On Friday March 27, the Georgia Supreme Court ruled in favor of Matt Chan in his appeal of a lower court ruling finding ‘stalking’. My interpretation of the ruling— which I’ve read using my non-lawyer eyes– is the Court not only granted Chan’s appeal but
- They ruled in his favor 7-0. This was not a close call at all. Every single judge ruled for Chan.
- This was not a “first amendment beats stalking” case: Every single member of the court ruled Chan did not contact Ellis. Stalking through contact was the only mechanism of stalking even claimed in the lower court ruling against Chan. When overruling the lone (in my view demented) Judge Jordan, the Georgia Supreme Court overturned the conviction because– basically– the Ellis side did not provide evidence that indicated Chan stalked Ellis. American’s all understand that courts never actually clearanyone of a crime; courts always leave open the possibility that some evidence not presented to them exists somewhere. So one can’t go so far as to say the justices fully, 100% decreed Chan did not stalk. However, effectively they overturned his conviction ruling he did not stalk Ellis– or at least Judge Jordan’s ruling was not supported by the evidence presented to him in court.
The ruling was not based on a cursory exposure to the evidence presented in the lower court. I write this because Linda Ellis is suggesting that the difference in lower court ruling is the one based on ‘facts’ (and so implying the other is not.) At least that’s the argument I infer when Linda Ellis writes
what it clarifies is that people tend to form an opinion without receiving all the facts. The initial judge had the facts…he received them in an all day hearing. Those that are not presented here for you. That’s why he (the judge) issued a permanent restraining order in the first place. 😉
In fact, the seven justice of the Georgia Supreme court ruled after viewing copious amounts of evidence and reading arguments and counter arguments of legal representatives from both sides. Matt Chan had had the presence of mind to enter much of the forum content into the evidence when presenting to the lower court– thereby giving the justices access to that evidence. Moreover, the evidence included portions highlighted by representatives for Ellis’s side. Among these were examples of posts Ellis had used to convince the lower court that the ELI forum contained death threats and sexually explicit material. The image to the right is one Ellis’s lawyers highlighted– presumably because they consider that image some of the strongest evidence of “death threat”, and “sexually explicit”. (Other examples included someone linking to a youtube video of someone signing the child’s song “the worms crawl in the worm’s crawl out”– a song I have known since I was less than 7 years old and which we giggled to while singing at day camp.)
- This is not a “Federal law idemnifies forum owner who let his visitors stalk” ruling. While the Ellis side presented quite a bit of content written by visitors to Chan’s forum and complained that content not written by Chan demonstrated Chan was stalking, the Supreme courts argument that content– posted by third parites– would not be ruled stalking even if the content creators themselves were being accused of stalking. Chan didn’t need federal indemnity for permitting them to post that material because that material did not represent “contact” either.
- The ruling was not a technicality based on any sort of “cyber” element excluding “cyber” stalking form “stalking” . The court recognized that “contact” can occur on electronic media writing
For purposes of the statute, one “contacts another person â€when he“ communicates with another person†through any medium, including an electronic medium
So it’s rather clear the justices would consider ‘cyber contact’ to be a form of ‘contact’. However, non-contact remains non-contact whether the ‘non-contact’ occurs when someone talks to a third party while sitting on a bus, writes an article in a dead-tree newspaper or posts a comment on an electric forum. These discussion are not magically vaulted into the domain of “contact” merely because they occurred in cyber-space rather than meat space.
- The ruling was also not based on any sort of “technicality” related to Linda visiting the ELI form. I mention this because Linda Ellis is claiming so writing
I had already been granted permanent protection from this guy and then it was taken away on a technicality
in comments at a newspaper online forum.
In brief: The court ruled in Chan’s favor because the evidence presented by Ellis’s side did not support the claim Chan was guilty of stalking Ellis by “contacting” her. The lower court didn’t find him guilty of stalking her in any other ways possible under the Georgia statute– presumably because the lower court didn’t find evidence to support a guilty charge under other branches of the statutes. So: the lower courts ruling was overturned for lack of evidence of any “stalking”. The ruling was not close; it was not a technicality. The stalking ruling was overturned because Judge Jordan’s ruling was not supported by the evidence presented in court.
My hope. As some know, a huge amount of information discussing Linda Ellis’s distasteful money grasping business practices used to appear at Matt Chan’s ELI and was taken down as a result of Judge Jordan’s legally unsupportable ruling and ridiculous PPO preventing Matt from running a forum that discussed Linda Ellis in any way, shape or form. The duration of the PPO? Forever.
