How my comment on TechCrunch got me a Facebook Cease and Desist
rickstratton.com
rickstratton.com
You don't have to prove anything. You've given them the courtesy of letting them know they have the wrong person, that's it. You can't 'cease' or 'desist' from something you're not doing, any more than you are already not doing it.
If they actually sue you after you've let them know you're not the right person, then you can invest more effort into this... and at that point, they'll be the reckless ones for filing a lawsuit on no evidence.
In the meantime, the most you should do -- milk it for some hits via a blog post -- is all you need to do. You've done it.
Consult with lawyers (off the payment clock, free initial consultations) if you'd like to, but there's no need given that Perkins Coie has just sent you a bit of lawyerly puffery in error.
https://www.eff.org/pages/legal-assistance
Very good chance they will help you with this.
1. Pay close attention to comments from daegloe
> EDIT: After reading many of the frothy comments on this page, I just wanted to add that it's generally best to avoid threatening a lawsuit, countersuit or any kind of legal claim in your response. These giant law firms love to call people on their bluffs, because they bill by the hour. Avoid boxing yourself in.
> Best strategy is to avoid litigation at all costs. Because, well, it costs lots of money whether you win or lose. And if you win, collecting is a bitch in of itself.
2. Do you have deadline in the cease and desist letter? If yes, what's the deadline?
3. Since this is a typical "David vs Goliath" and media loves these types of stories, I would try defeat FB with its own baby - social media.
Specifically, I would
3.1. contact 10-15 major tech blogs, including through Twitter
3.2. contact 5 major newspapers/their journalists
3.3. post your story on FB Twitter, FB Wall, Mark Zuckenbergs Wall
4. I am sure that this had adverse impact on your health and well being. So I would probably add sharing those to your story.
Play to your strengths and keep us posted.
Did you follow my advice, or they just spotted your story pre-emptively?
Another option is to remain silent and wait for a follow up from FB's attorneys before pursuing the letter strategy.
Bottom line is: consult a trained professional (lawyer). As someone who has been down a similar road, I can tell you firsthand that it may be painful but it's necessary. Remember, FB's legal budget is far larger than yours. You want to play the poor defenseless Rick card as long as you can before introducing your attorney and any legal letterhead.
Good luck!
EDIT: After reading many of the frothy comments on this page, I just wanted to add that it's generally best to avoid threatening a lawsuit, countersuit or any kind of legal claim in your response. These giant law firms love to call people on their bluffs, because they bill by the hour. Avoid boxing yourself in.
What if I go now on facebook, create an account, use the name Rick Stratton and start posting random, "incriminating" stuff all over the internet, what then ?
Only works on naive people and lawyers who take advantage of them. Know your rights.
Unfortunately, the lawyers rule the day. Along with those powerful interests with the most money to hire the most lawyers. Yet another reminder why significant tort reform in the US is well overdue.
I had to look this one up. This Is Not Legal Advice.
"Proof beyond reasonable doubt" is the criminal _standard_ of proof, while the standard for civil cases is generally stated as balance of probabilities (but is a little more complicated than that)
The _burden_ of proof, on the other hand, is pretty much the same between criminal and civil cases. It's the plaintiff or prosecution's responsibility to prove their case, and if they can't do that to the standard required by law they lose. The defendant is under no obligation to do anything more than point out the flaws in the plaintiff's case.
Sometimes, though, the burden of proof shifts the other way. This usually happens when the defendant offers some kind of "affirmative defence". For example, if a defendant wanted to argue that a (civil) contract or a (criminal) confession was invalid because of duress, it would be up to the defence to produce evidence that this duress occurred. They could not just float the possibility of duress and force the prosecution/plaintiff to produce evidence that disproves it.
On the other hand, if this is putting too much stress on you, it might be the right call from a health perspective to hire a lawyer. Just my two cents of non-legal tender.
So I would spend a few hundred dollars or whatever having your lawyer draft them a letter or call them on the phone or whatever to explain that this isn't going to buy them anything legally. And even if you don't want to do that, at least quit talking to them or writing about it lest you get yourself in trouble by saying something innocent that sounds wrong. Lawyers are very good at taking advantage of situations where the other side isn't represented, so don't give them those kinds of opportunities.
In short, I'm saying to get proper legal advice. Merely being innocent isn't always good enough. If anything, the innocent tend to get into more trouble than they should because they tend to avoid legal advice, believing that their innocence is enough. And even though you know you're innocent, how do you prove that you have no control over a particular website?
Clearly you were in the wrong place at the wrong time and made an ambiguous comment that was misinterpreted by Facebook's lawyers.
How do they expect you to prove you're not involved? (hint: they don't) It sounds like they're just trying to intimidate you.
IANAL, but I'd very clearly explain exactly what happened. If they continue to pursue this I'd be very surprised, and will make sure I never use their law firm...
It's a little funny how this applies to legal advice, and not, say, medical advise. People on HN will happily report on experiments with Ritalin, mushrooms and sleeping patterns, they will encourage you to quit your job and do a start-up - but "You should write a courteous, factual reply and talk to a lawyer" has to come with a long disclaimer :)
And what activity do they want ceased, anyway? From what I briefly read, it's just a browser extension that doesn't talk to facebook at all, but just maintains a separate thread of conversation anchored against a facebook comment stream. Is this not the case?
Also curious, are you planning to release the C&D or pass it to chillingeffects.org? Thanks for the great browser extension! :p
I hope that these lawyers come to their senses.
