This pertains to my earlier post regarding the infamous Sea Nymph rescue. You’ll recall I mentioned Dr. Linus Wilson and his coverage of the controversy, and in the comments he complained because I posted an image of him from a video he created. This image was credited as having come from his video and depicted him wearing a ball cap that said CAPTAIN on it in big letters and also a shirt that had tiny little anchors all over it. Wilson also complained I had defamed him by calling him “the king” of those asserting that Jennifer Appel and Tasha Fuiava, the crew of Sea Nymph, were perpetrating a hoax. He complained as well to SAIL Magazine, which republished my post on their blog aggregation site SAILfeed. After hearing from Wilson, SAIL immediately took down my post from SAILfeed, and I took down the image in question from WaveTrain.
Wilson nevertheless filed suit against me, Active Interest Media (AIM), which owns SAIL, SAIL’s editor-in-chief Peter Nielsen, as well as two AIM officers, Andrew Clurman and Efram Zimbalist III, in the Small Claims Division of the City Court (see image up top) of Lafayette, Louisiana (Wilson’s hometown), on November 21. He is seeking $5,000 in damages, which is the maximum recovery allowed in a Louisiana small claims court. I will not editorialize here on Wilson’s character and behavior and instead will only post the pleadings and let you draw your own conclusions.
I will note, however, that Wilson has been banned for life from the popular website Sailing Anarchy for threatening to sue people there and for violating the site’s Terms of Service, according to SA’s Senior Editor Alan “Mr. Clean” Block. Also, the British newspaper The Guardian has published a story that asserts just what I asserted, that Wilson has been trying to prove Appel and Fuiava are perpetrating a hoax. This has enjoyed much more circulation than what I wrote, but as far as I know Wilson has not complained about this nor has he filed suit against The Guardian.
One reason I want to post these pleadings is so the court can take advantage of the hot links appearing here in my answer to Wilson’s complaint, should it wish to. Also, for those curious readers who wonder generally about the legality of what goes on here in the Wild West of the Internet the arguments may prove instructive.
Here in its entirety is Wilson’s complaint:
Statement of Claim
On October 31, 2017, Mr. Charles Doane, Cruising Editor, SAIL Magazine, took a screenshot from one of the plaintiff’s copyrighted video. He cut around the Slow Boat Sailing Youtube channel branding logo. No permission to use the image of the Plaintiff was given. In addition, the blog made a false and misleading statement, “The king of the must-be-a-hoax promoters is Dr. Linus Wilson,” which was damaging to the plaintiff. SAIL Magazine is sold to residents of Lafayette, Louisiana (the city) by subscription and in stores within the city limits such as WestMarine and Barnes & Nobel. Several other Active Interest Media property magazines are also sold in the city of Lafayette, LA. AIM Media and Mr. Doane advertise products to residents of the city on their respective properties, the SAILfeed blog platform and Wavetrain.net blogs where the copyrighted material was illegally displayed from October 31, 2017, to November 6, 2017, and the slanderous statement was made. The personal injury was on the wavetrain.net property at the time of the drafting of this claim. Mr. Andrew Clurman and Mr. Efrem Zimbalist III are officers of Active Interest Media Corp. (AIM). Mr. Peter Nielsen is the editor in Chief of SAIL Magazine. Mr. Clurman, Mr. Zimbalist, and Mr. Nielsen are being sued for failing to supervise AIM Media employee Mr. Charles Doane in this matter. No compensation for the copyright violation and slander was made at the time of the drafting of this claim.
[Editor’s Note: The original complaint is handwritten. I have transcribed it to print, but have not changed the spelling, etc.]
What follows is my written answer to the complaint, which I mailed to the court on December 6. I’ve left out one brief introductory paragraph pertaining to the scheduling of the trial date.
DEFENDANT’S REQUEST FOR A NEW TRIAL DATE, HIS STATEMENT OF FACTS, HIS SUBSTANTIVE ANSWER, AND A DESCRIPTION OF HIS COUNTERCLAIM
Facts of the Case
The plaintiff, Linus Wilson, maintains a sailing blog, Slow Boat Sailing, at slowboatsailing.wordpress.com. He maintains a related YouTube video channel at youtube.com/channel/UCPODaIKSa35ZZwtOECFFC3w. On October 29, 2017, he published a blog post (slowboatsailing.wordpress.com/2017/10/29/investigation-rescued-sailors-story-has-several-holes-by-linus-wilson/) discussing the recent rescue at sea of two inexperienced women sailors, Jennifer Appel and Tashia Fuiava, who had been adrift in the Pacific Ocean for five months.
