barbara bauer and barbara superior court of …€¦ · barbara bauer and barbara superior court of...

Dan Martin, Esq.475 Wall StreetPrinceton, NJ 08540(609) 688-1884Attorney For Plaintifs

BARBARA BAUER and BARBARA Superior Court of New JerseyBAUER LITERARY AGENCY, INC. Monmouth County

Law DivisionPlaintifs Docket No. L-1169-07

vs. CIVIL ACTIONJenna Glatzer and MacAllister Stoneand James D. MacDonald and KentBrewsterand Ann C. Crispin and Patrick Nielsen-Haydenand Teresa Nielsen-Hayden and BrianHill,and Dee Power akaHarrilane D.Poweraka D. Can Harrilane, and David L Kuzminskiand Thomas S. Tully and Science FictionandFantasy Writers of America, Inc. and Victoria C.Straussand Shweta Narayan and Lesia ValentineandChristina Walden aka Christina Bristol andWikimedia Foundation, and Stephan Spencer,and Kristen Fischer aka Kristen PascuiliandGregory Ludwig and Aimee AmodioDefendants

BRIEF IN OPPOSITION TO MOTION TO DISMISSReturn date: May 23, 2008Oral Argument Requested

DAN MARTINAttorney At Law475 WallStreetPrinceton, NJ 08540

Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=7867fa01-43f9-49e9-a3d3-eb0b1773d314

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES ... ...ii

PRELIMINARYSTATEMENT ... .1

COUNTER STATEMENT OF FACTS ... ..2

LEGAL ARGUMENTPOINT ONEAs The Provider Of The Content Of The Allegedly DefamatoryArticle About Plaintifs, Wikimedia Is Not Immune UnderSection 230 Of The Communications Decency Act ... ...2

POINT TWOThe Barbara Bauer Literary Agency Is An OrdinaryBusiness And Therefore The Actual Malice StandardDoes Not Apply ... .4

POINT THREEThe Statements Published By Wikimedia Alleging ThatPlaintif (1) Has No Documented Sales At All; And (2) IsThe Dumbest Of The Twenty Worst Literary Agents, AreCapable Of A Defamatory Meaning And The QuestionOf Whether The Statements Are Defamatory Must BeResolved By The Trier Of Fact ... ..5

CONCLUSION ... .. 7

ii


TABLE OF AUTHORITIES Page

CasesAnthony v. Yahoo, Inc. 421 F.Supp 2d. 1257,1262-63 (N.D. Cal.2006) ... .3

Dairy Stores, Inc. v. Sentinel Pub. Co. 104 N.J. 125 (1986) ... .4

Donato v. Moldow 374 N.J. Super. 475, 490 (Ap.Div.2005) ... ..3

Hy Cite Corp. v. BadBusinessBureau.com 418 F. Supp.2d. 1142 (D.Ariz. 2005) ... ..3Printing Mart-Morrison v. Sharp Electronics Corp. 116 N.J. 739 (1989) ... .4,5Romaine v. Kallinger 109 N.J. 282 (1988) ... ...5,6Sickles v. Cabot Corp.379 N.J. Super. 100, 106 (Ap. Div. 2005) ... ..4Turf Lawnmower Repair v. Bergen Record Corp. 139 N.J. 392 (1995) ... ..4Universal Communications v. Lycos, Inc. 478 F.3d. 413 (1st. Circ. 2007) ... .3

Ward v. Zelikovsky 136 N.J. 516, 531 (1994) ... ...5,6,7Whitney Inc. Network v. XCentric Venture 199 Fed. Appx. 738, 742-744 (11th Cir. 2006)..3Zheng v. Quest Diagnostics, Inc., No. 03-3093, 2006 WL 1933423, at *3 (D.N.J. 2006)... ..5

Statutes

47 U.S.C. 230 ... .2,3,4

III


COUNTER STATEMNT OF FACTS

Plaintif Barbara Bauer is a professional literary agent who resides at 179 Washington

Avenue, Matawan, New Jersey. For many years she has conducted her business as a literary

agent through BBLA, a New Jersey corporation. (SAC, page 1).

