Lolcow LLC v. Liz Fong-Jones (1:26-cv-02059, S.D.N.Y.)

[A.P. Hill]

tl;dr: Noooooooo, it is not fair use at all! Because we say so and blablablablalbalbla

"Elliott Fong is not a rapist because...uhh...he isn't"

 

[Napoleon III]

The judge will probably accept that vis a vis any sanctions sadly, but it will also put the position that its most likely bullshit hearsay and rumor on the record. Which I feel needs to be done this time. Skordas let that shit sit and it bit his ass during the appeals. KUSK clearly intends to bring in all the #dropkiwifarms greatest hits to try and make this case about the forum being "Le Bad" rather then copyright.

One thing the Australian lawsuit shows is that if you let these people get away with saying anything in a lawsuit and not responding they will use it against you forever.

It's gay as fuck that it works like that but it does.

 

[306h4Ge5eJUJ]

Bringing the Australian case into this is a pretty bizarre move, honestly. It's such a great example of the dishonest legal bullshit Fong Dong pulls on the regular that it almost feels like an own goal. Are they banking on the judge not looking at who the defendant is? Maybe there's an actual chance of this, idk.

 

[lol cow supreme]

I do not understand how poor of a job Elliot or his attorneys are at copyright, but it seems to me they are claiming copyright because they have a copyriight registration yet in the same filing admit to how the copyrighted item is actually available for fair use.



Just because a thing HAS been copyrighted doesn't mean its not free for others to use.

He claims he's defending his intellectual property, but it was merely transferred to him.



Elliot admits that the copyrighted image is being used by those posting it as he himself intended it to be used, to identify him. Not as something highly creative.

These points matter as it essentially makes the case directly as to the image being fair use. When assessing fair use we have the 4 question test:

1: Transformative or commercial? The use in the forum as stated by the defense is that it is being used to identify and depict - often with commentary of their appearance. This is not being used commercially by any of the posters as none of the posters are gaining money using the photo and is not a commercial use.

2:Factual or creative: Its a photo of a mans face, taken for that man to use to identify and depict himself. That's as factual as it can get. This is not a highly creative work. This work is also published and displayed publicly.

3: Usage Amount- Its used appropriately for the transformative purposes its being used in. its not plastered all over a television commercial for lipgloss.

4: Market Effect- There is no market. The market was the photographer who took the photo, which was purchased along with the copyright to the photo by the defense. The defense has stated it was purchased with the intent to be used not commercially, but to identify and depict the subject within social media. There is no loss of sale of the photo as it is freely given. There is no use of the photo to trick someone into buying another product instead of the photo. There was a market of 1, and Zachary Drucker, the photographer 100% saturated it.

A "robust fair use analysis" indeed. A cow in a trench coat on the internet did a better job in 10 minutes.

 

[Betonhaus]

Yeah, but the forums Wikipedia page is pretty damaging. Its the worst kind of defamatory circle jerk of activists citing each other. A new article cites the Wikipedia page, and then the Wikipedia page cites the news article. Most of it is outright made up, and the rest that isn't made up is opinion and rumor at best. Such as the "three suicides" claim. The first two suicides alleged didnt involve the forum at all, and the byuucide is "complicated".

The "swatting" claim made by Tewson is an outright lie though, and her only argument for it is the Wikipedia article, which is also a lie. And if you follow the citation chain, its just Wikipedia citing a news article that cites Keffals saying Kiwifarms swatted her. Which we didnt, and Keffals offers no proof that we did other then what some rando on Twitter said.

I feel like this may be an opportunity for Hardin to take a pile driver to some of that crap. Especially on the swatting, which KUSK swore under oath we did. I feel that claim in particular may warrant sanctions.

Is it possible to go through all of the sources cited and dispute the ones that are obviously questionable, mischaracterised, or referencing an older version of the wikipedia article?

 

[DragoonSierra]

claims he's defending his intellectual property, but it was merely transferred to him.