I, the defendant, maintain a sailing blog, WaveTrain, at wavetrain.net. On October 31, 2017, I also published a blog post about the Appel/Fuiava rescue (wavetrain.net/news-a-views/801-sea-nymph-rescue-two-crazy-ladies-and-their-dogs-adrift-for-five-months), which was attracting much attention in the mainstream press. In my post, among other things, I critiqued the plaintiff’s post. The critique included two embedded links, one to the plaintiff’s post and another to a related YouTube video he had produced that also discussed the rescue. It also included a screen-grab image from the video of the plaintiff himself, which was explicitly described in its caption as being excerpted from the plaintiff’s video.
I do much freelance work for SAIL Magazine, a leading sailing magazine in North America, where I am listed as Cruising Editor on their masthead. Per an agreement with them my WaveTrain blog content is syndicated and appears on their blog aggregation site, SAILfeed, at sailfeed.com. Consequently, my WaveTrain post critiquing plaintiff’s post also appeared on SAILfeed shortly after I published it.
Soon after I published my post the plaintiff complained about it to both SAIL Magazine and myself. SAIL Magazine immediately removed all of my post from SAILfeed. I removed the screen-grab image of the plaintiff from my WaveTrain post, as he complained my use of it violated his copyright. This was done as a courtesy to the plaintiff. Both I and Peter Nielsen, editor-in-chief at SAIL, explained to the plaintiff at the time that we believed my use of the image obviously fell within the fair-use doctrine in copyright law.
Plaintiff subsequently filed this small-claims action against myself, Active Interest Media (AIM), which owns SAIL, and several AIM employees, including Mr. Nielsen, claiming a violation of his copyright. He also claims I have slandered him and seeks damages of $5,000, the jurisdictional maximum allowed in this court, but has neither offered nor referenced evidence of any damage he has actually suffered.
Though the plaintiff obviously knows my home address and phone number, which appears several times in his pleadings, I was not properly served with his complaint and only learned of it secondhand. It took some time to obtain a copy. Plaintiff also never called or wrote myself or anyone at SAIL to discuss his alleged damages.
Pursuant to my syndication agreement with SAIL/AIM (attached here) I am liable for any costs and/or judgments suffered by AIM as a result of my SAILfeed blog posts, which are not edited or previewed by SAIL, and am also obligated to defend any claims made against them. I therefore appear before this court representing all the named defendants.
1. Plaintiff’s copyright violation claims
I’m sorry, but a small claims court in Louisiana does not have jurisdiction to hear federal copyright claims. As is clearly stated in the relevant federal statute, 28 U.S. Code Section 1338(a): No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.
Regardless of jurisdiction, the plaintiff’s claim is without merit. My use of the image he complains about, in the context of a public discussion of a sailing news item of great public interest that the plaintiff himself has commented upon at great length, clearly falls within the ambit of the fair-use doctrine. This is specifically described in the federal copyright statute at 17 U.S. Code Section 107: Notwithstanding the provisions of sections 107 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Although I did, as the plaintiff alleges, excise his branding from the image I published, the plaintiff was very clearly credited as the source of the image. My post included two embedded links to the material the plaintiff had published, and I very obviously was not presenting his work as my own.
2. Plaintiff’s Slander Claim
Plaintiff claims that one statement made in my blog post–that he was “king” of those urging online that Jennifer Appel and Tashia Fuiava were somehow perpetrating a hoax–was false and defamatory and that he was damaged by it. My statement, however, though tinged with a bit of subjective language, is demonstrably true. If you study the content on Slow Boat Sailing and its related YouTube video channel, you will see the plaintiff has posted a great deal of negative content about Appel and Fuiava and has consistently sought to discredit and disparage them. In said content the words HOAX and FAKE are displayed prominently and repeatedly. The plaintiff, as far as I can see, has gone to far greater lengths to remark upon and discredit Appel and Fuiava than any other sailing commentator. Any objective person who bothers to wade through all the commentary among sailing writers on this subject will reach the same conclusion.
