we were a bit nervous about the case being reopened after a good result, as copyright lawyer Rick Sanders explained in a pair of excellent guest posts, there were good reasons to revisit the case — in part to fix the 9th Circuit’s weird framework for determining if a song has infringed, and in part to fix some bad jury instructions.

As with the Blurred Lines case, I’ve been curious how the RIAA and various musicians would come down on these cases. After all, I can imagine how they could easily end up on either side of such a case. Lots of musicians take inspiration from other musicians (it’s actually kind of an important way for most musicians to develop), and if that’s seen as infringing, that seems like it should be a huge problem. But, of course, to make that argument would require the RIAA to actually admit that copyright can go too far.

And… that’s actually what it’s done. The RIAA and the NMPA (National Music Publisher’s Association, which historically is just as bad as the RIAA on many of these issues) actually had famed law professor Eugene Volokh write an interesting amicus curiae brief in support of the 9th Circuit rehearing the case en banc (with a full panel of 11 judges, rather than just the usual 3). Hat tip to Law360’s Bill Donahue, who first spotted this.

Anyway, who among you ever expected the following in an RIAA brief:

Copyright law thus needs to carefully calibrate and balance its rules to prevent both over- and underprotection. Composers? intellectual property must be protected, but new songs incorporating new artistic expression influenced by unprotected, pre-existing thematic ideas must also be allowed. The panel opinion badly overprotects, and in doing so is inconsistent with other federal appeals court decisions that have addressed the same issues.

Who are you and what have you done with the real RIAA?

Other parts of the RIAA brief (and I can’t believe I’m saying this) make the same argument I’ve been making about this case (and the Blurred Lines) case for years:

This Court should also correct the precedent set by the panel allowing findings of infringement based on the use of uncopyrightable elements. Most compositions share some elements with past compositions?sequences of three notes, motifs, standard rhythmic passages, arpeggios, chromatic scales, and the like. Likewise, all compositions share some elements of ?selection and arrangement? defined in a broad sense. The universe of notes and scales is sharply limited. Nearly every time a composer chooses to include a sequence of a few notes, an arpeggio, or a chromatic scale in a composition, some other composer will have most likely ?selected? the same elements at some level of generality.

To keep every work from infringing?and to keep authors from being able to claim ownership of otherwise unprotected elements? this Court has stressed that selection and arrangement is infringed only when there is virtual identity between two works, not loose resemblance. The same principle should be recognized for music.

The brief goes into more detail — again more or less repeating what I said in my original post, but with a bit less swearing (okay, 100% less swearing) — on why it’s crazy to argue that non-protectable works should be analyzed in determining if there’s infringement:

The panel opinion concluded that the instruction nonetheless erred, on the theory that such common elements could still be protected if ?used in combination with other elements in an original manner,? slip op. at 20, as a form of creative ?selection and arrangement,? id. But all compositions will share some elements of ?selection and arrangement,? defined in a broad sense, with some earlier compositions. To prevent nearly every new composition being at risk for liability, copyright claims based on ?original contributions to ideas already in the public domain,? Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), are seen as involving a ?thin copyright that protects against only virtually identical copying.? Id. at 812; see also Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003) (?When we apply the limiting doctrines, subtracting the unoriginal elements, Ets-Hokin is left with . . . a ?thin? copyright, which protects against only virtually identical copying.?); Rentmeester v. Nike, Inc., 883 F.3d 1111, 1128-29 (9th Cir. 2018). This Court has long recognized this principle in claims involving visual art that allegedly creatively combines public domain elements, as with the sculptures in Satava or the photographs in Ets-Hokin and Rentmeester. The same should apply to music.

