Monday, March 19, 2018

Sock puppet reviews aren't literally false absent additional non-identity literal falsity, court rules

Nunes v. Rushton, No. 2:14-cv-00627, --- F.Supp.3d ----, 2018 WL 1271446 (D. Utah Mar. 9. 2018)

Every time I think I’ve seen it all, I’m reminded that humans are not only stranger than we imagine, they are stranger than we can imagine. Rachel Nunes sued Tiffanie Rushton for copyright infringement, defamation, etc., mostly unsuccessfully except for the copyright claims, leaving for trial only the amount of the statutory damages award for copyright infringement.

Nunes published her novel A Bid for Love in 1998 and registered the copyright the same year. Rushton published a novel, The Auction Deal, between May and July 2014 by distributing between 80 and 90 free copies to reviewers and bloggers for promotional purposes. “With the exception of the addition of sex scenes, The Auction Deal is substantially similar to A Bid for Love and shares the same dialog, scenes, characters, themes, settings, and plot.”

In May 2014, Rushton also created about fifteen “sock puppet” accounts on Google, Yahoo, Goodreads, and Facebook to post positive reviews of her previous two novels and negative reviews of Nunes’s book. She also posted two negative Amazon reviews of A Bid for Love under her own name and two under sock puppet names.

“After Nunes learned of The Auction Deal, she attempted to obtain a copy by requesting it from one of Rushton’s sock puppet accounts.” In response, Rushton sent Nunes a series of disparaging comments, then pulled The Auction Deal from sale on Amazon after Nunes contacted her. Other than copies she bought for herself, no other copies of the novel were ever sold.  Then Rushton posted another negative review of A Bid for Love under her own name and nine more negative reviews of Nunes’s books from sock puppet accounts. She also used sock puppets to give multiple one-star ratings of Nunes’s books on Goodreads. On Facebook, her public comments about Nunes accused her of “harassment,” e.g., “I have been harassed by Nunes and her assistant for not supplying her with an ARC [advance review copy].”

After Nunes discovered Rushton’s identity, she decided to sue and started a GoFundMe fundraiser to finance her lawsuit. Rushton posted several comments on Nunes’s GoFundMe page using sock puppets, calling the solicitation a “fraud,” “hoax,” and/or “scam,” e.g., “This ‘fund me’ has got to be a hoax or scam. A publisher would be backing this if it were a real claim.”

In deposition, Rushton conceded that her novel was substantially similar to Nunes’s novel.  There was no factual dispute on her liability for copyright infringement, though there was enough to go to a jury on whether the infringement was willful, given that there was only circumstantial evidence of Rushton’s state of mind when she infringed Nunes’s copyright.  “In an email to Nunes, Rushton insisted that she could not be held liable for infringement because, in her mind, she never published The Auction Deal by selling copies to the public.”  [Well, ok.  Seems kind of Trumpian to me, if she sent out review copies, but apparently Rushton may argue that she was in a manic phase due to her bipolar disorder, so she lacked willfulness.]

Nunes’ claim for actual damages failed. Nunes didn’t argue that the infringement caused the sales of her existing novels to suffer, and Rushton never sold any copies of her infringing novel to the public for disgorgement purposes. Nunes instead alleged that Rushton’s copyright infringement caused her mental anguish and prevented her from writing two novels that she would have otherwise written during this timeframe. The court determined that “actual damages” as used in the statute didn’t include damages caused by the copyright owner’s emotional response to the infringement of a published work. “[T]he explicit provision for the recovery of the infringer’s economic profits in the Act strongly suggests that the copyright owner’s ‘actual damages’ must similarly be economic in nature,” and the case law agrees.  Thus, only statutory damages remained for trial.

The defamation/defamation per se claims failed because the online comments and emails were opinion about Nunes’s books and personality traits, hyperbolic claims of “harassment,” “scam” or “fraud,” or unpublished communications sent only to Nunes.  For example, in context, “readers would understand the use of the terms ‘fraud’ and ‘scam’ as exaggerated language expressing strong disapproval of Nunes’s efforts to raise money online, not as a charge of criminally fraudulent activity.”  As for “Ask your attorneys if in your quest to investigate and have people rally around you if you are guilty of harassment. I think the answer is yes,” that could be read to express a legal opinion, but even questionable opinions about the legal significance of Nunes’s actions aren’t actionable as defamation.

