Copyright Law

Anonymous Gripe Site Wins Legal Battle With Ohio Homebuilder Powermark Homes

By David Ardia

Last month, an anonymous website dedicated to criticizing Ohio homebuilder Powermark Homes succeeded in maintaining its anonymity in the face of a lawsuit brought by the company and two of its principals, Mark and Lisa Powers, who had sued the anonymous operator of Powermark Homes Alert.  At the time of the suit, the homepage for the site included a picture of Mark and Lisa and the statements "The Truth Exposed" and "Do you really want to do business with this Ohio Home Builder?"

On May 25, 2007, Plaintiffs filed a lawsuit against the site's operator identified only as "John Doe" and against Domains By Proxy Inc., the site's domain name registrar, asserting claims of defamation, misappropriation, false-light publicity, and disparagement.  Plaintiffs also sought a temporary restraining order "requiring Defendants to remove the false and defamatory website."  Neither the original complaint nor plaintiffs' amended complaint appears to identify with specificity the statements the plaintiffs claim were false and defamatory.

Plaintiffs subpoenaed Domains by Proxy for Doe's identifying information and also sent the company a DMCA takedown notice demanding that the site be taken down.   After Domains by Proxy notified Doe, he filed a pro se, anonymous answer and several motions to quash.  Shortly after Doe made these filings, the Public Citizen Litigation Group entered the case on Doe's behalf and filed briefs in support of Doe's motions.

While the lawsuit was pending, Powermark's lawyer sent a second DMCA takedown notice, claiming that the site's operator infringed the company's copyright by posting on the site an image from plaintiffs' own complaint in the Ohio action.  As Greg Beck from Public Citizen noted:

Although the company has a pending motion for an injunction in Ohio court, and although Public Citizen has opposed this motion on First Amendment grounds, Powermark Homes didn't need to wait for the judge to rule on the motion to get what it wanted. By just sending an email to John Doe's ISP claiming copyright infringement, the company got the site taken offline almost immediately, no thorny First Amendment questions asked. 

After more than a year of litigation, the anonymous operator of the gripe site was eventually able to get the site back up and succeeded in the getting the lawsuit dismissed.  On December 15, 2008, the Court granted Doe and Domains by Proxy's motion to dismiss and motion for summary judgment respectively, ending the case.  No written order was issued.

While "John Doe" won in the end, it came at a high cost.  As she/he told the Cleveland Plain Dealer:

"If there is a lesson in this, it is to be careful, be very careful what you say or put on the Internet," he said through his lawyer. "Even if you are only making innocent comments on a blog, you can wake up one day and find out you are being sued simply because someone didn't like what you wrote, and the nightmare begins."

For more on the case, see our database entry Powermark Homes v. John Doe.

Full post as published by Citizen Media Law Project on January 15, 2009 (boomark / email).