Dozier Internet Law Legal Update

I am looking forward to seeing many of our Dozier Internet Law clients at the Affiliate Summit this week.

In California, an appeals Court has ruled that a subpoena cannot go forward in a case arising out of a lawsuit in Florida. The plaintiffs in the lawsuit sued the unknown individual for a number of statements. The plaintiffs attempted to subpoena documents from his Internet service provider in order to show the source of the comments, but they did so in California. The California Court found that the statements were not defamatory. Need I ask why, given California's pro-free speech inclinations, the plaintiff did not serve the ISP in Florida and let the much more conservative, and pro-business, Florida courts decide the issue? It is obvious service of process could have been obtained in Florida since the service provider operates and provides services in Florida.

The UK is threatening to start enforcing a policy of three strikes and you are out on web theft. If you are caught stealing content or streaming video/audio the ISPs are moving towards a program that cuts off your web access. It's about time. The US should follow suit, and pass a law that clamps down on stealing someone else's property by requiring action similar to the copyright takedown notice we use now for website content theft.

A Canadian court has sentenced a man to four months in jail and three years of Internet limitations for publishing comments on the web that promote hatred. When I see decisions like this, it reminds me that the US view of free speech isn't held by most of the world. This type of language would likely be protected in the US unless it was uttered as "fighting words" and that would require an imminent threat of physical harm.

As we move slowly closer to an Internet predominantly governed by others, it is going to be interesting to see how free speech rights play out. It strikes me that a bit of self regulation, instead of turning every free speech issue into a court battle, may be the wise approach for the liberal, free speech extremists. I am not sure how US free speech arguments will fly in China, or Russia, or even the UK or Europe, but my guess is that the day is fast approaching when individuals will be sued in foreign countries under the "effects test" or another theory of law that the foreign country finds adequate. I am not sure how the EFF, Public Citizen, and the ACLU will be welcomed around the globe, but they don't seem to be too worried.

The last time I checked, Public Citizen was challenging our firm to sue one of its clients in Canada because its client would not respond and a judgment would, according to Public Citizen, be useless. Of course, experienced litigators know that there are tools to collect a Canadian judgment even against a US defendant. If the defendant ever decided to travel to Canada, he could be hauled into a debtor's interrogatory hearing and required to turn over his cash and all of his property on the spot, with a few exceptions. If he failed to appear, an arrest warrant could issue, just like here in the US. And, in case Public Citizen does not understand garnishment laws, its client, generating "adsense" revenue from Google, would soon see all of that disappear since Google can be served in Canada with a post-judgment attachment for all sums due under the program. These are just two methods available to collect. Next time you hear from Public Citizen and their ultra-liberal friends that you have nothing to worry about... you had better start worrying.

By the way, as much as these free speech groups like to jump into litigation, have any of their clients ever wondered where the money is going to come from to pay the judgment when they lose? That day will come, of course, and while another $11 Million defamation judgment like we saw a couple of months ago may not be in the offing, a big judgment is inevitable. When that happens, the free speech groups will be pleased with all of the funds they have raised from contributors for legal fees, but who is going to pay the judgment or face bankruptcy? Wanna guess?