Elliot admits that the copyrighted image is being

Is she saying that because the users critiqued the person in the image and not the image itself it's not fair use? That's garbage bullshit. Any reframing of the image period is fair use and Im sure there's a case Hardin can cite for that.

Either way doesn't the Sargon case basically state that just altering the title is enough for fair use? Im sure that you could make the argument that posting the image itself is fair use especially in the broader context of the thread.

 

[mindlessobserver]

Is it possible to go through all of the sources cited and dispute the ones that are obviously questionable, mischaracterised, or referencing an older version of the wikipedia article?

Tewson didn't reference anything specifically. She just said those things as if they were statements of fact not requiring further elaboration. For example, this is the relevant portion of her supplemental file I think is sanctionable. Not just because of how wrong it is, but because she claims the website hosts "illegal" content. That is a declaratory statement, and is sanctionable if false. Further, the truth or falsity of the statement revolves on a clear principle of law. She just states it as if its a commonly held fact. But its not, and KUSK needs to be pressed on this point in particular. Either by retracting it or defending it. Even making them defend it will be a win. The judge may agree "sure, its just a common opinion, see Wikipedia", but it will make the point that it is OPINION and not FACT.

There is no citation for anything in this claim either, and Tewson offers no examples from the forum specifically. Instead she goes on to reference vaguely meta threads. The "Jewsperg" hate thread in particular is rather funny, since that is a thread that specifically exists to dunk on Anti-semites and neo Nazis shitting up threads with constant jew sperging, and is quite popular with the forums resident Mossad agents. Its a certified Kosher thread.

 

[Betonhaus]

Tewson didn't reference anything specifically. She just said those things as if they were statements of fact not requiring further elaboration. For example, this is the relevant portion of her supplemental file I think is sanctionable. Not just because of how wrong it is, but because she claims the website hosts "illegal" content. That is a declaratory statement, and is sanctionable if false. Further, the truth or falsity of the statement revolves on a clear principle of law. She just states it as if its a commonly held fact. But its not, and KUSK needs to be pressed on this point in particular. Either by retracting it or defending it. Even making them defend it will be a win. The judge may agree "sure, its just a common opinion, see Wikipedia", but it will make the point that it is OPINION and not FACT.

Wyświetl załącznik 9184563

There is no citation for anything in this claim either, and Tewson offers no examples from the forum specifically. Instead she goes on to reference vaguely meta threads. The "Jewsperg" hate thread in particular is rather funny, since that is a thread that specifically exists to dunk on Anti-semites and neo Nazis shitting up threads with constant jew sperging, and is quite popular with the forums resident Mossad agents. Its a certified Kosher thread.

Wyświetl załącznik 9184568

I meant at wikipedia to clean up the article, but I guess this isn't the thread for that.

 

[Gobermental Supervisor]

Tewson didn't reference anything specifically. She just said those things as if they were statements of fact not requiring further elaboration. For example, this is the relevant portion of her supplemental file I think is sanctionable. Not just because of how wrong it is, but because she claims the website hosts "illegal" content. That is a declaratory statement, and is sanctionable if false. Further, the truth or falsity of the statement revolves on a clear principle of law. She just states it as if its a commonly held fact. But its not, and KUSK needs to be pressed on this point in particular. Either by retracting it or defending it. Even making them defend it will be a win. The judge may agree "sure, its just a common opinion, see Wikipedia", but it will make the point that it is OPINION and not FACT.

I agree.
Those are the things she (Tewson) accuses the website of being, without proof, and she is furthering the harassment campaign against KF and its users, which Hardin just explained LFJ was running, by repeating those claims as facts in a legal filing.

They specifically mention things that would constitute crimes if proven, which is why they cannot be let stand without being contested, as she will have her "friends" edit the Wikipedia page promptly to include this court filing as further proof, and any future case involving KF will then also cite this filing and the contained statements of facts.

