Techdirt Got Gawkered

Did Shiva Ayyadurai invent email in 1978? Who cares? Not me, but Dr. Ayyadurai does.  So too does Techdirt’s Mike Masnick, because that’s the sort of stuff that interests him. All of which is fine, because there’s no reason in the world for Mike to not be interested in whatever he’s interested in, and no reason for Mike to give a damn whether or not it interests me.

But what does interest me is that he, and Techdirt, and others involve with Techdirt, are being sued to Charles Harder, the lawyer funded by Peter Thiel to “get” Gawker in the Hulk Hogan case. For what? For disputing Ayyadurai’s claim of having invented email. Or at least, the email we use today.

41. On or about March 8, 2016, Defendants published on their website, Techdirt.com, an article authored by Defendant Masnick with the headline: “Guy Who Pretends He Invented Email Whines At Every Journalist For Writing Obit Of Guy Who Actually Helped Create Email,” a true and correct copy of which is attached hereto as Exhibit N (the “March 8, 2016 Article”). This article contains multiple false statements of fact about Dr. Ayyadurai which Defendants knew to be false at the time the article was printed and published, or had reckless disregard for the truth, including, among others:

a. The headline which refers to Dr. Ayyadurai as the “Guy Who Pretends He Invented Email.”

b. “… [Dr. Ayyadurai is] a guy who’s basically staked his entire life on the misleading to false claim that he ‘invented’ email.”

c. “Every couple of years [Dr. Ayyadurai] pops up again as he’s able to fool some reporters into believing him.”

d. “In 2012, [Dr. Ayyadurai] fooled the Washington Post and, astoundingly, the Smithsonian.”

e. “Ayyadurai also totally misrepresents what copyright is, and insists that his copyright is just like a patent, because you couldn’t patent software back then.”

f. “…Weber, Chomsky and Ayyadurai could spin this bizarre and totally made up story of a big American defense contractor wanting to rewrite history to write out someone with ‘brown skin.’”

g. “… [W]hen some point out that he’s lying, Ayyadurai yells at them that they’re repeating ‘racist lies,’…” (Link to post added.)

And the complaint goes on in this vein. In his post, Mike goes into his reasons for saying that Ayyadurai’s claim was false at length. Notably, the complaint doesn’t allege his reasons to be defamatory, but merely the conclusions drawn from his reasons. It’s an interesting omission in the allegations against him.

What does interest me, and interests me gravely, is the use of a defamation action as lawfare, just as it was used against Gawker. But then, you hated Gawker and the subject matter, Terry Bollea’s sex life, was icky. so not only did you rationalize away the newsworthiness determination when it was put in the hands of twelve local yokels, but you applauded the absurdly high and constitutionally bankrupt verdict.

Are you still clapping now?

There’s no sex tape of Ayyadurai. There’s no ickiness pigeonhole to shove this into. It’s clearly a matter of public interest and concern. And Techdirt isn’t Gawker. At the time, the constitutional “scholars” argued that none of this would happen, there would be no chilling effect. It was just about Gawker, because Gawker, and sex videos because privacy. Nothing to see here, move along.

But Harder figured something out that you didn’t. Or you didn’t want to. He figured out that if you bring a suit, bring it in the right jurisdiction, try to get some home field advantage, a defendant might get Gawkered into submission. In this case, suit was brought in the United States District Court for the District of Massachusetts. That’s where Ayyadurai happens to be. Mike? He’s in California, far, far away.

More to the point, Harder was able to obtain a verdict of sufficient size to bankrupt Gawker. Sure, the amounts were so ridiculously absurd that no jury in its right mind could possibly return such a verdict. And surely no judge would approve such an insane verdict, right? Except the jury did, and the judge gave it her kiss of approval.

To win this case will end up costing Mike and Techdirt a lot of money. To lose, even if only to be reversed on appeal as the Gawker verdict should have been, would be a disaster. And not to take anything away from Mike, but Techdirt doesn’t have the wherewithal of Gawker to begin with. Either way, this will be painful.

Is Mike right? Are his conclusions about Ayyadurai’s claim that he invented email false? Beats me. Don’t care. But what they are not is defamatory. Mike provides chapter and verse to explain and prove his position, and offers a persuasive rationale to conclude that, as Mike says;

Once again, to Shiva Ayyadurai: you were almost certainly a very bright kid, who created a nice software program as a teenager at the school where you were employed. That’s great. And you should be proud of your accomplishments. But you did not invent email. You had nothing to do with the invention of email. And to continue to claim otherwise makes you look petty and silly —especially at a time when everyone is celebrating the very real accomplishment of Ray Tomlinson.