Some of Rushton’s statements did contain false statements of fact, such as messages to book reviewers and bloggers claiming that Nunes had given her permission to use elements of A Bid for Love or that Nunes had co-written The Auction Deal with her. She also posted: “[Nunes] feels threatened because I told her I would be contacting my aunt, [the CEO of Deseret Book], and letting her know how she is handling the situation—through reviewers and not through the author. Deseret Book and Seagull Book are appalled at the way she is handling the situation.”  But the asserted facts weren’t defamatory: false claims about permission or collaboration don’t have a “tendency to injure a reputation in the eyes of its audience.” False claims about her aunt and of the bookstores’ alleged disapproval weren’t defamatory, even though they were likely intended to intimidate Nunes; the statements weren’t about her, and “a falsehood concerning an opinion held by a third party is not sufficient to expose an individual to public hatred or ridicule.”

False light claims failed for the same reasons as the defamation claims.

Business disparagement/injurious falsehood: A business disparagement claim “concerns statements regarding the quality of the plaintiff’s product or the character of the plaintiff’s business,” and not “statements about an individual’s reputation.” Rushton disparaged the quality of Nunes’s novels, giving them numerous one-star reviews and criticizing them for being “out of date” and “ridiculous.” These wer constitutionally protected opinions, and Rushton’s other online comments couldn’t be used to support her claim for the same reason the defamation claims failed.

Tortious interference: Rushton allegedly interfered with Nunes’ economic relations with the readers who purchase her books by way of two improper means: (1) posting defamatory comments on the internet and (2) infringing Nunes’s copyright to A Bid for Love.  But the first wasn’t an improper means, given the result on the defamation claims, and the second was preempted by the Copyright Act.

Nunes also alleged a violation of Utah’s electronic communication harassment statute. But the statute didn’t expressly create a civil cause of action, and the court wouldn’t imply one.

Lanham Act false advertising: Nunes alleged that the use of multiple sock puppet accounts to post positive reviews of her books and negative reviews of Nunes’s books constituted false advertising. First, Rushton pretended to be an independent reader, not the author herself/the author’s competitor. Second, by using multiple sock puppet accounts, Rushton allegedly created the false impression that multiple individuals liked her books and disliked Nunes’s books.  Nunes didn’t submit evidence of actual deception, so she needed to show literal falsity. 

The court relied on Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, 2016 WL 815205 (S.D.N.Y. Feb. 29, 2016), another case involving fake reviews.  There, the court found that fake bad experiences of non-existent customers were literally false because they described events that never occurred and fictitious customers that did not exist. But reviews posted under three separate pseudonyms by an owner of a competing business who was an actual customer of the plaintiff, claiming that the services was slow and that the plaintiff’s employees were rude, weren’t literally false because they were “largely matters of opinion and the plaintiff [had] not shown that they are actionable as false statements of fact.” But that’s not really the literal falsity part: the literal falsity is the misrepresentation about being someone else (and about having three separate experiences instead of one).  Whether that literal falsity is material is a separate matter, but it might well be so, and the FTC’s Endorsement Guidelines follow the principle that falsity/failure to disclose in these matters violates the FTCA even without other specific factual claims, because of the materiality of endorsers’ connections to the endorsee.  I certainly would find it highly material that the author of a review was a direct competitor, or was also the provider of the reviewed good/service.

However, the court here found that the sock puppet reviews were just opinions: “Rushton did not misrepresent the essential characteristics of the books she reviewed. Instead, she claimed that her books were good while Nunes’s books were boring and outdated. Such statements are a matter of opinion and cannot be proven true or false.” 

Also, the Lanham Act claim failed separately because Nunes didn’t show any damages or injury. Nunes offered the testimony of her expert that negative online reviews generally negatively affect book sales, and the lay opinion of a representative of Amazon, as evidence that she had been harmed. But Moore didn’t analyze Nunes’s book sales and didn’t know whether her sales went up or down after Rushton posted her reviews, nor could she assign a monetary value to the effect online reviews may have; her opinion was based on common sense. The Amazon rep also provided his lay testimony that bad reviews generally discourage sales.  [My understanding is that there is some research out there trying to quantify this, for those of you thinking about the future of these claims.]  Without evidence as to the specific effect that Rushton’s online reviews had on Nunes’ books, or about sales during the relevant period of time, or customer surveys or customer testimony, there was no proof to support Nunes’s damages claim for lost sales. Damages caused by mental anguish also weren’t covered by the Lanham Act.  

Utah Truth in Advertising Act claims also failed; the law provides that a defendant who’s violated the law “shall” be enjoined, but also requires prior notice and an opportunity to correct the allegedly unlawful ad by the same media before injunctive relief is allowed.  Nunes’ prelitigation emails and a blog post complained about plagiarism and copyright infringement, not about the alleged violation of the Utah Truth in Advertising Act, and it didn’t provide Rushton an opportunity to correct the record in order to avoid an injunctive relief action.  Damages failed for the same reason as they did for the Lanham Act claims.

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