FC: Sue-happy home builder tries to muzzle Internet critic

[Declan McCullagh <declan () well com>]

Also see by way of background:
http://www.poconorecord.com/topstory/tp063001.htm
http://www.nydailynews.com/2001-07-06/News_and_Views/City_Beat/a-117355.asp

I invite Gene Percudani and Raintree Homes Inc. to reply.

-Declan

********

Date: Tue, 2 Oct 2001 09:15:31 -0400 (EDT)
From: Carl Silverstein <cbs () cbs-net com>
To: Declan McCullagh <declan () well com>
Subject: And yes, another Lenham Act abuse...
In-Reply-To: <5.0.2.1.0.20011001205409.00a3f1f0 () mail well com>

Declan, I have been sued in Federal Court by a builder who is trying to
shut down my web site. The First Amendment is under major attack by
companies who continue to use the Lenham Act in this way.

carl silverstein

http://www.citizen.org/pressroom/release.cfm?ID=844

Oct. 1, 2001

Fuming Homeowner Had First Amendment Right to Establish Web Site Critical
of Raintree Homes

Man Says Pennsylvania Developer Duped Him Into Paying
 $143,000 for a $90,000 Home

        WASHINGTON, D.C. -- A Pennsylvania man who created an angry parody
of a developer's Web site had a First Amendment right to do so and is not
violating the company's trademark, Public Citizen said today in a court
filing.

        Carl Silverstein, an information technologies director at a
computer company, says he was duped by developer Gene Percudani, who runs
Raintree Homes Inc., into paying $143,000 for a $90,000 home. Furious,
Silverstein created a Web site and registered it under the domain names
"www.1800whyrent.org" and "www.1800whyrent.net" -- a takeoff of
"www.1800whyrent.com," Raintree's Web site. On the parody site, which can
be accessed by either domain name, Silverstein mimics Raintree's Web site
format, replacing Raintree's promotional phrases with such things as "We
Will Suck You Dry" and "We-Screw- You."

        Raintree, a Pennsylvania company that is facing a class action
lawsuit alleging consumer fraud and federal racketeering violations, sued
Silverstein and demanded he dismantle his Web site. The developer has
alleged that Silverstein is violating trademark law and has defamed the
company.

        But in a motion filed Monday in the U.S. District Court for the
Middle District of Pennsylvania, Public Citizen argued that Silverstein's
Web site is protected by the First Amendment and that it neither violates
trademark law nor defames Raintree. Public Citizen, a nonprofit consumer
advocacy organization, got involved in the case because of its history of
championing First Amendment rights.

        To establish a trademark infringement, Raintree must show that
Silverstein used Raintree's name in a misleading way to profit from
consumer confusion. However, that has not occurred in this case, said Paul
Alan Levy, a Public Citizen attorney. Silverstein's site is
non-commercial, has no advertising and sells no goods. It would be
impossible for anyone visiting the site to believe it was created by
Raintree, Levy said.

        Further, numerous cases indicate that the site is protected under
the First Amendment.

        "The law is quite clear that consumer commentary is protected
under the First Amendment," Levy said. "Anyone can take out a full-page ad
about a company or post criticism on the Web. In fact, the law
specifically protects the kind of speech Mr. Silverstein posted."

        Finally, Raintree's defamation claims ring hollow because the
company must show that Silverstein acted with malice and reckless
disregard for the truth. (This is what is necessary to prove defamation of
a public figure, which Raintree has become after media coverage of
consumer complaints about the company.) Raintree's lawsuit fails to prove
defamation, Public Citizen's brief said.

        Public Citizen has successfully defended numerous people who have
been sued by companies to dismantle Web sites critical of those companies.
The organization also has successfully defended the right of people to
anonymously post in chat rooms criticisms of companies. For more
information about Public Ciitzen's work on Internet privacy, visit
www.citizen.org/litigation/briefs/IntFreeSpch/index.cfm.

        In the Silverstein case, Public Citizen is working with
Harrisburg, Pa., attorneys Robert E. Kelly Jr. and Marc A. Moyer of Duane,
Morris & Heckscher LLP. For a copy of Monday's filing, go to
www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=6207.

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