FC: Sue-happy home builder tries to muzzle Internet critic

From: Declan McCullagh (declanat_private)
Date: Tue Oct 02 2001 - 06:38:13 PDT

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    Also see by way of background:
    http://www.poconorecord.com/topstory/tp063001.htm
    http://www.nydailynews.com/2001-07-06/News_and_Views/City_Beat/a-117355.asp
    
    I invite Gene Percudani and Raintree Homes Inc. to reply.
    
    -Declan
    
    ********
    
    Date: Tue, 2 Oct 2001 09:15:31 -0400 (EDT)
    From: Carl Silverstein <cbs@cbs-net.com>
    To: Declan McCullagh <declanat_private>
    Subject: And yes, another Lenham Act abuse...
    In-Reply-To: <5.0.2.1.0.20011001205409.00a3f1f0at_private>
    
    Declan, I have been sued in Federal Court by a builder who is trying to
    shut down my web site. The First Amendment is under major attack by
    companies who continue to use the Lenham Act in this way.
    
    carl silverstein
    
    http://www.citizen.org/pressroom/release.cfm?ID=844
    
    Oct. 1, 2001
    
    Fuming Homeowner Had First Amendment Right to Establish Web Site Critical
    of Raintree Homes
    
    Man Says Pennsylvania Developer Duped Him Into Paying
      $143,000 for a $90,000 Home
    
    	WASHINGTON, D.C. -- A Pennsylvania man who created an angry parody
    of a developer's Web site had a First Amendment right to do so and is not
    violating the company's trademark, Public Citizen said today in a court
    filing.
    
    	Carl Silverstein, an information technologies director at a
    computer company, says he was duped by developer Gene Percudani, who runs
    Raintree Homes Inc., into paying $143,000 for a $90,000 home. Furious,
    Silverstein created a Web site and registered it under the domain names
    "www.1800whyrent.org" and "www.1800whyrent.net" -- a takeoff of
    "www.1800whyrent.com," Raintree's Web site. On the parody site, which can
    be accessed by either domain name, Silverstein mimics Raintree's Web site
    format, replacing Raintree's promotional phrases with such things as "We
    Will Suck You Dry" and "We-Screw- You."
    
    	Raintree, a Pennsylvania company that is facing a class action
    lawsuit alleging consumer fraud and federal racketeering violations, sued
    Silverstein and demanded he dismantle his Web site. The developer has
    alleged that Silverstein is violating trademark law and has defamed the
    company.
    
    	But in a motion filed Monday in the U.S. District Court for the
    Middle District of Pennsylvania, Public Citizen argued that Silverstein's
    Web site is protected by the First Amendment and that it neither violates
    trademark law nor defames Raintree. Public Citizen, a nonprofit consumer
    advocacy organization, got involved in the case because of its history of
    championing First Amendment rights.
    
    	To establish a trademark infringement, Raintree must show that
    Silverstein used Raintree's name in a misleading way to profit from
    consumer confusion. However, that has not occurred in this case, said Paul
    Alan Levy, a Public Citizen attorney. Silverstein's site is
    non-commercial, has no advertising and sells no goods. It would be
    impossible for anyone visiting the site to believe it was created by
    Raintree, Levy said.
    
    	Further, numerous cases indicate that the site is protected under
    the First Amendment.
    
    	"The law is quite clear that consumer commentary is protected
    under the First Amendment," Levy said. "Anyone can take out a full-page ad
    about a company or post criticism on the Web. In fact, the law
    specifically protects the kind of speech Mr. Silverstein posted."
    
    	Finally, Raintree's defamation claims ring hollow because the
    company must show that Silverstein acted with malice and reckless
    disregard for the truth. (This is what is necessary to prove defamation of
    a public figure, which Raintree has become after media coverage of
    consumer complaints about the company.) Raintree's lawsuit fails to prove
    defamation, Public Citizen's brief said.
    
    	Public Citizen has successfully defended numerous people who have
    been sued by companies to dismantle Web sites critical of those companies.
    The organization also has successfully defended the right of people to
    anonymously post in chat rooms criticisms of companies. For more
    information about Public Ciitzen's work on Internet privacy, visit
    www.citizen.org/litigation/briefs/IntFreeSpch/index.cfm.
    
    	In the Silverstein case, Public Citizen is working with
    Harrisburg, Pa., attorneys Robert E. Kelly Jr. and Marc A. Moyer of Duane,
    Morris & Heckscher LLP. For a copy of Monday's filing, go to
    www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=6207.
    
    ###
    
    
    
    
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