Collected here are legal documents relating to MagicJack's defamation lawsuit against Boing Boing. The presiding judge ruled its case a SLAPP — a strategic lawsuit against public participation — and ultimately entered a judgment against it and made MagicJack pay most of our legal costs.
There's a lot to read, so some excerpts are included. Highlights include the wild expense of fighting off lawsuits, MagicJack's litigators saying they didn't want to see discussion of the case on the "blogosphere," and it now being a matter of court record that I produce 'lusty and imaginative' expressions of contempt.
It's worth remembering that all this was about a 200-word blog post that cites, verbatim, the exact text it mocks.
Summons and Complaint [PDF]
The original lawsuit, filed in Marin County Superior Court on March 11, 2009, by Arnold & Porter on behalf of MagicJack. This details MagicJack's complaint against the blog post. Suggested listening: "Michael Bolton – How can we be lovers if we can't be friends?"
Motion to Strike Complaint [PDF]
Our motion to strike MagicJack's suit as a 'strategic lawsuit against public participation,' or SLAPP. Suggested listening: "Cypress Hill – Insane in the Brain." Some excerpts:
"This is precisely the type of bad-faith, strategic lawsuit that the California legislature sought to prevent when it enacted the anti-SLAPP statute. … If permitted to proceed, MagicJack's lawsuit threatens to have a chilling effect not just on Boing Boing, but more generally on public criticism and debate concerning corporate practices and consumer privacy rights."
"Notwithstanding the rhetoric contained in MagicJack's Complaint, all that is at issue in this lawsuit is an approximately 200-word "blog" post on the Boing Boing website … The Beschizza Post, written in the humorous and biting style that is the hallmark of "Boing Boing," … plainly was intended to criticize (and colorfully characterize) only the MagicJack EULA. Indeed, the EULA provision itself comprises more than a third of the Beschizza Post, and consistently is referenced as the basis for the author's statements and opinions."
Though MagicJack asserts it has has not acted on the relevant EULA terms, our motion points out that at the time, the EULA specified that "these advertisements are necessary for the MagicJack device to work."
Declaration of Cory Doctorow [PDF]
Declaration of Marc Mayer [PDF]
These declarations are in support of our anti-SLAPP motion, establishing Boing Boing's history of reporting on EULAs and related issues. Elements of the secret masterplan are revealed in open court: Boing Boing is hyperbolic, acerbic, or wry. Boing Boing seeks to influence technological policy, law and norms. Boing Boing disapproves of contracts of adhesion. Suggested listening: George Baker Selection – Little Green Bag. From our lawyer's declaration:
"I have visited the MagicJack website and homepage several times in an effort to locate MagicJack's Terms of Service. However, I have been unable to navigate to the MagicJack Terms of Service from the MagicJack homepage"
And you still can't. But the live chat will provide the link if you ask.
Opposition to anti-SLAPP motion [PDF]
MagicJack opposes our anti-SLAPP motion. It offers a more vigorous and detailed criticism of my post than the actual lawsuit. Suggested listening: "Boots Randolph – Yakety Sax/The Benny Hill Show."
Particularly interesting is the claim that blog posts about consumer products are 'commercial speech,' and hence undeserving of certain first amendment protections. Au contraire.
Declaration of Dan Borislow in support of opposition [PDF]
MagicJack CEO Dan Borislow's declaration, in support of his lawyers' opposition to our anti-SLAPP motion. Suggested listening: Rick Dees – Disco Duck. Excerpt:
"MagicJack LP is a small, privately held company that is not in the public eye."
Wherein we follow the SLAPP motion with the FACEPALM motion.
Reply … in support of motion [PDF]
Debunking MagicJack's opposition to our anti-SLAPP motion. Suggested listening: "Joe Dolce Music Theatre – Shaddap You Face"
"MagicJack's Opposition to Boing Boing's SLAPP motion is smoke-and-mirrors, resting on piecemeal and out-of-context excerpts from the Beschizza Post … and an incorrect and nonsensical view of the First Amendment … The critical facts underpinning this lawsuit are undisputed, including that MagicJack records telephone numbers, that its EULA requires MagicJack users to consent to allow MagicJack to "analyze" these telephone numbers for advertising purposes, and that MagicJack intends to use and exploit the consents that it acquired in its EULA""
"Also problematic is MagicJack's argument that the conduct authorized in the EULA cannot constitute "privacy invasion" because users have consented to them in the very same EULA. The argument is completely circular. … It also validates the need for reports like the
Beschizza Post in order to warn consumers that consent to the EULA would permit MagicJack to engage in potentially invasive activities. … It is analogous to a situation in which a cable company, as a precondition to service, installed cameras in private homes and then required the homeowner to consent to allow the company to "analyze" the footage. It certainly would be no defense to a charge that the service greement permits "spying" … [to say] that the cameras had not yet been turned on.""
