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« Another Case of Abusive Trademark Claims to Suppress Speech — John Dozier redux | Main | New York Exempt Income Protection Act Enacted »

Friday, October 03, 2008


There seems to be some disagreement between stated facts in here. Once and for all, clear it up so that readers may decide on which facts to believe or ignore.


Second factual error -

"We looked at the complaint as passed to us from asmallorange and verified multiple trademark issues.."

What trademark issue had any merit?

Paul Alan Levy

As the foregoing two comments make clear, I responded to the initial posting by Jeff Hinkle by contacting him directly to ask some questions. I was able to refresh his recollection that, in fact, he DID threaten to cut off all of A Small Orange's internet access for all of its customers if he did not take down Riley’s web site. He also acknowledged that at no time did he contact Riley to let him know what the supposed trademark issues were with his anti-Dozier web site, so that Riley could either try to explain why there were no valid trademark claims, or fix the problems.

The "Mr. Dorr" with whom he reports speaking is the owner of A Small Orange. I think in retrospect that Hinkle recognizes that he would have been wiser to ensure that Riley himself was brought into the loop before he made the decision that Riley’s site had to go.

Thus, the only point of difference between us is that Hinkle objects to my statement that he conducted no investigation into Dozier's trademark claims. He reports that although Dozier's August 28 letter is extremely vague, he had telephone conversations in which Dozier explained that Riley’s "sucks site" used the words "Dozier Internet Law" in white, with a green background, in a variation of the way the name appears on Dozier's own web site. However, because this logo is paired with words such as "sucks" and "blows," not to speak of the entire web site "dripping contempt" toward Dozier, it is hard to understand why Hinkle (or Dozier) could have felt there was any likelihood that consumers would be confused about who was sponsoring the web site. Had Hinkle called these alleged problems to Riley’s attention, Riley could have disabused him of the notion that there is any serious issue of trademark infringement here. Moreover, Hinkle reports that Dozier has misled him by telling him that Dozier had already served a law suit on Riley.

Hinkle was also very surprised to learn that the terms of use on Dozier's own web site forbid linking to his web site without permission. See He seemed to agree that, regardless of whether Dozier's trademark claims might otherwise have any merit, this bizarre claim by Dozier puts his trademark claim over failure to link in a different light.

Beyond these factual issues, Hinkle's post serves to drive home the more fundamental concerns in my post – that Dozier has deliberately taken advantage of the gap in CDA immunity for intellectual property claims to use the prospect of trademark infringement liability (or, as least, the expense of having to defend such litigation, however meritless) to coerce weak-kneed ISP’s into collaborating in the suppression of online free speech. In the long-run, the solution to this gap may be legislative – amending the CDA to confer immunity against trademark claims, or, as Hinkle suggested when we spoke, the adoption of SLAPP-like protection that awards attorney fees to ISP's who successfully defend against bogus trademark claims. But in the short run, it is going to take toughness on the part of ISP’s to tell the Dozier’s of this world to sue the alleged primary wrongdoers and then send them the judgment if they prevail. Consumers can make this a winning business model by giving their business to ISP's that take this approach and denying their business to ISP's that don't.

When we spoke, Hinkle generously described Tim Dorr of A Small Orange as standing up for his customer’s free speech. It is regrettable that Hinkle was unwilling to put his own company similarly on the line. Although one can sympathize with Hinkle’s concern about having to spend money to defend his right to provide connectivity to clients whose speech makes others angry, I am more sympathetic to Dorr's approach, which is to instinctively defend his customers' right to speak, and to put the burden on the annoyed target of the speech to show wrongdoing and to obtain a court order against the speaker.

I do, however, give Hinkle credit for addressing the issue publicly, which cannot be said for either pSek or Hostgator, which not only turned off Riley’s web site but have met criticism with silence. I also credit Hinkle for immediately correcting the factual mistake in his first post, as soon as he came to recognize his error.

Jeff Hinkle

Update - The statement that we threatened to cut all the sites off is false - is not correct. I had forgotten that after days of back and forth - and Tim moving the site to different ips we did tell him that we would have no choice but to turn the connection off to stop it if they were going to keep moving it around. This was a last resort and quite frankly I amn not sure if we would have acted on it (highly doubtful) but we did in fact say it and I appologize for forgetting about this.

I do appreciate you calling today and having an open mind, being professional and understanding of our side of the story.

I felt it was productive and constructive and hopefully you can make some progress on some of the issues we discussed affecting the internet providers as innocent third parties trying to do their job and earn a living.

As we discussed I hope some of the other providers will have the courage to comment on this subject as well.

Thanks again and have a great weekend!


Jeff Hinkle

Mr. Levy,

Your statement as outlined in the following quote from your online statement :

"Without demanding any proof, or giving Riley a chance to reply, GNAX told A Small Orange that unless it cut off Riley immediately it was going to pull all of A Small Orange’s client’s web sites down"
is false.

You did not consult us to verify this, and as such recklessly posting unverified statements of fact is not a good practice and does not give us a good opinion of your journalism.

Had you called us or emailed us you would have found out the following:
We looked at the complaint as passed to us from asmallorange and verified multiple trademark issues and sent him a takedown notice. After 24 hours, we sent Mr. Dorr another takedown notice to which he responded that he was not going to comply. We then sent him the standard notice that we were going to block the IP that the site was residing on to block access to that site. We never threatened to take down all of asmallorange's websites as you falsely and erroneously claim above. After Mr. Dorr’s continued refusal to take down the website, we verified that the offending content on the site had not changed and we null routed that ip. Unfortunately it affected other sites on the 1 server -out of several hundred at last count due to the fact that it was sharing the ip with other sites.
We also informed Mr. Dorr that trademark infringement was not protected under CDA immunity and went on to offer to keep the site up if the offending issues were cleaned up and Mr. Dorr would accept a specific indemnification for this matter regarding legal fees so that it would not be a question. Mr. Dorr refused to sign this.

This raises a much bigger issue which I don’t think that you or many others address or take up in a matter of fairness:
Freedoms are only granted so long as they don’t impinge on the freedoms of others.
Your free speech is exactly that - its yours - not mine and when it imputes my ability to conduct free speech and earn a living that is where you have problems. All of your statements above expect a certain group of business to become the legal funding source for various forms of public statements. Can you imagine if it became necessary to fund a large legal defense fund just to go into a certain type of business in order for someone else to do something in your business? What about your freedom of association? Can I go onto the public television stations and take out an ad that does this? N0, the content committee would not approve it. Angry consumers have picked the web due to its low cost, however that does not change the fact that we are all a business and feed our families from this.

Again - do you really expect us to take money from our dinner table to feed our kids to fund the free speech of others that refuse to pay up to fight their own battles?

Free speech is not free - it is paid for in the blood of many and in the $$ of those that it is important to. I would suggest your time would be better spent in changing the law to provide for the legal funding of a posted bond that would cover the legal fees and the time of the defendant if they are the winner and maybe even a legal defense fund for ISP's that will cover their time and legal fees up front if they are engaged with this type of lawsuit after they have covered all the bases. I think you find more ISP's willing to engage since you are not talking about taking their family going hungry for some third party to be able to tell everyone how angry they are at someone.

I find it repugnant that the very people who want to spout all the angry speech are the ones who expect others to pay for them to do it - it’s spineless at best.


Jeff Hinkle
Global Net Access, LLC

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