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John T. Reed' opposition to Russ Whitney' Spring 2004 motion for an emergency preliminary injunction to shut down Reed' Web site 2 55. ""¦even the purveyor of an egregious and knowing falsehood cannot be enjoined from continued publication where no special damage is shown." Prosser and Keeton on Torts '§128 White v. Mellin [1895] A.C. 154 (H.L.), Marlin Firearms Co. v. Shields, 1902, 171 NY 384, 64 N.E. 163 56. "The rule in equity, no doubt reflecting a concern both for free speech and for jury trial rights, was that a personal libel would not be enjoined. Even if the publisher were insolvent and could not pay damages." D.Dobbs, Remedies '§7.2 Annot. 47 ALR 2d 715 57. "Quite apart from constitutional constraints a long tradition has it that equity will not enjoin defamation." Dan Dobbs Law of Torts '§ 422 58. "To a large extent the precedents against injunction are the products of state law based upon judicial reluctance to censor speech and sometimes state constitutions." Williams v. Mozzocone, 482 Pa. 377 59. "Prior restraint" on speech is a violation of the United States Constitution. Near v. State of Minnesota, 283 US 697 "A preliminary injunction is a prior restraint, and a party seeking to justify a prior restraint on speech carries a heavy burden of justifying the restraint. In order to obtain a temporary restraining order involving a prior restraint on pure speech, the publication must threaten an interest more fundamental than the First Amendment itself. Freedom of speech may not be suppressed by injunction on the grounds that its exercise may incidentally lead to a tort or breach of contract." 42 Am Jur 2d '§19 60. "Commonly referred to as the "strong arm" of equity, [injunction] is an extraordinary remedy that should be used sparingly and only in a clear case." 42 Am Jur 2d '§1 "All presumptions and ambiguities will be taken against the party who is seeking to obtain a temporary injunction." 42 Am Jur 2d '§8 61. ""¦rights already lost and wrongs already perpetrated cannot be corrected by injunction." 42 Am Jur 2d '§2 62. "Injunctive relief will not be granted merely to allay the fears and apprehensions or to soothe the anxieties of the parties." Township of South Fayette v. Allegheny County Housing Authority, 27 F. Supp. 2d 582 (W.D. Pa. 1998) aff"d 185 F. 3d 863 (3rd Cir. 1999) 63. "Probable success on the merits has been called the most important factor to be considered by a court in deciding whether to issue a preliminary injunction." AVR Inc. v. Churchill Truck Lines, Inc., 915 F. Supp. 1025 (D. Minn. 1996) ""¦when the balance of harm tips strongly in the Defendant' favor, a stronger showing of likely success on the merits is required." Standard Register Co. v. Cleaver, 30 F. Supp. 2d 1084 (N.D. Ind. 1998) 64. "Injunctions have been refused where the only offered basis of irreparable injuries was economic loss"¦or profits. Fleet National Bank v. Burke, 455 Conn . Supp. 566 Injunctive relief has also been denied to remedy alleged damage to one' reputation. [Conway v. City of Kenosha, Wisconsin, 409 F. Supp. 344 (E.D. Wis. 1975)] "A party generally may not obtain injunctive relief for a loss of profits or mere economic injury." 42 Am Jur 2d '§24 65. "Even if the wrongful acts are indisputable, an injunction may be denied if the payment of money would afford substantial redress and if the injunction would subject the defendant to grossly disproportionate hardship. The fact that an important public interest

would be prejudiced by an injunction may be a compelling reason for denying relief" City of Harrisonville, Mo. v. W.S. Dickey Clay Mfg. Co., 289 US 344 (1933) 66. Most of the few injunctions granted against free speech activities appear to involve public-safety concerns and protesting picketers at abortion clinics and similar emotional situations. 67. ""¦the Constitution itself may compel the court to refuse injunctive relief even where the statement is false if a prior restraint is involved." Organization for a Better Austin v. Keefe, 1971, 402 US 415 68. "A significant delay in asserting one' claims can be inconsistent with the professed need for the extraordinary remedy of injunction." 42 Am Jur 2d '§41 "Under the principle that "equity aids the vigilant," equitable relief is available only to those who show reasonable diligence in asserting their rights and demanding equitable protection and will be denied to those who sleep upon their rights to the prejudice of the party against whom relief is asked. A significant delay in asserting one' claims can be inconsistent with the professed need for the extraordinary remedy of injunction." 