Correspondence from: Marc J. Randazza, Esq. MARC J.

Licensed to practice in Massachusetts California Nevada Arizona Florida

Reply to Las Vegas Office via Email or Fax

September 6, 2012 Via Email and U.S. Mail Samuel Lassoff Lassoff Law LLC P.O. Box 2142 Horsham, PA 19044 Re: DMCA Takedown Notice and Defamation Claim Dear Mr. Lassoff: This firm has the privilege of representing the author of <>. We are in receipt of your DMCA takedown notice to <> for the removal of the document titled “Lassoff Excessive Force Summary Judgment,” and your email to Domains By Proxy LLC seeking our client’s personally identifying information on the premise that you seek to vindicate claims of defamation and copyright infringement. We have instructed Domains By Proxy to refrain from revealing our client’s information to you. Our client has done absolutely nothing actionable and we write today to dissuade you from any further unwise aggression toward her. Furthermore, we write to inform you that in your rush to censor legitimate free speech critical of your litigation failings, you violated the Copyright Act, and have exposed yourself to cause of action for damages and attorneys’ fees. 1. Contrary to Your Misrepresentation to Domains By Proxy, Siouxsie’s Statements Were Not Defamatory. As an attorney, you surely understand that opinions, even critical ones, are not actionable as defamation. The tort of defamation requires a false statement of fact. A cursory glance of Siouxsie’s blog posts – both of which were initially published in 2010 – fail to meet the standard. Additionally, any action for defamation would be time-barred, as Pennsylvania’s statute of limitations for this claim is only one (1) year. Pa. C.S. § 5523(1). Additionally, Pennsylvania has adopted the single publication rule, limiting any and all actions for defamation to only one action relating to the first publication of the allegedly defamatory statements. Pa. C.S. § 8341(b). As this statute has been applied, your cause of action would be time-barred, as your lone claim for defamation – assuming it was not frivolous – would begin running on the first day these blog posts were authored, far back in 2010. Bradford v. Am. Media Operations, Inc., 882 F. Supp. 1508, 1517 (E.D. Pa. 1995); Andrews v. Time, Inc., 690 F. Supp. 362, 367 (E.D. Pa. 1988). This alone renders your threat of defamation frivolous, and if filed in court, sanctionable.

Licensed to practice in Nevada

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Even assuming that your defamation claim was not time-barred, Pennsylvania has uncommonly onerous defamation laws, requiring plaintiffs to prove that (1) the character of the communication was defamatory; (2) publication of the communication; (3) its application to the plaintiff; (4) that the recipient understands that the communication is defamatory; (5) the recipient’s understanding of the communication as it applies to the plaintiff; (6) special harm to the plaintiff; (7) abuse of a privileged occasion. 42 Pa. C.S. § 8343 (a). The question in an action for defamation is whether a statement can have a defamatory meaning. Agriss v. Roadway Exp., Inc, 483 A.2d 456, 461 (Pa. Super. Ct. 1984). The general tendency of the words must be to create a defamatory effect, and “it is not sufficient if the words are merely embarrassing or annoying to the plaintiff.” Id. Moreover, if you choose to file the defamation complaint in either your jurisdiction of Pennsylvania or Siouxsie’s, you could face consequences as a result of an Anti-SLAPP statute or, in Pennsylvania, the Dragonetti Act. Opinions, such as our client’s, are not defamatory. Specifically In Pennsylvania, in determining whether an opinion is capable of a defamatory meaning, the courts consider a statement in the form of an opinion actionable “only if it may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion. A simple expression of opinion based on disclosed ... facts is not itself sufficient for an action of defamation.” Kurowski v. Burroughs, 994 A.2d 611, 618 (Pa. Super. Ct. 2010) appeal denied, 608 Pa. 655, 12 A.3d 752 (2010), quoting Veno v. Meredith, 515 A.2d 571, 575 (1986), appeal denied, 532 Pa. 665, 616 A.2d 986 (1992). In Kurowski, the court determined that an editorial suggesting that a Pennsylvania city was not doing enough to force owners to repair run-down properties was an opinion based on disclosed facts and therefore could not be defamatory. 994 A.2d at 618. Similarly, all of the posts to which refer in your letter to Domains By Proxy are matters of opinion, and cannot be defamatory in nature. They are based only on disclosed facts that are readily available to the public. Furthermore, these posts are mere commentary on the cases in which you have been publicly involved and would not be considered to be defamatory in any way, as they do not assert facts, but state only Siouxsie’s opinions. Analyzing this claim under the law of any state would lead to an identical conclusion. Depending on where you attempt to file your complaint, the court will dismiss the action, and may order you to pay sanctions and attorneys’ fees to Siouxsie. Most commonly, this is achieved through an Anti-SLAPP (Strategic Litigation Against Public Participation) statute, which often allows for dismissal and an award of fees if the court finds that a complaint is filed merely for the purpose of silencing anyone who speaks out against a plaintiff. However, in Pennsylvania, 42 Pa. C.S. § 8351-8354 allows for the recovery of expenses and reasonable attorneys’ fees for defense of wrongful use of civil proceedings. In order to recover under the Dragonetti Act, the person asserting the claim must show that the action should not have been subject to litigation and that no factual basis for the claims exists. Catania v. Hanover Ins. Co., 566 A.2d 885, 888 (Pa. Super. Ct. 1989). For the foregoing reasons, any claim of defamation you may make is frivolous. Siouxsie’s blog posts about you are not defamatory, and in fact, they are not even particularly critical of you. Instead, they are mere opinions based on disclosed facts and public records. While your defamation claim would fail, our client would have an excellent claim against you for her damages and attorneys’ fees under the Dragonetti Act. While Pennsylvania does not have a comprehensive anti-SLAPP statute akin to those in other states, I am confident the Dragonetti Act should act as a sufficient deterrent for your actions – and a penalty, if you should choose to file a meritless lawsuit.

