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How my comment on TechCrunch got me a Facebook Cease and Desist (rickstratton.com)
227 points by racerrick on April 3, 2012 | hide | past | favorite | 86 comments

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.

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


Very good chance they will help you with this.

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.

Good advice.

Racerrick, there is post about your adventure on TC.

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

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

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

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.

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.

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.

I am not a lawyer, but briefly consulting a lawyer might also allow you to find out if it's possible to litigate (countersue?), and thereby recoup your legal fees.

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.

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!

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

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.

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

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

It's not advice :)

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 ?

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

Only works on naive people and lawyers who take advantage of them. Know your rights.

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.


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

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

Then in addition to incurring further pain for Rick, he will likely have a libel case against you.

Unfortunately, the lawyers rule the day. Along with those powerful interests with the most money to hire the most lawyers. Yet another reminder why significant tort reform in the US is well overdue.

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.

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?

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.

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...

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 :)

One wouldn't want to be accused of practicing law without a license, in a state where one is not licensed.

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

Just to be clear, I didnt make the thing!

I hope that these lawyers come to their senses.

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

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

Perfect timing eh?! (j/k)

so he took it down?


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.

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

IANAL, but since this was a C&D notice sent in private and Facebook never made a public announcement regarding it, I don't think it's defamation.

You may have a cda section 230 shield since you were merely a user of the comment section, but you are being treated as the speaker of the comment that is their evidence. It's tenuous but worth a try.

The ACLU loves CDA cases since under CA law, it's loser pay (SLAPP).

Yeah, if I were that guy I'd be playing this up for all it's worth. They're demanding that he prove it's not him, and saying that he "sound(s) guilty"? Is that a joke? If they really said that, that law firm just stepped in it big time.

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.

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.

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).

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.

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

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?

it's a way to free the judiciary of time consuming cases. before someone with a lot of money that wanted to harass some poor bastard would take him to court on any frivolous charge and crunch him on the weight of a legal defense. That was fine and worked just fine. but it was taking too much time of the judges. So they came up with the cease and desist letter. it works the same, the rich can continue to harass the poor, but no judge have any extra work. win-win!

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

It's easy to look up that sort of thing through public records.

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

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

Maybe one of those facebook lawyers friended him.

Not employees in general; but definitely legal partners, if they want it.

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

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.

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.

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.

Alas, often in the U.S. legal system it is expected of the accused to produce evidence that disproves the claims made by another party despite them not having any proof to back up their claims. The burden of proof issue can become very murky quickly.

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.

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).

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.

I C & D thee for defamation!

How dare you comment so freely..

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

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?

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.

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.

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).

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.

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.

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.

Hear hear!

Always remember that FB's attorneys get paid to mess with you. They could give a rats ass about your innocence or well-being. If they win they get paid. If they lose, they still get paid. Logic and reason will simply fall on deaf ears. They are hourly billing automatons.

Remain calm and follow your lawyer's advice.

Not a lawyer either, but I've responded to C&D letters myself. Just write the bare minimum and make it clear that you are either complying with their demands or that you are unable to because they have incorrect facts. I've never even had a response to my response letter.

Thanks! Good advice.

also, just to be clear, this is not legal advice. I know absolutely nothing about the law and am just some asshat making shit up on the internet.

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

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.

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

Just send a postcard:

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



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?

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

so what?

What could Facebook (or Facebook's lawyers) possibly have to gain from this? I also think once they realize their mistake they'll drop the whole thing.

Maybe they sent you the C&D just as a shot in the dark, because they don't know who the real author of this thing is?

Or maybe they sent it just because they are assholes?

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