Slashdot Mirror
Criticize Online, Get Fined
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.
Mattel has been trying to kill this site. Now the guy turned around and is suing Mattel for $48 million for violating the ADA and some other laws. Glad to see the censorship by litigation people getting slapped back.
So this company is now on your list of "must avoid" companies? You mean, like the RIAA, MPAA and all the other products and companies you've encouraged everyone to avoid but then turn around and buy from and hand your cash to the instant they have something like an Akira DVD or an X-Box you want to buy?
You know, I haven't seen Slashdot come to the aid of the thousands of teens and pre-teens who have harry-potter oriented sites and have been recieving cease-and-desist orders left and right by JK Rowling and WB and whoever else.
I guess it's only important when the law is coming after adults. Screw helping the 12 year olds.
I think it's pretty obvious someone is lying, but I wonder who it is. They claim he got a letter by registered mail, which means he had to sign for it. He claims he never got it. Seems like a simple thing to go back and check the receipt of the letter (if there was one) and see if he signed for it. I have a feeling he really did get the letter, since even the dumbest lawyer would be smart enough not to lie about something that easily checked in court, especially when you know the guy will challenge it when he gets the judgment (of course I could be wrong and the lawyer really is that dumb). I think finding out about the registered letter will clear up pretty much the whole case.
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
Does Xybernaut even have any products that I can avoid? Will they ever have any products, or are they going into the revenue-by-lawsuit business?
Sounds like someone needs to spend less time in chat rooms, more time at the drawing board.
He claims not to have received the registered letter. The judge then made a default judgement against him since the court only heard one side of the case.
Although I'm not exactly sure about the legal implications, I hope that he is telling the truth that he did not receive the notice (rather than just ignoring it). I would imagine (and hope!) there would be some really good recourse to appeal in this case.
If not (if there is little recourse, or if he lied and should have responded), and the judgement is not overturned, I hope that it can't be used a a precedent (since it was won by default, not on the facts). Any lawyers in the room (I'm obviously not one)?
My next sig will be ready soon, but friends can beat the rush!
* Lawyers as a group are no more dedicated to justice or public service than a private public utility is dedicated to giving light.
--David Melinkoff, Professor of Law, UCLA
Yet another symptom of the corporatizing of America. If you have money, you win. Isn't this country "by the people, for the people"? Obviously, Xybernaut is a company losing money. Trying to "protect" your companies interests by suing potential customers is a *real* good way to piss off most of the rest. Personally, I will never, ever buy anything from this company. I will also never recommend it's products to anyone I know. Hey Newman (I'm sure you or one of your storm troopers, er, lawyers will be reading this). I have people asking me every single day about what tech items to buy. From corporate upper management to home owners. I'd say if your weren't percieved as being so incompetent, you wouldn't draw comments like the ones you sued Whatley over. Comments like this:
... 'Would you like fries with that?'"
"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.
--- Think of it as evolution in action ---
This is a creepy run around the 1st Ammendment, and you should be aware.
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.
Eve Fairbanks says I drive a hybrid!LOL
Well, the article said that the guy who got the $450,000 fine claimed that one of the company's senior executives (and brother of the CEO), "if [...] was not a relative his job would consist of ... 'Would you like fries with that?'" He also called them liars.
Normally, I'm all for the little guy, but in this case, seems like the poster was a troll, not an "outspoken critic of corporate America."
Now, if he had provided a deep insight into the company's workings, and if he had some facts to prove that the company management is incompetent, that would've been a questionable case. On top of that, he claimed he never received a certified letter, when it's very, very easy to have USPS check whether such letter was delivered or not. I don't think we're getting the whole story here.
Bush Lies Watch
Well, that's the basis for his over turning the default judgment against him. The US system of law is based on fair play and notice: you must know that you that you might be sued under certain laws. That is procedural matter jurisdiction.
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.
Pay no attention to the man behind the curtain with all your metadata.
"Hey gang, I've got an idea, let's form a company with a preposterous product, like wearable eggs, and sue people who criticize us!"
A feeling of having made the same mistake before: Deja Foobar
Obviously, IANAL
"It is a greater offense to steal men's labor, than their clothes"
I think these SLAPP lawsuits are worrysome in that they create a chilling effect on peoples ability to candidly express their views. Now, if your view consist of "These guys are dicks!" then you might have some libel issues, unless you can be specific about what sort of dicks they are and back it up with evidence.
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.
Howard Dean for president
[Apologies for the slightly off-topic nature of this post. But it appears highly relevant because of the thread.]
How long before Taco or one of the other Slashdot editors is accused of and sued for libel by one of the individuals or corporations that is commented on (and perhaps defamed) on the site?
