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by Linda Ellis

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I read ofa man wfio srood ro soeal a[ rhe funeral ofa friend.

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her rombsrone

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represents all the rime she spenr alive on eartl,

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is how we live and love ana how we spend our dash.

drink abour rhis longand fiard. ru.e "So rnere Lhings youil like ro .h,"-", _ ror you-never know

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ard aJuz;n rry to undersrand
me uay other people feel.
be iess quick ro aneer and show appreciation m-ore and love the peopie in our lives Irke weve never loved before.

And

Ifwe trear eacfi other with respcct anamore often wear


remembering &ar this specjal dash mrgrrc only Iasr a litde whiie.
So when your eulory is beins read
a smiie.

.wtrh ,our lifeb acrions to re;aJr. wouta you be proud ofthe thines drev sav aoour how/ou spenryourdashl. , @t996

www.lindae,lis net

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Matthew Chan
Administrator
Hero lvlember

...

Ret Linda M, Ellis per$onal Xnformatiqn Found ( Rply #4 on: lune 11, 2012,

ffiffiffiffiffi

01:08:48 PM >

r\r

Posts:1521
ELI Cult Leader

I learned many years ago Is to get comfortable with any so-called "skeletons" you might have so that if you get called oLrt on it, you won,t have a heart attack over it, Be conscious of your imperfections and flaws. you might get embarrassed or inconvenienced by it but you won,t get twisted about about it if it comes out. But some people ljve in this world to ,,look good" and they are run by it. I would never be so confident to say I know everything about what makes Linda tick but I am beginning to have a good
One thing idea.

The reason I don't try to "save the world', on this issue is that the victims bear some responsibility in all this, They empowered Linda over the years by caving in and not learning how to complain loudly and fight back. As I keep telling others, you can't let your opponents dictate the terms of the fight. And I absolutely believe in hjtting back hard where it hurts. There has to be some extreme negative consequences for an adversary to respect and, yes, even fear you. Some people love to bluff and threaten-but really have no gumption to go through with it. I see this so much. That is why I learned many years ago to not say things you cannot do or deliver because once you get that reputation, people think you "cry wolf'or blowing smoke, And stop wasting time arguing and convjncing the other side, We could sit here all day long to try to ,,convince,,and explain Linda of our position but she is a cry-baby from what I have seen and yery slow to learn. So, maybe she *ill un .t am not sure, I dealt with a female Canadjan Lawyerr Julie Stewart of Blackline Law, who didn't know when to quit until so much damage was done against her. (look it up Linda defenders of how ELI trounced Julie into the ground.) Julie went after the ELI Facebook account, Scribd account, web hosting account, etc, She even had two different lawyers contact us. She cried to a bunch of people around me, Well obviously, we are still here and she is gone from our lives. Let's see what happens with Linda.

*+

I was far
alo ne.

moTe patient and had restraint with Julie than I should have, It won,t happen here. I will pull that trigger much quicker if need be, And I don,t fight

Quote from: auctionapril on June 11,2012, 11:05:03 AM


BTW, your discoverles explain why this woman tries to extslt herself by tapping lnto sharne and fear in others. Her victims .re mostly women and sadly women are easily contro ld by both. Some of us discovered these maniputating tactics and are heated from the destructlon. Shame and fear do not work on me, my friends or my ctients. For most people who look to inspire others, sh:me End fear are the 2 issires they write the most about in order to heal people from these cripplinq vibes. Not Elty Be y. She eBts both. Breathes both. Sleeps both. Sad, sad woman.

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THE SUPERIOR COURT T'OR THE COUNTY OF MUSCOGEE STATE OT'GEORGIA


Linda Ellis, Plaintiff

vs.

Civil Action File No. SUl3dm40

Matthew Chan, Defendent

ATFIDAYIT OF TIMOTHY B. McCORMACK


I am over
18 years of age.

1.

2.

My name is Timothy B. McCormack. I am an attomey, in good standing, licensed to


practice in the states of Washington, Oregon, and Idaho.

I am licensed to practice in

front of The Supreme Court of the United States, the Ninth Circuit Court of Appeals,
and the Federal Circuit.

have handled cases in federal courts in California, Florida,

Minnesota, Oregon, and Washington.


resume is attached as Exhibit A.
3.

have been in practice for over 15 years. My

possess detailed personal knowledge

of the matter at hand regaxding Linda Ellis and

Matthew Chan.
4.

One of my clients is Getty Images. As the largest stock photography agency in the world, Getty Images represents millions of images and acts as the exclusive distributor

and licensor for thousands

of

photographers and partners, such as National

Geographic, Time-Life Pictures, The New York Times and others. ln my capacity as
an intellectual property attomey,

assist Getty Images

with unlicensed image use

a:rd

coppight infringement matters. I have represented Getty Images in this capacity for
over five years now. Because of tle work I do with Getty Images, my firm, my staff,
and

I have also been targeted and hamssed by Matthew Chan and his cohorts through

his website http://www.extortior etterinfo.cor/ ("extortionletterinfo.com").


5.

As a result of this ongoing harassment, certain memberc of my staff and I continuously monitor and document extortionletterinfo.com activities. I am intimately familiar with

Mr. Chan's Intemet hate and harassment campaigns.


6.

In

15 years as an

attorne, I have never witnessed such a dangerous and uninhibited

pattem of behavior. I believe that Mr. Chan is a danger both to himself and to others.
He is a zealot to his "cause" and believes he is irreproachable and unstoppable.
7.

Based on recent posts, attached as Exhibit B, and on my experience as atr attomey, and

based on his own words and pattem

of escalating behavior that

have personally

wihessed, I believe Mr. Chan is likel), to follow through on his threats of physical
retaliation against Linda Ellis.
8.

I have already witnessed manifestations of Mr. Chan and his website's threats in past.

the

My

home property has been vandalized since becoming

target of

extortionletterinfo.com, which

I believe to be a direct result or Mr. Chan's hate and of Mr. Chan's


website 'have

harassment campaign directed against me. Members

visited the physical locations of their targets, takeo pictures, and shared details ofthese locations.
9.

Extortionletterinfo.com regularly posts home addresses, photos of family members,


and other personal details of its targets. Extortionletterinfo.com has also targeted other

female victims with aggressively misogynistic and violent threats. This behavior is

encouraged and praised by Mr. Chan, who often edits or modifies the content of his

users'posts to reflect his personal views. He evqn deletes entire posts which he deems contrary to the dubious goals of his website.

In short, he has and exercises direct

control ofthe hateful smear and harassment campaigns on extortionletterinfo.com


10.

The detrimental effects of Mr. Chan's attacks are mapified through the use of search engine optimization, which Mr. Chan manipulates to maximize his online viewership.

He is effectively using the Intemet as a weapon to circumvent normal lega1 channels and frighten his opponents into submission.

have spoken with at least one other

victim who refuses to come forward for fear of further retaliation, and that is not an
isolated incident.
11.

Throughout the course of extortionletterinfo.com's existence, Mr. Chan's behavior has continued to escalate to new and more alarming levels, and I believe serious harm is

likely if he remains unchecked.


12.

I know from speaking with Linda Ellis

that she has had a difficult time finding an

attomey to help her with this matter due to Mr. Chan's threatening behavior. As a result of Mr. Chan's hateful smear campaigns, such as the one directed at my firm, attomeys are reluctant

to

assist Ms. Ellis

in

defending herself. As

Mr. Chan

has

publicly stated, this is an intended goal ofhis ongoing harassment.


13.

I recently filed a complaint against Mr. Chan's business parher, an attomey, with the
New York State lawyer discipline authorities. Attached as Exhibit E you will find a
true and correct copy ofthis complaint, including an executive summary and a body of

exhibits. This complaint and accompanying exhibits contain direct quotes from Mr.
Chan and his cohorts which reveal numerous examples of Mr. Chan's cyberstalking,

threats, and harassment against numerous parties. As the complaint illustrates, much

of Mr. Chan aad his website's behavior is hate-motivated, meaning

it is based

in

homophobic, misoglnistic, and anti-religious hate speech. The examples

of Mr.

Chan's behavior I noted above are documented and detailed within this complaint.

t4.

As our formal complaint has now been published openly, I fully expect to be targeted

by

subsequent promised retaliation from

Mr. Chan and his website. Mr.

Chan's

fictitious legal team, which he calls the "ELI Defense Team," has grown to seven
members,

all of whom share in Mr. Chan's zealotry. Accordingly, I respectfully

rcquest that you consider fashioning a remedy that not only protects Linda Ellis from

Matthew Chan, but also protects me, my staff and other victims from both Mr. Chan
and his cohorts on extortionletterinfo.com. ln short, this court has the power to tel1 Mr. Chan to leave Linda Ellis alone. That power should be exercised.
15.

While I am not licensed to practice in Georgia, I have handled cases similar to this one
in Washington. One case in particular is.Ererlume v. Simcoslry, Case No. 07 -2-01732-

5, where
blogger.
16.

represented a publicly traded company

in a dispute against a renegade

The court awarded a temporary restraining order and permanent injunction in favor

of

my client. The order includes possible sanctions for violating the order, includirig but
not limited to: 1) surrender of all personal computers,
the Intemet for ten years.

ail2)

an agreement not to use

17.

I have enclosed

as

Exhibit C a brief from the Enerlume v. Simcoslcy case that discusses


case

the state's authority for this type of injunction and the U.S. Supreme Court

holding that defamation

is not protected by the l't

Amendment

of the U.S.

Constitution. By extension, neither are the rnore extlelne acts of irate and harassrnent
perpetrated by Mattherv Clian and his lvebsite. In addition, to the extent that this courl may find it helpful in fashioning a remedy fbr Linda Eliis and others, I have included
as Exhibit

D a copy of

a pennanent injunction that rvas issued frotn the Washington

court in conclusiot of lhe Enerhtme y. Sintcosk:, case.


13.

I srvear under penalty ofperjury that the above infonnation is factual and true. February 27, 2013

. McCormack, WSBA #28074 Attorney for Washington Shoe Cornpany IVlcConnack Intellectual Property Larv Business Law

617 Lee St Seattle,

WA

98109

p.206-381-8888 / f. 206-381-1988 tim@McCormackLegal.corn

Exhibit A
Timothy McCormack R6sum6

Timothy B. McCormack Attorney at Law www.McCormackl-egal.com


Expertise

o . . . o o

Fourteen * Years Intellectual Property & Business Law Named "Seattle Bright" for Seattle Post Intelligencer Experienced Litigator in State and Federal Courts Speaker for State Bar CLE Classe's on Intellectual Property Published on Intellectual & Business Property Law Published State and Federal Cases

Experience

Ownerwith Intellec-hral Pmp$ty Law

Firn

2001-Current

McCormack Intellectual Property Law Firm and Predecessor

Firms

Seattle, WA

Practice covers varied intellectual property issues, including copFights, trademarks, trade secrets, patents, unfair competition, licensing, litigation ard related business concems, such as: business formation, employer/employee issues, contracts and corporate govemance. Accomplishments:

Outside coulsel for Getiy Images, the world's largest stock photogaphy company in the world, relating to Unauthorized Use and copgight infringement. Worked on developing and implementing outside coursel North American copyright inftingement enforcement program.
Developed intemal system for processing cases (COPS: Copyright Offender Policing System).

o . .

Lead outside counsel in 200 + hour intellectual property audit for Microsoft. Worked closely with an A.nti-Piracy Manager to hone litigation strategies. Other work as needed. Also

worked on various other projects for client over many years.


Lead outside intellectual property counsel for Washington Shoe; assist client in developing IP strategy and enforcing IP dghts.

Lead counsel on between two ard thrce huadred intellectual property cases, including
copyright cases, patent cases, trademark cases and rclated mattem (list
included below) Lead counsel in two-p1us year software litigation centered on patented compression algorithms for space-based satellite image programs used by NASA, the CIA and other goveroment agancies. This case involved the challenged use of proprietary / patented software algorithms in a commercial software product developed originally at Los Alamos National Laboratories. This case taversed patent law, copyright law, aati-trust law and iavolved novel issues oftrade secret law. Supervised six attomeys and four paralegals that worked on this case over a twoplus year period.

of some cases

is

Counsel for local business, hired to procure licensing agreements with the National Football League, a Major League Baseball team, and Twentieth Century Fox Filn Corporbtion. Successful negotiations resulted in licensed product. Lead counsel in trade secret litigation as attomey for Northwest Calibration Systems and Davis Inotek. Case involved theft of electronic database. Lead counsel for retail import company Mais ouil Represented client in unfair competition and fiade secret and defamation case. Achieved favorable resolution that included published opinion in Washington State Appeals Cout.

Filed hundreds of copyriglt and trademark applications and related foreign coppight and trademark applications. Substantial experience with the Trademark Trial and Appeal Board,
representing clients in trademark opposition arrd cancsllation proceedings.

'l:206

6I7 LEE STREET SEATTLE, WA 98I09


29 5

-2284 E: TIM@MCCORMACKLECAL.COM

I*ad Attorney for Technolog/


2000-2001

and Intellctual Pmprty Group Pacific Northwest Law Group, Judd & Sailer PLLC

Seattle, WA

Practice involved

all

aspects

of

intellectual property practice as well as e-commerce and risk

management for business. Client counseling and development for intellectual property and technology related business issues including work projects for Microsoft ald other teclurology companies. Prepared checklists for negotiating hardware and software licenses for in-house Microsoft counsel. Helped to bring Microsoft work to firm and did various projects, including issues related to state escheat laws and Microsoft license agreements. Legal work includes all aspects ofintellectual property practice as well as e-commerce and risk management for business. Attorney / Law Clerk 1998-2000 Seed aad Berry LLP / Seed Intellectual Property Law Group

PLLC

Seattle,

WA

Litigated intellectual property disputes ranging from patent, copyright, trade secret, trademark, licensing, antitrust and unfair competition matters. Work included numerous intellectual property
projects for Microsoft including: trademark work (use of United States Post Offrce "Eagle" Symbol and case work on various Trademark Trial and Appeal Board cases involving Microsoft trademarks), copyight projects (public domain of copyrighted works to be used in Microsoft's Encarta) and patent audit projects. Directly involved ia an intemal patent audit, prompted by Microsoft, involving hundreds of Microsoft software patents. Prepared comprehensive (200 + hours) written materials for software engineers and product developers at Visio (now owned by Microsoft). Also completed signiflcant amount of legal work relating to computer software for other tecbnology clients. Helped to prepare written materials for an intemational level book / CLE on software patsnt litigation. Served on Board of Directors and advised local Intemet Service Provider in conjunction with Preston Gate & Ellis.

Additional
Experience

1996:2006

. .

Volunteer coordinator for judicial campaign of Washington State Supreme Court Gerry L. Alexander, Chief Justice in 2006 (re-elected); projects included planning and coordinating receptions for judge and working with campaign.
Clerked for Plaintiffs litigation team in Bernstein v. U.S. Dep't of Stote, a grormdbreaking encrr?tion techlology export case holding computer source code as protected speech under the First Amndment. Worked on the ceffial issues of the case addressing the inte6ection of First Amendment law and coplright law. Helped secure positive outcome in summaxy judgment, later upheld by the Ninth Circuit Court ofAppeals.
Assisted legal teams fuom Preston Gales & Ellis and the American Civil Liberties Union on a pro bono case involving free speech of the judiciary. Worked on behalf of Justice Richard Sanders ofthe washington State Supreme Cout.

r .
Education

City of Seattle Prosecutor WSBA TAP intem. Successfully conducted four jury trials including jury selection, opening statements, direct testimony, cross examination, objections and responses, evidentiary foundations, jwy instructions, and closing statements.

Doc{or of Jurisprudence
199',7

University of Oregon School ofLaw lntellectual Property Certificate (G.P.A. 3.53) President oflntellectual Property Student Organization Intellectual Property Moot Court Team (Trademarks) o Oxford University - Law Program, Oxford, England

Eugene, OR

. . .

Bachelorof Arb Speech Communication 1994

University of Washi\gton, cum laude

Seattle,

WA

Gold Key Honor Society & National Dean's List Honor Society

617 LEE STREET SEATTLE, 1VA 98109 ^ft 206 29s-2284 E: TIM@MCCORM,\CKLEGAL.COM

Professional

Licensed to Practice in Washington, Oregon, and Idaho. Registered to praciice before the United States Supreme Court, Federal Circuit Court of Appeals, Ninth Circuit Court of Appeals, and Federal Corut for Westem District of Washington. Member of the Washington State Patent Law Association and various state bar associations centered on intellectual property and business issues.

Selected Cases

Appeal Court Opinion: Muis oui v. Maison de Fmnce, 126 Wash.App. 34, 108 P.3d 787 (Wash. App.
2005) (published opinion in trade secret, unfqir competition and defamation case -- won on appeal).

Appeal Coart Opinion: Satava v. Lowry,

323 F.3d 805, 66 U.S.P.O.2d 1206 (g'h Cir. 2003) (copyright case involving lhree-dimensional sculptural art made of blown glass).

Sliptrack Systems, Inc, v, Steeler Metals, [nc,,2004 WL 2578432, United States District Court, N.D. Califomia (graating summary judgmenl ofpatent non-infringement based of file wmpper estoppel).
Davis Inotek v. Rake, Represented plaintiff with nation level business interests in trade secret litigation against former employees. Litigated case to favorable settlement.

v. Washingtion Shoe Company. Represented copyight owner in an infringement action through trial; case involved novel procedure of submitting questions to the United States Copyright Ofiice; liability decided on summaryjudgment; ftial on damages.
Olem Sho Company
Enerlume v. Simcosky. Represented publicly haded company in dispute against renegade blogger; court awarded temporary restraining order and permanent injunction in favor ofmy client.
Quiznos Corporation v. Sauls. Represented defendaut in a domain name dispute involving the domain name www.QuiznoSucks.com in federal bankruptcy court. Issue involved the intersection of First Amendment and fademark law. Litigated case to favorable settlement.

Envision Telephony Inc. v, WFM Solutions. Represented defendants in software case involving copyright issues and fiade secret issues, including the "look and feel" of computer interfaces. Primary
defense involved the doctrine of "functionality" and "interoperability," and many of the issues paralleled those ofthe older lpp le v. Microsoft case. Litigated case to favorable settlement.

StipTrack v. Steeler Industries, Represented defendant and prevailed on summary judgment in patent inftingement case. In a sister case involving the same plaintiff, product, ard patent claim, plaintiff was awarded a seven million dollar judgment after several years of litigation. The summary judgment in our case was used, in part, to overh.rm the seven million dollar judgnent when it was appealed to the United States Federal Circuit. Washington Sho Company v. A2Z. Represented coplright owner in law suit against intinger of copyrighted desigas for multiple infringements. Helped litigate case to settlement. Washington Shoe Company v. Town Shoes. Represented copyright owner in law suit against willful infriager located in Canada for unauthorized use of copyrighted designs; jurisdiction challenged but established in the United States based on willful infringement. Helped litigate case to settlemenl Washington Shoe Company v. Academy Sports. Represented coplright owner in law suit against infringer ofcopyrighted designs for multiple infringements. Helped litigate case to settlement.

Corbis Corporation v. American Matrix Corporation. Represented defendant in copyright


infringement case involving the alleged use of "unlicpnsed" images on a website. One of the primary issues involved defending against the plaintiffs claim for statutory darnages. Litigated case to favorable

v. EVS, Represented defendarct in copyright infiingement case involving the alleged use of "unlicensed" images in catalogue. Case settled afier I filed a summary
settlemetrt and Corbis Corporation

judgment motion.

CRA v. Romio's Pizza

&

Pasta.

Represented owner/franchisor, Romio's Franchise Group, in

6I7 LEE STREET SEATTLE, WA 98I09


T: 206 295-2284 E: TIM@MCCORMACKLEGAL.COM

Landlord/Tenaat con-;t dispute. Client was awarded a substantiar' J.rdgment and attomeys' fees in excess of$50,000.00.