I think this is a real chance.
In the previous filings Hardin summarized the harassment and deplatforming campaign run by LFJ and KUSK against KF and its users, only for them to reply by repeating the false claims that were part of that campaign, without any substantive proof. One would think if the website is deeply involved in illegal criminal conduct for years, there would be a criminal case you could point at that proves those claims.

 

[Rudolf's Friend]

Obviously there’s a shit ton of examples of Wikipedia’s blatant bias but the first example that always comes to me is the fact that Gamergate is labeled a “harassment campaign” there because you had a rogue mod, Ryulong, completely dedicated himself to making the article that way and then got kicked out and moved to RationalWiki cause he was that much of a sperg.

 

[lol cow supreme]

Is she saying that because the users critiqued the person in the image and not the image itself it's not fair use? That's garbage bullshit. Any reframing of the image period is fair use and Im sure there's a case Hardin can cite for that.

Either way doesn't the Sargon case basically state that just altering the title is enough for fair use? Im sure that you could make the argument that posting the image itself is fair use especially in the broader context of the thread.

That is essentially the argument yes, that because the criticism posted is about the subject of the image and not the artistic or technical properties of the image, it is not fair use. Which is a very poor interpretation of criticism as the subject depicted in a photo is as much a part of the total work of the photo, and further if you saw the photo and said something like "this photo makes me want to wretch, they look like they smell", that is your commentary on your interpretation of the work and what it conveys to you.

But to your point the Sargon case would be apt in the context of a forum post saying "the face of a consent accident haver" and showing his picture, as its juxtaposition with a professional headshot is similar commentary. In Akilah Obviously v Sargon of Ahkaad the court ruled a few pretty relevant findings. First that editing can be transformative, and that commentary itself need not be present in verbal or text form, but the arrangement of clips, and their titles are substantial enough. This could be related to the actual placement of the image within a post for impact, or the juxtaposition of a caption. There also is the "market substitution" argument, which would not apply at all, as who's getting their copy of the image from the forum versus paying them for it? Just as in Akilah v Sargon the forum and the defendant are in different markets to begin with and do not compete.

The weakness of the case should show how this is all potentially a thinly veiled attempt to force the court to dox users for blackmail purposes, and to have a chilling effect on criticism. I dont think they would be smart enough to concoct this on their own, and are likely copy-catting Ethan's "Content Nuke" tactic with creation of the image in the first place.

 

[Tismguide]

Reading this reply, I appreciate the genius of Lolcow filing the suit preemptively as plaintiff, even aside from forcing the venue. The deliberately misleading version of Lolcow the defendant is trying to paint does not act like this. Elliot's strategy up to this point has been avoiding/denying the consent accident tweet; now he's being forced to engage with it.

IANAL, but I thought his best strategy was to hammer the procedural loophole of subpoenas under DMCA, and argue the fair use defense was premature until the users had been served, keeping it as narrow as possible rather than explaining consent accidents to the judge. Was that not an option? With both sides filing megadocs already, they're in the mud wrestling together, when he wanted to be punching down.

Before this, he'd managed to censor nearly every record of the consent accident. Now it's part of the legal record. It may show up in routine background checks, the sort that liability-adverse companies use instead of googling the name to reduce risk of discrimination lawsuits. Fair fights in the court of public opinion look bad for both sides, and he has a lot more reputation to lose than plaintiff does. Win or lose, things are looking far worse for him than they were in '22/'23.

Spoiler: Armsperg psychology

I'm convinced Elliot thinks he has done nothing wrong, and has lost the ability to read a room by spending too long in troon filter bubbles, losing touch with reality and becoming narcissistic. He sees himself as a noble civil rights activist fighting hate; he's right because of who/what he is, not what he has done. It's not just a cynical angle for profit or to hide the consent accident. I think if it came down to it, he would choose to martyr himself/his public image for the cause; it's the only way I can explain his behavior.

I have to wake up every day and see myself in the mirror, the good and the bad, and make peace with it. It infuriates me that we live in a society that coddles evil men like this so that they can live in blissful ignorance of the disgusting taint in their souls. A life not only wasted, but dedicated to actively hurting innocent people in the service of some crude mockery of religion's perfection. And I'm an athiest.