I also agree with the RIAA in saying that the “inverse ratio” rule is incredibly stupid. This is the rule adopted by some courts that the amount of “substantial similarity” necessary to show infringement decreases with the amount of “access” the accused infringer had to the original work. But, as the RIAA notes, that makes no sense (especially these days):

Indeed, while as a practical matter few composers create works that are strikingly similar to older ones, nearly all composers enjoy a striking level of access to a vast range of works: They hear them online, on the radio, at concerts, at home, and elsewhere. Indeed, they may hear them without ever seeking them out?played as mood music in elevators, supermarkets, and restaurants, or as incidental music in a film or in a television or radio commercial. Yet even if hearing the songs this way counts as a ?high degree of access? (itself a vague concept that juries would have a difficult time applying), that should not allow the creators of new works to be sued under a ?lower standard of proof of substantial similarity,?

And, finally, I agree with the RIAA that it would be a mistake to let a jury hear the recordings to compare the two songs. The case is not about the copyright in the sound recordings, but in the composition (which are not the same). And the problem with the sound recording is that it includes the unprotectable/public domain content, and that can be hard for a non-professional jury to separate out. The RIAA agrees:

Here, for instance, the panel agreed with Judge Klausner that the jury should not be allowed to determine substantial similarity by comparing Stairway to Heaven to Spirit?s sound recording of Taurus. Slip op. at 25, 31, 34. Unsurprisingly, Judge Klausner concluded that, because of this, it was better for the jury not to hear the sound recording at all, especially since hearing the sound recording would do vanishingly little to help the jury determine anything else (such as access).

Finally, the RIAA (correctly!) calls out the very weird part of the 9th Circuit ruling that suggested that as an alternative to allowing the jury to hear the sound recordings, they should be allowed to observe Led Zeppelin’s Jimmy Page listening to the recordings “to evaluate his demeanor.” As the RIAA points out, this is utter nonsense.

The panel rejected this judgment call on the grounds that ?allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings.? Slip op. at 34. But is this really so?

Imagine Page sitting there, relistening to the recording of Taurus (which he had already recently heard when preparing for the trial, III ER 502). The jurors are watching his demeanor, an unusual thing for people to do when they are listening to a song together with someone. What would they be looking for on his face that would in any way bear on the question whether he had heard the song nearly 50 years before, in 1967 to 1971? Is there some supposedly tell-tale facial expression that captures the reaction, ?Yes, I had heard that song back then??

Anyway, thanks to Led Zeppelin and Professor Volokh for actually creating a scenario where the RIAA and I are mostly on the same page — and that page is warning about the negative consequences of overprotection of copyright in harming artists and limiting cultural output.

Filed Under: blurred lines, copyright, eugene volokh, inspiration, led zeppelin, overprotection, public domain, spirit, stairway to heaven, taurus
Companies: riaa

Texas Judges Continue To Turn Expungement Orders Into 'Right To Be Forgotten' Requests

from the careful:-that's-the-Constitution-you're-screwing-with dept

It appears the state of Texas is offering a limited “right to be forgotten” in county courts. A few years back, the state appeals court had to get involved and remind the county no such right exists in the Texas, much less the rest of the states Texas seems to be embarrassed to be associated with. At the center of the case was an expungement order for an attorney accused of forging other attorneys’ signatures on court filings.

While his case may have been expunged, expungement only covers the official record. This would remove info from government databases. Texas law also provides for the removal of info from certain sites reliant on public records (mugshot sites, background check services), but the law does not go so far as to demand news sites and search engines purge themselves of articles related to now-expunged criminal acts.

A lower court decided to drag Google into this, demanding it de-index anything covering the expunged crime. Google did not comply and the state appeals court reversed the lower court’s order, finding it not so much a violation of the First Amendment (which it is), but that it skirted due process by not allowing Google and the sites being de-indexed to argue against the removal order in court.

Eugene Volokh has again tracked down a similar — and similarly wrong — order from a Texas county court.

Until a week ago, Houston’s ABC-13 TV station, KTRK, had the following story on its web site (I quote the July 13, 2017 version, which had been updated from its original 2016 story):

An Alief ISD teacher is no longer in the classroom after he was arrested on allegations of domestic violence.

Damon Barone is charged with assault-family violence. According to a statement from Alief ISD, Barone was a teacher at Mahanay Elementary School but has not been on campus since April 4. He’s currently on administrative leave and the district says “he will not return at any point.”