I represented the defendant; successfully the case to favorable settlement. (Temporary Restraining Order) aad litigated opposed TRO
Copynght infringement and trade secret defense case where

Mais oui y. Maison de France. Represented defendants in a case involving the Washinglon State Uniform Trade Secrets Act and business defamation issues between two Frencb,/European importers and

retailers. Conducted two-day trial on client's counterclaims after plaintifls case was
Gamered published appeal decision and victory for client.

dismissed.

Satava v. Lowry. Represented defendant in a copyright case involving three-dimensional sculptual axt made of blown glass. Case succeeded before the Ninth Circuit Court of Appeals, resulting in very important copyright decision frequently cited on behalf of artists and sculptors. Published opinion expards the doctrine that "ideas" cannot be copyrighted when tiose ideas appear in nature and are replicated as such.

Storus Corporation v. Restoration Hardware. Intellectual Property consultant


patenx infringement case involving money clips.

deposed expert in

Foster Manufacturing v. Hepprle. Represented world-class manufactw of shipping container technology as plaintiffs in a case involving the Oregon Uniform Trade Secrets Act and several noncompetition contracts. Successful litigation resulted in judgments against all defendants.

Godinger Silver v. Gadget Uniyerse. Represented defendant in copyright infingement action involving drink dispenser; case involved determining what aspects of copyright were in public domain.
Litigated case to favorable settlement.

Atmost Golf, Inc, v. Cayman Golf, Inc. Represented plaintiff in declaratory patent inAingement cass involving rynthetic golf balls. The teohnology of this case involved special materials used to create a life-like golf ball driving experience where the golf ball only goes a fraction of the distaace when one practices his or her golf swing. The case settled on favorable terms.

publications

Seqttle Post Intelligencer column called "Copyright Cow" January 2011 to Present.
The Trade Secrets oflntellectuql Property:

Presentations

Don't Copy This*

Yideo and on-book

series

2012 to

Present
Technology: How to Use Practice qnd Case Management Software To Boost Productiity and Keep You Out ofTrouble The WSBA SOLO & SMALL FIRM CONFERENCE CLE for the Washington Bar Association (July. 201 2)
The Pros

& Cons of Cloud Computing

Ilre WSBA SOLO &


20t 2)

A panel discussion /rom three dfferent experiencecl viewoinls SMALL FIRM CONFERENCE CLE for the Washington Bar Association (July.

When Rubber Meets the Road

Prqctical Applications and Caveqts qbour " Cloud Computing . CLE


'

for

the lFashington Bar Association (Dec. 20 1 0)


Obqma Hope (May 2010)

Poster Fairey v. Associqted

Press,

Professional Photographer's Association of Seanle

Trade Secret Update


Obqmq Hope Poster

Trode Secrets and lnternet, NALS Greater Seattle, April 2010


v. Associdted Press,

- Fairey

NALS Grealer Seattle, Februqry 2010

Copyright Infringement - I Didn'r Know!, Sedttle Business Magazine (tan.2010) Outlook and your Practice: The Pqth to More E/ficiency and Productivity, CLE Speaker for Washington State Bar Association Law Firm Conferenoe (2009)

Introduction to Intellectual Property, Speaker atlJnlersity of Vy'ashington Jackson School of Business


Q002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012) Introduction to Intelleclual Property, CLE Speaket for National Business Institute (2008)

6I7 LEE STREET SEATTLE, WA 98I09


T. 206 29s-2284 E: TIM@MCCORMACKLEGAL.COM

Trademarks for Everyorre, Idaho State Bar Joumal (August 2008) Trade Secrets For Attomqs,Krn1courrly Bar Association CLE Speaker (2003, 2004,2OO5,2006)

Legal Research For Attomeys - Find on the Net: Advanced Internet Strategies For the Washington Legal Professional, CLE Speaker, National Business Institute (2005) Intellectual Properly Issues For Non-Profits, a Multi-State Accredited Continuing Legal Education
Seminar Sponsored by Washington Law Institute (2001 & 2005)

Intellectual Propertylssaes, Invited Speaker Seattle University Entrepreneu$hip Center (2004)


The Truth About Trqdemarkr, Washington State Bar News (February 2002)

Ruling Throws Wbb Site Terms and Conditions in Doubt!, Puget Sound Business Joumal (October 18,
2001)
The Dao of Intellectual Property Protection: Chinese Trademarks and Other Intellectual Properties, EPulse Magazine, Vol. Ii, Issue 9.0 (July 2001)

Advis@ Clients:

Web Site Developmen /

fsas.t, De Novo, (May/Juae 2001)

Firms Should Protect, Defend and Globalize, Puget Sound Business Joumal (March 2, Z00l)

Legdl Aspects of Starting Your Own Business, a presentalion for SBA Administration / Service Corps of Retired Executives

SCORE (Small Business

Personal

Studied in Japan and United Kingdom. Traveled to over 26 countries around tlte world. Eagle Scout and accomplished high school athlete. National qualifing bodybuilding champion (1992). Directed and

produced award winning documentary

film, Rise N Shine: A Hero's Joumey

(2009)

(www.RiseNShineMovie.com). Enjoys home improvement, movies, computers and technology.

6I7 LEE STREET S EATTLE, WA 98I09


T: 206 295-2284 E: TIM@MCCORMACKLECAL.COM

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3 o.

Exhibit C
'
Enerlume v. Simcosky Motion for Temporary Restraining Order and Brief

SGOPY
IN
TI.ITJ SUPERIOR

COIJRT OF'|I,IE STATE OF WASIIINGTON

IN AND FOR THE COUNTY OII ]'FIURSTON COTJN'|Y

I'IOSI AIvILiRICA CORPORAl'lON.


Clololaclo Corporation
.

NO.

Plaintitl

ll rent

DlLlitl Sincoskv.
Delendant.

MOTION FOR TDMPORARI' IIESTRAINING ORDBR AC,t ;',iS r DEFENDANT BRENT DAVII) SIMCOSKY

tt

I.
l,l
I)

RIILIEF RITQUESTED

laiutil'J'moves the corrt lbr a temporaty restrair.ring order restraining defendanl r. ,lrt: (a) intellbring with plaintilfs contracts or prospective econonric relations;

(b) posting on

r.veb sites, sending

lettels or otherwise cliscr,tssing in any r.vay anv lalse

or.

mislc'acling infbrtrtation about ()r'attOrnc)'s:

pltrintiffor its Board ol'llilectors or its errrployees. endors

!\
;::

(c) doing ally other act or thing calculated to. tending to. or likely to unfhirl_v cotrp )tc

.i

with the plaintilT or to unlairly hann the valne ol'plaintiffs stock. and for an ,rcler'1o
shorv causc r.vhv delcndant should not be so restr.ained during the pendency

2(,

olthis

action.

MO']'ION I]OR'l'EMPORAI{Y RESTITAININC OI{DER ACAINST DEFENDAN T BRENT DAVID SIMCOSKY .I

i\,lccormack Inl!:lcrlual l)ropeltl [-it\


IJusinu .r

i.:lr.

6l7l.cc:',r cll Serltl.' WA 9r i(19


20(,.lli l.llllSR

II. STATIiMIINT
.1.'Ii'ndant tllleirtens Irlrrrn in saying:

OF FACTS

Dcl'enclaut has threatcuecl hodily harm to plaintil'fs Boald ol'Directors. For cxanrple.

"MURPHY AND BOD WILL LEARN THE I{ARD WAY WHAT


BUTTFUCI(ING ISI!I!"
De lenclants

also. lbr cxarnple" tlrreatens ph1,'sical harm to lvlt. Murphl, (breakirrg Iingers

altcl scxual nssault):

-'u\nd

it loolts lilic

IVITJRPIJY intends to givc me the

fingor so I intend to hreak it off tnd

shove it un his DUNIII ASSII!! LOL LOL"

I)eclaration o1'1-inrothy B. IVlcCoruraek, l'hrexts of Phvsical Violence Exhibits 1


shorving statemellts rrade hy delendant).

- ltl (chart
o11"

De1'eflclant threatens

to extort and

blacknrail plaintiff r"rnless plaintilT "buys

clef'elrclant.

Iot'

examplo. cleltndant. rcfbrring

to "custonrers" and threatenilrg to

contact

"c ustol1]ers" \vfote:

"r\r'c investors scared altel seeing

hor.v

MURPIIY scrcwcd CAFEW holders? TIMII IS


arrd

IttINNING OtiTlll lLcgistering rveb sites this lr,eek and putting togcther lettcrs
iu

lornration sl.reets Ibr ntailingl!1"


Lo

Del'cnclant rrses extottion as a meatls

stop his sntear clnrpaign:

"I WILL NOT STOP

TINTII, TIII] \A-A.RRANTS ARIJ I]XTENDED OR tr'M PAID

WFIAT THEIR VALUE WOULD HAVE I}EEN IN SAY 2 Yf,ARS!I:!'

"Well I intencl to rcmind potential custonlers and the contpetition olthat past"
he rvill rvill'osell" thc lvcbsitcs to Murphl'for a cost.
-l'1c1, mayb SOmeboy shoLrld Dcf'enclant also threatens blackmail (asking for $1.50 per expircd rvarrant) by strrring create defamatoty u,ebsites regalding Host, Nlr. Murphy and Board oI Directors. But hc

tell Murphy

I'll scll the iights to my rveb site idea ol'

$1.50 a rvarrant? (Evcn though thcyle giving warrants ar.vay with $1.95 strike price) woulcl go arvay and no,er mention the rvord Enerlumc. Host, MurDhv, ctc againll!

!
:

L,
MO'IION FOR TDIVIPORARY RES I'ItAININC OITDER ACAINSI' DI]IJENDANI' t]IiENT DAVI D SIMCOSKY -2
illccornrack lnlcllcctual I'ropertv l.r$
Businoss Ltw 617 Lee Strccl

Scrtllc. WA
-rO6-1Rl

911

09

I{liSS

Declaration

ol

IinroLhy B. McCoruracl<. Blacknrail

/ Extofiion Exhibits I - 24 (chart shorving

stilicllrin ts rnuclc hr rielerrLllrrrt).


Def'endant specillcally threatens to danrage plaintifT property, including the value
.)

oi'its

slocli. plaintitT's contlactual relations and plaiutifl's prospective economic relatioils.


l)cl'enclant. lor exanrple, thleatens to colltact "distlibukrrs" antl "customers", he tlrreatens,

"Oh, those are the ones

l'll

be emailing

next!l:)"

"LESSON: DON'T FUCK WITH BRENTSKI'S MONEY!!!l!:!:"


",

Det'enclant also threatcns to "scare arvay potentini custonrers"

with email/letter oampaigrr:


correct

lil

"Wilh thc Llteniet aud a Lrusiness listing (r.vhich I did pay 1br) one can e 'lail thc

Li
t. Ll

'lilks

c-asily. Ivly costs is verv little.....what is the costs

to llnerlume when I

scare away

potcnrial cusromer.s u,irh the lhis sMEAR cAlvtPAIGN] !!???"

Also clclcndant threatens to contact plaintills "beta cuslor.ner list".

ll l,
Li,

I lrave a copl' ol'1,our bcta cuslonter list and a list ol attendees liom tlrc tradeslrolvs vou'r,e beeri to. So" they ge1 the l-IOST/Murph1, history as rvell. And here's the great parl ol' the story: I don't have ro LIE or even cmbellish to cleete FEAR. LINCERTAINI'Y and DOLJBT; just a rehash ol fhcts over the last 2 years is painliLl enoughl! l!"
"Oh ancl
Declaration

:l

of 'l'imotlry B. McCornrack. Thleats to

Damage Properly Exhibits

I - 89 (chart
Llnguage

1ll

showing statenlents nrade by defendant); sec also Del'arlation Exhibits

i ,50; Vulgal

Irxhihits I
:;l

47.

Def'endant u,as advised 10 stop my

plaintifls corpomte counsel. i)eclaration o1'linrothy

B. Mc('on.r.racli. Eshibit

2.

Delenclant has r.villfirlly disrcgarded his r.varning.

Without an injunctiou clelenclant will stop at nolhing 1o harm plaintill and its boald
dircctols ancl its crLstomers. clistributors. venclors. potential customers, agents and attonieys.

ol

III. STATEMENT OF THD ISSUE

MOTION I'OR TE]VIPOI{ARY RESTRAININC ORDER A(IAINST DlltrtrNDANT BI{hNl' DAVID SIMCOSKY -3

N4ccolI]rrck lntellccl(al l]ropcrt]


Busincss L,arv

617 Lcc Strcet

Scrttlc. WA 9lt 109 206..i8l.lt888

Whethel deltntlarrt shor.rld be temporarily restrained liom defarning ancl otlrelrvise


lralassing

plaintill'until the matlel can be lreald at a ptelintinary iniunction hearing rvhen

delbndant has overtly tlueatened to harnr the business rclationships ol'plaintitf and is cloirrg so for
an aclur ittedly imploper purpose?

IV. EVIDENCE ITELIED UPON This ntotion is based on the attached dcclaration

ol plaintiffs

Counsel, Tinothy B.

lvlc('ormack aucl tlre atlached exiribits ancl the declaration of Mike Malota.
.r.l

V. LEGAL AUTHORITY
'[ hc lbllo."ving legal authority is applicable to

tu

plaintifls motion.

ri
_t,l

Goncral Authority lbr TRO

1l--

'fhe issuance ol a restraining older or plelirrinary injunction" and its scope. is u,ithin the
broacl discrction

lt) I'

ol' the court tt.r [ashion zr rcnrecly appropriate tr: the palticular facts and
oi
tlre casc.. LenholJ

circrrmstanoes as r,vcll as the equities

t. Birclt Buy Reol [,.sttte.22

\I'n.App.

t;
t

70.74-75.5ti7 P.2d 1087, l0c)0 (1978). Rtqterr


(
1

Gunter,3l Wn.App.27,30.640 P.2d 36.38

9ti2); ,rce -fhe

a/.rr.r

RCW 7 .40.020 and CR 65(b).

lhctors consiclered include the chalacter of the intcrcst to be protected, the adequacy
rer.nedies. possible rnisconduct b1, the opposing pertv. the

:1
2.,t

of injunctive reliel relativc to other

lclativc hardship to cither part1, il'the reliel is granted or clenied. the intelests oI other partics. and
llre public. arrcl tire practicalit_v', o1'enfbrcing it. Lanhof/ v. Birch Bul,Real Estota.22 Wn.App.70,

)" t,

::.1

74-75.587 P.2d 1087, 1090- 91 (1978).

A temporaly restrairring older ol plelinrirrarv injunction may only be granted upon lll'oof
!:t that the applicant has a clear legal or eqLritable right and a i,l,ell glounded fear of inrnrediate
invasiorl 01'that righl. and that the acts complained o1'nrust be causing or will caltse the applicant
i\4OI'lON I1)R
1 l-TM

/\C.\ lNSl' DIIFIINDANT

POIU\RY RLS I IIAIN INC ORDEII. Ll R ENT ll^ Vl D SI MCOSKY

lvlccornrnck lntcllectual Propcrtl l.irrr


-.1
(r

i]rrsiness l. \\ l7 Lec Strcct

Scatllc. W,,\ 93 I09


206.

iti Ltil(,i8

&ctual and substantial in jury. E..q., lstltrtritut S.

S Co. y. Ncttionul l'[urine

Eng. l]anct'. ,,1.s:;oc.,41

Wn.2d 106. 117-18.241 P.2d 549.556 (1952).


'I'he

courl in its clisclelion nral,rvaive the tiling ofa Lrond or the posting ofsecuritv, RCW

26.0q.060(5 ).lvhich it normallv does.

'l'enrporary restraining orders ancl prelin.rinary injunctions rnay be obtained wilhout notice

to tlre opposing party. but only uncler limited circumstances C.'ornlnr: & Sons, htc. v. fufcl\rutnuru.

tl Wn.App.441.443" 506 P.2d 1328, Li30- 3l (1973) (1'llO without notice is oka,v when it
shor.r,n
LC

is

to tlle court by specific and complehensive lactual allegation that there is a critical and

irnrnediate need lbr the pl'otection of persons or propcrty).

1i
12.

Tvnes of Conduct that Can Be Enioined

Il
Irl
l.-'

Ail

tvpes o1'misconduct nray be enjoined, including:

l.'[irlls. Bra'k]anar t llctuil (llerks Llnion,53 Wn.2d 17, 19.330 P.2d 314.315
(restraining tolts).

(1958)

Ir"

2. De(iulatoly. disparaging. or libelous statemeuts. In ra !\..lutiage of Olson.69 Wn.App.

621.850
IH

P.2c1 527 (19g3)(father enioined

liom niaking dispalaging tenrali(s about mother in

prcsence ol theil children: court re.iected argument tl-rat restraining orcler violated fhther's I'reeclom

of speech); Dickson
?1)

Dickson, 12 Wash.App. 18i, 529 P.2d 476, certiorar; clenied 96 S.Ct. 53,

423 U.S. 832. 46 L.Ed.2cl 49. rehearing danietl 96 S.Ct. 406.423 tJ.S. 991,46 L.Ed.2d 311.

2t

rcviev deniar.l (Wash. 1974) (hrjunctivc relief ll oiri defamatory or libelous conduct is applicable
when there is a recurling type iuvasion. the need lor multiple damage actions to asscrt tlte
clclcnclant's lights. an imnrinent tlrrcat olcontinlred ernotional ancl physical ttaunra, and ditlicLtlty

t.i Larv of Defalnrtion


lJncler Washington law one is liatrle fbL any defanratory statements that are untrue. When

the untrue stalerrcnts are clirecteci at sorneone's trade or business then one does not even need to
MOI'ION FOR TEMPOIIARY RI'STRAININC ORDIR AGAINS-I I)I]F EN DANT B RT..:NI' DAV ID SI ]\4COSKY .5
N'lccormilck Irrtellectual l'rope()' l-ar\ []usincss Las 617 I-c. Slreet Scritle- W.,\ 91i 109
206.31.l1 .l{,1fi8

ptovc (lanrages. In Washington State. the tlanrages are presuntccl. Sae c.g., ivkri:on rla Frunce,

Ltd. r. l,ldi.t Otri!, lnc.. 126 Wash. App. 34, 108 P.3d 787 (Wash. App. 2005) (holding that
pl'cstlrlled damages Lo a pdvate plaintifT
available undel Washington larv)
i
"l

lbr defamation

r,vithout

ploof of actual malicc

are

Defiulation is not protected by the Filst Amendment. Bcauharnuis

t. lllinois.

:143 U.S.

250, 72 S.Ct. 725.96 l,.Ed.glq (1951). ("Libelous utterances not being


constitntionally protected speech,

."virl.rin thc' area

ol

it is umecessary, either lor us or fbr the State courts. to

consider the issues betind the plrrase 'clear alld present danger.' Certainly no one rvould contend ti,

that obscene speech" lbr exatnple. nray be punished only upon a showitlg of such circrunstances.

ll

Litrel. as,uve hayc seen. is in the sante class."): hr re Man'iage of Olson.69 Wn.App, 621,850
}'].2d 527

(l99iXfhthcr enjoinecl li'om making disparaging remarks about mother in

presence

of

tircir cliilclrcnl courl re.iected algunrcnt that rcstraining order violnted father's fi'eedom olspeech).

Given thc crcdible thlcats of phvsicral violence to persons and thc credible threats to
t.j
t,a

clantagc property (incJLrcling defamation peL se and interference with contracts and prospective economic telations) ar.rd the lotal lack ofany possible legal delense and tlre irreversible harnr that

i1
1,3

r.vill clone

if

deltndant is allolved to rampage and givcn the I'act that clcl'endant rvill sufl.cr tro

harm fi'om being restrained it is proper and necessary that thc court issue the recJuested telrporary
restrain ing olclcr.

