Re: Shiva Ayyadurai suing TechDirt over Stories Saying He Di
Posted: Mon Jan 30, 2017 6:07 am
Legal Threats By Charles Harder & Shiva Ayyadurai Targeting More Speech
by Mike Masnick
January 26, 2017
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
Let's say right upfront: if you are unaware, Shiva Ayyadurai is currently suing Techdirt for our posts concerning Ayyaduria's claims to have invented email. Ayyadurai's lawyer in this matter is Charles Harder, the lawyer who filed multiple lawsuits against Gawker, and is credited by many with forcing that company into bankruptcy and fire sale.
Now Harder, on behalf of Ayyadurai, has sent a demand letter to try to have social media comments posted in response to the lawsuit against us taken down. We are writing about this -- despite the lawsuit against us -- because we believe it is important and we do not intend to have our own speech chilled. This is also why we believe it is so important to have a federal anti-SLAPP law in place, because the chance to chill speech with threats or actual litigation is not a hypothetical problem. It is very, very real.
Harder's letter is to Diaspora, and it demands that certain posts by Roy Schestowitz be removed (which appears to have happened). Schestowitz is the guy behind the Techrights blog, which frequently covers issues related to things like free v. proprietary software and software patents. Harder's letter to Diaspora claims that Schestowitz's posts are defamatory, violate Diaspora's terms of service, and "constitute harassment and intentional infliction of emotional distress."
Harder's letter makes the questionable claim that Diaspora itself is liable for Schestowitz's statements. There is tremendous caselaw on Section 230 of the CDA holding that a website cannot be held liable for speech made by users, so it's odd that Harder would argue otherwise, stating that the posts "qualify under the law to establish liability against you."
One of the key reasons Section 230 of the CDA exists is to protect the freedom of expression of users, so that websites aren't pressured via legal threats to take down speech over fear of liability. That's why it grants full immunity. It is surprising that an attorney as established as Harder would overlook this. Elsewhere in the letter, he references Massachusetts law as applying, so it's not as though he's suggesting that some other jurisdiction outside the US applies. So, since Section 230 clearly applies, why would Charles Harder tell Diaspora that it is liable for these statements?
Separately, Harder's letter concludes with the following statement:
This letter and its contents are confidential, protected by copyright law, and not authorized for publication or dissemination.
We have seen similar statements on legal letters in the past and they have generally been considered meaningless, at best. On the question of confidentiality/authorization for publication, that's not how it works. The recipient of such a letter has no obligation to not disseminate it or to ask for authorization without any prior agreement along those lines. You can't magically declare something confidential and ban anyone from sharing it. Furthermore, this is especially true when dealing with legal threat letters. While many lawyers put such language into these letters to try to scare recipients (and avoid a Streisand Effect over the attempt to silence speech), they serve no purpose other than intimidation.
Separately, claims of copyright in takedown or cease & desist letters, while they do show up occasionally, are also generally considered to be overstatements of the law. First off, there are questions raised about whether or not general cease & desist threat letters have enough creativity to get any kind of copyright, but, more importantly, even if there were copyright on such a letter it would be a clear and obvious fair use case to be able to share them and distribute them publicly, as part of an effort to discuss how one has been threatened with questionable legal arguments.
Either way, we believe that this fits a pattern of using legal threats and litigation to silence criticism of public figures. In an era when speaking truth to power is so important, we believe such actions need to be given attention, and need to be called out. We also think they demonstrate why we need much stronger anti-SLAPP laws, at both the state and federal level to protect people's right to speak out about public issues. If you agree, please call your elected representatives and ask them to support strong anti-SLAPP protections, like those found in the SPEAK FREE Act of 2015.
by Mike Masnick
January 26, 2017
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
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Let's say right upfront: if you are unaware, Shiva Ayyadurai is currently suing Techdirt for our posts concerning Ayyaduria's claims to have invented email. Ayyadurai's lawyer in this matter is Charles Harder, the lawyer who filed multiple lawsuits against Gawker, and is credited by many with forcing that company into bankruptcy and fire sale.
Now Harder, on behalf of Ayyadurai, has sent a demand letter to try to have social media comments posted in response to the lawsuit against us taken down. We are writing about this -- despite the lawsuit against us -- because we believe it is important and we do not intend to have our own speech chilled. This is also why we believe it is so important to have a federal anti-SLAPP law in place, because the chance to chill speech with threats or actual litigation is not a hypothetical problem. It is very, very real.
Harder's letter is to Diaspora, and it demands that certain posts by Roy Schestowitz be removed (which appears to have happened). Schestowitz is the guy behind the Techrights blog, which frequently covers issues related to things like free v. proprietary software and software patents. Harder's letter to Diaspora claims that Schestowitz's posts are defamatory, violate Diaspora's terms of service, and "constitute harassment and intentional infliction of emotional distress."