Alief ISD officials say the incident did not happen on school property or at a school event.

The charges have since been dropped, but Barone remains no longer employed with the school district.

About a week ago, that story disappeared from the site. And that disappearance seems to be linked to a Houston court’s June 26 expunction order (signed by Judge Michael Landrum), which purports to cover KTRK.

The order [PDF] is hosted at the Lumen database. This lives on, but KTRK’s story does not. KTRK was under no legal obligation to remove the story. State law does not require the deletion of news stories following an expungement order. To put things generously, the judge in this case appears to have misinterpreted the law. KTRK has complied with an order it didn’t need to and now has played its small part in erecting a Texas-based “right to be forgotten.” Google most likely did not de-index the site in response to this request, but with KTRK deleting its coverage, the de-indexing will occur anyway.

As Volokh points out, this isn’t the way the law reads and it certainly isn’t the way the law is supposed to work. It could be the judge didn’t read the list of potential targets closely and allowed Barone to nuke KTRK’s story along with the sealing/removal of criminal records. Whatever the case is, those seeking to abuse a system to erase their criminal history will be encouraged by Texas courts and their inability to restrain expungement requests to government agencies and databases.

What I do know, assuming the order is authentic, is that a Houston court order purports to institute a “right to be forgotten” as to this particular news story. And this is at least the second such case in the last two years: The first case that I know of is the even more troubling Derek Collier Thorworth matter, where an expungement order seemed to require the media to remove a story about a county constable who had pleaded guilty to abusing a prisoner, and where the constable demanded that a TV station indeed do so, based on the order. […] Some might think that’s a sound approach, but it’s not authorized by Texas law and not consistent with the First Amendment.

This won’t be abused nearly as much as the fake libel lawsuit scam being perpetrated in courts around the country. And it won’t scale like regular old DMCA abuse that tends to backfire on those attempting to use Google takedown requests to clean up their vanity searches. But it will let people with expungement orders believe they can eliminate content from the internet at large. And if judges aren’t careful, they’ll sign off on orders letting them do exactly that.

Filed Under: damon barone, eugene volokh, expungement, free speech, injunctions, right to be forgotten, texas

If You're Going To Forge A Fake Court Order To Delete Search Results, Maybe Don't Choose A Prenda Case

from the just-a-tip dept

Eugene Volokh, just recently teamed up with Paul Levy to track down who was behind a scam abusing the court system with forged or fraudulent court documents to get questionable or fake court orders to force Google to takedown links. It’s a sketchy (and illegal) “reputation management” trick and it appears that at least a few folks are doing it. Volokh has just spotted another one and it comes with a Prenda Law twist. Volokh nicely sums up the background info leading up to this:

Ken Haas is a member of a New Britain (Conn.) city commission, the Commission on Conservation, appointed by Mayor Erin Stewart. Several months ago, he got into a public controversy with local activist Robert Berriault ? allegedly, when someone got in a Facebook political spat with Haas, he responded by writing, ?You do know I have access to ALL city records, including criminal and civil, right???? Berriault took that to be a threat that Haas would misuse that access for political purposes and wrote about this on the New Britain Independent site, as well as in a not-much-noticed change.org petition calling for Haas?s removal. (Since then, Berriault has announced his candidacy for the New Britain city council.)

And then, things get interesting. First, someone sent Google a notice asking it to take that Berriault story out of Google, and sent with it a “court order” in a supposed case between Haas and Berriault. You can see that “Haas v. Berriault” court order, but you may notice some oddities. The case claims to be in the “Sate” (not State) of Connecticut Superior Court:

It’s also in front of a Judge John W. Darrah. And the case number is 1:13-cv-01569. So there are some problems here. The “Sate” typo is a give away, but there is no Judge Darrah on the Connecticut court. There is one in US federal court in Illinois. And if you look on PACER in the federal court records, and look at 1:13-cv-01569 in the Norther District of Illinois, it happens to be… a case that we covered. It was the infamous Paul Duffy defamation case. Duffy, the “third wheel” to John Steele and Paul Hansmeier in the Prenda Law scheme, had sued a bunch of online critics for defamation, but the case focused on Alan Cooper (John Steele’s former house caretaker, whose signature Steele is accused of forging) and Cooper’s lawyer, Paul Godfried. Either way, it looks like the document that someone used as the “template” (including the Judge Darrah signature) came from the Duffy v. Godfried case.