"In any event, there is no dispute that MagicJack's ticker did not even purport to represent the number of people who came for a "free trial today" — even though that is what it says it does. … MagicJack could simply have reported the number of people who actually signed up for its "free trial" (certainly it keeps track of that number) on a given day, which would have been consistent with the ticker. Instead, MagicJack chose to use exaggeration and approximation, and now cannot complain about being held to task for that decision."
Ruling Granting SLAPP [PDF]
Here, the judge grants our SLAPP motion. Suggested Music: The London Symphic Orchestra — The Final Countdown Orchestral Remix
"Plaintiff's own evidence shows that the counter is not counting visitors to the website as the visitor visits the site. Instead, the visitor is seeing an estimate. It is not probable that the trier of fact would therefore find untrue the statement that the counter is a "a fake."
Motion for Attorneys' Fees and Costs [PDF]
This is our motion to get our attorneys' fees and court costs paid by MagicJack. It is splendid reading; much of it covers unexpected behavior by MagicJack and its lawyers after they lost. Suggested listening: "Henry Mancini – Baby Elephant Walk"
"MagicJack was represented in this action by highly competent and experienced litigation counsel. MagicJack and its counsel certainly should have known that the alleged defamatory statements were statements of opinion and not actionable. MagicJack also should have recognized that the claims likely would be subject to California's anti-SLAPP statute, and thus that fees would be awardable to Boing Boing if it were to prevail. Nevertheless, MagicJack elected to pursue this action, apparently hoping that when faced with a lawsuit by a major law firm, Boing Boing would immediately cave … Additionally, even though MagicJack failed to ever contact Boing Boing, it sought punitive damages against Boing Boing – apparently for in terrorem effect, since MagicJack and its counsel must have known that punitive damages were not recoverable under Cal. Civ. Code § 48a"
"Boing Boing attempted to resolve this attorneys' fees dispute without the necessity of a motion. … MagicJack accepted those conditions, and over the following two weeks the parties prepared and finalized a settlement agreement. However, the day after the final settlement agreement was circulated for execution, MagicJack suddenly reneged on its offer, stating that it would only sign the agreement if Boing Boing entered into a confidentiality agreement and agreed not to speak about the settlement agreement or its attorneys' fees."
"Moreover, MagicJack hired highly experienced counsel, at one of the largest and most prestigious law firms in the country, to file its case and oppose the anti-SLAPP motion. MagicJack apparently dedicated at least three attorneys to the case, including two associates and a senior partner, Beth Parker, who is a highly seasoned litigator with more than 25 years of trial and appellate experience"
"I told Ms. Parker that Boing Boing would agree to keep the settlement amount confidential, but that it was important that Boing Boing be able to speak about the lawsuit, including the amount of fees it incurred and the amount it ultimately came out-of-pocket for its defense. Ms. Parker advised me that this proposal was unacceptable, that MagicJack did not want discussion ofthe lawsuit on the "Blogosphere," and that MagicJack had hoped that the settlement agreement would put an end to any further publicity about the matters at issue in the lawsuit.
Opposition to Motion for Attorneys Fees and Costs [PDF]
Reply memorandum in support of motion for fees [PDF]
Ruling Re: fees [PDF]
Ruling Re: costs [PDF]
Money talk. The judge ultimately orders MagicJack pay us $52,754, approximately the amount of the proposed settlement but still less than our actual bill. Suggested listening: Beatles: You Never Give Me Your Money.
"Most of the fees that MagicJack complains about in its Opposition might never have been incurred if MagicJack had, for example, not wasted Boing Boing's time with a settlement agreement that it apparently never intended to sign, asserted claims for damages that it knew it could not recover, or forced Boing Boing to file its motion for fees (and then to revise that motion after MagicJack reneged on the settlement agreement)."
The end. Suggested listening: Whitesnake.
Thumbnail photo: Horrgakx's photostream