Canada

Difrawi v. Henderson

Date: 

11/21/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Les Henderson; Daniel Bruce Scalf a.k.a. Frank Torelli; Jeremy Scalf; Conrad Longmore; John Doe 1 a.k.a. Klass Devries; John Doe 2 a.k.a. Dilly McGilly; John Doe 3 a.k.a. Scooper Joo; John Doe 4 a.k.a. www.easybackgroundcheck.com; John Doe 5 aka www.

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Florida

Case Number: 

6:07-CV-1854

Legal Counsel: 

Les Henderson (pro se), Daniel Bruce Scalf (pro se)

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

In November 2007, Internet Solutions Corporation and its President and Director Ayman Difrawi (a.k.a. Alec Difrawi) sued Les Henderson, Daniel Bruce Scalf, Jeremy Scalf, Conrad Longmore, and a number of anonymous defendants for defamation, false light invasion of privacy, and other torts. The plaintiffs subsequently amended the complaint, dropping Longmore from the lawsuit. Henderson and certain other defendants operate websites aimed at increasing consumer awareness about Internet scams and so-called "phishing" activities.

The complaint, filed in federal court in Florida, alleges that the defendants published false and misleading statements about Difrawi and Internet Solutions on a variety of websites and other fora, including comments to the "Money Talk" blog on Tampabay.com. According to court documents, the defendants accused Difrawai of engaging in "on-going criminal activity in the performance of his marketing and consultant business" and suggested that "[Internet Solutions Corporation's] business interests are all fraudulent based on any association or business relationship with Difrawi," among other things.

Henderson and Daniel Bruce Scalf, who are representing themselves, filed separate motions to dismiss the complaint for lack of subject-matter jurisdiction and personal jurisdiction. These motions are currently pending.

Update:

5/1/2008 - Judge ordered Difrawi to show cause why Jeremy Scalf and John Does 1-5 should not be dismissed from the lawsuit.

5/20/2008 - Judge dismissed Jeremy Scalf and John Does 1-5 without prejudice based on Difrawi's apparent lack of prosecution and failure to serve defendants in a timely fashion.

1/21/2009 - Case referred to mediation

5/28/2009 - Mediation set to begin Sept. 1, 2009.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

User submitted (email)

Status checked on 6/3/2008 (AAB)

Updated 1/22/09 - VAF

Updated 6/17/09 - CMF

Comparative Analysis of Copyright Fair Use in Canada, United Kingdom, and United States

Giuseppina D'Agostino, a law professor at Osgoode Hall Law School in Toronto, has a new paper coming out entitled "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use." Here is the abstract:

As a result of the March 4, 2004 Supreme Court of Canada decision in CCH Canadian Ltd v Law Society of Upper Canada for the first time in Canadian copyright history, the court determined that Canadian law must recognize a "user right" to carry on exceptions generally and fair dealing in particular. This paper compares the Canadian fair dealing legislation and jurisprudence to that of the UK and the US. It is observed that because of CCH, the Canadian common law fair dealing factors are more flexible than those entrenched in the US. For the UK, certain criteria have emerged from the caselaw consonant to Canada's pre-CCH framework and in many ways there is now a hierarchy of factors with market considerations at the fore.
The real differences, however, ultimately lie in the policy preoccupations held by the respective courts, with Canada's top court alone concerned in championing user rights above all other rights. The paper concludes that Canadian fair dealing does not require too much healing but would benefit from some remedies outside (and complimentary to) the law and the courts. While doing nothing does not seem to be the appropriate response, legal intervention as many advocate may not be warranted either. Rather than, or at the very least together with, reforming the law, establishing fair dealing best practices is most promising. The parties directly affected in a specific industry can together develop these guidelines to ultimately aid in clearer and ongoing fairer fair dealing decision-making in the courts. It is here that US initiatives can serve as most fruitful to emulate.

It's nice to see some scholarly attention paid to the differences between the Canadian, U.K., and U.S. approaches to this important subject.

You can download the entire article from the Social Science Research Network.

Jurisdiction: 

Subject Area: 

Michael Crook v. BoingBoing

Date: 

11/01/2006

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

BoingBoing

Type of Party: 

Individual

Type of Party: 

Organization

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Description: 

In November 2006, BoingBoing reported that its Canadian-based ISP received a Digital Millennium Copyright Act (DMCA) takedown notice from Michael Crook requesting that BoingBoing remove a screengrab of him from a Fox News channel program "Hannity and Colmes" that BoingBoing posted on its blog. Crook had appeared on the Fox program to talk about a website he created, "craigslist-perverts.org," that contains responses sent to fake personal ads posted on Craigslist.