Defendant Wikimedia is a Florida non-proft corporation which owns and operates a

popular Internet online encyclopedia, known as "Wikipedia."

Defendant concedes in its Memorandum In Support that from in or about May, 2006 to in

or about April, 2007, material was published on Wikipedia, which contained the allegedly

defamatory statements about plaintifs. (Defendant's Memorandum in Support at page 3,

footnote 1).

Defendant's allegation at page 2 of its Memorandum of Law In Support, that the content

of Wikipedia can be created, edited, or removed by its users is clearly true. However, it is also

clearly true that the content of the June 30, 2006 version of the article about plaintifs, which

defendant concedes is the version upon which plaintifs' claims against Wikimedia are based

(Memorandum In Support at page 3, footnote 1, Declaration of Mike Godwin, general counselofWikimedia at paragraph 3) was created by a Wikimedia administrator known as "Avraham"(Ex.A, partial list of Wikimedia administrators at page 3, Ex. B, "Barbara Bauer-History-Wikipedia,

the free encyclopedia" at page 2).

LEGAL ARGUMNT

POINT ONE

As The Provider Of The Content Of The Allegedly DefamatoryArticle About Plaintifs, Wikimedia Is Not Immune Under

Section 230 Of The Communications Decency Act

2


There is no question that Section 230 of the Communications Decency Act (47 U.S.C.

230, hereinafter, "Section 230") prohibits the imposition of liability on any user or provider of an

interactive computer service, such as Wikipedia, for publishing content provided by another.

However, as set forth above, the evidence is clear that the allegedly defamatory content in the

Wikipedia article dated June 30, 2006, was not provided "by another", but rather by defendant

Wikimedia itself, and therefore defendant is not immune under Section 230:

"No provider or user of an interactive service shall be treated as the publisher or speakerof any information provided by another information content provider." (47 U.S.C. 230(c)(1), emphasis supplied.

"The term `information content provider' means any personor entity that is responsible in whole or in part for the creation or development ofinformation provided through the Internet or any other interactive computer service."(47 U.S.C. 2300(3))

"A key limitation in Section 230 is that immunity only applies when the informationthat forms the basis for the state law claim has been provided by `another informationcontent provider.'... Thus, an interactive computer service provider remains liable forits own speech. (Universal Communications v. Lycos, Inc. 478 F.3d. 413, 419-420(1 s'. Circ. 2007) (citations omitted);

(Accord. Donato v. Moldow 374 N.J. Super. 475,490 (Ap.Div.2005): "...with respect to any messages posted by Moldow, using his own nameor theappellation `Webmaster,' he was a content provider."; Cf Anthony v. Yahoo, Inc.

421F.Supp 2d. 1257, 1262-63(N.D.Cal.2006); Hy Cite Corp. v.BadBusinessBureau.com418 F.Supp. 2d. 1142, 1147-1149 (D.Ariz. 2005); Whitney Inc. Network v.XCentricVenture 199 Fed. Appx. 738, 742-744 (1 P' Cir. 2006).

Plaintifs have set forth well pleaded causes of action against defendant Wikimedia for

defamation and tortious interference with prospective economic advantage, based onstatements thatdefendant concedes were published on Wikipedia from May, 2006 through April, 2007, whichallegedthat plaintiff: (1) Has "no documented sales at all"; and (2) is "The Dumbest of the TwentyWorstliterary agents" (SAC at page 25, paragraph3).

Given the clear evidence (Exhibits A and B) that Wikimedia was in fact the contentprovider,

3


defendant's Motion To Dismiss based on immunity for Internet service providers under Section 230

must be denied:

"For purposes of analysis plaintifs are entitled to every reasonable inferenceof fact." Printing Mart-Morrison v. Sharp Electronics Corp. 116 N.J. 739, 746 (1989).

