As some of you may know, I recently won a landmark decison that determined three things concretely for blogs:
1) The format does not determine the content - professionalism and intent of criticism does. (Not all blogs are diaries, not all blogs are news;some are though. Some contain news. Some do not.)
2) The intent detrmines defamation. If constructed as a news story that is well researched and contains substantial fact OVER opinion - the criticism can not be considered defamation.
3) If a picture is posted on a public website, invasion of privacy can't be claimed if a site links to the picture with criticism. The court essentially said, "The Plaintiffs undoubtly would NOT have filed suit had my article been praise for Bidzirk or its owners"
So that the page can make some search engine ranking, Kevin Elwell has posted a half hearted smug apology of sorts on his website; called Bidzirk vs Smith. This is an effort to further demean, demoralize, and trivialize my writing and to play down a major loss that he knows will become part of journalism legal history. His loss is mostly due to his improper conduct and his client's malicious intent behind the litigation.
I've held off writing about his blog for some time now mostly because it was intentionally started to trash the things I write about here.
• 30% of the news on this website has been about the iPhone over the last year.
• The opposing attorney also knew that I had taken a job with AT&T as an iPhone rep (Probably because I mentioned it here.)
Earlier in the year, the plaintiff attorney for Bidzirk started a blog on his website:
He wrote two trolling entries filled with misstated facts:
Other Things You Can Do With $600
Guess he didn't hear all the rave reviews the iPhone was getting as the most revolutionary phone ever released, somewhat justifying a premium. I will be honest and say the iPhone has changed my life. I mean that. I am much more organized, have my music everywhere I go ... before I never carried my iPod and phone together. I also have easy access to the internet which I use a lot ... I mean a whole lot ... I mean like way more than I ever used the internet on a daily basis before. I'm always verifying things I see and facts I state, I'm constantly referring to diagrams of Apple computers that I don't have to bring out a bulky laptop to see, I use Google Maps on a daily basis, I enjoy being able to tell anyone what the weather is going to be.
Second, guess he also didn't care to mention the $200 price drop.
Third, he mentions getting a Samsung Blackjack instead for $79 and then mentions a contract tie down for the iPhone. The Samsung Blackjack is a very difficult phone to get used to, it doesn't have nearly the quality internet experience, and doesn't hold even 1/4 the songs with the highest media card available for it (that you must purchase separately for around $60-$80). The Samsung Blackjack is ONLY $79 if you take a 2 year contract. Otherwise it's a recently reduced to $299 price. At the time he wrote the piece the Blackjack was $349 without contract.
He wrote another troll piece entitled, iPhone Mania: Lemming Alert
There's no need for my commentary on this piece I'll let you read it on your own:
The iPhone is released today - so what? Does this device have what practitioners need to stay in touch with the office? Absolutely not. Will this device help you control overhead and communications costs? Absolutely not. Will it allow web surfing as fast as depicted in television advertisements? Absolutely not. Any lawyer that utilizes one of these phones as a business contact solution is nothing but a victim of advertising. The iPhone does not support synchronization with Outlook or Windows Server applications. You can’t receive your office email on this thing - a fact which by itself makes the phone useless to attorneys. It costs about $600, which is roughly eight times the price of Samsung’s BlackJack through AT&T - and the BlackJack handles Windows applications, office email, plays songs (a 2GB microSD card will hold about 800 songs which, let’s be reasonable, is all that decent people need anyway), works on the 3G network, supports bluetooth, calendars, stores photos and, oh, makes and receives phone calls as well. Save your money, and get something with some utility for your law practice. The iPhone is neither helpful nor necessary.
Who are "decent people"? The iPhone "works" on 3G networks, just not at 3G speeds. Using the Samsung Blackjack Ars Technica determined that 3G drained the battery 15% to 20% faster. It's also hypocritical to say this when; Greenville, where this attorney and I live and do business - THERE CURRENTLY IS NO 3G NETWORK FOR AT&T!
