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Fleshbot Gets Cease & Desist from Diaz

Porn Valley- Gawker Media’s sex-centric blog Fleshbot is considering permanently removing a hyperlink to a website selling a video in which actress Cameron Diaz is seen topless. The possible move comes after the star’s attorneys sent the leading blogging outfit a cease and desist letter last week.

Last November, Los Angeles Superior Court Judge Alan Haber granted Diaz’s request for an injunction against John Rutter Productions, the company that made and is selling the Diaz video. But Gawker Media only got involved last week when Fleshbot, following on widely posted links in the blogosphere, first posted a link to the video, an S&M film made in 1992 starring a then-unknown Diaz.

“Whether or not Fleshbot or any of the Gawker sites link to (the video’s) site, it’s still there,” said Fleshbot editor John d’Addario. “We didn’t host the video, we’re not selling the video, and we didn’t link to the video itself. There are a lot of blogs out there … putting it on their sites. It’s not hard to find.”

On Thursday night, d’Addario took the link down briefly before later putting it back up.

In addition to the well-regarded Fleshbot, Nick Denton’s Gawker Media also publishes Gawker, a blog centered around New York gossip; Defamer, a Los Angeles version of Gawker; and Wonkette, a behind-the-Beltway-scenes gossip blog.

After the original Fleshbot post, both Gawker and Defamer followed up with their own commentary on the Diaz video. But d’Addario said he thinks Diaz’s attorneys are overreacting given that in his Fleshbot review of the tape, he warned his readers that the video “wasn’t worth the hard drive space” to download.

But Diaz’s legal team, headed by Los Angeles lawyer John Laverly, apparently still felt that the Gawker Media sites were a threat.

“We have learned that each of your websites … are posting a link to (the Diaz video site), the owners of which are unlawfully selling the video and photos to its subscribers for a fee,” Laverly wrote in the cease and desist letter. “Furthermore, you have unlawfully posted images … of Ms. Diaz from the video. This is unlawful conduct that will subject you to substantial compensatory damage and punitive damages.”

Diaz’s claim against Gawker Media is based on the language in the November injunction. In it, Haber wrote that not only was Rutter Productions enjoined from “disseminating, distributing, publishing, broadcasting or otherwise displaying the photos and/or video,” but so, too, were “all others having knowledge or notice of this order.”

The injunction could also apply to Wired News, if it chose to insert the link in this story, suggested Michael Barclay, an intellectual property attorney at Palo Alto’s Wilson, Sonsini, Goodrich & Rosati. That’s because Wired News has obtained a copy of the injunction.

Thus, Laverly argued, once Gawker Media received a copy of the original injunction, it was part of the “all others” category as defined by Haber.

Whether that’s true or not is a very muddy issue, said Barclay.

“They would have risk if they continued to host the links (after) getting a copy of the injunction and cease and desist letter, but before convincing the judge to not have the injunction apply to them,” Barclay said. If the judge disagreed, “then they could have a problem and be held in contempt.”

Barclay, who was largely unfamiliar with the facts of the Diaz/Gawker Media situation, said, however, that “what Cameron Diaz is doing is kind of a stretch, but understandable.”

Nevertheless, he said, Gawker Media might be wise to take down the links to the video’s site.

“If you think you have a First Amendment right to post the links,” Barclay said, then doing so comes with risk. “If you get sued, the way our judicial system works, you’d better be prepared to go to court, and that’s life.”

To d’Addario, though, the cease and desist letter is spurious.

“The news is out there anywhere,” he said. “If you follow the logic of the injunction, they’re implying that had Fleshbot and Gawker and Defamer never linked to this site, no one would know about it. (But) by the time that post went up on Fleshbot and Gawker and Defamer, it was already all over the place.”

Interestingly enough, said Barclay, this case will likely resolve itself not on issues of Internet law, but rather on rules regarding injunctions. Still, the fact that Diaz’s attorneys are demanding that no one link to the video’s site is likely to stir up discussion about how the law and linking collide.

Broadly speaking, however, there are no hard and fast rules.

“Linking has been around since the beginning of and may be at the heart of the Internet, but there are instances where linking to another site may create potential liability for the party creating the link,” wrote attorney Ivan Hoffman in “Linking and Crawling Issues,” an online article on the subject. “What is interesting from a legal evolutionary standpoint is that, in the absence of specific statutory prohibitions, courts have resorted to more traditional legal theories upon which to base their decisions.”

Mark Sableman, in his 2001 article (PDF) in the Berkeley Technology Law Journal, agreed.

“Despite the Internet’s initial ‘free linking’ ethos, links can be unlawful when they are designed to confuse viewers, to evade court orders or clear statutory prohibition, or to promote illegal conduct by others,” the St. Louis attorney wrote. “But most linking is lawful, even where the linked site claims the right to authorize and control links.”



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