Ares Rights, Bless Its Heart, Continues Bumbling Attempts At Censorship

Last summer I wrote about Ares Rights, a nominal "anti-piracy" firm that acts as a small-time legbreaker for various South American governments. When we encountered Ares they were trying to scrub discussions of Ecuador's spying practices through bogus DMCA notices. More recently Ares Rights abused the DMCA to suppress reporting on Ecuadoran corruption.

Now — because the internet is all about shoving everything up its own ass, as Jeff Winger would say — Ares Rights is sending out frivolous DMCA demands trying to silence discussion of its use of frivolous DMCA demands. Ares Rights responded to the Electronic Frontier Foundation's blog post about their abuse with, as Adam Steinbaugh reports, sending a DMCA notice demanding removal of the blog post. If that's not meta enough for you, now Ares Rights has issued a DMCA notice seeking to take down Adam Steinbaugh's blog post discussing their DMCA notice targeting the EFF's blog post discussing their prior DMCA notices.

It's not clear what Ares Rights hopes to accomplish. Their DMCAs will fail. This won't slow coverage. Trying to brush off the EFF or Steinbaugh with a DMCA notice is like trying to get a dog to stop humping your leg by petting it and feeding it bacon. Maybe they bill by the hour, even for patently ridiculous tasks? Maybe they are trying to convince their Ecuadorian masters that they are doing something, anything? Maybe they are just really very bad at their jobs? Stay tuned to find out.

Meanwhile, maybe you could go to their Facebook page and tell them what you think.

Edited to add: Ares Rights is deleting comments on their Facebook page, but they can't delete reviews here.

Adam Steinbaugh has responded to the DMCA notice.

"Atavistic Oncology" Doctor Develops New And Exciting Theories of Defamation Law

Dr. Frank Arguello is an advocate for an "atavistic" theory of cancer. What does that mean? Well:

Atavistic metamorphosis proposes that cancer cells are cells that have reverted, evolutionarily, to their ancestral, independent status as unicellular organisms. It is from there that cancer only occurs in plants and animals/humans (multicellular organisms). This also explains why cancer does not occur nor can be induced experimentally in unicellular organisms such as bacteria, fungi and protozoa.

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Randy Queen Offers Comical Response To Online Criticism of His Work "Darkchylde"

Randy Queen is a comic book artist and the creator of Darkchylde, an improbably-breasted teen who can transform into creatures from her nightmares. He also writes related poetry.

RAIN, RAIN

Rain, Rain, falling down
Grey sky shadows, and my sad heart

. . . and so on.

Now, I am not personally offended by improbably-breasted women in comics. I recognize them for what they are: a cultural signal, like golf pants or McDonalds' Golden Arches. Their presence on a book or comic cover signifies that you will encounter nothing unfamiliar or unsettling therein. Anatomically incorrect breasts are the dogs-playing-poker of fantasy art.

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Colorado ISP Peak Internet Sues Customer For Bad Online Reviews [Updated With Popehat Signal, Resolution]]

[Update: see resolution at end of post]

Peak Internet of Colorado offers ISP services to the Pikes Peak region. Russell Petrick tried their services and was disappointed. He says that their speed was consistently below the benchmark they advertised. When Petrick complained, he says that Peak Internet told him he was getting above their stated minimum speed, so he should be happy with the 12 Mbps he was getting, even if it didn't reach the advertised 20 Mbps top speed.

Petrick complained online on Yelp and elsewhere. Peak Internet, an American company that values American ideals like freedom of speech, recognized Petrick's right to complain and responded forthrightly to the complaint. No, wait, Peak Internet strongly disagreed with Petrick's complaints so it responded online with specific facts and circumstances showing how particular elements of Petrick's complaints were untrue.

Wait, no. I forgot. This is America. So Peak Internet sued. They hired attorney Ryan J. Klein of Sherman & Howard and filed a complaint against Petrick in Teller County District Court for defamation and defamation per se. The complaint is here.

Peak Internet's complaint is bare-bones and notably vague and ambiguous. This is how it explains the basis for accusing Petrick of defamation:

The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.

Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).

Peak Internet's ploy may not play out the way they hoped. Already a local news station ran with the story, allowing Petrick to highlight what appears to be well-documented evidence supporting his complaints about the speed.