Harder Mirell & Abrams
132 S. RODEO DRIVE, FOURTH FLOOR
BEVERLY HILLS, CA 90212
424.203.1600 - http://WWW.HMAFIRM.COM
January 24, 2017
CONFIDENTIAL / COPYRIGHT PROTECTED
NOT FOR PUBLICATION OR DISSEMINATION
VIA E-MAIL
Diaspora*
support@zauberstuhl.de
support@diasp.org
Re: Dr. Shiva Ayyadurai - Demand for Removal of Diaspora* Posts
Dear Diaspora*:
This law firm is litigation counsel for Dr. Shiva Ayyadurai. We write in connection with the numerous libelous statements in three Diaspora* and Joindiaspora* (collectively referred to as "Diaspora" or "you") posts published by Diaspora user "Dr. Roy Schestowitz (__) ("Mr. Schestowitz) located at the URLs:
Dr. Roy Schestowitz @schestowitz
Ayyadurai is pure evil. Charlatan who lied, paid to spread his Big Lie, when media debunked his lies and sued and got money out of it. Fraud
4:38 AM - 7 Nov 2016
Dr. Roy Schestowitz @schestowitz
"Ayyadurai’s settlement with Gawker Media represents a victory for a" pathetic #liar and #fraud
7 Nov 2016
Dr. Roy Schestowitz @schestowitz
#trump should hire the liar, Shiva Ayyadurai
Feb 7
Dr. Roy Schestowitz @schestowitz
Deepak Chopra, a charlatan and a liar (some would say fraud), turns out to be connected to Shiva Ayyadurai. Para 2:
Feb 5
Dr. Roy Schestowitz @schestowitz
If You Repeatedly Make False Claims, Then Expect Criticism, Shiva Ayyadurai http://schestowitz.com/Weblog/archives/ ... se-claims/ …
Jan 28
Dr. Roy Schestowitz @schestowitz
Anyone out there who received threatening legal letters from Shiva Ayyadurai (including social network platforms)? Please get in touch...
Jan 25
Dr. Roy Schestowitz @schestowitz
Social [Control] Media is now being censored by Shiva Ayyadurai
By means of legal threats on the face of it (still investigating)...
Jan 25
Dr. Roy Schestowitz @schestowitz
I can't seem to find some of my tweets about Shiva Ayyadurai. Did he threaten #twitter like he threatened #JoinDiaspora?
cc @techdirt
Jan 24
Dr. Roy Schestowitz @schestowitz
Here's The Truth: Shiva Ayyadurai Didn't Invent Email https://www.techdirt.com/articles/20161 ... mail.shtml … charlatan and liar
5 Nov 2016
Dr. Roy Schestowitz @schestowitz
"Ayyadurai also threatened to sue us for calling out his false claims, but there's been no lawsuit yet." https://www.techdirt.com/articles/20160 ... mail.shtml … #email
8 Mar 2016
Harder's letter makes the questionable claim that Diaspora itself is liable for Schestowitz's statements. There is tremendous caselaw on Section 230 of the CDA holding that a website cannot be held liable for speech made by users, so it's odd that Harder would argue otherwise, stating that the posts "qualify under the law to establish liability against you."
The Posts Constitute Harassment and Intentional Infliction of Emotional Distress
The falsity of the Posts significantly damages Dr. Ayyadurai's persona and public image. Moreover, through the Posts, Mr. Schestowitz seeks to incite a wave of harassment against Dr. Ayyaudrai. Mr. Schestowitz has used Diaspora as a platform to wrongfully and unlawfully harm Dr. Ayyadurai's personal and professional reputation, which he has worked so hard, for decades, to achieve.
The Posts also constitute intentional infliction of emotional distress, and qualify under the law to establish liability against you. Remedies include monetary damages, punitive damages, and preliminary and permanent injunctive relief.
One of the key reasons Section 230 of the CDA exists is to protect the freedom of expression of users, so that websites aren't pressured via legal threats to take down speech over fear of liability. That's why it grants full immunity. It is surprising that an attorney as established as Harder would overlook this. Elsewhere in the letter, he references Massachusetts law as applying, so it's not as though he's suggesting that some other jurisdiction outside the US applies. So, since Section 230 clearly applies, why would Charles Harder tell Diaspora that it is liable for these statements?
Separately, Harder's letter concludes with the following statement:
This letter and its contents are confidential, protected by copyright law, and not authorized for publication or dissemination.
This letter and its contents are confidential, protected by copyright law, and not authorized for publication or dissemination.
We look forward to your immediate response to this letter.
Very truly yours,
CHARLES J. HARDER Of
HARDER MIRELL & ABRAMS LLP
cc: Dr. Shiva Ayyadurai (via email)
We have seen similar statements on legal letters in the past and they have generally been considered meaningless, at best. On the question of confidentiality/authorization for publication, that's not how it works. The recipient of such a letter has no obligation to not disseminate it or to ask for authorization without any prior agreement along those lines. You can't magically declare something confidential and ban anyone from sharing it. Furthermore, this is especially true when dealing with legal threat letters. While many lawyers put such language into these letters to try to scare recipients (and avoid a Streisand Effect over the attempt to silence speech), they serve no purpose other than intimidation.
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.
-- Letter from Paul Levy to Donald Morris Dated October 5, 2007
Separately, claims of copyright in takedown or cease & desist letters, while they do show up occasionally, are also generally considered to be overstatements of the law. First off, there are questions raised about whether or not general cease & desist threat letters have enough creativity to get any kind of copyright, but, more importantly, even if there were copyright on such a letter it would be a clear and obvious fair use case to be able to share them and distribute them publicly, as part of an effort to discuss how one has been threatened with questionable legal arguments.
Either way, we believe that this fits a pattern of using legal threats and litigation to silence criticism of public figures. In an era when speaking truth to power is so important, we believe such actions need to be given attention, and need to be called out. We also think they demonstrate why we need much stronger anti-SLAPP laws, at both the state and federal level to protect people's right to speak out about public issues. If you agree, please call your elected representatives and ask them to support strong anti-SLAPP protections, like those found in the SPEAK FREE Act of 2015.