By the Lectric Law Library's definition, libel is:
Published material meeting three conditions: The material is defamatory either on its face or indirectly; The defamatory statement is about someone who is identifiable to one or more persons; and, The material must be distributed to someone other than the offended party; i.e. published; distinguished from slander. [The 'Lectric Law Library]
By the CyberLibel definition:
A publication without justification or lawful excuse which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule. [CyberLibel]
I tried out the Libel Checklist over at UTexas, and found that a good number of posts by slashdot editor's could at least be considered suspect of libel claims. However, I am anything but a lawyer, and would love to hear a lawyer comment on this.
For example, if an editor posts a comment in response to an article saying something to the effect of "so-and-so's marketing practices are highly suspect and should be avoided by all good slashdotters." If the statement is not provably true, is not a fair report of an official and public record, is not a matter of public concern, is not merely abusive, is not consentual, and is not clearly an opinion, then such statements could, I believe, be intrepreted as libel.
Furthermore, could the users of Slashdot also be sued for libel due to their comments?
Or worse, could I be sued for libel for raising this very question about Rob and Slashdot? Uh-oh. Nevermind...
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.
All about me
Excellent point. Here's a link that has some summary coverage. This is such corporate BS!
Howard Dean for president
It is entirely possible that Mr. Whatley did not recieve the certified mail. In a case like this it is up to the courts to serve the defendant with the notice of hearing. This is done with certified mail. The prosecution can only assume that the person receieved the letter. I have a friend who was doing much the same, except in his case he was suing a business. In his case the business did not show up and he won by forfeit. The company then came to the court claiming that the letter was not receieved. That was when the records were checked and found that indeed they had not recieved the letter. Of course it is also possible to refuse certified mail and by doing so make it appear as though you have not recieved it. Certified mail is no guarantee that a party will recieve a letter.
This is all speculation though, since there is a lot of information we do not know. We can only hope that this is resolved properly, on the side of justice. Besides, $450,000 is an extremely large judgement, and an appeal is still possible.
" it is only a restriction on government, so it has nothing to do with a civil suit free speech and responsible speech are not the same thing..."
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.
=== The price of freedom is eternal vigilance
Unfortunately, this is not the best example of SLAPP suits; it could be argued that someone in the process is simply lying about the certified mail.
A much better example would be a few years back when a woman found out a business in her area was dumping waste behind a school. She notified the state agency to confirm it, and as a resident of that school's district, had a right to be on the property. As a result, she was SLAPP'ed, by the contractor who was hiding the waste. Now THAT is scary. What possible right could that contractor have for suing her, when he WAS guilty?? She was nothing more than a whistle-blower, I don't think any of us would argue with that.
Suing someone over a troll-like post on a messageboard is childlike, and shows a company to be immature. Suing because someone exposed you for poisoning the planet is just downright low, even lower than dumping waste materials behind an elementary school in the first place.
You can read more about SLAPP and that particular lawsuit here at ZeroWasteAmerica.org
Comment removed based on user account deletion
See this is the one thing about the Slashdot forums that utterly pisses me off.. I can read all day stories of corps just beating down the common man, my own government restricting my rights, tons of things that "shouldn't happen here" but nowhere do I see info on which organizations to support to oppose these things or which protests to attend, or anything.. it's like watching a mugging from the comfort my web browser and I'm sick of it. If anyone has sites, or info, hook me up, love to be more involved.
3000 dead over past 2 years, still no free Palestinians, still
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.
Laws affecting technology will always be bad until enough techies become lawyers.
the USPS should have a record of delivery.
It's actually up to the sender to provide the proof, as the "return receipt" represents the return of the green postcard with a signature of it being received as proof.
If you're ever in a situation where this comes up, demand to inspect it. I had one where the other party waived up the certified letter as proof I was aware (which I never received). The little green card was sent to an address not within 10 miles of anywhere I've ever lived, and apparently some idiot with a different name signed for it. Took care of that matter.
*scoove*
You've got to be served by a constable or other officer of the court. You can't just file a suit, mail it out and collect a judgement when the defendant fails to show up. That being said, if you are sued, even if you are completely innocent of everything, it'll most likely cost 10-15k to prove that - and it's 50-50 whether you'll get that money back. That's only if you never go to trial. If you got to trial it'll be more like 50k. If it's inter-state more like 100k. That's why so many suits are settled and why the little guy generally loses unless he's got a brother who is an attorney.
Since their libel claim was that they were libeled because I said that they violated the FMLA, ADA, MGL c.151B (the Mass. version of the ADA), I was able to bring this under those laws. Those laws specifically allow for punitive damages, where simple abuse of process does not.
Fight Spammers!
According to this story at Wired, Xybernaut's Mobile Assistant® V product will be used at COMDEX Chicago by the event staff to reduce queues. I could envision two different ways that slashdotters could protest. If they are actually going to attend, they could wear something that states their position about the company and its practices. If they are not going to attend, but live in or near Chicago (big place, should be a few around somewhere), they could do the usual protest thing on public property at the border of the convention (I'm sure the COMDEX people would never allow them in the convention area).
now we need to go OSS in diesel cars