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January 20, 2008 Update.
Now that a Federal Court in the Ninth Circuit has found on a prima facie basis that COPYRIGHT LAW PROTECTS A LAWYER CEASE AND DESIST, is there any doubt about Public Citizen's motivation in attacking valid criticism of their scam reporting website clients? What are the consequences to Public Citizen for telling its 100,000 members that they can publish cease and desist letters without any risk of copyright infringement? Does Public Citizen really care if its members, constituents and followers get sued and the financial future and well being of its webizens is put at serious risk?
Does Public Citizen have a grasp on the law of the web? Or do they just dream up what the law should be, and then attack anyone who disagrees? You can be the judge by reading this page, seeing what Public Citizen's initial legal positions were, and drawing your own conclusions. Let's see if they publish or blog on this Court decision and have the conscience and ethics to publicly go to their constituents and say...oops, we got it wrong and if you follow our advice you may be ruined financially. I bet they won't tell their constituents, because the risk of losing credibility and then losing financial contributions is too high...but let's hope they do the right thing.
John W. Dozier, Jr., Esq.
December 14, 2007 Update
Dozier Internet Law Responds
A federal lawsuit was recently filed in Michigan against one of Public Citizen's scam reporting website clients. The client has complained in a blog post that the lawsuit came "without warning". It is interesting that this client did not apparently understand the consequences of Public Citizen's tactics in attacking the demand letters written by lawyers and motivating online mob attacks against the senders. Now it is likely this client, as well as other clients of Public Citizen, will just get sued "without warning", just as I stated would happen in my initial response below. This is an odd outcome of the Public Citizen strategy...they are all about free speech, until either Paul Alan Levy or Greg Beck don't agree with it, and then they attack the speaker and get their clients sued. Then if Public Citizen, Paul Alan Levy or Greg Beck try to pull their typical attacks, they can explain to the Judge why they should not be held in contempt of court. That must be why Paul Alan Levy and Greg Beck have remained so quiet about the pending lawsuit. They must know that if they try to pull another law firm attack they will have to answer to the Judge.
John W. Dozier, Jr., Esq.
Dozier Internet Law Initial Comments (October 2007) In Response To Support By Paul Alan Levy, Esq., Greg Beck, Esq. and Public Citizen For Scam Alert Sites
Your recent unfair criticism of the position that our law firm takes only confirms to me that you are worried about our successes. We get results. Despite your criticism, the fact remains that we have successfully removed hundreds of defamatory statements about our clients from some of the most popular user generated content websites and blogs in the world, often without public knowledge or litigation. I know that you would view each of those successes as an attack on free speech. After all, a Ralph Nader founded organization like Public Citizen relies upon donations to survive, and those donations flow when you are pushing the envelope and exciting your constituency into a frenzy. You fail, however, to appreciate and respect the right of businesses to protect their good name. You apparently overlook the fundamentals of the law of defamation, you are struggling with many legal concepts, and you claim that publicly labeling a business a "scam" is quite acceptable and legal. We beg to differ.
You state that "words like scam are statements of rhetorical opinion" and do not support a claim for defamation. Yet you fail the credibility test when your research either did not reveal, or you chose to ignore, the many court decisions that find that the characterization of a business as a scam is not only defamatory, but the most egregious type of defamation, which is defamation per se. See, for example Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 U.S. Dist. LEXIS 17936 (N.D. Ill. 2004); Parker v. House O’Lite Corp., 324 Ill. App. 3d 1014 (Ill. App. Ct. 2001); Kumaran v. Brotman, 247 Ill. App. 3d 216 (Ill. App. Ct. 1993); Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1 (Ill. 1992) and related cited cases (these are just the judicial decisions from one state). Contrast your characterization of "scam" as "rhetorical opinion" with the definition being adopted by the courts: "a fraudulent business scheme; swindle", "a confidence game", "a swindle effected by gaining the confidence of the victim", "to cheat or swindle", and "lying and trying to deceive people". You appear to view the law as you would like for it to be, but not as it is. This is a recurring theme.
