MagicJack Legal Documents

Collected here are legal documents relating to MagicJack’s defamation lawsuit against Boing Boing. The presiding judge ruled its case a SLAPP — a strategic lawsuit against public participation — and ultimately entered a judgment against it and made MagicJack pay most of our legal costs.

There’s a lot to read, so some excerpts are included. Highlights include the wild expense of fighting off lawsuits, MagicJack’s litigators saying they didn’t want to see discussion of the case on the “blogosphere,” and it now being a matter of court record that I produce ‘lusty and imaginative’ expressions of contempt.

It’s worth remembering that all this was
about a 200-word blog post that cites, verbatim, the exact text
it mocks.

and Complaint

The original lawsuit,
filed in Marin County Superior Court on March 11, 2009, by
Arnold & Porter on behalf of MagicJack. This details
MagicJack’s complaint against the blog post. Suggested
listening: “Michael
Bolton – How can we be lovers if we can’t be

to Strike Complaint

Our motion to
strike MagicJack’s suit as a ‘strategic lawsuit against public
participation,’ or SLAPP. Suggested listening: “Cypress
Hill – Insane in the Brain
.” Some excerpts:

“This is precisely the type of bad-faith,
strategic lawsuit that the California legislature sought to
prevent when it enacted the anti-SLAPP statute. … If
permitted to proceed, MagicJack’s lawsuit threatens to have a
chilling effect not just on Boing Boing, but more generally on
public criticism and debate concerning corporate practices and
consumer privacy rights.”

“Notwithstanding the rhetoric contained in
MagicJack’s Complaint, all that is at issue in this lawsuit is
an approximately 200-word “blog” post on the Boing Boing
website … The Beschizza Post, written in the humorous and
biting style that is the hallmark of “Boing Boing,” … plainly
was intended to criticize (and colorfully characterize) only
the MagicJack EULA. Indeed, the EULA provision itself comprises
more than a third of the Beschizza Post, and consistently is
referenced as the basis for the author’s statements and

Though MagicJack
asserts it has has not acted on the relevant EULA terms, our
motion points out that at the time, the EULA specified that
“these advertisements are necessary for the MagicJack device to

of Cory Doctorow
of Marc Mayer

These declarations are
in support of our anti-SLAPP motion, establishing Boing Boing’s
history of reporting on EULAs and related issues. Elements of
the secret masterplan are revealed in open court: Boing Boing
is hyperbolic, acerbic, or wry. Boing Boing seeks to influence
technological policy, law and norms. Boing Boing disapproves of
contracts of adhesion. Suggested listening: George
Baker Selection – Little Green Bag
. From our lawyer’s

“I have visited the
MagicJack website and homepage several times in an effort to
locate MagicJack’s Terms of Service. However, I have been
unable to navigate to the MagicJack Terms of Service from the
MagicJack homepage”

And you still
can’t. But the live chat will provide the link if you ask.

to anti-SLAPP motion

opposes our anti-SLAPP motion. It offers a more vigorous and
detailed criticism of my post than the actual lawsuit.
Suggested listening: “Boots
Randolph – Yakety Sax/The Benny Hill Show

Particularly interesting is the claim that blog posts about
consumer products are ‘commercial speech,’ and hence
undeserving of certain first amendment protections.
Au contraire.

of Dan Borislow in support of opposition

MagicJack CEO Dan Borislow’s declaration, in support
of his lawyers’ opposition to our anti-SLAPP motion. Suggested
listening: Rick Dees
– Disco Duck
. Excerpt:

“MagicJack LP is a small, privately held
company that is not in the public eye.”

Wherein we follow the SLAPP motion with the FACEPALM

… in support of motion

MagicJack’s opposition to our anti-SLAPP motion. Suggested
listening: “Joe Dolce
Music Theatre – Shaddap You Face

“MagicJack’s Opposition to Boing Boing’s
SLAPP motion is smoke-and-mirrors, resting on piecemeal and
out-of-context excerpts from the Beschizza Post … and an
incorrect and nonsensical view of the First Amendment … The
critical facts underpinning this lawsuit are undisputed,
including that MagicJack records telephone numbers, that its
EULA requires MagicJack users to consent to allow MagicJack to
“analyze” these telephone numbers for advertising purposes, and
that MagicJack intends to use and exploit the consents that it
acquired in its EULA””