Plaintiff also offers no proof or evidence of exactly how he was damaged by my statement, precisely because he has not been damaged in the least. To the contrary, the plaintiff has greatly benefited from his coverage of the controversy surrounding Appel and Fuiava and as their leading critic within the sailing community has been cited and quoted publicly by, among others, the following:
-The New York Times
-Cosmopolitan Magazine (cosmopolitan.com/politics/a13126256/jennifer-appel-tasha-fuiava/)
All this has provided the plaintiff with much free publicity and has greatly increased his exposure both within the sailing community and as to the public at large. My one comment on the nature of the plaintiff’s commentary and coverage has not been remarked upon by anyone other than the plaintiff himself.
It is clear that the plaintiff’s lawsuit is frivolous and has no basis in law or in fact. It seems indeed he has filed it merely to harass myself and the other defendants. I submit therefore plaintiff should pay my costs in defending this action. As was decided in the case of Harrison v. McNeese State University, 625 So.2d 318 (La. App. 3 Cir 1994), the sanction of holding a frivolous pro se plaintiff liable for defendant’s costs is appropriate under Article 863(B) of the Louisiana Code of Civil Procedure.
As the court wrote in Harrison: The obligation imposed upon litigants and their counsel who sign a pleading is to make an objectively reasonable inquiry into the facts and law. Subjective good faith will not satisfy the duty of reasonable inquiry. By choosing to represent himself, a party assumes the responsibility of familiarizing himself with applicable procedural and substantive law. His failure to do so does not give him any greater rights than a litigant represented by an attorney.
This is particularly true in this case, where we have an unusually sophisticated pro se plaintiff, Linus Wilson, who holds a doctorate in economics from Oxford University and teaches as an associate professor at the University of Louisiana.
Despite the plaintiff’s education, it is questionable whether his conduct here rises even to the level of subjective good faith. Though Peter Nielsen and I both advised him my blog post clearly fell within the fair-use doctrine, he evidently made no effort to research this, or the question of copyright jurisdiction, and is asserting his wholly frivolous copyright claim before this court nonetheless. His bad conduct is compounded by the irony that he himself, wittingly or not, often relies on the fair use doctrine in publishing his content and has quoted and published material belonging to others in making his own online commentary.
Plaintiff’s lack of good faith is further evident in the fact that he offers no proof of damages regarding his copyright or slander claims, nor even mentions any proof, in his complaint. Instead he has baldly asserted that he is entitled to the statutory maximum this court can award, assuming perhaps he can claim something like punitive damages, though even a cursory Google search reveals that punitive damages are not awarded by Louisiana small claims courts. Furthermore, the fact that plaintiff never properly served me with notice of this action, though he obviously knew my address, suggests he also was hoping to obtain an uncontested default judgment against me.
Though both SAIL and myself attempted to placate the plaintiff when he complained about my blog post, he has recklessly filed this lawsuit–without doing any research, and without asserting any provable damages. Evidently he feels that though he is entitled to criticize other people online, no one else may criticize him.
As to my damages, they are obvious. I am not a resident of Louisiana and am compelled to travel halfway across the country to defend this frivolous, meritless small claims action. Leaving aside the question of the value of my time, I believe I am reasonable in asking, at a minimum, for the cost of my transportation to and from Lafayette, the cost of my lodging, and the cost of the fee paid to file my counterclaim.
I will provide the court with proof of these at trial.
Evidently as soon as he saw this answer Wilson decided to drop his claims against me, Andrew Clurman, and Efrem Zimbalist, leaving only AIM and Peter Nielsen as defendants. I learned of this in a phone conversation with the court clerk and only today received written notice of the dismissal of the claims against me. After my conversation with the clerk I went ahead anyway and on December 14 mailed in the paperwork to formally file the counterclaim, including a check for the filing fee, and also submitted a Motion to Dismiss on behalf of the remaining defendants:
DEFENDANT’S MOTION TO DISMISS
I was advised by the court clerk on December 13 that the plaintiff, Linus Wilson, has dismissed his claims against me, Charles J. Doane, and all other defendants save for Active Interest Media (AIM) and Peter Nielsen.
Even if all facts asserted by Linus Wilson in this case are accepted as true, he now as a matter of law has no claim in this court against any remaining defendant.
Wilson’s copyright infringement and slander claims against the remaining defendants stem from statements I published online, which were subsequently republished online by SAIL Magazine, which is run by Mr. Nielsen and owned by AIM, pursuant to a blog syndication agreement between myself and AIM. Under the terms of that agreement my content is published automatically on SAIL’s website and said content cannot be edited by SAIL.