I hope the Ellis forum will re-appear shortly at ELI. I have two reasons for this wish:
First, re-publication will permit interested readers to view the posts Ellis and her legal representatives claimed demonstrate ‘stalking’, are ‘sexually explicit’ or amount to “death threats”. Full republication would permit the posts to be read in context. While many people might consider cartoon images of people with pants pulled won juvenile, crude or ineffective tactics, these sort of things are not “death threats”. Posting that sort in public for the amusement of third parties is not “stalking”. The lower court ruling against Chan was rightfully over turned. I applaud it and I’d like interested parties to see the forum to learn just how ridiculous the ruling was.
Second if the former forum content is re-posted, it will permit people to learn more about Ellis’s business practices some of which I highlighted here: Don’t Post Linda Ellis’s ‘The Dash’. While Linda Ellis may believe she is entirely justified in sending out heavy handed, scary letters demanding exorbitant amounts of money from those who posted her poem in extremely lightly trafficked back-waters of the web, I think she her behavior is outrageous. I think she should be publicly shamed. But if I am wrong and she is correct, she shouldn’t mind people discussing her business model in public. So the public discussion shouldn’t bother her one iota. Her behavior which involves filing restraining orders and DMCA takedowns which would have the effect of removing all discussion of her business practice suggests she would prefer people remain unaware that the sois-dissant life-affirming poetess cares more about extracting cash from those who post the dash than she cares about living a full-graceful life that exhibits care and kindness toward others. This suggests she is a hypocrite.
But my concern is not that she is a hypocrite. My concern is that scrubbing the internet of information about her business practices puts naive people who might publish her poem — possible in honor of the death of a loved one– at risk of receiving frightening letters demanding amounts of money they can ill afford to pay. Publicizing her practice might prevent some from posting the stupid poem and with luck will allow the trite thing to fall into obscurity where it rightfully belongs.
With that, I close my sermon. I invite those who wish to discuss copyright extortion, restraining order abuse, abuse of DMCA or any topic associated with the Chan and Ellis ruling to comment.
Update: I’m going to post links to other sites discussing this case which are appearing.
- Oscar Michelin posted a nice history of his involvement.
Other updates:
Linda appears to now be inviting comments at her facebook. This one looks at least as much of a “death threat” as the cartoon of people with their pants pulled down.
It’s been up 15 hours. Linda has posted within 9 hours. If she really thinks this sort of thing is a death threat, stalking and so on, and that a visitor to her facebook page thinks the other person writing it constitutes her writing it or her stalking, you’d think she’d take it down. Nope.
Good work, Lucia. I occasionally think about Ms. Ellis. Recently I have speaking lately with a friend of the family who, with her late husband, used to publish a poetry magazine back in the 1970’s and 1980’s that was well thought of in the poetry world. My dear friend’s outlook, demeanor and “spirit” is dramatically different from that of Ms. Ellis. There is a small hope that a reprise and historical perspective of that magazine will be published in the next year or so. I doubt if anyone will bother considering a review of Ms. Ellis in some future date. Certainly not one that involves expressing love and respect.
hunter,
As far as I can tell there is little to review. Ms. Ellis puts together other bits of doggerel, but nothing worth reading– and nothing anyone wants to read the stuff. I think all her stuff is pretty much self published. While there is nothing wrong with that, I also think there are few customers and no one is going to bother to ‘review’ the body of work.
She wrote “The Dash” a while back. That’s “the” poem. I suspect the reason she adopted the business practice of copyright trolling is that she can’t make much by selling the doggrel or dash inspired knick-knacks. Of course I can’t be sure of that– but it’s my theory.
Lucia, you have written a brilliant explanation and overview of the Chan V. Ellis decision. Thank you for referring to the victims. Linda’s actions have hurt hundreds if not thousands of people who innocently shared the Dash. I am one of her targets and I have written a book about my ordeal with this very strange woman. Please visit http://www.getpoeticjustice.com and watch for updates. I expect it to be available very soon.
I think the GA supreme court saw the truth of the matter. The stalking statutes are not a tool to silence opposition of heavy handed copyright enforcement tactics. Ive watched the oral arguments and the court was quite aware of what was the crux of the matter. This wasnt fear for one’s safety… This was fear of exposure of an unscrupulous business model. 7-0 is a damning decision however you slice it.