That was a crazy case for a whole bunch of reasons, but it also got a ton of public attention. If you’re going to fake a court document, maybe don’t take one that is on a widely known case that got a lot of attention and is partly about forging legal documents? It’s like trying to pick a disguise to be inconspicuous in committing a crime, and dressing up like Hitler. People are going to notice, and they’re going to remember.

As Volokh notes, it’s not clear if Haas himself forged the document. It’s entirely possible he hired a reputation management firm who did something along those lines. Or, maybe there’s another explanation… but there really are only a small number of people who might benefit from this kind of thing:

Who submitted the forged order to Google? Commissioner Haas seems the likeliest intended beneficiary of the forgery and the takedown request, and his name (spelled as Ken Hass) was used on the takedown request. But it is of course possible that this was done by someone else, whether someone hired by Haas (with or without knowledge of what would be done) or someone else. I called Haas to ask about what happened here, but he told me he had no comment.

Anyway, forging a court order using a federal judge’s signature from another case is, well, a bad idea. I’d imagine it’s kind of worse than having someone publicly expose your threat to go through someone else’s city records. In an update, Volokh also notes that Haas also went to the police about Berriault over his posts, only to have the cops explain that it’s not a criminal act to state your opinion:

If you can’t read that, the report is from the police explaining Haas’ complaint about Berriault’s internet posts and how he “just wants Berriault to lighten up” as well as a conversation with Berriault, followed by this:

I advised Haas that this was not a criminal act and that Berriault had every right to voice his opinion. I advised Haas that when you choose a career in politics that harsh criticism comes with the territory. Haas stated that he understood.

Of course, forging a court order with a federal judge’s signature does seem a lot more like a criminal act. And someone appears to have done that.

Filed Under: connecticut, court order, eugene volokh, forgery, john darrah, ken haas, reputation management, robert berriault
Companies: prenda, prenda law

With Interest In Profile Defenders' Questionable Lawsuits Rising, The Lawsuits Start Falling

from the reputation-management dept

Earlier this year, we were among the first to write about the highly questionable practice of “reputation management” companies filing clearly bogus lawsuits against unknown defendants, only to magically have those “defendants” show up a day or two later with an agreement that they had posted defamatory content. The goal of these lawsuits was obvious: get a court order. That’s because many platform websites, including Google, won’t take down or delink content based on a claim of defamation, but will do so if there’s a court order. Of course, filing a real lawsuit has all sorts of problems, including money and actually needing to have a real case. These reputation management lawsuits got around all of that by basically faking defendants, having them “agree” to a settlement admitting to defamation, and getting a court order saying that the content is defamatory. Neat and clean. And total abuse of legal process.

Last month, Public Citizen’s Paul Levy (who has helped defend Techdirt against some legal bullies) picked up on this thread and found evidence of more bogus lawsuits. A few weeks ago, he and famed law professor Eugene Volokh teamed up to reveal more details on a series of such lawsuits, which all seemed to be connected back to a guy named Richart Ruddie and an operation that goes by a bunch of names, but mainly Profile Defenders. It appears that Ruddie/Profile Defenders is not the only one filing these kinds of lawsuits, but he’s been prolific. So far, Ruddie’s only response is a bizarre press release touting his “anti-cyberbullying skills.”

He may want to find a real lawyer though.

Volokh reports that one of the courts that had granted one of Profile Defenders’ orders has now vacated that order. Of course, that might not matter since Ruddie has likely already used it to have content taken down. But, more importantly, the judge in that case is considering another case that looks like it’s another Profile Defenders case. And suddenly, the judge seems a lot more interested in the details.

