Stop criticizing or we'll sue you -- and don't you dare post this threat either

[David Farber <dfarber () cs cmu edu>]

Begin forwarded message:

From: "Paul Levy" <plevy () citizen org>
Date: October 5, 2007 3:41:14 PM EDT
To: <dave () farber net>
Subject: Stop criticizing or we'll sue you -- and don't you dare post  
this threat either

Recently Justin Leonard, the operator of "www.infomercialscams.com"  
and related web sites, got a demand letter from Donald Morris of a  
law firm that calls itself "Dozier Internet Law."  On behalf of a  
company called Direct Buy, Morris threatened litigation for  
defamation if criticisms of Direct Buy were not immediately removed  
from the web site.  Morris claimed that because the web site is  
called infomercial "scams," and allows frustrated consumers to post  
complaints about infomercials they consider to be scams, it forfeits  
any immunity under the Communications Decency Act by inviting  
defamatory posts.

Leonard has refused to cave in to the demand, which is based on  
several elementary legal mistakes that are outlined in our response.   
Because Morris' firm promotes itself to business clients as being  
expert in opposing cybergriping, http://www.cybertriallawyer.com/ 
defamation, and in using copyright law to "get websites pulled down  
without notice," http://www.cybertriallawyer.com/copyright- 
infringement, you'd think he would know about the flaws in his own  
claims.

In fact, it is apparent that Morris has the decency to be embarrassed  
about his authorship of the letter, because he ended it with a threat  
to file a copyright suit if his demand letter was posted online.   
This is malarkey - posting the letter would be patently protected as  
fair use.  Morris told my colleague Greg Beck that he uses this  
threat routinely, and successfully in that nobody has ever posted one  
of his demand letters.

But instead of having to sue infomercialscams.com, Morris should have  
the chance to pick on someone his own size - as I tell him in the  
following open letter, Public Citizen has called his bluff by posting  
his letter to ITS web site.  We will see how much confidence he has  
in the soundness of his legal assertion.

Morris' letter is on our web site at http://www.citizen.org/documents/ 
directbuycd.pdf; our response can be found at http://www.citizen.org/ 
documents/directbuyresponse.pdf.

BY TELECOPIER: (804) 346-0800

        October 5, 2007

Donald Morris, Esquire
Dozier Internet Law
West Shore III, Suite 300
301 Concourse Boulevard
Glen Allen, Virginia 23059

                Re:  How not to write a cease and desist letter-
                        an open letter in response to your September 21 threat

Dear Mr. Morris:

	Here at Public Citizen, we frequently receive requests for  
assistance from prospective clients who have received cease and  
desist letters from lawyers whose clients have asked them to try to  
quash criticism by threatening litigation over some form of  
defamation, trademark, or copyright infringement.  And we can  
understand why a client that has been criticized online might want to  
find some way to avoid the criticism, rather than having to speak  
publicly to respond to critics.  But sometimes we receive demand  
letters that go over the top, making foolish legal assertions and  
seeing violations where a more detached, objective response might be  
to tell the client that this is a criticism that will have to be met  
- or ignored.  Indeed, sometimes we wonder whether the lawyer sending  
the letter has thought to tell his client that the result of sending  
a demand letter might bring attention to criticisms that otherwise  
might have received less attention

	On September 21, 2007, you sent a letter to Justin Leonard,  
complaining about criticisms of DirectBuy on the web sites  
www.infomercialblog.com, www.infomercialratings.com, and  
www.infomercialscams.com.  These web sites give users of infomercial  
products the ability to post either criticisms of infomercial  
products or sales practices that they consider to be "scams," or  
defenses of such products or processes.  The letter begins by  
claiming that the words "scam" and "nightmare" on the web sites, in  
addition to the word "defense," defame DirectBuy by endorsing the  
posters' opinions.   Of course, words like "scam" and "nightmare" are  
statements of rhetorical opinion that do not support a claim for  
defamation.  McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir.1987).    
Moreover, the words fairly characterize the bulk of the opinions of  
former customers who have sent their accounts of their experiences  
with DirectBuy to Leonard's web sites.  Even worse is the claim that  
Leonard defames DirectBuy by pointing out that there had been a  
sudden influx of similarly worded favorable ratings from DirectBuy on  
his web site, all posted from the "same location" - and wondering  
whether DirectBuy might be "behind this." This is a plain example of  
opinion based on disclosed facts - unless you have some information  
suggesting that the stated facts are false.

	Next, you assert that, by creating a category of report called  
"scam," and allowing members of the public to complete reports within  
that category if the posting person believes that the company being  
criticized has misbehaved in the marketplace, Leonard becomes  
responsible for whatever falsity may exist in the posted reports.    
In fact, there is a long line of decisions in state and federal  
courts that recognize that providers of interactive computer services  
like Leonard's are immune from liability, and even from suit, under  
the Communications Decency Act, 47 U.S.C. § 230.  E.g., Batzel v.  
Smith, 333 F.3d 1018 (9th Cir. 2003).  You point to the Ninth  
Circuit's recent decision in Fair Housing Council v. Roommates.com,  
489 F.3d 921 (2007), which allowed a claim to go forward under the  
Fair Housing Act on the theory that the creation of questionnaire  
categories for gender preference, sexual preference, and family  
status is itself inherently unlawful under the federal Fair Housing  
Act.  But of course there is nothing inherently unlawful about  
allowing consumers to characterize infomercial offers as "scams."

	You make the point that DirectBuy has operations in Canada, where it  
allegedly suffers injury.  You told my colleague Greg Beck that you  
might bring suit in Canada, and you made a point of referring to  
operations in Canada when I called you.  I gather that you hope to  
take advantage of the fact that there is no CDA and no First  
Amendment in Canada.  Before you spend your client's money on suing  
in Canada, you might consider whether Leonard has any assets there,  
and whether an injunction obtained in Canada would be worth the paper  
it is written on.  Moreover, Canada does provide some protections for  
fair comment.  Instead of suing in Canada, why not bring suit in  
Tashkent?  At least you'd get an exotic trip out of it, and  
litigation in a totalitarian state would be more consistent with the  
view that the Internet makes it too easy for consumer criticisms to  
be heard. But Leonard won't bother to defend a lawsuit in either  
location.

	But the worst thing about your letter is the end: "Please be aware  
that this letter is copyrighted by our law firm, and you are not  
authorized to republish this in any manner.  Use of this letter in a  
posting, in full or in part, will subject you to further legal causes  
of action."  Such a posting would be fair use.  Moreover, inquiry by  
my colleague Greg Beck produced the interesting information that the  
copyright in the letter has not been registered.  Sadly, according to  
what you told him, you have been successful in this intimidation  
because none of your cease and desist letters has ever been posted.

	There is always a first time.  We are posting the letter on the  
Public Citizen web site (the letter can be found at http:// 
www.citizen.org/documents/directbuycd.pdf) so the public can assess  
our differences by comparing your contentions with our responses.  By  
this letter, we are inviting you to test the validity of your theory  
that the writer of a cease and desist letter can avoid public  
scrutiny by threatening to file a copyright law suit if his letter is  
disclosed publicly on the Internet.

                                                                        Sincerely yours,


                                                                        Paul Alan Levy


Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation


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