/s
If it was me, and I truly had nothing to do with this thing they are upset about, I'd greatly welcome their lawsuit, and countersue when it comes. Little guy versus the big mean corporation, let it play out.
Right now they are on a fishing exposition.
The ACLU loves CDA cases since under CA law, it's loser pay (SLAPP).
I seem to recall another story crossing HN over the last year with the general plot of "BigCorp is suing us for [ridiculously unrelated reason] when we have nothing to do with it!" before the bad PR hits and BigCorp issues a statement saying "Sorry. It's all cool, we didn't really mean to target you. In fact we even like you." If I can find it I will edit my post with the details.
A sworn affidavit should work in a courtroom. (Not a lawyer!)
So at this point I would send a nicely worded certified letter telling them to stop harassing you.
At that point they have limited options (in my opinion). 1) Sue you because they can prove you own it in court. (At which point a simple affidavit should end your part in said suit). 2) File a John Doe suit and actually find out who runs it.
Best option would of course be to obtain a lawyer and head it off sooner than later. Also once you have yourself a lawyer you won't have to deal with their lawyers at all as they should be bared from contacting anyone but your lawyer.
Lawyers are skilled negotiators, part of negotiation is making it seem like they have a case especially when they don't. If Facebook had a case he'd be served and/or the police would be at his door.
A TOS violation? What are they doing to do? Turn off his Facebook account?
Excuse the language but I would tell these people to go fuck themselves. Unless there's a lot of missing info here, I can't imagine a single judge that would allow that to go to trial.
Unfortunately (for his wallet) he probably should get a lawyer. Their actions might be idiotic but I would suspect they're very good at getting their way.
[Edit] What I mean is they don't seem to have a case unless he slips up somehow . That's why he should get a lawyer.
But as far as telling them to take a flying leap, even though he is well within his rights to do so, it may cost him considerably less time and money to try to find someone to talk to on their end who is willing to listen to reason.
Someone with a lot of lawyers and deep pockets could easily bankrupt a private individual over something like this. If it were me, I would consult a lawyer and get any relevant advice. Then I would contact them, either personally or through my attorney, and try to do everything I could to cooperate with them to convince them I know nothing about the program in question.
An actual fight is the worst case scenario, and a Pyrrhic victory is likely the best outcome that could be hoped for.
How dare you comment so freely..
you need a sharp lawyer who won't rip you off. hire one. free advice is worth every penny you pay for it. however, IN MY OPINION, if you had a sharp lawyer who wouldn't rip you off, such a lawyer would tell you how to translate "fuck off, this has nothing to do with me" into lawyer-speak.
the translation would (IN MY OPINION) be brief, clear, and non-argumentative. whatever you do, DON'T be upset by anything they say to you. provoking rash reactions is just a tactic they employ.
if I were a lawyer, AND I AM NOT, I would tell you to write a letter that looked more or less like this:
"Dear Whoever,
I read your letter with interest, and noted your request that I shut down XYZ Site. However, I am unable to cease operating XYZ, because I do not operate it, and have never operated it at any time. In fact, I have absolutely no connection to XYZ, have never had any connection to it, and am unable to help you. Good luck, and have a nice day."
Again I AM NOT A LAWYER, but that's really all you need to say. You put that in the mail, certified of course, with receipt, so you can prove they got it, and you forget this ever happened. Any aggressive, offensive noises they make other than "here is your court date" are just NOISES. Ignore them.
In the unlikely event they get you in front of a judge, the judge will hear your simple defense - "nothing to do with me" - and ask them if they have any proof of it being anything to do with you. Since they don't, it's a short conversation, and you go home.
If you find yourself saying anything further than what I just described -- "not me, got your letter, nothing I can do" -- STOP IMMEDIATELY and either hire a lawyer or shut the fuck up.
speaking of hiring lawyers, again, disclaimer: I am not a lawyer, this is not legal advice, grain of salt, your mileage may vary. seriously just hire a fucking lawyer because panicking, freaking out, and/or writing 10,000 words about this is just completely wasted energy.
Always remember that FB's attorneys get paid to mess with you. They could give a rats ass about your innocence or well-being. If they win they get paid. If they lose, they still get paid. Logic and reason will simply fall on deaf ears. They are hourly billing automatons.
Remain calm and follow your lawyer's advice.
In terms of could you charge for it, no of course not, sadly that's not how any of this works. You can throw out this sort of threat with little or no comeback.
Basically, your letter should: a) acknowledge receipt of their letter, b) state your non-affiliation with and non-operation of the offending service. And that's it. Just the facts. No editorialization. No defensiveness. No snide remarks. No theories about how or why they came to think you were involved, and how they are mistaken, etc. And avoid the temptation to get cute or cheeky. Don't poke the bear.
IF they reply to your reply -- which they very well may not -- then you should lawyer up. If you want to be super cautious, you can consult a lawyer, and probably pay a fair bit of coin in so doing, to draft your initial reply letter.
Ask a lawyer what's the best way to game this situation to increase Facebook's liability to a maximum while minimzing your risk and exposure.
"Have no idea what you talking about. Nothing to do. Very depressed. Doctor said to avoid this kind of thing."
Thanx,
xxx
Reply to them and tell them it isn't even you, and that you have nothing to do with this. They're not going to destroy you or even force you to rack up thousands of dollars in legal fees. They're not evil.
This is just as bad as the mainstream media -- anything that anybody does that can possibly be perceived in a way that gets attention is what makes it to the frontpage now?
Maybe they sent you the C&D just as a shot in the dark, because they don't know who the real author of this thing is?