Crook's takedown notice appears to be self-created, and alleges (by all appearances, erroneously) that Crook owns the copyright in the screengrab, which BoingBoing had taken from a program produced and broadcast by Fox News.

BoingBoing characterized the takedown notice as "bogus" and refused to remove the image from its blog. It says that all copyright in the image resides in Fox, which has expressed no concerns about its reuse of the image, and in any event BoingBoing's use of the image falls squarely within fair use. Prioritycolo.com, the upstream provider to BoingBoing's ISP, replied to Crook that it considered the notice to be illegitimate.

This is not the first DMCA takedown notice Crook has sent. The Electronic Frontier Foundation launched and settled a legal action against Crook for sending an allegedly vexatious takedown notice to the ISP for 10 Zen Monkeys complaining about that website's use of the same image. As part of the settlement, Crook agreed to recall the takedown notices, take a copyright law course, and record a video apology. (For more information on the case, see the CMLP database entry for Crook v. 10 Zen Monkeys.)

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

DA editing

Patches the Beaver v. AsteroidBooty.com

Date: 

11/23/2007

Threat Type: 

Other

Party Receiving Legal Threat: 

AsteroidBooty.com

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Material Removed

Description: 

A blog post on AsteroidBooty.com, an anonymous blog focused on "chronicles from outerspace, products that rock my world, and more," criticized the high price of children's books and contrasted the prices with the (asserted) easiness of writing the books. The post also included a link to the children's book "Patches the Beaver," making a joke about the possible sexual interpretation of the book's title. Along with this link, the post included an image of the book's cover, and a photograph of the book's author Shane Gauthier. Subsequent user comments also poked fun at the title of the book, adding comments about the author's appearance, possible sexual preferences, and his alleged lack of awareness of diversity and multiculturalism issues.

Gauthier's lawyer posted a comment on the blog threatening legal action against AsteroidBooty if the site operator did not remove the post and comments and issue a public apology. The defamation claims primarily involved content posted by the guest commentors; however, the threat stated that "[l]iability for publication of a defamatory statement extends to all those who participate in its dissemination." The comment also noted that damage awards for defamation claims can exceed $250,000.

The operator of AsteroidBooty said in another blog post that she did not receive the comment at first as it seemed to have gotten mixed in with "400+ spam comments." She instead found out about the threat when her webhost called her and sent an e-mail asking her to either remove the content or send a counter-notice that she did not believe it was defamatory.

After locating and reading the threatening comment, the operator of AsteroidBooty removed the disputed content and issued an apology on her blog, noting that "it was all in jest; so I have no problem taking it down. And most of the stuff I wrote was directed towards children’s books in general (not Shane)."

Content Type: 

Subject Area: 

CMLP Notes: 

Caved! And the legal claims were so weak. Arg. {MCS}

User submitted via threat form

Citizen Media Law Podcast #2: Legal Threats Database; Orthomom Defamation Action; Iranian Blogger Sued in Canada

This week, David Ardia previews our legal threats database, Colin Rhinesmith talks about a recent decision on First Amendment protections for anonymous bloggers, and Sam Bayard spotlights a defamation suit involving an Iranian blogger in Canada.

Download the MP3 (time: 9:30)

Music used in this podcast was sampled and remixed from a track titled "Jazz House" by the Wicked Allstars, available on Magnatune.

To subscribe to the Citizen Media Law Podcast, visit our Subscriptions page or go directly to the podcast feed.

 

Jurisdiction: 

Subject Area: 

Khalaji v. Derakhshan (Letter)

Date: 

07/27/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Hossein Derakhshan; Hosting Matters, Inc., and GoDaddy.com, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Blogger Hossein Derakhshan operates two blogs in English and Farsi at www.hoder.com and www.hoder.com/weblog. He wrote a series of blog posts in 2005 criticizing Mohammed Mehdi Khalaji, a fellow at the Washington Instute for Near East Policy.