VI. PROPOSEI) OIIDER


A proposed orclel granting the relief requested accompanies this nrotion.

Datcd this
,r4

day

ol

, 1007.

i: t:

BY: Timothy B. McCormack, WSBA # 28074


IVIOl'ION FOR TEMPORARY RESTITAININC ORDER

A(;AIN51'DEFENDANT BITENT DAVID SiMCOSKY -6

l\,lcCormack Inlellcqtrlitl Propcrt) I Ilusincss [,i!$ 617 t.ce Strect Scanlc. WA 981{)9
206..',r81 ,8{t88

ir\

!
,)

Mccornlack Intellectual Properly Law Business Law


617 Lee St. Seattle, WA 98109 p. 206.381.8888/ l'. 206.381-1988

3
4

5 6

u:gL.VeCiELnstit.crqL$rr

]
3 9

t.l

i1
12 13

i4
:15

1f.

i1
l!i
19
!10

22
2

-4,

24

il6

::-jri

MOTION I:OR TEMPORARY RESTRAINING ORDER

Mccormack Intellectual Propen], Lr\r


Business Law 7 Lec StrEet Seattle. WA 98109
61

ACAINST DI]FENDANT BRENT DAVID SIMCOSKY.T

206.381.8888

Exhibit D
Enerlume v. Simcosky Permanent Stipulated lnjunction

siP
3

I I 2007

BETTY J. GOIILD

5
6

I
9

IN THE SUPERIOR COURT OF THE STATE OF WASLIINGTON


IN AND }-OR TI.IE COUNTY OF TFIURS'|ON COLTNTY

i0
11 12

HOST AMERICT\ CORPORA'IION, a Colorado Corporatio[ ,

NO.07-2-01732-5 P-EIWIANENT STIPULATED IN.IUNCTION

Plaintiff,
13

1{
15 16

BRENT DAVID SIMCOSKY AI(A DAVID BRENT SIMCOSKY,


Defendant.

1-l
1B

19
2A

llhe parties to lhis action IIEREBY STIPLq-ATE to the following Permanent Injunction
against defendant.

2t
22

D. Brent Simcosky
g
t r- it
-t

23
24
_",

25

AMERICA CORPORATION
By its:

Date

:6

PERMANONT STIPULATT,D INJUNCTION

.I

lvl.Cormack

In tdl leclu al Propert)' l ,a$ Busincss L,aF PS 617 Lee Slrcet Scittle, WA 98109

206.3R r.8888

20{,.illl.1938

Based on the consent ofthe parties and the court,s

olr.t goodjudgmen! il is Ordered:

1.

Defendant and any officers, agents, sewalts, empioyees, and attorneys, and all other petsons in active concert and participation with defendant who receive actual notice of this order, are enjoined from: interfering with plainliffs contracts or prospective economic relations; posting on web sites, sending letters or otherwise discussing in any way

information about plaintiff or its Board of Directors or its employees.


vendors, channel partners or attomeys;

c.
12

doing any other act or thing caiculated to, rending to, or likely to unfairly compete l\,ith the plaintiff or to unf'airly liarm the value of plaintiff s stock;

13

2. Defendant will agree never to mention HOST again, publically, to anyone ever again outside his own attomeys, unless by court order; Defendant rvill noi appear or otJrerwise participate in any message boards or discussion foruns that are affiliated with or that specificaily discuss HOS'I or its affiliates or successors oL assisns.

),

Defendant agrees to sign a Clarjfication Letter regarding misrepresentation of specific facts about the plaintiff ar:d any iniemperate or offensive communications for which he was responsible in the form attached to the parties settlement agreement The Ietter

19
2C
21

will be

sent to David Murphy, the Host America Board of Directors, Channei Partners; plaintiff may use or discuss the letter with alyone in its effort ro mitigate any damage caused by defendant or as might othenvise be required by law.
4. Each side r.vill bear their own costs and attomeys, fees, except as noted.

).
24

any judgment that mighl be

The case wil.l be removed from the court's docket and be considered dismissed ancl adjudicated but the courr wili retain jurisdiction for enforcement ofthis injunction and.

for
25

plaintiffwill retain

filed pursrlant to the parties settlemeflt agreement; counsel subpoena power for compliance purposes;
a good cause showing to rhe court, the {bllorving

26

6.

If this injunction is violated, upon

sanctions against the defendant r,vill be imposed:


PERlVIANENT STIPULATED TNIUNCTION -2

ivlccormack Intcllectual Properq, Lsrv Business Lirlv PS


617 Lee Street Seanle, WA 98109

206.18t.8888

206.i8r. r988

2
3

Payment of attorneys' fees and costs for any follow-up enforcement

5 6
,7

aclion; Surrender ofany and all personal computers; c. Agreement to rlot use the Intemet for t0 years, unless for work; and d. Damages in the amount of$250,000 and $25,000 in attomeys' fees (in
b.

form of consent judgment).

I
9

This order shall go into effect immediately and shalt remain in effecL until funhet order this Court.

ol

10
11

ANNE HIRSCH
SIIPERIOR COT]RT ruDGE

t2
13
1d

Presented by:

15

!6
r1
18

Timothy B. McCormack, WSBA # 28074 McCormack lntellectual property Law


Business Law PS 617 Lee St. Seattle, WA 98109

Date

19
2_A

p. 206.38 1.8888/ 1'. 206.38 1-1988 tim@McCormacklesal. com

2L

23
24

D. Brent Simcosky

Date

25 26
21
2A

PERMANENT STIPULATED

-3

Mccormack Intellcctual Propcty Law


Business Lsrv PS

'VUNCTION

617 Lee Street

seqttlg wA 98109
206.381.8888

Exhibit E
Attorney Ethics Complaint Filed Against Matthew Chan's Business Partner Oscar Michelen

mEcormack
lniellectual Property Law
Business Law ps
617 Lee Sueet Seatde,

WA 98109 USA

p.206.381.8888

r.206.381.1988

tim@McCormackl-egal.com

Timothy B. McCormack Attomey at Law


December

ll,2012

Via Federal Express

Mr. Jorge Dopico, Esq., Chief Counsel Departmental Disciplinary Committee Supreme Court, Appellate Division
First Judicial Deparhnent 61 Broadway, 2nd Floor New York, New York 10006 Telephone: (2 I 2) 401 -0800

R-E:

Complaint Against New York Attorney Oscar Michelen For Violations Of Rules of Professional Conduct

Dear Mr. Dopico, Enclosed you will find a 33 page complaint and 100 supporting exhibits submitted against New York attomey Oscar Michelen for his numerous violations of the Rules of Professional Conduct. Mr. Michelen's grievous actions are summarized below and detailed in the enclosed complaint.

What follows is an executive sumrnary of the complaint, including its content and organization.

I. Summary Of Mr. Michelen's Ethical Violations


Attomey Oscar Michelen operates a website named Extortion Letter Info, located at the web
address www.extortionletterinfo.com ("Extortionletterinfo.com"), through his business parbrership with

a non-attomey named Matthew Chan. Mr. Michelen has egregiously violated a number of Rules of Professional Conduct as well as state and federal criminal and civil cyberstalking statutes through his behavior on Extortionletterinfo.com.
The ostensible purpose of Mr. Michelen's website is to market himself to recipients of copyright infringement demand letters. Mr. Michelen and Mr. Chan hold themselves out under the fictitious firm name "ELI Defense Team" and use the website to advertise and solicit clients for their legal Through his website, Mr. Michelen is believed to have gamered over 850 new clients and over
Page 1 of 3

services. $150,000

December 11, 2012


Page 2

lTlctiofmaCk
lntellectual Property Law
Business Law ps

in revenue.r Mr. Chan, a non-attomey and Mr. Michelen's stated "parhrer in crime," also provides legal consultation services for a fee and receives financial benefits from the website in the form of community donations and conkibutions from Mr. Michelen's law firm.

Mr. Michelen and Mr. Chan detail and advocate

a variety of harmful and dangerous nonJegal

recourse strategies on their website, including avoidance and delay tactics, obfuscation of evidence, and i1lega1 recording ofphone calls. Extortionletterinfo.com also encourages letter recipients to file frivolous bar afld attomey general complaints against opposing parties.

Mr. Michelen and Mr. Chan condone and endorse hateflrl smear campaigns intended to force opposing parties to withdraw their legitimate legal claims. Mr. Michelen and Mr. Chan make these attacks against individuals directly and often incorporate aspects of that individual's gender, race, religion, or sexual orientation. The purpose of these attacks is "revenge," "retaliatiog" aad "payback" against copyright holders and enforcers. Mr. Michelen and Mr. Chan utilize search engine optimization to maximize the visibility of these hateful and defamatory attacks to a worldwide audience, including judges, clients, and colleagues. This optimized content fimnels new clients towards the paid services.
The Extortionletterinfo.com community, as moderated by Mr. Michelen, threatens physical
action against opposing parties. Extortionletterinfo.com often posts the business and home addresses of opposing parties, and community members discuss visiting opposing counsel and businesses' physical locations to seek revenge in person.

Although Mr. Michelen's peers have notified him on numerous occasions of his unethical actions, Mr. Michelen believes he is irreproachable because his behavior occurs on the Intemet. Mr. Michelen and Mr. Chan promise retaliation against anyone who attempts to question or impede their unethical activities.
Given the current pattems of escalation, serious physical harm seems likely if Mr. Michelen and his website are allowed to continue unchecked.. The New York Disciplinary Committee must take immediate action to cease Mr. Michelen's activities and prevent further harm.

II. Organization of Complaint & Exhibits


This complaint consists of a 33 page document outlining and detailing the nature of Mr. Michelen's unethical behavior. In support of the allegations therein we submit 100 exhibits, including screen captures of Extortionletterinfo.com and other relevant websites, traffcriptions ofvideo interviews and dialogues, copies of correspondence, and other documents. Within the complaint, at the end of a sentence or paragraph exhibits are cited in support of that section's arguments. The exhibits themselves are divided into seven sections, A through G, supporting that respective overarching argument of the complaint. Each individual exhibit is numbered from 1 to

'The $150,000 figure is a conservative estimate

based on available facts, but actual revenue is likely much higher.


Page 2

ol

December
Page 3

1, 2012

m-c\rofmaCk
lntellectra! Proporty Law
Business Law ps

100. Within the exhibits, specific quotations or points of interests are highlighted, while the surrounding context is preserved.

To navigate the exhibit documents, use the sidebar bookmarks of the digital .pdf file or the numbered 1-100 exhibit tabs of the physical hard copy. ffi e the exhibits are supplementary to the complaint, they may also be viewed independently from the complaint. The examples of misconduct in the complaint and the supporting exhibits are illuskative, but far from exhaustive. Additional
documentation can be provided upon request.

If you have questions or would like to discuss, please do not hesitate to contact my office. I look forward to your assistance in this matter.
Sincerely,

Timothy B. McCormack
tim@mccormac kl egal.
c o

Enclosure

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THE SUPERIOR COURT FOR THE COUNTY OF MUSCOGEE STATE OF GEORGIA ----------------------------------------------------------------------------x LINDA ELLIS, Petitioner, Civil Action File No.: SU13dm409 -againstAssigned Judge: MATTHEW CHAN, Hon. Frank J. Jordan, Jr. Respondent ----------------------------------------------------------------------------x

RESPONDENT MATTHEW CHANS MEMORANDUM OF LAW IN OPPOSITION TO PETITION FOR AN ORDER OF PROTECTION

Respectfully Submitted, Matthew Chan Respondent PRO SE 1639 Bradley Park Dr. #500 PMB 110 762-359-0425

TABLE OF CONTENTS 1. Table of Authorities . 2. Preliminary Statement . 3. Statement of Facts .. 4. Argument


POINT I THE CHARGES BROUGHT BY PETITIONER ARE INAPPROPRIATE UNER THE OCGA 16-5-90(a) and 94(d) POINT II . PETITIONERS ALLEGATIONS AND RESPONDENTS CONDUCT DO NOT CONSTITUTE THE ELEMENTS OF THE CHARGE OF STALKING AS RESPONDENT DID NOT CONTACT PETITIONER AND DID NOT FOLLOW OR PLACE HER UNDER SURVEILLANCE POINT III

3 5 5 21 23

24

32

RESPONDENTS CONDUCT INCLUDING THE POSTING OF PETITIONERS HOME ADDRESS IS CONSTITUTIONALLY PROTECTED SPEECH AND AS SUCH IS EXEMPT FROM THE STATUTES REACH POINT IV ..

38

RESPONDENT MOVES THIS COURT FOR SANCTIONS AGAINST PETITIONER FOR FILING A PETITION WITHOUT SUBSTANTIAL JUSTIFICATION PURSUANT TO OCGA 9-15-14

5. Summary and Conclusion ..

42

TABLE OF AUTHORITIES Cases


Autry v. State, 306 Ga.App. 125 (2010)............................................................................................... 27 Bankston v. Warbington, 2013 WL617076 (2013)............................................................................. 40 Bartnicki v. Vopper, 532 U.S. 514 (2001)............................................................................................. 32 Brandenburg v, Ohio, 395 U.S. 444, 447 (1969)................................................................................. 32 Branzburg v. Hayes, 408 U.S. 665 (1972)........................................................................................... 34 Brunswick Floor, Inc. v. Carter, 199 Ga.App. 110 (1991)................................................................... 40 Carafano v. Metrosplash.com Inc. 207 F.Supp 1055 (Cent. Dist.Ca. 2002)...................................35 Collins v. Bazan, 256 Ga.App. 164 (Ga.Ct. of App. 2002)..................................................................37 Executive Investments, LLC v. Martin Bros. Investments, LLC, 309 Ga. App. 279, 288 (2011).40 Gertz v. Robert Welch, Inc., 418 U.S. 373 (1974)............................................................................... 35 Gibson v. Southern General Ins. Co., 199 Ga. Ap..776 (1991)...........................................................38 Hess v. Indiana, 414 U.S. 105 (1973).................................................................................................... 32 In the Interest of C.C., 280 Ga.App. 590, 592(1)(2006).................................................................... 30 Johnson v. State, 264 Ga. 590 (1994)................................................................................................... 25 Krepps v. State, 301 Ga.App. 328, 330(2), (2009)............................................................................. 26 Lovell v. City of Griffin, 303 U.S. 444, 452 (1935).............................................................................. 34 Marks v. State, 306 Ga. App.824 (2010).............................................................................................. 25 NAACP v. Claiborne Hardware, 458 U.S. 886 (1982)....................................................................... 33 Pilcher v. Stribling, 278 Ga. App. 889 (2006)..................................................................................... 26 Reno v. ACLU, 521 U.S. 844 (1997)...................................................................................................... 31 Sinclair v. Daly, 295 Ga.App. 613, 614 (2009).................................................................................... 23 State v. Burke,267 Ga. 377 (2010),........................................................................................................ 26 3

State v. Miller, 260 Ga. 669, 671 (1990)............................................................................................... 36 Statesboro Pub. Co. Inc. v. City of Sylvania, 271 Ga. 92, 95 (1999)................................................36 Summers v. Bailey, 55 F.3d 1564, 1566 (11th Cir. 1995)...................................................................... 27 Wright v. State, 292 Ga. App. 673, 676 (2008)................................................................................... 23

Statutes
OCGA 9-15-14........................................................................................................................................37 OCGA 16-5-90(a)(1).................................................................................................................................24 OCGA 16-5-92........................................................................................................................................31 OCGA 16-5-94(d) ....................................................................................................................................23 OCGA 5157 (3) and (4).................................................................................................................... 36

Treatises
American Heritage Dictionary (3d ed. 1992)....................................................................................... 25 Review of Selected 1998 Georgia Legislation, 15 Ga. St. U. L. Rev. 62 (Fall 1998). ........................29

Constitutional Provisions
Constitution of the State of Georgia of 1983, art. I, sec. I, para. V....................................................36 United States Constitution, Amendment 1 .......................................................................................... 31

Other Authorities
www.extortionletterinfo.com; www.eff.org/issues/copyright-trolls................................................34 www.eff.org/issues/copyright-trolls;.................................................................................................... 34 www.fightcopyrighttrolls.com;............................................................................................................... 34 www.techdirt.com/blog/?tag=copyright+trolls.................................................................................. 34

Preliminary Statement This Memorandum of Law is submitted in opposition to the petition of Linda Ellis (Petitioner) which seeks an Order of Protection against Matthew Chan (Respondent) pursuant to Georgia OCGA 16-5-90. Because Respondent has not engaged in any of the conduct prohibited under the statute and because the statute specifically exempts the Constitutionally-protected activity in which the Respondent was engaged, Respondent asks the court to deny the petition and order such other and further relief as the court deems just and proper.

Statement of Facts Introduction This petition arises out a commercial, business matter between the parties. The parties have never met; have never had any form of personal relationship; are not related; do not live in the same community; have never corresponded with each other; and have never even so much as spoken over the phone with each other. This petition was brought because of some Internet discussion forum posts on a website operated by Respondent known as ExtortionLetterInfo.com (ELI) which were critical of Petitioners attempts and methods to enforce her copyright in a poem she wrote called The Dash. Some of those posts were made by Respondent and some were made by other users of the site. Respondent has never contacted or followed Petitioner nor has Respondent ever placed Petitioner under surveillance.