“Also problematic is MagicJack’s argument
that the conduct authorized in the EULA cannot constitute
“privacy invasion” because users have consented to them in the
very same EULA. The argument is completely circular. … It
also validates the need for reports like the Beschizza Post in
order to warn consumers that consent to the EULA would permit
MagicJack to engage in potentially invasive activities. … It
is analogous to a situation in which a cable company, as a
precondition to service, installed cameras in private homes and
then required the homeowner to consent to allow the company to
“analyze” the footage. It certainly would be no defense to a
charge that the service greement permits “spying” … [to say]
that the cameras had not yet been turned

“In any
event, there is no dispute that MagicJack’s ticker did not even
purport to represent the number of people who came for a “free
trial today” — even though that is what it says it does. …
MagicJack could simply have reported the number of people who
actually signed up for its “free trial”
(certainly it keeps track of that number) on a given day, which
would have been consistent with the ticker. Instead, MagicJack
chose to use exaggeration and approximation, and now cannot
complain about being held to task for that

Granting SLAPP

Here, the judge grants
our SLAPP motion. Suggested Music: The London
Symphic Orchestra — The Final Countdown Orchestral

“Plaintiff’s own evidence
shows that the counter is not counting visitors to the website
as the visitor visits the site. Instead, the visitor is seeing
an estimate. It is not probable that the trier of fact would
therefore find untrue the statement that the counter is a “a
fake.” “

for Attorneys’ Fees and Costs

This is
our motion to get our attorneys’ fees and court costs paid by
MagicJack. It is splendid reading; much of it covers unexpected
behavior by MagicJack and its lawyers after they lost.
Suggested listening: “Henry
Mancini – Baby Elephant Walk

“MagicJack was represented in this action by
highly competent and experienced litigation counsel. MagicJack
and its counsel certainly should have known that the alleged
defamatory statements were statements of opinion and not
actionable. MagicJack also should have recognized that the
claims likely would be subject to California’s anti-SLAPP
statute, and thus that fees would be awardable to Boing Boing
if it were to prevail. Nevertheless, MagicJack elected to
pursue this action, apparently hoping that when faced with a
lawsuit by a major law firm, Boing Boing would immediately cave
… Additionally, even though MagicJack failed to ever contact
Boing Boing, it sought punitive damages against Boing Boing –
apparently for in terrorem effect, since
MagicJack and its counsel must have known that punitive damages
were not recoverable under Cal. Civ. Code §

Boing attempted to resolve this attorneys’ fees dispute without
the necessity of a motion. … MagicJack accepted those
conditions, and over the following two weeks the parties
prepared and finalized a settlement agreement. However, the day
after the final settlement agreement was circulated for
execution, MagicJack suddenly reneged on its offer, stating
that it would only sign the agreement if Boing Boing entered
into a confidentiality agreement and agreed not to speak about
the settlement agreement or its attorneys’

“Moreover, MagicJack hired highly experienced
counsel, at one of the largest and most prestigious law firms
in the country, to file its case and oppose the anti-SLAPP
motion. MagicJack apparently dedicated at least three attorneys
to the case, including two associates and a senior partner,
Beth Parker, who is a highly seasoned litigator with more than
25 years of trial and appellate experience”

“I told Ms. Parker that Boing Boing
would agree to keep the settlement amount confidential, but
that it was important that Boing Boing be able to speak about
the lawsuit, including the amount of fees it incurred and the
amount it ultimately came out-of-pocket for its defense. Ms.
Parker advised me that this proposal was unacceptable, that
MagicJack did not want discussion ofthe lawsuit on the
“Blogosphere,” and that MagicJack had hoped that the settlement
agreement would put an end to any further publicity about the
matters at issue in the lawsuit. “

to Motion for Attorneys Fees and Costs

memorandum in support of motion for fees

Re: fees
Re: costs

Money talk. The judge
ultimately orders MagicJack pay us $52,754, approximately the
amount of the proposed settlement but still less than our
actual bill. Suggested listening: Beatles:
You Never Give Me Your Money

“Most of the fees that MagicJack complains
about in its Opposition might never have been incurred if
MagicJack had, for example, not wasted Boing Boing’s time with
a settlement agreement that it apparently never intended to
sign, asserted claims for damages that it knew it could not
recover, or forced Boing Boing to file its motion for fees (and
then to revise that motion after MagicJack reneged on the
settlement agreement).”


The end. Suggested listening: Whitesnake.

Thumbnail photo: Horrgakx’s