Bunnies should read the nine page order. Lucia is, well, let us say, putting a bit of spin on this. The Court said simply that although there was a lot of mean spirited and nasty stuff about Ellis on Chan’s web site, Chan and his commenters wrote about Ellis, but at no time contacted Ellis about what they had placed on the web site. Without direct contact, there is no stalking, thus the judgement.
Moral of the story: Don’t google yourself
Bunnies can’t read. Rabbits can hardly think at all… consider their reaction to an oncoming car….
Eli, Lucia said the exact thing you did in different words; she just added more detail. (“Every single member of the court ruled Chan did not contact Ellis. Stalking through contact was the only mechanism of stalking even claimed in the lower court ruling against Chan…[T]he Georgia Supreme Court overturned the conviction because– basically– the Ellis side did not provide evidence that indicated Chan stalked Ellis.” That’s your message in different words; but the rest of her commentary fits it perfectly.)
True moral: Google yourself all you damn please, but don’t sue people for “stalking” you when you came to the words yourself, instead of the words coming to you.
First page of the judgement and somehow not commented on by Lucia:
” On his website, they have published nearly 2,000 posts about Ellis, many of which are mean-spirited, some of which are distasteful and crude, and some of which publicize information about Ellis that she would prefer not to be so public. At least one post is written in the style of an open letter to Ellis, referring to her in the second person, and threatening to publicize additional information about Ellis and her family if she continues to employ the practices of which Chan and the other commentators disapprove”
Very #gamergate like
Eli,
Only on college campus does there appear to be a ‘right’ to not be offended. In the real world, that is not the case.
Dewitt – But what is a liberal to do when they are offended by other liberals being themselves?
http://www.gaystarnews.com/article/uk-students-union-passes-policy-stop-white-gay-men-acting-black-women250315
Also, if I make fun of Eli on another webpage, but he can’t find it, does he still think I’m Stalking him?
Bonus points: This alleged other webpage were I and possibly others make fun of Eli may or may not have references to ‘hasenpfeffer’ on it. There might even be links to the following.
https://www.youtube.com/watch?v=QCOkx4eT2ts
Can Eli prove ‘death threats’ (or sexual harassment) if he never finds the webpage?
Eli,
I do mention details that are not discussed in the order. That doesn’t make that information spin.
Information like the fact the judges views copious evidence and the decision period spanned is not discussed in the order. We know copious evidence was provided because we know what the submissions were. We know what evidence was presented in oral arguments because the GA Supreme court oral arguments are video taped. We even know the some Supreme Court justices chuckled at claims about the revolutionary war era image because it’s on the video tape.
I didn’t say the Court wrote “this is not a technicality”. If course they didn’t write that. But it wasn’t a technicality and my saying so is not “spin”.
Eli
In Eli Rabett (Comment #135912) you complain I don’t comment on a specific paragraph. I’m not entirely sure what your complaint is about.
First: I did alluded to the ‘crude’ images. I posted one of them– the people with their pants pulled down. That image was not only on the ELI site but presented in court — which you would see if you watched the video. I can be certain I know the judges saw it and I can be certain I know some of them believed it was not “sexually explicit”. One said so in open court.
Second: If your complaint is that I didn’t quote that specific bit: I didn’t quote anything from the 9 page ruling I provided a link for people to read the ruling themselves. Even with respect to the main points that I discuss, I didn’t quote. So, if my not quoting that particular bit on the page is your gripe: Well…. you are in bizarro world.
Finally: Other than complaining I didn’t quote that bit, what’s point do you think you are trying to make? That paragraph doesn’t contradict anything I wrote. The court found Matt Chan didn’t stalk Ellis. Yes, the forum contained images like the one I showed. The court agrees some people might find them crude. Posting crude images– like the people with their pants pulled down– is not stalking or a death threat. Publish information doesn’t cause physical injury and certainly doesn’t kill people. Contrary to any claims otherwise, threatening to publish some things is not a “death threat”– and people could see that no such threats appear in the forum if it was available in context. It is hardly credible to believe Ellis was in fear of her life or physical safety because someone might publish information.
Heck, the woman was supposedly “afraid” because the google image of her home was reposted on line. And the address she posted herself on various self-promotional sites was posted online. So, some of “information about Ellis that she would prefer not to be so public” appeared to be information she had put on line herself— she just didn’t like it to reappear in another context. Claims posting those things are “death threats”, “harassment” or “stalking” are ridiculous.
But in the end I stand by this: The Court found Chan did not stalk Ellis. This isn’t a case where they found he did violate the statute but something about the ruling violated the 1A requiring us to set aside a conviction. He didn’t stalk because he didn’t commit the acts that constitute stalking.