Petitioner Petitioner Linda Ellis is the author of a poem called The Dash which she copyrighted with the Library of Congress in 1996. The poem is about a person who speaks at a funeral and comments on how the important part of the tombstone is not the dates which the person was born and died, but the life they lived in between which is represented by the dash between the dates. The poem is widely known and has made Petitioner a well-known public figure as both a poet, author, and an inspirational speaker. (See, Lindaellis.net, Petitioners website). The site invites people to recite the poem at funerals and other events but not re-post or re-print it without permission. When people do repost it or reprint it without permission, a different side of petitioner emerges. Petitioner is engaged in an aggressive, hard-line method of extracting large sums of money for infringement of her poem to any entity that publishes it on their website in any way. She often demands $7,500.00 for a single infringement and recently demanded as much as $100,000.00 from an alleged infringer. A small sample of some her letter recipients are:
ATL Foundation Turning Point of Tampa, Inc. Sermon Central Daniel D. Meyer / Christ Church of Oak Brook First Baptist Church, Olds Alabama Formal Times Newsletter South Dakota Chapter American Society Farm Managers Green Valley Villas West, Green Valley Arizona Garden Court Real Estate Management Corporation Bookkeeping 411 USA Triathlon Mideast Region

The Magazine of United Methodist Men IOWA State USBC Womens Bowling Association Bourbon Garden Court Marco Island Civic Association Main Street Baptist Church Neidlinger Garden Court News Argos Garden Court News Rubel Shelly All Saints Church, Rome Italy Texas A&M University User Talk Helium.com Kemper Mill Civic Association Git Hub TARA Association Waukegan Public Schools Gerry Spence Attorney Childrens Lit The Helixx Group The Hindu Mount Pleasant Memorials Character Education Baylor University Seminary Neighborhood Link David E. Smith Publications Church of God, In Truth Yasni, UK Willet Elementary School PTA The Northeastern Pennsylvania Synod Autism Resource Central

First Baptist Church St. Clair, Missouri Marco Island Civic Association United Methodist Men Community Partnerships with Youth, Inc. FaithSite.com Southern Plaza Homeowners Association The Hindu The Resilient Journey Waukegan Public School District 60 Real Estate Management Corporation United States Judo Association

1Petitioners

copyright infringement program is likely a great source of revenue to

Petitioner. The letters are sent through Petitioners company Lindas Lyrics LLC. A copy of one such letter (name of the recipient has been redacted) is annexed as Exhibit A. Respondent Respondent Matthew Chan is a Georgia businessman specializing in real estate. In addition to his real estate management business, Respondent is an author, independent book publisher, blogger, web publisher, and web broadcaster. In 2008, after he received a letter from digital image warehouse, Getty Images, demanding $1,300 for Respondents alleged use, he founded the ELI website to help other recipients of these letters gain information about the subject and strategize on how to combat the claims made by Getty and other digital image companies that soon followed Gettys

Gettysprogramhasreceivedwidenoticeandmuchnegativepublicityontheinternetandinnewspapers.In factGettysWikipediapagereferencesGettysControversialeffortstoenforcecopyright. http://en.wikipedia.org/wiki/Getty_Images


1

program.1 The ELI site is now the foremost source for information on Getty Images and digital image litigation receiving nearly ten thousand unique visitors per month to its pages. In 2012, after receiving reliable information from April Brown, businesswoman from Seattle, Washington, who received the Lindas Lyrics letter, emails, and complaints from many other letter recipient describing Respondents heavy-handed and overbearing attempts to collect money for minimal and one-time infringements of The Dash, Respondent added a new discussion forum to the ELI website: Linda Ellis/Lindas Lyrics/Dash Poem Forum. Like the other discussion forums on the ELI site, this discussion forum allows people to post anonymously and openly describe their experiences dealing with the issue. The discussion forum is popular and is now six (6) pages deep on the ELI site with about 170 different and separate topics housing 1,900 individual posts. The discussion forum continues to grow steadily in content and popularity. Certainly, as with many internet sites, some of the posts can be harsh and critical of Petitioner, mocking and satirizing her enforcement efforts and her ability as a poet, but many of them also detail how Petitioner has harassed, manipulated, and frightened individuals who posted the poem on their familys memorial site after the death of loved one. There is also legal discussion as to the merits and propriety of the content of her enforcement letters and how to defend against the enforcement letters. ELIs issues with Petitioners infringement program do not question Petitioners right to enforce her copyright in her intellectual property. It is that, like Getty Images, Petitioner makes people believe they will be sued for and exposed to hundreds of thousands of dollars in civil damages; that Petitioner overstates and exaggerates the
9

amount of damages that the alleged infringement would be valued by a court; and that Petitioner is indiscriminate in whom is aggressively pursued, treating an individual who posted the poem for a few days on her husbands memorial site the same as someone who is selling copies of her poem online. Reading even a handful of the posts on the Linda Ellis/Lindas Lyrics/Dash Poem Forum, would show that many folks are truly frightened into believing they will lose their homes; be hit with federal litigation and have to declare bankruptcy as result of posting Petitioners poem.2 The ELI site and the users who post it also make comments and express opinions about the apparent hypocrisy between the values stated in Petitioners poem and the methods by which she enforces her copyright in the work. Respondents site offers information and guidance on this and many other copyright issues and presents an obstacle to Petitioners infringement collection practice and business model. The facts above and those adduced at the upcoming hearing will show that no threats of physical harm were made against Petitioner and that Respondent was engaged in Constitutionally-protected activity. Petitioners prior attempts to derail ELI This baseless petition presently before the court is just the latest strategy by Petitioner to stop ELI from providing advice and commenting negatively about her business

Forexample,PetitionerinherlettersstatesthatitisinevitablethatPetitionerwillhavetoexpendlegalfeesto combatthisinfringementandthatshehasrecentlysuedinFederalCourtandbeenawarded$150,000in statutorydamages(themaximumallowedbylaw)pluslegalfees.Infact,however,anationalPACERsearch revealsthatPetitionerhasonlysuedintwice,bothtimesintheNorthernDistrictofGeorgia:In2006(Docketno. 06cv02170Ellisv.Fischer).There,defendantproducedandsoldCDswhichincludedasongcontainingTheDashs lyricswithoutpermission.Thecasequicklysettledforanundisclosedamount;andin2003(DocketNo.03cv 03086,Ellisv.Aronson)whereshewasawardedadefaultjudgmentwhendefendantsanswerwasstrickenfor failuretocomplywithdiscovery.ThedefendanttherepublishedwithoutpermissionabookcalledTheDash,which containedPetitionersentirepoemandwasabouttosellanddistributeasecondbookDashingThroughYour Diet.Afterentryofadefaultjudgmentthecourtindeedawardedthemaximumstatutorypenaltybutthatcaseis notrecentandinnowayafairexampleofthetypeofinfringementmostletterrecipientsengagedin.Bothof thesecasesfieldinvolvedserialinfringerswhoweremakingmoneyoffofthePetitionerspoem.
2

10

methods. On June 6, 2012, an inappropriate DMCA Copyright Takedown complaint was made to Scribd by John W. Jolin (Ellis employee/contractor) regarding a legitimately attained document Chan received and posted. After contesting that complaint, Chan was notified the document was fully restored on June 27, 2012 with no incident. On January 17, 2013, Chan received an Abuse notice of Ellis complaint (death threats, posting of personal info) from Eapps web host. Chan voluntary shut down the ELI Forums and moved the ELI website to RK web host provider. Eapps consequently terminated the 8-year business relationship after the Ellis complaint. On February 6, 2013, Ellis submits a similar complaint to RK web host provider regarding ELI forum content. In this case, the web host provider defended ELI right to free speech and rightfully denies Ellis complaint. Posts about which Petitioner complains While the Petition does not expressly state the alleged threats made by Respondent to Petitioner for which she seeks the drastic remedy of an Order of Protection, the Petition does allege that Respondent: posted threats of death, posted home address, and family and personal info with statements such as: We are coming after you Boasts about driving by subdivision and photos of my home and daughters employment. Respondent will now discuss the eight posts that he found (among the hundreds of post about Petitioner on ELI) which he believes are the ones to which Petitioner alleges and of which she complains.

Post 1: ELI Hired by Author to Battle $100K Copyright Extortionist, Linda Ellis

11

This post is dated December 12, 2012 at 10:31PM. In summary it informs the forum that Respondent has been hired to combat Team Ellis against a $100,000 demand in a copyright infringement case. It includes in its early paragraphs rhetoric about past successes of ELI using the online forum and publicly available information. But it makes clear that it is a battle that is going to take place on a PR/online battlefront first and which then might escalate to a legal battlefront. Respondent then goes on to post: I want to point out that, at all times, we won't be in engaging in any criminal behavior but beyond
that, anything goes, as far as I am concerned . . . If that makes some people cringe, so be it. If there is collateral damage that goes beyond Linda that spills over to her friends, family, attorneys, and business associates, so be it.

Clearly, any collateral damage would be that which is covered by the PR/online battlefront and that context governs the rest of the post. Respondent goes on to state that his purpose is to help those who are in a fight with Petitioner over what he and many others perceive as being an overbearing, intimidating campaign to get more money for an alleged infringement of her poem than is legally proper:
As much as I despise the idea of Team Ellis making money through their extortion letter campaign, I am more disgusted by those victims that won't speak out or stand up against a weak opponent such as Team Ellis. Having said that, those who are willing to step up, step out, and pay me to help them in their fight, I am a very "effective" ally. On top of all this, if someone wants to pay me to support a cause I already believe in? It's a no-brainer for me. They get premium support and my full attention to their case plain and simple.

His post goes on to state his Goals:


WHAT ARE THE GOALS HERE? One goal for my writing this piece is to let the world-at-large that ELI is now for hire to hit back and help get revenge against those that legally threaten them. Another goal is to remind Team Linda

12

know, they have a lot of people who don't like them watching and monitoring them. They constantly feed April Brown and ELI. We talk and share information. Another goal is to further educate people that many problems can be "resolved" without expensive attorneys and going down a road that favors their better-financed opponents. Extorting someone for $100K is a huge game-changer that has compelled my client to stand up and do something radically different and not play defense anymore. It is now time to hit back and hit back very hard where it hurts. I live in Georgia and I go to Atlanta very frequently. Marietta was my old stomping grounds. I have a video camera. I have access to a lot of financial and real estate records. I know how to track down people. I have a talent for publishing information that gets picked up by search engines. I have a freaky photographer friend from Florida with very expensive camera lenses that is just aching to visit me in Georgia and join me in a tour of Marietta with a video camera

While this post does mention that he has a video camera, it does not mention what his intent is with respect to the video camera and there is no evidence that he acted on this intent. He talks mostly about looking for information from financial and real estate records. That is made clear further in the post by a comment made by Respondent on December 14, 2012:
Just a quick update, Robert and I have had some discussions. There is a LOT of information that can be found on both Linda and Jackass Jolin [Petitioners copyright lawyer is John Jolin] even without paid database services.

At most, this post shows an intention to possibly do an investigation into Petitioner using free public records, though the details are not actually expressed.

Post 2: The $100K Bryan Baer / Linda Ellis Lawyer Extortion Letter! This post was made on the ELI forum on December 14 2012 at 12:19AM

13

The main theme of this post is the infringement claim letter sent by Petitioners lawyer, Bryan Baer, demanding $100,000 for a single use of the Dash poem. In his initial post discussing what would happen if the recipient paid Petitioner $10K Respondent states:
I want to remind everyone that a typical split is 60/40 with 40% going to the attorney. So if the extortion letter recipients even pay $10K, that is an easy $4K going to the attorney for that one letter and Linda gets to rape someone in the tailpipe without vaseline for $6K which would easily pay 4-6 months worth of her mortgage payments at Roswell Downs.

That prompts another ELI user to post Petitioners actual address and his belief that a business is being run out of her address:
I guess you are referring to this house located at 3349 PREAKNESS CT MARIETTA, GA 30062-5553 https://maps.google.com/maps?q=3349+PREAKNESS+CT+MARIETTA,+GA+300625553&hl=en&ll=33.979097,-84.452827&spn=0.011939,0.022724&sll=26.841821,80.163269&sspn=0.205548,0.363579&t=h&hnear=3349+Preakness+Ct,+Marietta,+Cobb,+Georgia+ 30062&z=16&layer=c&cbll=33.97984,84.454176&panoid=frtJcd4qXvyhKXPNfLwLaA&cbp=12,9.94,,0,0 and why in the world would a KinderCare center have the same address...is she running a daycare there as well...hmmm pet rescue/rehab, nursing home and daycare center...along with the trolling operation.. KINDERCARE LEARNING CENTERS INC 3349 PREAKNESS CT MARIETTA, GA 30062-5553

This information was gleaned from the Google search engine and public records. There is no talk of going to the premises or of doing surveillance there. Recently a newspaper in NY published the addresses of gun owners taken from gun permits on file with the

14

State. While many felt that was an improper and dangerous no one questioned the papers First Amendment right to publish public information. This post presents no conduct which remotely comes close to the statute.

Post 3: Linda Ellis is also a meme... what an Internet icon..! This post was started on June 27, 2012 6:46pm by an ELI User and not Respondent. It is just an unflattering image of Petitioner.

Post 4: Linda M. Ellis Personal Information Found Posted on June 11 2012 at 12:04 AM by Petitioner It starts off with this statement:
Now that I have everyone's attention, I am actually NOT going to reveal everything I now know about Linda Ellis' personal information. I don't know everything but I know a TON. I know Linda (or at least her brother) reads this forum so I will address them directly.

Respondent immediately indicates that he is not going to reveal all he knows about Petitioner. That being said, revealing all about Petitioner (as long as it was the truth and not the subject of illegal surveillance) does not violate the statute. Respondent goes on to post:
Believe me when I tell you I have a LOT on you. I found out about your brother but I have a LOT more personal information on YOU that I don't really want to post. I don't even want to say what information I have simply because it can get out of control very quickly. There are people who hate you and looking to put you into the ground. I don't "hate" you. I simply find your copyright extortions to be outrageous. We may never agree but that is ok. I do have information that I can post that I am certain you would like and not do you well. But I will leave a few nuggets to let you know I mean business. Some of this will mean very little to most people but YOU should "get it".

15

1. Linda Marie Hicks Ellis, 50 2. David Lynn Ellis, 52 3. MEE Museum 4. Roswell Downs 5. Planters 6. Kipling Just so you know, my patience is fairly low. It wouldn't take much to push me over the edge on this. I am content to leave this post as it is if you quietly back off and stop harassing and threatening people. But if not, you will find this thread become one of the most active threads you have ever seen.

The only threat in this post is the threat to reveal more information. It can be stretched to argue that this is an attempt to contact Petitioner but that is only one such attempt and it is not an attempt to contact her personally. See the Mack v. State case discussed further in the memorandum. This post was also made over seven months ago and no further information was revealed. In the same topic, on December 13, 2012 at 11:54pm Respondent posted:
I have chosen to "bump" this topic to the top to remind Team Linda of the intelligence we have gathered thus far which is stored in our back pocket to assist our author friend and ELI client with fighting the $100K copyright extortion claim.

Again addressing Petitioner is not contacting her or trying to contact her. On January 14, 2013 at 12:35Am Respondent posts:

New personal information on Team Linda will be released soon. Up to recently, there was no reason to turn the info loose. But given the gutsy $100K settlement demand and the fact that ELI is being paid to put the heat on Team Linda, I will be releasing more revealing personal information very soon.

Once again, no violation of the statute here. The only threat is a threat to release personal information legally acquired. Then on February 1, 2013 at 12:09 AM Respondent posts:
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I am writing a brand-new article regarding Linda's celebrity and public figure status to help both her fans as well as her copyright extortion victims in case they want to file a lawsuit against her. Using her UPS Store address won't cut it in legal matters. However, whatever you do, don't tread on her property and don't touch any of her property. She could file a trespassing complaint against you. However, staying on public streets and driving by should be fine if you are curious enough. Do NOT step onto private property! I'm not yet sure sure [sic] if Roswell Downs is within a gated community. Perhaps someone can help me find out. I have assembled some helpful information and links who want to delve further into Linda's affairs. Everything I have found is public information regarding her home address: 3349 Preakness Ct., Marietta, GA 30062. It is located in the Roswell Downs community and managed by the Roswell Downs Homeowners Association. http://roswelldowns.com Do a search on Google Maps to find out what her house looks like. Cobb County Real Estate Deed Records http://www.cobbsuperiorcourtclerk.com:8888/LRSSearch/#/MainMenu I've downloaded quite a few recorded documents and sorting through them. There is quite a few of them, perhaps some duplicates too. I have emailed copies to Robert and Greg to help me. Cobb County Property Tax Records http://www.cobbassessor.org/search/genericsearch.aspx?mode=address Do a search on Trulia and Zillow to find out more details about her house. Georgia Corporation Search on Linda's Lyrics LLC and Kindercare Learning Center LLC. http://soskb.sos.state.ga.us https://cgov.sos.state.ga.us http://soskb.sos.state.ga.us/corp/soskb/Corp.asp?1898975 http://soskb.sos.state.ga.us/corp/soskb/Corp.asp?715752 More to come...

Respondent here mentions that driving by by Petitioners house is legal, I do not state that I did or that I will. I did not and I have no intention of doing so. Besides, as described in my memorandum of law later on, driving past her house would only violate
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the statute if it was done in a course of conduct and with the intent to harass and intimidate her. Curiosity is not prohibited by the statute. There is no campaign orchestrated by Respondent to have people go by her house repeatedly or honk their horns or disturb her in anyway. It was likely this post that drove Petitioner to file her complaint but this does not violate the statute. Respondent follows up with this on February 15, 2013 at 4:33am:
My gift to Linda during this Valentine holiday is making available the screen shots of Clerk of Court, Cobb County, GA Index of Real Estate Records of Linda Ellis. As a bonus, I included her husband's record, David along with them. http://www.scribd.com/doc/125605790/Clerk-of-Superior-Court-Cobb-County-GA-Linda-EllisDocuments-1 http://www.scribd.com/doc/125605791/Clerk-of-Superior-Court-Cobb-County-GA-Linda-EllisDocuments-2 http://www.scribd.com/doc/125605793/Clerk-of-Superior-Court-Cobb-County-GA-David-EllisDocuments Through this index, you can see the entire history of deed and mortgage-related transactions of her house on Preakness Ct. in Roswell Downs. I posted some interesting, recent mortgage-related documents of transactions relating to the house. Specifically, Linda refinanced her house for $120,000 with a new 30-year loan. http://www.scribd.com/doc/125606887/Linda-Ellis-Mortgage-Document-Sept-2012 Assuming she doesn't sell the house, she won't pay off her house until she is 81-years old! I am fairly sure Linda, the crunt, won't like me posting this publicly-accessible document from the Cobb County, GA, Superior Court records and showing her personal financial business. Linda might cry again to another web host provider claiming that I am "inciting violence", "threatening her life", "stalking her", or "harassing her". Sure..... posting her real estate and mortgage documents on this forum qualifies as all of that. She brags about being an inspirational speaker, celebrity author, poet, author of the famous/infamous Dash Poem, and a public figure. Hence, public information such as real estate and mortgage records is more than fair game for a celebrity of her caliber and stature.

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While this post is indelicate in some places (calling her a crunt), it actually vindicates Respondent. Here I clearly indicate my intention and goal: to publish publicly available information on Petitioner. Respondents assessment that Petitioner is a public figure also shows that Respondent believes to be acting within the bounds of the law. While ignorance of the law is no excuse, when you have to establish that the perpetrator had a criminal or illegal intent, a statement of a legal intent by Respondent disproves that element of the case. That is reinforced by the unsolicited reply by ELI user skosh at 11:15 am the same day:
Matthew, I'm realizing a side of you that is very impressive. You are mostly a tiger, but also a lamb. Linda, though she doesn't play the role very well, is a human being. While perhaps a disgrace to humanity, she has friends and family who are innocent in all this. Instead of reacting to her threats by destroying her publicly, you are first trying to get her to come to her senses and stop her efforts to destroy others who are simply trying to protect good human beings from her wicked trolling. I hope she somehow appreciates that, and stops the consequences that will follow if she continues her senseless and stupid rampage. Ron Tranmer

Post 5: Linda M. Ellis Personal Information Found This was posted on February 1, 2013 At 12:09 AM and is just a repeat of the above post.

Post 6: Linda Ellis Engages ELI Through ELI Facebook Page

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This was posted by Respondent on June 17, 2012 at 7:43PM. It shows a running dialogue between Petitioner and Respondent regarding the issue on the ELI Facebook page. Respondent then states to Petitioner in his initial post: Quite honestly, I am not sure
we have anything to discuss. Matthew Chan.

This again shows an intent not to contact her or engage in a dialogue with her. He reiterates that in the following follow up post on June 17 2012 at 8:15PM:
If I cared enough or had the inclination to spend more time on this, I could reach out to her. After all the invitation is open. But I don't care enough at the moment. Linda is goofy, in denial, and seems to think putting her head in the sand is the way to do it. She claims to have only read one paragraph of my open letter (which hardly seems likely), but here are two links she better re-read. http://www.extortionletterinfo.com/forum/linda-ellis-lindas-lyrics-dash-poem-letters-forum/what-isdefamation-%28for-linda-ellis-copyright-extortionist%29/ http://www.extortionletterinfo.com/forum/linda-ellis-lindas-lyrics-dash-poem-letters-forum/linda-mellis-personal-information-found/ If she pisses me off again with her defamation talk, I don't need to use the court system to make her eat her words. Roswell Downs is only 2 hours away and I have 2 camcorders dying to be used.

Again, in the last sentence Respondent indicates an intent to go to her home with 2 camcorders but the statute only applies when someone has actually done surveillance not threatened to do surveillance. This more than shows a lack of intent to contact her than anything else. If Respondent wanted to follow or surveill Petitioner, I have her address, I have 2 camcorders, I live close by, I have the opportunity to do so but I do not and never have. That I never have despite having many opportunities to do so clearly indicates that I have no intention of doing so; this was posted over seven months ago. The benign nature of this post is reflected by an ELI users comment dated June 17, 2012 at 11:55pm on the posts:
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Additionally she stated on FB that "I will explain my position and my platform, which will remain intact as long as I am alive." Well, her position is publicly stated on her website and how she acts on her position is well documented on this site. So, what is there to discuss? I would put the odds of her having a discussion with Matthew, having an epiphany, and taking the good advice given to her here by Oscar, Mathew, and Ron at something close to 0.0% (though if she did take their advice, I think she would be received fairly well by most of the ELI community and would increase her fanbase).