You also attack our firm for claiming to be able to pull down copyright infringing sites without notice. Yet you fail to tell your constituents that this practice is expressly permitted by US laws. I suggest you re-read the Digital Millennium Copyright Act, unless you already knew that it was a legitimate and legal approach and you were just positioning again to incite the passions of your many followers. And while you are at it, consider taking a look at the US Copyright Law, and you will learn that rights in a copyright arise as of the time of creation, not upon registration, and that there is a three month relation back period for claiming statutory damages and attorney fees. That's really basic copyright law and it is hard to see how you cannot grasp these basic concepts. Finally, while the copyright protections afforded a business demand letter relating to a dispute may be a matter of first impression in the US, in the UK the court confirmed that copyright can subsist in such correspondence generally, a business demand letter was found to be an original literary work, and was protected by copyright. Further, it was held that the defendant had infringed the copyright by copying and circulating the letter. While you are free to dream up the law as you might want it to be, you are doing everyone a disservice when you take it upon yourself to publish information that a first year law student taking a copyright class would know is wrong.
Your defense of the "scam review" websites is particularly troublesome. You publish legal and practical advice on how to discard IP address and log file records that would allow innocent businesses to identify those publishing defamatory materials. Is this also in support of free speech? No; it is in support of your constituency, some of whom likely support your organization generously.
Let's consider the problem. Today someone checking out a business will do a search and the results will include references to the company being a "scam". The potential customer goes to the scam site and is presented with advertising from competitors either through banner ads or pay per click ads (adsense from Google is a prime example). The website owner generates income when the ads are presented or clicked on, and diverts the business to a competitor. The content is often created by the website itself or its associates and cohorts, and with your advice as to how to cover up the tracks of the poster these sites can assure anonymity and protect themselves by claiming the posts came from third parties and the site is immune from liability pursuant to Section 230 of the Communications Decency Act. Some (most?) of these sites are extortion rackets. Businesses are told to pay protection fees, often in excess of $10,000 each month, in order for the posts to be removed and also, of course, to make sure that future negative posts stop. Once these payments are made the negative comments disappear, and for some odd reason no one ever has anything negative to say about the company on that site anymore. This is no different than running a protection racket. "Pay us a fee each month", some of these sites demand, "and bad things won't happen to you again".
Yet, for some reason, despite claiming that you do not accept corporate contributions, these types of businesses are defended by you and your organization, and of course it is easy for these businesses to contribute to your organization. Some link directly to your contribution page and encourage payments of money directly to Public Citizen. Kind of like advertising through affiliate marketers, don't you think? No wonder you claim that these "scam" sites are operating within the legal bounds of the law. No wonder you claim that even posts of the site owner are protected from liability, even in the face of unequivocally clear law that owner generated content is not covered by the immunity provisions of the Communications Decency Act. Many of these sites trade off of creating and/or publishing defamatory content, which is unlawful content, and some are violating criminal laws by running extortion rackets. You should not be supporting these practices.
When these scam sites run into legal problems, they claim their conduct is protected by the First Amendment. The exercise of free speech is not the motivation of the publisher, but merely serves as a convenient crutch that creates an impediment to enforcing the civil and criminal laws of our country. These sites are all too often just about money, just about running a commercial enterprise, and just about executing an extortion scheme. While you claim to be taking some kind of high road and paint your advice as a free speech issue, the truth is otherwise, and you know it.
Your organization plays an important role in our society. I respect many of the efforts that you take to preserve our individual rights. As attorneys, we should be able to agree to disagree without undertaking personal attacks. I don't take pleasure in writing this letter, but your public attacks on this issue require, and indeed demand, a direct response. We represent businesses that are attacked on the web, and we have been very successful in resolving many problems without the need to sue members of your constituency, but if they follow your advice and guidance, lawsuits may become the standard, and not the exception. You demean the use of pre-suit notices from lawyers, and apparently would prefer that your constituency just be sued without notice, but you fail to tell them that it is unlikely you will defend them. If you happen to find a firm to "represent" them, our experience has been that the local firm working for free often wants to get out of the case as quickly as possible and will settle the matter on terms more favorable to our client. Publishing legal communications and clearing the use of the term "scam" to describe a business, thereby leading your constituents down a primrose path, is wrong and a disservice to businesses and a disservice to your constituency.
In closing, we advise legitimate blogs, forums and other user generated content sites on how to avoid liability for defamation claims all the time. I suspect that we have represented more clients in this area of the law than your entire organization has over the past several years. I just returned from an Internet industry conference in San Francisco in which I presented a program to legitimate website owners and bloggers on risk management for defamation in the Web 2.0 world of user generated content. You will find advice that I have given to your constituency in magazine columns going back many years. The coming influx of user generated content in the Web 2.0 environment will raise the profile of this area of law, and good, sound advice will be needed to keep sites out of trouble. If you really want to help the blogosphere, you should either participate in this arena in a quality way, or avoid it all together.
John W. Dozier, Jr., Esq.
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