Free speech and the Internet: A fish story

A legal dispute between online aquatic plant enthusiasts and a pet supply store illustrates the perils of casual opining on the Web.


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Katharine Mieszkowski
April 5, 2002 1:30AM (UTC)

This is a legal thriller set in a fishbowl.

It's the story of a multi-million dollar lawsuit that has transformed a sleepy online community of aquatic plant gardeners into a hotbed of accusations of libel, conspiracy, defamation, computer hacking, infringement on freedom of speech and even death threats.

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The plaintiff in the case of Robert Novak vs. APD List Members, filed last May in a federal court in New York, seeks damages of more than $15 million. The FBI has even been notified, although there is no public evidence to date that it is conducting an investigation.

"I've been an attorney for over 20 years, and I have rarely seen anything that's as frivolous as this is," says John Benn, a lawyer and aquarist in Sheffield, Ala., who collects monies for the legal defense of the defendants named in the case. So far, says Benn, the defense fund has raised more than $14,000 from online sympathizers around the globe.

But now the defense fund itself has become a legal target -- and that raises questions of just what kind of comments are protected speech on the Internet, and how far a company can go in attempting to guard its trademarks. For Benn, the lawsuit may be frivolous, aimed at stifling criticism, but for Robert Novak, the founder and owner of PetsWarehouse.com, the reputation of a company is at stake.

The aquatic plant spat may be just another online brush fire, but the issues at the heart of the struggle reach far. The Internet makes it easy to express your opinion; anyone who's ever been caught in the cross fire of an all-out flame war knows that. But does it make it too easy? And when litigation follows flaming words, how far will an online community go to fight back?

The hot water started with a simple post to an Internet mailing list frequented by people whose idea of a good time is growing plants underwater.

The chatter on the Aquatic Plant Digest (APD) mailing list typically runs to tame fare like algae, platyphylla, nematodes, snails and African frogs. But in typical online forum fashion, the aquarists also swap information about their experiences with the companies from which they've bought plants or supplies.

On May 15, 2001, according to court documents, Dan Resler, a computer scientist at Virginia Commonwealth University in Richmond, posted a message that made a blunt recommendation: "Thinking of buying plants from Pet Warehouse? Don't." He went on to detail his gripes about the company's customer service, based on what he said was a delayed shipment of plants he'd ordered.

Resler -- apparently realizing he'd left out an "s" in his original post -- later followed up with this amendment: "to clarify: Pet Warehouse OK, Pets Warehouse NOT."

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In classic Net slambook fashion, other members of the list responded to Resler's messages by sharing their own experiences with Pets Warehouse. One post on May 22, 2001, as recorded in court documents, quotes Sean Carney of Weslaco, Texas, sloganeering: "Remember petSWEARhouse, buy their plants and you'll be swearing!"

Hyperbolic, unfiltered group gripes about corporations (or anything else) are the sort of thing the Net facilitates. In fact, entire companies have been started based on the premise that if customers with similar interests can speak freely to each other about companies and their products, both consumers and businesses will benefit.

But Robert Novak, the owner of the Pets Warehouse trademark, which is used both by an actual pet store in Long Island, N.Y., and by the e-commerce site PetsWarehouse.com, did not appreciate the public criticism.

"We don't like our company name being disparaged or libeled. Who would? If somebody said you were a pedophile, I don't think that you'd say that's OK," Novak said in an interview. "We don't appreciate being called dishonest."

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In his court filing, Novak attests that he tried to respond to the posts -- he'd been a subscriber to the list for a number of years -- but "APD maliciously blocked the e-mails sent to the mail list by the plaintiff thus not afford [sic] him an opportunity to defend himself."

Mark Rosenstein, the owner and founder of Active Windows Productions, the company that hosts the list and its archives, says that Novak's responses bounced only because they contained files with attachments, not because of who they were from or what they said.