A motion to dismiss under Rule 4:6-2(e) should be `approached with greatcaution' and should only be granted in `the rarest of instances'... We mustview the allegations with great liberality and without concern for plaintiff'sability to prove the facts alleged in the complaint." Sickles v. Cabot Corp.379 N.J. Super. 100, 106 (Ap. Div. 2005), quoting Printing Mart-Morrisonat 746, 771-72 (1989).

POINT TWO

The Barbara Bauer Literary Agency Is An OrdinaryBusiness And Therefore The Actual Malice Standard

Does Not Apply

Defendant's claim that the defamatory statements published by Wikimedia

are protected by the fair comment privilege and thus must meet the actual malice standard, is

clearly incorrect under long settled New Jersey law.

"We continue to apply the actual-malice standard to businesses that are of suchinherent public concern. However, we do not fnd the actual-malice standardappropriate or necessary with regard to businesses like the sale and repairoflawnmowers, the repair of shoes, the cleaning of clothes, and numerousotherlocal businesses that involve products or services that do not involve alegitimatepublic interest." Turf Lawnmower Repair v. Bergen Record Corp. 139 N.J. 392,412 (1995).

Clearly, the services provided by plaintifs' literary agency do not involve a legitimate

public interest such as the safety of drinking water (Cf. Dairy Stores, Inc. v. Sentinel Pub.Co.104 N.J. 125 (1986). Therefore the ordinary negligence rather than the actual malicestandardapplies, a standard clearly met by plaintifs pleading against defendantWikimedia.

4


POINT THREE

The Statements Published By Wikimedia Alleging ThatPlaintiff (1) Has No Documented Sales At All; And (2) Is

The Dumbest Of The Twenty Worst Literary Agents, AreCapable Of A Defamatory Meaning And The QuestionOf Whether The Statements Are Defamatory Must Be

Resolved By The Trier Of Fact

Defendant's argument that the statements at issue are subjective opinions which are

incapable of verifcation, and thus non-defamatory as a matter of law, is totally without merit.

1. "Plaintiff Has No Documented Sales At All."

There is no question that this is a statement of verifable fact and not opinion. Either

plaintiffs have documented sales or they don't, an objective fact which can certainly be verifed.

If plaintifs do have documented sales, the statement clearly may be defamatory since falsely

stating that a literary agent has never made a sale is certainly capable of a defamatory meaning,

especially in the context of a Motion To Dismiss where "...plaintifs are entitled to every

reasonable inference of fact." Printing Mart-Morrison supra at 746. Therefore, the question of

whether the statement is defamatory must be lef to the trier of fact. Romaine v. Kallinger 109

N.J. 282, 290-291 (1988).

II. Plaintif Is "The Dumbest Of The Twenty Worst Literary Agents."

While this too is could be interpreted as a statement of fact, even if it is construed as an

opinion, it may still be defamatory under New Jersey law:

"Harm from a defamatory opinion statement is redressable when the statement impliesunderlying objective facts that are false." Ward v. Zelikovsky 136 N.J. 516, 531 (1994),citing Mlkovich v. Lorain Journal Co. 497 U.S. 1, 18-20 (1990)2

zZheng V. Quest Diagnostics, Inc., No. 03-3093, 2006 WL 1933423, at *3 (D.N.J. 2006)does not hold, as defendantclaims at page 9 of its Memorandum, that an assertion of substandard competency cannot form the basis of a

5


Here, there are two possible interpretations of the statement. The frst, which is urged on

the Court by defendant at page 10-11 of its Memorandum In Support, is that it was mere

"rhetorical hyperbole"3, and therefore non-defamatory as a matter of law, while a second

plausible explanation is that the statement "...implies underlying objective facts that are false."

Ward v. Zelikovsky supra at 531, specifcally that plaintiff is objectively less intelligent than the

other agents on the worst agents list. Where a statement is "...capable of being assigned more

than one meaning, one of which is defamatory and another not, the question of whether its

content is defamatory is one that must be resolved by the trier of fact." Romaine v. Kallinger

supra at 290-291.

