Sep 3, 2009

On Klein v. Google


Philip R. Klein and his counsel, John Morgan, have filed litigation aimed at silencing critics, a SLAPP suit. By definition, it's a frivolous action.

According to Philip R. Klein:
On Wednesday afternoon, August 26, 2009, the company that owns the SET Political Review and its sister company, Klein Investments, Inc., filed a cause of action in the Jefferson County District Courts which is entitled PRK Enterprises, Inc., Klein Investments, Inc., v. Google, Inc.,

We have filed this cause of action further naming two particular blogspot sites, namely, opertionkleinwatch [sic] and samtheeagleusa, as well as another site associated with the first after a two-year investigation and monitoring of the site (s).

This case has been filed under rule 202.2 of the Texas Civil Code, which is the first step of three that we intend to take under the Digital Millennium Copyright Act of 1998, 17 U.S.C., section 512.
For perspective, Philip claimed in May of 2008 (emphasis is mine):
April – May of 2007 – A new web site appears on the Internet. It is named “The Decline of Klein.” The site is written anonymously by a pen name of “Gus Pillsbury.” The site is originally headed according to Google Security from Lamar University Systems computer. The site abruptly changes its name to “Operation Kleinwatch” post enquiry [sic] from Google Security...The “writer” notes themselves as a retired professor.
If Google Security has already provided this information, why is Klein now litigating? This displays his propensity of intimidating and harassing critics. See sidebar for another example.

Any action regarding Operation Kleinwatch should be filed separately. By including both blogs in this action, Philip implies there is a conspiracy where none exists. I am not affiliated with The Sam the Eagle Political Review, each site is run independently, and I have no control or influence over content that Mr. Eagle chooses to publish.

This is clearly prejudicial.

Operation Kleinwatch debuted on April 15, 2007 and has not changed its editorial style. Texas law has affirmed a one-year statute on libel actions, specific to online postings (see Nationwide v. Belo). Why has Philip R. Klein waited for two-and-a-half years before bringing this suit?

Regarding Philip's copyright allegations

The Southeast Texas Record published an overview of Klein's suit on Sept. 1, 2009:
PRK and Klein Investments allege both Web sites are engaged in the violation of copyright laws, as they do not have permission to reprint snippets of articles appearing on the Southeast Texas Political Review. "A review of the Web sites make it clear that they are not expressing any 'opinions' protected by the First Amendment but instead are solely vehicles for defamation," the suit states.
This issue is settled law.

Philip Klein is asking for an unprecedented waiver of the Fair Use doctrine, as codified in the Copyright Act of 1976, 17 U.S.C. § 107. Specifically,
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
This site clearly offers critical and reasoned analysis of Philip R. Klein's expressed opinions and statements. Whether these expressions are made through his daily blog, media appearances, newspaper and magazine interviews, radio shows, or TV commentary, this criticism is protected under the First Amendment.

Furthermore, these snippets are absolutely crucial to the context of this analysis, since Philip Klein does not maintain a public archive of his past articles. Critical readers cannot document his previous statements. This violates commonly accepted usage standards for blogs who deal in political commentary of a controversial nature.

A  legal blog, de Novo, previously advised Philip R. Klein of this issue. I documented this exchange here and here.

Even though this fair use extends to the recordings and images found on Operation Kleinwatch, Philip R. Klein lacks standing since he does not hold the copyright to these items. One can't hold a press conference and later claim a copyright on the pictures; the copyright belongs to the person who took the picture. Any requests from the copyright holders of record will be carefully considered; please email all notices to Operation Kleinwatch.

Perhaps Klein has confused defamation and parody (see Today's Cover Boy in the sidebar). In Campbell v. Acuff-Rose, the Supreme Court determined that parody, even commercial, is a transformative work, not derivative. As such, the work is protected against copyright claims under the Fair Use doctrine.

