
How my comment on TechCrunch got me a Facebook Cease and Desist - racerrick
http://rickstratton.com/detail.php?c=2787453&t=my-comment-on-techcrunch-got-me-a-facebook-cease-and-desist
======
gojomo
_How do I prove that I have no control over this thing?_

You don't have to prove anything. You've given them the courtesy of letting
them know they have the wrong person, that's it. You can't 'cease' or 'desist'
from something you're not doing, any more than you are already not doing it.

If they actually sue you after you've let them know you're not the right
person, then you can invest more effort into this... and at that point,
they'll be the reckless ones for filing a lawsuit on no evidence.

In the meantime, the most you should do -- milk it for some hits via a blog
post -- is all you need to do. You've done it.

Consult with lawyers (off the payment clock, free initial consultations) if
you'd like to, but there's no need given that Perkins Coie has just sent you a
bit of lawyerly puffery in error.

------
nikcub
There is no way they can get away with bullying you. Contact the EFF:

<https://www.eff.org/pages/legal-assistance>

Very good chance they will help you with this.

------
daemon13
I your place I would avoid going the legal route since this is not your
strength.

1\. Pay close attention to comments from daegloe

> EDIT: After reading many of the frothy comments on this page, I just wanted
> to add that it's generally best to avoid threatening a lawsuit, countersuit
> or any kind of legal claim in your response. These giant law firms love to
> call people on their bluffs, because they bill by the hour. Avoid boxing
> yourself in.

> Best strategy is to avoid litigation at all costs. Because, well, it costs
> lots of money whether you win or lose. And if you win, collecting is a bitch
> in of itself.

2\. Do you have deadline in the cease and desist letter? If yes, what's the
deadline?

3\. Since this is a typical "David vs Goliath" and media loves these types of
stories, I would try defeat FB with its own baby - social media.

Specifically, I would

3.1. contact 10-15 major tech blogs, including through Twitter

3.2. contact 5 major newspapers/their journalists

3.3. post your story on FB Twitter, FB Wall, Mark Zuckenbergs Wall

4\. I am sure that this had adverse impact on your health and well being. So I
would probably add sharing those to your story.

Play to your strengths and keep us posted.

~~~
racerrick
Good advice.

~~~
daemon13
Racerrick, there is post about your adventure on TC.

Did you follow my advice, or they just spotted your story pre-emptively?

------
epikur
It is my extremely unqualified opinion that perhaps you should seek the advice
of a legal professional, before, um, doing anything else.

~~~
racerrick
Agreed. Thank you. However spending money on a lawyer for this is painful.

~~~
daegloe
One option is to ask a lawyer to draft a response in your name in which you
clearly state that you have no connection to the offending service. You would
then send that response on your personal letterhead. If FB's lawyers continue
to pursue their claims, your lawyer would likely take the reins and
communicate directly with the opposition on your behalf.

Another option is to remain silent and wait for a follow up from FB's
attorneys before pursuing the letter strategy.

Bottom line is: consult a trained professional (lawyer). As someone who has
been down a similar road, I can tell you firsthand that it may be painful but
it's necessary. Remember, FB's legal budget is far larger than yours. You want
to play the poor defenseless Rick card as long as you can before introducing
your attorney and any legal letterhead.

Good luck!

EDIT: After reading many of the frothy comments on this page, I just wanted to
add that it's generally best to avoid threatening a lawsuit, countersuit or
any kind of legal claim in your response. These giant law firms love to call
people on their bluffs, because they bill by the hour. Avoid boxing yourself
in.

~~~
vellum
Good idea. Before you get him to draft the letter though, you should try to
negotiate a flat fee for the service. You don't want some guy that bills
$x00/hr spending a few days on the letter.

~~~
daegloe
The letter should be an hour discussion plus an hour of drafting, at the most.
@vellum is right, always negotiate fees and estimated level of effort up
front. In these types of cases it's generally best to deal with each task
discretely until, in a worst case, you must consider litigation. This helps
avoid locking yourself into a significant retainer when a single letter might
do the trick.