This is nothing like Gawker in the sense that Gawker was a disgusting pig in its editorial policy, even though the Constitution protects the determinations of disgusting pigs. But the case empowered such claims, and particularly claims brought by Charles Harder who has proven his prowess as lawyer, to silence content.

Massachusetts has anti-SLAPP legislation, but it may prove inapplicable to this action under  Fustolo v. Hollander. That means Mike may be screwed merely by the bringing of this action, if not its merit. Are you happy now?

24 comments on “Techdirt Got Gawkered

      1. Patrick Maupin

        All the frustration from the lack of a predicate act for the sex tape has to be channelled somewhere. Perhaps a lawsuit. Trust me on this.

        Reply
          1. Patrick Maupin

            To the extent that he’s crazy rather than dishonest, and perhaps a bit simple-minded to let himself be taken advantage of by Peter Thiel’s litigation machine, Massachusetts Rule 601(c) might be more pertinent.

            Reply
            1. SHG Post author

              Just to be clear for the sake of any non-lawyer readers, this is a joke. Not a very good joke, but a joke.

  1. Beth

    “Lawfare” – an appropriate term. I like it. Not being in the profession, my experience is that any encounter with the legal system feels like warfare.

    Reply
  2. Regret

    Scott – I assume that Mike will be advised not to blog (or not much) on an ongoing suit, can you help organize a “legal defense fund” fund raising effort, if you think that will be helpful, necessary and appropriate?

    Reply
    1. SHG Post author

      If that’s what’s needed and appropriate, I’m sure it will happen. It’s neither my place nor yours to white knight Techdirt. What I write here about the suit I do for me, and Mike has neither sought nor accepted any help from me.

      Reply
  3. Jake D

    Here’s one small comment of support for Mike, and a hope for bloggers everywhere that this idea doesn’t catch fire.

    Reply
    1. Scott Jacobs

      Yeah, process as punishment has been a thing for a long, long time.

      Just ask the people being sued by Bret Kimberlin.

      Reply
  4. Charles

    In the absence of an effective Anti-SLAPP statute, here’s hoping the Court grants a 12(b)(6) motion to dismiss. On the bright (less dark?) side, there are no punitive damages for defamation in Massachusetts.

    Reply
      1. Roger

        Since a 12(b)(6) motion is filed in place of an answer, “the time you make a 12(b)(6)” motion ought to be plenty early in the process to avoid most of the pain, if you win the motion. The devil is in the winning, not the timing.

        Reply
        1. SHG Post author

          When a guy in CA is sued in MA, has to retain MA counsel, pay counsel, work with counsel, all for a motion that does nothing more than dismiss (or worse, cause leave to replead), without hope of recovery of attorneys fees of anti-SLAPP damages, it’s already too late. Amazing that anyone thinks a 12(b)(6) is easy-peasy. Better than going further? Obviously. Better than having a strong anti-SLAPP statute. Not even close. Better than not getting sued at all?

          Reply
          1. Roger

            All true. And all beside the point that the answer to the question “by the time you make a 12(b)(6) motion how much pain is left to endure?” is “tons.” Just ask the folks at Gawker if they had any pain left to endure by the time 12(b)(6) motions were due in their case. Most of the time, expense, inconvenience, and other pain will come in discovery, summary judgment proceedings, and, God forbid, trial. If you’re lucky enough to win a motion to dismiss–a tall mountain to climb, and certainly not easy-peasy–you will have avoided enduring most of the pain of these suits.

            Reply
          2. John Hawkinson

            Very naive latecoming question: How different would the 12(b)(6) motion be in this case (17-cv-10011) vs. the Gawker case (16-cv-10853)? I would tend to think they ought to be nearly the same (as the complaints are pretty similar) which suggests a good outlet for doing it on the cheap (either pro se, or hiring the same attorney).

            Thanks.

            Reply
            1. SHG Post author

              “On the cheap,” always a great way to assure victory when it’s potentially a life and death battle. After all, when you lose, you can always explain to the judge that you could have done a better job of it, but preferred instead to save money. No doubt the judge will respond, “oh? Well then, let’s have a do over where you can do it right this time rather than ‘on the cheap.'”

    1. Patrick Maupin

      Where’s my trigger warning? I’m having nightmares about 12(b)(6) in my currently contemplated lawsuit.

      Reply

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