I?m delighted to report that late last week, the Philadelphia Court of Common Pleas vacated the order in one of these cases, Callagy v. Roffman (No. 160603108). The plaintiff?s lawyer told us that the company they used for that case was Profile Defenders, but they had no idea that the defendant in that case was apparently nonexistent (and it?s certainly possible that they indeed had no idea of this).

Also late last week, the same judge scheduled a hearing in Murtagh v. Reynolds (No. 160901262), in which no order had yet been issued; the order scheduling the hearing notes that the plaintiff must present ?strict proof of service? for the case to go forward. I haven?t been able to reach the plaintiff in that case ? or the ostensible plaintiff, as in some cases the plaintiffs have said that they hadn?t authorized a lawsuit, and in some cases the plaintiffs may have been as fake as the defendants, since the only important thing to the filers was to block access to particular websites mentioned in the order, regardless of who the named plaintiffs or defendants had been. I therefore can?t speak with confidence about whether Murtagh was a Profile Defenders case; but the procedural structure of the case is similar to the others I?ve seen, as is some of the legal boilerplate.

That’s not all. A day later, Volokh wrote about another such case that was voluntarily dismissed. In this case, Volokh notes that the reputation management scheme may have been even more nefarious than previously thought. Most of the examples we’ve seen involve trying to remove articles or reviews by claiming those articles are defamatory and then “faking” a “defendant” willing to “settle” and admit guilt in order to get a court order. But in this latest case (and in another one Volokh has seen) it appears that the reputation management operation would try to get a news article to disappear from Google by first submitting a defamatory comment by themselves, and then suing for “defamation” based on that comment (and, then, of course, producing a “defendant” who settles). End result: Google is told to delist an entire article because of a defamatory comment… put there by the “reputation management” firm in the first place:

The article went up in January 2014, but then in July 2016 a comment was posted to the article. (The comment has been deleted in the past few weeks, but the people at the Post & Courier assure me that it wasn?t deleted by them.) And then just a few weeks later, the lawsuit was filed, claiming that the comment was defamatory and that the comment?s author agreed to an injunction ordering the removal of the comment. The plan, I suspect, was to take any such injunction and submit it to Google as a basis for deindexing the whole article (because Google can?t separately deindex the comment). Sometimes this sort of plan has worked.

The comment plays a peculiar role in such cases, I think. In one similarly structured case, for which I have been told what day the contract with the reputation management company (there, Profile Defenders) was signed, the comment was posted immediately after that signing, so I assume that comment was ginned up for the purposes of that lawsuit.

Hopefully, as more judges learn about this scam, it won’t be so easy to pull off.

Filed Under: defamation, eugene volokh, fake defamation lawsuits, reputation management, richart ruddie
Companies: profile defenders

Reputation Management Company Linked To Bogus Libel Lawsuits Now Hyping Its Anti-Cyberbullying Skills

Fake lawsuits featuring fake plaintiffs filed against fake defendants and hustled past judges to secure court orders demanding delisting by search engines: that’s the new face of reputation management, apparently.

Paul Alan Levy, along with newly-acquired partner Eugene Volokh, have managed to track down the possible perpetrator behind a couple dozen bogus lawsuits filed in recent months. Richart Ruddie and his company, Profile Defenders, appear to be engaging in some illegal activity in order to provide clients with the services they’ve promised them.

Ruddie has refused to comment on the lawsuits or answer questions posed by Levy and Volokh. Instead, he has opted to fight speech with more speech [lol] by issuing a very self-serving press release.

Here’s what Profile Defenders has to say about itself — not in response to any questions, but rather to buff some of the tarnish off its dented armor. It’s not just about “protecting the rich.” [No. Really.] It’s about saving clients from cyberbullying. (h/t Paul Alan Levy)

Reputation management companies like Profile Defenders protect the innocent from the action of cyberbullies who prey on people.