42 Am Jur 2d '§41 69. "Various equitable considerations, such as delay in asserting one' legal rights or a large discrepancy between costs and benefits, may lead the court to refuse an injunction, even if a party' rights are clear and the legal remedy is inadequate." Diefenderfer v. Forest Park Springs, 599 So.2d 1309 (Fla. Dist. Ct.. App. 5th Dist. 1992) 70. Both Plaintiffs counsel Scott Rothstein and Plaintiff Russ Whitney have made false statements in their motion and the accompanying affidavit. (Defendant' Declaration) "A judge may refuse to issue an injunction where there has been a failure to make a full and candid disclosure." Western Maryland Dairy v. Chenowith, 180 Md. 236, 23 A. 2d 660 (1942) 71. ""¦a local real estate firm was not entitled to an injunction against any statements by a rival firm' personnel which allegedly constituted unfair competition and malicious interference with business relations under state law, absent evidence as to which customers or sales agents were lost as a result of the allegedly unlawful conduct"¦" 42 Am Jur 2d '§98 RE/Max Intern, Inc. v. Realty One, Inc., 173 F 3d 995 1999 FED App. 129P (6th Cir. 1999) petition for cert. filed 68 USLW 3138 (US Aug 17, 1999) 73. "The carrying on of a lawful business that injures another will not be restrained any further than is necessary to protect the rights of the complainant." City of Baltimore v. Sackett, 135 Md 56 "Injunctions will also be forbidden if they are excessively broad." State ex rel. Missouri State Bd. of Registration for Healing Arts v. Southworth, 704 SW 2d 219 (Mo. 1986) 74. ""¦Injunctions were too broad, and a burden on First Amendment free speech rights, where an order enjoined a buyer of office equipment from publicly criticizing the seller." J.Q. Office Equipment of Omaha, Inc. v. Sullivan, 230 Neb. 397 (1988) 75. The Florida Supreme Court has held that injunctions are not available to prevent threatened defamations since to allow them would be an unconstitutional prior restraint. [Reiter v. Mason, 563 So. 2d 749 (Fla. 3rd DCA 1990)] Rodriguez v. Ram Systems, Inc. [466 So. 2d 412 (Fla. 3d DCA 1985)] said injunctive relief was unavailable to "restrain an actual or threatened defamation." 76. Plaintiffs will not prevail on their trademark and other likelihood-of-confusion claims. All use by defendant Reed of Plaintiffs" names is non-actionable "fair use" as defined in 15 USC 1125 (c)(4) and/or permissible "descriptive" or "nominative" use as defined in the well-settled common law. Defendant Reed only refers to plaintiffs in order to comment about them. No reasonable person could be confused as to the origin of Reed' Web pages that comment about Whitney. 77. Reed is allowed to use Russ Whitney' name to comment about him. No one may use Russ Whitney' name to pretend to be him. Reed has never pretended to be Russ Whitney. The best evidence of likelihood of confusion is actual confusion. There has never been a single instance of confusion in the more than seven years that Russ Whitney' name has been on Reed' Web site. (Defendant' Declaration '¶57) Reed has never received any communication that indicated the sender or caller thought he was communicating with Russ Whitney or his organization. No communication ever began with "Dear Russ" or "Dear Mr. Whitney" or was addressed to Whitney Information Network, Inc. or any other Whitney company. No one ever tried to buy a Whitney product or service from Reed. 78. The only possible legitimate complaint of this nature would be if the non-owner of the name deliberately used the other' name excessively for the purpose of obtaining a higher search engine ranking. Whitney has accused Reed of that, but Reed is not guilty. When he first published his newsletter, Reed used its name"”Real Estate Investor' Monthly"”excessively plugging a subscription repeatedly in articles in the newsletter. Readers complained and Reed stopped doing it. Reed has never received a complaint from a reader of his Web site that Reed had used Russ Whitney or any other name excessively. (Defendant' Declaration '¶59) The Court can see for itself in Exhibit A to this Opposition that Whitney' name is used normally, not excessively. 79. An item from Reed' Internet "Real Estate B.S. Artist Detection Checklist" is pertinent. It says, White-on-white words at beginning of their Web pages. In the Internet era, one of the things dishonest people do is put white-on-white or color-on-same-color words at the top of their web pages to mislead search engines. I found one the other day that contained Carleton Sheets" name repeatedly, as well as words and phrases like Wade Cook, "foreclosures," "nothing down," and so forth. To find these hidden words, simply place your cursor about two inches below the top right corner of the Web page then hold the mouse button down and drag to the upper left corner of the Web page. You will see the offending words suddenly appear. Any guru who gets you to his Web site by misleading the search engine you use is not trustworthy and does not deserve your business. Because of this widespread improper practice, search engines have probably been programmed to discount excessive use of a name. In any event, John T. Reed is not going to cite excessive use of another guru' name as evidence that a person is a B.S. artist, then trigger that exact indicator by excessively using the name of Russ Whitney or any other guru. 80. 