Popehat Signal: Seeking Help In A Troublesome Massachusetts Defamation Case

The Popehat Signal

It's time for the Popehat Signal. I'm looking for attorneys admitted in Massachusetts to represent both named and anonymous online commenters. They've been sued by a man named Jonathan Graves Monsarrat based on a series of LiveJournal posts and comments.

Monsaratt's lawsuit is here. You can see LiveJournal threads talking about the lawsuit here and here.

The lawsuit targets posts and comments about Monsarrat's January 2010 arrest. Various sources reported that police arrested Monsarrat when they found him at a loud Somerville party that featured (gasp) underaged drinking. The charges against Monsarrat were later dismissed. Monsarrat was already known locally. Some of his fame was benign — he ran a whimsical message board called the "Wheel of Questions" where people could leave notes and have them answered. Some of his fame, on the other hand, was not positive. In 2003 the MIT and Harvard student papers reported complaints by participants in a Harvard-MIT-Wellesley matchup program he created and operated; participants asserted that Monsarrat chose people he wanted to meet from the matchup he was running and persistently contacted them in a way they found harassing. He was quoted thus:

Monsarrat, who also participated in the matchup service, said that he had heard of complaints about his personal use of data from the service, but said “I kind of don’t get that. I signed up like everybody else. There was no privacy policy.”

These reports led to a certain amount of internet infamy, including an unflattering entry on Encyclopedia Dramatica.1 Monsarrat filed a DMCA notice against Encylcopedia Dramatica seeking to remove among other things, pictures of him they posted in the course of ridiculing him.

When Monsarrat's arrest broke in 2010, people began writing about it, and him, and his past, on LiveJournal. People writing about it referred to past stories about him in connection with the matchup incident, and other critiques of him. As is common online, many criticisms were vivid and accusatory and hyperbolic. That's the basis of Monsarrat's suit against two named defendants (a blogger and a poster on LiveJournal) and multiple anonymous commenters.

Monsarrat's complaint cites some statements made about him which, if untrue, could be defamatory. So why do I think this case is worthy of the Popehat Signal? It's because the complaint is overtly censorious and abusive of the legal process in multiple ways.

First, the complaint jumbles allegedly false statements of fact together with clear statements of opinion and insulting rhetoric. The former can be defamatory; the latter is protected by the First Amendment.

Second, the complaint jumbles together numerous defendants and suggests that they are all jointly responsible for each others' words. But under Section 230 of the Communications Decency Act content providers — like bloggers — can't be held liable for the words of their commenters. Moreover, Monsarrat's conspiracy theory appears to be a method to target people for protected speech (like insults or statements of opinion) on the theory that the protected speech was connected to non-protected speech (like false accusations of fact). Practically speaking, that theory means if you post an insult or opinion about someone in a thread that also contains a false statement by someone else, you could be sued for conspiracy to defame. The chilling effects are obvious.

Third, the complaint suggests that bloggers, and commenters, cannot report and comment based on stories published in newspapers. There can't be any dispute that a local paper reported on Monsarrat's arrest and that student papers reported on the matchup incident. Misstating what's in those articles can be defamatory, but suing people for repeating what was published in the paper — without any basis for asserting they knew it was false — seems overtly censorious, and faces substantial legal barriers.

Fourth, Monsarrat cites some commenters merely for linking to other sites, like Encyclopedia Dramatica and the Harvard student paper. But there is — thankfully — an emerging legal consensus that linking to content does not constitute republication of that content for defamation purposes.

Fifth, for some reason, it appears that Monsarrat has waited to the very ragged edge (if not beyond) of Massachusetts' three-year statute of limitations for defamation actions. That does not support the assertion that he was actually harmed; it appears tactical.

Sixth, Monsarrat's non-defamation causes of action appear highly dubious. His "common law copyright" claim is based on uses of content that are clearly intended to critique or satirize. His commercial claims seem to rely on the highly dubious proposition that the defendants were involved in commercial activity. In short, the other claims appear to be a kitchen-sink approach. And, of course, there's Butthurt In the First Degree, also known as Intentional Infliction of Emotional Distress.

The Streisand Effect may yield results that Monsarrat will regret. He needs to prove that the things said about him are untrue. A lawsuit like this seems designed to generate widespread publicity and encourage any witnesses that might support the defendants to come forward.

The complaint is highly vulnerable to attack. The named defendants need legal help. One of them — Ron Newman — helps maintain a LiveJournal community. Like many Americans, he's out of work, and like almost all Americans, he'd find it impossible to fund the defense of a lawsuit. Lawsuits are ruinously expensive to most folks — which is exactly why merely the threat of a defamation suit can silence people, and why plaintiffs can abuse the legal system to chill expression.

Someone may have uttered false and genuinely defamatory words against Monsarrat; I don't know. I do know that defamation cases — particularly ones where the plaintiff is pursuing extravagant legal theories that threaten everyone's speech — are best resolved with vigorous and capable counsel on both sides. Here Monsarrat's complaint, whatever elements of merit it might have, is framed in a way that should be of grave concern to anyone who values freedom of expression and opposes legal bullying.

So: if you are a Massachusetts lawyer, please consider helping the named defendants. I suspect that First Amendment lawyers across the country will be willing to offer support and advice. In addition, the anonymous commenters require counsel to help them oppose discovery calculated to pierce their anonymity.

Thanks, as always, for standing up to defend free speech.

  1. Encyclopedia Dramatica is a site that shows what would happen if you captured Booger from Revenge of the Nerds at age 14, hit him in the head with a shovel, and then asked him to write mean things about people.  

Last 5 posts by Ken White


  1. Adam says

    Question for you, Ken (or any of the knowledgeable commenters here). I'm about to graduate from law school and take the bar (in Washington State, if that's relevant to anyone). Assuming I pass (knock on wood), I'd be interested in doing some pro bono work on cases like this. What's the best way to go about starting on that? Mailing lists? Organizations?

  2. matw2 says

    Got to say I'm loving the emerging footnotes trend on Popehat. Fred Biery's influence is undoubtedly positive.

  3. says

    Dubious legal theories aside, it was a bad idea to wait so long to file suit. The plaintiff is going to have to first get the IP addresses from wherever they allege the defamatory statements were made (i.e. LiveJournal). LiveJournal might not have them anymore.

    From there, they are going to have to link the IP address to a subscriber by subpoenaing the ISP. The ISP may not retain that data for a long time – 90 days is normally typical. 180 days is the longest I'm aware of, and that is Verizon. I doubt the ISPs will be able to correlate any of the IP addresses to subscribers. My guess is the data is long gone.

    Assuming they could get any of that stuff, they have to hope that the person hasn't moved, wasn't posting from an open WiFi, coffee shop, or that the IP address hasn't changed. Not to mention, a subscriber might not be the one who published the comment, so they need to take depositions to figure out who had access to the wireless router on that day. 3 years later… yikes. No one is going to remember.

    I think he's going to have a very difficult time identifying any of the anonymous posters.

  4. Somervillian says

    @Jordan Rushie: He's listing people by their livejournal accounts, which they were logged into when they posted, not by IP address. Some of those accounts have their full names listed on their profile pages (iirc) or very obviously attached to real names.

  5. Camilla Fox says

    I've got a contribution waiting, if the defense puts up an appropriate link to a fund.

    Jordan Rushie: I'm close enough to the scene of the action that I can name at least half of them off the top of my head. In the local subculture, livejournal usernames are usually not real-name-identified out of politeness and convention, but the friends network means the anonymity isn't all that deep. Livejournal presumably has billing records, since many of the accounts are or have been paid accounts.

  6. Davis Square resident says

    He's already identified some commenters by their screen names, found their home addresses, and sent them "confidential settlement" letters offering to take their names off his lawsuit if they remove the comments/blog entries they made three years ago. They're discussing it here.

  7. Craig says

    Last I heard, LiveJournal, although originally an American company, had been purchased by Russians and all operations relocated to Russia. That should make for lots of fun if anyone in a US court wants to subpoena information from them.

  8. Bill says

    Another defect in the complaint is that it confuses "blog" and "blog post" (on page 14 of the PDF – page 9 of the complaint – and possibly elsewhere), much as was described here in an unrelated matter:


    "Sensible and careful lawyers writing demand letters about web sites make a reasonable effort to use accurate language. Retraction Watch has multiple blog posts about Dr. Aggarwal. Retraction Watch is a blog; it does not have "several blogs" about Dr. Aggarwal. If you are an attorney, and you are not familiar with common terminology used to describe the subject of your threats, consult someone who is familiar, or you will make yourself look foolish and diminish your credibility immediately. This attorney has signaled from the opening of his letter that he is either sloppy or does not understand what he is talking about. That is not a strong bargaining position."

  9. A John Doe says

    I'm one of several known people (so far) to have received threatening paper letters at our home addresses from him in relation to this case. He clearly has the time on his hands to research names and addresses, and is doing so. Interestingly, the handwriting on the envelopes perfectly matches the handwriting on the legal forms being posted in scans, said forms being supposedly filled out by a lawyer. But the letters are from Johnny Monsarrat himself. The email address he gives for himself (which Does are instructed to use to notify him of their deletions of their posts) is "removemefromnewmanlawsuit at gmail dot com"

  10. says

    Ok. I don't quite understand the LiveJournal thing.

    I just know if I were posting on Popehat as "Anonymous", it would be very hard to get my identity three years later. WordPress might not have it, and from there, the ISP might not be able to correlate it.

    But if the subjects aren't very anonymous, or are linked to an email address, that's a different story.

  11. thespian says

    Also in the case of the Davis Square community, we had, at the time, almost monthly meetups. Boston is a big city but a small town, and Somerville, MA, the General Boston Area place where Davis Square is is practically a village, albeit with 70k people. At one of our meetups around the time of this thread, the Mayor showed up at the pub we were at with a visiting Italian hardcore metal band (none of whom spoke English, adding to the entertainment factor). He'd just heard we were there and popped by while he was taking the band around town. I saw 6 of the Jane/John Does on the street yesterday, and am babysitting for one tonight (I have also worked for Jon, and attended one of his parties; part of the problem is that small village thing – almost everybody had already heard of him).

    My only contribution to that thread was, in fact, when someone said that 'man, that party was just eight blocks from me!' was to point out that around here we're all 8 blocks from each other. There is no anonymity, to be honest – people that Jon addressed by first name in that original thread were still named as J. Does, which was odd.

  12. thespian says

    many people on Livejournal have a userid that identifies them, but have nothing (say on their account info page) that says what their legal name is. if one feels one has been defamed online by someone whose only name is "McMartinSillyPants", one needs to identify that person, but pursuant to finding out the person's legal name, they are still a John Doe, even if not anonymous.

    If they don't use that identifier anywhere in conjunction with their real name, then they *are* anonymous, in that the complainant doesn't know who they are, until discovery happens and the account can be linked to an email address (which livejournal does not provide publicly unless the user chooses to reveal it – email would go to mcmartinsillypants@livejournal.com)

  13. Matthew Cline says

    Boy, I sure hope that Monsarrat shows up here to defend his actions. *crosses fingers*

  14. Dan Weber says

    Wow, I remember this doofus.

    This is exactly what you'd expect from him. And the Popehat Signal is exactly what is needed to shut him down.

  15. nlp says

    In doing a quick Google search on his name, I found that he is featured in an article on Beforeitsnews.com, which, if you haven't found it until now, I suggest approaching very cautiously.

  16. AlphaCentauri says

    If someone logged into LiveJournal once three years ago, it could be hard to identify them. But if it's an account they have been using regularly for three years, their IP addresses for their most recent log ins will be available and would be just as useful/useless as any other IP data.

  17. says

    Looks like it's time to mirror everything he's getting pissy about. Fighting one innocent person is hard enough, let him try to fight a few thousand.

  18. Doe Defendant #?? says

    I haven't received a letter, however he visited my mom's house a few months ago after I moved, asking my mom about my whereabouts, my job, et cetera. He probably found that address through a whois of a domain I had at the time, and signed a comment with. It's possible there is a letter similar to the ones discussed in this thread waiting at my home; but I do have to say I am entirely uncomfortable with the fact he approached my mom, at her house, looking to find me. o_o

  19. says

    Also, Not being a lawyer I'm not an expert, but since when did my IP Address become me? Even assuming it's actually my house, when the hell did that prove *I* did something. I get the whole "it's your property you're responsible for it" but unlike my car, my ip can be used by a bunch of people and it happens a lot. Not everyone is sophisticated enough to lock down their routers. Not everyone, even if they are knowledgeable enough can be 100% positive they had 0 spyware or malware infections – those zombie nets aren't comprised of 10 computers, there are hundreds and thousands. Yah, I doubt that's what happened here but it's the same point – how the hell does this guy or anyone claim an IP = some specific person. Give me a mac address and IP combo and I'll be a little more convinced, but hell even that doesn't account for spyware, malware or someone else in the household pretending to be someone else. I get the car thing, but if my kid steals my car when I'm away, am I still responsible for criminal acts done by them? If I come home and my car is wrecked and it was used in an accident that killed someone – I can see how I might be liable for civil damages, but not criminal ones. The whole thing sounds like lawmakers are too clueless about technology.

  20. GotLetter says

    He used my handle to I assume google the heck out of me, which resulted in him mailing a letter to me. s it fair to assume he's trying to bait me into responding therefore proving I'm the same person. To this point my name and handle have not been in any of the documents I've seen posted. Should I expect to be served or is it just I know who you are threat?

  21. Kat says

    After reading associated content posted by and about the plaintiff, all I can say is wow. "There wasn't a privacy policy" therefore it was okay is basically admitting that he did what was being alleged, but he comes back later and comments 10,000x that he's innocent because there's no law against it. Dude–it was still creepy behavior, even if it wasn't illegal, and you deserve to get slammed for it.

    That being said, I wasn't really convinced that he was a creep until I read what he wrote and said. Then there was no doubt in my mind; his words and actions betrayed some very deep issues.

    brrrrrrrrrrrrrrrrrrrr. I need to take a hot shower and drink some cocoa to recover after that.

  22. Jane Doe #Kajillion says

    Bill, this is a civil matter, so no criminal issues are at stake. The whole thing is hilarious, except for the bit where Ron Newman has to spend time and money dealing with this nonsense.

    I feel very honored to have been Jane Doed both in this suit and in P*rker v. Go*gle, to be honest.