------
ajays
To those offering advice about getting a lawyer: do you _know_ how much a
lawyer costs? A decent lawyer will charge you upwards of $300/hour. For just
replying to this letter it'll run you about $100. And then if that other
lawyer responds, the cycle will continue. Soon you're talking real money here,
for _something he did not do!_

~~~
theycallmemorty
It sucks, but it will cost even more if the situation is not handled correctly
and ends up in front of a judge.

~~~
fleitz
The correct way to handle it is to get it front of a Judge ASAP. Barratry
comes to mind. When they can't provide logs of this application accessing
their servers from an IP he owns the case is done and you pick up a little
pocket money.

------
fleitz
Oh noes, you violated their TOS. C&Ds are meaningless I wouldn't even bother
responding. Not legal advice.

~~~
topbanana
Good advice - don't get drawn in. You have nothing to answer for.

~~~
fleitz
It's not advice :)

------
zrgiu_
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 ?

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

~~~
RyanMcGreal
> TINLA

I had to look this one up. This Is Not Legal Advice.

~~~
nasmorn
Hey DDVTWAU (dont down vote this was actually useful) You need to allow people
with interest outside HN some time to catch up on the hip new acronyms

------
dsrguru
This might not be the best legal advice, but I personally would let it play
out as much as possible before hiring a lawyer. It is my understanding that a
preponderance of evidence burden (over 50% certainty) in practice really means
they have to find at least one potential problem with your defense. Since your
blog post provides an explanation that is 100% rational, I'm fairly certain
that means they have no case against you. It seems ridiculous to have to pay
for a lawyer when you're falsely accused of a crime that you weren't even at
the scene for, so to speak.

On the other hand, if this is putting too much stress on you, it might be the
right call from a health perspective to hire a lawyer. Just my two cents of
non-legal tender.

------
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?

------
anigbrowl
Sit tight, consider getting a lawyer, and let them make the next move. It
sounds like they have no case, but on the other hand you haven't suffered any
harm as such. IANAL, mind.

------
tlrobinson
This is just silly on the lawyers' part. What are the chances the screenshot
in the TC article just happened to include a comment, in a random article
earlier in the day, by the creator of the thing the article was describing?

Clearly you were in the wrong place at the wrong time and made an ambiguous
comment that was misinterpreted by Facebook's lawyers.

How do they expect you to prove you're _not_ involved? (hint: they don't) It
sounds like they're just trying to intimidate you.

IANAL, but I'd very clearly explain exactly what happened. If they continue to
pursue this I'd be very surprised, and will make sure I never use their law
firm...

------
13hours
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?

~~~
mseebach
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 :)

------
cypherpunks01
This seems extremely strange, what does the letter actually state with regards
to them believing it's your creation?

And what activity do they want ceased, anyway? From what I briefly read, it's
just a browser extension that doesn't talk to facebook at all, but just
maintains a separate thread of conversation anchored against a facebook
comment stream. Is this not the case?

Also curious, are you planning to release the C&D or pass it to
chillingeffects.org? Thanks for the great browser extension! :p

~~~
racerrick
The letter states that I need to stop the service and shut down the site, both
of which I have no control over!

~~~
gbaygon
The site in question seems to be 404'd, so maybe you have nothing to worry
about

~~~
dannyr
Perfect timing eh?! (j/k)

------
droithomme
Sounds like they are defaming you.

If it was me, and I truly had nothing to do with this thing they are upset
about, I'd greatly welcome their lawsuit, and countersue when it comes. Little
guy versus the big mean corporation, let it play out.