This again establishes that Respondent and ELI are trying to get Petitioner to see the errors of her ways and to stop extorting people for their use of The Dash. That is and has always been Respondents intent: it is not to contact, follow her or harass her.

Post 7: Linda's Lyrics $7500 Extortion Letter by Dash Poem Author Linda Ellis Posted June 13, 2012 at 9:33PM by RESPONDENT. It references a new letter from Team Ellis that demands $7,500 for infringement of The Dash. The letter was posted on ELIs Scribd account and Petitioner had tried to take down two other similar documents. Respondent posts:
I can safely say that if ELI gets hit a 3rd time, some serious drama will ensue and it won't be pretty. And there is a good chance there will be quite a bit of collateral damage. Consider everyone warned and notified.

This is not a threat of physical harm nor would anyone believe it to be that when in the past all ELI and Respondent did was at worse try to embarrass Petitioner online. Respondent posts nothing else in this topic and the ELI users dont post anything worth mentioning.

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Post 8: What is Defamation? (For Linda Ellis, Copyright Extortionist) Posted June 10, 2012 at 2:36PM by RESPONDENT. This was done in response to an allegation made by Petitioner about her being defamed by ELI and Respondent. Respondent takes great pains in his initial post to explain that Petitioner is a public figure and therefore has to put up with some negative opinions of her. He then states:
And since I am quite familiar with Cobb County and the government center (I did live in Marietta for 3 years in case you didn't know) and still visit the area frequently, I might be inclined to see what I could find in public records. Maybe pull up your real estate deeds, mortgages, and any other interesting documents. I would want to see how big your house is, how much its worth, how much property taxes you pay, and any other properties you might own. I bet you live in the East Cobb area. I love that area. . . I could probably go digging through public records to see if you have any traffic infractions, see how many times you have been married and divorced. Did I mention that since I am not that camera shy, I would become like a reporter and maybe produce a documentary of my adventures? I have 2 camcorders orders that I could carry around to record all this. Did I mention I have a long history of turning lemons into lemonade?

Again, a clear indication of my intent to post public information about her. Here Respondent also indicates that the 2 camcorders are to record what he finds from public information. This post even weakens the possible threat to do surveillance by further explaining what was meant by having 2 camcorders. I add:
I could even find your house to see what it looks like and where you live. Don't worry I won't trespass or threaten any physical harm. But I definitely would get some video footage of your house from a safe distance and maybe provide directions to your house. Remember, as a self-proclaimed public figure and celebrity author, this would be of public interest. I could be a one-man paparazzi.

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Once again, this vindicates the intention to not to follow her or do surveillance, just find her house, see what it looks like and where she lives. Respondent states he will not do physical harm. While most Petitioner may argue he is saying that to protect himself, the statute requires proof of an intent to harass and intimidate one into fearing physical danger. Respondent states the opposite here. Being a one-man paparazzi would not be doing surveillance as taking pictures of whatever is in plain view from a public street is constitutionally protected thats why the paparazzi exist. According to Petitioner, TMZ, People, The National Enquirer etc. are all illegal stalkers. They are not as long as they shoot from a public street. Surveillance is defined by Merriam-Webster Dictionary as close watch kept over someone or something (as by a detective). Occasional photos or paparazzi-type pictures are not surveillance because it is not done by a close watch over a period of time. The law here requires a course of conduct. Respondent then posts about his successful self-defense of a tax claim with the IRS and a speeding ticket. Again Respondent is showing his intent and ability to battle legally and by the rules against Petitioner by himself through self-representation. Another user then posts a white pages link to a possible address for Petitioner on June 10, 2012 at 3:14PM. This post comes nowhere near a violation of the statute and was made over seven months ago.

CONCLUSION These posts, taken both individually and together do not constitute stalking. They do not amount to following, contacting or doing surveillance on her. The law does not prohibit an attempt or an intent to do any of those things. It only prohibits actually doing those things. At most, Respondent shows an intent to go past her house, maybe
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video her house or take pictures from a public street. Even doing those things would not violate the statute but certainly talking about maybe doing those things does not violate the statute. ARGUMENT POINT I THE CHARGES BROUGHT BY PETITIONER ARE INAPPROPRIATE UNER THE OCGA 16-5-90(a) and 94(d) The statute authorizing a permanent protective order is OCGA 16-5-94(d), which provides in pertinent part: The court may grant a protective order or approve a consent agreement to bring about a cessation of conduct constituting stalking. Orders or agreements may: (1) Direct a party to refrain from such conduct; [and] (2) Order a party to refrain from harassing or interfering with the other.... In order to obtain a protective order based on stalking, the petitioner must establish the elements of the offense by a preponderance of the evidence. The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court. Sinclair v. Daly, 295 Ga.App. 613, 614 (2009). In order to show that Respondent was stalking Petitioner, the evidence must show that [Respondents] actions ... placed [Petitioner] in reasonable fear for [her] safety by establishing a pattern of harassing and intimidating behavior. Id.; Wright v. State, 292 Ga. App. 673, 676 (2008). The Supreme Court of Georgia has held that verbal taunts, including cursing, threatening someones livelihood or employment or belittling someones intelligence are not sufficient to place a person in reasonable fear for their safety and do not fall within the statutory definition of stalking. Pilcher v. Stribling, 282 Ga. 162, 167 (2007).

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Because the allegations alleged by Petitioner do not meet this high burden and do not make out the charges of stalking, as described below, the court cannot issue an order of protection under 16-5-94(d).

POINT II PETITIONERS ALLEGATIONS AND RESPONDENTS CONDUCT DO NOT CONSTITUTE THE ELEMENTS OF THE CHARGE OF STALKING AS RESPONDENT DID NOT CONTACT PETITIONER AND DID NOT FOLLOW OR PLACE HER UNDER SURVEILLANCE OCGA 16-5-90(a)(1) prohibits very specific conduct only and does not reach conduct that is not listed in the statute. Under OCGA 16-5-90(a)(1) A person commits the offense of stalking when: he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. Respondent did not follow Petitioner nor is there any allegation that he did. Respondent not place Petitioner under surveillance nor is there any allegation that he did. Respondent did not contact Petitioner nor is there an allegation that he did. The elements of the statute (all of which need to be met) are only met when a person: (a) follows or (b) places under surveillance or (c) contacts (d) another person (e) at or about a place or places (f) without the consent of the other person

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(g) for the purpose of harassing AND intimidating (h) the other person. The Georgia Supreme Court in Johnson v. State, 264 Ga. 590 (1994) in assessing the constitutionality of the stalking statute set forth definitions of the key terms that the court said rendered it constitutional: 1. Both OCGA 16-5-90 and 16-5-91 require, in relevant part, that the proscribed act of making non-consensual contact with another person be for the purpose of harassing and intimidating the other person. Johnson v. State 264 Ga. at page 591). There is no proof that this was the purpose behind the posts complained of; 2. To contact is readily understood by people of ordinary intelligence as meaning [t]o get in touch with; communicate with. American Heritage Dictionary (3d ed. 1992). Johnson v. State 264 Ga. at page 591. There is no proof or claim that Respondent got in touch with or communicated with Petitioner. In the case of Marks v. State, 306 Ga. App.824 (2010) the Georgia Court of Appeals specifically held that posting on the internet about someone does not constitute contact under the statute. In Marks, a defendants conviction for stalking and violating an order of protection was reversed because the court found that his posting on the internet of several untrue statements about his victim (his ex-wife) and his having emailed links to the postings to several people was not contact under the statute. The petition must be dismissed on this element alone as petition only complains of internet posts and the Georgia Court of Appeals has held that internet posts are not governed by or prohibited by this statute. Moreover, as discussed further on page 27 of Respondents Memorandum, none of these pots were sent to Petitioner by Respondent. Rather, Petitioner accessed them of her own free will.
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3. In Pilcher v. Stribling, 278 Ga. App. 889 (2006), the Georgia Court of Appeals held that the term place or places shall include any public or private property occupied by the victim other than the residence of the defendant. The law only applies therefore to contact made at a public or private piece of property occupied by the person so while emails repetitively sent to someones home would qualify, general posts about the person on the internet would not meet the definition of place or places.; 4. Moreover, the term harassing and intimidating is further defined in OCGA 16-5-90 as a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself or to a member of his or her immediate family, and which serves no legitimate purpose. Johnson v. State 264 Ga. at pages 591-592. (emphasis in original) There is no proof that Respondent engaged in a willful course of conduct with no legitimate purpose. In Daker v. Williams, the Supreme Court of Georgia instructed that a course of conduct refers to a series of successive actions, and, as such, is equivalent to a pattern of behavior. 279 Ga. 782,785 (2005). Accordingly, in State v. Burke,267 Ga. 377 (2010), where there was only a single act at issue, one violation of a protective order, the Georgia Supreme Court held that the evidence simply [did] not establish a pattern of harassing and intimidating behavior. 267 Ga. at 379. Indeed, in Burke, the Court reiterated that the harassing and intimidating conduct must be established by, among other things, a pattern of harassing and intimidating behavior. Id.(internal citation omitted; emphasis in original). So that it is clear that not only must there be a pattern, but it must be a pattern of harassing and intimidating behavior (as that is defined, see below); see also Krepps v. State, 301 Ga.App. 328, 330(2), (2009) (noting that a conviction for stalking requires the state to prove, as part of
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establishing the element of harassing and intimidating behavior, a pattern or a course of conduct). Petitioner complains about posts that talk of taking picture of her home and driving past her subdivision. The Eleventh Circuit has held that [t]raditionally, watching or observing a person in a public place is not an intrusion upon one's privacy. However, Georgia courts have held that surveillance of an individual on public thoroughfares, where such surveillance aims to frighten or torment a person, is an unreasonable intrusion upon a person's privacy. Summers v. Bailey, 55 F.3d 1564, 1566 (11th Cir. 1995). Of course there is no proof here that Respondent engaged in any of this conduct; Respondent certainly did not place Petitioner under surveillance and certainly did not intend to so for the purposes of frightening or tormenting her. In contrast to the benign activities that Petitioner believes Respondent may engage in (there is no allegation in the petition that Respondent did any actual act) the serious nature and deep extent of the pattern necessary to reach the intent of the statute is shown by the Georgia Court of Appeals decision in Autry v. State, 306 Ga.App. 125 (2010). In that case, a defendant was charged under OCGA 16-5-90(a)(1) and was convicted after a jury trial. In appealing his case to the Georgia Court of Appeals he argued that the evidence presented against him did not amount to a course of conduct. At trial, the complainant, Angie Reed, testified that she saw the defendant observing her from his car while she was parked in her car outside a sporting goods store. The defendant then got out of his car and walked past her car on the drivers side and appeared to be heading to the sporting goods store. Reed got out of her car and also headed to the sporting goods store where she found that the man had not gone inside and instead she had to walk past him to go into the store. When she came out of the
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store after 25 minutes, the defendant was back in his car. When she pulled out, he followed her in his car till they got to a stop sign. Though the defendant pulled away from the stop sign first, Reed noticed a short while later, that he was following behind her again in his car. She went to her next destination, another store, and noticed that the defendant parked in the same parking row but at the opposite end. She left the store after asking if there were security personnel and being told there was not. She went behind the defendants car and recorded his license plate because I felt like he was following me and I thought it was too coincidental that we had gone from location to location and he just sat in his car the whole time. As she left the lot and traveled along the road for some time, he continually followed her in his car until they turned in different directions at an intersection. Reed testified that she had been afraid that day that he would follow her home or somehow track her based on her license plate. Three weeks later, Reed was again followed in her car by the same man as she walked to her vehicle which was parked in a store parking lot. The defendant followed her in his car with the window rolled down as she walked. When she got to her car, he parked in the spot next to her and followed her as she pulled out of the lot. She lost him after a series of quick turns. She filed a complaint with the police and the defendant was arrested. See, Autry v. State, 306 Ga.App at 125-127. In overturning his conviction, the Court of Appeals stated it was apparent that Autry's behavior underlying Count 1to wit: followed [Reed] in her vehicle to a store and watched her going into and out of said storefell short of demonstrating the requisite pattern. Id. at 128 (emphasis added). The General Assembly in 1998 specifically added the requirement that the victim's emotional distress must be established by a pattern of harassing and intimidating behavior. This requirement was added to help avoid abuse of the system by people
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who overreact or become vindictive. Review of Selected 1998 Georgia Legislation, 15 Ga. St. U. L. Rev. 62 (Fall 1998). Petitioner has overreacted and the statute was explicitly amended to avoid this abuse of the system by requiring a pattern of harassing and intimidating conduct. 5. A person of ordinary intelligence can readily appreciate what action, in a given context, will constitute harassing and intimidating conduct on his part sufficient to provoke a reasonable fear of death or bodily harm in another person Johnson v. State 264 Ga. at page 592. The fear must be reasonable and the actor must have engaged in a course of conduct that would knowingly provoke such a reasonable fear. No such conduct is alleged here and no reasonable person would be placed in fear of her physical safety by this conduct. Other Georgia courts have held that physical assaults [that]occurred during basketball games initiated by an employer for the legitimate purpose of physical training [and] . . . verbal taunts, which occurred at various times during working hours and included cursing, threatening employees' jobs, and belittling employees' intelligence, personal life, weight, sexual inexperience or financial situation, were not sufficient to create a reasonable fear for the safety of the alleged victims or their families. Pilcher v. Stribling, 278 Ga. App. 889 (2006). A Georgia appellate court struck down an order of protection issued to a priest against a parishioner because there was no evidence that the parishioners conduct would place a reasonable person in fear of his safety. The parishioner repeatedly threatened to sue the priest; called the priest repeatedly at night; improperly gained access to the priests locked office and left a note; threatened to have the priest defrocked in ecclesiastical court; and showed signs of instability and possible suicidal
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ideation. Sinclair v. Daly, 295 Ga. App 613 (2009). The court felt that all of the above still did not rise to the level of sufficient evidence to reasonably place someone in fear of their own safety even though the priest testified if [Sinclair] was suicidal, if he was willing to do violence to himself, would he do violence to me or my family? The court stated that the statute focuses on the behavior of the alleged stalker and that concern over the mental stability of the alleged stalker is insufficient. Id. See Also, See Wright v. State 292 Ga. App. 673 (2008)(evidence failed to show defendant stalked his ex-wife because, although the defendant entered his ex-wife's house after she revoked his consent to do so, her testimony showed that she did not think he would hurt her or their children); In the Interest of C.C., 280 Ga.App. 590, 592(1)(2006) (evidence insufficient to establish crime of stalking where, among other things, the alleged victim and his wife did not testify that they were afraid when a truck in which the defendant was a passenger pulled into their driveway and remained in front of their house). At best, Respondent operated an internet discussion forum where Petitioner was discussed by Respondent and others. The only post that comes close to resembling a threat is a post mentioning Petitioner and saying We are coming after you. It is important to note that Respondent is not the person who posted this. Also, when taken in context it is clear that the poster is not threatening violence and what it is meant is that the poster and others will scrutinize and alert the public to Petitioners doings regarding her copyright infringement scheme. That post was also made over seven months ago. Because the Georgia Court of Appeals has specifically ruled that internet posts do not constitute contact under this statue and because Respondent has not engaged in any other conduct governed by the statute as defined by the Georgia Supreme Court and
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because Petitioner cannot make our her burden that she was reasonably placed in fear of physical harm by this conduct, the Petition must be denied and dismissed.

POINT III RESPONDENTS CONDUCT INCLUDING THE POSTING OF PETITIONERS HOME ADDRESS IS CONSTITUTIONALLY PROTECTED SPEECH AND AS SUCH IS EXEMPT FROM THE STATUTES REACH OCGA 16-5-92 of the statute (Applicability) states: The provisions of Code Sections 16-5-90 and 16-5-91 shall not apply to persons engaged in activities protected by the Constitution of the United States or of this state or to persons or employees of such persons lawfully engaged in bona fide business activity or lawfully engaged in the practice of a profession. a. Federal Constitutional Analysis A brief analysis of the balancing done by courts including the US Supreme Court in deciding between (a) speech that incites persons to commit crimes or which involves criminal activity and (b) speech that is protected by the First Amendment is therefore helpful at this point. There can be no greater protected activity than speaking in a public forum and while the Internet is not technically a public forum, when a government places restrictions on the content that may be placed on the Internet, it acts as a regulator of private activity, and its restrictions are subject to strict scrutiny. Reno v. ACLU, 521 U.S. 844 (1997). Court's understanding of the internet in Reno v. ACLU proved prescient when it observed that the internet constituted a:

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dynamic, multifaceted category of communication [that] includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, the content on the Internet is as diverse as human thought. Reno v. ACLU, 521 U.S. 844, 870 (1997). The Supreme Court in Reno, also noted that the District Court below specifically found that [c]ommunications over the Internet do not invade an individual's home or appear on one's computer screen unbidden. Users seldom encounter content by accident. Id. at 869.
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Other Supreme Court precedent

likewise requires that illegal action be almost contemporaneous with the inciting speech if the speech is to be excluded from First Amendment protection. See e.g. Brandenburg v, Ohio, 395 U.S. 444, 447 (1969). The reason for an imminence requirement derives from the notion that the means to deter unlawful conduct is to punish the actor rather than the advocate. Bartnicki v. Vopper, 532 U.S. 514 (2001). In Hess v. Indiana, 414 U.S. 105 (1973), the Court found no imminent action in a demonstrator's shout, We'll take the fucking street later [or again], as police attempted to move a crowd of demonstrators off the street. Id. at 106-108. Speech that incites others to violate the law is not protected by the First Amendment, but the incitement to lawless action must be imminent and likely. Id. Here, the speech did not incite anyone to lawless action but it was also not imminent or likely. In fact, Respondents posts arose out of a desire to get people to help combat what he believes is Petitioners abusive and extortionate copyright infringement scheme.

ThisholdingalsounderminestheclaimthatbypostingaboutPetitioner,RespondentcontactedPetitioner. Here,Petitionerlearnedofthepostsbecauseshechosetoreadthemtheywerenotemailedtoherby RespondentorpostedbyrespondentonPetitionersownsocialmediapages.

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It was a call to rally the troops to use public information about Petitioner to discredit her and her supporters, including her legal counsel. This type of language and speech is afforded great protection. For example, in NAACP v. Claiborne Hardware, 458 U.S. 886 (1982) involving the efforts of civil rights leader Charles Evers and others to organize an NAACP-sponsored boycott of white-owned businesses in Claiborne County, the Court noted that the boycott had a chameleon like character; it included elements of criminality and elements of majesty. Id. at 888: The boycott was mostly peaceful but was peppered by some violence as a few boycott violators were beaten and shots were fired through some of their windows. Violators were publicly disclosed and store-watchers recorded which blacks patronized whiteowned stores and then printed their names in a local newspaper and announced them in church. Id. at 903-04. Evers publicly proclaimed that any uncle toms' who broke the boycott would have their necks broken by their own people. Id. at 900 n.28. He warned that the Sheriff could not sleep with boycott violators at night, and told his audience, If we catch any of you going in any of them racist stores, we're gonna break your damn neck. Id. at 902. The Court found that Evers' speech - even set against a backdrop of violence, and even including apparent threats - did not exceed the limits of protected speech. The Court noted that the speeches consisted of impassioned political pleas within which Evers' seemingly threatening language was used, and that no imminent unlawful conduct followed the speeches. Id. Focusing on the political nature of Evers' speeches, the Court wrote: Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. Id.