I wonder: did attorney Ryan J. Klein explain the Streisand Effect to his client Peak Internet before filing the lawsuit?

It's not clear to me whether Petrick has counsel. If he wishes, I would be pleased to light the Popehat Signal to find pro bono counsel. Meanwhile, I think the story of an ISP that sues its customers over criticism is one that needs a little more attention. Do you agree? Have at it.

Thanks to tipster Carl.

Updated to add: commenters here and on Twitter point out that Peak Internet has gotten four abrupt good reviews on July 30 (the day after the local news story), all from first-time reviewers, all praising Peak Internet. No doubt a coincidence.

Second Update:

Mr. Petrick has sought my help. I am lighting the Popehat Signal.

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

Mr. Petrick is disabled and does not have funds to hire an attorney to defend his free speech rights. Is there a lawyer out there who can help him in Teller County, Colorado?

We have the right to free speech — in theory. In practice, companies like Peak Internet, and lawyers like Mr. Klein, can trammel that right because the system lets them. It can be ruinously expensive to defend even the most transparently bogus and censorious case. To fight this trend of companies suing to remove bad reviews, we need people to step up. Might it be you? If not, will you help spread the word?

Good Update: I am reliably informed that Peak Internet and Mr. Petrick have resolved the case satisfactorily and Peak will be dismissing its case with prejudice — meaning permanently. Congrats to Mr. Petrick, a nod to Peak Internet for making the right decision after the wrong one, and thanks to several Colorado lawyers who offered to help.

"Crisis Manager" Xavier Hermosillo Shrewdly Defuses Immigration Tumult By Threatening Cartoonist

Murrieta, California is a town recently known for angry crowds screaming at Immigration & Customs Enforcement buses full of kids. Apparently Murrieta thinks that sort of coverage is not a selling point for the town, because they hired Xavier Hermosillo, a "Crisis Manager." This is a typical and prudent move. Across America, if you ask public officials "how can we recapture the media narrative, calm hostility and anger, and promote sensible dialogue," they will inevitably reply "hire an internet talk show host."

Hermosillo set to work. What could he do to calm the troubled waters, improve the town's reputation, and capture the sympathy of the media?

Of course! He could make moronic defamation threats against Lalo Alcaraz, a political cartoonist who writes the strip La Cucaracha! I can see no way that could go badly.

Hermosillo was apparently agitated over a La Cucaracha cartoon that suggested the bus-screamers were racist. A political cartoonist commenting on politics and public behavior? THIS WILL NOT STAND!

IFORGOTHOWTOCRISIS

For the picture-impaired: Mr. Hermosillo said "Lalo, There IS a fine line between your Constitutional right to draw cartoons and expressed [sic] your opinions, and falsely, deliberately, and maliciously labeling and attacking an entire community as racist or as 'Hate City.' You are working overtime to damage Murrieta and such a false premise is actionable. There's a fine line between humor and stupidity. You may have crossed that line at your own peril."

This is, of course, utter bollocks. An "entire community" can't file a defamation suit. Even if they could, political cartoons are at the very core of what the First Amendment protects. Like it or hate it, Lalo's cartoon is a classic example of a political opinion, stated cartoonishly, in reaction to public facts. You may disagree with Lalo's suggestion that the bus-screamers were racists, or that their behavior is fairly attributable to the community of Murrieta, but nobody with the most minimal grasp of defamation law or the First Amendment would think it's an actionable false statement of fact.

Under the familiar Streisand Effect, this buffoonish threat will probably draw far more attention to the comic, draw more negative attention to city leadership ("we paid tax dollars to hire this cretin?"), and make the media substantially more hostile, if that is possible. One thing is for certain: it will not promote any intelligent debate on immigration whatsover.

You would think that a "Crisis Manager" would understand the Streisand Effect, wouldn't you?

Popehat Signal: Help A Blogger Threatened By A Multi-Level Marketer WorldVentures

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

It's time for the Popehat Signal — the call for pro bono assistance for a blogger threatened with frivolous and censorious litigation. This time the victim in need of help is Stephanie Yoder of www.twenty-somethingtravel.com. She needs your help to face a thoroughly bogus and repugnant threat by multi-level marketing scheme "WorldVentures."