Here's his latest entry which is nothing more of an attempt to save face, belittle me further, and be belligerent to the court. I say this pretty much seals up the "grossly improper conduct" that Judge Herlong mentioned in my ruling.
It’s been a while since I posted here; I have simply been too busy to spend time blogging. Lately, however, my silence has been interpreted by some as unprofessional, and so if for no other reason than that, it’s time to post again. As many already know, I represented the plaintiffs in BidZirk v. Smith, a case in which my clients sued Philip Smith, a blogger. BidZirk is an eBay dropoff store, and Mr. Smith had an unpleasant experience with the company. He posted a story in which he described his experience with BidZirk, which was fine. What wasn’t fine was Mr. Smith’s use of BidZirk’s logo in his blog. BidZirk asserted a claim for trademark dilution under the Lanham Act, and BidZirk’s principals asserted claims for defamation and invasion of privacy.
During the course of the litigation, Mr. Smith either neglected or ignored deadline after deadline, and was given second, third and fourth chances by the Court. At one point in the case, Mr. Smith had failed to respond to certain requests for admission, which under normal circumstances would have resulted in the facts contained in those requests being admitted for purposes of the case. These admissions would have normally had the effect of sealing Mr. Smith’s fate, because the facts thus admitted would have established his liability. BidZirk moved for summary judgment on this basis. Then, I made a serious error. I filed a notice of lis pendens on Mr. Smith’s condominium, for the purpose of preserving the availability of that asset to satisfy BidZirk’s expected judgment. This was an aggressive move, and in hindsight was too much so. Arguing that an expectation of judgment equates to a claim directly involving the title to real property took the lis pendens statute beyond its intended use. The lis pendens was on the books for approximately six months, when it was withdrawn pursuant to the Court’s instructions. The Court denied BidZirk’s motion for summary judgment.
The Court was hostile to BidZirk’s claims from the beginning. The case was referred for pretrial handling to a federal magistrate, who attempted to be fair to Mr. Smith, but also understood that the rules apply evenly to both sides, represented or not. Mr. Smith failed to respond to BidZirk’s written discovery requests, and the magistrate eventually granted a motion to compel, with specific instructions to Mr. Smith to answer certain interrogatories, RPODs and requests for admission. Mr. Smith did not serve responses as ordered, but instead sought an extension of time to answer, which was granted. The Court’s order relating to this extension of time stated clearly that if Mr. Smith did not respond as ordered in the additional time allowed, he would be sanctioned.
Instead, Mr. Smith filed a paper in which he stated “I deny and defy the Court’s order,” usually a sure-fire way to earn the Court’s contempt. The Court ordered a status conference not with the magistrate, but with the district judge himself. I assumed that the district judge had gotten wind of Mr. Smith’s in-your-face refusal to obey a Court order, and that the matter had been ‘kicked upstairs’ for resolution. On the appointed day, I appeared in the courtroom fully expecting to be witness to the district judge’s bollocking of Mr. Smith. Instead, I was excoriated for the better part of 90 minutes, while the judge excused every bit of Mr. Smith’s conduct, overruled the magistrate’s discovery orders and suggested to Mr. Smith that he make an oral motion for summary judgment. The Court granted the motion, and sanctioned me for filing the notice of lis pendens.
The Court wrote that “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.” This is not what the case was about. BidZirk’s claim was for trademark dilution; specifically, the negative association BidZirk’s trademarks acquired through their connection with Mr. Smith’s blog. There are three defenses to infringement liability under the Lanham Act - (1) non-commercial use; (2) comparative advertising; and (3) use of trademarks in “news reporting or news commentary.” There is a 4th Circuit case directly on point (PETA v. Doughney, 263 F.3d 359 (4th Cir. 2001)) regarding the unavailability of the non-commercial use defense on websites that include any connection to commerce, such as click-through ads. Mr. Smith’s website includes click-through ads. Respecting the comparative advertising defense, Mr. Smith’s posting on BidZirk was not comparative advertising, and he never claimed that it was.