  23. GotLetter says

    Jane Doe, why do you think only Ron will have to spend money. I got a letter and will likely have to pay for a lawyer for legal advice at the very least. Are you not doing the same?

  24. Jane Doe #Kajillion says

    Ron has to file the answer to the complaint within a specific, short timeframe. Other parties, both named and anonymous, will have a longer period to evaluate their options, and many things can happen in that time.

  25. GotLetter says

    Do you think the letters are just fishing to see if he can 100% ascertain who you are? My letter only referenced one link, in which my comment is benign, do you think the letter is a scare tactic? I'm not seeing my name or handle in any of the materials Ron posted. How long can he keep adding people, thought the statute of limitations exipred after 3 years?

  26. AnotherLetter says

    I wondered the same thing. I received a letter referencing a link in which I didn't comment at all. And given that he knew all the handles of all the comments that upset him, how can he add any more after the statute of limitations is already up? It seems absurd that it would be legal to file a suit that leaves the defendant list so open-ended without justification.

  27. Jane Doe #Kajillion says

    Who knows what he's thinking with the letter? It certainly seems like there will be plenty of time for all the Does to get whatever legal help they need, if any, as events progress. Right now, Ron and the other named defendant need to answer the complaint, which will cost them money, time, and energy. Us Does have a much longer wait-and-see window.

  28. says

    @JaneDoe – Agreed, but even ina civil matter, the burden of proof is lower but don't you still have to show the person actually did it in order to charge them? How does an IP Address prove you did something considering it doesn't even show the computer that was used to do it? There are 10000 ways to *easily* spoof an IP Address – it's one thing to claim a license plate can be faked, but it's absolutely trivial to spoof an ip address, much easier then a license plate. One ip address can be shared by several people and frequently is, there's the spyware issue and so many more, it just seems it's too weak of a link to be evidence of anything absent several other supporting factors. But I'm not a lawyer so I guess it must be or we wouldn't be having this discussion.

  29. anonymouseavenger says

    GotLetter: That does sound like a fishing type of letter. Without actually seeing it, I would wager a guess as to say it has a multi-prong approach: 1) Get you to take down a post or comment, 2) State that you feel guilty over said comment/post and removed it in an effort to obscure justice, 3) Confirm he correctly identified you by either seeing the post disappear or you contacting him to notify him of removal of the post, 4) Bait you into making statements he will include in further filings. (Note: I am not a lawyer and he could very well have honest intentions of removing people from the court filing if his demands are met. However, these are options that have happened in other like cases.)

    I'm not very clear in a civil suit if he's even allowed to contact individuals he is filing a suit against on his own behalf. Ken, any input on this?

  30. Jim Tyre says

    I'm not very clear in a civil suit if he's even allowed to contact individuals he is filing a suit against on his own behalf. Ken, any input on this?

    Well, I'm much more handsome than Ken. And have been a lawyer for considerably longer than him, too. '-)

    With certain exceptions not relevant here, litigants can contact each other in civil litigation, even if represented by counsel. The only prohibition is that counsel can't contact directly a litigant who is known to be represented by counsel.

    Whether it's idiotic is a different matter from whether it's permissible.

  31. Camilla Fox says

    Bill, he's talking about doxing accounts that have a persistent name/password, so it's really not about IP addresses. If one of the Does claimed that his/her livejournal account was hacked by a third party to post the comment, it would usually follow that he/she would be willing to disavow and take down the comment.

    If JonMon's doing the legwork to visit addresses and talk to people to try to match up handles himself, I'm surprise that hasn't resulted in (more) restraining orders. Is he collecting the set?

  32. John Doe #Whatevs says

    Honestly, the gambit here is to get the comments and the article deleted. I think the money might be nice, but considering every single letter says "Delete the comments and this goes away", it's probably something he wants off the Internet for professional and/or personal reasons.

    Which is stupid, because for what he's spent so far, he could have hired a reputation service and buried this so deep in Google search results you'd need dynamite to pull it out.

  33. says

    Bill wrote:

    Also, Not being a lawyer I'm not an expert, but since when did my IP Address become me? Even assuming it's actually my house, when the hell did that prove *I* did something. I get the whole "it's your property you're responsible for it" but unlike my car, my ip can be used by a bunch of people and it happens a lot. Not everyone is sophisticated enough to lock down their routers. Not everyone, even if they are knowledgeable enough can be 100% positive they had 0 spyware or malware infections – those zombie nets aren't comprised of 10 computers, there are hundreds and thousands. Yah, I doubt that's what happened here but it's the same point – how the hell does this guy or anyone claim an IP = some specific person. Give me a mac address and IP combo and I'll be a little more convinced, but hell even that doesn't account for spyware, malware or someone else in the household pretending to be someone else. I get the car thing, but if my kid steals my car when I'm away, am I still responsible for criminal acts done by them? If I come home and my car is wrecked and it was used in an accident that killed someone – I can see how I might be liable for civil damages, but not criminal ones. The whole thing sounds like lawmakers are too clueless about technology.

    There are great defenses in this case. This argument, whined again and again, is the dumbest fucking thing in the world.

    I am licensed in Massachusetts. I'd be willing to help. But, if any defendant intends to raise this dumb as fuck argument, then I'd rather volunteer to work for the plaintiffs, free of charge.

  34. AnotherLetter says

    Even if he is allowed to contact defendants directly, I still don't get how he can contact people who are NOT listed as defendants, tell them they are, and claim that is valid negotiating protected under ER 408.

  35. Adrienne says

    Mr. Randazza,

    I totally believe you, because you are a well-known Badass. Since this is an argument i see a lot, do you have a blog post or essay somewhere that talks about why it's a dumb-as-fuck argument? If not, would you be willing to go into a little detail here in the comments? I am deeply curious.


  36. Jenora Feuer says

    Is it wrong of me that, when I read the line about him filing DMCA takedown notices to Encyclopedia Dramatica, the first thing that came to mind was 'Here, Streisand, Streisand, Streidand!'?

    I mean, really, telling ED to take something down? Are you trying to get them to make even more fun of you?

  37. says

    @Marc Randazza -Why do you think it's dumb as fuck? I've seen a more than a few incidents where this has been the case – Grandson/Relative doing shit from Grandma's computer, people doing stuff from work, people hopping on free wifi at a coffee shop or wardriving. I can think of one time a vindictive soon to be spouse did it to make the other person look really bad. I agree that in many cases it can be pretty obvious and in many cases it defies believability, but in and of itself, it seems that proving the person is the culprit is a valid issue.

    I've actually heard from law enforcement officers that even the IP Is irrelevant – if something is sent from Marc.Randazza@someprovider.com it's got to be you, b/c no one would pretend to be someone else. Legally idiotic but that doesn't stop many from making the case and if you're dealing with that level of idiocy, I think asking someone to prove it is fair game. If I really did something ,I wouldn't dream of trying to play that card, but that doesn't mean I'd automatically cop to anything and everything that came from my home IP Address.

    One real world case I was very familiar with involved a self-proclaimed ASP.NET expert. He was the pariah of the community and had more enemies than just about anyone on Earth. While proclaiming to be a zillionaire he was constantly unemployed and broke and it became known that he posted from free wifi spot in Maryland. One person that hated him decided to fan the flames and created a few free email accounts using aliases this guy was known to use – essentially it was like using Marc.Randazza@yahoo.com when you actually used Marc.Randazza@hotmail.com – the guy used phrases this guy did, posted very similar rants and the whole thing was very believable. They both really needed a life but the second guy was clever enough to wait around to post right around the same time windows person 1 did. The whole things was extremely believable. Again, I know there are other times when it's rather clear that your grandma isn't doing it and this is a pretty extreme case that is statistically improbably – but it does happen.

    On a legal note, I would think (and me trying to make any legal points with you is indeed dumb as fuck – i fully admit that ;-) ) that establishing the accused is in fact the person is a reasonable point to make. When you say dumb as fuck are you referring to this case, or the point in general?

  38. AnotherJaneDoe says

    The interesting thing about my letter was it referenced a completely different Livejournal entry than the infamous "Jonmon gets arrested" one mentioned in the article, specifically this post: http://davis-square.livejournal.com/1870797.html
    Note the dates on it; the statue of limitations has long since expired. I'm not sure what difference that makes though (IANAL ;P).

  39. James Pollock says

    Marc, what makes that argument so dumb? I post under my own name, so if someone comes after me, I'm not going to be Doe number anything, but I also run an open access port, so there's at least a theoretical chance that some plaintiff, somewhere, might trace something they didn't like back to my router… and if they named me as a Doe, my answer is likely to be "wasn't me. Pound sand."
    (I do have port 25 blocked both directions on that router, and it's bandwidth-throttled so that my own traffic has priority on the fiber-optic link upstream… but there well could be someone patiently camped on it with a bittorrent client downloading un-socially-acceptable stuff, or a web browser posting defamatory material, or so on.

  40. barry says

    Attempting to use copyright law for privacy purposes looks like an odd way to go. [C&D Notice] Has that ever worked? Should it ever work? Copyright seems more a 'commercial' kind of stuff than a privacy right.
    Was he was planning to publish a "Dumb Emails I've Sent" book?

  41. AlphaCentauri says

    Remember that Marc Randazza has litigated on the other side, defending copyright for owners of intellectual property that was being illegally downloaded. I suspect he says it's dumb as fuck because he's argued against it successfully often enough.

    Off the top of my own head, I would say that once I have your IP information and can subpoena your other browsing history, including the email accounts you logged into and other password-protected sites you visited, it would be a lot harder to argue it wasn't you.

  42. GotLetter says

    Can I just add I find it unsettling to get a letter like this. The subtext of which is I know who you are and where you live, then trying to trick me into confirming my identity – with vague promises of not naming me in a law suit in which I'm currently not named.

  43. Rachel Kadel-Garcia says

    "If JonMon's doing the legwork to visit addresses and talk to people to try to match up handles himself, I'm surprise that hasn't resulted in (more) restraining orders."

    This is mostly happening within a small geographical area and a tightly-interconnected group of people, who maintain continuing identities on livejournal with in most cases only cursory attention to separating their LJ account from their meatspace identity. Jonmon knows many of the people he's suing or threatening personally, and if not they certainly have mutual acquaintances. The steps he'd need to take to tie their lj accounts to names and addresses would in most cases be simple and unremarkable (in some cases reading profiles on the site will do it, in other cases looking at links they've posted or casually asking others who run in the same circles to remind you who they are would do it). Other things I have heard alleged about him might lead someone to seek restraining orders, but finding the addresses of folks who post to those communities? I wouldn't expect so.

  44. JD says

    Gosh, Marc, who wouldn't want to be represented by someone as classy and articulate as you?

  45. says

    I agree with Marc. If someone raises the "you can't prove it because I am not an IP address, it could have been a virus or malware", I will litigate that argument for the plaintiff free of charge.

    No one could be that stupid. You can't just lie or say "PROVE IT" in civil litigation. It doesn't work like that.

    Unless you want the jury to think you're a complete liar and total moron. In which case, I can't help you help yourself.

  46. says

    Gosh, Marc, who wouldn't want to be represented by someone as classy and articulate as you?

    This is sarcasm, right?

  47. Christopher Schmidt says

    For the record, so far as I can tell, most (if not all) of the targets of the original lawsuit are being identified by long term usernames on various sites. I don't think anyone saying "I didn't post that, you can't prove that was my IP" is going to be a serious issue.

  48. Dan Weber says

    What is up with that lawsuit that Ken linked the PDF to? I saw it somewhere else, too: someone scrawled out a bunch of ASCII art by shaky hand.

  49. says

    @Jordan: Ok so being a a lawyer, riddle me this… You can't possibly think that every person that commits a computer crime is honest enough or naive enough to do it under their own identity. Many 'hackers' use other people's machines to launch attacks with. There are countless people that have used their neighbors or unsuspecting granny's wifi to illegally download material or make threats or troll boards. If you want to say in this very specific case it's bullshit – fine – I'll grant that but my point was broader in that IP Address doesn't equal identity, and it doesn't. "Wardriving" yields 860,000 hits on google, "Spoof IP Address" just short of 250,000. If you look at the article "The hacking of DB.singles.org" by yours truly, several of the victims had their identities compromised and just for lulz, the culprits pretended to be them 'admitting' to molesting kids, hosting gang-bangs, claiming to have just ate a bottle of downers in an attempt to commit suicide. Look at all the articles about Patent trolls suing hotels and public wifi vendors. If you want to talk about a very specific case, where the person essentially posts something as themselves or a well known alias or uses phrases they frequently uses it's one thing. But there are tools just like Maltego that are specifically geared to finding people pretending to be others. If it's such utter BS and implausible and never happens, kindly explain why Swatting works, which is just a much more serious and malevolent version of exactly what we're talking about. If police and swat teams can be dispatched prepared to use deadly force, why is it so out of the bounds of serious discussion to believe others would do it on boards or blogs. Let me ask you this – assume for a second that I personally have some gripe with you and am an unscrupulous prick. Assume that by one way or the other I get you to reply to an email or visit a website I own that's functioning as a honey pot. Would you want to be any non-trivial sum of money I couldn't get a run of the mill judge or jury to believe YOU sent me some threat or illegal content based on spoofed IP Address? I can tell you I could easily go to the police with a fairly convincing paper trail pointing to your ip address that would be more than enough to cause you a hell of a lot of trouble and cost you a lot of money proving your innocence. even if you did prove that it wasn't you – which again could cost you a considerable amount of money, it'd be next to impossible to prove I maliciously made the stuff up or intentionally fingered you – you could definitely prove you didn't do it (or at least convince a reasonable person you didn't) butI could throw up my hands and claim I was just tricked. If you actually lived anywhere near me or within driving distance (or if I was some psycho like Brett Kimberlin who went around spending money on such things) – I could easily track down a few posts or legal documents you've prepared, I could write you pretending to be a potential client, and head down to a proximate free wifi spot and go to town – that'd be plenty to cause you some serious headaches. I'll gladly eat my words if you can show me how/where I'm wrong, but I think you're taking a lot for granted here, especially if your adversary is technologically savvy and has even a fair degree of financial resources. Most people aren't that vindictive or psychotic, but it only takes getting on one person's radar and one can do enough damage to leave lingering questions about you in the minds of many, even if you're completely innocent. technological ignorance cuts both ways and unless you're talking about larger law enforcement agencies or more sophisticated ones, easily faked stuff like IPs can easily be screwed with. Finally, I realize I'm talking in generalities but I'm not doing it b/c of lack of supporting material – just don't want to bore everyone to death with technological trivia – if you want specifics – I'll gladly back up every sample I've referenced.

