Criticize Online, Get Fined 470
maxpublic writes "Yet another outspoken critic of corporate America has been SLAPP'ed - only this time, Dan Whatley didn't even know he'd been sued until he was presented with a $450,000 judgement. For those who don't know, SLAPP stands for 'Strategic Lawsuits Against Public Participation' and is used to silence people who openly criticize thin-skinned corporations." In this case the company doing to suing is Xybernaut, the makers of
wearable computers mentioned here many times in the past. This article is a must
read. And now Xybernaut has joined Amazon and others on my list of Must-Avoid
companies. This is a creepy run around the 1st Ammendment, and you should
be aware.
bullshit taco (Score:5, Insightful)
someone's lying, but who? (Score:5, Insightful)
too many lawyers (Score:5, Insightful)
--David Melinkoff, Professor of Law, UCLA
Here We Go (Score:5, Insightful)
"If Steve Newman was not a relative his job would consist of
heh. Now, you are a big item here and I'm sure a bunch of other forums and blogs. Good luck trying to sell anything at all.
Freedom of speech? (Score:1, Insightful)
First Amendment (Score:5, Insightful)
The First Amendment is a restriction on government, not on you, your neighbor or a business.
This was a civil judgement not a criminal conviction, the First Amendment does not apply AT ALL.
Lawsuits - Chapter 1 - Notice (Score:3, Insightful)
But even more important is to know that you have been sued to give you a chance to fight. That's called subject matter jurisdiction and can only be conferred by good service of process [if they hand you a copy of the complaint, nail it to your door, etc.] He will argue that the company never served him. If he can show that, the original judgment against him is gone.
Of course none of this should be construed as creating a lawyer/client relationship and your mileage may vary.
Only in the USA (Score:0, Insightful)
Re:Freedom of speech? (Score:2, Insightful)
Is this really Libel? (Score:3, Insightful)
But honestly, we're talking about a day-trader message board here, right? I think this kind of "insider information" (accurate or not) is exactly what they should be facilitating. I used to live in Lower Manhattan, and if you go to any wall street bar you'll hear much more unvarnished and opinionated statements being made about potential investments. Of course, that's bar-talk and this is an online posting, but it seems to me that saying a company's management if full of it (even if you use creative langure) aught not to bring legal action.
Of course, when you bruise a wealthy, powerful executive's ego, especially if you do it by hitting a little too close to home, you're liable (no put intended) to see some blowback.
An old story... (Score:3, Insightful)
I didn't see RMS, ESR, or any of these other "freedom" luminaries rise up for environmentalists or Native Americans or the homeless or anti-pollution activists, so I have little sympathy that they're whining in their (free?) beer now about how mean, nasty corporations are picking on poor techies. Too bad, guys -- you lost the war when you failed to fight for others. Now that the fight is in your backyard, you care -- but it may be too late, because the rights were eroded long before the DMCA became reality.
Freedom of speech isn't just about the GPL and software; it's about fundamental human rights and corporate control of government.
Re:Criticize? (Score:5, Insightful)
2) If he had provided deep insight they might have had a real case against him, as the article indicates, simple troll is not actionable in many states. The other issue here is living in a state where the law protects you vs an action in another state where there is no statutory protection. Online flames aside there are individual protections to protect individuals against getting sued remotely like this.
3) As for the letter, it's too late, he'll have to hire a lawyer to even raise the issue, but now he has no opportunity for a pretrial dismissal, this will get really expensive. He has to appeal this. If he ignored the letter it was the dumbest thing he ever did.
Re:someone's lying, but who? (Score:5, Insightful)
To sum up: Do the facts even matter? PANIC!
Re:harry potter (Score:2, Insightful)
Harry Potter + Internet + Kids being treated badly = story.
And how is /. coming to the aid of anyone here? Somebody tossed this place a link with some pithy commentary that an "editor" liked and it got posted so a bunch of us can comment on the issue. For most of the readership, this story will be old news and forgotten by Monday and not a single victim listed in that article is going to get an ounce of love from /.
If the Harry Potter story is so dear to your heart, find a link, come up with some pithy commentary that will generate lots of discussion and post it. Take those recent stories about raisethefist.org (iirc.) That was about a kid not an adult.
Re:An old story... (Score:2, Insightful)
cause out there does not mean that they don't believe
in the rights of the advocates of causes that do not
pertain to software.
Re:1st amendment does not apply (Score:3, Insightful)
Wrong. Use of the courts is a GOVERNMENT function. A court MUST respect a defendant's Constitutional and other legal rights.