[…]

Fortunately, reputation management companies like Profile Defenders have arrived, and in the war between reputation companies vs cyber bullies they give the innocent a chance to tell their story on the Internet. Co-founder of Profile Defenders, Richart Ruddie, is glad that people are given a second chance after being defamed by cyber bullies that act like new age mobsters trying to destroy good people through cyber bullying.

I assume Levy, Volokh, and others who have covered this slowly-unravelling debacle are the “new age monsters” attempting to destroy “good people” –“good people” who apparently have no problem filing bogus lawsuits and forging signatures, all the while charging thousands of dollars to drag down their clients’ reputations along with their own.

Then there’s this, helpfully pointed out by a commenter (and victim of one of PD’s bogus lawsuits) on Levy’s post. Ruddie’s personal blog contains a post with some enlightening thoughts about journalism.

Writers and journalists typically use their powers for evil and to hurt good people.

And what sort of people are the “good people” hurt by “evil” journalists? Richart Ruddie is, according to Richart Ruddie.

Had one of the nicest compliments this past weekend. A new friend said “Chart do you know why I like you?”

“At the end of the day you’re just a genuine person Richart Ruddie”

You’re not looking for anything from anybody, you are just here to be happy and have a good time and if you can facilitate others to be happy as well then you do your part to ensure all others around you are happy.

Yep. Genuine as fuck. More from Levy:

[I] expect that Ruddie will prove a slippery character – the home page of his “Profile Defenders” web site provides a New York City street address that appears to be phony (a letter I sent him at that address demanding that he preserve relevant documents came back undeliverable), and both the Linked In and Google profiles of Profile Defenders show a Washington, D.C. address that does not exist. Moreover, Florida’s records reveal that Ruddie maintains a stable of many different LLC’s. It may take the investigative resources of a federal or state grand jury or of the Federal Trade Commission to track him and his assets down, and bring him to justice.

Volokh and Levy have uncovered plenty of damning evidence strongly suggesting Ruddie’s company is now in the business of filing bogus lawsuits simply because (a) there’s very little chance any judge will examine these cases closely (and when a judge does, the suit is refiled in another court) and (b) it’s one of the only methods proven to result in delistings of negative reviews hosted by non-parties to the lawsuits. As Levy notes, it may be almost impossible to blow this wide open, much less get Ruddie to answer any questions about these lawsuits on the record. But the reputational damage his company is now causing indirectly to its clients may result in lawsuits Ruddie can’t ignore, filed by aggrieved customers who paid thousands of dollars just to see themselves swept into Profile Defender’s destructive vortex.

Filed Under: eugene volokh, fake lawsuits, paul levy, reputation management, richart ruddie, takedowns
Companies: profile defenders

from the often-more-entertaining-than-porn,-the-other-thing-the-net-does-well dept

It has long been stated that the Internet is for porn. And while that’s never really going to change, it also appears that the Internet has another purpose: baseless legal threats. Something tends to get lost in the ether(net), stripping away many people’s ability to think clearly when confronted with criticism. This isn’t necessarily a new thing, but we do seem to be “enjoying” a spike in confrontational (but baseless) legal threats.

From Teri Buhl’s unpublishable tweets to On Press Inc.’s libel/liable difficulties to Ken Matherne’s unintentionally hilarious grab bag of misspelled legal terms to Prenda Law’s desperate Hail Mary defamation suits, the internet is practically swimming in misguided legal theories and badly written threats.

Here’s another story to add to the corpus asshattus of baseless legal threats. The very brief back story: A little over two years ago, The Volokh Conspiracy and Scott Greenfield’s Simple Justice blog covered the story of a certain Norman Golb, a University of Chicago professor who found himself tangling with Lawrence Schiffman, the head of Judaic Studies at NYU, over the origins of the Dead Sea scrolls.

These two academics went head-to-head, attacking each other at various internet locations. Norman Golb’s son, Raphael, also stepped into the fray, creating more than 50 aliases in an effort to emulate a groundswell of support for his father’s viewpoint. Then he went one step further, impersonating Schiffman and sending emails to NYU students and staff suggesting he (as Schiffman) had committed plagiarism in one of his articles.