On July 27, 2007, Khalaji's lawyers sent a letter to Derkhshan, his domain registrar (GoDaddy), and his hosting service (Hosting Matters, Inc). According to the letter, Derakhshan's posts alleged that Khalaji was working for a right wing think tank that openly supported the policy of 'regime change" in Iran and was "giving ideas to the cruelest and dirtiest enemies of Iran and humanity." The letter also took issue with a claim that Khalaji was "the only Iranian who has worked for both Khameni's office and Dick Cheney's, who intends to bomb Khalaji's former office building plus thousands of men, women and children living in the surrounding area." Derakhshan disputes the accuracy of Khalaji's translations of these statements.

As well as demanding that the hosting company and domain registrar take down the defamatory statements, Khalaji sought an apology and $10,000 in settlement. After a lengthy back-and-forth between Derakhshan and Hosting Matters about what material Derakhshan would take down from his blogs, Hosting Matters terminated Derakhshan's accounts in August 2007. Days later, Derakhshan's blogs were back online with a different hosting service, 1&1 Internet, apparently with the disputed posts still in place.

Khalaji filed a lawsuit against Derakhshan in the Ontario Superior Court of Justice in October 2007. (For more information, please see the CMLP's database entry, Khalaji v. Derakhshan.)

Jurisdiction: 

Content Type: 

Subject Area: 

Khalaji v. Derakhshan

Date: 

10/19/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Hossein Derakhshan

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

International

Court Name: 

Ontario Superior Court of Justice

Case Number: 

07 CV 342132 PD

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

In October 2007, Mohammed Mehdi Khalaji, a fellow of the Washington Institute for Near East Policy, filed a defamation lawsuit in the Ontario Superior Court of Justice against prominent Iranian-born, Canadian-based blogger Hossein Derakhshan. Khalaji alleges that, in a number of posts beginning in October 2005, Derakhshan made defamatory comments about him in Persian.

Specifically, Khalaji takes issue with Derakhshan's claims that he (Khalaji) was working for a right-wing think tank that openly supports the policy of "regime change" in Iran, that he was "giving ideas to the cruelest and dirtiest enemies of Iran and humanity," and that he was "the only Iranian who has worked for both Khameni's office and Dick Cheney's, who intends to bomb Khalaji's former office building plus thousands of men, women and children living in the surrounding area." Derakhshan disputes the accuracy of Khalaji's translations of these statements.

In his lawsuit, which was filed on October 19, 2007, Khalaji seeks $2 million in damages based on these and other allegedly defamatory statements, which he claims are malicious and designed to incite violence against him and his family.

Prior to the lawsuit, on July 27, 2007, Khalaji's lawyers sent a letter to Derkhshan, his domain registrar (GoDaddy), and his hosting service (Hosting Matters, Inc), demanding that defamtory posts about him be taken down. Hosting Matters ultimately terminated Derakhshan's accounts in August 2007. Days later, Derakhshan's blogs were back online with a different hosting service, 1&1 Internet, apparently with the disputed posts still in place. (For more on the letter threat, please see the CMLP's database entry, Khalaji v. Derakhshan (Letter).)

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Needs updating

Status checked on 6/5/2008, couldn't find anything new.  Derakhshan does mention in a Feb. 2008 post that he has a pro bono lawyer, but the details seem to be in Persian. (AAB) 

AVM 6/11/09 - Derakshan was arrested in Iran on 11/1/2008 and has been detained without charge. I do not know how the Canadian court would react to this, I imagine the case is on hold. 

Warman v. Beaumont

Date: 

01/06/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jessica Beaumont

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

International

Court Name: 

Canadian Human Rights Tribunal

Case Number: 

T1106/8705

Verdict or Settlement Amount: 

$4,815.00

Legal Counsel: 

Paul Fromm (non-lawyer, aided Defendant)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Verdict (plaintiff)

Description: 

Over a two-year period, Jessica Beaumont wrote and published over 1000 posts on a white supremacist forum called Stormfront White Nationalist Community, using the pseudonym "Jessy Destruction."

Here are some illustrations of her alleged postings: Regarding blacks moving to western Canada, she wrote, “It could get worse, lets just cross our fingers and hope they all die off from AIDS.” Regarding mixed-race relationships, she wrote, "Ever seen a tar black negroid and a chink? That’s a pretty sick/funny site," and she recalled witnessing a white man “with a veiled muslim that looked fresh off the boat, with the mud baby in the stroller!” Regarding Jews, she wrote, "I don’t understand why someone would attack helpless dogs [as] opposed to going after those dirty Jewish animals directly," and, "I believe that Jews are literally spawn of Satan himself." In one post she summed up her feelings for non-whites as follows: "I just don’t feel the need to be-friend non-whites, as they can do nothing for me, nor would I like to associate with them. I am fine with my own kind, and always will/have been. Theres my f*cking answer. Good enough?"

