Monday, October 27, 2008

Michael Robertson Sues Me to Impede My Freedom of Speech on the Internet

As many of you know, I have used my blog as a resource to bring to light the questionable actions of Michael Robertson, and to go public with his treatment of employees and shareholders. Today I was served with a lawsuit by Michael Robertson in an effort to obscure my blog and impede my freedom of speech. I have to say that I wasn't surprised to learn that Michael would use a frivolous lawsuit to threaten and silence me, but it won't work. I will not let Robertson bully or intimidate me with this or any other nuisance suit. Such lawsuits only serve to shed further light on his unscrupulous tactics.


Michael Robertson--No Champion of the 1st Amendment

Robertson, unhappy about my blog, sues me

The Internet has become a bastion of free speech for bloggers. Robertson, who claims to be a strong supporter for such rights, seems to feel quite differently when that speech is critical of him.

You see, just as the Internet is a marvelous vehicle for companies to promote their goods and services, it can be an equally effective tool for dissatisfied customers or disgruntled employees and shareholders to criticize a particular product, company or management team. Much to the chagrin of trademark owners, such "gripe sites" (which often include the company name or trademark in the URL), are very difficult, if not impossible, to shut down. Fortunately, the First Amendment typically shields the operators of corporate gripe sites from liability. If the gripe site is non-commercial in nature, the operator's freedom of speech will generally override the trademark owner's interest in controlling the use of its company name or trademark, as it should.

Freedom of Speech on Freespire.com

Earlier this year, Linspire was given the opportunity to purchase the domain name Freespire.com. They declined. When I was CEO, I spearheaded the Freespire project, but I was unable to obtain the freespire DOT COM domain name, so we did everything at freespire DOT ORG. We tried incessantly to obtain the .com domain, but the owner would never sell it to us. So you can imagine my surprise when earlier this year, the owner finally agreed to sell the domain and it was offered to Linspire, but they declined to acquire it. (I think that also sums up the commitment Linspire had to Freespire.) So, around eight months ago, only AFTER Linspire declined to purchase the freespire.com domain name, I decided to acquire it as a non-commercial opinion site to share my views about Linspire, Freespire and desktop Linux in general.

It had been over six months since I had left Linspire, and I had become increasingly disappointed with its management and decided to use Freespire.com to vent that dissatisfaction. I had certainly been observing the downfall of the company, and by this time I had learned about Robertson having filed false claims against several executives, calling severance payments "embezzlement," and I wanted a venue to express my displeasure. For me, the writing was on the wall that Robertson was destroying the company. (Just a few months later the company was gone and the shareholders remain in the dark.)

At the freespire.com site, I praised the good work other distributions were doing with Linux (Ubuntu, Mint, Nimblex, etc.), expressed dissatisfaction with Linspire/Freespire, and linked to my blog. At no time have I ever sold any of these distributions or had a financial stake in them. I was merely exercising my freedom of speech.

So, today, Michael Robertson (via the now-defunct Linspire shell company "Digital Cornerstone") sued me for "cybersquatting, trademark infringement, and unfair competition," claiming that the freespire.com "gripe" site should be taken down and seeking $100,000 and other damages.

First, I'm a little confused how Robertson is suing me for trademark infringement, considering there is no registered trademark for "Freespire." (Linspire filed for one but never actually got it registered and all the Linspire IP went to Xandros months ago.)

My freespire.com site never sold anything. It never used the Freespire logo or even used the Freespire name in large fonts or type. There was certainly no confusion, as it was quite clear this site wasn't Linspire's site. In fact, there was even a disclaimer stating the fact that the site was not owned by or affiliated with Linspire or the Freespire distro in anyway.


Companies hate "gripe sites," but consumers appreciate
them and the First Amendment Protects Them

As I pointed out earlier, it's rare that a non-commercial blog or opinion site is found to be cybersquating or violating trademarks, as they are protected by the First Amendment. And it's extremely rare for monetary damages to be awarded in a cybersquating case, particularly one as non-consequential as this one. (The freespire.com domain only got around 100 hits per day, and even fewer today. See the Alexa graph at the end of this blog.) Yet Robertson is seeking $100,000 in damages? Linspire never complained or objected about the site, even though there was a clear contact link for the site's webmaster on every page. No cease and desist letter was ever mailed. They never sought relief or arbitration from ICANN. No, instead, in classic Robertson fashion, he headed straight to the court room because this lawsuit is about intimidation and suppressing speech, not about legitimate damages.

The lawsuit even states, "Although the FREESPIRE mark was recently assigned as part of an asset purchase, [Robertson] expressly reserved all rights in and to all claims against Carmony arising from the freespire.com domain name and website." Now, why would Robertson want to carve out that one thing to hang on to? He's no longer involved with Freespire, so why does he care? Is he desperate for money? With Robertson's companies struggling and laying employees off, does anyone really believe this is the most important thing Robertson should be concerning himself with? His motives are pretty transparent--to suppress freedom of expression that is critical of Robertson.


Keep Speech Free at Freespire.com

This is a nuisance lawsuit, intended to silence my freedom of speech. I will defend my right to free speech by continuing to point freespire.com to my blog and keep reporting on Robertson's disturbing actions.

I'll keep you posted on this YARL (Yet Another Robertson Lawsuit).