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2. Siouxsie’s Republication of Your Amended Complaint – a Public Document Filed in a Civil Action and Available on PACER – is Not Copyright Infringement. Under 17 U.S.C. § 512(c)(3)(A), take-down notices sent under the Digital Millennium Copyright Act (“DMCA”) can be sent only to remove or disable access to infringing republications of protectable works. What our client uploaded to Scribd, titled “Lassoff Excessive Force Summary Judgment,” is undoubtedly a public and uncopyrightable document. The document our client uploaded an order from the United States District Court for the District of New Jersey in Lassoff v. State of New Jersey, Case No. 1:05-cv-02261-JEI-JS (Doc. # 194-1) (D.N.J. Mar. 31, 2008). This is unquestionably a government work, authored by an employee of the federal government, and as such is not entitled to copyright protection. 17 U.S.C. § 105; Matthew Bender & Co., Inc. v. West Pub. Co., 158 F.3d 693, 698 (2d Cir. 1998); U.S. v. Wash. Mint LLC, 115 F. Supp. 2d 1089 (D. Minn. 2000) (“[a]ny work that is ‘prepared by an officer or employee of the United States Government as a part of that person's official duties’ constitutes a ‘work of the United States Government’”). Moreover, to assert a claim for copyright infringement – whether in court or in the form of a DMCA take-down notice – you must own some exclusive right in the copyrighted work. 17 U.S.C. §§ 501(b), 512(c)(3)(A)(i) and (iv). Thus, you have no basis to claim that our client’s publication of a United States District Court’s order on Scribd constitutes copyright infringement. 3. By Sending a Fraudulent DMCA take-down notice to Scribd, You Violated 17 U.S.C. § 512(f) and Our Client is Entitled to Her Attorneys’ Fees Regarding This Claim. Your DMCA take-down notification regarding the Court’s order in Lassoff v. New Jersey contains numerous material misrepresentations of fact. First and foremost, you represented that you were authorized to send the take-down notice. You further claimed that our client’s distribution of this public work on Scribd was infringing. You then represented that you had a good faith belief that the use of this material was not authorized by law or the copyright “owner” (of which there is none). To top it off, you declared under penalty of perjury that everything in your take-down notice was accurate, and that you were authorized on behalf of the copyright owner.1 The DMCA does not allow misrepresentations such as these to go unpunished. In fact, the DMCA specifically contemplates such abuses of its take-down provisions and contains a mechanism for content uploaders to seek redress for such patently improper take-down notices. This provision is found at 17 U.S.C. § 512(f), which states: Any person who knowingly materially misrepresents under this section-(1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

This is to say nothing of the numerous ethical issues your misrepresentations likely raise under the model rules in every state.

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There is no question that you knowingly misrepresented numerous aspects of your DMCA take-down notice to Scribd. Under 17 U.S.C. § 512(f), you are liable not only for our client’s damages arising from your misrepresentations, but our client’s attorneys’ fees and costs as well. Siouxsie’s posting was not infringing, and you knew this, as she republished a publicly available document – one that you did not own, one that you were not authorized to seek removal of, and one that is not even copyrightable. As a result, Siouxsie has had to retain legal counsel in order to challenge this notice, protect her identity, and ensure her right to free expression remains unimpeded. Thus far, she has accumulated approximately $2,500 in legal fees, and is prepared to incur the costs and fees of litigation if you are unwilling to accommodate her future free expression – concerning you or any other subject. The seminal case on this topic is Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008), and we recommend that you immediately read it with great care. In Lenz, defendant Universal Music Corporation sent a takedown notice after the plaintiff posted a video of her young children dancing to the song “Let’s Go Crazy,” a song for which Universal actually owned the rights, and was copyrightable. YouTube took down the video pursuant to Universal’s take-down notice, and Lenz countered that the song constituted fair use. She then sued Universal Music for sending a DMCA take-down notice containing knowing, material misrepresentations under § 512(f). The court agreed with Lenz and denied Universal’s Motion to Dismiss, stating that the purpose of Section 512(f) is to prevent abuse through the sending of unnecessary takedown notices. “As Lenz points out, the unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms. A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute.” Lenz, 572 F. Supp. 2d at 1156. The court concluded that Lenz successfully showed damages in the form of her attorneys’ fees resulting from Universal’s misrepresentation of infringement. Given the dearth of national precedent on 17 U.S.C. § 512(f), we believe that your conduct toward our client would make for an excellent bellwether case on the statute’s application. While our client has incurred only $2,500 to date in protecting her identity, her costs, fees – and damages – will continue to grow if we file suit. Additionally, these fees and costs will be awarded to our client and collectable from you, as specifically contemplated in § 512(f) and allowed by 17 U.S.C. § 505. We look forward to your response and resolving this dispute without litigation, on terms that are satisfactory to our client and recognize the harm you have attempted to do to her First Amendment rights. Best regards,

Marc. J. Randazza