  50. says

    Actually JD – If I needed legal representation and had enough money to afford it, I can't think of anyone I'd rather have in my corner than Marc. Even if he called me a fucking idiot each conversation, It'd be worth it.

  51. barry says

    I don't know the numbers, but if an IP address can identify someone say 98% of the time,and if there's only a couple of defendants, it's very probably them.
    But if there's 2,000 defendants, there's probably about 40 of them that aren't them. And it's a whole other problem.

  52. GrimGhost says

    Never having set foot in Massachusetts, or ever having heard of this guy before yesterday, I have no skin in this game. But there are lots of websites where I comment regularly.

    So let me throw out this question: Suppose I get a letter like this for some other site: "I know you wrote comment '[quotation],' and if you take it down, I won't sue you." How should I respond?

    a) "Yeah, I wrote it, I'm not taking it down, go kiss a pony."

    b) "Maybe I wrote it, maybe I didn't. If you think I did, you'll have to prove it."

    c) [No reply]

    d) Other response

  53. Jon says

    IANAL but in Regards to Marc Randazza's comment, I think the "It wasn't me" who made the comment argument is valid assuming it ACTUALLY WASN'T YOU. For example, if they are suing you and you know that your wife is posting under your account, you could probably "WIN" the case by finking on your wife. LYING that it wasn't you, however, would be an easy argument to disassemble and given the low level of evidence required in a civil suit would be an easy benchmark to overcome.

  54. J. Doe #?? says

    THIS ISN'T ABOUT IP ADDRESSES. JonMon is naming us by livejournal handles, which are accounts that are tied to our emails and for many of us to credit cards. None of us ACTUAL potential defendants brought up IP addresses because THAT ISN'T THE ISSUE. None of you owe us legal advice, and you can say whatever the hell you want, but I personally would love if people didn't talk about us potential defendants using any claims about IP addresses.

    Actual request for advice: I got a letter. I already knew he knew who I was, because my username is very publicly me and because he knows me in real life, and we'd clashed before when I tried to warn people away from him. Should I do anything besides wait and watch?

  55. Davis Square resident says

    The Davis Square community is not only close-knit but very technologically savvy. Nobody is going to be making the "It wasn't me" defense.

  56. says

    Actually JD – If I needed legal representation and had enough money to afford it, I can't think of anyone I'd rather have in my corner than Marc. Even if he called me a fucking idiot each conversation, It'd be worth it.

    Classy and Articulate
    a play in one act
    by Jack B.

    John Q. Public, free speech defendant: Hello, kind sir, I am being sued for defamation and require legal representation.

    Billy Taintsnort, Attorney at Law:I've heard of you. Didn't Marc Randazza offer to represent you, pro bono?

    JQP: Yes, that's true, but I declined his offer of pro bono representation.

    BT: And why is that?

    JQP: He called me a fucking idiot in a blog's comment thread.

    BT: Let me get this straight. You turned down pro bono legal counsel from Marc Randazza because he called you a fucking idiot?

    JQP: That is correct.

    BT: You're a fucking idiot. Good day, sir.


  57. Charlotte says

    Oh well played, sir, well played.

    (I don't think any of the actual Does will use "it wasn't me".)

  58. luis says

    @marc and @jordan

    I´m from Mexico, here "prove it" is quite a good defense even in civil cases he who affirms has to prove what he affirms (there are exceptions of course)

    Anyway, I dont see Bill´s argument as the best one for the defense or even a good one; but i would not call it (or him) dumb as fuck.

    Why not explain why the argument is unsound instead of using expletives?

    I´ve trained lawyers when I worked in big law and trained lawyers when I was in a boutique firm, it made no difference; there is nothing to be gained from an argument when one of the parties just keep calling the other stupid; that is absolutely useless.

    Want to make any kind of contribution? explain why an argument is unsound, expose it´s flaws and give the other party the opportunity to learn.

    I dont care how good or famous a lawyer you (general "you" not directed specifically to marc or jordan) are showing some class will only make you a better person if not a better lawyer

  59. says

    @Luis. Marc is the man, I'm fine with it bc he's direct and honest. Yes I'm a Randazza fanboy but that aside…Assume your son downloaded something or your wife undid the router password bc she couldn't connect while.you were away. Assume in each case you weren't the culprit. Self-defense is a good one?the latter happened here a d we caught the neighbor using BitTorrent . It was only 3 days and my wife told.me.she disabled the password. I stopped.everything and we didn't get sued, but if we did, I was definitely telling them we did something I Nguyen stupid but would show it w want us.I got my neighbor.to.call charter and tell them.what he did just in case. Worked.out fine but could have been much worse. Sorry for bad typing btw, I suck typing on this keyboard

  60. Doe Defendant #?? says

    i am just extremely thankful this is being looked at by people besides everyone involved in the lawsuit. i will go to sleep a bit easier tonight. thank you all.

  61. luis says

    LOL i know hw is the man specially for this kind of suit; I read the legal satyricon too (came here for the oatmeal kept going because of the rest, one of those things was a link to marc´s blog)

    I dont imagine I´m in his league or even playing the same game; but in more than 15 years of law practice I´ve learned that it takes absolutely nothing from you to have some class; you can be blunt, you can be as direct and blunt as you want those and class do not exclude each other

    An I say that in the broader of ways; arc´s posts just brought it to mind

    There is a place and a time for everything even insults; I dont believe your post guaranteed any

  62. says

    As a potential Doe defendant, I want to thank the lawyers here for their wisdom, and I appreciate frankness. I want to say that user "Bill" is in no way representative of the group of defendants, which is a quite large and diverse lot. The vast majority of us are quite reasonable.

    Bill, you are not a lawyer, and the point of this "Popehat Signal" is to get help from actual lawyers. They have offered you advice, and you would be wise to take it and not bite the hand that feeds you. You are so far in the weeds of technology that you can't see you are essentially using the Internet equivalent of the real-life "it wasn't me, it was my evil long lost identical twin" defense.

    I think you may have watched one CSI episode too many. This is a civil case, and no judge or jury is going to buy that you left your router unsecured and someone then went war-driving by your house and magically cracked your HTTPS traffic to get your LiveJounral password only to go make mean posts about Jonmon containing your writing style and contextual information specific to you… and then you left them there without deleting them for three years.

    I would also suggest not becoming a lawyer. Your argument style is frankly nonsensical. The fact that there are 250,000 Google results for "spoof IP address" is totally irrelevant to anything ever. There are 686,000 Google results for "raise the dead" but I'm pretty fucking sure nobody is going around doing it.

    Also, please locate your Enter key when making a long post.

    There are plenty of valid defenses against this ridiculous lawsuit. So let's please drop the nonsense defense. Realize the reality you have in your head about the legal system is not going to match actual reality if you are not a lawyer.

  63. says

    Bill: here's the thing: in a case that's full of various sorts of defenses, legal and factual, you are hyping the defense that's the most tenuous, the most likely to keep you in the case through trial, the one that is the least likely to succeed at a motion to dismiss or motion for summary judgmetn, and the one that requires the most discovery (and the most invasive discovery).

    So, good luck with that.

  64. AlphaCentauri says

    People need to understand that civil suits are not criminal suits. The plaintiff does not need to prove beyond a reasonable doubt. I don't know the details in MA, but in PA, it's just the preponderance of evidence (i.e., who does the jury believe more) and it has to be 10 of 12 jurors in agreement. If you claim you didn't do it, but you aren't going to say who in your household might have done it, and you aren't going to provide some documentation that you discovered malware on your computer or that someone was using your wireless without authorization, who's the jury going to believe? You're going to look like you're guilty to them, and reasonable doubt doesn't come into play.

    But as was mentioned, in this particular case, it's about persistent pseudonyms and long term LJ accounts, so IPs aren't the issue.

    Unless you left your computer logged in. But if the post wasn't about you coming out as gay, no one's going to believe someone else started typing on your computer while you were logged in ;)

  65. AnotherDoeDefendantHere says

    I received my very own letter today. Like J. Doe #??, I am curious what my next step should be. I'm tempted to wait and see what happens, however if that is not prudent then I will find myself legal counsel.

  66. luis says

    @Ken: Thanks for exemplifiying what I was trying to convey

    @Doe A Deer
    Wow! you are relentless!

    these are some quotes from bill:

    …Also, Not being a lawyer I'm not an expert…
    …Yah, I doubt that's what happened here …
    … But I'm not a lawyer so I guess it must be or we wouldn't be having this discussion.
    … (and me trying to make any legal points with you is indeed dumb as fuck – i fully admit that ;-) )

    He never claimed to be a lawyer or even that his argument applies in this case! He just expresed a layman´s opinion that happen to be off the mark.

    To me he sounds quite reasonable, and probably could do a decent job as a lawyer with the proper training.

    Anyway, I hope this suit goes the way of the dinosaurs and the plaintiff gets a nice judgement condemning him for attorney fees.

  67. says

    @DoeADoer – I'm not freaking involved in this at all and wasn't offering advice in the least. I was curious about a general principle and it's clear that it's not a solidly foundational argument. I wasn't trying to pass myself off as anything or in any way advocating anyone use it. I'm not in legal trouble or have iron in the fire. I hear a lot of legal stupidity and over the years have had some people come to me for help that were scared shitless b/c they had some really stupid allegations made about them. I didn't watch one too many CSI episodes and didn't claim that was the case. I wasn't using the google posts as any sort of thesis footnote,only to make the point that the shit does happen. As ken points out in the next point, there are good legal defenses and this is a bad one – fair enough. For someone with such excellent reading comprehension and mad legal skills, you may have missed the whole part about me not asking for legal advice on this matter b/c I'm not involved. People can and do frequently use other people's machines and IP addresses to do bad things and as someone that does in fact know the subject area, I get a little sick of legal know it alls (most of which arent' lawyers, usually LEO's or wannabe lawyers ) acting like an IP Address is the be all and end all. I raised it. I should have been more clear in this case it was stupid, Randazza, whos's someone I look up to quite a bit was rather direct about it and having followed him for a while I know he's quite technologically savvy and was curious what he had to say. Is it a weak bordering on absurd defense in this case? Seems so. Is it a weak and idiotic defense in all cases, hell no, particularly when if fact you didn't do it. There's a quick lube near my house that's no longer in business for many reasons, but while they were got in a lot of trouble b/c they left their free unsecured wifi on all the time and several people came over and ran bittorrent and DDOS attacks off of it. It's not someone watching too many CSI episodes that caused them all that grief. And even though I'm an author, I write computer books and off the hand posts late at night aren't my best work.

  68. SPQR says

    "Common law copyright" … really? Asserting something that hasn't existed in the US for nearly four decades … that's hilariously dumb.

  69. says

    @Ken – thanks for the response. In fact, that's exactly the sort of thing i was looking for. The fact it brings on more discovery not less is a very salient point, one that a non-laywer might not immediately surmise. I still maintain that if it's a criminal matter, and or one where you really didn't do it – I would think its a valid response. If you're using it to bluff or just be a dick b/c it makes more work for the other person, it'd be stupid. But turned around if someone did pull something like this – say you never even visited LiveJournal – wouldn't it in that case make some possible sense to bring up? Seems to me, again as a non-lawyer, if someone steals my license plate, the fact that the car that the crime was committed in was a Black Taurus and not a white infinity would help bolster my case it wasn't me. If it was a white infinity, same year same model , it woudl be all the more dubious, but if it wasn't me, that seems like it would at least fit in somewhere. I wasn't offering legal advice and clearly stepped in the wrong puddle, so I'll bow out gracefully. Hopefully next time I get in a dialog with both you and Randazza, it'll end with both of you falling back in amazement at my technological brilliance – looks like I have some studying to do. Just when I started really liking you lawyers…. ;-)

  70. Jane Doe #Kajillion says

    So, Bill, you're not involved in this. Those of us in the comments who ARE involved (or who at least have identified ourselves as such) don't seem to think your suggestion is particularly relevant to this specific matter. Could we please not turn the comments here into Bill's "Shaggy Defense" Theory: A Symposium? Because, with all respect, this post is about a real thing that is currently happening for real people.

    And Marc, I for one would love your help. Can't speak for my Doe brothers and sisters, of course.

  71. Jane Doe #Kajillion says

    And thanks greatly for your help, Ken. Just by publicizing this you make a difference.

  72. says

    @Doe – one last question. Since you're familiar with the law. There was a comment on a blog that i was accused of writing. It wasn't me. The person (whos' a federal law enforcement agent I'm involved in a family court dispute with) insisted it was me b/c it said my name at the top – along with a link to my website that was spelled wrong and an email address that wasn't mine. She went to the police and insisted that it was me. The got a subpoena for the IP Address and it was someone in this same town, a private residence of someone I didn't know and never had contact with. She insisted it was me anyway. I was giving a speech in front of 80 people for a 2 hour window the comment was posted and it contained information i couldn't possibly know. I said it wasn't me. The IP Address came back to someone else. Would you concur then that as a lawyer, that's enough to essentially prove I didn't do it? What I'm asking is do you think the IP = Identity cuts both ways things or only that it does prove it's you?

  73. Jane Doe #3.14159 says

    This whole argument about IP addresses and the law is fascinating, I'm sure, but it really has no bearing on the case for most of us. Our names and addresses were obtained through other means — hell, most of us have a fairly public presence on the Web at this point — and I don't believe anyone who's actually stepped forward is trying to argue it wasn't them. I'm watching this thread for advice/updates on this case and the IP address stuff is coming across as noise.

    Regarding the 'settlement offer' letters, I am not a lawyer, but the common sense advice I've received is simply not to reply to them at all. At the very least, consult your own lawyer first. I'm waiting to see what response Ron is able to muster, and what part I'll have to play in the proceedings, and until then I don't have so much as a word for the plaintiff.

  74. says

    Hi, folks. I'm one of the two named defendants here. Could we please drop the "it wasn't me, prove that it was" defense from this discussion entirely? Because I stand by every word that I posted under my name, on LiveJournal and on Wicked Local Somerville.

    Nobody I know around here is claiming that any statement was falsely attributed to him or her. We are claiming that the statements are not libelous.