Moreover, as defendant states at page 11 of its Memorandum, whether a statement is

capable of defamatory meaning depends to a significant degree on the context in which the

statement appears (Ward v. Zelikovsky at 532), and in this case the context in which the statement

about plaintiff's intelligence was made, clearly supports the interpretation that it was in fact

defamatory, and not mere "rhetorical hyperbole."

Almost from its inception the campaign of defamation waged against plaintiffs on the

Internet, has included statements questioning Barbara Bauer's intelligence and intellectual

credentials. (Cf Exhibits C and D, discussions on the websites of three other defendants in this

case, Patrick and Teresa Nielsen-Hayden, (Making Light), and Stephan Spencer, (writers.net) in

which skepticism is voiced as to whether Barbara Bauer actually has the Ph.D. in English which

she claims to have, and Exhibit E in which defendant Teresa Nielsen-Hayden calls Barbara

defamation action, only that in order for such an assertion to be defamatory it must imply and be based onunderlying objective facts that are false.sThat defendant makes the same "rhetorical hyperbole" argument with respect to the other allegedly defamatorystatement, that plaintif has "no documented sales at all", a statement which is totally beref of any even arguablerhetorical hyperbole, only points up the speciousness of its argument.

6


Bauer "...abysmally stupid."). This case is thus clearly distinguishable fom the classic example

of true rhetorical hyperbole set forth in the Restatement (Second) of Torts, (quoted with approval

in Ward v. Zelikovsky at 532: "...when, in the course of an altercation, the defendant loudly and

angrily calls the plaintif a bastard in the presence of others, he is ordinarily not reasonably to be

understood as asserting the fact that the plaintiff is of illegitimate birth but only to be abusing

him to his face." The statement published by Wikimedia impugning plaintiffs intelligence was

not in the context of a face to face altercation, and could plausibly have been seen as asserting

the fact that plaintif was less intelligent than other literary agents.

CONCLUSION

For the reasons set forth above, it is respectfuly requested that Defendant's Motion To

Dismiss be denied.

May 12, 2008Dan MartinAttorney For Plaintiffs

7


EXHIBIT A


Wikipedia:List of administrators/A-F

From Wikipedia, the free encyclopedia

< Wiki[ edia:List of administrators• Find out more about navigating Wkipedia andfndin nfarination

Jump to: navigation ,search Contents: A-F • G-O • P-Z • Semi-active • Inactive

Contents

hide

• #• 2A• 3B• 4C• 5D• 6E• 7F

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EXHIBIT B


A -A 1%46 Ut %#? cm-"I'VIf bus SGUW -mow'-vi

CONFEWT1&L

Barbara Bauer

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dated 200607-12 03:31:54 by Avrab?m usingpopups)• (cur) (last) r 21:08,15 July 2006 65.54.155.59 (Talk) (minor)

• (cur) (last) r 03:31,12 July 2006 Avrahsm (Talk 1 eon ribs) m (--+Controvesrsy - Is thisevenverifiable? I am not certain It can ever be verifed, so being removed per

http?/msil.wgdmo ia. 00&May/o4"33.html)• (cur) (last) r 02:42,12 July 2006 Mavwin (Talk I

coe) (revert unsourced attack,keptin:?xvvcdwording on ation, capfWiz- Ik is per source, APA style I think)

• (cur) (last) r 01:40,12 July 2006 65.54.135.14 (Talk)(miner)• (cur) (last) r 04:32, 2 July 2006 Anaham (Talk I coruribs) in (Changing lastreference andcommenting out claim and soure with pecubvitis until they can be resolved)

¦ (cur) (last) r 22:41,1 July 2006 Mavarin (Talk I contribs) in (remove extra space betweenheadings)

• (cur) (last) r 22:33,1 July 2006 Mavarin (Talk { contribs) (add Baver's podast, removeElrodparody link, per NPOV)

