Friday, May 16, 2008
Hyperbolic, unfiltered group gripes about corporations (or anything else) are the sort of thing the Net facilitates. In fact, entire companies have been started based on the premise that if customers with similar interests can speak freely to each other about companies and their products, both consumers and businesses will benefit.
But Robert Novak, the owner of the Pets Warehouse trademark, which is used both by an actual pet store in Long Island, N.Y., and by the e-commerce site PetsWarehouse.com, did not appreciate the public criticism.
"We don't like our company name being disparaged or libeled. Who would? If somebody said you were a pedophile, I don't think that you'd say that's OK," Novak said in an interview. "We don't appreciate being called dishonest."
In his court filing, Novak attests that he tried to respond to the posts -- he'd been a subscriber to the list for a number of years -- but "APD maliciously blocked the e-mails sent to the mail list by the plaintiff thus not afford [sic] him an opportunity to defend himself."
Mark Rosenstein, the owner and founder of Active Windows Productions, the company that hosts the list and its archives, says that Novak's responses bounced only because they contained files with attachments, not because of who they were from or what they said.
But Novak was not satisfied by technical explanations. On May 30, 2001, he filed a suit disputing the complaints about bad customer service on the APD list, alleging libel and defamation and seeking $1 million in damages. He also claimed that he had suffered "$5 million, plus interest" in damages to his "good name and reputation and to his business interests." And for the emotional distress caused by all the hullabaloo, the suit sought additional damages of $15,000,001. Among the defendants named: Rosenstein, Resler, Carney and several other APD list members who had posted remarks about the company.
A number of defendants in the original suit have since settled, but the May complaint was just the beginning of the fishbowl fracas. The aquarists on the APD mailing list reacted to news of the suit with all the righteous ire of an online community under attack. Incredulous at the sums involved, the hobbyists rallied to spread the word about the case on the Web with a campaign promoting the case as a First Amendment travesty.
"To me, it's a free speech issue. I think that people should be allowed to say when they've had a negative experience with a company," says Erik Olson, the president of the Aquatic Gardeners Association and keeper of 25 fish tanks. "I'm outraged that Novak's reaction is to sue people rather than to try to solve the actual problems."
Cynthia Powers, the "list mom" who hosts the mailing list and who is named in the suit but has not yet been served, is blunter: "He's going to sue everyone who says that his customer service is poor? This is ridiculous. But this is America, and you can do that."
The list members set up a defense fund to help pay for legal counsel. Some individual donations from sympathetic aquarists were more than $1,000. One aquarist offered a unique incentive to defense fund donors: rare aquatic plants from his homeland of Singapore, shipped at his own expense.
Many aquarists posted banners on their own sites, such as MyFishBox.com, linking to a site describing the case and soliciting donations on the defendants' behalf.
"$15,000,000 lawsuits suck the life out of online discussions. Please support the APD Defense Fund," reads one banner. Another quotes Harry Truman: "In a free country we punish men for crimes they commit but never for the opinions they have."
But Novak sees the suit as an issue not of spreading opinions, but of spreading lies. "The company has been a victim of repeated false and erroneous accusations. We decided we weren't going to take it anymore," he wrote in a recent post to the APD list, where he's continued to be an active member. "It's not about the First Amendment or squashing free speech. One of the suit's purposes is to stop people from spreading vicious lies and is directed at making them accountable for saying things that are not true."
Novak saw the efforts to spread the word about the suit on the Web as a further infringement of his company's trademark, as well as the propagation of defamatory and libelous comments.
On September 15, 2001, Novak filed an amendment to the first complaint, naming new defendants and adding a litany of charges, including an allegation of computer hacking against Resler, the computer scientist whose original post about Pets Warehouse started it all.
Among the newly named defendants was JoAnn VanDersarl of Pueblo, Colo., the webmaster of a site called PlantedTank.com, where she'd posted information about the case. Now, Novak was suing supporters of the APD Defense Fund, like VanDersarl, who'd put up a banner on her site soliciting contributions and posted in online forums about the case.
The new complaint accused the defendants of forming a "conspiracy" against Novak's business. Among the additional evidence of trademark infringement: the phrase "Pets Warehouse" appeared in the metatags on some of the sites that linked to the APD Defense Fund site. (Metatags are keywords that help search engines index Web sites but are not normally visible to Web surfers.) The name Pets Warehouse was also used in the advertising banners linking to the defense fund's Web site.
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