  75. thespian says

    Charlotte said: (I don't think any of the actual Does will use "it wasn't me".)

    Just for the record (not a Doe, but very close to several of them), I can tell you that several of them are, "Damn straight, I said it, bring it the hell on." Several of them feel badly for Ron, but would be happy to get into a civil case and get to say, on the record, why they came to the conclusions they did.

  76. says

    @Bill: One point would be that that quick lube place is the antithesis of most residential Internet accounts. It was a business, routinely used by dozens of different people every day. A residential account's IP address, OTOH, is generally only used regularly by a few people, all of whom tend to be well-known to the account holder. It's your house, you don't generally have a lot of complete strangers over on a regular basis using your LAN. It's going to be people who live there, whether they be family or roommates, or friends you know well enough to have them over on a regular basis. So if your IP address turns up, if it wasn't actually you then odds on you know the person it was and you see them on a daily basis. You may not know exactly which one, but you can probably narrow it down to a list you can count without running out of fingers. And if the plaintiff has an LJ username to go along with your IP address, you'll probably recognize the username. The above isn't universally true, but it's common enough to get a judge to sign off on asking you some questions about the matter.

    Also, spoofing IP addresses? Doing it's easy. Doing it successfully, not so much. TCP's a two-way data stream, and when you spoof the source IP the other stream will go back to that spoofed address which won't be your machine. That machine won't have a clue what the server's talking about, and it'll generate an appropriate error packet which when it gets to the server will make the server kill the connection. That'll all happen on the initial handshake packets, BTW, the connection'll be dead before you actually get to send any data. So spoofing generally has to be done from a network adjacent to the target, because along with spoofing the source you have to intercept the return packets going to the spoofed address and you have to block the error packets from the spoofed address. Doing it from a machine several networks away… not technically possible without you having compromised some major routing infrastructure allowing you to modify the routing tables at major ISPs and backbone providers. And if you can do that, you're not using that power to post nasty comments about someone on a blog. "Spoofing" by using a network like TOR, that's easy, but it's not spoofing and the plaintiff normally wouldn't get your IP address without you knowing you were involved. If it were the result of malware, it'd probably turn up in the virus/malware scans you did and you wouldn't need something as flimsy as "You can't prove it was really me at the keyboard.".

  77. Why not help? says

    Let me get this straight.

    1. We have a likely absurd lawsuit here.
    2. Some random commenter who is completely uninvolved suggested a defense that nobody who is actually involved has any interest in.
    3. Two attorneys (Marc Randazza and Jordan Rushie) have said that if the victims here have poor legal counsel (such that they use that defense which nobody has said they'd use), then those attorneys would litigate for free for the plaintiff.
    4. The plaintiff meanwhile has sent what appear to be intimidating letters of dubious truth value to individuals not named in the suit, contacted people by phone, and even harassed one person's mother.

    Tell me, Messrs Randazza and Rushie, just how much more poorly does the plaintiff have to behave before you offer to help the unfortunate *defendants* for free? As far as I know, nobody has contacted him yet.

  78. James Pollock says

    Todd, I don't think you have it quite right. First off, you seem to be using the more aggressive meaning of "spoofing", which is "make my traffic look like it's coming from a specific origin", as opposed to the far easier to accomplish "I don't care what address shows up in the transaction logs as long as it isn't mine."
    There are a number of ways to accomplish this second meaning of "spoofing" that don't require compromising the routing of the various ISPs, and most involve compromising only a single outside computer to function as a relay. Granted, you probably aren't going to do this to post inflammatory messages on a blog, but there are a couple of other things you might do that would have a lawyer trying to identify you based only on the IP address that showed up on a server's log.
    That's why *I'm" interested in why Mr. Rendazza labeled this defense stupid… did he mean in this case or type of case, or generally? To what extent should a person who didn't do "it" (whatever "it" is) sit back and let the plaintiff try to prove it, and to what extent should active opposition be raised? (I'm assuming that the answer is always "it depends") but then again, I comment using my real name so finding me is not that hard… but I DO run an open 802.11 hotspot, and I know other people who do, as well.
    So, I humbly beg the indulgence of those of you who are reading and posting looking for real advice for your real problem, but I'd like to hear from the source whether *I* need a new strategy…

  79. Doe Defendant Srakkt says

    Hey folks – Thanks very much for sending up the signal.

    Non-attorney uninvolved commenters, who are offering "sage legal advice?" please do the needful and stop lowering the signal-to-noise ratio.

    Ron needs help; what can we do to actually assist him (and the rest of us) rather than armchair'ing about what may or may not constitute sound defense?

    In other words, let's please stay on target, here.

  80. says

    While I am not always as elegant as @MarcRandazza, let us put it in context. Right now, only John Does (save 2 people) are being sued. While real IP address owners and LiveJournal account holders may be able to move to quash subpoenae (as done in BitTorrent litigation) and use the "telephone number owner =! person who made the call" argument against overbroad discovery, we are presently at the pleading stage. Doe defendants haven't been served. If they are named and served, certainly in answering any complaint it is proper to answer "deny" if you did not write something attributed to you. But that, as @Ken noted, is likely going to ultimately be a jury question. "Prove it" is the most expensive form of defense, especially if you really did write it. It is like being sued for rear-ending someone at a stoplight and arguing "well, the license plate number and the drivers license number don't really prove it was me–my car and license could have been stolen". You are much better off, at that point, arguing damages than liability.
    In the present case, to challenge a "someone said something mean about me on the internet" lawsuit, as in Rakofsky vs the Internet, there are much stronger legal arguments, including Sec. 230 of the CDA, lack of special damages, fair use (on the copyright issue) and/or statements of opinion/hyperbole. Legal arguments end cases faster than factual arguments, which is in the interest of both the defendant and pro bono defense.
    If you want to make the "prove it was me" argument, and you actually were the speaker, be prepared to write a blank check to counsel.

  81. doe666 says

    Here's a question regarding those not named in the documents with which Ron Newman was served, who received letters:

    What burden of proof does the plaintiff have to show that a given LJ username identifies a particular person?

    I'm not doubting the plaintiff has done a ton of legwork, but for persons whose only use of their legal name in regards to LJ is via billing records, what does the plaintiff need to show to make the chain, and what legals does the plaintiff have of getting that information.

    Additionally, given that:

    * some of the Does have not been legally served, yet received offers of settlement
    * some of the Does have ALREADY removed any comments they made
    * allegedly had done so BEFORE this suit ever surfaced
    * the settlement offer states that refusal to do so could result becoming a named party to the lawsuit
    * the settlement offer can't be used as evidence in trial, due to ER 408

    Can the threat portion of the settlement letter be introduced, based on it being a fishing expedition, in that people who no longer have comments up have been threatened with being formally added to the suit?

  82. says

    I may be out of line here, but for those of you who have newly come to this site because you are a Doe in this case, this isn't just a "free legal advice" site.

    If you read other posts' comment threads, you will see that it's a place where a lot of discourse goes on about general legal issues as well as the specificities of the post at hand. It seems rather rude, in my opinion, to jump in and tell the long-time commentors not to talk about anything else but how to help you. That's what you pay a lawyer for.

  83. says

    @Doe666 The burden of proof on all elements is "preponderance of the evidence"; colloquially, >50%. However, except for technologically inept people being accused of using Bittorrent and VLC player to download and view chunks of movies, as noted above "it wasn't me" is not a strong defense.
    Settlement communications are generally inadmissible. See http://www.mass.gov/courts/sjc/guide-to-evidence/408.htm . There are exceptions, but threats of suit are not relevant. A plaintiff has the right to demand a settlement in exchange for a release of claims.
    Simply because a comment was deleted does not mean harm was not done, though it may be minimized.
    If you are one of the Doe defendants, you should contact counsel.

  84. GotLetter says

    Thanks @Jay. Can you clarify your last sentence? Is it wise to seek counsel for just having received a letter, or is that a waste of money? Does it make more sense to seek counsel if/when you are actually named in a suit?

  85. AnotherLetter says

    @Jay: Are you saying that intimidation via threat of lawsuit is legal? I received a letter asking me to remove comments from a post where I never commented. Why can he add people to the suit well after the SoL is passed when nothing has changed in the interim? There are no handles he is aware of now that he wasn't before, yet he chose to only list a few in the suit and is now threatening (dozens of?) people who were not listed.

    @Under the Radar: My mistake. My impression was that these posts were to help those who need it obtain counsel to defend against these sort of frivolous lawsuits.

  86. RDD Guy says

    When I have sought legal counsel, one of the things that I fork over my hard-earned gelt is for him (or her) to tell me, when I am being a fucking idiot, that I'm being a fucking idiot. If Marc Randazza calls someone an idiot, you can bet dollars-to-donuts they're being idiots.

  87. says

    @GotLetter If you received a letter and can pick out which "Doe" you might be, it is best to saddle up now. I am looking to see to what extent, if any, my firm might be able to assist named or unnamed defendants.

    @AnotherLetter Baseless threats may constitute extortion and perhaps the police should be involved. But strong-arm negotiation, where a good faith claim can be brought, is generally permissible. I'd rather not get into the facets of Mass.R.Civ.P. 15 (amending a complaint) and the intersection with the statute of limitations, however the answer is "maybe, maybe not, it depends on the particular circumstances".

  88. Nicholas Weaver says

    IANAL, but I AM a computer security expert.

    The "it wasn't me" argument is also much much harder for attributed comments (e.g. livejournal postings, email messages) where an authentication process occurs.

    Yes, frames do happen (just as the Elvis impersonator who was incompetently framed by a Wayne Newton impersonator [1]), but when the framer has to either get your password or control over your computer, to do a specific post which triggers a libel lawsuit three years later, attempting to use this defense rather than straightforward defenses like: "Plaintiff has failed to claim that the statements attributed to me was defamatory" boggles the mind.

    [1] Another aleged frame story, equally amusing: http://www.bradenton.com/2013/04/30/4505352/accused-florida-cop-my-girlfriends.html "Accused Florida cop: My girlfriend's pimp set me up"

  89. GotLetter says

    Thanks @Jay. I got a letter with a link to my one comment, which I don't feel is defamatory. In the court documents that have been posted so far I don't see my comment or my user name listed. Thank you for all your assistance. I appreciate it.

  90. AnotherLetter says

    @Jay, thanks for responding. I know Mr. Newman is extremely stressed over how to obtain (and especially pay for) counsel and all of us in the community (named, lettered, or not) are concerned.

    Is there anything we need to know about setting up a legal defense fund? Would any one of the "give me money" sites be sufficient?

  91. says

    @GotLetter To be clear, if you received a letter, it couldn't hurt to talk to a lawyer. I did not mean to intimate that you are 100% in the clear. There are also steps that can be taken if you are not yet identified. They list Does 1-100; I have not counted, but I do not see that they've filled up their 100, so they may try to amend.

  92. AnotherLetter says

    @Jay, It could hurt in that it could cost a lot of money. I do feel a lot of the posts here are trivializing the cost issue to the defendants. Most of don't have counsel on retainer nor do we have a clue even WHO to talk to. How many thousands need to be spent to defend against a frivolous suit? How many different attorneys need to be paid to all say the same thing?

  93. GotLetter says

    @Jay. Thanks again, no -in no way did I think I'm in the clear. I am currently getting a few referals from some people I know. Thank you.

  94. doe666 says

    All: check your renter's or homeowner's insurance, if you have it. It's possible that the personal injury liability coverage may cover defense against libel/slander, to include legal representation.

  95. En Passant says

    Why not help? wrote May 6, 2013 @12:58 am:

    Let me get this straight.

    3. Two attorneys (Marc Randazza and Jordan Rushie) have said that if the victims here have poor legal counsel (such that they use that defense which nobody has said they'd use), then those attorneys would litigate for free for the plaintiff.

    Tell me, Messrs Randazza and Rushie, just how much more poorly does the plaintiff have to behave before you offer to help the unfortunate *defendants* for free? As far as I know, nobody has contacted him yet.

    Your inferences based upon enumerated point #3 indicate that your snarcasm gauge is miscalibrated. This often results from haste-induced misperception of context. It is known to cause cascading inferential errors resulting in misapplication of dudgeon at power settings that can adversely affect the operator's credibility.

    Please read the OP and comment thread again slowly and carefully, and adjust inferences accordingly.

  96. says

    I knew JonMon at MIT. He gave off creep vibes then. Judging from what's been written about him, it appears that things he's done since then proved he's a creep even before this ridiculous lawsuit, so now he's confirmed it at least twice.

    I've also known Ron Newman, one of the targets of the lawsuit, online for many years, and I know that he's an upstander and a good guy. If he doesn't get pro bono help and ends up paying expenses out-of-pocket to defend against this ridiculous lawsuit, I'll be contributing to his legal defense fund.

    And I just tweeted JonMon and told him just what I think of him. Go ahead, Jon, sue me. I double dare you.

    I've been threatened with lawsuits by bumptious lawyers several times for things I've posted on my blog. I even paid a lawyer to send a response to one of them, because the lawyer involved seemed serious enough that it was worth $150 to send the message that I wasn't stupid enough to represent myself if he actually followed through on his threat to sue. None of the baseless threats against me ever made it to the point of a lawsuit, so Ron and the other defendants are feeling the pain a bit more, since they have to actually file a response, which can cost real money if lawyers aren't involved in writing it.

    If pro bono assistance is not forthcoming, then I am of two minds about whether Ron should scrape of the money to pay out-of-pocket for a lawyer to respond to the complaint. On the one hand, since JonMon likely knows his lawsuit is without merit and he won't prevail at trial, a well-written response from an expert in the field is likely to scare the shit out of him and make the lawsuit go away quickly. On the other hand, going to trial will cost JonMon money too, so it's possible that a brief, "The statements in question are clearly opinion or true statements of act and as such are not actionable, this is a frivolous lawsuit, we'll see you at trial," may be enough to make him go away.

    Better safe than sorry, I suppose, but I'd hate to see Ron et al have to spend thousands of dollars to defend themselves against this creep.