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While not comparing Respondents speech to that of Evers, and while not comparing the issue over Petitioners poem to the civil rights movement, the enforcement of copyright infringement and the use of extortionate methods in that process (called copyright trolling) is an issue of national importance that is the subject of a large amount of speech on the internet. See, for example www.fightcopyrighttrolls.com; www.eff.org/issues/copyright-trolls; www.extortionletterinfo.com; www.eff.org/issues/copyright-trolls; and www.techdirt.com/blog/?tag=copyright+trolls. Even a small discussion forum like ELI is entitled to protection similar to that of the traditional press. The United States Supreme Court has upheld an inclusive definition of press, noting that the press includes individual publishers who may not have special affiliations or education, but who may use leaflets and other sorts of publications that provide both information and opinion. Lovell v. City of Griffin, 303 U.S. 444, 452 (1935). In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court noted that the newsgatherer's privilege applied to the lonely pamphleteer as much as the large metropolitan publisher. Id. at 704. Petitioner most likely objects to the posting of her home address on ELI. But the U.S. Supreme Court has long held that there is nothing actionable about the posting of publicly available information. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 49496, (1975) (no privacy claim can be based on a fact open to public inspection in government records; We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man.). In deciding that there was no invasion of privacy when a reporter in Georgia published the name of a rape victim in
35

contravention of a Georgia law prohibiting such publication, the Court held that to the extent the law prohibits the publication of information already contained in a public document, the law is unconstitutional and unenforceable. Id. At 496-497. In so holding the Court stated: By placing information in the public domain on official court records, the state must be presumed to have concluded that the public interest, as opposed to the individual interest in the right to privacy, is thereby being served. Id. All of the postings concerning Petitioner disseminated only public information about her all of which was derived from public documents and records. While the Cox case alone is sufficient to exempt Respondents conduct from the statute, persons who are public personalities have an even lower expectation of privacy. See, Carafano v. Metrosplash.com Inc. 207 F. Supp 1055 (Cent. Dist.Ca. 2002)(television actress could not complain of publication of a false profile of her on match-making site which contained her true address). The U.S. Supreme Court has recognized two classes of public figure, a limited public figure and a general public figure: A limited public figure refers to an individual who voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. A general purpose public figure refers to an individual who has achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. See Gertz v. Robert Welch, Inc., 418 U.S. 373 (1974). Petitioners own website touts her notoriety and success as an author, poet and inspirational speaker. She notes that The Dash has been read by, talked about and even tattooed on various celebrities. She has an inspirational speakers program where she can be hired to speak to groups and the website contains various videos of her and other reading the Dash. The poem has entered the national consciousness and is widely
36

popular and well known. She has held herself out to be and is a public figure and therefore has an even lower expectation of privacy than the average American citizen.

b. State Law Analysis The Georgia Constitution provides that [n]o law shall be passed to curtail or restrain the freedom of speech or of the press. Constitution of the State of Georgia of 1983, art. I, sec. I, para. V. Georgia courts have held that our state constitution provides even broader protection of speech than the First Amendment to the United States Constitution. Statesboro Pub. Co. Inc. v. City of Sylvania, 271 Ga. 92, 95 (1999);State v. Miller, 260 Ga. 669, 671 (1990). These statements are deemed privileged under Georgia law as well. OCGA 5157 (3) and (4) specifically exempts from tort claims certain statements which are entitled to privilege. Subsection (4) protects [s]tatements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern.... And under subsection (3) privilege cloaks [s]tatements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned. Petitioner cannot seek to be protected from activities which do not even rise to the level of a tort and which are specifically privileged under Georgia law. Georgia courts have also required orders of protection to be given only to prevent conduct that clearly constitutes stalking and not to curtail protected speech. For example, in Collins v. Bazan, 256 Ga.App. 164 (Ga.Ct. of App. 2002), the court refused to uphold an order of protection that prevented the plaintiffs former boyfriend from
37

discussing her medical condition with third parties. The court stated that while such behavior was extremely insensitive and socially unacceptable it was still protected speech and further stated that the restriction on speech is clearly limited to a knowing and willful course of harassment and intimidation, which is not protected expression under the First Amendment. Id. at page 165 (citing the Georgia Supreme Court in Johnson v. State, 264 Ga. 590 (1994)(emphasis in the original)). Without any threat of imminent illegal activity and without any incitement of anyone to imminently engage in illegal activity, even if the court finds that the actions of Respondent make out the elements of the statute, the statutes exemption for constitutionally protected speech would apply to exempt the posts from the statutes reach. Allowing Petitioner to succeed on this petition would cast a chilling effect on future speech and discussion on ELI which covers a great number of topics of national importance in the field on intellectual property and internet law. It would expose countless other site owners to be subjected to orders of protection for similar legal behavior. POINT IV RESPONDENT MOVES THIS COURT FOR SANCTIONS AGAINST PETITIONER FOR FILING A PETITION WITHOUT SUBSTANTIAL JUSTIFICATION PURSUANT TO OCGA 9-15-14 OCGA 9-15-14 provides in pertinent part: (a) In any civil action in any court of record of this state, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney's fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party's attorney, or against both in such manner as is just.

38

(b) The court may assess reasonable and necessary attorney's fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment . . . . As used in this Code section, lacked substantial justification means substantially frivolous, substantially groundless, or substantially vexatious. This petition was completely void and absent of any justiciable issue of law or fact under OCGA 16-5-90 and 94. It not only lacked substantial justification, it lacked any justification. It was merely the latest action Petitioner brought to harass and intimidate Respondent into exposing her copyright infringement business model. The standard of review for motions under OCGA 9-15-14 (a) is the any evidence rule that is, the movant must show that there was not any evidence that substantially justified the claim or action. Gibson v. Southern General Ins. Co., 199 Ga. Ap..776 (1991) The Petition alleges the following conduct against Respondent: Posted threats of death, posted home address, and family and personal info with statements such as: We are coming after you, Boasts about driving by subdivision and photos of my home and daughters employment. There was not any evidence that (a) Respondent did these things or (b) that doing so would violate OCGA 16-5-90. a. Posted Threats of Death: Respondent never posted threats of death against Petitioner. This (the most serious allegation in the petition) is baseless and utterly false. b. Posted home address and family and personal info: Respondent has established that this is Constitutionally-protected as whatever was posted was derived from public records so that even if Petitioner was not a public figure, there would be no expectation of privacy about this information. Also, this conduct is not prohibited by this statute.

39

c. [Posted statements] such as We Are Coming After You. : Respondent did not post this statement. The statement (which was posted by another user on ELI) was taken completely out of context as it referred that the poster was going to expose the overly-aggressive and hypocritical demands Petitioner makes to secure large unwarranted copyright infringement fees from the general public. It was also posted over seven months ago. d. Boasts about driving by subdivision and photos of home and daughters employment. Boasting is not prohibited by the statute. Driving by a subdivision is not prohibited by the statute, but in any event Respondent did not do that. Posting photos of home is not prohibited by statute but, in any event, Respondent did not do that. Posting her daughters employment information is not prohibited by statute but, in any event, Respondent did not do that. None was done by Respondent nor would it be prohibited had Respondent done it anyway. e. The statute exempts Constitutionally-protected activity. This is clearly Free Speech and protected by The US and Georgia Constitutions as described in Point III of this Memo. f. Georgia Court of Appeals has already ruled that internet posts do not constitute contact and are therefore not governed or prohibited by this statute. See Marks v. State discussed on page 22 of this Memorandum. g. The Georgia Legislature specifically added course of [harassing and intimidating] conduct as an element of this statute in order to avoid just this kind of abuse from occurring. See pages 25-26 of this Memorandum. Petitioner is not your average litigant. She is an educated, sophisticated user of the courts, lawyers, and social media who has ready access to several lawyers who are
40

part of her copyright infringement program. This Memorandum of Law has established that this petition has no factual basis and no legal basis. Petitioner made false claims about Respondent posting death threats when such activity did not occur. This conduct is exactly what OCGA 9-15-14 is intended to penalize. Where controlling precedent (like Marks v. State) establishes that a claim will be unavailing, sanctions under OCGA 9-15-14 are warranted. Executive Investments, LLC v. Martin Bros. Investments, LLC, 309 Ga. App. 279, 288 (2011)(In light of the controlling precedent clearly establishing that a valid lis pendens is privileged . . . we agree that the sellers' argument is unavailing. Accordingly, the trial court's attorney fee award predicated on this basis was authorized.) Similarly, where there is no question of fact or any ambiguity under the law that the claim lacks merit, sanctions are appropriate under OCGA 9-15-14. Brunswick Floor, Inc. v. Carter, 199 Ga.App. 110 (1991)(contractor who sued to collect under an agreement labeled proposal had to pay fees and costs to defendant as claim was substantially groundless). Finally, just a few days ago On February 20, 2013, the Court of Appeals of Georgia awarded attorneys fees and costs to a man who was forced to defend a claim brought by his ex-wife that he had violated a visitation order. Bankston v. Warbington, 2013 WL617076 (2013). In Bankston, the trial court found that, for purposes of harassment, Bankston used a motion for contempt to unnecessarily expand what was otherwise an honest disagreement over an ambiguity in a custody order as to which airports in the Los Angeles area could be used to exchange the child after visitation. The Court of Appeals upheld the finding. Id. Here, petitioner has used this petition to unnecessarily expand what was an honest disagreement over the propriety and nature of
41

Petitioners copyright infringement scheme. It was just the latest step taken by Petitioner and utterly lacked any foundation in factor law. Accordingly, the court should award sanctions under OCGA 9-15-14.

Summary and Conclusion The actions complained of do not meet the elements of the statute. Respondent is not accused of following Petitioner; contacting Petitioner; or conducting surveillance on Petitioner. Respondent did not make any death threats to Petitioner as alleged in the Petition. Respondent did not contact Petitioner at her home, place of business or any public or private piece of property. Respondent did not engage in a course of conduct. Respondent did not harass or intimidate Petitioner nor was that his intention. Petitioner voluntarily accessed and read the blog posts of which she complains; they were not sent to her or posted on her own social media pages. Georgia law specifically has held that Internet posts alone do not violate the statute and the courts have required a steady course of criminal behavior in order to violate the statute. Petitioner cites to not one instance of conduct done by Respondent that fits the statutes protection. The law is meant to prohibit actors those who DO things against other people- not those who talk or even threaten other people (unless through a course of conduct it reasonably places them in fear of physical harm to themselves or their family). Most of these posts occurred months and months ago with no action taken by either Respondent or Petitioner. Respondent has had the time, the opportunity and knowledge to act on any intent to engage in conduct prohibited by the statute but did not do so and has expressly and repeatedly stated that his intent was the exact opposite.

42

Petitioner is engaging in the exact kind of abuse of the system that the Georgia Legislature wanted to prevent by adding the course of conduct requirement. Respondent was engaging in the type of speech protected by the First Amendment and State law. The court must not allow Petitioner to abuse the court to stifle protected speech. Her Petition utterly fails to allege that which is necessary to have the court issue an order of protection. It is clear that her motivation in bringing this is to stop Respondent from harming her business model by truthfully publishing information about her and by criticizing her as is allowed under law. Respondent asks that the court consider penalizing Petitioner under OCGA 9-15-14 for filing this baseless petition against Respondent. Dated: February 27, 2013 Respectfully Submitted, Matthew Chan Respondent PRO SE 1639 Bradley Park Dr. #500 PMB 110 762-359-0425

43

Kalra & Barn, LLC


1447 Peachkee Street, Ste 414 Atlanta, GA 30309
TELEPHONE 40+8354072

FACSTMTLE

78-916467f

bbaer6kalkabaer.com
www, kalkebaarlaw oom

November 26, 2012

YIA CERTITIf,,D MAIL AND

EMAIL

VIA CERTITIED MAIL AND EMAIL

john.reade@pbitennis.com

Inc. 77381 pbpbi@aol.com

Mr. Peter Burwash Peter Burwash lnternational, 4200 Research Forest Drive, Suite 250 The Woodlands, TX

I Ms. Alister Taylor

I Publisher
| Torchlight Publishing

| 50616 Hwy 245


I Badger,

CA

93603

I torchliqht@spiralcomm.net

RE:

Demand for Damages for Copyright and Trademark Infringement

Dear Mr. Burwash and Ms. Taylor,

Kalka & Baer, LLC is intellectual property counsel to Linda Ellis and Linda's Lyrics, which as you know is exclusive copyright owner of the poem, "The Dash," as well as the books, The Dash * Makine a Difference with Your Life and Live Your Dash. In addition, my client is the owner ofseveral trademarks in connection with her public speaking business including THE DASH and LIVE YOUR DASH.
Since at least January of2012, my client has on numerous occasions requested that you cease and desist from sales ofyow infringing work, Becoming the Master of Your D-A-S-H; 12 Princioles for Makine the Most of Your Life ('Your Book"). Your Book is not only derivative of my cfient's poem, but also includes a complete copy of it without any attribution.

This infiingement is willful and wanton and accordingly entitles my client to statutory damages ofup to 5150,000.00 under 17 U.S.C. $ 504. Furthermore, use of the mark, THE DASH (or similar marks) in the marketing of Your Book and promotion of your public speaking business constitutes trademark infringement. As there is more than sufficient evidence to find ftis infringement willful, a court would be authorized to treble any damage award based on revenues generated from Mr. Burwash's speaking

engagements.

{i

[C]uz' 1 o\- .) (I

,r

AOl) d r\

t,0.1" )a , L i5o'ct5t i
tJ

Accordingly, within twenty (20) days from your receipt of this letter, we demand that you take the following actions:
1) Tender to my clint good and certified funds in the amount $100,000.00;

of

2) Cease and desist ftom further sales of the book, p999m:igg..1;@lv[49191o:lYgg1 D-A-S-H: 12 Principles for Making the Most of Your Life.
3) Destroy

all remaining copies of Becoming the Master of Your D-A-S-H: 12 Principles for Making the Most of Your Life in your possession, custody or control;

4)

Cease and desist ftom any use of the mark, THE DASH (or any similar mark),

in connection with any book, business, speaking or other endeavor;


5) Execute and provide a swom

'

affidavit verifying that you have performed the above and that there are no remaining materials in your possession or control, or in the possession or control ofany agent, employee, representative or third party over whom you exercise any control bearing the term, "DASH"'

do not take the above action, we intend to file the attached Complaint in the Northem District ofGeorgia seeking statutory damages of$I50,000'00 under copyright law plus treble damages as authorized under the Lanham Act and all attomeys'

Ifyou

fees. Please contact me immediately to let me know your intentions'

Sincerely,

KALK4j-B4ER, LLC

4s<oq
A. Bryan Baer
ENCLOSURES Ms. Linda Ellis

ExtortionLetterInfo Website
ELI Website ELI Discussion Forums
Getty USA Getty UK

ELI Outposts

ELI Scribd Library

ELI YouTube Videos Articles, Editorials

ELI Blog

Linda Ellis/Dash Poem

ELI Vimeo Channel

Legal Controversies P2P/Bittorrent Righthaven

ELI Facebook Page

ELI Twitter Page

Riddick/Imageline

ELIDiscussionForums Access
PublicaccessviaSpecific IntentionalMouseClickson Links Eachforumisatopicspecific, moderatedChatRoom Contributorsregisterfora useraccountwithvalidated emailaddress Eachcontributoris responsibleforwhatthey post Eachposthasanidentifiable author.

ELIForumsContent
CommunicationPlatformfor LetterExtortionVictims& theirAdvocates PrimaryFocus:Education, Reporting,OpenDialog, Publicity Announcements&NewsLegal research&Analysis Commentaries&Editorials Humor,Sarcasm,&Parody Speculation&Prediction VentingofEmotionalRhetoric!

ELIForumsLanguageUse
Militarymotif/ForumCulture: War,Weapons,Fight,Battle, CollateralDamage,Attack, Defend ExamplesofTitles:ELICultLeader, ELILegalWarrior,ELIDefense Team UseofFlamboyant,Colorful,Spirited Language:Extortionists,Trolls, Shakedown,Thieves Euphemisms,Slang,Colloquialisms, RhetoricalMetaphors Namecalling,Insults,&Profanity Ranting,Raving,Blustering,Venting, Bragging ALLLEGAL&CONSTITUTIONALLY PROTECTED!

Page

$- LexisNexis*
OFFICIAL CODE OF CEORGIA ANNOTATED Copyright 2012 by The State ofGeorgia

All rights reserved.

***

*x+ Curent Through the 2012 Regular Session *** Annotations Current Through November 9,2012 ***

TITLE 16. CRIMES AND OFFENSES CHAPTER 9. FORGERY AND FRAUDULENT PRACTICES ARTICLE 6. COMPUTER SYSTEMS PROTECTION PART I. COMPUTER CRIMES
GO TO GEORGIA STE'TUTTS ANCHIVE DIRECTORY o.c.G.A. s 16-e-92 (20t2)
$ 16-9-92. Definitions

As used in this article, the term:

(l) "Computer" means an electronic, magnetic, optical, hydraulic, electrochemical, or organic device or group of devices which, pursuant to a computer program, to human instruction, or to permanent instructions contained in the device or group ofdevices, can automatically perform computer operations with or on computer data and can communicate the results to another computer or to a person. The term includes any connected or directly related device, equipment, or facility which enables the computer to store, retrieve, or communicate computer programs, computer data, or the results ofcomputer operations to or Ilom a person, another computer, or another device. This term specifically includes, but is not limited to, mail servers and e-mail networks. This term does not include a device that is not used to communicate with or to manipulate any other computer.
(2) "Computer network" means a set ofrelated, remotely connected computers and any communications facilities with the function and purpose of transmitting data among them through the communications facilities. (3) "Computer operation" means computing, classifying, transmitting, receiving, retrieving, originating, switching, storing, displaying, manifesting, measuring, detecting, recording, reproducing, handling, or utilizing any form ofdata for business, scientific, confol, or other puryoses. (4) "Computer program" means one or more statements or instructions composed and structured in a form acceptable to a computer that, when executed by a computer in actual or modified form, cause the computer to perform one or more computer operations. The term "computer program" shall include all associated procedures and documentation, whether or not such procedures and documentation are in human readable form. (5) "Data" includes any representation ofinformation, intelligence, or data in any fixed medium, including documentation, computer printouts, magnetic storage media, punched cards, storage in a computer, or transmission by a computer network. (6) "Electronic communication" means any transfer ofsigns, signals, writing, images, sounds, data, or intelligence ofany nature ffansmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects interstate or foreign commerce, but does not include:

(A) Any wire or oral communication;

Page 2

o.c.G.A. $ l6-9-92

(B) Any communication made through a tone-only paging device; (C) Any communication from
a

tracking device; or
a

(D) Electronic funds transfer information stored by


the electronic storage and hansfer offunds.

financial institution in a communications system used for

(7) "Elechonic communication seryice" means any service which provides to its users the ability to send or
receive wile or electronic communications.

(8) "Electronic communications system" means any wire, radio, electromagnetic, photoelecfonic, photo-optical, or facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment lor the electronic storage ofsuch communications. (9) "Electronic means" is any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:

(A) Any telephone or telegraph instrument, equipment, or facility, or any component thereol (i) Furnished to the subscriber or user by a provider of elecfionic communication service in the ordinary course of its business and used by the subscriber'or user in the ordinary course of its business or furnished by such subscriber or user for comection to the facilities of such service and used in the ordinary course of its business; or

(ii) Used by a provider ofelectronic communication seryice in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of his or her duties; or
(B) A hearing aid or similar device being used to corect subnormal hearing to better than normal.

(I0) "Electronic storage"


transmission; and

means:

(A) Any temporary, intermediate storage ofwire or electronic communication incidental to its electronic
(B) Any storage ofsuch communication by an electronic communication service for purposes ofbackup protection of such communication. (11) "Financial instruments" includes any check, draft, money order, note, certificate ofdeposit, letter ofcredit,

bill ofexchange, credit or debit card, transaction-authorizing mechanism, or marketable security, or any computer
representation thereof.

