Monday, October 29, 2007

What's been going on in the last week?

Blogger wins lawsuit!

From Eric Goldman's Tech Blog:

BidZirk v. Smith, [is] a flagship example of how a pernicious and misguided plaintiff with a thin skin can ruin a blogger's life. Fortunately, even though the blogger handled the case pro se, the court saw the case's lack of merit and finally ended the case.

The case started when Smith blogged a lengthy post on his negative experiences with BidZirk, an eBay drop-off company. BidZirk struck back with a lawsuit claiming defamation, privacy invasion and trademark violations. After losing its request for a preliminary injunction, BidZirk appealed to the Fourth Circuit, which denied its request. Very messy discovery followed, with both parties getting chastised for their conduct*. Finally, in this ruling, the court granted Smith summary judgment, and threw in some sanctions against plaintiffs' counsel to boot.

Specifically, the court said:

* calling BidZirk's founder a "yes man" was an opinion and therefore not actionable as defamation

* South Carolina doesn't recognize the false light invasion, and even if it did, nothing portrayed the plaintiffs in a false light. Further, linking to a photo published on a third party website does not constitute a publicity rights violation

* Smith was immune from trademark claims because his reference to BidZirk was in the context of news reporting or news commentary. Though the court doesn't equate bloggers and journalists generally, it gives Smith the same protection given to journalists

* BidZirk's attorney filed a lis pendens on Smith's condo, and the court sanctioned the attorney because the attorney had no basis to claim a right against Smith's property

As the court says, "In essence, this is a case in which the Plaintiffs have sued Smith because he published articles on the internet critical of the Plaintiffs' business." Thus, on the surface, this appears to be a cautionary tale to all bloggers that we live in peril of being dragged into court whenever we negatively critique businesses. Yet I see this ruling as a redemption of sorts--it takes a lot of courage to blog, and it takes even more courage for bloggers to stand behind their words when challenged, but we have a responsibility to make sure we can't be bullied on either front. On behalf of bloggers everywhere, we applaud Philip Smith's courage and determination to defeat this case.

* I don't think I was ever chastised for my conduct in court or depositions. I was ridiculously reprimanded for chewing gum, but I sincerely apologized. It wasn't like I was popping bubbles though. It was more of a nervous thing than disrespect. I was also compelled by the court at the magistrate level to answer some ridiculous questions. I refused to answer. The District Judge later dismissed my having to answer because the Plaintiff attorney failed to give a reason why he needed an answer.

- The Plaintiff attorney forced me to reveal trade secret information regarding an invention of mine and also forced me to reveal several of my clients personal information. One subject of a completely unrelated article that I posted was contacted and prompted to say something bad about me. Instead, he contacted me and I posted his letter on my website.

* the Plaintiff attorney was chastised very firmly for asking me 3 separate invasive, irrelevant, and antagonizing questions.

"This court finds several of the plaintiff's requests are irrelevant, vague, overly broad, and unduly burdensome"

"Two of the discovery requests appear to have been made for no other purpose than to antagonize and embarrass the defendant"

Quote from District Judge Henry Herlong:

"... the court finds that based on Elwell's grossly improper conduct, he should be sanctioned"

* My counterclaims were all dismissed because the attorney was able to falsely claim lack of jurisdiction. I have put out requests for a lawsuit to a number of attorneys interested in the case.

* I think it's worth noting that I was warned by several attorneys with whom I consulted that my legal fees would approach the high 6 figures, one attorney even referenced Apple's litigation against bloggers.

* The ruling layed the foundation for a "litmus test for bloggers as journalists":

- It's not the format it's the content and intention that make text journalism / reporting.

* The MAIN reason my article was saved from defamation was that while I was critical I wasn't crazy and not once discouraged people from going to the business, nor did I register any domains such as BIDZIRKSUCKS.COM. (Although, with PayPalSUCKS.COM & WalmartSUCKS.COM - I'm sure I would have been protected had I chosen to do such.)



I am a lover of children's literature said...

Congratulations for wining this case for us!

Thats right, your victory is now a precedent for possible future cases against other bloggers!

You helped pave the way and made it easier for the rest of us bloggers if, and when, any other 'thin skin' plaintiffs decide to inflict 'unjust' pain on the rest of us poor souls.

So thanks from all us bloggers. Now: take it easy and enjoy your just vindication!

Somehow, I knew you win!

Anonymous said...


I'm a journalist and am hoping to speak with you about your legal victory over Bidzirk.

Are you around today? Is there a phone number where I can reach you?

Also, was there a written decision granting you summary judgment?



FYT said...

I've sent the information to your email.

Russell W. Behne said...

The link to the letter you posted went dead. No problem though, I found an archive copy here
partway down the page.

Also, congrats on having the smarts to fight pro se, (withoit an attorney representing you.) I've had several court experiences in my lifetime, and my track record is clear: _Every_ time I had an attorney `represent' me I lost my ass! _Every_ time I went in pro se I won my case! What does that tell you?

---rant on
Screw attorneys! They're nothing but a shamefull waste of skin and bone. They are leeches whom suck the lifeblood of society. They are true parasites, living off the lifeblood of others.
---rant off

Again, congradulations for your win over another -=corrupt attorney=-. (But then, I repeat myself, since I sincerely believe that all attorneys are corrupt!)

Anonymous said...

No need to post this, but you screwed up your link to the letter from Cambell. You have an I in "fixyIourthinking... Take the I out, and the link works.