  97. says

    @James: Like I said, if someone had compromised your computer, you'd be using the "I found malware on my system that was doing this, it was whoever planted the malware and I'll be happy to assist in tracking them down." defense instead. And they don't have to prove it was you with certainty. They don't even have to prove it beyond a reasonable doubt. This is a civil case, preponderance of evidence I think will serve. So if they've got an IP address and the methods of recording it are solid, they're going to have enough to get the owner of that address identified. And once identified, they've got enough circumstantial evidence to make a case unless you come up with some better defense than just "You can't prove it.". For instance, if you run an open unsecured hotspot and it wasn't your LJ username being used you'd bring up that. And they'd still probably have enough to get your computer analyzed to confirm whether you were telling the truth about it not being your username.

    Frankly I've always thought that "an IP address isn't a person, therefore having an IP address doesn't give you grounds to find out the person who owns it" was anywhere from tenuous to specious. The description of a car and it's license plate number isn't the person who robbed the store, but having those and confirmation from the store owner that that was the car he saw the robber drive off in gives them enough to find out who owns that car and come around asking a few questions about where the owner was that night and probably to have him in a line-up for identification. And unless the store owner positively says it wasn't the car owner who robbed him, if the car owner has a better defense than just "You can't prove it was me." he'd be well-advised to start using it. The cops do have a chain of evidence that leads to him, and how strong or weak a chain is doesn't matter a lot if you don't pull on it and try to break it.

  98. andanotherone says

    I got a letter. At work even. Nervous and not sure what to do. It was years ago that i would have even thought of JonMon. I don't even live in MA, haven't for 7-8 years .

  99. Dan Weber says

    On the other hand, going to trial will cost JonMon money too

    I don't think a war of attrition will work. Nerds in Boston have high wages and low unemployment, and he's had some high-profile successes. (Which makes his "lost wages" spiel that much more annoying. He's trying to be both a starving artist and a rich entrepenuer simultaneously. Which is it?)

    Looking over the lawsuit more soberly today, I think he might have claims on a few things, and deserves to have them removed from the Internet, maybe even an apology from the real person behind them. But those claims are buried in a lot of other stuff.

  100. James Pollock says

    Todd, my internal network has at any time between six and twenty individual machines, not all of which are mine or even administered by me, and some of them come in to the shop with malware infections, known and unknown. If a system has a malware infection, A) I don't stop to study its traffic to see what it's up to, and B) I'm not going to remember the details two years, 364 days later as the statute of limitations runs out. So the "It was totally malware, and I'm going to point you to the real bad guy" isn't really a defense I'd be prepared to mount, even though it's true… and I doubt very highly that much of anyone would be able to. Lots of times, active malware infections go unnoticed, and other times they get cleaned by accident (the user decides the computer is too old/too slow, and switches to a different one… then they sell or give away the computer and the new owner starts by wiping out and re-installing the OS.
    In short, it shouldn't be up to the defendant to prove that a malware/guest/freeloader is the true source of the objectionable packets, it should be up to plaintiff to prove that it wasn't; it was defendant who is the source. Obviously, other evidence is or can be relevant, but a plaintiff who demands that I help him rather than asks isn't likely to like the answer.

  101. James Pollock says

    P.S. the car-to-computer-access analogy isn't very good, and here's why: For someone to use my car to rob a store, they've first got to deprive me of possession of it, and I'm likely to notice that. I may not realize what malware is causing my computer to do, even as it happens. Second, my car can't be in multiple places at once, but my IP address can support multiple devices. Third, my car has an authorization process (only someone with a key can start it) and many Internet interactions do not. Fourth, people tend to be fairly picky about who's allowed to use their car; not so much with an open 802.11 AP.
    So, in this analogy, if all the evidence available is a surveillance video that shows that it IS my car, but you can't tell anything at all about who's in it (you can't even tell how many people, much less identify anyone), you're correct that being able to read the license plate and follow the records to me, the registered owner, would be entirely rational and supported by evidence.
    If, however, I can make a straight-faced response that "Oh, I let anyone use that car who wants to. I don't keep records about who used it or when. Sorry"… is that the end of this line of inquiry, or should you be allowed to argue "well, you paid for the registration, and can't prove someone else drove the car, so you did it"? Or should you have to find some evidence that connects ME to the crime, and not just my car? (Obviously, if I DID do it, it's far more likely that there exists incriminating evidence for you to find…that's not the question.) And it's likely that you, as plaintiff, can get a court to give you possession of the car for a while for a forensic examination, since I'm not disputing that the car was in fact used in the robbery… but the court should balance your interest in finding the robber against my interest in using my car and my privacy interests in deciding when and how long to give you possession for analysis (assuming you were prompt in asking for access… if you waited until the end of the statute of limitations, the forensic value of an examination is probably quite close to nil.)

  102. says

    I got a letter. At work even.

    Oh, wow. Contacting you at work elevates the douchebaggery to an even greater degree.

    Back in the mid-90's, when Usenet was a much bigger deal and I was ridiculously active on it and relatively prominent in some of its subcultures, one of the infamous, well-known KotM's tried to get me fired for posting stuff he didn't like. He called corporate HQ and made all sorts of asinine legal threats, and he was convincing enough that he actually got to waste the time of some Real People in the legal department.

    He didn't succeed at getting me fired, but as I recall, he did manage to tarnish my image within the company and convince my employer to make me shut down the Usenet server on the corporate network and stop posting on Usenet using my work email address, because they just didn't want to deal.

    It is just so incredibly juvenile to involve people's employers in any way in a dispute that has nothing to do with their employment. But then, as I recall, one of the things that made JonMon give off creep vibes was that he wasn't particularly good at acting like a grown-up.

  103. says

    @Jonathan Kamens

    It is just so incredibly juvenile to involve people's employers in any way in a dispute that has nothing to do with their employment.

    I agree.

  104. Basil Forthrightly says

    Poor Clark, he's so oppressed. Such a shame when he insinuates 1.5 billion people worship Satan and someon gets a little pissy about it.

  105. says

    @Basil Forthrightly

    Poor Clark, he's so oppressed. Such a shame when he insinuates 1.5 billion people worship Satan and someon gets a little pissy about it.

    You misunderstand me.

    I think it's entirely reasonable that people get pissy about strange opinions. I entirely agree with Ken when he mocks people want to dish up tripe but don't like negative yelp reviews.

    I have never complained when people subject my opinions to rough debate and rebuttal.

    My point is:

    * fighting speech with more speech is wonderful
    * shaming people into not voicing opinions by threatening their jobs is somewhat less wonderful because

    (a) it doesn't change anyone's mind, it just silences them
    (b) it deprives the majority of both the strange idea and the refutation
    (c) it has the stink of totalitarianism about it

  106. says


    Really, everyone's just jealous of @Clark's superior comment formatting skillz.

    I just want to say one word to you. Just one word.

    Yes, sir.

    Are you listening?

    Yes, I am.


  107. Basil Forthrightly says


    The original comment by Adrienne in the gay NBA player thread was:

    "I would not oppose your being fired from your day job (whatever your day job is) because of it. Which is to say, I think what you said is detestable and that you should face social consequences for it (rather than legal ones; legal consequences would be in the category definitely not okay)."

    She made no mention of active action in response; you introduced that in your responses, implicitly tying it to government action (and 1984) by using the terms "hate speech" and "thoughtcrime".

    Then you introduce a whole new post and thread about the topic. Then at the first opportunity in a really unrelated thread, a day or two later, you bring it up again. I was trying to gently suggest that you're being a drama queen, without invoking the wrath of the banhammer.

    I've also been trying to avoid substantive comment on the topic, but, well, I've been drawn in; I'll comment substantively later in the other thread if I'm not banned by then.

  108. says

    Basil Forthrightly:


    Then you introduce a whole new post and thread about the topic. Then at the first opportunity in a really unrelated thread, a day or two later, you bring it up again.

    I'm sorry I'm participating in my blog in a way that is not pleasing to you.

    I'll comment substantively later in the other thread if I'm not banned by then.

    I don't want you banned; I want to hear your objections.

    If anyone proposes banning you in the author forums, I will argue against it.

  109. says

    @James: If you say "Oh, I let anyone use my car.", then no as the owner you probably can't be held responsible for what others did. But you can't just say "The car isn't me." as if it were some kind of "get out of jail free" card when it comes to the investigation. It may not have been you that did it, but your car was involved and that's sufficient grounds to question you, get warrants to search your property, and bring your car in for forensics to see if they can find evidence that'd point to the person who did do it. And trying to claim that because they don't have that evidence now they don't have grounds to go looking for it is probably not a winning argument. They may not have enough to convict you at the moment, but they sure have enough to consider you a suspect and go looking for evidence.

    And if, as in your case, you've got a perfectly legitimate reason for lots of random computers to be on your network with no detailed logs being kept (you aren't obliged to keep them, IIRC), you'd be really dumb to rely on just "You can't prove it was me.". You'd raise the matter of why it could've been any of those random computers and why you aren't going to have any useful records of activity. That still won't get you out of having your systems searched to confirm your story, though.

    Even in a criminal case, unless the prosecution's case is incredibly tenuous and implausible you're going to need to do something to raise reasonable doubt. In fact, even if the prosecution's case is incredibly tenuous and implausible you're going to want to highlight that to raise doubt, not just sit behind "You can't prove it." and hope the jury recognizes the implausibility.

  110. says

    @Jonathan Kamens,

    Back in the mid-to-late 90s, I used to spend a lot of time (translation: too much time) on Usenet, namely alt.fan.karl-malden.nose. The main people I wound up pissing off were various racists. In addition to maps of my home address being posted to racist newsgroups, a few of them contacted my employer with details about my Usenet posting history.

    All that personal information, and they didn't figure out that I was self-employed. It was fun typing the email responses.

    Damn, I miss Usenet.

  111. Allen says

    Hasn't at least one Federal judge ruled that the IP is insufficient for identifying the individual in the Prenda Law saga? Those were also civil cases, so I guess I don't understand why that might not be relevant.

  112. says

    I was trying to gently suggest that you're being a drama queen, without invoking the wrath of the banhammer.

    I've also been trying to avoid substantive comment on the topic, but, well, I've been drawn in; I'll comment substantively later in the other thread if I'm not banned by then.

    Secretary: What are you laughing at?

    Me: It would be really tedious to explain.

  113. says

    Hasn't at least one Federal judge ruled that the IP is insufficient for identifying the individual in the Prenda Law saga? Those were also civil cases, so I guess I don't understand why that might not be relevant.

    There's no authentication when you download a file via BitTorrent. BT download activities aren't linked in any way — except perhaps on the computer to which the download was made — to previous downloads by the same user. BT downloads from different users on the same network will look pretty much exactly the same. Furthermore, given the nature of the files Prenda Law was suing about — porn videos — it is very possible that they were being downloaded by someone other than the named defendants. 35% of teenage boys have viewed porn on at least ten occasions.

    In contrast, JonMon's lawsuit doesn't use IP address as a primary identifier. Rather, it uses LiveJournal usernames, which are persistent and authenticated. As someone else explained in an earlier comment, the odds are extremely low of someone successfully convincing a jury, "Yeah, that's my LiveJournal account from which that comment was posted, but someone stole my login credentials to post it, it wasn't me, and I left it up on my account for three years, and once it was brought to my attention I decided to go ahead and defend myself in a lawsuit rather than simply apologizing for the security breach and deleting it."

  114. Nicholas Weaver says

    Allen: Prenda is so incredibly sloppy that their failure to be able to prosecute such cases shouldn't discount the forensic ability to use IP addresses.

  115. says

    I do agree with Basil here, it is kind of like, oh, this just took a left turn because somebody wants to re-fight a fight happening elsewhere. Sure, not my blog, but it feels weird to watch, seems ill-fitting, and it does feel like somebody's just being grumpy.

  116. GotLetter says

    Nice, I just got a copy of the letter mailed to my office. I'm glad I open my own mail. What a fishing expedition. GGGGRRRR

  117. says

    GotLetter, I would love to see the letter, from you or anyone else, if someone would send it to me at Ken at popehat etc. I will not publish it without permission.

  118. says

    At the risk of asking a question which may seem stupid to the real live lawyers who read and comment here, couldn't the act of sending a letter of the form, "Undo or I will sue you," where is perfectly legal and the letter author has no legitimate reason to demand that it be undone, be legally actionable extortion?

    Would the fact that such a letter is sent to many people make it more likely that the legal system might perceive all of them as extortion?

  119. says

    Oh, great, that's supposed to say "Undo <x>" and "where <x> is perfectly legal" but I actually typed < and > rather than &lt; and &gt; so they were interpreted as HTML tags and hence are invisible.

  120. Nicholas Weaver says

    Jonathan: Yeah, you can get into trouble. Not necessarily extortion, but just ask Charles Carreon how sending threatening letters worked out for him…

  121. Nicholas Weaver says

    Ken, if you get multiple letters, look to see if there are differences beyond addresses: there is the possibility of a steganographic channel embedded in widely broadcast threat letters like these.

  122. Basil Forthrightly says

    Yep, human.

    Oh well, maybe I'll be less of a drama queen in the next life. (I like the privilege of commenting here and do not mistake it for a right; speech is a form of action and actions have consequences and I try to consider the negatives and the positives when I act.)

  123. another Jane Doe says

    If you get multiple letters, look to see if there are differences beyond addresses: there is the possibility of a steganographic channel embedded in widely broadcast threat letters like these.

    Mine had an odd grammatical error in one sentence – I was wondering if that was steganography! I'll send you a scan of mine when I get home this evening.

  124. andanotherone says

    The letter isn't certified or anything, and has no attorney listed on it. I had to search for this lawsuit (OK, not hard, thank you LJ, but still).

    If i delete, there is no promise i won't be sued other than this sketchy letter. I have no objection to deleting, because it's the internet and thus there will always be some proof of this person being a creeper. Do i call the lawyer? Have my lawyer call the lawyer? I just don't want to be involved. This guy isn't worth my time.

  125. wgering says

    @Nicholas Weaver: you always send me on the most entertaining and informative Google/Wikipedia binges with phrases like "steganographic channel."

  126. says

    @Al I.:

    I do agree with Basil here, it is kind of like, oh, this just took a left turn because somebody wants to re-fight a fight happening elsewhere.

    It was intended as a bit of humorous cross-polination, but the measure of humor is if the audience chuckles.

    It didn't.

    T-shirt needed:

    I did it for the lulz

    on the back:


  127. says


    @Nicholas Weaver: you always send me on the most entertaining and informative Google/Wikipedia binges with phrases like "steganographic channel."

    You didn't already know that?