She appears to have filed the complaint because her ‘business model’ (borderline extortion) was threatened, not because she was threatened. She acts like companies that purchase worthless patents so that they can file frivolous infringement suits, and extort money from those who want only to avoid huge legal costs. Legal activity? Yes, at least so far, but unprincipled.
Eli,
You appear to deem material “spin” if it’s not something the judges specifically wrote in their ruling. I contrast, I consider reporting that they did, in fact, view lots of evidence “not spin”. Whether it is or is not, I would like to show readers how I know the judges viewed certain types of evidence.
With respect to my paragraph
We all agree this is not a quote from the ruling. We all agree the judges didn’t wrote “after we viewed copious evidence including blah, blah…” But my paragraph does report what happened.
For example, you watch as some view images of the above image which the Ellis side characterized as a “death threat” and “sexually explicit” in just after minute 6:20 in part I of the 5 part youtube video series of the oral arguments here:
https://www.youtube.com/watch?v=akumS1J6PbQ
Somewhere later in one of the five videos, one of the judges flat out says that image is not sexually explicit (which it is not.)
So: Saying the judges were presented with copious evidence is not “spin”. It is particularly not “spin” when stated in response to Ellis’s claim that the reason the Supreme Court’s ruling differs from that of the lower court is the lower court saw the full evidence and the higher court did not. The higher court saw this evidence. That they did not clutter up the 9 page ruling saying things like “Having seen tons of evidence, talking to both sides, and being recorded on video laughing at some of the claims made by the Ellis side, we find …. ” does not make my noting these events “spin”. It’s not in the nine page ruling because judges don’t write things like “Yeah. We really, really, really thought about this and now…” Rulings– as long as they are– are edited to stick to the legal points.
Also, with respect to the judges having been presented copious information see part 3 of the oral arguments:
https://www.youtube.com/watch?v=IPIxRohXSaE
You can not only see they were presented the content of the ELI web site, you can see oral responses to Ellis’s lawyer (Betsy McBride)’s claims about the posts being either (a) sexually explicit or (b) threats that amount to stalking.
Yes– they agree Ellis didn’t want information revealed and that some of it would be considered crude by some people. (Some people just think it’s funny.) But even if it is crude, “posting crude stuff on the internet” or “revealing stuff X doesn’t want revealed” is not “stalking”.
SteveF
Yep. In this case, she does hold a valid copyright to her poem. However, after sending scary letters demanding high sums and wording her demains in a way that suggests a judge might ding them on the order of $150,000, she either (a) gets the money or (b) doesn’t go to court. (She will follow up letters — pressing. But she doesn’t take these people to court.
My guess is she doesn’t take them to court because she knows perfectly well a judge has wide latitude and could grant her as little as $200 and, given the type of infringment is likely to do so.
If we were to analogize, these “infringements” she persues are often equivalent to a drunk “infringing” by jumping on a table and starting to sing “I’m all about the base, bout the bass bout the base, no trebble”. Yea… the song is copyrighted. Yeah.. that’s a “performance”. Yeah…. If Meghan Traynor went after the drunk, she could expect (a) bad publicity, (b) the judge to use his latitude to grant the minimum possible fine which is pretty low or– and this is possible– decreeing the use either “fair use” or “deminimus” and so not infringing.
The specific evidence of cases she pursues were on ELI. If it was up I could provide a link. Ellis got the material taken down– and I believe that was her motive. ( FWIW: it evidently takes something like either 14 days or two weeks for rulings to be formally communicated and there is a legal hold period. I’m hoping the material goes up 14 days from the ruling! )
The Rabbit is not so raskly all days, it seems.
On a more date appropriate and Wisconsin-centric point: Here is a link to a recent NASA initiative that should give hope to all of us who want to see more active space exploration.
http://apod.nasa.gov/apod/ap150401.html
Lucia,
I don’t the copyright rules about linking images. Is it OK to link to something like this?
http://bit.ly/1y2yC8Y
Lucia,
Humor needed to celebrate the Georgia Supreme Court ruling involving Ellis.
Linda Ellis is related to being a victim as a crocodile is related to Godzilla.
John
Joseph W gets it right, the Ga Court decision can be boiled down to two sentences
1. Stalking requires direct communication between the stalker and the stalkee
2. There was no communication between Chan and Ellis
However, the Court also pointed out that some of the things on Chan’s website HAD they been directly communicated to Ellis WOULD have met the other tests for stalking.