But Novak was not satisfied by technical explanations. On May 30, 2001, he filed a suit disputing the complaints about bad customer service on the APD list, alleging libel and defamation and seeking $1 million in damages. He also claimed that he had suffered "$5 million, plus interest" in damages to his "good name and reputation and to his business interests." And for the emotional distress caused by all the hullabaloo, the suit sought additional damages of $15,000,001. Among the defendants named: Rosenstein, Resler, Carney and several other APD list members who had posted remarks about the company.

A number of defendants in the original suit have since settled, but the May complaint was just the beginning of the fishbowl fracas. The aquarists on the APD mailing list reacted to news of the suit with all the righteous ire of an online community under attack. Incredulous at the sums involved, the hobbyists rallied to spread the word about the case on the Web with a campaign promoting the case as a First Amendment travesty.

"To me, it's a free speech issue. I think that people should be allowed to say when they've had a negative experience with a company," says Erik Olson, the president of the Aquatic Gardeners Association and keeper of 25 fish tanks. "I'm outraged that Novak's reaction is to sue people rather than to try to solve the actual problems."

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Cynthia Powers, the "list mom" who hosts the mailing list and who is named in the suit but has not yet been served, is blunter: "He's going to sue everyone who says that his customer service is poor? This is ridiculous. But this is America, and you can do that."

The list members set up a defense fund to help pay for legal counsel. Some individual donations from sympathetic aquarists were more than $1,000. One aquarist offered a unique incentive to defense fund donors: rare aquatic plants from his homeland of Singapore, shipped at his own expense.

Many aquarists posted banners on their own sites, such as MyFishBox.com, linking to a site describing the case and soliciting donations on the defendants' behalf.

"$15,000,000 lawsuits suck the life out of online discussions. Please support the APD Defense Fund," reads one banner. Another quotes Harry Truman: "In a free country we punish men for crimes they commit but never for the opinions they have."

But Novak sees the suit as an issue not of spreading opinions, but of spreading lies. "The company has been a victim of repeated false and erroneous accusations. We decided we weren't going to take it anymore," he wrote in a recent post to the APD list, where he's continued to be an active member. "It's not about the First Amendment or squashing free speech. One of the suit's purposes is to stop people from spreading vicious lies and is directed at making them accountable for saying things that are not true."

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Novak saw the efforts to spread the word about the suit on the Web as a further infringement of his company's trademark, as well as the propagation of defamatory and libelous comments.

On September 15, 2001, Novak filed an amendment to the first complaint, naming new defendants and adding a litany of charges, including an allegation of computer hacking against Resler, the computer scientist whose original post about Pets Warehouse started it all.

Among the newly named defendants was JoAnn VanDersarl of Pueblo, Colo., the webmaster of a site called PlantedTank.com, where she'd posted information about the case. Now, Novak was suing supporters of the APD Defense Fund, like VanDersarl, who'd put up a banner on her site soliciting contributions and posted in online forums about the case.

The new complaint accused the defendants of forming a "conspiracy" against Novak's business. Among the additional evidence of trademark infringement: the phrase "Pets Warehouse" appeared in the metatags on some of the sites that linked to the APD Defense Fund site. (Metatags are keywords that help search engines index Web sites but are not normally visible to Web surfers.) The name Pets Warehouse was also used in the advertising banners linking to the defense fund's Web site.

According to Fred Von Lohmann, senior intellectual property attorney for the Electronic Frontier Foundation, while using a trademark in a metatag has been found illegal in trademark cases in the past, suits where this has been the case have involved companies trying to steal each other's business, as in the case of two competing video stores, "Brookfield Communications Inc. v. West Coast Entertainment Corp."

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"It sounds like in this case there is no intention to mislead anybody," Lohmann says. "These are not competitors trying to attract customers. The question will be: Does it really mislead or confuse anybody?"