Kevin

UPDATE: Michael Robertson made a pretty ironical post today on his Michael's Minute. So I made an appropriate response, and it was quickly censored and removed. Below is a screenshot of what it looked like BEFORE my post was censored (click on it to enlarge to read). Michael Robertson is welcome to post here at anytime and I will assure him his non-anonymous comment will be published. As I say, Robertson can dish it, but can't take it. Just more evidence of his desire to squash free speech.


Censorship at MichaelRobertson.com





Penn & Teller on the First Amendment (Explicit Language)

14 comments:

MC said...

Oh my gosh. His tactic would cause me to be even more vocal.

Anonymous said...

Wow. This is lower than I would have expected from Michael. May he suffer the "Barbara Streisand" effect.

Kubuntu Computer Geeks said...

I am actually not surprised he did this. I was always a big baby when someone said something negative about something he was a part of.

Jay K. said...

Kevin, Michael's lawsuit is humorous to say the least. Not a single thing that can be done about your BLOG. You are not an employee of a company with ethical ties of loyalty and have the freedom to say anything you damn well please.

Just now finishing a course on Strategic Marketing, my final before my BBA degree, and we touched on this very issue. Yes, companies hate the fact that BLOGs keep them on their toes but there is nothing that can be done legally with the exception that an employee is in violation of an employee handbook that specifically states that BLOGs must be held within limits.

Stay Free Kevin. Stay YOU. You were the reason I enjoyed Linspire - not Michael. When you left - so did I. I think I speak for many who read your BLOG. Write on. We're reading.

Kevin Carmony said...

Today Robertson published in his Michael's Minute blog (www.michaelrobertson.com) a post complaining about how companies use law suits to harm small companies.

"Hello, Kettle? Pot on line one."

Kevin

Anonymous said...

I think people should wait until they hear Robertson's side of the story, before they vilify him on the basis of a disgruntled former employee who now runs a "gripe site".

"The first to present his case seems right, till another comes forward and questions him." - Proverbs 18:17

We probably won't hear Robertson's side since no one in their right mind is going to dignify a "gripe site" with a response.

However, the judge will hear his side and I'm eager to see what the judge says about all this.

Kevin Carmony said...

For anyone who has followed my blog, they have seen Robertson do things for which there can be NO plausible explanation for. What POSSIBLE "side" could there be, for example, to him STILL not having told the 100 some-odd shareholders the details of the Xandros transaction and what has happened to their investment. Robertson hasn't had a shareholders meeting or shared any details with shareholders since I left Linspire and he sold off the assets MONTHS ago! Can you even imagine a "side" to defend that action?

I've never sued anyone in 49 years. Have you? Why can't Robertson use shareholder meetings, emails, phone calls, normal communication to share "his side?" Why must he do everything in a court room?

I think his actions speak volumes.

Kevin

Duane said...

Can you post the actual complaint?

Apparently the current registration for the "Freespire" trademark happened in April 2008, while it appears you took control over the freespire.com domain in February 2008.

See: http://tess2.uspto.gov/bin/showfield?f=doc&state=5o2b4o.2.4

There was a previous filing for the same trademark in April 2006, but it was abandoned in August 2007 by the company - it has a different registration number.

See: http://tess2.uspto.gov/bin/showfield?f=doc&state=5o2b4o.2.1

It would be quite interesting to see how he pursues a trademark infringement claim on a trademark the company had officially abandoned during the time the alleged infringement occurred.

My suspicion is that the April 2008 filing was done purely as preparation for this suit - the application was filed two days after your "Why Won't Linspire, Inc. hold a Shareholders Meeting?" blog entry.

Kevin Carmony said...

You are correct Duane. Linspire never followed through with the registration process after I left and thereby the registration was abandoned. There was no trademark either registered OR even applied for when I acquired and started using the Freespire.com domain name.

Originally I had some Google ads on the site (never even made $50 from those), which I immediately removed once Linspire applied again for a Freespire trademark in April of 2008.

So, not only was Linspire not interested in acquiring the Freespire.com domain name, they didn't even bother to try and get a trademark for the name Freespire UNTIL AFTER I started to use the domain, being critical of Robertson.

Robertson's motives are pretty transparent. He didn't care a whit about the Freespire OS, but he suddenly DID care when he saw it as a way of squashing my freedom of speech. Pretty telling.

Kevin

Kevin Carmony said...

My legit and non-anonymous post at MichaelRobertson.com was censored. More evidence that Robertson has a problem with free speech when it's critical of him.

I put a screenshot of my censored post as an update to this blog entry. Click on the image to enlarge so you can read it.

Kevin

Kevin Carmony said...

Oh, and Robertson had my account banned from posting to his blog as well, and then had "Kool-Aid Kendall" send me messages which I couldn't respond to (because I was banned). Robertson REALLY doesn't want to hear what I have to say it would seem. =)

Long live freedom of speech, just not at MichaelRobertson.com.

Kevin

KH said...

What a waste of your time dealing with this Michael issue! This guy seems like a real jerk. He better come down from that pedestal of his before too many people start catching on. Embezzlement huh? Last time I checked giving employees their well deserved severance payments is not a crime and neither is speaking your mind about someone who has destroyed a company that you work hard on to be successful. I'd be pissed too!

Tupinw said...

I use to work for Michael. He has serious self esteem issues. I'm not surprised at all by any of this.

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