(For a more complete statement of facts with publication dates, etc., and to review the syndication agreement in full see Defendants Answer with attachment received by the court on December 8.)
Wilson cannot assert copyright claims in this court against any defendant because a small claims court in Louisiana does not have jurisdiction to hear federal copyright claims. As is clearly stated in the relevant federal statute, 28 U.S. Code Section 1338(a): No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.
Wilson also cannot assert slander claims in this court against AIM or Peter Nielsen, as they have immunity from liability pursuant to the Communications Decency Act of 1996, 47 U.S.C. Section 230(c)(1), which provides: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Under well-decided case law, this immunity extends to state defamation and slander claims. See e.g. Barrett v. Rosenthal, 146 P.3d 510 (Cal. S.C. 2006).
Therefore, to save this court and everyone else involved from wasting time trying this matter, I urge the court to immediately dismiss Wilson’s case.
NOTE: I am representing the defendants pursuant to the aforementioned syndication agreement, which obligates me to defend and indemnify them as to claims stemming from content of mine they publish pursuant to the agreement. My authority is represent them is affirmed in the attached document, signed by Peter Nielsen, an AIM employee, acting both on his own behalf and on behalf of AIM.
The court clerk called me on December 19 to inform me the court would not hear my counterclaim in this action, because I am no longer a party, but that I could file a separate action if I wanted. She also advised I cannot represent the remaining defendants, unless I am a lawyer admitted to practice in Louisiana (which I am not). She did advise, however, that the court had accepted my Motion to Dismiss and would rule on it at the trial hearing.
That hearing is scheduled for Tuesday, January 9, 2018, at 9 am, at the City Court, Small Claims Division, 105 East Convent St., Lafayette, Louisiana. The docket number is 2017CVS3774. Anyone interested who happens to be in the area that day should feel free to join us in court.
[Editor’s note: I have not included attachments to the pleadings above and have also deleted signatures.]
IN OTHER NEWS: Meanwhile, as I expected, a great deal more information regarding the adventures of Jennifer Appel and Tasha Fuiava has come to light. The most important clarification, I feel, is that the pair were not merely drifting about during the five months they were afloat, but were in fact actively sailing their boat.
I surmised in my previous post that this photo showed a member of USS Ashland’s crew climbing up the rig to inspect Sea Nymph’s damaged spreader. But I was wrong. In fact it is Jennifer Appel, who had previously climbed the rig while at sea to attempt repairs.
This photo, from Jennifer’s Facebook page, shows her attempt to lash up and stabilize the starboard spreader root. It seems the movement of the spreader when the boat was sailing on port tack was causing the starboard shrouds to pop off the spreader tip. This limited Sea Nymph’s sailing ability, but according to Jennifer she and Tasha did keep the boat sailing whenever there was wind. As I suspected, they always hoped to effect repairs and continue their adventure. USS Ashland came to them after Sea Nymph suffered damage while being towed by an over-zealous Taiwanese fishing boat. According to Appel, she assumed Ashland’s crew could help them repair their boat, but instead they declared Sea Nymph unseaworthy and evacuated the pair and their dogs. Evidently there may have been a threat of an impending typhoon at the time, though it is unclear how imminent the threat was.
Another assumption I made, that many others also made, was that Jennifer and Tasha are in a lesbian relationship together, which, according to Jennifer, is not the case.
Of course, there are many details of the voyage that still need clarifying. Getting straight facts out of Jennifer Appel, however, does appear to be challenging. As I said before, she is effusive, with a tendency to exaggerate a lot. She also tends to wander way off point when trying to explain things. To get an idea of how hard it can be to pin her down on details you can check out her podcast interview with SA’s Mr. Clean.
Appel is, however, an intriguing character. According to her, her talents include motorcycle racing, skydiving, landscape architecture, and organic farming. According to the ever lascivious Daily Mail, she also has worked as a dominatrix, and their publication of various racy photos of Jennifer has certainly not improved the quality of the debate as to what did or did not happen aboard Sea Nymph.
Interestingly, one of the best sources of information on all this is SA’s forum thread on the controversy, where Jennifer, to her credit, has jumped in and has tried to explain herself to the mostly hostile crowd of anonymous trolls there. The flow of hard facts has been hampered, of course, both by the hostility and Jennifer’s talent for hyperbole and digression, but you have to give her credit: she is one brave woman.