The end result: Raphael Golb was handed an indictment for identity theft, impersonation and harassment. All of this over an academic pissing match.

Flash-forward to just a few days ago, and both Eugene Volokh and Scott Greenfield receive identical emails pertaining to this story, both containing legal threats.

Law Offices of Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt 161 West Third Street PO Box 215 Williamsport, PA 17701 … E-MAIL TO: Eugene Volovh [volokh@law.ucla.edu] FROM: Clifford A. Rieders, Esquire DATE: March 13, 2013 RE: Lawrence Schiffman CC: Professor Lawrence Schiffman

Please be advised that the undersigned represents Professor Lawrence Schiffman, previously Professor of Hebrew and Judaic Studies, New York University, Skirball Department of Hebrew and Judaic Studies, now Vice Provost of Yeshiva University.

Dr. Schiffman’s name was the subject of illegal and criminal misconduct by Raphael Golb. Your website has been provided to me as one of the locations where the criminal postings occurred.

Please confirm that within five (5) work days of the date of this email the following will occur:

1. Complete removal of the blog material; 2. Removal of index entries on search engines; 3. Cancellation of fraudulent email accounts; 4. Removal of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him.

We will need your certification as to all efforts made to expunge the material.

I enclose as Exhibit 1 news release by the office of Manhattan District Attorney Robert M. Morgenthau announcing the arrest of the 49-year-old Raphael Golb for creating multiple aliases to engage in the campaign of impersonation and harassment relating to the Dead Sea Scrolls and scholars of opposing viewpoints. Mr. Golb was arrested on charges of identity theft, criminal impersonation, and aggravated harassment.

I am also enclosing as Exhibit 2 letter from Director, Witness Aid Services Unit, District Attorney of the County of New York, providing a temporary order of protection which the court issued in the aforementioned criminal case.

I am advised that Mr. Golb has been convicted and appeals denied. Unfortunately, there continue to be current blogs containing Golb’s fabricated story, as though Dr. Schiffman acknowledged or admitted some wrongdoing. I am enclosing not only a variety of sampling but also the platform, address and the blog as well as URLs.

Please contact me as soon as possible at …

The offending post at Volokh contained nothing more than a quote of the People v. Golb opinion and a First Amendment analysis of the decision. (Interestingly, considering the threats, Volokh agreed with the decision that found in favor of Schiffman.) Greenfield’s post was a bit more in depth and was written as the case was headed to court.

Volokh’s reaction was to break one of his own rules:

The e-mail from Mr. Rieders of course offers no explanation of how this is a “criminal posting[],” because of course it isn’t. Fortunately, I can tell that there is absolutely zero basis for the demand letter; other recipients of the e-mail might not be so lucky.

I generally do not publish letters sent to me, but unfounded demands such as this are an exception. This is especially so because demonstrating the unsoundness of the lawyer’s argument requires showing the entirety of the letter — both the particular language that the letter included (“criminal postings,” the demand for “[c]omplete removal of the blog material,” the demand for “[r]emoval of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him,” and so on) and what the letter didn’t include (any specific explanation for why the material would indeed be legally actionable).

In any event, I’m happy to certify that no efforts whatsoever will be made to expunge the material in that blog post; my response to Mr. Rieders and Prof. Schiffman will be a link to this post.

Greenfield’s response is nearly identical. (Nearly.)

Eugene is much nicer than I am. Had he not calmly and succinctly explained the email’s massive failing, I would have been constrained to respond, bite me. I am happy to say that because of Eugene’s parsing of the unfounded email, I can maintain my dignity, merely refer to Eugene’s response, and add, “what he said.”

So, what he said. Asshole.

At this point, Ken White at Popehat (never one to suffer “feckless legal bullies”) stepped in and attempted to divine who was behind these legal threats and ascertain their rationale for shooting their own client in the foot.

Dear Mr. Rieders,

I am an attorney in Los Angeles, a member of the First Amendment Lawyers Association, and write at a blog called www.popehat.com regarding various legal matters, particularly including free speech and legal threats based on online comment.