In January 2006, Richard Warman, an Ottawa-based lawer who specializes in human rights law, filed a complaint against Beaumont before the Candian Human Rights Tribunal. He alleged that, by publishing discriminatory statements on the Internet, Beaumont had exposed individuals and minority groups to hatred and/or contempt in violation of the Canadian Human Rights Act. The Canadian Human Rights Commission, of which Warman formerly was a member, participated in the litigation.

After a hearing, the tribunal found for Warman, and entered an order prohibiting Beaumont from communicating similar hate messages through the Internet in the future. The tribunal also ordered her to pay special compensation of $3,000 (Canadian) to Warman for discriminatory statements written against him, including calling him "that retarded jew warman." (Although Warman is not Jewish, the tribunal reasoned that "it is obvious that Ms. Beaumont perceived him as such.") Additionally, the tribunal levied a $1,500 (Canadian) penalty against Beaumont, payable to the government of Canada.

During the hearing, avowed neo-Nazi Paul Fromm testified on Beaumont's behalf, and while not a lawyer, provided Beaumont with assistance.

(Candian Dollar amounts were converted into U.S. Dollars for purposes of the "Verdict or Settlement Amount" field.)

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Looking in the database, there's a chance this should have a settlement amount of $4815.

- Chris Wells

You are correct, Chris. I added the appropriate amount to the verdict field

Warman v. Fournier

Date: 

09/10/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Constance Wilkins-Fournier; Mark Fournier

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Richard Warman is a Canadian human rights lawyer based in Ottawa. Formerly with the Canadian Human Rights Commission, Warman is best known for initiating human rights complaints against members of white supremacist and neo-Nazi movements for engaging in hate speech on the Internet.

In September and October 2007, Warman sent two letters to Mark Fournier and Connie Wilkins-Fournier, proprietors of the right-wing Canadian forum/website, Freedominion.ca. The letters accused Fournier and Wilkins-Fournier of libel, stated Warman's "intention to commence an action for libel against [them]," and requested a complete retraction. The letters claimed that posts written by the Fourniers and forum participants were libelous in that they accused Warman of engaging in censorship, stifling free speech, and being a "professional complainer," among other things.

A number of websites and bloggers have proclaimed their support for the Fourniers and their condemnation of what they see as Warman's attempts at censorship. Among them are neo-Nazis that Warman has targeted in the past. There is no evidence that the Fourneirs condone the positions espoused by these neo-Nazi supporters, however. In fact, a significant portion of Freedominion.ca's user base appears to be supporters of Israel and Jewish causes.

On or around November 23, 2007, Warman filed a lawsuit in the Superior Court of Justice in Ottawa.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

to-do: need to create entry for lawsuit

Chilly Weekend: Black Friday Prequel and Public Domain Music Scores

If it's fall, these must be cease-and-desists for Black Friday ads. This year, they seem to be coming earlier than ever, as Wal-Mart sends pre-notifications against future posting. I put my analysis into a Chilling Effects Weather Report

Jurisdiction: 

Content Type: 

Subject Area: 

Creative Commons Announces Canadian Podcasting Legal Guide

Creative Commons of Canada recently announced that it has published a Canadian version of the well written and highly recommended Podcasting Legal Guide. As Colette Vogele, who helped author the original Podcasting Legal Guide, notes:

[T]he authors did nearly a complete re-write of the guide because copyright, trademark and publicity rights receive different treatment in Canada. One example, is that Canada has many collecting societies that need to be understood if licensing music from Canadian artists (see page 15). This adapted guide for Canada also includes a "copyright matrix" (page 16) and a "rights clearance flow chart" (page 19), both of which will help explain the various rights and who get's paid for what in the world of music licensing.

The Canadian version, with the intriguing subtitle "Northern Rules For The Revolution," is available in both html format and pdf format.

 

Jurisdiction: 

Subject Area: 

Canadian Blogger Sued for Libel by Brewery President

The president of Steelback Brewery, based in Ontario, Canada, filed a $2 million lawsuit against an Ottawa-based blogger that he claims libeled him on his sports website.  The Ottawa Citizen reports:

Jurisdiction: 

Subject Area: 

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