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How my comment on TechCrunch got me a Facebook Cease and Desist

rickstratton.com

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Re: How my comment on TechCrunch got me a Facebook Cease and Desist

#71

Post by ja27 »

Tichy wrote: post #58
iamgilesbowkett wrote: post #40

hey @racerrick, my mom's a retired lawyer. (for context.) lawyers issue threats the way other people say hello. if this person says to you on the phone that you have to prove that you don't own the site, guess what? you can't prove she said it, since it isn't in writing, and it's not against the law to lie about that in the first place. you need a sharp lawyer who won't rip you off. hire one. free advice is worth eve…

Is it even necessary to reply at all? I find it quite outrageous that random strangers could tap into my time like that. Or if a reply is necessary, could I charge for it? (I am not the original poster, just hypothetically speaking if something like that happened to me).

It's not necessary, but for 5 minutes of typing and the price of postage you can make them close their file and go away.

Re: How my comment on TechCrunch got me a Facebook Cease and Desist

#73

Post by Carlfish »

coopdog wrote: post #48
zrgiu_ wrote: post #22

So, guilty until proven innocent, is this how things work now ? 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 ?

Innocent until proven guilty is only for criminal court, civil law is done on the balance of probabilities Les disclaimer: IANALTINLA

Not entirely accurate (IANALTINLA also). It comes down to the commonly confused distinction between the burden of proof and the standard of proof.

"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.

Re: How my comment on TechCrunch got me a Facebook Cease and Desist

#74

Post by jonnathanson »

iamgilesbowkett wrote: post #40

hey @racerrick, my mom's a retired lawyer. (for context.) lawyers issue threats the way other people say hello. if this person says to you on the phone that you have to prove that you don't own the site, guess what? you can't prove she said it, since it isn't in writing, and it's not against the law to lie about that in the first place. you need a sharp lawyer who won't rip you off. hire one. free advice is worth eve…

I'm not a lawyer, either, but a good friend of mine is. I showed him your post and this thread, and his advice is fairly similar to the above. Basically, reply to the C&D letter with a written letter of your own (make sure you get proof of delivery on the postage; keep a copy for your files; etc.). Your letter should be as polite and as brief as possible, because any extraneous language can and will be used against you. If you write something that can be misinterpreted, it's a safe bet that it will be.

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.

Re: How my comment on TechCrunch got me a Facebook Cease and Desist

#75

Post by mseebach »

13hours wrote: post #72

Why are all the answers with legal advice filled with phrases such as "this is not legal advice" and "I am not a lawyer"? Is it illegal for non lawyers to give legal advice in the US?

So it's a bit cargocultish, really. But the source, as I understand it, is that actual lawyers who are not your lawyer, has to make it clear that they're not giving you legal advice for liability reasons. If a lawyer who is actually your lawyer gives you bad advise and you lose out because of it, you can sue him (and his insurance). But the insurance only covers actual clients, not strangers on the internet.

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 :)

Re: How my comment on TechCrunch got me a Facebook Cease and Desist

#76

Post by Natsu »

My guess (and it's only a guess) would be that they've been tasked with shutting that site down but they have no idea who to lean on to accomplish that. If that hypothesis is true, logic won't work on them, they'll just keep leaning on you because they have no better options.

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?

Re: How my comment on TechCrunch got me a Facebook Cease and Desist

#77

Post by shareme »

iamgilesbowkett wrote: post #40

hey @racerrick, my mom's a retired lawyer. (for context.) lawyers issue threats the way other people say hello. if this person says to you on the phone that you have to prove that you don't own the site, guess what? you can't prove she said it, since it isn't in writing, and it's not against the law to lie about that in the first place. you need a sharp lawyer who won't rip you off. hire one. free advice is worth eve…

the translation would go like this:

CC: State Attorney/State Bar Association

Dear Ill-informed Lawyer:

Well have started a disbarment complaint against you for your instance in threatening others with your own lawyer mistakes. Heed the warning.

Re: How my comment on TechCrunch got me a Facebook Cease and Desist

#79

Post by GiraffeNecktie »

Tichy wrote: post #58
iamgilesbowkett wrote: post #40

hey @racerrick, my mom's a retired lawyer. (for context.) lawyers issue threats the way other people say hello. if this person says to you on the phone that you have to prove that you don't own the site, guess what? you can't prove she said it, since it isn't in writing, and it's not against the law to lie about that in the first place. you need a sharp lawyer who won't rip you off. hire one. free advice is worth eve…

Is it even necessary to reply at all? I find it quite outrageous that random strangers could tap into my time like that. Or if a reply is necessary, could I charge for it? (I am not the original poster, just hypothetically speaking if something like that happened to me).

Their lawyer is going to be looking for an excuse to bill more time on this issue, so if you don't reply, you will definitely hear more from them. So eventually you'll have to do something anyway. The sooner you respond, the sooner it's going to go away.
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