 

[Harvey Danger]

He claims he's defending his intellectual property, but it was merely transferred to him.

The transfer isn't an issue, once it happened the copyright is his. He can defend it or not.

The real lie here is the "long and well-documented history of protecting those rights". KUSK should be challenged to show a single instance of copyright defense not aimed at KF (or a similar critic). I bet this is another smuggled lie. If called out LFJ will say the sentence obviously meant "intellectual property rights", and show how he carefully attaches licenses to all his Github projects.

 

[mindlessobserver]

Reading this reply, I appreciate the genius of Lolcow filing the suit preemptively as plaintiff, even aside from forcing the venue. The deliberately misleading version of Lolcow the defendant is trying to paint does not act like this. Elliot's strategy up to this point has been avoiding/denying the consent accident tweet; now he's being forced to engage with it.

There are tradeoffs by someone threatened with legal action to jump the gun and run to the court house for declaratory judgement. Fong demonstrated that yesterday by filing the counter claims. Instead of reaching accommodation or waiting for the other side to blink, you force legal action. Its very easy to start a lawsuit. Its not so easy to end them. You can refer to the Chiraya Rana lawsuit in this very sub forum for an example of how easy it is to start and how difficult it is to end.

However, there is one upside to forcing the issue. In the American legal system, the Plaintiff is the moving party. Its far more difficult to be a vexatious defendant then to be a vexatious plaintiff. Because its up to the plaintiff to prosecute their cause and achieve their aims. If they are incapable of doing so (see the Greer case) cases can become a nightmare slog of dealing with idiocy rather then the situation at hand. Even more scary, vexatious plaintiffs with money (Like Fong) can move the case as slow as they want, and argue for things that are within the rules but expensively onerous, incurring extreme costs on a defendant. Thus making the process itself the punishment.

The preemptive filing was absolutely the correct decision. It makes Lolcow the Plaintiff, and thus Lolcow gets to control the pace of litigation. It was very kind of KUSK to make their legal threats so direct and explicit. I bet there is much recrimination behind closed doors about going through the whole rain dance of escalating threats rather then just filing the damn lawsuit everyone knew was going to occur anyway. Lesson for the wise I suppose. If you draw a gun, you had better shoot it. Don't tell the other side you are GOING to shoot it. They may just shoot first.

 

[BIG BILL HELL'S]

If you draw a gun, you had better shoot it. Don't tell the other side you are GOING to shoot it. They may just shoot first.

Chekhov's lolsuit? If you have a consent accident in the first act you had better talk about it in the third?

 

[mindlessobserver]

Chekhov's lolsuit? If you have a consent accident in the first act you had better talk about it in the third?

Good! But not quite close. Checkhovs gun is a literary device. This situation is more "Game Theory", where the game being played is lawsuits. KUSK essentially played the 4 way game as thus.

Scenario 1: Lolcow refuses to honor demands, and KUSK refuses to prosecute. Result: No consequences for either party.

Scenario 2: Lolcow refuses to honor demands, and KUSK prosecutes. Result: KUSK makes lolcow a defendant and control the pace of the litigation.

Scenario 3: Lolcow Refuses to honor demands and immediately sues. Result: KUSK is the defendant, can't control the pace of litigation, and has to counter sue.

There is no scenario 4.

Game theory wins, especially since Liz Fong Jones and KUSK have been playing iterative games. Not just with #dropkiwifarms, but also with KUSK representing Alyssa Mercante and arguing for stochastic terrorism as a tort against a SmashJT, a youtuber who had the temerity to say Alyssa Mercante sucked dicks for jobs.

Game theory gets extra spicy when you apply iterative games. And without a viable 4th scenario where both parties lose but don't lose as much, the response from Lolcow should have been obvious. They would take Scenario 3 with near certainty.