• (cur) (last) r 18:22,1 July 2006 Conscious (Talk I comtnbs)(rm cat)• (cur) (last) r 23:05, 30 June 2006 Will Beback (Talk I contribs) (--?Conttoversy - rm "Dr." -

we don't normally use academictitles)• (cur) (last) r 21.42, 30 Jame 2006 Avraham (Talk { contribs) m (Agreed agent

is more• (cur) (last) r 19:50, 30 June 2006 Mavarin (Talk I cordnbe) m (capitali ion

and typo.)¦ (cur) (lest) r 19.25, 30 June 2006 JulesH (Talk I eomdbs) (-'Contrversy _changedescription of links to the three sites regarding theats font Bauer to be more

accurate andVcd&)• (cur) (last) r 19:13, 30 June 2006 Avraham (Talk I comribs) in

(ref tag)a (cut) (last) r 19:13, 30 June 2006 Avraham (Talk I contribs) in (-•Coeatuversy -trying tomake comment invisible)

¦ (cur) (last) r 19:11, 30 June 2006 Avntham (Talk I conttibs) i (P mace secti(n)• (cur) (last) r 19:10, 30 June 2006 Avrabam (Tels I ctioturibs) (This aartrcle's

structure ishorendo s. Patti of reorer/attempt to fnd WP:RS for claims/commenting outunreliable orredundant info. NO non-u info has been remove)

a (cur) (last) r 19:47, 28 June 2006 Will Bcbeck (Talk I cis) (rm duplicatelink)¦ (cur) (last) r 03:19,26 June 2006 209.187.75.119 (Talk) (-'Exterallinks)• (cur) (last) r 18:58, 25 Juste 2006 209.210.73209(Talk)• (can) (last) r 1 &:3 1, 25 June 2006209.210.73.209 (TA)' (stn) (last) r 03:57,7.4 June 2006 Calton (Talk I con bs) (rv unexplained rewrite -AGAIN)• (cur) (last) r 03:44.24 June 2006 Carnmliq (Talk Icons rbs)• (cur) (lag) r 05:41,21 June 2006 Mavarin (Talk { contrbs) in (remove word-Mrs.")¦ (cu) (last) r 05:21,20 June 2006 Mavarin (Tank I contribs) (rewrite ISP awn infow/othe link, acknowledge not sole reason

claimed)r (cur) (lest) r 05:47,19 June 2006 Yanksox (Talk I contribs)m (rvv)• (cur) (last) r 05:43, 19 June 2006 Cannoliq (Talk Icoma)• (otw) (last) r 03:54, 19 June 2006 Calton (Talc I contn`bs) (rv - there AREsuch things aswatchlists, you know)

• (cur) (last) r 03:45, 19 June 2006 Catmoliq (Talk Icontribs)• (ten) Oast) r 20:50.17 June 2006 Mavatin (Talk I eons ribs) (add detail on whetherBauer soldbooks, dwg" fear t s)

• (cur) (last) r 12:57, 17 June 2006 JulesH (Talk I contri'bs) (Writer Beware isn`tonly part of

http //en.wikipedia.oWw/Mdex,pbo"kle arbara-Beuar&Wfso-21)0607'240611.. 2/8/2007


EXHIBIT C


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12:31 PM':

I'm ai+odtdd, Medved I tell you, thatWMdpedla doeaIt-have an enby on BarberaSmear

I

At the very last, the 20 worst List aruld bementioned onthe Mdidpe,Aa entry for > WA. I sae tey alreadymere"Atlanta N*f fM?.