Accordingly, Mr. Smith’s only defense to infringement was the argument that his posting was “news reporting or news commentary.” The Court found that Mr. Smith’s piece was news, arriving at that decision by reviewing the content of the posting. The Court also said that Mr. Smith’s intent in posting the article was revealed in the article itself. BidZirk contended all along that determining whether Mr. Smith’s posting was news requires an examination of his intent in publishing the piece. BidZirk contended, and the record supported, the notion that Mr. Smith did not set out to write an informative piece on BidZirk - rather, he attacked BidZirk after he had a bad experience with the company as a customer, not as a newsgatherer.
The problem with the Court’s approach is that it involves judges in the critical evaluation of what is published, when the only proper inquiry is why it was published. We cannot allow the ‘bloggers as journalists’ debate to devolve into a situation in which courts weigh whether certain published information is newsworthy. Such is not the function of the courts. BidZirk proposed a test (set forth in its brief to the 4th Circuit) pursuant to which the putative news reporter’s intent at the beginning of the newsgathering process is evaluated. If the blogger’s intent is to gather facts and compile a story for the purpose of informing readers, it is news. If a story is compiled using facts that were gathered for a purpose other than news reporting, it is not news for purposes of 15 U.S.C. 1125(c)(4)(C). Remember that the context in which this test would be employed is extremely limited - the only question presented in BidZirk v. Smith was whether Mr. Smith’s infringement of BidZirk’s trademarks was excused by the character of the posting as news, a term which the Lanham Act does not define.
Several commentators have cited BidZirk v. Smith as a triumph of free speech over evil corporations concerned only with their reputations. However, the case was not about free speech, it was about trademark infringement. Had Mr. Smith published the same story, not using BidZirk’s trademarks, BidZirk would not have sued Mr. Smith. BidZirk’s issue with Mr. Smith was never about what he said on his blog, it was about his insistence on publishing BidZirk’s logo. This may seem like a small thing, but it is the difference between lawful and unlawful use of another’s property. If you owned a 20-acre yard, and a stranger insisted on standing on a six-inch wide spot at the very edge of your land, you would probably initially say to yourself that it’s no big deal. If you looked out your kitchen window every morning and saw the same fellow standing there, trespassing on your six inches of grass, day after day, you would eventually say to yourself that enough was enough. After all, whether you own 20 acres or just the small space where the stranger is standing, a trespass is a trespass, and property owners are entitled to exclusive use of their property.
The same is true here. Mr. Smith’s infringement continues every day that the posting is available on the internet. Infringement is infringement, whether it’s the Nike swoosh on 1000 billboards or Philip Smith publishing BidZirk’s logo on his blog. The net effect of BidZirk v. Smith, aside from the comment mill’s First Amendment high-fiving, is to weaken trademark protection in this country. The stage is now set for the next incremental diminishment of property rights, with the test to be applied tasking judges to review the content of stories to determine whether they are newsworthy enough to be entitled to infringe their subjects’ trademarks. This thought should give pause to anyone who writes a blog.
I learned two things in this case. First, don’t try to expand the limits of the lis pendens statute in South Carolina. Second, don’t ever try to tell a judge what s/he should be angry about. I pursued what I believed to be a plausible theory of the case. The Court didn’t see it BidZirk’s way. Time to pick up the next file and continue doing my work. I had hoped to get through my entire career without being sanctioned, and I am upset with myself that I failed in that regard.
I did not know Mr. Smith prior to the BidZirk v. Smith case, and I still do not know him. I respect Mr. Smith’s tenacity in publishing his views. This case was about BidZirk’s trademark. It was not about muzzling Mr. Smith. Congratulations to Mr. Smith for surviving a tough lawsuit. I apologize to him here, publicly, for filing the notice of lis pendens; it is a mistake that I shall not repeat. I wish Mr. Smith luck in the future, and hope that I, he and my clients can move on to better and more productive things.
