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

[CEO of Gay]

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.

Let's compare and contrast this with a much stronger case of copyright and a takedown request against the Kiwi Farms, which was complied with: 2023-08-22 - Shads Hoodlum / Folk Games: Piracy complaint.

A user had purchased a copy of the game and posted it to the thread, saying that they'd "bought the game for everyone else to enjoy without having to give him a cent". That is clearly not fair use, much easier to argue causing harm: anyone could come download an unauthorized copy from the Kiwi Farms without having to pay for the game, while the game was still actively for sale.

Had Null not complied, the dev would be in his right to issue a DMCA subpoena Null to provide what information he could about the user who had posted the game, so the dev could pursue legal action action against the user who uploaded it.

But that's not what happened. The dev did not demand that all criticism of the game be deleted, or that the Kiwis critical of the game be banned for their mockery. Rather, the dev admitted that user are allowed to not like his game and simply and politely requested that the unauthorized copy of the game posted for the explicit and avowed purpose of piracy be removed. Null agreed that the game being posted in this case was clearly not fair use and removed it.

Tewson's/Haygood's arguments seem like much more hot air than substance, in comparison.

 

[Sweeter and Savoury]

I got the paralegal and the lawyer mixed up.

My bad.

 

[Betonhaus]

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

Hardin’s job is a bit easier, if still time consuming as he has the objective facts and rule of the law on his side while Tewson or whatever needs to build a case out of whole cloth and try to convince the judge that the emperor’s clothes are real. Hardin still needs to anticipate the direction Tweson goes so that they can confront it, which he has had practice with thanks to Greer.

 

[Napoleon III]

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.

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.

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.

That's one of the major risks of this kind of venture that Liz Fong-Jones and Tusk are undertaking. This is after all primarily in service of a business venture even if LFJ would like to pretend that it isn't. The goal is build a company/law firm that can use subpoenas to intimidate people online who criticize powerful people who would pay to have their "reputation managed". LFJ is the first client of that service and this lawsuit is about trying to make that happen as a test case/proof of concept.

But the sanctions complicate this because they make the proof of concept more expensive. Who wants to build a prototype of something and be suddenly met with rising costs far beyond what you thought it would cost to develop it and you are not sure if it will even work. This entire thing so far is a series of compounding tactical errors.

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.

I think it is quite clear at this point that LFJ and TUSK never intended to go all the way with a copyright lawsuit. They wanted to file one, file some subpoenas, do what they did with Nigger Caviar (what a faggot) to everyone who mocked LFJ and then eventually withdraw their copyright case. There is no money to be made from LFJ's copyright of his fucking headshot.

But they can't do that now. This may result in LFJ settling after a painful and expensive lawsuit and basically admitting that editing his headshot with the text "consent accident" is in fact fair use. I think Null is going to go all the way with this one if he needs too.

And you better believe that after LFJ has spent 100k on a lawsuit and he is asking TUSK to either spend a little bit or work at a discounted rate and this lawsuit begins to become a real slog that the parties involved in his little reputation management scheme business plan start saying things like "I really believe in what you proposed but unfortunately I have to look towards the bigger interest of my firm/company which forces me to not support you even though I really want to".

 

[mindlessobserver]

But they can't do that now. This may result in LFJ settling after a painful and expensive lawsuit and basically admitting that editing his headshot with the text "consent accident" is in fact fair use. I think Null is going to go all the way with this one if he needs too.

I don't see this happening. The only settlement I see Null accepting is Liz Fong Jones admitting he ran a defamation campaign against the forum. Which won't happen. And the counter claim is...a desperate effort to write the defamation campaingn into law. Fueled by the money Fong Jones was given by Google to fuck off and leave the company. Now sucked up by KUSK who thought that this was the case to try and make some useful precedent for their political aims.

KUSK really needs to ask why they pay Tewson what they do. For being the "expert" on Kiwifarms, she seems pretty silly. She swore under oath a thread that Jewish and Israeli members of the forum use to bitch about the stupid Anti Semites is "Le Bad". Which means I guess she swears under oath she hates jews. Then she says the forum did Illegal things. And then offers no example for the illegal things done. And then Haygood submits that, basically admitting he hates jews, has no idea what he is talking about, and thinks Rule 11 is a guideline rather then a rule and he can just submit bullshit to the court and assume nobody will point out its bullshit.

You know, if Tewson was really such an expert, she may have warned Haygood about the fact the Kiwifarms is no stranger to lawsuits.

 

[Just_A_guy]

I hope I don't get roped in by posting this picture of clearly LFJ!

Spoiler: the fax

It's clearly Robert Z'dar for those who missed the joke

 

[Autistic Joe]

do what they did with Nigger Caviar

That's MISTER Caviar to you, buddy!

thinks Rule 11 is a guideline rather then a rule

I'm more worried about all these mentions of "Rule 34" in several filings. One thing we definitely do not need is Rule 34 of No-Dong Fong.