Anonymous said...

It takes a certain kind of person to stand up to legal intimidation like that. Bravo! Thank you for doing a service for bloggers everywhere.

Your link to Campbell's letter has a typo in it, however. You accidentally added an L to "fixyourthinking".

I hope your counterclaims and such go well, you deserve it.

Kathy said...

Wow! What a tale! Congrats on your victory!

Anonymous said...

Well done! Way to stand up to a bully with (one with an attorney on retainer obviously)!

Lots of lessons contained within... most importantly, be careful how you treat a customer! They may have a blog and expose your shabby customer service to the world!

Anonymous said...

The link "I posted his letter on my website" doesn't seem to work for me.

I'm really curious what it said.

Anonymous said...

The link "I posted his letter on my website" doesn't seem to work for me.

I'm really curious what it said.

Anonymous said...

The letter link in this blog post is broken, it contains an extra i.

Congrats on your win!

Anonymous said...

If you want to get something done, do it yourself. If you can't, too bad, you're only capable of doing so much without delegation and it's pitfalls. You went into the deal fully aware of the "universal" problems preexisting in the ebay reseller arena, yet you went ahead. You also, through your rant, revealed some serious biases you possess about your fellow man. You're broad statement about 50 somethings and their feeble knowledge of 'pop' culture will someday come back to haunt you. Or are you immortal? I can't wait for you to get old.
The legal side of this whole thing? Welkome to 21st century Amerika! More US kids enroll in law school than any engineering school nowadays. More glamour, more money, and the only math skill you need is how to *add* all of your fees together into one big number. And how to make stuff up.

Anonymous said...

u got broken link at:

Instead, he contacted me and I posted his letter on my website.


FYT said...

The bad link was fixed ... sorry guys.

A friend of mine used my slashdot account to submit the story.

Anonymous said...

Congratulations on your victory! For the record, I admire your courage as well.

Anonymous said...

I think you should report this attorney to the ethics committee of the bar. Regardless of the desires of the underlying client, the attorney is bound by a very specific code of ethics that s/he agreed to. If he did engage in intentional harassment using the courts and filed the lien against your property with out proper cause he deserves to be reprimanded.

Some people could see this as a vindictive measure on your part, I think it's really important to call out attorneys who abuse their knowledge or power to the detriment of others. If it goes through, I know this attorney will think twice before doing it again and hopefully some other attorneys will a clue.

Congrats on winning! I hope he doesn't appeal :-)

FYT said...

"I think you should report this attorney to the ethics committee of the bar.

I'm already in the process of this. I wanted to wait for the entire thing to be over first.

I'm also trying to schedule a special meeting with the judge because I have more evidence that the attorney/plaintiff are using web gateways to direct traffic away from my original article.

I have physical evidence of this - they had tried to do it last summer as well.

Unknown said...

First, congratulations on your victory. Brilliant!

Secondly... what plaintiff did to "bump" your original story off of the Google search pages is nothing other than SEO tactics.
This is what every SEO professional does daily. There's nothing illegal or immoral about it - simply put, they published pages that appeared to be more relevant (within the Google algorithm, anyway) for the keywords you are trying to place for.
If you want to fix the problem, simply play the game - rework the original post (and all subsequent posts) to place high in the Search Engine Results for your keywords!

Anonymous said...

I imagine that you already know from evidence that you've been compiling that (and others) may indeed engage in esoteric practices that go well beyond the bounds of professional SEO methodologies.

I am confident that you (and hopefully Google's gurus) have discovered or will soon discover that "reputation management" firms are in fact capable of using techniques that exploit a variety of weaknesses in the technologies that (barely) hold the Internet together. The legality of these manipulations will ultimately be decided by the courts. Of course one hopes for an informed & intelligent outcome, but these things are always imponderable.

Network engineers have deployed any number of less-than-secure solutions in order to accommodate a staggering volume of network activity. In the process, serious flaws have been created that theoretically permit malicious intervention & manipulation of search engine results; more specifically, manipulation can indeed occur in the flow of data downstream from the search engine servers. The fact that vulnerabilities exist whereby this can be accomplished is not "top secret" -- senior network people for major ISP's and for search engine companies have openly discussed such issues in readily available journals and forums.

Are search engine data flows manipulated, masked & modified by those who have the money and the need to obliterate public opinion? While I am not generally a fan of that sort of black-hat theory, it is very difficult to refute the mounting evidence. I suppose there will always be organisations that feel compelled to promote themselves as wholesome & honest even though this is not the image that potential customers, given access to the fullness of unadulterated public opinion, might have. There will always be those who believe that lying is easier than reforming. And thus the attraction to the questionable services of professional data pimps® who can magically create the sort of Internet image that clients find so pleasurable.

I suspect you've merely alluded to the underlying evidence that you've found. Presumably if you're going to talk to the court, you indeed have isolated & documented a few of the more egregious techniques deployed by those who routinely warp the free flow of information. If not already accomplished, I'd suggest some targeted searches of Internet engineering journals and discussion forums -- there's a lot of information to be had.

Anonymous said...

I will also stand in Singapore court as the first Singapore Blogger against a company.

Problemo... Nowadays, you got money and you can just sue anyone anyohow for defamation.

But the most important thing is, it happens in Singapore.

It is a ridiculous legal battle... but the results may not be as simple as in the states.

Wish me luck, guyz!