What you are thinking of is that a corporation isn't bound by the 1st amendment with respect to your employment, etc (ie, they can fire you for saying something they don't like). That is a different issue from using the government to punish someone for what they said. IMO, it shouldn't happen, except in cases of libel and slander.
BTW, it used to be virtually impossible to prove slander of a corporate entity, but now that we have has a decade of new court appointees coming from corporate lawfirms... Well, do the math.
Re:someone's lying, but who? (Score:3, Insightful)
Re:harry potter (Score:3, Insightful)
Seriously though, at least the kids get the chance to take their site down before the judgement arrives on their doorstep, and the law is such that if Rowling doesn't protect her copyright she will lose it. This is the same reason Linus Torvalds gives when he charges companies six figure sums to use the Linux logo. He HAS to do it because if he doesn't the Linux trademark will enter the public domain and be abused.
How to Fight? (Score:3, Insightful)
Re:harry potter (Score:3, Insightful)
"You know, I haven't seen Slashdot come to the aid of (insert your favorite cause here)"
"Screw helping the (insert your favorite oppressed minority here)"
slashdot can't address every single injustice in life; they choose stories based on what they think is appropriate for the site. yes, it's arbitrary; it's allowed to be.  if you don't like it, make your own website.
This Judgment is Easily Undone (Score:5, Insightful)
In this case, it is easy for the judge to allow the default because apparently Mr. Whatley never responded to the complaint. That is understandable because if he is correct, he never received notice. The whole lack of notice argument brings the whole realm of Due Process under the United States Constitution into play. Judges tend to be VERY sensitive to notice problems. Virtually every state's Rules of Civil Procedure have clear guidelines for how to handle these not-uncommon scenarios.
It should be relatively easy for Mr. Whatley to get this undone. Then the battle really begins.
Re:Here We Go (Score:4, Insightful)
>If you have money, you win.
This is true. You can stick your head in the sand and pretend its not, but the evidence is all around. O.J. Simpson anyone?
On the other hand, why are we surprised? We have *intentionally* built a capitalist society. Many Americans will *proudly* tell you that they are capitalists.
Capitalism works precisely because it starts on the base assumption that humans are greedy and selfish by nature (I'm not knocking Communism, which assumes humans are interested in 'helping their brother', but it has been less sucessful historically).
The most important thing in a capitalist society is... *gasp* CAPITAL! Of course the system favours people with lots of money and large tracts of land... this is by design. Money == Power. Period.
A side effect of this, of course, is that corporations (who have boatloads of capital) end up being far more powerful than individuals. Thats just the way it is.
I'm not saying this is a good thing (personally I find it frightening that big corps have so much power), but I'm not sure there is a lot that can be done about it at this point. You also can't argue that its been rather sucessful. Most Western nations are capitalist to one degree or another (like all things policital, its a spectrum, not an absolute) and the U.S. is one of the 'most capitalist' of the lot. Is it a coincidence that its also so powerful and affluent? (Yes, its an oversimplification, but I think the underlying point is valid).
Bottom line: we can't create a capitalist society and then turn around and pretend to be shocked when we see... a capitalist society.
Re:First Amendment (Score:5, Insightful)
If Congress can make no such law, the courts will not enforce such laws.
Rights can't be signed away. That's part of their definition. Therefore contracts can't place any restriction on a person's speech either.
Therefore you can't have NDAs, even when legitimate. You can't have trade secrets, even when legitimate. You can't have out-of-court settlements with a confidentiality clause.
Taken to an extreme, you can't even assert doctor-patient or lawyer-client privilege. If your doctor wants to make you the butt of a joke he can.
Maybe you're comfortable with this, but this is *far* from where the law is today.
Re:First Amendment (Score:3, Insightful)
Uh, I read the first amendment like this: "Congress shall make no law [...] [making it possible for anyone to abridge someone else's] freedom of speech, or the press [...]"
Wow! This style of inserting whole phrases at random points into the Bill of Rights [cornell.edu] could open up whole new avenues for the Supreme Court:
Yep! The constitution doesn't just protect us from a state religion; it actually mandates blasphemy!If a law enables companies to suppress free speech by allowing those companies to file SLAPP lawsuits, isn't that a law abridging the freedom of speech, even if only indirectly?
In a word? No. It's just an egregious misuse of the legal system. If the government were using or paying corporations to sue individuals because of their political beliefs or actions, then you'd have a First Amendment issue.