Today I noticed two posts — one by Eugene Volokh, and one by Scott Greenfield — discussing legal threats you have sent.

Are you willing to answer questions about those threats? I am planning on writing a post about them, and would like to solicit your position first.

My questions are these:

1. Did you actually draft this threatening email yourself, or was it some underling?

2. Did you actually select the recipients of the letter, or were the targets selected by some automation, or by a non-lawyer?

3. I ask #2 because I am attempting to grasp, in looking at Professor Volokh’s post about the Golb matter (http://www.volokh.com/2013/01/29/no-first-amendment-violation-in-e-mail-impersonation-case/), how Professor Volokh’s analysis of a published appellate case could possibly be actionable in any way, let alone “criminal.”

4. What is your theory on how a discussion of the allegations against Mr. Golb — including allegations that he wronged your client, Mr. Schiffman — could be actionable or “criminal”? Is it your position that your theory has any support in any legal authority accessible to the general public?

5. I recognize that you would not be so unprofessional as to disclose your confidential communication with a particular client. Therefore, let me frame my next series of questions as follows: Are you familiar with the Streisand Effect? Is it your practice to advise clients, before sending out extravagant legal threats demanding the removal of information about them from the internet, about the risks posed by the Streisand Effect — the risk that your threats will result in the challenged content being seen by several orders of magnitude more people? Is it your practice to advise clients that there may be particular risks in threatening bloggers with popular blogs known for being vigorous supporters of the First Amendment?

6. Do you believe that your representation of Mr. Schiffman in the course of making these threats falls within the standard of care for attorneys in your community? Any response you would like to offer would be appreciated, and will be incorporated into my post commenting on your threats.

Thanks, Ken White

White received this in response:

I have no idea what you are talking about, who you are or who you represent. Please therefor, [sic] do not respond again [sic]

White and a couple of his readers went digging for who was actually behind these threats and found, unsurprisingly, that it was someone at the Rieders Travis law firm, as all the emails were sent from the same originating IP address. It seems rather unlikely that the same person who sent the original threatening emails would have “no idea” what Ken was talking about. Unless, of course, someone was generating fake email addresses and impersonating members of the Rieder Travis legal team, but that would just be insanely ironic considering the original subject matter.

The implications of these baseless legal threats for the threatening party are potentially huge. Both Ken White and Scott Greenfield mention the Streisand Effect. Apparently, Cliff Rieders (the person purportedly sending the ill-advised emails) is unfamiliar with the term. If he was, perhaps he wouldn’t have bothered irritating this trio of bloggers, because what he’s unleashing is going to do quite a bit of harm to his client’s interests.

White and Greenfield both have updated their posts to include the news that the Supreme Court in California has granted review of Golb’s conviction. The order granting leave to appeal is dated March 11th. The threatening emails arrived on March 13th. This order directly contradicts Cliff Rieders’ statement in the last paragraph of his email.

I am advised that Mr. Golb has been convicted and appeals denied.

It certainly looks as though someone’s trying to whitewash the web in advance of an appeals hearing. White theorizes that Rieders is blasting out identical emails to anyone who turns up in a rudimentary Google search for Schiffman and Golb. If this was a targeted takedown effort, Rieders likely would have avoided these blogs, choosing to go after more complicit writers. Unfortunately for Rieders and his client, he threatened the wrong people and his clumsy efforts are being debated in the court of public opinion. On top of that, the posts he wanted removed will remain live. Now, he and his client will be linked to unflattering stories about baseless legal threats, leading to even more bloggers pushing back against the takedown attempts.

It’s the Streisand Effect and the only way to win is not to play. Many participants aren’t even aware they’re playing until it’s too late. A full withdrawal of the threats, along with an apology, is about the only way to limit the damage. But, if the past is any indication, this will probably get a lot worse for Rieders (and more entertaining for the rest of us) before it gets any better.

Filed Under: clifford rieders, eugene volokh, free speech, lawrence schiffman, legal threats, norman golb, raphael golb, scott greenfield