But for many of the defendants this is already a moot point. According to Resler, at one point, the money in the defense fund ran out, and when the defendants had to start paying out of their own funds, they got scared. (Novak is representing himself "pro se" in the case.)

Before the court had even officially accepted Novak's amended complaint, VanDersarl, along with a number of the original defendants, including Resler, settled. "I have three kids and bills to pay," says VanDersarl. "It's terrible when you believe in something so strongly, but you have to look at the reality of it, which is that I couldn't afford my own defense." She declines to mention a specific figure, but says that she has spent "in the thousands" out of her own pocket. As part of the settlement, she turned over the rights to her domain to Novak, because she'd shut down PlantedTank.com when she was named in the suit. Other defendants had to run banners on their sites promoting Pets Warehouse. As part of the settlements, the defendants and plaintiff both agreed to make "reasonable efforts" to delete any online posts referring to the other.

Dan Resler agreed to pay $4,150, according to the "stipulation of settlement" as posted on the defendants' information site.

"We believed strongly that we could win," says Resler, "but I was not prepared to spend $50,000 to do it. So, I settled."

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"This is a big problem with our court system in general," says Lohmann. "Many of these people might well have a good defense, but the problem is going to court, and raising the defense can cost thousands of dollars."

On March 25, 2002, Novak filed a second amended complaint, raising new accusations, including "threats of violence and even death threats against Robert Novak and staff." The complaint gives no specifics as to the identity of any individuals making such threats. Novak says that he purposely did not name the threatening individuals in the complaint to avoid further antagonizing them. He cited the death threats as evidence of "acts in concert to conspire against the company."

It's clear from e-mail quoted in the complaint that some of the supporters of the original aquarists may have gotten more than a little carried away in their rhetoric. In court filings, Novak cites e-mail he says he received from Edward Venn, a member of the APD list from Saitama, Japan: "On March 5, 2002 another threat by Edward Venn stated: 'It's amazing what some Filipino hackers can do while your (sic) on the web ... havoc with your credit by now.' Both of these threats were reported to the FBI and sent to forums to expose the threats."

While the aquarists do not excuse the behavior of some of their more outspoken supporters, some say they see Novak's continued litigiousness as an attempt to silence criticism through legal intimidation. "It looks to me like they're doing whatever they can to stop people from talking about the company on the Internet," said Rosenstein, the list's technical host, one of the original defendants who chose not to settle.

While none of the defendants named in the case compete with Pets Warehouse for customers, casting some doubt on the trademark infringement argument, Novak maintains that the existence of the defense fund itself amounts to an infringement. "Because the money was raised on the back of my trademark, I want to disgorge the fund of the monies," he said.

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Beyond the lawsuit itself, other supporters of the case say they have received cease-and-desist letters for using the words "Pets Warehouse" on their sites. Olson, president of the Aquatic Gardeners Association, who is also the webmaster of TheKrib.com, an aquarium site, says he received a cease-and-desist letter from Novak in March 2002, accusing him of illegally using the Pets Warehouse trademark.

Olson's site features a banner advertisement that mentions the case with this headline: "Pets Warehouse Sues Hobbyists" and links to the aquarists' site about the case. "I'm just literally reporting that the case exists and linking to another site," he says. "I think that Novak's trying to shut up anybody who is putting any negative comments about his business online."

Resler, the computer scientist who started the thread on the APD list about Pets Warehouse, says that he believes the whole mess could have been avoided if only Pets Warehouse had responded differently when his plants were late and he complained. "If Pets Warehouse had sent me e-mail saying: 'We're sorry you're upset. What can we do to make it better?' I would have vented to them, they would have sent me a $20 gift certificate. I would have posted to APD: 'Yeah, we had a bad deal, but let's give them another chance, and it would have been over.' But instead, he [Novak] sued. It is his act of suing us that has caused all the bad feeling. He has brought this upon himself."


Katharine Mieszkowski

Katharine Mieszkowski is a senior writer for Salon.

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