 

[Autistic Joe]

and has lost the ability to read a room by spending too long in troon filter bubbles

He's lost the ability to read a room by (a) being a squinty-eyed chink, and (b) having a disease which is slowly rotting his eyes.

 

[Sweeter and Savoury]

This is Tewson doing exactly what I thought they would do.

When the facts are on your side, you pound the facts
When the facts aren't on your side, you pound the table

There is zero reason Elliot Fong-Jones needs these subpoenas now now NOW! We know why he wants them now but to the judge why rule on a bunch of DMCA subpoenas when the source of the DMCA is about to under go a copyright trial? The subpoenas become redundant or legitimate the second the copyright issue is ruled on so they can wait. Unless you want the subpoenas for reasons other then pursing your claims of infringement eh?

So Tewson goes very light on the law, very light on the facts (Fong-Jone's stands to suffer major personal and financial losses due to this infringement) How? When? Where? Which losses and what personal matters? Notice Tewson never really answers any of Hardin's points, they quote the point then pivot to an emotional response about the evil Kiwi Farms and Mr Moon. Now Tewson has very little to work with here so they're pounding the table to try to influence the judge based on the reporting done by biased sources on the Farms. Emotional pleading can sway some judges but most will want some legal bases to back them up. Tweson never really openly states why Fong-Jones should be given the subpoenas right away, just that not giving them NOW will deal hardship to Fong-Jones. You know, because not be able to harass and intimidate people you don't like causes mental grief to narcissists.

This is not really a good approach, if you have a strong copyright case you should be easily able to demonstrate how your copyright was infringed, how said infringement is cause you losses and thus the need for subpoenas but I see nowhere where Tewson talks about the image in question, it's monetary value or how it's "illicit" use impacts Fong-Jones financially. It's all about the evilness of Kiwi Farms and that dastardly duke Mr Moon.

Tewson is not in the same league as Hardin when it comes to laying out a framework of legal argument so far IMHO. Now that just could be that Tewson has a much poorer fact base to work with, given the circumstances of the claim, then Hardin but I remained unimpressed at best. Unless the judge is some liberal bleeding heart type I don't think they will be swayed, after all it's just easier to stick a pin in the subpoena issue until the copyright case is ruled on and judges love easy.

 

[mindlessobserver]

Tewson is not in the same league as Hardin when it comes to laying out a framework of legal argument so far IMHO. Now that just could be that Tewson has a much poorer fact base to work with, given the circumstances of the claim, then Hardin but I remained unimpressed at best. Unless the judge is some liberal bleeding heart type I don't think they will be swayed, after all it's just easier to stick a pin in the subpoena issue until the copyright case is ruled on and judges love easy.

Tewson is also a paralegal, and her filing should have been reviewed more strictly by the lawyer representing his clients case. This is yet another own goal by Haygood. He made a legally actionable threat that allowed Lolcow to go to the Southern District of New York for declaratory judgement. And then he let some idiot paralegal swear under oath to things that violate rule 11 of the Federal rules of Procedure. You CANNOT say the word "illegal" in a federal filing and not be able to back that word up with serious claims. Either the very purpose of the claims at issue itself, or formally adjudicated decisions by the federal court.

The word "Illegal" is a no no word in any filing. You should never say it, unless you really, REALLY mean it. The fact that Tewson is a paralegal is not a defense for this transgression. Haygood submitted it to the file. So it may as well be his submission.

 

[Harvey Danger]

Tewson is not in the same league as Hardin when it comes to laying out a framework of legal argument so far IMHO.

Tewson isn't writing the motions, Haygood is. Tewson is the gargoyle watching the Farms and summarizing all the evil wrongthink. Her declaration is full of conclusions, characterizations, and assorted lies; but she's not making actual arguments, just providing the "facts" for Haygood.

There is no scenario 4.

Scenario 4 is what they did, a counterclaim with their answer. They're going to try to recover initiative. And depending on how aggressively KUSK thinks, they may try something else that I won't spell out, under lolsuit board guidelines of "don't help the retard".