Patent-holder that sued EFF for defamation won’t show up in court

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A weblog submit by EFF lawyer Daniel Nazer about his choice for the "Silly Patent of the Month" resulted in an Australian lawsuit and a $750,000 injury demand. EFF has challenged the Australian order in US federal courtroom.

The corporate's intensive marketing campaign of lawsuits gained it a particular place within the pantheon of patent-holders, when GEMSA became the subject of EFF's long-running series, "Silly Patent of the Month."

GEMSA "appears to be a basic patent troll," wrote EFF lawyer Daniel Nazer.

"GEMSA does not clarify how Airbnb's web site satisfies extremely particular declare limitations like a 'digital cupboard representing a discrete working system.' In reality, the accused web site bears virtually no similarity to GEMSA's supposed invention." Nazer continued:

So far as we will inform, GEMSA appears to assume that anybody with an internet site that hyperlinks to hosted content material infringes its patent. Complaints with such sparse, and implausible, infringement allegations ought to be thrown out instantly for failure to state a declare.

Nazer's submit apparently harm some emotions over at GEMSA headquarters in Australia. The patent-holding firm demanded that EFF retract its submit, calling it "false and malicious slander," and pay GEMSA $750,000. The EFF article was posted "with the intention of portraying our shopper's mental property as silly along with quite a few different malicious lies," claimed GEMSA in a requirement letter.

In October 2016, GEMSA filed go well with towards EFF within the Supreme Courtroom of South Australia. However the firm by no means correctly served EFF, in line with EFF's complaint (PDF). The litigation moved forward, with GEMSA protesting that its US Patent No. 6,690,400 "just isn't in truth 'silly,'" and that EFF's description "doesn't precisely depict the complexities concerned with the patent."

The Australian case included affidavits from Schumann Rafizadeh, who claimed he's the inventor of the '400 patent and "Director and Shareholder of the Plaintiff."

With out EFF participating within the case, the Australian courtroom issued an injunction ordering EFF to take away the article from its web site and to not unfold it additional. With out explaining any of the courtroom's reasoning, the injunction claims EFF is "restrained from publishing any content material with respect to the Plaintiff's mental property." If EFF "doesn't adjust to this order its belongings could also be seized and it [sic] administrators and different officers could also be liable to be imprisoned for contempt of Courtroom," based on EFF's narrative of the matter.

In January, GEMSA once more despatched the injunction to EFF, demanding that the article be taken down and that EFF pay $750,000 in compensation.

“Proper to criticize”

In April, EFF went to court to defend its blog post.

"It is very important get a courtroom to make sure that EFF shouldn't be silenced, to have the courtroom set up that this speech is properly protected by the US Structure and different legal guidelines," Kurt Opsahl, an EFF lawyer, informed Ars on the time.

EFF says the South Australian courtroom's injunction cannot be enforced due to the 2010 SPEECH Act, which prevents "libel tourism," a follow through which plaintiffs would sue US writers in nations like the UK, the place it was simpler to win a defamation case. Beneath the SPEECH Act, overseas orders aren't enforceable within the US until they comport with each the US Structure and state legal guidelines.

The one statements within the weblog publish that GEMSA even claims are false are EFF's statements that the patent is "silly," that GEMSA is a "patent troll," and that GEMSA "is suing nearly anybody who runs an internet site." These statements are all "plainly hyperbolic statements of opinion," write EFF legal professionals, and thus constitutionally protected speech.

The EFF go well with additionally factors out that Rafizadeh himself concedes that GEMSA "largely makes its income from licensing charges" and that GEMSA "vigorously defends [its patent rights] towards infringements by any e-commerce website."

Although GEMSA has three pending patent lawsuits in Northern California, the identical district that EFF sued in, it can not seem to handle to point out as much as this litigation. In an update published yesterday, EFF factors out that GEMSA had till Might 23 to answer EFF's lawsuit, and it hasn't achieved so. Now EFF is looking for to win by default, nevertheless it nonetheless has to persuade the decide that the South Australian injunction is unenforceable within the US.

An lawyer for GEMSA did not reply to a request for remark about EFF's litigation.

If the courtroom does not grant a default judgment, GEMSA may search to strain Web search engines like google and information aggregators to "de-index" the article, "successfully censoring EFF's speech on a matter of respectable concern to US residents," EFF explains in its movement for default judgment.

"In america, there's a constitutional proper to criticize the patent litigation system and people who abuse it, particularly the place that criticism is predicated on disclosed, true details," write EFF legal professionals.

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