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Department of Health And Human Services Threatens Blogger Over Satirical Posts

The blog Addiction Myth is devoted to a very out-of-the-mainstream proposition about medicine: that the entire concept of drug and alcohol addiction is a scam perpetrated by law enforcement, rehab groups, and the entertainment industry. By contrast, the United States Department of Health and Human Services is devoted to mainstream medical and scientific propositions1 It is perhaps inevitable that these two worldviews would conflict one day.

But it was not inevitable that HHS's Office of General Counsel would bumptiously threaten Addiction Myth over obviously satirical posts. That, given minimal good sense, could have been avoided.

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Mark Steyn Has A Fool For A Client

Back in 2012 I wrote about Michael Mann's lawsuit against National Review Online, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg. There's been plenty of water under the bridge since then — the defendants have filed and lost a motion under Washington D.C.'s anti-SLAPP statute, appealed unsuccessfully, re-filed it as a result of procedural hijinks too dull to discuss here, and lost again.

My view of the case is unchanged. I think the statements Mann attacks are best viewed as opinions expressed through vivid rhetoric and hyperbole, rather than statements of literal fact susceptible to defamation analysis. That view is strengthened by the steady progress of the law since 2012 in cases like Cox v. Obsidian Finance, which I discussed last month.2 The tone and rhetorical flair of the statements, the places they were published, and their entire tenor strongly suggest they were argumentative opinions rather than falsifiable statements of fact. Therefore, they ought to be absolutely protected by the First Amendment. In this I agree with Jonathan Adler and Dan Farber.

Quite frankly I also think that the lawsuit is part of a larger effort to conduct the climate change debate by other means, including lawfare — part of the effort to label certain viewpoints as so unacceptable that they do not deserve full legal protection. As an example of the tone I am talking about, consider a cartoon in today's New York Times:

KillingPeopleWhoDisagreeIsFunny

Mann's case may still be resolved on the grounds that he's complaining about protected opinions rather than defamatory statements of fact. Moreover, Mann may not be able to prove that the statements were false, or if they were false, that they were uttered with the requisite mental state. I will not dwell on that point; I'm scientifically illiterate.

I will, however, dwell briefly on Mark Steyn's disastrous response.

First, Steyn is representing himself — he characterized it as "firing" the well-qualified firm that was representing him. Such a defense can be ruinously expensive, and I'm sure that cost was one factor, but as you'll see it doesn't appear that it was the only one.

Second, Steyn has used the opportunity of defending himself to engage in what can only be described as pro-se antics. He's attacking the judges and the system both in print and in legally feckless and argumentative court filings. Is it Steyn's First Amendment right to rail against the judges associated with his case? Of course it is. May a pro se litigant file a motion as a vehicle to rant about the case as a whole, and the law, and society, and the universe at large? Sure. But while such behavior is viscerally satisfying, it tends to produce bad results. Judges are human, as are their law clerks.

Steyn suggests that his behavior is a strategy, of sorts:

As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don't-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.

Third, Steyn has now answered Mann's complaint and filed two counterclaims against Mann seeking $10 million. Steyn's answer and counter-claims are here. The counter-claims are, to put it mildly, problematical. Steyn doesn't state clearly what causes of action he is asserting, but his text suggests he is suing Mann for suing him, and for threatening to sue him and others, and for chilling speech by issuing legal threats. There are many problems with this legal theory. Among them: the litigation privilege generally prevents you from suing people for suing you, or for things they say in the lawsuit. The exception is the tort of malicious prosecution, but to sue someone for malicious prosecution you first must show that you won the case. Steyn hasn't won the case, and can't sue for malicious prosecution. (This is exactly why "I'm counter-claiming against you for suing me!!!" is something you generally only see from pro se litigants. It doesn't end well for them.) Moreover, the litigation privilege often covers threats to sue, treating them as part of the litigation as a whole.3

The bottom line is this: Mann's threats and litigation may well be privileged — immune from suit. If that's the case, then Mann may be able to respond to Steyn's counter-claims with an anti-SLAPP motion of his own. He may win, which would not only require Steyn to reach into his pocket for Mann's legal fees, but would hand Mann a huge and dramatic propaganda victory.4 I know California's anti-SLAPPP statute and litigation privilege well, but I am not an expert on District of Columbia law. But my review of the law suggests that Steyn's counter-claims are, at a minimum, a very risky gambit. Perhaps there is some theory behind them with a sound basis in law; perhaps Steyn is getting competent legal advice. But I am skeptical.