 

[Ted's of Beverly Hills]

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

Tuco's razor: "When you have to shoot, shoot! Don't talk!"

 

[lol cow supreme]

Before this, he'd managed to censor nearly every record of the consent accident. Now it's part of the legal record.

How long before the actual tweet itself becomes an exhibit? And now that this is on the record in a court case...according to wikipedia rules, its fact as it can now be cited as part of a court case right?

 

[Gobermental Supervisor]

its fact as it can now be cited as part of a court case right?

It is very unlikely you would be able to use anything from this case at this point in time.

For something to become a "fact", you would need either a finding of fact by a judge, or a stipulation by all parties to those facts.
Until then you can only mislead the audience by making things appear factual, relying on the naivety of the reader to believe Wikipedia to be a reliable source.

As we all know Wikipedia is flexible with its rules, as long as the correct people are slandered.

 

[WarJams]

She swore under oath a thread that Jewish and Israeli members of the forum use to bitch about the stupid Anti Semites is "Le Bad".

Does she just assume that all of the black and college educated people in New York hate Jews too? By pointing at a thread in which some of the most worm-brained kike-haters are roundly mocked, is Twoton cynically trying to say "see, they hate people just like YOU?"

 

[DavidS877]

Mr. Wolman of Randazza Law, representing the does has sent a letter to the judge. I was hoping for something like a giant "T" or an "F" or even an "N". But, alas, it's a document with many letters forming words. Let's see what he wrote.

https://www.courtlistener.com/docket/72460096/48/lolcow-llc-v-fong-jones/

ECF 48 attached as PDF and Images.

Spoiler: 2 pages

Basically KUCK law has argued in their counterclaim that Mr Wolman is the agent for service of process for the does. Mr. Wolman says "Um, no, I'm just here on their behalf to quash the subpoenas, if you want to sue them then you have to serve them."

 

[mindlessobserver]

What a slimey move. Not surprised though. What's more interesting is Judge Failla hasn't transferred this over to her magistrate yet. Looking increasingly likely shes decided to handle this case herself.

 

[BIG BILL HELL'S]

Tuco's razor: "When you have to shoot, shoot! Don't talk!"

...which is how one might find one's self in an alleged consent accident in the first place, no?

 

[Absolutego]

Does she just assume that all of the black and college educated people in New York hate Jews too? By pointing at a thread in which some of the most worm-brained kike-haters are roundly mocked, is Twoton cynically trying to say "see, they hate people just like YOU?"

Jewsperg is an extremely KF-specific term, so much that I pretty much don't encounter it outside of here, and it's far easier to assume she thought "Jewsperg Hate Thread" was simply a new, KF-specific slur being used b/c that's far more in keeping with her theory of mind regarding the average user here.

 

[Harvey Danger]

Jewsperg is an extremely KF-specific term, so much that I pretty much don't encounter it outside of here, and it's far easier to assume she thought "Jewsperg Hate Thread" was simply a new, KF-specific slur being used b/c that's far more in keeping with her theory of mind regarding the average user here.

She's the bitch claiming she regularly surveils KF on behalf of LFJ and KUSK. If she can't figure out what's going on, she shouldn't put herself out as an expert on forum design and usage. If she's such a lazy tourist she doesn't even click a thread to see what's going on within it, why should any of her other reporting or characterizations be trusted?

She swore under oath a thread that Jewish and Israeli members of the forum use to bitch about the stupid Anti Semites is "Le Bad". Which means I guess she swears under oath she hates jews.

I really hope Hardin gets a chance to bring this up during a hearing.

"And since we're on the topic of the forum's tone, Your Honor, I'd like the Defense to clarify something. In a list of "topics of purported cultural relevancy", they include a thread where Jewish and Israeli users gather to point out anti-semitism. The whole purpose is to document and mock the worst examples of hating on Jews. Is it the defense's stance that calling out anti-semitism is of no relevancy, and offers no discussion or critique value?"​

Besides the funny bit, this reinforces a relevant legal issue, that the forum is not dedicated to or designed for copyright infringement. Its main purpose is public, sometimes esoteric discussion of a wide variety of topics.

The defense's counterclaim is for direct copyright infringement, but not against the Doe users (I think); it's against Lolcow directly. That's retarded, because the Doe users posted the images, and Lolcow/Null should only potentially be liable for contributory infringement. The forum design matters in the post-Cox/Hikma world (as covered over in the Greer lawsuit), and KF clearly doesn't meet the newly heightened standard.

Maybe Haygood knows this, which is why he's not trying for contributory infringement; Hardin could just copy-paste arguments from the Greer case and stomp all over it. So he's choosing the more retarded direct attempt. Again, bad adaptability on KUSK's part.