(12) "Law enforcement unit" means any law enforcement officer charged with the duty ofenforcing the criminal laws and ordinances ofthe state or ofthe counties or municipalities olthe state who is employed by and compensated by the state or any county or municipality ofthe state or who is elected and compensated on a fee basis. The term shall include, but not be Iimited to, members ofthe Department of Public Safety, municipal police, county police, sheriffs, deputy sheriffs, and agents and investigators ofthe Georgia Bureau of Investigation. (13) "Property" includes computers, computer networks, computer programs, data, financial instruments,. and
services.
(

14) "Remote computing seruice" means the provision to the public ofcomputer storage or processing services by

means
(

ofan electronic communications system. l5) "Services" includes computer time or services or
data processing services.

(16) "Use" includes causing or attempting to cause:

(A) A computer or computer nefwork to,perform or to stop performing computer operations:


(B) The obstruction, interruption, malfunction, or denial ofthe use of a computer, computer network, computer program, or data; or (C) A person to put false information into a computer.
a computer, computer unauthorized use.

(17) "Victim expenditure" means any expenditure reasonably and necessarily incurred by the owner to verifu that network, computer program, or data was or was not altered, deleted, damaged, or destroyed by

Page 3

o.c,G.A. $ 16-9-92

(18) "Without authority" includes the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner ofthe computer or computer network.

HISTORY: Code 1981, $ l6-9-92,


3/SB 62.

enacted by Ga.

L.

1991, p. 1045, S 1;

Ga.L. 1992,p.6, $ 16; Ga. L.2005, p. 199, $

NOTES: EDITOR'S NOTES. -Ca. L. 2005 p. 199, $

1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the'Georgia Slam Spam E-mail Act."' Ga. L. 2005 p. 199, $ 2, not codified by the General Assembly, provides that: "The General Assembly finds and declares that electronic mail has become an important and popular means ofcommunication, relied on by millions of Georgians on a daily basis for personal and commercial purposes. The low cost and global reach ofelectronic mail make it convenient and efficient. Electronic mail serves as a catalyst for economic development and liictionless commerce. The General Assembly further finds that the convenience and efficiency ofelectronic mail is threatened by an ever-increasing glut of deceptive commercial electronic mail. The senders ofthese electronic messages engage in a variety offiaudulent and deceptive practices to hide their identities, to disguise the true source oftheir electronic mail, and to evade the criminal and civil consequences oftheir actions. Deceptive commercial electronic mail imposes costs upon its ultimate recipients who are forced to receive, review, and delete unwanted messages and upon the electronic mail service providers forced to carry the messages. The General Assembly ftrrther finds that our state has a paramount interest in protecting its businesses and citizens from the deleterious effects ofdeceptive commercial electronic mail, including the impermissible shifting ofcost and economic burden that results ftom the false and fraudulent nature of deceptiye commercial electronic mail. Georgia's enforcement ofthis interest imposes no additional burden upon the senders ofsuch elecfionic mails in relation to the Iaws ofany other state, in that such enforcement requires nothinB more than the senders' forbearance from active deception."

LAW REVIEWS. --For article on 2005 amendment ofthis Code section,


LexisNexis 50 State Surveys, Legislation & Regulations
Computer Crimes

see

22 Gct. St. U. L. Rev. 39 (2005).

JUDICIAL DECISIONS WITHOUT AUTHORITY. -Defendant was properly convicted ofcomputer thefr.tnder O.C,G.A. $ l6-9-9j because the defendant copied homeowner association data from the computer ofthe defendant's employer without authority tnder O.C.G.A. S 16-9-92(18), and the defendant had the intent ofappropriating that information for the defendant's own use in the defendant's new business. DuCom v. State, 288 Gq. App. 555, 654 S.E,2d 670 (2007), cert. denied, No. 508C0598, 2008 Ga. LEXIS 383 (Ga. 2008). Trial court did not err in denying a former employee's claims under the Georgia Computcr Systems Protection Act, O.C.G.A. 16-9-93, because the actions ofa former employer's president in perusing the employee's email on the computer that the employee used in conducting business for the employer were not taken without authority; the president had authority to inspect the employee's computer pursuant to the computer usage policy contained in the employee manual, which the employee had agreed to abide by when the employee started work with the employer, and the president acted irt order to obtain evidence in connection with ari investigation of improper employee behavior. Sitton v. Print Direction, lnc., 312 Ga. App. 365,718 S.E.2d 532 (2011).

CITED in Fugarino v. State, 243 Go. App. 268,


Title Note Chapter Note Article Note Part Note

531 S.E.2d 187 (2000).

Page

f,

LexisNexis*
OFFICIAL CODE OF GEORGIA ANNOTATED Copyright 2012 by The State ofGeorgia

All rights reserved.

*** Current Through the 2012 Regular Session *** *** Annotations Curent Tluough November 9,2012 ***
TITLE 16. CRIMES AND OFFENSES
CHAPTER 5. CRIMES AGAINST THE PERSON ARTICLE 7. STALKINC GO TO GEORGIA STATUTES ARCHIVE DIRECTORY o.c.G.A.
$ 16-5-90. Stalking; psychological evaluation

16-5-90 (2012)

(a)(l ) A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent ofthe other person for the purpose ofharassing and intimidating the other pemon. For the purpose ofthis article, the terms "computer" and "computer network" shall have the same meanings as set out in Code Section I6-9-92; the tetm "contact" shall mean any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device; and the place or places that contact by telephone, mail, broadcast, computer, computer network, or any other electronic device is deemed to occur shall be the place or places where such communication is received. For the purpose ofthis article, the term "place or places" shall include any public or private property occupied by the victim other than the residence ofthe defendant. For the purposes ofthis article, the term "harassing and intimidating" means a knowing and willful course ofconduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety or the safety ofa member ofhis or her immediate family, by establishing a pattem of harassing and intimidating behavior, and which serves no legitimate purpose. This Code section shall not be construed to require that an overt threat ofdeath or bodily injury has been made. (2) A person commits the offense of stalking when such person, in violation ofa bond to keep the peace posted pursuant to Code Section l7-6-l 10, standing order issued und.er Cade Section 19-l-1, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, or permanent injunction or condition ofpretrial release, condition ofprobation, or condition ofparole in effect prohibiting the harassment or intimidation of another personl broadcasts or publishes, including electronic publication, the picture, name, address, or phone number ofa person for whose benefit the bond, order, or condition was made and without such person's consent in such a manner thal causes other persons to harass or intimidate such person and the person making the broadcast or publication knew or had reason to believe that such broadcast or publication would cause such person to be harassed or iniimidated by others. (b) Except as provided in subsection (c) ofthis Code section, a person who commits the offense ofstalking is guilty

ofa misdemeanor.
(c) Upon the second conviction, and all subsequent convictions, for stalking, the defendant shall be guilty ofa felony and shall be punished by imprisonment for not less than one year nor more than ten yean.

(d) Before sentencing a defendant for any conviction ofstalking under this Code section or aggravated stalking under Code Section 16-5-9-1, the sentencing judge may require psychological evaluation of the offender and shall

Page 2

o.c.G.A. $ l6-5-90

consider the entire criminal record ofthe offender. At the time of sentencing, the judge is authorized to issue a permanent restraining order against the offender to protect the person stalked and the members ofsuch person's immediate family, and the judge is authorized to require psychological treatment of the offender as a part ofthe sentence, or as a condition for suspension or stay ofsentence, or for probation.

HISTORY: Code 1981, $ /6-5- 90, enactedby


$ l.

Ga.

L.

1993, p. 1534, S

l;

Ga. L. 1998, p. 885, $

l;Ga. L. 2000, p.

1283,

NOTES: EDITOR'S NOTES. -Ga. L. 1998, p. 885,

$ 4, not codified by the General Assembly, provides that the 1998 amendment was applicable to conduct occurring,or allegedly occurring on or after July l, 1998.

LAW REVIEWS. --For annual survey article discussing tort law, see 5l Mercer L. Rev. 46I (1999). For afticle, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. I (2001). For article, "Family Violence and Military Procedures in Georgia: An Introduction for Non-Military Lawyers," see 7 Ga. St. B.J. 16 (2001), JUDICIAL DECISTONS

CONSTITUTIONALITy. --O.C.C.A. $ 16-5-90


590,449 S.E.2d 94 (1994).

is not unconstitutionally vague or overbroad. /ohnsonv. Slote, 264 Ga.

"SURVEILLANCE" DEFINED. -Although O.C.G,A, $ 16-5-90(a) failed to define the term "surveillance," the term was readily understood by people ofordinary intelligence as meaning a close watch kept over someone or something. Accordingly, the indictment put defendant on notice that driving to, parking at, and sitting outside the victim's residence constituted "surveillance." Jores v. State, 3 I0 Ga. App. 705, 7l j S. E.2d 895 (201 1). AMENDMENTS. -When defendant's indictment, lndet O.C.G.A. $ I 6-5-90 (a), prohib iting aggravated stalking, referenced instances ofdefendant's stalking behavior against the victim occurring within a single week, these acts evinced a pattern ofprohibited behavior criminalized by the amended version of $ 16-5-90(a), so the amendment did not render defendant's indictment void. Daker v. Williams, 279 Ga. 782, 621 S.E.2d 449 (2005). WhenO.C.G.A. iO 16-5-90 afi I6-5-91 , regarding aggravated stalking, were amended without including a savings
clause, before a final judgment was entered on defendant's convictions under the statutes, this did not invalidate those convictions because defendant was convicted olt\,,/ice contacting the victim at the victim's home in violation ofa condition ofpretrial release, to harass and intimidate the victim, which was a crime both under the statutes' old version and under their amended version; under the amended statutes, aggravated stalking was committed when a person, "in violation ofa condition ofpretrial release contacts another person at or about a place or places without the consent of the other pemon for the purpose of harassing and intimidating the other person." Daker v. lYilliams, 279 Ga. 782, 621
s. E.2d 449 (2005).

JURISDICTION. -Family Violence Act, O.C.G.A. f 19-l 3-l et seq., gave Georgia courts jurisdiction over a nonresident only ifthe act with which the nonresident was charged met the requirements of O. C Gl. 5 9- 10-91.(2), (3): further, the conduct giving setothe offense occured when the maker ofthe call spoke into the telephone; a parent's daily calls to Georgi; fto; another state to speak to the parent's child or when the parent made the calls that allegedly threatened and harassed the other parent did not conler juri sdiction in Georgia. Anderson v. Deas, 27 9 G a. App. 892,
632 S.E.2d 682 (2006).

VEN'IIE PROPERLY ESTABLISHED. -Trial court did not err in denying the defendant's motion for a directed verdict after a jury found the defendant guilty of aggravated stalkirg in violation of A C G. A. $ I 6-5-91 (a) because the evidence authorized the jury to find that venue in Lowndes County was properly established; the victim and the victim's family resided in Lowndes County, and the victim's mother testified that the defendant had sent the letter to their res idence and that the letter was retrieved ftom the mailbox at their residence. Bowen v. State, 304 Ga. App. 8 I 9, 697 s.E,2d 898 (2010).

STATUTE DOES NOT CREATE PRIVATE CAUSE OF ACTION. -Although O,c.G.A. s 16-5-90 establishes the public policy ofthe state, nothing in its provisions creates a private cause ofaction in tort in favor ofthe victim.

Page 3

o.c.G.A. $ 16,5-90

Troncolliv. Jones,237 Ga. App. 10, 514 S.E.2d 478 (1999); Hopkinsonv. Hopkinson,239 Ga. App. 518, 521 S,E.2d
453 (1999).

SUFFICIENCY OF INDICTMENT. --Trial counsel was not ineffective in failing to file a motion to dismiss an indictment that charged the defendant with aggravated stalking in violation of O. C.G.A. $ I 6-5-91(a), although the language used did not mention that the defendant's actions were intended to "intimidate" the victim, as such was implicit in the indictment where acts in violation ofthat statute which were allegedly done unlawfully were inferred to have been done for the purpose ofharassing and intimidating and the definition of "harassing and intimidating" was singular pursuant to O.C.G.A. S 16-5-90(a)(1). Phillips vl State, 278 Ga. App. 198,628 S.E.2d 631 (2006).

HARASSING AND INTIMIDATINC CONDUCT REQUIRED. -Defendant's single violation of a permanent protective order was insufficient to prove aggravated stalking in violation of O.C.G.A. $ l6-5-91(a), which required
showing of a pattem ofharassing and intimidating conduct as defined in the simple stalkin g statute, O.C.G.A. 90(a)(1). Statev. Burke,287 Ga. 377, 695 S.E.2d 649 (2010).

16-5-

ATTEMPT TO COMMIT STALKING A CRIME. -Stalking is not "in essence

a common law assault"; while the crimes may overlap in some circumstances, the rationale for not punishing an attempted assault does not apply to an attempted stalking which is the attempt to follow, place under surveillance, or contact another person; reversing Roofu v. Stqte, 217 Ga. App. 643, 458 S. E.2d 667 (1995). State v. Rooks, 266 Gq. 528, 468 S. E.2d 3 54 (1996).

EVIDENCE SUFFICIENT FOR CONVICTION. -See Hooperv. State,223 Ga, App. 515, 478 S.E.2d 606 (1996); Hall v. State, 226 Gq. App. j80,487 S.E.2d 4l (1997); Jerushebat,. State,226 Ga. App. 696, 487 S.E.2d 465 (1997). There was sufficient evidence to convict defendant of stalking; given defendant's history ofviolence toward the victim, the defendant's spouse, ajury could have found that defendant's actions at the health center, of following the victim in defendant's vehicle after the victim Ieft the center, yelling at the victim, impeding the victim's movement, forcing the victim into oncoming lanes oftraffic, and, on several occasions, bumping the victim's car, were intelded to, and did, harass or intimidate the victim. Johnsonv. Stqte, 260 Ga. App, 413, 579 S.E.2d 809 (2003). Evidence was sufficient to support defendant's conviction on a charge ofaggravated stalking, as the evidence showed that defendant, without consent, sought to harass and intimidate defendant's former love interest, and that in order to do so, defendant violated ajudicial order to stay away from defendant's former love interest, defendant contacted the former love interest by continuously telephoning the former love interest, and defendant appeared at the former love interest's apartment uninvited. S/evens v. Stste,26l Ga. App. 7j, 581 S.E.2d 685 (200r. Evidence was sufficient to support defendant's conviction for stalking, in violation of O. C G.A. l6-5-90(a)(1), because defendant admitted that defendant went to a former love interst's place ofemployment and home, and the love interest did not consent to either visit and was frightened by both; defendant's intent to harass or intimidate was infened from the circumstances, as defendant had a prior physical abuse history with the victim, it was late and he intended to contact the victim when the victim was alone, and tkeatened to kill the victim and the victim's spouse. Thomas v. Stqte, 276 Ga. App. 79, 622 S.E.2d 421 (200r. Trial court did not en in denying the defendan('s motion for a directed verdict ofacquittal as to two aggravated stalking charges, despite claims that: (l) the state failed to prove the defendant acted for the purpose ofharassing and intimidating the victim; and (2) the defendant lacked the requisite intent to commit the crimes, as the former argument attacked the credibility ofthe witnesses, which the appeals court did not weigh, and, regarding the latter argument, the intention with which an act was committed was ajury question, Chathamv. State,280 Gq. App. 695, 6j4 S.E.2d 856

Q006). Aggrayated stalking conviction was upheld on appeal, supported by sufficient evidence that the defendant continued to harass the victim and the victim's family, specifically, the victim's two daughters, despite a no contact order made part ofthe defendant's bond conditions, and that when coupled with a history ofdoing such, the defendant's actions harassed and intimidated the victims and placed them in fear for their safety. Hennessey v. State, 282 Ga. App. 857, 640 s.E,2d 362 (2006). Appeals court rejected the defendant's claim that the state failed to show any intent to harass or intimidate the victim as the evidence demonstrated that the defendant violated an order prohibiting any contact with the victim by persistently calling the victim, sending the victim cards, showing up at the victim's home, and leaving the victim notes; moreover, given the history ofthese persistent, disturbing actions, and the defendant's refusal to leave the victim alone, a rational jury could have found beyond a reasonable doubt that such acts were intended to harass and intimidate the victim. Pqttersonv, State,284 Go. App 780, 645 S.E.2d 38 (2007).

Page

o.c.c.A. $ l6-5-90

Evidence supported the defendant's stalking conviction because sufficient evidence showed that the defendant, over the victim's objection, followed and surveilled the victim while the victim was at work, with no valid reason for being anywhere near there, and because that caused the victim emotional distress ar,d fear. Kilby v. State, 289 Ga. App. 457, 657 S,E.2d s67 (2008). Testimony flom a stalking victim that when the victim was contacted by the defendant by phone and realized that the defendant was not injail the victim's heart dropped, and the victim became fearful ofgoing outside because ofthreats the defendant made against the victim, established that the defendant was harassing and intimidating the victim as deftned tn O.C.G.A. 16-5-90(q)(1). Dqvidsonv. Stqte,295 Ga. App.702,673 5.E.2d91 (2009). There was sufficient evidence to support the defendant's conviction for stalking in violation of O.C.G.A. $ l6-590(a)(1) as the defendant contacted the victim's employer to accuse the victim ofmaking sexual suggestions, and the defendant also contacted the police in connection with an alleged hit-and-run by the victim in order to intentionally send a message to the victim; the evidence showed that the defendant acted in that way with the intent to harass or intimidate the victim. Hat'vill v. Stqte, 296 Ga. App. 453, 674 S.E.2d 659 (2009). Convictions of arson, O.C.G.A. $ l6-7-60(a), and stalking, O.C.G.A. S l6-5-90, were proper because the circumstantial evidence presented at trial included a kerosene-soaked, partially burned, mailing label addressed to the defendant found at the scene ofa fire at the victim's home; the jury was entitled to infer lrom this evidence that the defendant left a virtual "calling card." The state also presented evidence ofthe defendant's escalating obsession with the victim and the threatening phone calls the defendant made to the victim shortly before the fire. Ransom y. State, 297 Ga, App. 902, 678 S.E,2d 574 (2009). Evidence that defendant, the victim's eighth grade teacher, repeatedly attempted lo communicate with the victim after the victim broke up with the defendant, including showing up at the victim's work and gym, leaving signs posted along the road the victim used, and sending the victim many text messages was sufficient to convict the defendant ofstalking under O.C.G.A. S 16-5-90(b). Placqnicav. Stqte,303 Ga. App. 302,69j S.E.2d 571 (2010). Trial court did not err in denying the defendant's motion for a directed verdict after ajury found the defendant guilty of aggravated stalking in vio lation of O.C.G.A. $ I 6-5-91 (a) because evidence of the defendant's continuing unauthorized cortacts with the victim and repeated violations ofrestraining orders established a pattern ofharassing behavior; a permanent restraining order had been entered that prohibited the defendant from having any contact with the victim, but the defendant violated that order by sending a letter to the victim that caused the victim to fear for the victim's own family and that olthe victim's family. Bowen v. State, 304 Ga. App. 819, 697 S. E.2d 898 (2010). When the victim obtained a protective order against the defendant after the defendant forced the victim into a house and ripped the engagement ring offthe victim's finger. the victim's brake lines were also cut three times and the victim's tires were slashed; a surveillance video was played at trial and the victim identified the man bending over the tires as defendant; thus, the evidence was sufficient for the jury to convict the defendant of two counts ofaggravated stalking tnder O.C.G.A. $$ l6-5-90(a) and l6-5-91 and criminal trespass to property. Reedv. Stqte, 309 Ga. App. 183,709 s. E.2d 847 (201 t).