Right now they are on a fishing exposition.

~~~
roshanr
The cease and desist - albeit invalid - and other legal communication was sent
privately to the OP. I don't think that counts as defamation.

------
mgl1965
Geez. I am a lawyer, and there is no need to hire or contact one. You can
either ignore the C&D letter or take the first person's advice and write them
a terse, polite letter explaining (briefly) that you have nothing whatsoever
to do with the site in question. That's it. (and send it certified with
receipt.) If they should file suit (in which case you would be served) that
asks for some monetary damages (as opposed to an injunction of some sort
against the site in question), then, and only then, do you need to consult
with an attorney. The chances of them doing that, or anything else for that
matter, is almost nil.

------
chao-
This seems like a freewheeling legal department trying to do its job, however
poorly, with less-than-optimal oversight or communication with PR. That said
I'm purely taking a stab in the dark without more details from the documents
you were sent.

I seem to recall another story crossing HN over the last year with the general
plot of "BigCorp is suing us for [ridiculously unrelated reason] when we have
nothing to do with it!" before the bad PR hits and BigCorp issues a statement
saying "Sorry. It's all cool, we didn't really mean to target you. In fact we
even like you." If I can find it I will edit my post with the details.

~~~
daegloe
I'm afraid it's generally far worse than a freewheeling legal department. But
rather a bloated law firm retained to indiscriminately "defend" the FB brand,
and whose daily mission it is to continuously justify monthly billables that
would dwarf most annual software developer salaries (and then some).

------
krrose27
Originally posted on your blog.

A sworn affidavit should work in a courtroom. (Not a lawyer!)

So at this point I would send a nicely worded certified letter telling them to
stop harassing you.

At that point they have limited options (in my opinion). 1) Sue you because
they can prove you own it in court. (At which point a simple affidavit should
end your part in said suit). 2) File a John Doe suit and actually find out who
runs it.

Best option would of course be to obtain a lawyer and head it off sooner than
later. Also once you have yourself a lawyer you won't have to deal with their
lawyers at all as they should be bared from contacting anyone but your lawyer.

------
notatoad
what does a cease and decist letter actually mean? it's not coming from a
court, how does it carry any weight at all?

~~~
fleitz
It doesn't mean anything, it's just a scary sounding letter.

Lawyers are skilled negotiators, part of negotiation is making it seem like
they have a case especially when they don't. If Facebook had a case he'd be
served and/or the police would be at his door.

A TOS violation? What are they doing to do? Turn off his Facebook account?

------
OoTheNigerian
The only question that come to mind is this. How did they know your address?

~~~
chrischen
Well they are Facebook... And he is on Facebook...

~~~
floydprice
hang on! are you suggesting that FaceBook employees have access to a users
data even if his privacy settings prohibit it?

~~~
chrischen
Maybe one of those facebook lawyers friended him.

------
wiceo
More unqualified, unsolicited advice ... I'd let them pester you long enough
to accumulate enough evidence for a harassment counter suit.

------
rangibaby
Isn't the onus on them to prove that he is guilty? IANAL but it sounds like
there isn't a thing he can do.

~~~
mbenjaminsmith
In court yeah. A judge or jury thinking you sound guilty is one thing, a
lawyer saying it means absolutely nothing.

Excuse the language but I would tell these people to go fuck themselves.
Unless there's a lot of missing info here, I can't imagine a single judge that
would allow that to go to trial.

Unfortunately (for his wallet) he probably should get a lawyer. Their actions
might be idiotic but I would suspect they're very good at getting their way.

[Edit] What I mean is they don't seem to have a case _unless_ he slips up
somehow . That's why he should get a lawyer.

~~~
tesseractive
Seeking the advice of an attorney is never a bad idea.

But as far as telling them to take a flying leap, even though he is well
within his rights to do so, it may cost him considerably less time and money
to try to find someone to talk to on their end who is willing to listen to
reason.

Someone with a lot of lawyers and deep pockets could easily bankrupt a private
individual over something like this. If it were me, I would consult a lawyer
and get any relevant advice. Then I would contact them, either personally or
through my attorney, and try to do everything I could to cooperate with them
to convince them I know nothing about the program in question.

An actual fight is the worst case scenario, and a Pyrrhic victory is likely
the best outcome that could be hoped for.

------
dmoy
This has turned into a "How my comment on <insert places> on my comment on
techcrunch brought down my server" case. Does anyone have a cached copy? I
can't find one except for an interesting looking picture... Do want to see
more.

