Our friend and supporting website, Copyright-Trolls.com received a nearly identical extortion letter claiming copyright infringement, defamation, and harassment as the one ELI received from Seattle Attorney Timothy B. McCormack.
Consequently, Copyright-Trolls.com secured the legal representation of Oscar Michelen. We have obtained the text of Oscar’s response to McCormack on behalf of Copyright-Trolls.com. In addition to the official response on behalf of Copyright-Trolls.com, Oscar offers additional cautionary comments to McCormack as it relates to Oscar’s role and working relationship with ELI.
January 29, 2014
Mr. Timothy B. McCormack
617 Lee Street
Seattle WA 98109
Re: Cease and Desist Letters
Dear Mr. McCormack:
This letter is sent to respond to two cease and desist letters recently issued by you. The first letter was issued to www.copyright-trolls.com; the second was issued to me personally and to www.extortionletterinfo.com and its owner Matthew Chan. I will address them one at a time.
Please be advised that I represent this site with respect to your claim regarding the use of an image purportedly owned and copyrighted by you. Please direct all future correspondence on this matter to me and not my client.
In an exercise of caution and to not to have to have continued correspondence with you on this matter, the site has complied with your cease and desist request and removed any display of your picture. The rest of your demands will not be complied with however. As to any purported claim of “defamation” I remind you that the First Amendment greatly protects speech, parody and comedy. In fact, last week or so, the Ninth Circuit (which covers Washington State), in Obsidian Finance Group v. Cox, ruled that bloggers and the public have the same First Amendment protections as journalists when sued for defamation: If the issue is of public concern, plaintiffs have to prove malice (if they are public figures) or negligence (if it is a matter of public concern regardless of their status) to win damages. The Court further reiterated the public’s right to post opinions, even if they are nasty and crude. It stated it looks at three factors to distinguish between “fact” and “opinion” as follows:
“(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.”
All three of those factors point to the obvious: that any statements or references to you in the posts to which you object are at best statements of opinion and are not defamatory. There was no false fact contained in any of the post of which you complain. They are merely jokes or expressions of opinion that amount to parody. No one believes that the posts are actually saying you are actually a “turd;” that is just an opinion and an attempt at humor. Particularly when aimed at someone who is a public figure like yourself, these types of sarcastic, even negative, parodies and commentaries are protected.
Moreover, your continued use of boilerplate, threatening letters on behalf of digital image warehouse companies, while likely lucrative to you, naturally exposes you to being the target of scorn and commentary. You cannot pretend to ignore the numerous sites, bloggers and journalists who have decried “copyright-trolling” as a scourge of the Internet. That places the subject matter and those who engage in it in the public eye and open to expression of opinion contrary to their pursuits. Far be it for me to tell another lawyer how to run his practice, but I would venture to guess that the more you continue in this method of practice, the more you will continue to be criticized by third parties. Copyright-trolls.com has no less right to express negative opinions and make negative comments on what you and others do than the Washington Post or the NY Times. Accordingly, I hope and expect that this communication ends this issue.
Much more troublesome is your communication to me regarding ELI. First of all, I do not practice out of my home; I am a partner in a litigation law firm with two offices – one in Manhattan and one on Long Island. While in the past you have unsuccessfully tried to embarrass me by writing my partner Matthew Cuomo at our Manhattan office which he manages, I ask that you direct all future correspondence to me at our Long Island office, which I manage. There is no reason for you to communicate with me at my home; any further communication about a client or potential client of mine that is directed to me at my home will be taken as harassment and reported to your State Bar.
Next, your letter refers to ELI as “your [meaning my] website” and asserts that you are writing to me so that I may use my “ownership” of the site to influence compliance with your demands. Too many times to mention it has been made clear to you that I do not own ELI in whole or in part. Your participation in the Linda Ellis matter also served to further instruct and advise you that Matthew Chan is sole owner of ELI. Your continued assertion that I am an owner of ELI is frivolous, baseless and beyond explanation – you clearly do not care that you are making a wrong and insupportable accusation.
You then also reference me as “opposing counsel.” On what matter am I opposing counsel to you with respect to ELI? Are you writing me as ELI’s lawyer or as ELI’s owner? Or both? Currently, I am in fact neither. Matthew Chan will likely want to respond to your letter directly himself. If I am going to respond on behalf of ELI, I will lead my letter with a sentence advising you that I am acting as ELI’s attorney. (See the section above dealing with copyright-trolls.com. as an example). You then intimate that I am somehow behaving in violation of Rule 8.4 of the Rules of Professional Conduct while at the same time asking me for “professional courtesy.” This request for courtesy is laughable, coming from an attorney who:
(a) made a completely frivolous and baseless multi-page complaint against me with the Grievance Committee of my State Bar; (b) included it as an exhibit in the improper affidavit submitted in the Linda Ellis matter so that the complaint is now also a matter of public record in the Georgia Court system; (c) who wrote to my law firm partner, as if writing to scold a child to his parent; (d) who writes me repeatedly at home over business issues; and (e) who continually and falsely claims that I own a website I have no ownership in. In my 27 years of practice as a litigator in one of the most litigious States in the Union, I can recall only one or two attorneys that I have less respect for than you Mr. McCormack. So before you ask me for “professional courtesy,” I suggest you find the nearest mirror. While I always extend professional courtesy to my adversaries, it is a two-way street and I will afford you precisely as much courtesy and respect as you seem to afford me.
To that end, let’s look at Rule 8.4 which you cite:
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
Of course, like most of your demand letters, you provide no factual basis or explanation as to why any of these sections should apply to my conduct. I ask that you send me a detailed explanation of which of these sections I may have violated (or will violate) and the facts you rely upon to support such claim. Otherwise I will deem this part of your letter to constitute yet another frivolous and baseless accusation against me.
With respect to the substantive matters addressed in the letter to Mr. Chan, I expect he will respond to you himself. But, as usual, this looks like a boilerplate copy of the letter you sent my client at copyright-trolls.com, so the same arguments would apply.
In conclusion, address all future correspondence on the copyright-trolls.com matter to my attention at my Long Island Office. Furthermore, cease and desist from making baseless and frivolous allegations about my professional conduct and my practice of law.