Indybay and Layer42 Win $87,000 From Attorney Dionne Choyce

Wednesday, December 04, 2013


A lawyer cannot pursue defamation claims against the Internet service provider behind a post that said he "embezzled from homeless," a federal judge ruled.

Layer42.net, the company at issue, hosts an independent media website called Indybay.org for the SF Bay Area Independent Media Center (SFBAIMC).

In April 2012, certain unknown persons allegedly posted a webpage on Indybay titled "Attorney Dionne Choyce, who embezzled from homeless, may serve prison time." A month later, a new page cropped up with the title "The Choyce Law Firm evicted from building."

Both pages allegedly included a picture of Choyce taken from his firm's website.

Claiming that the statements are false, the Valejo, Calif.-based lawyer filed suit earlier this year against SFBAIMC, Layer42 and Cernio Technology, a Santa Rosa firm that also provides web hosting for Indybay.

Choyce alleged defamation and copyright infringement with respect to the use of his photo without permission.

Layer42 alone responded to the complaint, moving to dismiss for failure to state a claim. The company said it also had immunity under as to copyright infringement under the safe harbor provision of the Digital Millennium Copyright Act. In addition to claiming that the Communications Decency Act bars recovery against it, Layer42 moved to strike the state-law claims underon California's Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.

The law shields against actions that aim to "chill the valid exercise of the constitutional rights of freedom of speech," U.S. District Judge Jon Tigar explained in a Monday ruling.

Though Tigar refused to dismiss on the basis of safe harbor, he granted its motion based on Choyce's failure to show copyright ownership.

"Here, it is undisputed that plaintiff did not possess a registered copyright - and had not even applied for a copyright registration - within three months after the time of the alleged infringement, which was April 25, 2012," he wrote. "Therefore, plaintiff may not seek those remedies for copyright infringement in any amended complaint."

Though Choyce can reassert the infringement claim if he alleges he has "now applied for a copyright," such a filing must seek only those remedies that "are available for infringement alleged to have occurred before the copyright holder applied for a copyright," Tigar wrote.

In his opposition to Layer42's motions, Choyce argued that ISPs responsible for creating and developing content cannot invoke the immunity provided under the Communications Decency Act.

Tigar found no evidence, however, to show that Layer42 is responsible for the website's content.

"The only factual allegations in the entire complaint that relate specifically to Layer42 is the allegation that it provides Internet hosting, connectivity and infrastructure," he wrote. "That allegation does nothing to establish Layer42's liability; in fact, all it does is establish its presumptive immunity. The facts alleged in the complaint fail to state a claim for defamation or libel against defendant Layer42.net."

In granting Layer42's anti-SLAPP motion, Tigar struck the defamation and libel claims against it "insofar as the statements about embezzlement and prosecution for embezzlement form the basis of those claims."

While such statements are connected to an issue of public interest, the same cannot be said of any allegation that Choyce's law firm was evicted from its office space for nonpayment of rent.

Choyce has until Dec. 23 to file an amended complaint.