Mark Steyn seems very frustrated and impatient with the flaws and delays of the legal system, and how it has failed to dismiss what appears to be a censorious lawsuit attacking opinion. It's not unreasonable to be frustrated and angry. It's not unreasonable to say that our legal system ought not require this priest caste of lawyers to navigate lawsuits attacking our fundamental rights. It's not unreasonable to say that such things are outrageous, and the public ought to know about them. But it is unreasonable to expect to be able to navigate the existing complex legal system without training and experience. It is unreasonable to expect publicly castigating your judges to produce favorable results. It is unreasonable to expect angry pro se behavior to produce something other than angry pro se results. You can argue that things ought to be different. I do. But, in terms of producing a good result in a particular case, such arguments are like quarreling with the barrel of a gun.

I support the defendants, including Steyn, in their defense of Mann's censorious lawsuit. I would donate to a Steyn defense fund. I would, if asked, try to round up pro bono support for Steyn — though he is a much, much bigger fish in this bloggy ocean that I am and ought not need my help. I've supported Steyn's efforts against censors for years. But I can't support what appears to be either a grand mal seizure of self-indulgence or an ill-considered piece of performance art. Steyn's approach to this makes it significantly less likely that this case will produce a result favorable to free speech. That hurts not just him, but his codefendants and everyone who might face a censorious and politically motivated lawsuit. If Steyn's antics help Mann win, censors everywhere will be emboldened. I hope someone with Mark Steyn's ear convinces him to stop treating this as a show trial.

Science Fiction Community Generates This Weekend's Buffoonish Defamation Threat

Sean P. Fodera is a science fiction writer who works in the publishing industry. He's angry.

He started out angry over ongoing upheaval in the science fiction and fantasy literature community. That upheaval is mirrored in the gaming community and skeptic community and other communities with devoted and vocal fanbases. It's a conflict between two groups: a group that thinks the communities have a problem with racism, sexism, and harassment and should take steps to address it, and a group that thinks that the first group is engaged in free-speech-suppressing political correctness and should be resisted. A full description of the dispute would be too lengthy for this post.5

The Daily Dot published a post about this ongoing dispute, and in the course of doing so quoted and linked to some of the angrier things that Fodera said about Mary Robinette Kowal, a science fiction author and officer of the Science Fiction and Fantasy Writers of America. Kowal has spoken out against harassment in the science fiction and fantasy literature community, and SFWA is currently a locus of controversy about such allegations and the official reactions to them. In forum threads on SFF.net, Fodera complained at rather tedious length about Kowal, called her things like "incompetent," said that she agitated him in a manner he compared to how dogs agitate him, and sneered that she was a hypocrite for complaining about sexism given how she sometimes dresses:

I find it very funny and ironic that she would jump on this bandwagon. For a long time, her website featured an array of photos of her in a diaphanous white outfit, posing on a beach. No metal bikinis or such, but they were not innocuous writer headshots either. One of them, with her recumbent on the sand with legs exposed, made her somewhat attractive. I also recall she's fond of wearing tight-fitting gowns and plunging necklines when she attends cons and award ceremonies.

I'll have to add "phony" to "incompetent" and "arrogant" in the mental tags I've assigned her.

Girls give up the right to complain about sexism unless they dress conservatively. It is known.

Anyway, if Fodera was angry before, this coverage made him really angry. How dare someone quote him and link to the full quotes! He penned this threat:

I will note that since I now have the name of the writer, and I can prove that the quotes were edited to change their meaning, I have a very good case for a libel suit. I suppose no one noted that I work in the legal profession within the publishing industry, and have taught college courses on the subject.

BTW, as of now, it looks like the article was "shared" 1,200 times already. That makes each of those sharers a part to the libel, and makes each of them equally culpable in the eyes of the law. I'll speak to my attorney first thing tomorrow.

