FC: Politech subscriber wins linking case after sued by church

[Declan McCullagh <declan () well com>]

Previous Politech message:

"Churches sue critic for linking"
http://www.politechbot.com/p-03192.html

---

Date: Tue, 16 Jul 2002 01:05:00 -0500
From: "The Very Rev. Tony Begonja" <tbegonja () earthlink net>
To: declan () well com
Subject: Update on "Churches sue critic for linking"

Declan,

This round, this case, draws to a close, I think, at least for now:

On June 12th, after sifting through a blizzard of paper and sitting
through two hearings, U.S. Magistrate Judge Shaffer made his
recommendations.
The gist of it went like this: he granted both remaining Defendant's
motion to dismiss for lack of personal jurisdiction, and he denied the
Plaintiff's erroneously-named motion for "interlocutory injunction".

His recommendation, archived at
http://www.ind-movement.org/lawsuit/pdfs/020617_recommend_on_mtd.pdf
noted that "It is difficult to believe that a reasonable Internet user
would conclude that the disparaging remarks on Defendant's web sites
regarding

Plaintiff's churches and leaders were endorsed by Plaintiffs or that
such remarks would likely cause confusion as to their source." (p. 18).

His recommendation went further to defend fair use and freedom of speech

on the Internet: "Plaintiff's request for injunctive relief sweeps too
broadly under the guise of protecting Plaintiff's alleged copyrights.
Applied literally,
Plaintiffs motion would prevent Defendants from using Plaintiffs'
service mark even
under circumstances that would not be commerical in nature, or would not

be likely to cause confusion, or that might be protected under the fair
use doctrine.
... Fair use is also a limitation on a copyright owner's exclusive right

to reproduce copyrighted works. ... As a practical matter, it would be
extremely
difficult for this court to fashion an order that would be certain not
to chill
protected speech." (p. 20)

On June 24th, the Plaintiff's objected to the magistrate's findings.
This
objection is posted at
http://www.ind-movement.org/lawsuit/pdfs/020620_pls_object_to_%20recom.pdf

Finally, on July 5th, U.S. District Judge Miller made his brief ruling.
Rather than deal with the Plaintiff's June 24th objection, Miller
granted Defendant
Griffith-Mair's motion to dismiss for lack of venue -- which
automatically
covers all Defendants -- and he denied Plaintiff's request for
"interlocutory
injunction". Miller's ruling is posted at
http://www.ind-movement.org/lawsuit/pdfs/020705_order_on_recommend.pdf

=============================================================

One comment I wish to make on Magistrate Judge Shaffer's recommendation:

While some of the remarks on my website regarding the Plaintiff churches

and leaders may seem "disparaging", I stand by them, because they are
quite
true.

=============================================================

I'm glad Judge Shaffer expressly told the Plaintiffs during the two
hearings
that he would not entertain any further attempts to add ISPs and their
upstream
providers to this case. You see, the Plaintiffs not only tried to add as
a new
Defendant the upstream provider of my new ISP, but also harassed the
Electronic Frontier Foundation itself (EFF) since the owner of my new
ISP has his day job
with them.) It is unclear, though, to me what will happen regarding the
defaulted-Defendant ISP "Direclynx".

=============================================================

>From PACER:

6/12/02  116     MAGISTRATE'S RECOMMENDATION gr #22 Begonja's mtn to
dism;
                 gr #85 Griffith's mtn to dism; den #4, pla's mtn for
inter
                 inj; deny as moot #21 Begonja's mtn to str; #22
Begonja's
                 mtn to quash; #72 pla's mtn to str; #73 pla's mtn for
lv to
                 file; #88 Griffith's mtn .. to prohibit by Magistrate
                 Judge Craig B. Shaffer   concerning Begonja's motion to

                 dismiss for lack of jurisdiction [22-1] Griffith's
motion
                 to dismiss for lack of jurisdiction [85-1] pla's motion
for
                 Interlocutory (preliminary) injunction re: infringment
of
                 copyrights [4-1] Begonja's motion to strike pla's
motion
                 for Interlocutory (preliminary) injunction re:
infringment
                 of copyrights [4-1] [21-1] Begonja's motion to quash
                 service of process [22-2] pla's motion to strike
executed
                 waiver of service [16-1] by Directlynx, Inc. [72-1]
pla's
                 motion to amend pla's complaint [3-1] [73-1] Griffith's

                 motion for order prohibiting conduct of harrassment by
plas
                 or atty against myself and Canadian Internet service
                 provider [88-1] ; to motion to dismiss for lack of
                 jurisdiction [22-1], to motion to dismiss for lack of
                 jurisdiction [85-1], to motion for Interlocutory
                 (preliminary) injunction re: infringment of copyrights
                 [4-1], to motion to strike  motion for Interlocutory
                 (preliminary) injunction re: infringment of copyrights
                 [4-1] [21-1], to motion to quash service of process
[22-2],
                 to motion to strike executed waiver of service [16-1]
by
                 Directlynx, Inc. [72-1], to motion to amend pla's
complaint
                 [3-1] [73-1], to motion for order prohibiting conduct
of
                 harrassment by plas or atty against myself and Canadian

                 Internet service provider [88-1] (cc: all counsel) ;
entry
                 date : 6/13/02 (db) [Entry date 06/13/02]

6/24/02  117     OBJECTIONS by plaintiffs to Magistrate's Recommendation

                 [116-1] (db) [Entry date 06/25/02]

7/5/02   118     ORDER  by Judge Walker D. Miller adopting [116-1] -
                 Magistrate's Recommendation granting in part and
denying in
                 part dft's motion to dismiss for lack of jurisdiction
                 [85-1], denying as moot motion to dismiss for lack of
                 jurisdiction [22-1], motion for Interlocutory
(preliminary)
                 injunction re: infringment of copyrights [4-1], motion
to
                 strike  motion for Interlocutory (preliminary)
injunction
                 re: infringment of copyrights [4-1] [21-1], motion to
quash
                 service of process [22-2], motion to strike executed
waiver
                 of service [16-1] by Directlynx, Inc. [72-1], motion to

                 amend pla's complaint [3-1] [73-1], motion for order
                 prohibiting conduct of harrassment by plas or atty
against
                 myself and Canadian Internet service provider [88-1]
                 dismissing case (cc:  all counsel) ; entry date :
7/8/02 (db)
                 [Entry date 07/08/02]

=============================================================

The major pleadings and complete PACER record of this case, along with
many other relevant items, are posted at
http://www.ind-movement.org/lawsuit/

=============================================================

One last thing:

The original Politechbot posting trigger some serious discussion on one
of the Harvard
Law School "OPENLAW" Discussion Lists, particularly about the Plaintiffs
complaint
that posting the Cease & Desist letters they sent violated their
copyrights:

http://eon.law.harvard.edu/archive/dvd-discuss2/msg16935.html
http://eon.law.harvard.edu/archive/dvd-discuss2/msg16950.html
http://eon.law.harvard.edu/archive/dvd-discuss2/msg16969.html
http://eon.law.harvard.edu/archive/dvd-discuss2/msg16972.html
http://eon.law.harvard.edu/archive/dvd-discuss2/msg16975.html

Tony




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