EVIDENCE INSUFFICIENT FOR COI.WICTION. --Evidence was insulficient to support a defendant juvenile's adjudication ofdelinquency for stalking as: (1) a truck in which the defendant juvenile was riding drove into a deputy sheriffs driveway and sat in front ofthe house for a minute or a minute and a half: (2) neither the deputy sheriffnor the deputy sheriffs spouse testified that they were afraid or that this caused them any emotional distress; and (3) there was no evidence that the deputy sheriffor the deputy sheriffs spouse were harassed or intimidated. ln the lnlerest o{C.C., 280 Ga. App. 590,634 S.E.2d s32 (2006). Trial court erred in convicting the defendant ofstalking because the state failed to establish a course ofconduct or pattem of behavior required by O.C.G.A. S 16-5-90(a)(1); the defendant's act of following the victim in the victim's vehicle to a store and watching the victim going into and out ofthe store fell short ofdemonstrating the requisite pattern ofharassing and intimidating behavior. Autryv. State, 306 Gq. App. 125,701 S.E.2d 596 QAlq.
Imposition of a stalking protective order against the former boyfriend was inappropriate under O.C,G.A, SS 16-5(a)(l ), 1 6-5-94(e), l 9- I 3 -3 (c) because the evidence admitted at the hearing was clearly insufficient to establish the necessary "pattern" ofharassing and intimidating behavior against the former girlfriend. Even assuming that an incident in the parking lot constituted the requisite contact of an intimidating or harassing nature, the only other evidence presented was that the parties would sometimes be in the same place at the school, which was a place that both had the right to be. Ramsey v. Middleton, j I 0 Ga. App. 300, 7 I 3 S. E.2d 428 (20 I I ).
90

SUMMARY JUDGMENT ON STALKINC DENIED. -Even though the appellee admitted to committing certain acls which satisfied some ofthe elements ttnder O.C.G.A. $ 16-5-90, based on a denial of the intent required under the

Page 5

o.c.c.A. $ l6-s-90

statute, no abuse resulted in denying the appellant injunctive reliefand setting the case for a bench trial. Andersony. Mergenhagen, 283 Ga. App. 546, 642 S.E.2d 105 (2007).

EVIDENCE SUFFICIENT FOR PROTECTM ORDER. --Entry ofa protective order in favor ofa resident against a
neighbor was supported by evidence that the neighbor had blared Ioud music at the resident's home, put a hand in the resident's trousers or grabbed the resident's crotch and made lewd motions towards the resident, and once gestured in this way towards the resident's child and a visitor. De Louisv. Sheppard,277 Gd. App.768, 627 S.E.2d 846 (2006). Protective order against a former wife was waxranted under the Family Violence Act, O.C.G.A. $ /9-l3-l, because there was sufficient evidence that she committed the predicate act ofstalking her former husband under O.C.G.A. $ 165-90 by hiring a detective to follow him, by harassing him at his place ofwork, and by sending him threatening text messages. Quinby v. Rausch, 300 Ga. App. 424, 685 S.E.2d 395 (2009). Evidence was sufficient [ndet O.C.G.A. $ 16-5-90 to support the entry ofa stalking twelve-month protective order pursuant to O. C Gl . I 6-5-94 (d) against the defendant because the defendant contacted the victim via abusive emails numerous times and placed the victim under surveillance on several occasions without the victim's consent, and the frequency and nature ofthe defendant's contact and surveillance was such that the trial court could conclude that it \ryas done for the purpose ofharassing and intimidating the victim; there was also sufficient evidence that the contact and surveillance put the victim in reasonable fear for the victim's safety. Thornton v. Hemphill, 300 Gct. App. 647, 686 5.8.2d263 (2009), cett. denied, No. Sl0C04l3,2010 Ga. LEXIS 342 (Ga.2010). Tdal court did not eff in granting a protective order under O.C.G.A. $ I6-5-90(a)f.l) against a foster parent who had placed a family under extensive surveillance through a combination of intemet searches and third party observations of the family's home and contacted law enforcement, causing groundless investigations. The foster parent was not immune from liability under O.C.G.A. S l9-7-5(1) beca\se lhe foster parent had not received any information that a child in the home had been subjected to abuse. Oweny. Watts, 307 Ga. App. 493,705 S.E,2d 852 (2010).

Ga. 166, 647 S.E.2d I (2007). Trial court abused the court's discretion by issuing a protective order against a lessee because a lessor did not meet the burden under O, C G.A. S$ 16-5-9a@) and l9- I j-j(c) of showing that the lessee committed the offense of stalking, O.C.G.A. S 1 6-5 -90(a)( I ); other than the lessor's own testimony, the lessor offered no proof that the lessee and a former business associate were acting in concert againstthe lessor or that their allegedjoint activities were ofthe type that would support a protective order based on the offense ofstalking. Martinv. Il/oodyard, 3lj Ga. App. 797,723 S.E.2d 293 (2012).

EVIDENCE INSUFFICIENT FOR PROTECTIVE ORDER. --Because a lre chiefs actions taken against certain fire department employees did not constitute stalking under O. C.G.A. $ l6-5-90(a)f1r, but were committed for the legitimate purpose ofphysical training and arose during legitimate training activities, the issuance ofa permanent restraining order against the fire chief for those activities amounted to an abuse ofdiscretion. Pilcherv. Stribling,282

EVIDENCE INSUFFICIENT FOR PROTECTIVE ORDER PROTECTING PRIEST AGAINST PARISHIONER. .Trial court abused the court's discretion by ganting a priest a stalking protective order against a former church organist as the priest never indicated fear for the priest's safety as a result ofthe former organist's disruptive ard interfering behavior. Rather, the priest indicated weariness with regard to the former organist's behavior and that the behavior was interfering with the life ofthe parish, which was insufficient to justify the issuance ofthe protectiye otdet. Sinclair v.
Daly, 295 Ga. App. 61j, 672 S.E.2d 672 (2009).

DETERMINING ANOTHER INCIDENT OF STALKING. -Civen that the defendant engaged for several years in a consistent pattern ofabuse and harassment against defendant's daughter, a rational trier of fact could find that
defendant's surveillance ofher on another incident date evidenced yet another abusive, harassing acl. Benton v. Stqte, 256 Ga. App. 620, s68 S.E.2d 770 (2002).

REVOCATION OF THE BOND OF A PERSON CHARGED WITH STALKINC lies within the discretion of the trial judge; however, because a bond revocation involves the deprivation ofone's liberty the decision must comport with at least minimal state and federal due process requirements. Hoadv. Carsten,267 Ga. 579, 481 S.E.2d 525 (1997).
PROTECTIVE ORDERS. -Publishing or discussing the former girlfriend's medical condition with others was not stalking since it did not threaten her or her family's safety; therefore, the prohibition in the protective order exceeded the statutory scope of authority. Collins v. Bazan,256 Ga. App. 164, 568 S.E.2d 72 (2002).

Page 6

o.c.G.A. $ 16-s-90

Evidence that defendant, over the high school student's objections, repeatedly placed the student under surveillance, took pictures ofthe student, and shouted at the student was sufficient to show defendant was stalking the student and justified the entry of a protective order against defendanl. Johnson v. Smith, 260 Ga. App. 722, 580 S. E.2d 674 (2003). Protective order based on the anti-stalking statute, O.C.G.A. S I6-5-90(a)(l ), was not supported by sufficient evidence where statements made by the child offthe record to the trial court could not be used to uphold the trial court's decision; similarly, a letter written to the trial court by the child constituted hearsay without probative value, and the testimony of an officer and the parent was rank hearsay that lacked any probaliye yalue. Allenv. Clerk, 273 Ga. App. 896, 616 S.E.2d 213 (2005).

VIOLATION OF PROTECTIVE ORDER. --There was sufficient evidence to support convictions for stalking

in

violationofO.CG.l.$16-5-90andaggravatedstalkingunderO.C.G.A.$16-5-91(a)becatsedefendantcontactedthe defendant's love interest in violation ofa temporary restraining order, with the requisite intent, by sending two letters that the victim received after the protection order was granted, and the state established that defendant's conduct was for the purpose ofharassing and intimidating the love interest; a rationaljury could have found beyond a reasonable doubt that such acts were intended to harass and intimidate and reasonably placed the victim in fear for the victim's safety. Maskivish v. Stqte, 276 Gq. App. 701 , 624 S.E.2d 160 (200r.

-ln a trial in which defendant was convicted of two counts of stalking, in violation of O. C G.A. S 16-590(a)(1),they did not merge because they were based on factually distinct acts that occurred in different places and at different timesl defendant had parked at the victim's place ofemployment and then a short time later, parked at the
MERGER. victim's home. Thomqs v. State, 276 Ga. App. 79, 622
S.

E.2d 421 (200r.

JURY INSTRUCTION THAT OMITTED 'INTIMIDATING." --Jury instruction on the offense of aggravated stalking in violation of O. C C.A, $ 16-5-91 (a), which omitted the word "intimidating" from the charge, was not error because the trial court defined the term "harassing" in accordance with the statutory definition of O.C.G.A, S l6-5-90(a)(1), ard accordingly, thejury was informed ofthat element by way ofdefinition; the omission was inconsequential and the charge, viewed as a whole, was not likely to mislead or confuse the jury. Phillips v. Stqte, 278 Gq. App. 198, 628 S. E.2d
63

(2006).

COUNSEL NOT INEFFECTIVE. -Defendant's stalking convictions were upheld on appeal, given that trial counsel was not ineffective in failing to present the testimony from a second psychiatrist regarding the defendant's mental condition, as the defendant failed to show how testimony from a second psychiatrist would have aided the defense, and a request for recharge alone did not prove that the jury was confused on the issue ofthe defendant's mental condition or State, 283 Ga. App. 79, 640 S.E,2d that counsel had not provided them with sulficient evidence concerning it. Albert

670 Q006). Defendant's ineffective assistance ofcounsel claim did not warrant a new trial in a prosecution for rape, kidnapping, aggravated stalking, and two counts ofstalking; because ofthe limited nature ofa challenged witnesses'trial testimony, defense counsel made a strategic decision not to seek recusal ofthe trial judge, who was the brother ofthe challenged witness, and counsel discussed with the defendant the reasons for not seeking recufal. Pirkle v. Slale, 289 Gq. App. 450, 6s7 S.E.2d 560 (2008),

LACK OF RECORD THAT OATH WAS ADMINISTERED DID NOT CONSTITUTE REVERSIBLE ERROR, -ON
appeal from a stalking conviction, because the record failed to show that the oath was not administered to the jury, no reversible error existed, and the appeals court had to presume that the jury was s\,,totn. Benton v. State, 286 Ga. App. 736, 649 S.E.2d 793 (2007), cefi. denied,2007 Gq. LEXIS 753 (Ga. 2007).

CITED in Robinson v. State, 21 6 Ga. App. 816, 456 S.E.2d 68 (1995); Adkins v. State, 221 Ga. App. 460, 47 I S. E.2d 896 (1996); Il/ilburn v. State,223 Ga. App.476,477 5.E.2d909 (1996); Dqkerv. State,243 Ga. App. 848, 533 S.E.2d 393 (2000); Bogan v. State,255 Ga. App.413,565 S.E.2d 588 (2002); Rawclffiv. Rawcliffe,283 Ga, App.264,641 S.E.2d 255 (2007); Louisyr v. State, j07 Ga. App. 724, 706 S.E.2d I 14 (201 I ); Brooks v. State, i l3 Ga. App. 789, 72j S.E.2d 29 (2012); Elginv. Swann, j15 Ga, App. 809,728 S.E.2d 328 (2012).
RESEARCH REFERENCES

ALR. -Validity, construction, and application ofstalking statutes, 29,4 LR5th 487.

Page 7

o.c.G.A. $ l6-5-90

Title Note
Chapter Note

Article Note

Crtrd ,vt Y,tqtndonrg

bA*

pagel

Lexish*lexis=
MARKS v. THE STATE.
A10A2t 10. COURT OF APPEALS OF GEORGIA
306 Gt, App. 8241 703 S.E.2d 379; 2010 Ga. App. LEXIS 1056; 2010 Fulton Coanry D.

Rep.3755

November 16, 2010, Decided

PRIORHISTORY: Revocationofprobation.
Superior Court. Before Judge Seeliger.

DeKalb

the revocation hearing establishes by a preponderance

of

DISPOSITION:

[***1]

Judgmentreversed.

the evidence the violation or violations alleged. ' This court will not interfere with a probation revocation unless a trial court has manifestly abused its discretion. 2

COUNSEL: Gerard B. Kleinrock, for appellant.


Gwendolyn Keyes Fleming, District Attorney, Leonors

ocGA s 42-8-34.1 (b).


See, e.9., Scott v. State, 305 Ga.

App. 596 (699

sE2d894) (20t0 WL 3244907) (2010).l***21 Grant,

Jill G. Polsler, Assislsnt District Attoineys, for

Viewed in the light most favorable to upholding the

appellee.

trial court's findings,

JUDGES: JOI{NSON, Judge. Miller, C. J., and Phipps,


P. J., concur.

the record shows that Marks' probationary sentence included conditions that, among other things, he (i) have "no contact" with his ex-wife,

'

who was his stalking victim,

(ii)

"enter into

and

OPINION BY: JOHNSON OPINION

[*824] [**3801 Johnson, Judge. two counts of aggravated stalking. The trial
On November 30,2009, Otis Marks pled guilty to
court

service as directed by the probation stafi" The requirements related to the domestic violence intervention program and community service wotk were to be performed during a one-year period during which Marks was assigned to "Intensive Probation
Supervision."

successfully complete" a domestic violence intervention program, and (iii) "perfom a minimum of 96 hours, and up to a [*8251 maximum of 132 hours, of community

sentenced Marks to a term of five years, with a one-year term of confinement reduced to time serued, and the remainder to be served on probation. Several conditions were placed on Marks' probationary sentence, including lhat he have "no contact" with the victim. On April 16.

Clarkv. Statc,287 Ga. App. la6 (651 SE2d

t 06) (2007).

Marks began

his

probationary sentence on

2010, the trial court found that Marks had violated several of the conditions, and it revoked two years ofthe probationary sentence. We granted Marks' application for
discretionary review; and because insufficient evidence

November 30,2009, and a warant was issued for his arrest on February 17,2010 after his ex-wife reported that he had been harassing her. As of March 3, 2010, when Marks was arrested for violating the terms of his

supported
reverse.

the revocation

of

Marks' probation, we

he had not completed the domestic violence interyention program or any


probationary sentence,
community service work. We have held that service ofprobation is a privilege, and that while a person [***31 is on probation, "his

A court may not revoke any part of any probated or suspended sentence unless the delendant admits the violation as alleged or unless the evidence produced at

306 Ga. App. 824,*:'703 S.E.2d 379, **; 2010 Ga. App. LEXIS 1056, *'i'r' 2010 Fulton County D. Rep.3755

Page

private life and behavior may be regulated by the State to an extent that would be completely untenable under ordinary circumstances."' Nevertheless, the trial court has the authority to revoke a probationary sentence only when the defendant has violated rules and regulations prescribed by the court. 5 Moreover, the trial coufi has the obligation to make criminal sentences, including the terms of probation, [**3811 "certain, definite and free from ambiguity, and the benefit of any doubt shall be given the accused."'

regarding his ex-girlfriend's private medical condition "obviously does not constitute contacting that person." As a result, the evidence was insufficient to find that Marks violated the "no contact" condition of his
probationary sentence.

(Citation and punctuation omitted.) lryright v. Stdte, 232 Ga. App. 646, 647 (l) (502 SE2d 756) (1ee8). Murden v. Srate, 258 Ga. App. 585, 586 (1) (574 SE2d 657) (2002) (indirect contacts

(Citation and punctuation omitted.) Mullens v. Stqte,289 Ga. App.872,873-874 (t) (658 SE2d 421) (2008). Farmer v. State, 216 Gq. App. 51 5, 520 (5) (a) (45s SE2d 297) (1995). 6 Id.

included going

to the victim's

workplace and

asking for her and calling the victim's workplace


and asking for her).

10

256 Ga. App. t64, 165 (2) (568 SE2d 72)


evidence

(2002).

Marks first claims that insufficient evidence supported the trial court's finding that he had violated the terms of his probation by contacting his ex-wife. At the revocation hearing, Marks'ex-wife testified that Marks
had not called or visited her, but rather that he had posted untrue statements about her on several websites. ' Marks' ex-wife read the postings after conducting an internet search ofher name. While the postings were made under the names of third parties, Marks' [***4] ex-wife contended that Marks had authored them because the Ianguage in the postings was similar or identical to language contained in the civil lawsuit that Marks had filed against her and because "[n]o one else . . , would have a reason to do that."

l.

2. Marks also claims that insufficient

supported the trial court's findings that he had violated the terms of his probation by failing to attend a domestic violence intervention program or completing any of his community service requirement. We agree.

The undisputed evidence showed that Marks was directed to report to his probation officer on February 18, 2010 to be assigned to an approved domestic violence [***6] intervention program. Marks reported on that date and was assigned to a program that began on March 25, 2010. However, when Marks reported to his probation officer on March 2, 2010, the officer told him that a warant had been issued for his arrest, and Marks was
arested the following day.

7 Marks' ex-wife also testified that Marks had emailed links to the website postings to several people associated with her employer, but these allegations were supported only by hearsay,
which has no probative value in a probation revocation proceeding. See Smith v. State, 283
Ga. App.317,318 (641 SE2d296) (2007).

ln Huffr. McLarty, I'the Supreme Court ofGeorgia considered whether a defendant's probation could be revoked for his failure to pay a fine that was one of the
conditions of his probation. The Court held that "because

the fine was not lawfully required to be paid by any certain date, the officials had no right [several months
into the term of the probationary sentence] to revoke the

probation for his alleged failure


terms."

to comply with

its

ln determining whether Marks' posting ofstatements about his ex-wife on the intemet constitutes "contact"
with her, we note that we have previously found that the term "'contact' is readily understood by people of or(iqary intelligence as meaning'to get in touch l*8261
probationary rhat forbids a defendant from "contacting" the '1$ji,ion may also be intelpreled as proscribing "indirect .{&ictim , O\t contacts." such contacts must still be for the purpose of getting in touch with or communicating with the victim. " Here. no evidence was presented suggesring that Marks the web postings in order I***51 to get in touch ^k ,/\ wirh"red with his ex-wile. Instead, this case communicate or .i.'L\ 't i, ,or. like Collins v. Bazan, tn in which we lound that a defendant's publication and discussions with third parties

Here, Marks'sentence required him'to "enter into and successfully complete" a domestic violence intervention program. The sentence did not require

"

Marks to complete the program by any specific even possible

date

wii(;Tcommunicate with[.]"'

s while a

during the term of his "lntensive Probation Supewision." In fact, no evidence [**382] was presented that it was program during the approximately three months that he served on [*827] probation prior to being auested for violating [***7] the terms ofhis probationary sentence,

for Marks to have completed such a

1fi\ 0,: \/ \{fl )k--,t Y\\' '

ll
12

241 Ga. 442 (246 SE2d 302) (1978). (Punctuation omitted.) Id. qt 447.

Similarly, Marks'sentence required him to "perform a minimum of 96 hours, and up to a maximum ol 132

306 Ga. App. 824,*:,703 S.E.2d 379, **; 2010 Ga. App. LEXIS 1056, x**; 2010 Fulton County D. Rep. 3755

Page 3

hours, of community service as directed by the probation that meeting that a wanant had been issued for his arrest. Because this evidence was insufficient to render it more staff." No evidence was presented that Marks was probable than not that Marks violated the terms of his directed to begin his community seruice on any rl date or at all. In fact, Marks presented unconfoverted probationary sentence, we must reverse. evidence that he asked his probation offrcer about the 13 See Wright v. Stqte,297 Ga. App. 813, 817 community service requirement because he (678 SE2d 506) (2009). get probation told Marks' officer want to behind."

specific

ever

"d[id]n't him ,: ,l:,:"T-llly that he would provide direction Judgment reversed. ^: 2, 2010 meeting. service requirement at rheir March -...-... " concur' However, as set forth previously, Marks was informed it

Mi

er, c. J., and phipps, p. J.,