The Streisand Effect predictably ensued. Multiple people — author John Scalzi, for instance — wrote about Fodera's bumptious legal threat, and the Daily Dot article probably got several orders of magnitude more traffic than it otherwise would have.

Though Fodera works "in the legal profession" and has "taught college courses," he does not appear to have a firm grasp of the subject matter.

First, Fodera thinks that the Daily Dot article is defamatory. It isn't. The article quotes things he wrote on the internet. It links to his original text so that the readers can judge for themselves. Fodera seems to think that the Dot article wrongly paraphrases or selectively quotes him. That's a tendentious and unpersuasive reading. Take, for instance, how the Dot quoted and paraphrased him in his dog analogy:

He calls Kowal, who is a Hugo-award-winning author, "an unperson… no one you should have heard of." Then he goes on to compare her to an aggressive dog:

“Oh, I know she has no power over me. Still, I get agitated when I think about her. There was a lot of good I could have done for SFWA, and she was a primary factor in my not being able to do it… In a way, it's like my reaction to dogs… My brain kept saying 'it's a service dog; they're well-trained; he won't hurt you,' but my body wanted nothing more than to dump my bowels and flee…”

But the Dot directly links to Fodera's own words. The Dot description and partial quote is fair and accurate. And the readers can determine that for themselves by following the link.

Is it possible for misquoting someone to constitute defamation? Yes. But the bar is set very high. In Masson v. New Yorker Magazine, the United States Supreme Court examined whether fabricating quotes and attributing them to an interviewee could be defamatory. The court applied the familiar "gist" or "sting" doctrine, saying that misquotes are only "false" for defamation purposes if they materially change the meaning of the quote:

We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S., at 279-280, and Gertz v. Robert Welch, Inc., supra, at 342, unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.

Here, the Dot has not materially changed the meaning of Fodera's words. Frankly I don't think they've changed the meaning at all. Moreover, they've linked the words so the reader can review them directly. The Supreme Court's discussion of misquotes was premised in part on the notion that the misquote misleads the reader and gives them no notice that the quote might not be exactly what the speaker said; the Dot's article serves up a way for the reader to read the underlying words if the paraphrase or partial quote interests them. Courts increasingly recognize that linking to one's sources for a challenged statement makes it less likely that it will be treated as defamatory.

Fodera's claim of defamation therefore appears specious.

Second, Fodera appears confident that if the Dot article is defamatory (and it isn't), then anyone who merely links to it is a participant in defamation. That confidence is misplaced; it's not clear whether Fodera is ignorant of the law or merely argumentative about it. While not firmly established in every jurisdiction, the emerging trend is for courts to rule that merely linking to defamatory content does not republish it for defamation purposes. Eric Goldman has good coverage of this issue.

New York, regrettably, has only a mediocre anti-SLAPP statute that wouldn't be of assistance if Fodera is foolish enough to follow up his threats with a lawsuit. But as the sad case of Rakofsky v. The Internet demonstrates, New York judges are still prepared to dismiss frivolous and censorious lawsuits. Moreover, any lawsuit would be an extinction-level event for Fodera's reputation and credibility in the publishing industry, as it ought to be. I would not hesitate to light the Popehat Signal to find pro bono assistance for anyone Fodera menaces.

It's banal to be a trash-talking blowhard on the internet. Fodera could have gotten away with that — there are so many blusterers, and so little time to care about them. But Fodera has transformed himself into something else, something more iconic: the big talker who can dish it out but can't take it. Nobody respects that person. Nobody should. Fodera strikes me as a sad and stunted person, lashing out at someone for holding a mirror up to him.

I sent Mr. Fodera an email seeking comment, and asking for responses to some specific questions, but have not heard back as of the time of this writing.

Texas Attorney Carl David Ceder Makes Bogus Libel Threat Against Scott Greenfield of Simple Justice

"Never miss a good chance to shut up." "If you find yourself in a hole, stop digging." "It's not the crime, it's the cover-up." "First, do no harm." These familiar sayings all carry the germ of the same simple but true idea: when you're in a jam, it's easy to make it worse, so try not to.

Plano, Texas attorney Carl David Ceder ought to familiarize himself with that rule.

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