Adam Steinbaugh's

The revolving door of attorneys momentarily employed by censorious asshats Roca Labs has now produced this gem: the company wants to amend its complaint in its suit against PissedConsumer.com to allege that it’s defamatory to call them “censorious asshats” (which they are.)

In a complaint so long — clocking in at three hundred and fifty-four paragraphs — and saturated with images that it had to be sent to the court in four separate files, Roca “Censorious Asshats™” Labs is very angry.  I’ve stitched the complaint together below, if your computer is capable of handling seventy-four pages of censorious asshattery.

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Sometimes the best response to a censorious threat of litigation — especially when the saber-rattler has a lengthy history of filing dumb lawsuits — is to show up first and put them on the defensive.

Roca Labs’ litigation history is fairly extensive for the short period of time in which they’ve made the courts their sandbox, so I won’t repeat it here, but Techdirt’s coverage has been fairly comprehensive and is well worth perusal.  In short, Roca Labs is a Florida company which produces a nutritional supplement purporting to allow amazing weight loss, but it’s so amazing that in order to buy it, you have to promise not to criticize the company.  Roca has issued threats of defamation lawsuits against many critics and has followed through on some of them, including a series of lawsuits targeting consumer gripe site PissedConsumer.com and reviewers who criticized Roca on that site.  These lawsuits are frivolous abuses of the legal system designed to intimidate critics into silence.

Around the time that Roca Labs was losing its quest for a court order mandating that PissedConsumer stop letting people criticize the company, Roca issued a demand under the DMCA, asserting that PissedConsumer was using a thumbnail version of Roca’s logo and a photograph of Roca’s product.  Plus, the complaint continued, PissedConsumer was infringing on Roca’s trademark by using its name “in the URL and pages.”

Had Google accepted Roca’s complaint, it likely would have resulted in Google removing the PissedConsumer criticism of Roca Labs from Google’s search results.  Of course, this is exactly what Roca is trying to do, as it has gone as far as to file a lawsuit with that explicit goal.  And, of course, it didn’t work.

Now PissedConsumer is going on the offensive, filing a lawsuit in the Southern District of Florida under the DMCA.  PissedConsumer alleges that Roca Labs knew or should have known that its DMCA takedown notice was frivolous, as the use of the logo was clearly a fair use, rendering Roca Labs liable for damages caused under 512(f).  While there are some potential pitfalls for this claim — I won’t help Roca by pointing them out here — there is some support for the notion that a takedown notice issued against clear fair uses runs afoul of 512(f).  Plus, PissedConsumer has added a cause of action for Roca Labs’ attempted use of the DMCA to assert a trademark right, which was clearly an inappropriate use of the DMCA takedown mechanism.

PissedConsumer is also seeking declaratory relief that its use of Roca’s name did not infringe on its trademark, as well as declaratory relief that various statements — for example, that “Roca Labs […] believes that it can silence you through fear and intimidation directed at Pissed Consumer” — are not defamatory.  Because they aren’t.  PissedConsumer also asserts that Roca’s conduct has amounted to an abuse of process.  Which it is.

PissedConsumer v. Roca Labs

Ares Rights is a Spanish firm which claims to act on behalf of various officials of and entities connected to the government of Ecuador, invoking American copyright law to target critics of Ecuador (or of Ares Rights) and demanding the removal of criticism, claiming a copyright interest.  They’ve made dubious claims against, among others, Buzzfeed for posting documents linking Ecuador’s government to the purchase of electronic spying equipment and Chevron for criticizing a lawsuit involving environmental abuses in the region.  Most targets, however, have been dissidents within Ecuador without the resources to easily contest Ares’ claims.

When questioned about whether Ares Rights actually represents the clients they claim, the firm demurs, vaguely citing Spanish privacy laws.  One of their purported clients, Ecuador’s state-owned television outlet ECTV, has denied having hired Ares Rights.  When the Washington Free Beacon criticized President Correa on the subject, Correa blasted the outlet as being “corrupt,” but never denied whether Ares Rights had been hired by his government.  It’s unclear whether Ares Rights actually represents Ecuador or any of the myriad officials it has claimed to represent, or if it’s acting on its own.  The former would be outrageous and the latter laughable, but either scenario should raise concerns about how easily copyright law — and in particular the DMCA — can be abused for political censorship.

In September, Ares Rights directed three DMCA takedown notices to my web host, demanding removal of an entire post because it contained “private and not public data” — that is, an “address, email and telephone” — and “a document with copyright.”  The complaint also implied that the post infringed on a trademark.  The post in question, however, had redacted any contact information and the ‘copyright’ in question arose from a composite image created by a newspaper which contained the logo of Ares Rights.

Worse, Ares Rights intoned: my post “makes a word game.”  My response to Ares Rights was fun to write, and my host declined to submit to their demands.

