The Carreon Gambit
While the original beef between the humor websites catering to precocious twelve-year-olds has fallen by the wayside, Carreon has focused on his own dignity, determined to prove that he can take on the sniggling masses who mistakenly think they can cow him with their ridicule. He will not be cowed. It's not that Carreon is a slacker or a scammer. Indeed, he has history on the side of good. From Paul Alan Levy at Public Citizen:
Recently, Public Citizen was aligned with a lawyer named Charles Carreon, filing an amicus brief in support of his argument against allowing a publisher to pursue a a copyright-infringement lawsuit against his wife’s Oregon company in federal court in New York. The former colleague who wrote this amicus brief argued the personal jurisdiction issue orally, so well that Carreon did not feel the need to come argue himself (a good thing too – his appellate brief was terrible). And it has seemed to me that some of the online criticism directed his way for having sent a demand letter for a client, complaining that a blogger had defamed the client, had become a bit excessive. I had turned down requests that I represent some of the defendants in Carreon’s earlier litigation, because, although it was apparent that he was litigating strange claims to punish his critics, the theories in the case either were not interesting enough to make a good vehicle for impact litigation, or would have had to be advanced on behalf of entities that could easily afford to hire their own lawyers.If there was any doubt before, it's now gone with his latest foray into unearthing the nefarious joker who started a parody website using his copyrighted name. This compelled Levy to jump into the fray against his former ally.
Most immediately, we have agreed to represent the anonymous author of a blog at www.charles-carreon.com that satirizes Carreon mercilessly by speaking in his voice and imitating the rather pompous and over-the-top language that Carreon himself uses. Carreon claimed that the domain name infringes the registered copyright in his name, and constitutes cybersquatting, and threatened to add our client as an additional defendant in the peculiar lawsuit that he has filed against Matt Inman and others over Inman’s satirical charity-fundraising campaign.And so the jousting begins. After Carreon threatened Register.com to compel them to identify the owner of the parody domain, Paul took charge on behalf of the parodist, explaining why Carreon was wrong. Carreon responded:
While Carreon may be nuts, he's not insane. Within the demands is a certain truth, that an obsessed person, willing to commit the entirety of their existence to a cause that will invariably exceed the interest of normal and otherwise engage people, has a very good chance of succeeding. Not because they're right, but by attrition.
As far as when and where I will sue your client, be certain that it will occur if your client does not cede the domain, and advise her of ten things:
1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that's an equitable defense that asserts "you waited too long to file this."] would not kick in for at least three years.
2. That venue in this action can be validly laid in at least three places, maybe four, if she doesn't live in Arizona, Florida, or California.
3. That I am capable of employing counsel to handle my claim against her, who will incur attorneys fees and seek recovery of the same. I filed pro se against Inman simply for the sake of convenience and the need for speed, and not from a lack of resources.
4. That the law in this area cannot be predicted with certainty, will evolve substantially over the next three years, during which I will be using digital forensics to establish actual trademark damages in addition to seeking the maximum cybersquatting penalty of $100,000.
5. That a judgment that recites that the domain was obtained by fraud upon the registrar, in the form of a misrepresentation that she did not know of my trademark on the name, might well be non-dischargeable in bankruptcy.
6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.
7. That you cannot guarantee that Public Citizen will provide her with free legal services on June 1, 2015, when I may very well send the process server 'round to her door.
8. That I have the known capacity to litigate appeals for years (check my Westlaw profile, and of course, the drawn out history of Penguin v. American Buddha, now in its third year, having passed through the Second Circuit and the NYCA, and still hung up in personal jurisdiction in the SDNY).
9. That the litigation, being of first impression in virtually every Circuit, grounded in a federal question, involving a registered trademark, and dispositive of many open issues in the field of Internet commerce and speech, might very well continue for a decade.
10. That Public Citizen might well be unable and/or unwilling to provide her with representation until the resolution of such an extended course of litigation.
And so rather than wait for Carreon to act, after Public Citizen has moved on to more pressing causes, and thereby ceding control, Paul took the initiative to file a declaratory judgment action in California federal court on behalf of the anonymous parodist against Carreon. While this most assuredly won't be the end of the soap opera, as Charles Carreon's history of doubling down has become the thing of memes, at least his own strategy of use of legal process to vindicate himself has now turned on him.
But what's notable, though largely unmentioned, in this melodrama is that all of the various targets of Charles Carreon have relied upon, and received, the largesse of others. From pro bono counsel, the Electronic Frontier Foundation, the Popehat signal and now Public Citizen, the objects of Carreon's obsession have been defended.
At the same time, the peanut gallery watching the soap opera unfold is busy doing its hooting and hollering about what a jerk Carreon is and how he's going to get beaten to a pulp. If only it was that easy. Whether he's right or wrong, the system doesn't quite follow the snark of the internet when determining an outcome. Judges don't count how many times commenters call someone an asshat when deciding who will prevail. You would think people would realize this by now.
While good people have stood up against Carreon up to now, the flaw is readily apparent. What of the next target of Charles Carreon? What of the next Charles Carreon? Can we rely on their always being someone willing to fight the dragon free of charge? While the lawyers on board for this fight are getting tons of love from the gallery, the watchers will soon move on to the next internet meme while the lawyers will be left to fight for years without compensation. Not nearly as much fun as it seems. And when they love and interest dissipates, and the fighting grows tedious and sucks up time from more remunerative ventures, will Charles Carreon be the only one left standing?
This is why we need a national anti-SLAPP law, because you can trust people to be there if there is something to be gained at the end of the rainbow. Charles Carreon knows it doesn't exist now, and that he only has to win one of his many battles to be vindicated, and that a win by attrition is still a win. It's a gambit, but it has a decent chance of succeeding. And it shouldn't.