Cbrw 3oIs0an ns (vI alt by) r.: May 25,2006,12:32 PM:

I have bedn bnMsMig an the St. John's t'enareltyaids andwonder a4cut a few eMrgs. On her wabette,Sauer dalmsto have a Ph.D. In Englsh from that ketltubon,and herbtdtvidual pkt a'e s ows her In a Ph.D. doaorigown: ICan see the dark blue velvet of the hoed,wtlkii wouldn11tCh that degree, as do the stripes on thearms, On theother hand, I can't And her I the pt we on thesite woher "gradyatt n daf-

&A twre'r;I the thMag that's odd. The web sitefor theDepartment Of i for St. John's tats the degresclfor ed, and they do not alwr the Ph.D. - justan MA andsomething callied a D.A., w it h I've neverheard of. Now,maybe Sr .loom's olwred a Ph.D. In 1979and has droppedthe pnsgraim. But I wtimdir. Anyone M the MMara mightO"Okier wandering over in Me St )giro'sNba7ry to seewhat Bab dWmrhtlon was about, If date ione,bee'awsa would heap them s k area V

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MkMlghtMuse ::: (view all by) ur May 25,2006,12r3m Psi!

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vs. CIVIL ACTIONJenna Glatzer and MacAllister Stoneand James D. MacDonald and Kent Brewster ORDERand Ann C. Crispin and Patrick Nielsen-Haydenand Teresa Nielsen-Hayden and Brian Hill,and Dee Power akaHarrilane D. Poweraka D. Carr Harrilane, and David L Kuzminskiand Thomas S. Tully and Science Fiction andFantasy Writers of America, Inc. and Victoria C. Straussand Shweta Narayan and Lesia Valentine andChristina Walden aka Christina Bristol andWikimedia Foundation, and Stephan Spencer,and Kristen Fischer aka Kristen Pascuili andGregory Ludwig and Aimee AmodioDefendants

This matter having been brought before the Court by defendant Wikimedia Foundation, by its

attorneys, Sheppard, Mullin, Richter & Hampton, and the Court having read and considered the

papers submitted and arguments made in support of and in opposition to defendant's Motion To

Dismiss, and for good cause shown;

It is on this day of 2008

ORDERED that the Motion To dismiss is denied; and it is further

ORDERED that a copy of this ORDER be served on all parties within 7 days.

J.S.C.





vs. CIVIL ACTIONJenna Glatzer and MacAllister Stoneand James D. MacDonald and Kent Brewster CERTIFICATION OF SERVICEand Ann C. Crispin and Patrick Nielsen-Haydenand Teresa Nielsen-Hayden and Brian Hill,and Dee Power akaHarrilane D. Poweraka D. Carr Harrilane, and David L Kuzminskiand Thomas S. Tully and Science Fiction andFantasy Writers of America, Inc. and Victoria C. Straussand Shweta Narayan and Lesia Valentine andChristina Walden aka Christina Bristol andWikimedia Foundation, and Stephan Spencer,and Kristen Fischer aka Kristen Pascuili andGregory Ludwig and Aimee AmodioDefendants

I, Dan Martin, hereby certify as follows:

1. 1 am an attorney at law, State of New Jersey, and represent plaintifs herein.2. On May 12, 2008 I served plaintifs' Brief In Opposition to the Motion To Dismiss fled

by defendant Wikimedia Foundation by Federal Express on the following parties:Sheppard, Mullin, Richter & Hampton LLP, attorneys for Wikimedia Foundation, at 30Rockefeller Plaza, Suite 2400, New York, New York 10112; Miller & Lamastra, attorneys fordefendants Victoria Strauss, Ann Crispin, and Science Fiction & Fantasy Writers of America,Inc., at 3 Mountain View Rd, Warren, NJ 07061; Schenck, Price, Smith & King, attorneys fordefendants Jenna Glatzer, MacAllister Stone, James Macdonald, Kent Brewster, Patrick NielsenHayden, Teresa Nielsen Hayden, David Kuzminski, Thoma Tully, and Stephan Spencer, at 10Washington Street, Morristown, NJ 07963, Grayson Barber, Esq., attorney for defendant ShwetaNarayan, at 68 Locust Lane, Princeton, NJ 08540, and defendant Gregory Ludwig, pro se, at 4Old Tavern Drive, Highland Lakes, NJ 07422.

I certify that the foregoing statements made by me are true. I am aware that if any of theforegoing statements made by me are willfully false, I may be subjj punishment.Dated: May 12, 2008

Dan Martin


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