    Is this why no-one is laughing at all the jokes I tell encoded
    in html space-vs-tab characters in my posts?

    Jeez – you didn't think that those long run-on "political" posts were real did you? I just needed the length to mask all of the bits of the actual messages!

  128. Mike says

    eh, have to wonder a bit about some parts of this pope signal. Scanning through the complaint (and with no prior real background knowledge on this guy), some of the alleged statements could in fact be defamatory: e.g., that Monsarrat serves alcohol and marijuana to minors; that Monsarrat lures young women to parties and seduces them; that Monsarrat is a child molester; that Monsarrat is a sexual predator; that Monsarrat is a statutory rapist; that Monsarrat was sent a cease-and-desist letter after harassing a Harvard student; that Monsarrat lied to the cops; that Monsarrat violated restraining orders; that Monsarrat broke into computer accounts.

    If all or portions of the above is not true (and as Ken admits, we just don't know), then maybe Monsarrat has a legit legal beef. And if so, I think it's pretty understandable that he would be pretty upset about some of the other, protected speech. Who wouldn't?

    But here's the thing: you're putting all of the Streisand punishment for not effectively weeding out the actionable from the protected on the client, Monsarrat. The complaint identifies two lawyers representing Monsarrat. Those guys have a responsibility to take Monsarrat's beef and shape it into a supportable legal theory and complaint. Yet you don't identify them at all in the post.

    Now there's just as good a chance that Monsarrat really is deserving of ridicule (and he doesn't help his cause by waiting so long to file–but we also don't know the story behind that). And perhaps you know facts which you didn't include but which inform your opinion and decision to focus on the narrative of Monsarrat as the bully.

    But if you admit that you just don't know whether some defamatory things were actually said about Monsarrat, then I find the focus of the post odd.

  129. says

    @Mike: I was pretty careful to point out that there were some allegations targeted which could, if untrue, be defamation. But before putting all responsibility on the lawyers — and certainly they deserve some — bear in mind that (1) he waited until the ragged edge of a three-year statute of limitations, suggesting a harassing motive, and (2) he's writing threatening letters to Does in his own name.

  130. Mike says

    @Ken, I agree you mentioned briefly that some of the statements could be defamatory. And I wasn't asking you to put all of the responsibility on the lawyers, but rather any at all. They go unmentioned in your post. As for the SOL, didn't the lawyers agree to file the case knowing that it was just before the bell?

  131. says

    @Mike: I have a "lawyers and clients share responsibility" paragraph that I often, but not always, put in these posts; I don't repeat it every time because I think it's fairly self-evident. As to the SOL: on that, the client usually more responsible than the lawyer, because the client is usually the source of the delay.

  132. Lucky Letter Recipient says

    It may be that someone defamed him, but I received a letter from Mr. Monserrat himself threatening to add me as a Doe defendant for a post I made that was absolutely not an accusation of anything and was entirely factual and fairly dry. I didn't even malign him or make negative judgments about him. I don't want to post exactly what I wrote here because it would allow him to identify me and threaten me further. I don't even feel comfortable using a real e-mail address here.

    I am very uncomfortable knowing that he is showing up to people's houses. I have no idea what this guy is capable of but these letters are NOT from his lawyers, they are from him, and they are unsettling in how fantastical they are. I want this guy kept away from me and my family, I didn't say anything about him to deserve this. I think he just wants every single post about anything related to him deleted no matter the content.

    I did not engage in the group-think "witch hunt." I can understand why Mr. Monserrat is upset but this has nothing to do with me and yet he is threatening me.

  133. GotLetter says

    @Ken White. I don't feel comfortable sending the letter to you, as I don't know what I legally can and cannot do. I current have the letter with a lawyer and waiting to hear back. I can say both letters appear to be the same except for address. I am so upset at this happening let alone a letter being sent to my place of work. I think if you saw my post in question you'd understand my frustration at this whole matter.

  134. GotLetter says

    @luckyletterrecipient I think you and I are very in the same situation. Well said.

  135. Jane Doe # Kajillion says

    Ken, I'll send you a scan of my letter as soon as I get home.

    Bill, I'm sorry if my comment came off as rude to you. I just felt your hypothetical Shaggy Defense question had been asked and answered a few times already. My apologies if my tone was too brusque.

    UndertheRadar, I read here frequently and have commented under another handle. My apologies if you felt my comment to Bill was shutting down a useful conversation and focusing inappropriately on my own issue.

  136. Lucky Letter Recipient says

    To echo GotLetter's concern with sharing the letter, the letter claims it is protected as confidential by some rule of evidence, with the implication that he will litigate further if it is disclosed. Having read the rule, even as a non-lawyer I can clearly see that it does not in any way apply to sharing the letter. I'm not going to repeat the rule number because it could be he quoted random rule numbers so he could link them to people if they talk about it online. And he will certainly claim a copyright on it like he has with anyone who has ever quoted him.

    Perhaps since Ken is an attorney this would simply count as legal advice and be completely protected. But nobody wants to escalate this further and have this guy appear at their doorstep in the middle of the night. Ken/other lawyers, what do you think? Is it Ok for us to send this to Ken in light of Monsarrat's threats?

  137. says

    With respect to the confidentiality of the letter: there are two issues. First, the letter asserts confidentiality under Federal Rule of Evidence 408 and an unspecified provision of the MA Rules of Evidence. But those rules only say that a settlement offer is not admissible, not that it is confidential or can't be published or circulated. Comically, he also claims that the threat letter is copyrighted. More on that later.

  138. Lucky Letter Recipient says

    Ken, that is exactly the rule he quoted. And I interpreted it precisely as you described it. The copyright claim is not clear to me. On its surface it seems absurd and I'm sure it is, but I don't know the specific points of law that refute it.

  139. AnotherLetter says

    He also claims that because it is copyrighted, not only can it or any part of it not be published or circulated, but cannot be disclosed ANYWHERE in ANY WAY without his written consent.

  140. Jane Doe #3.14159 says

    Supposedly, it's Rule 408 for pretty much everybody. Apparently evidence rules are consistently numbered across jurisdictions. (My attempt at Googling the rule turned up a bunch of links regarding Washington state law, which caused some confusion on my part, but that was quickly cleared up.)

    I've been told by people with somewhat more knowledge in this area that his legal assertions are…misguided, to say the least. I eagerly await Ken's analysis.

  141. Mike says

    @Lucky Letter Recipient – It's fine to send the letters, especially in search of help. The assertion refutes itself by the fact that he cites inapplicable law – if there was such a law he would cite to that instead of Rule 408.

    @Jane Doe – states frequently adopt the federal rules in whole or in part, hence the identical numbering.

  142. James Pollock says

    With regards to the claim of copyright in the letter:
    A) it probably IS covered by copyright, as most written works of comedy are.
    B) however, a multitude of fair uses exist which would definitionally not be infringement of the copyright (for non-lawyers, the magic search term is "17 usc 107" (Have a look at the list of examples given in the first sentence).
    C) copyright does not prevent you from discussing the contents of the letter by paraphrasing or otherwise disclosing the content of the thing without copying the exact sequence of words and punctuation.
    D) Unrelated, but I wonder if the guy's lawyer is reading any of this and regretting taking him on as a client?

  143. Jane Doe #3.14159 says

    I'm also reasonably convinced you can't use 'copyright' to prevent people from sharing settlement offers and legal threats with others who might be able to offer advice and assistance. If that were a viable tactic, I'm sure sleazy lawyers across the nation would be employing it.

    I'm not going to post the letter on the Internet for all to see, on the off chance that he could use a DMCA notice or something, but I'm not going to let this guy bully me into utter silence, either. I feel completely justified in forwarding the letter I received to Ken.

  144. says

    D) Unrelated, but I wonder if the guy's lawyer is reading any of this and regretting taking him on as a client?

    I was just wondering exactly the same thing. If they have any self-respect and concern for their reputations, I imagine they're at least considering telling him to take a hike.

    I'd like to hear what the practicing lawyers who read and comment here have to say about this question… Is it considered unethical by the various bar codes of conduct, state and federal court rules, etc., to continue to provide services to a client whom you know is engaging in frivolous legal action?

    I suppose this particular case isn't entirely clear-cut, since as others have pointed out, some of the things JonMon is suing about could arguably be considered defamatory and perhaps for those he deserves his cay in court.

    But there are certainly many, many cases where lawyers send C&D letters to bloggers, web sites, etc. about content which is clearly, undeniably protected speech, and which they should know is protected speech. Do reputable lawyers consider their actions to be unethical, and do the various codes of conduct agree?

  145. Mike says

    @Jonathan, yes the rules do regulate such situations. In California, Rule 3-700 of the Rules of Professional Conduct requires an attorney to withdraw when the attorney "knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person."

    It also permits, but does not require, an attorney to withdraw when the client "insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law."

  146. says

    @Mike Are these rules honored more often in the breach than in the observance? Do they have teeth? Do lawyers who violate them get a kick in the pants, or is it generally nudge-nudge-wink-wink and everybody knows they are meaningless?

    In this particular case, if the targets of the claims in JonMon's lawsuit that are clearly without merit were to file a counter-suit for frivolous litigation and demand legal fees and sanctions, would their suit be likely to succeed?

  147. Matthew Cline says

    @Jack B. :

    Back in the mid-to-late 90s, I used to spend a lot of time (translation: too much time) on Usenet, namely alt.fan.karl-malden.nose. The main people I wound up pissing off were various racists.

    Is there something about Karl Malden's nose that's particularly attractive to racists?

  148. That Anonymous Coward says

    @Marc – OHAI!

    @Jordan – 1 Word. Prenda.
    More words…
    You can not lie in civil litigation? REALLY…. someone(s) appears to have missed that memo… oh wait… In my opinion.

    I find this story fascinating. The parallels to what I've seen before are so familiar yet in a different arena.

    Legal Threat
    What could be tenuous claims
    Scary letters demanding things while making threats of worse things to come

    It will be interesting to see how this all plays out.
    My self bonus point of the day, I didn't call anyone Pookie.

  149. Another Letter Recipient says

    My letters have a grammatical error. I would be interested in knowing if other letters have the same error. I would not be surprised if letters sent to different people had different flaws, so that he could identify who leaked one; I would also not be surprised if he just missed it.

  150. AnotherJaneDoe says

    My letter has that error plus a second error in the following (final) paragraph, wherein one four-letter word beginning with W is replaced by another.

  151. yetanotherjanedoe says

    I haven't gotten a letter- I keep expecting one, but there's a couple reason why he might not have sent me one- but I've seen one of them. The two typos mentioned above are in the one I've seen.

  152. says

    @Jane Doe # Kajillion -No offense taken – in this context, it was a pretty pedantic point on my end. More than a few people thought I was speaking about this as a defense in this case not a general point, so it was poorly articulated on my part.

    I think there's times that identifying the actual person is a valid point, but in this case as others have noted, where we're talking about authenticated users and constant account's, it's not applicable. There are a lot of general point discussions on Popehat comments section, but I totally understand why many thought I was talking about this case. I was already one your (and the other Doe's side) to begin with, the more I read the more I sided with you – so decided to not contribute to the noise portion of the signal to noise ratio. I appreciate the civility but your response was entirely appropriate. In that regard, best of luck on this and sorry to hear you all are going through it- I probably dislike people like the plaintiff here more than all of the Doe's combined ;-)

  153. barry says

    A few things about Two-sofas Monsarrat's complaint look 'not quite right' to me, and not just the conspiracy to call him a "scummy dude".

    The large sum he is claiming seems to depend on damage from loss of reputation in the business world. (in my opionion, the damage looks mostly self-inflicted).Wikipedia says he founded Turbine_Inc with money from a legal payout in 1994, and it was sold to Warner in 2010. Unfortunately for Two-Sofas, he 'cashed out early' in 2008 and "took a "substantial hit" (easy come, easy go, but why not try again?).

    In either 2009 or 2010 in an email to one of the Defendants, he says he rented his own room out and was sleeping on the sofa (para 44).
    He also said (para 24) that he was a temporary guest at the apartment where the party was held in 2010, he did not have a bedroom and slept on the sofa, and denies being the host of the party and didn't know anyone there. But the boston.com article says he identified himself to the police as the host of the party.

    The number of paragraphs devoted to distancing himself from the party and putting it all on that 'Trano' guy looked odd. I cannot help wondering if 'Trano' helped in getting the party charges against Monsarrat dropped, and if he ended up with one of the sofas for his trouble.

    (The other thing was the combination of loss of appetite with weight gain.. that doesn't sound right either!)

  154. says

    Is there something about Karl Malden's nose that's particularly attractive to racists?

    alt.fan.karl-malden.nose was the base of operations for The Meow Empire. A racist group, whose name I won't mention for the sake of decorum, was overrun by the meowers way back in 1997. Looking back, it was all proto-lulz.

  155. FriendOfDoes says

    In addition to the interesting question list from others, I was wondering what the threshold is for a class action? Given that multiple instances of these letters are identified here by Does as frivolous (innocuous or previously-deleted content) and he's scattershot these to people in many locations, what merits might there be in a class counter-suit?

  156. whheydt says

    Re: barry

    This guy was part of *Turbine*? The game company that wrote _Asheron's Call_, _Asheron's Call 2_, _D&D Online_, and _Lord of the Rings Online_? *That* Turbine? Wow…from the descriptions of him in this thread, he must not have had much to do with actually running the company.

  157. says

    To be fair, Massachusetts never formally adopted "Rule of Evidence". The Massachusetts Guide to Evidence does not have the force of rule; it is a judicially sanctioned restatement of the rules of evidence as found in the caselaw. It is, therefore, appropriate to refer generally to the Massachusetts rules of evidence when discussing an evidentiary issue, though I myself, as a Massachusetts attorney, would cite to the cases referred to in MA Guide 408.

  158. doe666 says

    At this point, people who never commented on the original post, who only commented on Ron's report of the lawsuit, are receiving the so-called settlement letters.

  159. says

    As to the copyright in the threat letter issue, technically there is copyright in it. However, republishing it on a blog to comment critically upon it may well constitute lawful fair use. [If I plagiarized it to send out my own demand letters, he could have a viable infringement claim.]

  160. says

    At this point, people who never commented on the original post, who only commented on Ron's report of the lawsuit, are receiving the so-called settlement letters.

    Awesome. Can't wait to receive mine. It'll be a great souvenir.