15 USC '§1125(c)(4) says, "(4) The following shall not be actionable under this section: "(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. "(B) Noncommercial use of a mark. "(C) All forms of news reporting and commentary. 81. When Defendant makes a summary judgment motion on the basis that there is no libel as a matter of law, the Court will need to read all of Reed' Web pages related to Russ Whitney and his companies in order to render a decision on that dispositive motion. Consequently, it must do the same now to decide whether Plaintiffs are likely to prevail. A trial court was overruled when it refused to let a jury see the alleged defamatory "sound bite" in the context of the public television documentary in which it was broadcast. Smith v. Cuban American National Foundation, 731 So. 2d 702 (Fla 3d DCA 1999) 82. Plaintiffs motion incorporate Reed' entire Web site by numerous statements in their moving papers. 83. The true origin of the complained-of Web pages is clearly and correctly identified as follows: "¢ The domain name on each and every complained-of Web page is https://www.johntreed.com "¢ Many if not most of the Web page titles includes the words "John T. Reed'" or "by John T. Reed" "¢ Many if not most of the Web page headlines includes the words: "John T. Reed' " or "by John T. Reed" 84. In addition, the comments and tone of the articles could not be more emphatic in conveying that Reed claims no association with Whitney. 85. The complained-of Web pages are similar to reviews written by theater critics, book reviewers, restaurant critics, movie critics, and art critics in some cases and investigative or consumer-help journalism articles in others. 86. At '¶23.01[6] of his McCarthy on Trademarks and Unfair Competition, University of San Francisco Professor J. Thomas McCarthy said, "A use of another' trademark to identify, not the defendant' goods or services, but plaintiffs" goods and services, is not an infringement so long as there is no likelihood of confusion. This can be dubbed a non-confusing "nominative use" in that it names the real owner of the mark. The most common example of this is comparative advertising, where the senior user' mark is used to identify the senior user' product and the advertiser' object is contrast, not confusion." 87. "Much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company, or product by using its trademark." New Kids on the Block v. New America Pub. Inc. 971 F 2d 307 (9th Cir. 1992) 88. Regardless of what page ranks where in a Google search, Search engine results are to the Internet what card catalogs are to libraries. Whitney' trademark position is this litigation is analogous to a public figure asking a court to ban all cards for "unauthorized" biographies of him from all U.S. library card catalogs. 89. A similar argument by the music group New Kids on the Block failed in the Ninth Circuit. "But the trademark laws do not give the New Kids [on the Block] the right to channel their fans" enthusiasm (and dollars) only into items licensed or authorized by them." New Kids on the Block v. New America Pub. Inc., 971 F 2d 309 (9th Cir. 1992) 90. Plaintiffs" defamation per se legal theory is obsolete. 91. Opinion is not actionable as libel. Many complained-of articles contain opinion. 92. Plaintiffs may not complain of an alleged libel in court unless that alleged libel was specifically identified by article and statement in the required notice. A media libel complaint under Florida law must recite the exact statements cited in the '§770.01 notice in the complaint and the complaint can only seek recovery for those statements. Orlando Sports Stadium, Inc. v. Sentinel Star Co. App 4th dist. 316 So 2d 607 93. ""¦libel action which specified the article and attached a copy thereof without any specification as to the statements in the article alleged to be false and defamatory was insufficient under this section requiring notice to publisher of the article and the statements therein alleged to be false and defamatory." Gannett Florida Corp. v. Montesano, App 1 dist. 308 So 2d 599 (1975) cert denied 317 So 2d 78 "Failure to comply with the statutory provisions requiring notice before bringing libel suit based on media publication requires dismissal of complaint for failure to state cause of action." Mancini v. Personalized Air Conditioning & Heating , Inc., App 4 Dist 702 So 2d 1376 (1997) 94. Robert D. Sack is the leading legal scholar on defamation and a judge on the United States Court of Appeals for the Second Circuit. He is the author of the Practising Law Institute' Sack on Defamation, Libel, Slander, and Related Problems. 3rd Edition. At 2.4.18 he says, "The law has developed a wide variety of tools to seek to ensure that only when there is an established, concrete relationship among error, fault, and harm to the plaintiffs may the plaintiffs pursue a remedy in defamation. Inconsequential harm ought not to give rise to extended litigation let alone a plaintiffs" judgment, or else plausible defamation suits might arise out of virtually all derogatory works and proceed at least through discovery to summary judgment or trial.

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