I'm moving on with a lawsuit for harassment, breach of contract, defamation, and malicious litigation.
I want to assure everyone reading this that:
This is no apology especially after costing me 10’s of thousands of dollars in lost income, 100’s of hours of lost time and depression, and countless lost opportunities.
I have to say this:
KEVIN ELWELL YOU ARE THE MOST INSINCERE & SMUG PERSON I HAVE MET. SHAME ON YOU!
Unlike your comment, I know you VERY well - everybody does. This was no apology; it was a whine. Judge Herlong needs to see this - and oh - thanks for helping me make my case for antagonizing, embarrassing, and harassing “things Bidzirk did to me” even stronger with this post.
He's outright contemptuous with lies regarding the “way things went down”. I know he has to portary it that way though ... a lawyer was beaten by a Pro Se litigant - it's embarassing to him and he knows it.
Judge Catoe only compelled me to answer the questions because he felt he HAD to give the attorney something. Obviously Judge Herlong understood that his questions WERE ALLL ridiculous - the majority of chastisement was NOT over the lis pendens; it was over his conduct and the “grossly improper behaviour” during the course of this litigation.
"Mr. Smith’s posting on BidZirk was not comparative advertising, and he never claimed that it was."
Yes it was a comparitive study. I stated in the article that I had been to several similar businesses, done extensive online research, and in just about every instance, I found similar things happening at OTHER EBAY DROPOFFs.
I also want to make it clear that i never discouraged anyone from visiting Bidzirk. Everyone was already avoiding the business anyway for 3 reasons:
1) That kind of business has failed in just about every form where I live and is failing nationwide.
2) There were no repeat customers once they saw how they got shafted after their first payment.
3) Most people are competent enough to sell on eBay or know a friend or relative that will do it for them.
My article actually fit ALL 3 of the Lanham Act protections. It only has to fit one to be protected speech:
(1) non-commercial use ( My website can hardly been considered a money maker - I lose money here and write to inform educate and because I have always had a passion to write and to educate. )
(2) comparative advertising ( It was a comparison and contrast to other eBay dropoffs which suffer the same issues with customers nearly universally )
(3) use of trademarks in “news reporting or news commentary.” ( Yep, that's what i did, reported a news story, and then commented on that news story. )
"Mr. Smith’s infringement continues every day that the posting is available on the internet."
No it's NOT ... it was ruled as NOT infringing by the courts.
May I repeat:
The Plaintiff attorney (KEVIN MORGAN ELWELL) 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 (KEVIN MORGAN ELWELL) was chastised very firmly for asking me 3 separate invasive, irrelevant, and antagonizing questions. (The MAJORITY OF YOUR CHASTISEMENT WAS THIS NOT THE LIS PENDENS!)
I answered ALL the courts requests ON TIME, IN ORDER, AND AS SUGGESTED I SHOULD DO with consulting advisors to me about this case.
“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”
These are the questions meant to "antagonize and embarrass" me that were "irrelevant, vague, overly broad, and unduly burdensome" that Kevin Elwell speaks of that I refused to answer or did not answer on time or as requested.
These questions were:
Do you have a high school diploma?
Do you consider yourself intellectually superior?
This litigation has depressed you, are you sure you are not depressed because you are unmarried, have no children, have a junk title car, and live in a rundown condominium?
Please turn over the entire contents of your hard drive for all your computers?
When asked for clarification "all 158 GBs"?
Reply by Kevin Elwell, "Yes all 158GBs"
District Judge Herlong OVERRULED Judge Catoe saying the whole process of interrogatory, admission, and deposition were completely improper on the part of the Plaintiff. This is where he gets the FINAL SUMMARY statement in my ruling:
Quote from District Judge Henry Herlong:
“… the court finds that based on Elwell’s grossly improper conduct, he should be sanctioned”