    Is JonMon trying to out-crazy Joseph Rakofsky?

  161. NamelessParodist says

    Just got my letter, too. At my work address. Time to go have a friendly word with Mr. Workplace's Legal Counsel.

  162. another letter-er says

    I got the letter, but I had already deleted my LJ account previously (for unrelated reasons). When doing so I selected the option to wipe out all comments/posts on all LJ communities, so his letter asking me to remove comments is somewhat moot (I confirmed they are all gone). Additionally, I never actually said anything about the guy in my 2 comments (joke replies to other comments) so I am nearly 100% sure I can clear this for me easily, I just don't want to deal with it :)

    Out of curiosity:

    Is it advisable to respond to the letter in any fashion? Particularly if you've technically complied? the letter was clearly not written by a lawyer so is likely phishing for confirmed contact info. The letter says if you delete the comments he will remove you from the suit, can this letter be used as evidence? I normally wouldn't comply to an attempt to stifle speech, but by default I already have.

    The plaintiff actually came to my house and lied about why he was there (claiming he had $ from someone for me in a half baked way that triggered enough scam alerts that I didn't cooperate). Does his lying as a way of confirming address cross any line? I mentioned the event to my town's police (there was a rash of break-ins around that time) but did not file an official report. My only "evidence" would be remembering the event and recognizing him after the fact.

    I can afford a lawyer for small things like a cease & desist letter or the whatnot (and more if I had to), but it would cause burden. How easy would counter-suing for legal costs be in a case such as this? I feel Ron has more of a need for that info at this point.

    At this point I plan to mostly wait and see (and donate to Ron's legal fund).

  163. NamelessParodist says

    An update: My mom called me and said she received a copy of the letter at her house; I've never lived there, but lived in the same town for a while, and somehow got both voter registration info and student loan repayment info sent there for a short time before I signed a lease someplace else.

    She pointed out that involving my family in this mess is pretty unconscionable, given all our professional and political affiliations. To relieve her mind, I've removed the potentially objectionable post I made earlier today. I don't mind taking a stand on my own behalf, but I don't have the right to mix up other people in it.

  164. Innocent bystander says

    One thought that occurs to me: The "common law copyright" claim may have been a critical mistake for Monsarrat. Since federal law preempts state copyright law, and federal jurisdiction is mandatory in copyright cases, a defense lawyer could argue that the complaint implicitly brings a claim of federal law, and thus that the case can be removed to federal court.

  165. says

    @Innocent bystander

    And that would be a critical mistake because…?

    Federal courts tolerate less bullshit? Federal courts are more expensive to litigate in? His attorneys may not be admitted to try cases in Federal court? All of the above?

    I'm just guessing here. Please give us the real answer. :-) Tnx.

  166. GotLetter says

    Just because you comply in no way means he won't still put you on the law suit as a named Doe. I suggest seeking legal support.

  167. Querypoint says

    Would it be worthwhile to contact some of his business co-owners to give them the heads up that their business is currently being run through the mud or is that something frowned upon? I'm curious about whether all and any comments are being met with a lawsuit. Time to check my lawyer status as well.

  168. Innocent bystander says

    @Jonathan Kamens

    Just because a federal court is both less likely to disregard meritorious defenses, such as immunity under CDA section 230, and less likely to put up with litigation misconduct.

  169. thespian says

    Querypoint: no. I know I should give more info that that, but it's not mine to give. Everyone should leave that strictly alone. Please.

  170. GotLetter says

    What most frustrates me is I'm sure once my lawyer responds to the letter I received I hopefully won't be part of the lawsuit – however I will be out a few hundred dollars for the cost of the letter. Nothing I said i my one post, not to him, was even close to slander. It seems so unfair that this guy is costing me money when I'm the one being harrassed for basically having a user name on the site. BS.

  171. GotLetter says

    The other thing I don't get is why people are actually deleting their comments.

  172. doe666 says

    @GotLetter: Fear. People's parents have now been involved in this, and statements which a reasonable person could infer as threats to one's employment.

  173. jerk says

    Mine had an odd grammatical error in one sentence – I was wondering if that was steganography! I'll send you a scan of mine when I get home this evening.

    they all have that same grammatical error. at least two grammatical errors, actually.

    it's essentially a form letter where he just drops in the person's username and the thread link – HOWEVER, at least one that i've seen also adds in a reference to the content of the comment the person left. here is a picture of one with the personal info removed, the visible info is the same for everyone AFAIK.


  174. Doe657 says

    I didn't even get a letter; Johnny sent me a "confidential settlement" email.

    This just sucks that he can make people's lives miserable with impunity and cost them money.

  175. AnotherLetter says

    GotLetter: Then don't. You're under no deadline to respond. Hopefully once Ron has counsel lined up, that person will get the suit dismissed on behalf of the Davis 100 as well. If not, you can worry about it then.

  176. This Jane Doe says

    Can someone tell me what to do? I just got a second letter from him, this time to my workplace. Same letter as the one I got at home. Is it time for me to hand this over to the campus police at my workplace? He is known to this university, and he knows his way around campus. I feel I should bring them this letter…

  177. says

    I am not a lawyer, so take this advice with a grain of salt, but here's how things seem to me right now…

    If you've received one of JonMon's threat letters, and you believe that something you said may be legally actionable (if you're not sure, old Popehat postings or what Wikipedia has to say about defamation may be helpful, but the TL;DR is that if you said something that could be construed as a statement of fact rather than opinion, even if you were just repeating something that someone else said, you may have a problem), then talking to a lawyer may be a good idea.

    If, on the other hand, you didn't say anything legally actionable, then there's no point in paying a lawyer to write a "Snort my taint" response to JonMon. You can simply ignore his threats, or you can write the letter yourself. Something like this:

    Dear JonMon,

    I know what qualifies as legally actionable defamation, and I know that nothing I said about you fits the bill, and I know that you know it too.

    I hope your lawyer isn't stupid enough to actually represent you in suing me for what I wrote, because it's so clearly protected speech that not only will you end up paying my legal bills, your lawyer will face sanctions for frivolous litigation.

    Go ahead, make my day.

    P.S. Snort my taint.

    I believe others have already pointed the following out, but just to reiterate… If what you posted is potentially legally actionable defamation, then deleting it won't eliminate your legal liability. Furthermore, JonMon isn't bound to honor the terms of the letter he sent you; he can sue you even if you delete the postings, even if he said he wouldn't.

    If what you are looking for is a guarantee that you won't get sued if you delete your postings, then you're going to have to negotiate a waiver of right to sue from JonMon, and yeah, a lawyer would probably be useful for that. But again, it's not worth the money unless you actually wrote something that might be legally actionable.

    If you did write something that falls into that category, and you delete it now, before you've got a written, binding commitment from JonMon not to sue you, then you will remove all your leverage for obtaining such a commitment. Therefore, deleting your postings before talking to a lawyer is probably a bad idea.

  178. says

    @This Jane Doe

    It is difficult to gauge whether the targets of JonMon's ire are in any physical danger. On the one hand, physical violence does not seem to be his M.O., but on the other hand there have been numerous reports of him paying in-person visits to some of the people whom he is suing.

    My impression is that those visits were to identify or to intimidate, not to harm, but who knows, perhaps as this lawsuit makes him look worse and worse, and more and more people stand up to him, he might "snap" and do something rash. I think that's extremely unlikely, but I'm no psychologist, and it seems to me that the possibility can't be completely discounted.

    If you are sincerely worried about your physical security, then you could go to the C.P.'s, tell them what's going on, and ask them to help you get a restraining order against him. You may be able to get one, given that he has sent you several harassing letters and there are reports of him visiting other targets of his lawsuit in person. Or they may tell you there isn't enough evidence that he is a threat to you.

  179. Camilla Fox says

    I would expect that you could ask the campus police to escort jonmon away from your office building, and they would do so cheerfully, if he came snooping around, for no better reason than 'he makes me uncomfortable'. His affiliation is tenuous at best, and the administration will generally side with staff/students over more distant affiliates.
    I don't think the campus police can do much more than that, but all of my professional interactions with them have been positive, and I don't think appraising them of the situation in advance would do any harm.

  180. GotLetter says

    @AnotherLetter I see what you are saying but I have a different perspective on this. As a single female I have particular concerns about receiving legally threatening emails at both my home and workplace -especially given reports he has been visiting some homes. I don't feel comfortable taking a wait and see approach and hoping Ron, someone I don't know, is able to get this thrown out. I don't know what legal steps Ron is taking, and I honestly don't know if there are elements of this overall suit that have merit. I do know my one comment is clear, and that the only person looking out for me is me. I have one man trying to have some sort of power over me and push me around, there is no way I'm willing to sit back and let my fate lie with another man from the internet. I'm sick that this is happening, but do I want to be part of some long drawn out suit, when I can attempt to take action now and shit this down. I'm just upset, angry and honestly a bit scared. Now at least there will be some legal record on my side of the issue.

  181. says

    I am thinking of writing about the letter campaign. If anyone would like to send me an example of the letter, I will not reveal your name unless you let me.

  182. Second Wave Letter says

    I've received a letter at home. It references a recent thread discussing the lawsuit, not one of the threads nearing the three year mark.

  183. says

    @GotLetter I hear what you are saying, and I totally respect and appreciate your desire to neither cede any power to JonMon or rely on some other guy on the Internet to "save" you.

    Having said that, the fact of the matter is that a letter you pay a lawyer to write telling JonMon to back off has no official status as a "legal record on [your] side of the issue," and it is unlikely to accomplish anything except wasting your money.

    There are three reasons to send someone a "lawyer letter". The first is to let them know that you have legal representation and therefore aren't going to be a pushover should they decide to sue. The second is let them know that it's a waste of their time to try to intimidate you because you know they're full of shit. And the third is to intimidate them back.

    You can accomplish all the same things by sending him a letter you write yourself, for free. See my example letter above. ;-)

    You don't want to give JonMon any power over you, but by putting yourself out to the tune of several hundred dollars paid to a lawyer to respond to his letter, you're doing exactly that. You're letting him scare you into wasting your money dealing with his bumptious threats. Do you really want to give him that satisfaction?

  184. GotLetter says

    @this jane doe What is the harm in speaking with Campus Police? I see no downside. The upside being, what if someone else there has had related or unrelated run ins with him, you are providing additional information/context in the very very unlikely event something were to happen. Personally, if I worked someone place he had any relationship with I would discuss this with security/campus police. If I worked at a different random place I probably would not alert anyone and keep my work work, and my personal life personal. I know people who lost people in Newtown, this may make me unreasonably sensative to people who break going back to old schools. Again, I don't think he will do anything, but if it makes you feel better why not talk to them? My 2 cents.

  185. GotLetter says

    @Jonathan. I see your point, I really do – it's part of what I've been struggling with. However, I also see it like this. A letter from me says, yes I'm the person you thought I was – so now you can be sure you haven't listed a mistaken identity when you list the Does. A letter from my lawyer says, she's not f'ing around – you better damn well be sure what she said is defaming (it's not remotely) before you name her as one of the Does.

  186. says

    I don't have anything to do with this case, but as an uninvolved bystander, I have to say that I would hesitate to take Jonathan's advice here.

    As far as I can tell, he's not a lawyer, and I don't see any of the actual lawyers–most notably, Ken White–explicitly agreeing with him.

  187. says

    @GotLetter If you're worried about confirming your identity, then don't respond.

    I don't know if you're a long-time reader of Popehat, or if you just ended up here because of this particular blog posting. If you read back through previous postings about the people who Ken calls "censorious thugs," you will see a common thread woven through nearly all of their stories: when backed into a corner, they double and triple down, rather than retreating as a rational person would, because they are not thinking rationally.

    Now, I won't deny the possibility that JonMon is different. For him, this may be an entirely rational attempt to purge the Internet of material that is critical of him. He may, indeed, weigh the pros and cons of naming individual defendants, and decide to leave alone the ones who (a) haven't actually libeled him and (b) are represented by counsel. That's possible.

    But it seems more likely to me that he's not thinking rationally. If I'm right, then your expensive lawyer letter isn't going to accomplish what you think it will.

    And if all you want to do is send him the message that his claim against you is frivolous and you've got a lawyer on your side, again, you can do that for free: send him a letter yourself, telling him you know his claim against you is obviously frivolous and instructing him to direct any further correspondence about it to your lawyer so-and-so who can be reached by phone at so-and-so or mail at so-and-so, and you will interpret any further attempt to contact you directly as harassment and will take any and all legal means at your disposal to put a stop to it.

    Of course, to do that, you need to actually have a lawyer who's willing to represent you should it come to that, but it sounds like you already do, so that shouldn't be a problem.

  188. says

    (And I suspect that some of the lawyers here are not advising people explicitly one way or the other because they can get in trouble for doing that, e.g., for offering legal advice to people in a jurisdiction where they are not licensed to practice law. I am under no such restriction.)

  189. Charlotte says

    @ThisJaneDoe – I am neither a lawyer nor a LEO, but I urge you to discuss your concerns with the campus police sooner rather than later.

  190. Jane Doe #Kajillion says

    GotLetter and others, at least one of the pseudonymous named defendants has announced that they are contacting their attorney (at their own expense) to respond to Mr. Monsarrat's attorney about the letter this pseudonymously named defendant has received. So if you want to hold off on incurring that expense, you should feel free to do so—someone else is sending that message already.

    Funds are also being raised to defray legal expenses for defendants in the suit. For more information on that, you can go to FriendsofDavisSquareLJ.com.

  191. says

    Jonathan, you say that

    I believe several people here who are lawyers have advised recipients of the threat letters not to respond to them.

    Therefore, all the more reason not to follow your advice for all the Does to write letters to Mr Monserrat themselves.

  192. says

    @azteclady That is not the advice I gave. You may wish to read what I wrote more carefully before criticizing it.

    I gave several different pieces of advice: (1) If you think you may be in legal trouble, talk to a lawyer, and don't do anything (including deleting the comments JonMon is complaining about) until you do; (2) If you haven't said anything libelous, then you can safely ignore JonMon's letter; (3) If you think JonMon is just trying to confirm your identity and you don't want to fall for that trick, then don't respond; (4) If you haven't said anything libelous and you really feel you must respond, you can write the letter yourself and it is unlikely to be any less effective than a lawyer letter.