Yesterday, Ares Rights ¹ tried its luck again, complaining to Twitter that I had tweeted an image linking Ares Rights to (what appears to be) a DMCA notice to Facebook targeting a critic of Ecuador’s government — a notice purportedly sent on behalf of Ecuador’s state-owned television station ECTV.  The complaint cited a violation of Twitter’s “rules regarding posting information or images that the individual claims as private.”  Twitter suspended my account until I promised to comply with the rules, then deleted the tweet in question.  That tweet and the complaint I received from Twitter are below.

The ‘private’ information consisted of an email address belonging to Ares Rights: a professional address associated with a firm purporting to act on behalf of the government of Ecuador.  That email address is easily found on the  Chilling Effects database of DMCA notices.

Twitter is, of course, free to establish their own rules and enforce them as they please.  Their sandbox, their rules. ²  But Ares Rights’ invocation of ‘privacy’ is a fig leaf.  The firm is engaging in a pattern and practice of cynically invoking laws or policies, whether in copyright or privacy, to attempt to harass and intimidate critics of Ares Rights or Ecuador.  I’m not the only critic of Ares Rights to be targeted in this manner.  Twitter has repeatedly yielded to these demands, so Ares Rights will continue to abuse them.

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A brief update on the Roca Labs saga:

While the company has been conducting a scorched-earth litigation campaign against its critics, suing many on much-maligned grounds, it has been quietly facing a class action in California.  The case, filed in September in the Los Angeles Superior Court, alleges causes of action for unfair competition, violations of the Consumer Legal Remedies Act, false advertising, and negligent misrepresentation.

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Charles “Chuck” Johnson, pseudojournalist and (deserved) punching bag du jour, has gained increasing notoriety in the last several days thanks to his self-insertion into the Rolling Stone “Jackie” affair.  Johnson was previously known for falling for bad satire involving a New York Times reporter and Playgirl, screwing up Cory Booker’s residency in a piece about his residency, and publishing the addresses of New York Times reporters to show that publishing addresses is wrong and bad, and publishing the name and address of an Ebola victim.  He’s trot forth his familiar one-trick pony: a social media profile published (more or less) with reckless abandon and even less care for its relevance.  In this familiar refrain, Johnson is Reddit personified: equal parts stream-of-consciousness reporting, crowdsourced-rush-to-judgment, and noxious entitlement.

His latest foray has been widely ridiculed — and for good reason: even if you disbelieve the allegations of “Jackie” set forth in a trainwreck of an excuse for journalism, it’s off-setting to watch Johnson’s giddy dumpster-dive into Jackie’s social media, as he rises with “BREAKING” news of whichever post he found the previous hour, devoid of context and, often, relevance. ¹

So, with irony lost on nobody but Chuck, Gawker’s Deadspin published its own findings from Johnson’s unsecured Facebook profile, wherein he instructed his “resentful” former classmates that they needed to stop contacting him in his newfound days of “notoriety and success.”  Johnson responded to an email from Deadspin offering that “the comments about me shitting on the floor were made up.”  This tale — that Johnson allegedly defecated on the floor of a dormitory in undergrad — is apparently an old joke tossed about by his detractors at Claremont-McKenna.  For what it’s worth, I doubt it’s true.

Deadspin, grasping the irony beyond Johnson’s reach, channeled Johnson’s finesse for speculating wildly from a misinterpretation and satirically asked whether the rather obvious joke was true:

I’d be inclined to believe the guy, or at least give him the benefit of the doubt. But he’s been caught lying many times before, and in the wake of Rolling Stone deputy editor Sean Woods tendering his resignation today, it’s more important than ever to fact check. And so I ask you, dearest readers: Did Chuck Johnson really shit on the floor in college? Please send context, stories, and photos to tips@deadspin.com.

Johnson exploded, demanding a retraction on pain of a lawsuit for defecation defamation of character, and speculating that he may crowdsource funding for his legal efforts (which he’s tried before.)

This never happened. It was made up. Fix it or I will sue you, @nicknotned http://t.co/1rTUTcWVrb

— Charles C. Johnson (@ChuckCJohnson) December 10, 2014

If the past is any indication — and if Johnson gets remotely competent legal advice — this will never, ever happen. Read more

Roca Labs’ latest entry in its endeavor to silence criticism is… creative.

After asking a Florida court for an order deleting posts about the company on consumer ‘gripe’ site PissedConsumer.com (denied) and deploying improper DMCA notices in an attempt to convince Google to remove links to the site (also denied), Roca Labs has now sued eleven John Doe defendants (i.e., defendants whose true names are unknown) in a Florida state court.

The complaint starts off as a claim for defamation, but then gets weird.  Essentially, Roca Labs is asking the court to treat internet comments like real property, allow Roca to give notice of the case through publication, and declare the comments defamatory so that Roca can require search engines to remove access to the comments — if not the entire sites on which the comments appear.

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