------
nextparadigms
Facebook comments on Techcrunch was a bad idea from the beginning. It's the
main reason why I started visiting Techcrunch a lot less at the time (and then
other reasons added up,and I quit it for good).

~~~
nikcub
The idea is that people will troll less, but by default it allows hotmail and
yahoo mail login, which is like firing a flare to attract trolls.

~~~
coopdog
I C & D thee for defamation!

How dare you comment so freely..

------
moocow01
Looks like Facebook pulled the trigger a little early on hiring their gaggle
of corporate lawyers - reel 'em back in for just a couple more months

------
zem
quite apart from anything else, defaceable sounds like a brilliant service. do
facebook have any real legal leg to stand on if they do go after it?

------
iamgilesbowkett
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
every penny you pay for it. however, IN MY OPINION, if you had a sharp lawyer
who wouldn't rip you off, such a lawyer would tell you how to translate "fuck
off, this has nothing to do with me" into lawyer-speak.

the translation would (IN MY OPINION) be brief, clear, and non-argumentative.
whatever you do, DON'T be upset by anything they say to you. provoking rash
reactions is just a tactic they employ.

if I were a lawyer, AND I AM NOT, I would tell you to write a letter that
looked more or less like this:

"Dear Whoever,

I read your letter with interest, and noted your request that I shut down XYZ
Site. However, I am unable to cease operating XYZ, because I do not operate
it, and have never operated it at any time. In fact, I have absolutely no
connection to XYZ, have never had any connection to it, and am unable to help
you. Good luck, and have a nice day."

Again I AM NOT A LAWYER, but that's really all you need to say. You put that
in the mail, certified of course, with receipt, so you can prove they got it,
and you forget this ever happened. Any aggressive, offensive noises they make
other than "here is your court date" are just NOISES. Ignore them.

In the unlikely event they get you in front of a judge, the judge will hear
your simple defense - "nothing to do with me" - and ask them if they have any
proof of it being anything to do with you. Since they don't, it's a short
conversation, and you go home.

If you find yourself saying anything further than what I just described --
"not me, got your letter, nothing I can do" -- STOP IMMEDIATELY and either
hire a lawyer or shut the fuck up.

speaking of hiring lawyers, again, disclaimer: I am not a lawyer, this is not
legal advice, grain of salt, your mileage may vary. seriously just hire a
fucking lawyer because panicking, freaking out, and/or writing 10,000 words
about this is just completely wasted energy.

~~~
Tichy
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).

~~~
Tyrannosaurs
So long as your reply is short, balanced and factual then a reply is better
than not replying. If nothing else it's extending the courtesy that we'd all
want extended to us if we were making a complaint (saying, sorry, no, you've
made a mistake), but also you're kidding yourself if you think these things go
away when you ignore them. Reality is that it's more likely that they'll
escalate.

In terms of could you charge for it, no of course not, sadly that's not how
any of this works. You can throw out this sort of threat with little or no
comeback.

------
drstrangevibes
its not for you to prove your innocence , they must first prove your guilt.
reply no case to answer

------
jerrya
Ask a lawyer if you can counter sue Facebook not just for lawyer fees but for
damages for maliciously and falsely accusing you in public, an act that is
certain to sully your reputation.

Ask a lawyer what's the best way to game this situation to increase Facebook's
liability to a maximum while minimzing your risk and exposure.

~~~
furyofantares
I don't think they accused him in public at all

~~~
blues
Just send a postcard:

"Have no idea what you talking about. Nothing to do. Very depressed. Doctor
said to avoid this kind of thing."

Thanx,

xxx

------
endlessvoid94
Oh, come the fuck on. Somebody, somewhere, made a mistake. If you really have
nothing to do with this, then nothing will come of it.

Reply to them and tell them it isn't even you, and that you have nothing to do
with this. They're not going to destroy you or even force you to rack up
thousands of dollars in legal fees. They're not evil.

This is just as bad as the mainstream media -- anything that anybody does that
can possibly be perceived in a way that gets attention is what makes it to the
frontpage now?

~~~
racerrick
That's exactly what I thought, too. And that's when I got the "you sound
guilty" from their lawyer.

~~~
endlessvoid94
so what?