    I believe this is an accurate summary of what I've written above, and I believe it is perfectly clear that I have not, as you claimed, advised "all the Does to write letters to Mr. Monserrat [sic] themselves."

    Having said all of that, I would point out somewhat tongue in cheek that lawyers are not generally in the habit of advising people under threat of lawsuit, "You don't need a lawyer; you can handle it just fine yourself." It's a matter of professional pride. ;-)

    I'm speaking from real experience here. As I noted above, I've been through this several times because of things I've written on my blog. In one case I opted to pay a lawyer to send a letter on my behalf; in the others I opted to respond myself. None of the threats made against me has ever turned into an actual lawsuit.

    The one time I paid a lawyer to respond, it was because I was contacted by a lawyer rather than the aggrieved party, and because I suspected that the aggrieved party was not being entirely forthcoming with his lawyer and it seemed likely that if the facts were spelled out to the lawyer by another lawyer, he would tell his client to go stuff it, which he apparently did. (And by the way, I wrote pretty much the entire text of the letter myself.)

    Here, the letters are being sent by JonMon without the involvement of legal counsel. That's a remarkably good sign that they're not worth taking seriously enough to the tune of several hundred dollars paid to a lawyer to write a response.

    I am not pretending to be any sort of authority; I am just offering my personal experience and impressions, which people are free to consider or not, to agree with or not, as they see fit.

  193. James Pollock says

    The reasons why lawyers won't tell people they don't need a lawyer is because A) if they're wrong, it's malpractice, and their insurance carrier gets dinged (and everything that radiates from that) B) giving people actual legal advice creates the possibility of establishing a client relationship, with all the ethical ramifications ensuing C) lawyers have to do conflicts checking, meaning making sure the person they're talking to isn't adversarial to anyone they're already representing (including anyone represented by their firm, if they're in one), and D) when giving advice, lawyers are ethically required to investigate the facts sufficiently to be sure the advice they give is sound, and most aren't willing to do this to answer a conversational question of law.

    Finally, most lawyers will be glad to point out cases for you where people tried to solve their legal problems without hiring a lawyer (or worse, ignoring the perfectly good advice from the lawyer they hired) who made things 1000% worse. See, for example, Ken's 100% free advice to potential criminal defendants.

  194. says

    @James Pollock , as a lawyer, I would tend to agree with your reasoning, though I am less concerned about insurance rates than actually simply being in error. Rarely would I advise not talking to a lawyer simply because a comment in a blog post likely omits relevant information that could affect the person's legal rights. Once I have a chance to counsel someone, only then can we determine whether it is legally and/or financially beneficial to respond to a threat or concern and then how to respond. And, as to B, I certainly would not want to post confidential strategy plans in a public forum, especially as I have already been contacted.

  195. Jane Doe #3.14159 says

    I don't know if I should post the details here, but Ron Newman, at least, now has representation. He will likely still need help with legal fees; such fundraising is currently being coordinated through http://www.friendsofdavissquarelj.com.

    We're all hopeful that this case will be dismissed with prejudice shortly after the facts are made clear. Some of the Davis 100 have sought or found representation; others (myself included) are still waiting to see if we're actually served. We may still need help down the road. I'll probably end up contacting most of the organizations recommended to Ron, if it comes to that.

    All in all, stay tuned. Thank you all for your thoughts so far. And if anyone here helped connect Ron with his lawyer, you have my particular gratitude.

  196. Not A Doe (Yet?) says

    I only recommend reading this press release from Mr Monsarrat if you've accidentally ingested poison and need something that will make you retch.

  197. Jane Doe #3.14159 says

    …okay, I apologize for posting something already covered by comments in the moderation queue. *screams to the heavens* QUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUEUE!

  198. Doe Defendant Srakkt says

    @Ken White – I sent you a PDF scan of my 'settlement letter' a few days ago, but have not heard back. You may wish to check your spam folder.

  199. says

    The person whose name is at the bottom of the just-posted press release, Rickland Powell, has made a public post to his Facebook wall. He says that he did not authorize his name to be connected to this lawsuit.

  200. Second Wave Letter says

    Well, if he is his own client, then at least he "eats his own dog food."

  201. doe666 says

    The press release states an outright threat to publicize usernames corresponding to legal names and addresses.

    This is extortion, pure and simple – he knows he has targets in sensitive industries whom he is trying beat into capitulation.

    If this doesn't meet the standards of SLAPP, what does?

  202. GotLetter says

    To be fair, the press release don't explicitly say it's this same law suit – although it's implied its not stated. Additionally, if Rickland is a business partner with JM it could be standard for both their names to be on both press releases, that doesn't mean that Rickland has anything to do with the law suit one way or the other. Rickland should consider who he's doing business with, however you can't tie Rickland to the law suit based on just that press release in my opinion.

  203. Jack (the one with the cat avatar) says

    That footnote is the best explanation of what ED is that I've yet come across.

    (Disclosure: My wife was written up in the original version of Encyclopedia Dramatica, around the time it moved off LiveJournal. We weren't married at the time.)

  204. barry says

    I think he might have included a few Does that don't look anything much like libel just to get the number up to a round 100 (because it looks better in the advertisments).
    There's something 'not totally honest' about that too.

  205. Kit says

    whheydt: Not only was he involved with Turbine, as the founder, he was personally responsible for Asheron's Call.
    The fact that he is dragging his reputation through the mud, *again*, is incomprehensible to me.

  206. Jane Doe #3.14159 says

    It's worth noting, however, that he has not been involved with Turbine in some time. It's my understanding that he departed the company several years ago, and sold his remaining interest in 2008 — well before the buyout he seems to bring up in every attempt at self-promotion.

    He hasn't said anything factually inaccurate, but he has omitted some details, and in any case, the current regime has nothing to do with him.

  207. Sharon says

    I had to laugh at this line: "cracks the real identities of cyber bullies" – And just HOW many of these "100" were personally known to him, or had made no attempt to hide their identities?* If he wants to impress me with investigative skills, go crack the identity of someone who's going to be halfway challenging Put more work into it than clicking on a profile looking for a link to a personal website. There's a big difference between a social-group nickname and actively hiding behind anonymity.

    My take on it? It sounds like a combination publicity stunt for a business launch, and shakedown plan with no guarantee that you'll actually get what you're paying for (being left out of the suit, or in this case, the implied threat of being publicly named as a cyber bully). I predict he'll claim that he's been able to get bullies to take down their abuse just by telling them they'll be exposed as bullies, pointing to the people who took down comments in the face of the lawsuit threat.

    "Hire me and the bullies will run away!!!"

  208. barry says

    With my technology, my team of experts, and my partnerships, we're about to blow open the doors on cowards that smear the innocent online in an attempt to destroy their mental health and family, friend, love, and business relationships. I'm proud to be part of this fight for Internet justice.

    I knew Batman. And you, sir, are no Batman!

  209. Charlotte says

    @Sharon – even better than that. The Davis_Square LJ, since it was serving a small geographic area, had a lot of "meet and greet" events so most poster's real-life IDs were well-known in real life. No real points for "sleuthing" someone whose name you already know but he probably wouldn't be letting prospective clients know THAT.

    One of the Does got their doorbell rung past midnight, which is totally out of control.

  210. says

    My lawyer, Dan Booth of Booth Sweet LLP in Cambridge, MA, today sent this 18-page letter to Jonathan Monsarrat's lawyers, demanding that they drop the case against me. He gave me permission to put the letter online and to distribute it wherever I see fit.

    If they don't voluntarily drop the case (which they probably won't), he will file a motion for dismissal on Monday.

  211. Charlotte says

    Good to hear from you, Ron. That letter did make me chuckle in a couple of spots.

    Glad that Booth pointed out the Turil comments. I used to hang out on sf_drama and the folks there mostly remembered turil's "3 is not too young to consent" creepiness instead of Jonmon.

  212. AlphaCentauri says

    You have filed a phonebook-sized pile of exhibits, including thousands of comments on various
    websites. No generalized assertion that Mr. Newman may bear liability for some unspecified
    comment somewhere in that pile is sufficient to state a plausible claim against him. To sustain a
    defamation claim, you can’t just point to the haystack; you have to show the needle.

    I love it.

  213. Tim says

    Holy cats. Ken, that reply from Dan Booth to Monsarrat is a thing of beauty. It's worth a followup post just to call out the high points.

  214. Second Wave Letter says

    I want to know what impact this will have, if any, on those of us who have received threat letters but are not named in the suit. More to the point, what impact will this have on his plans to release our names to publicly brand us as "cyber-bullies."

  215. DeeplyRooted says

    That's an absolutely devastating letter. Wow.

    How long can they (we) expect to wait for a reply? I have no sense of these things.

  216. J. Doe #?? says

    @DeeplyRooted If Monsarrat's lawyers don't withdraw the case by Thursday, Booth will be filing in court on Monday. I have no idea what will happen from there. Desperately hope the judge kicks it out and we Does can go bowling. :)

  217. Charlotte says

    Yes, I hope Ken finds time soon to write this up. The "collaborative business venture" portion of it raises some interesting legal issues. Although I suspect there may be more on Monday.

  218. says

    This has now gone beyond LiveJournal . JonMon has now sent a Doe Letter (actually, a Doe E-mail) to Adam Gaffin, who runs the Boston local news site Universal Hub. Adam says:

    After my initial post on the suit, Monsarrat sent me a similar e-mail message, threatening to include me in the lawsuit unless I took down the post about the lawsuit and the comments on it. Fortunately, I was able to retain counsel, who has responded to Monsarrat's lawyers. The post stays up, in part because of Sect. 230 of the Communications Decency Act.

  219. Just another anon says

    The "I will add you to the lawsuit unless you take down the post reporting on the existence of the lawsuit" email to Gaffin suggests that Ken White, and possibly other Popehat bloggers or commenters, will be getting such emails next–as far as I can tell, there is nothing stopping jonmon from threatening to name hundreds of people within "John Does 1-100."

  220. barry says

    @Charlotte, I wonder if his lawyer-type-guy appreciates being described as 'working in partnership with' too (in the press release). That implies some kind of.. well, 'partnership' thing.

  221. Charlotte says

    Yes, it does, doesn't it? It would be interesting to know whether the press release got cleared through the lawyers first.

  222. barry says

    Monsarrat's patents themselves possibly give an indication what he's up to.
    Automatically extracting data and identifying its data type from Web pages
    Web scrape template generation
    It looks like a web-scraper connected to a database connected to a webpage that markets the formatted information. I don't think anyone has challenged these 'inventions', but I'm pretty sure Google got there first.

    With my speculative foil hat on, this looks like the ideal robo-libel machine. It would have already scraped all the public blogs and forums looking for common libel phrases, then associated all the 'bullies' with everything else they had posted about other people, then everyone else who they had said something about, and then searched for personal information which might identify the 'bully'. One of his 'advisory board' is a computer science professor whose interest is 'natural language software'.. making sense of english text etc.

    This robo-libel database would have to be pretty big because theres a lot of blogs and forums to scrape, so its on a big cloud costing a lot of money. But if enough clients can be attracted who wish to buy a nicely formated pre-scraped list of people who have been nasty about them (in batches of one hundred), it might pay for itself and make a profit.

    With a little more work and an adjustment to the foil hat, this amazing robo-libel machine might even be able to print out a not-totally-incoherent complaint, ready to be stamped and signed by the lawyer-type-guy, and send out the emails.

    If only they could get the 'knocking on people's mother's doors in the middle of the night' component out of the system. That has to be a bottleneck. (but it's only a hypothetical prototype right now.)

  223. J. Doe #?? says

    If his lawyer is starting a business with him out of that, is that even ethical?

  224. Charlotte says

    Someone's posted an update in davis_square on Ron Newman's behalf: apparently the plaintiff's lawyer was unaware that JM was sending out Doe letters/emails and is now in negotiation with Mr. Booth. Nobody should be getting any more Doe letters (or personal visits).

  225. Charlotte says

    @Barry – yes, that prototype is running into a lot of Level 8 issues, isn't it?

    @yet another doe – I had been thinking K*b*, but I think you've got it right.

  226. Charlotte says

    Oh yeah. I thought that the lawyer told Booth that Johnny wouldn't be making more press releases. Pretty funny.

  227. JaneDoeWTF says

    I am one of the 100 LJ users mentioned, but I haven't received any letter or indeed any communication from JM at all. In fact, I only found out that all this was happening tonight. Needless to say, I'm as guiltless as the rest of you. What should I do?

  228. Pete says

    In order for this doofus to obtain the personal identifying information for any of the John/Jane Doe aliases, he must seek a subpoena from a judge, in which he must demonstrate that he can prove a case of defamation against that person sufficient to entitle him to summary judgment. See this link, the current standard for removing the cloak of anonymity in this state:

    McMann v. Doe, 460 F. Supp. 2d 259 (2006)

  229. Dan Weber says

    Kleinsasser's letter also accuses Ishman of negotiating "in bad faith". He says that Ishman originally agreed to dismiss the complaint against Filcman if GateHouse provided evidence that Filcman had been a GateHouse employee during February and March 2010.

    After GateHouse produced the requested records, Ishman then allgedly reneged on the agreement, demanding that GateHouse remove Filcman's two blog posts

    Okay, anyone who thought of taking things down voluntarily is now officially told not to do that.

    Are there any sanctions for this? It wasn't done through a court, but it seems to fit the definition of a contract.

  230. says

    Update: the matter has been dismissed with prejudice. Voluntary notice of dismissal was docketed today. Glad to have helped one of the Doe defendants.

  231. says

    As one of the two named defendants, I'm writing here to confirm what Jay said: this lawsuit is OVER, voluntarily dismissed with prejudice by the plaintiff. There was no settlement agreement; he simply gave up.

    I've made an official announcement here: http://davis-square.livejournal.com/3210643.html . In that post, I include links to a motion for dismissal and a supporting memorandum that my lawyer Dan Booth was ready to file next Monday, had the plaintiff not voluntarily dismissed the case today.

  232. says

    Also, many thanks to Ken at Popehat for putting out this Signal. Thanks also to everyone who responded to this Signal, publicly or privately. Without you, we couldn't have succeeded nearly as easily.

  233. AlphaCentauri says

    I'd like to thank the attorneys who contributed their time to the defense of this case as well as those bloggers who raised awareness. It makes the rest of us a tiny bit safer from this type of suit.

    If the purpose of filing suit was to launch a reputation management company, it didn't work so well.