by Paul Alan Levy
Shiva Ayyadurai is a computer scientist who insists that it was he who, as a child prodigy, invented email. Although his claim has been widely derided by many of the major figures who were party to the technological advances that created the Internet as well as systems of direct communication such as email, and who place the invention of email at dates far earlier than Ayyadurai claims as his own “a-ha” moment, he has apparently determined to try to use libel litigation to intimidate others from repeating the criticism. For example, he has been pointing to the settlement of a libel claim against Gawker to support the claim that failure to retract criticisms is animated by actual malice. His current lawsuit against Techdirt, in response to which the online community had broadly risen to support Techdirt’s defense, might well rebound in his face, just as General Westmoreland’s lawsuit against CBS eventually brought Westmoreland’s reputation even lower by essentially establishing as historic fact that Westmoreland had “manipulated the estimates of enemy strength, apparently for political effect.”
Ayyadurai has currently has the benefit of representation by Charles Harder, who has built a fearsome reputation as a plaintiffs’ lawyer against critical media publications by virtue of having brought down Gawker through his Peter-Thiel-funded lawsuit on behalf of Hulk Hogan. But the latest salvo from Harder, a demand letter to the social media site Diaspora, casts neither Ayyadurai nor Harder in a favorable light.
The demand letter seeks removal of some posts from one of the Diaspora site’s users, “Dr. Roy Schestowitz,” calling Ayyadurai a “troll,” a “fraud,” and a “liar” because of his public statements and his litigation and threats of litigation against those who disagree with him. It is bad enough that Ayyadurai apparently cannot stomach the presence of even the most obscure criticisms in any corner of the Internet (I, for one, had never heard of Schestowitz’s criticism until I saw Harder’s letter). Threatening litigation to quash a flea itself brings the veracity of Ayyadurai's claims into question.
But the Harder demand letter linked above is to Diaspora, not Schestowitz, and claims that Diaspora itself can be held liable under Massachusetts law on theories of defamation and intentional infliction of emotional distress, and can be subjected to compensatory and punitive damages as well as injunctive relief. His letter makes no no mention of section 230 of the Communications Decency Act or any explanation of how Harder thinks he can evade the immunity that section 230 provides. The federal court in Massachusetts recently dismissed a lawsuit by Charles Goren against Ripoff Report in which Goren’s creative theories for evading section 230 came to naught. It strikes me that filing a copycat lawsuit against Diaspora in that very court might be subject to serious sanctions (the trial judge in the Goren case awarded attorney fees in excess of $100,000, although only on a copyright theory).
Harder’s letter also includes the tag line made infamous a few years ago by John Dozier and associates working for him, that his letter is copyrighted and cannot be distributed. But I don’t think Internet readers can assess my criticism of Harder’s demands without reading the letter itself. That is why I have posted it in full.
I have asked Harder for an explanation of his theory for evading section 230. I also asked Harder to explain whether he believes that he could prevail in a copyright infringement lawsuit over the posting of his letter (the same question I posed to Dozier's associate). He has responded only by sending me a link to a web site where Ayyadurai rather bombastically expounds his claims about having invented email and pours out vitriol at those who have disputed his claims.