 

[Lapsus of the bepsus]

If she can't figure out what's going on, she shouldn't put herself out as an expert on forum design and usage. If she's such a lazy tourist she doesn't even click a thread to see what's going on within it, why should any of her other reporting or characterizations be trusted?

i dont think she doesnt know what it means, she just left it this way because it looks bad and its awkward to have to explain what "jewsperg" means to a judge.

The defense's counterclaim is for direct copyright infringement, but not against the Doe users; it's against Lolcow directly. That's retarded, because the Doe users posted the images, and Lolcow/Null should only potentially be liable for contributory infringement. The forum design matters in the post-Cox/Hikma world (as covered over in the Greer lawsuit), and pretty clearly KF doesn't meet the newly hightened standard.

Maybe Haygood knows this, which is why he's not trying for contributory infringement; Hardin could just copy-paste arguments from the Greer case and stomp all over it. So he's choosing the more retarded direct attempt. Again, bad adaptability on KUSK's part.

i havent read the counterclaim in full because its bullshit but my guess is its based on the allegation that null didnt censor the copyrighted shit enough so they think hes still liable.

 

[Harvey Danger]

i dont think she doesnt know what it means, she just left it this way because it looks bad and its awkward to have to explain what "jewsperg" means to a judge.

Obviously, but then she should be called out on it. Either she's duplicitous, or an uninformed reporter, or she thinks calling out anti-semitism is bad and irrelevant. Some are damning to her credibility, all are funny.

i havent read the counterclaim in full because its bullshit but my guess is its based on the allegation that null didnt censor the copyrighted shit enough so they think hes still liable.

TL;DR they claim Lolcow leaving the posts up after notification and DMCA takedown is infringement. They're pretending Josh made an editorial decision to claim license to and publish works he has no rights to:



That license is the standard "anything you post to KF can be published by KF" thing every website with user-generated content does. He's obviously not claiming to have copyright over LFJ grotesquely depicted face. Users modified it in accordance to fair use and created new works, which Lolcow has a license to publish once they've posted to KF.

One thing I haven't seen mentioned: KUSK is also trying to pierce the LLC to attack Josh personally.

Spoiler: big block o' whinging

43. Moon does not maintain a separation between himself and Lolcow. Lolcow is funded principally by donations and subscriptions solicited from Kiwi Farms users, which Moon controls and directs. On information and belief, Moon commingles Lolcow’s funds with his own and treats Lolcow’s revenues and assets as his personal property, and Lolcow is inadequately capitalized to satisfy the liabilities arising from its operation of the forum.

44. Moon is the moving, active, and conscious force behind the infringement alleged herein. As the only person who controls Kiwi Farms’ content and moderation, Moon personally caused Lolcow to host, reproduce, display, and distribute the Infringing Material, and personally made and ratified the decision to refuse Fong-Jones’s removal demand and to maintain the Infringing Material on the forum. The license Lolcow claims to "reproduce and maintain" the Work, ECF 1Compl. ¶¶ 18, 27, 30, is a license that Moon claims and exercises for his own benefit.

45. Moon uses the Lolcow entity form to operate Kiwi Farms while attempting to shield himself personally from liability for the conduct he directs through it, including the infringement of Ms. Fong-Jones’s copyright. Adhering to the fiction of Lolcow’s separate existence would sanction injustice by permitting Moon to reproduce, display, and profit from Fong-Jones’s copyrighted Work while evading personal responsibility for doing so.

46. By reason of the foregoing, Lolcow is the alter ego of Moon, the separateness of Lolcow and Moon should be disregarded, and Moon is jointly and severally liable with Lolcow for the infringement alleged herein.

Of course it's not really a 1 person LLC, there are a bunch of jannies too (unpaid, as is proper). Lolcow has certainly transacted as a business for paying its bills and shipping merchandise and such. Josh gets paid from it but that's normal for an LLC. The entire "information and belief" basis for accusing Josh of comingling funds is Two-ton Tewson's lying declaration, which only cites a single Bitcoin wallet sweep.

I've always heard that courts don't like to pierce the corporate veil like this, but 1) single-controller LLCs like this are the closest case it can be made; 2) you can always get a bum judge; and 3) Josh is the Internet's Nigger. #3 alone is enough to upend the entire centuries-old structure of corporate oversight.

 

[DragoonSierra]

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.

Can Twoson be sanctioned personally or would it be KUSK?

 

[mindlessobserver]

Can Twoson be sanctioned personally or would it be KUSK?

Sure, but dont hold your breath fornher getting told to cough up money. The usual sanction is just striking her filing from the record, and maybe attorneys fees for the sanction motion to hardin, which would be paid by Kusk

That said, her claims of illegal behavior by the forum dance precariously close to making legal conclusions, which is a serious no no for a paralegal.