Now consider the following, instead of posting on the net, suppose Chan had posted flyers on telephone poles near Ellis’ house.
Would that have met the test? If not why not and if so how does posting on the searchable net differ?
I just reread it. They didn’t say that. Like most appellate courts, they limited their opinion to what they needed to decide the case as it was. Read footnote 2. They didn’t comment on what the finding “would have been” in the event the posts had been sent to Ellis by mail or e-mail.
The full statute is here…note the definition of “harassing and intimidating,” which requires that the communication “plac[e] such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family.” The court didn’t comment on whether the posts would have done that because it didn’t have to; the “communication” issue alone decided the case.
(Note also that they made a comment…it’s in footnote 7…that the stalking statute is limited by the First Amendment. They didn’t reach the Constitutional issues in this case because they didn’t have to; the language of the statute itself is enough to show that Ellis’ claim fails.)
So Joseph, if Chan had posted flyers in Ellis’s neighborhood with some of the more objectionable things found on his blog, would that have qualified as harassment for the purpose of the law.
Look at the statute and tell me yourself! There are three ways of violating it:
(1) follows,
(2) places under surveillance, or
(3) contacts the person
…flyers in the neighborhood might fall under any one of the three, depending on details. But it has to be for the purpose of “harassing and intimidating.” And you only get to “harassing and intimidating” if the conduct
(a) causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family,
(b) establishes a pattern of harassing and intimidating behavior, and
(c) serves no legitimate purpose.
…so is there anything on that blog that, if posted in her neighborhood, makes her think she or her family is going to be unsafe? (I haven’t read the blog; have you?) It’s possible.
(I haven’t researched, and don’t plan to research, any Georgia case law on the subject; I’m going just by the plain language of the statue.)
“Serves no legitimate purpose” is a giant limitation in the statute.
Does anybody believe Chan et al would have the slightest interest in Ellis, but for her business activities.
His entire purpose was to draw attention to and protest those activities which he viewed as immoral and unethical.
…and one other point, a lot of the discussion here (including to some extent this post), is making the same mistake Ellis made in her legal arguments. A lot of the commentary on Chan’s forums was made by people other than Chan, and he is not responsible for other people’s comments just because he provided a venue for them to be aired.
Eli
JosephW,
During oral arguments, another issue was discussed. The justices asked about how their ruling might interact with the “Elonis” case discussed in the Supreme Court. Volokh’s answer was that they didn’t need to wait for Elonis because the issue in Elonis the issue is whether the perception of the ‘victim’ was enough to make something harassment. Evidently in GA law it’s not harassment unless the person accused intends to intimidate, threaten and so on.
At another point in the discussion, one of the 9 justices told Ellis’s co-council that her reaction was irrelevant to their statute. In GA law, the speech and behavior must be intended to instill fear and so on.
Copner,
I don’t think I made this mistake in the post. Bullet (4) notes that that law is not the basis for the ruling. The law exists, but — as Joseph W points out, the GA Supreme’s didn’t need to consider Federal or Constitutional issues. The reason they didn’t is because the posts submitted by others (which the lower court accepted) weren’t stalking because they aren’t “contact”.
So the GA Supreme’s didn’t need to worry about whether their law needs to be adjusted based on the Federal law because those posts by others also were not stalking under GA law.
By “this post”, I meant “this comment”.
My beef was/is with Eli’s idiotic comparison to chan posting fliers, rather than your post Lucia. To describe it in terms Eli’s terms, chan is the owner of the fence to which the fliers were stuck – relatively few of the fliers were authored by chan.
Eli,
If someone goes to target practice at the gun range, some of those activities might be interpreted as rabbit hunting, if they were not at a gun range and were instead hunting rabbits.
Well yes
Eli,
Nice detour.
However, since it has nothing to do with the topic or any of the illustrations or examples otherwise offered, I will decline to take your detour. It has even less to do with your apparent pal the poetess troll than does your previous failed example of flyers in the neighborhood.
Good old Josh Halpern. He could try to sue his former students for stalking him if he’d only read their criticisms (much better to invent “Eli Rabett” and be whoever you want to be on the interwebs, right?).
Whines that Lucia used “spin” instead of sticking to what the judges said, then decides to invent a hypothetical situation that the judges didn’t rule on and which has nothing to do with the case.
It might be time to invent another pseudonym. This one is arguing just to argue, apparently.
Oh yeah, popehat has more on Prenda law and the video is on the la times under Comedy gold: Watch three U.S. judges dismantle a copyright troll’s case.