Regarding this charge of malice

"These Web sites host significant, false information and invade the privacy of Petitioners throughout the Web site," the suit states. "The purpose of these Web sites is to disparage, harass and cause injury to these Petitioners, as well as Mr. Philip Klein personally."
I've previously stated my intent on several occasions. From an Open Letter to Caroline Klein on July 7, 2008:
As a person, indifference best characterizes my opinion of your father. I don't dislike him or wish him malice whatsoever. However, I strongly object to his manufactured lies, half-truths, smears, and personal attacks under the guise of credible political commentary.
Calling one an idiot for making ridiculous statements does not constitute malice; it's publicly expressed opinion and protected under the First Amendment.

In truth, I have a vested interest in the welfare of Philip R. Klein. By promoting Philip's media career as a public personality (see sidebar), my own readership will grow.

Likewise, Klein acknowledged that Operation Kleinwatch has significantly contributed to his blog's growth of traffic in his editorial from Dec. 1, 2007 (see personal endorsement in the sidebar) .

Regarding charges of posting false information

"The Web site Operation Kleinwatch, contains false information on legal proceedings that do not involve either Mr. Klein individually or the Petitioners, falsely represent that judgments have been taken against the Petitioners and/or Mr. Klein individually, falsely identify a bankruptcy proceeding, also identify lawsuits that do not involve Petitioners and/or Mr. Klein individually,"
The extensive litigious history of Philip R. Klein and his legal entities is public record.

As noted in the sidebar, they include those actions where Philip R. Klein, PRK Enterprises, Inc., or Klein Investments, Inc., are plaintiffs or defendants.

Almost all can be verified through the Jefferson County Clerk's site or the Jefferson County District Clerk's site. The notation under the Abstract Judgments section incontrovertibly states that Klein Investments, Inc. is the grantee in each instrument. The bankruptcy proceedings can be verified through U.S. Bankruptcy proceedings on PACER for the Eastern District of Texas.

Regarding the Anonymity of Operation Kleinwatch

They are also asking for the identities of all people who provided money or literary substance to the Web sites, who posted comments on the Web sites and those who are in any way affiliated with the Web sites.
In other words, Mr. Klein and his counsel would like Google to pay for their fishing trip.

Philip's complaint has not identified any specific comments on Operation Kleinwatch that are libelous, if any exists. Since Klein contends that all comments are defamatory, he is simply seeking to stifle the free exchange of critical opinion by suppressing First Amendment rights.

As the person solely responsible for all other content on this site, I have already addressed Klein's other contrived complaints above.

As a public personality, Philip R. Klein has established a pattern of using his position to intimidate those with dissenting views. The most recent example of this intimidation concerned a local citizen, Rhonda Dugas. From
August 30, 2009:
Sources tell us that Dugas, after being told of the problems, began yelling, cussing and screaming at employees and owners of the daycare. Further being in earshot of the children. She was asked to leave by the daycare representatives - but refused and continued to scream and curse and upset not only employees but "possibly some of the children."
This is not legitimate political discourse. At best, this is hearsay; more realistically, this is a gross invasion of Ms. Dugas' privacy with a reckless disregard for the truth. Philip failed to disclose his prior relationship with the owner of this daycare facility.

PRK has demeaned Rhonda Dugas for over four years. He has called her names on his blog including "loon" and "nutcase," disparaged her physical appearance, published photos of her home taken without her knowledge or permission, posted her financial information, published rumors about her private relationship with her child, allowed subscribers to his now-defunct Talk Back Line to post manipulated and obscene images of her, and fraudulently claimed she was under investigation.

In other cases, Klein has invented or threatened "investigations," or to "monitor" private traffic on the web of those who express criticism. See the example above concerning Mr. Klein's alleged Google Security "inquiry," none of which is true.

In Closing

Given Mr. Klein's history, this action is clearly aimed at silencing his critics and retaliation against dissenting opinion. The First Amendment right of free speech, specifically anonymous criticism, extends online as well (First Cash v. Doe). To release any information is a gross civil rights violation.

This spurious litigation has no merit.


Anonymous said...

Hopefully Google moves for recovery of legal expenses resulting from the necessary defense of a frivolous action brought against them.

Anonymous said...


Anonymous said...

Amen! Amen!!

Anonymous said...

Wow, well done Gus..You rock Ma'am/Sir!!

Anonymous said...

Correct me if I'm wrong but didn't klein put up pirated photo of Nederland High school that he had to take down when the owner complained?

I know he puts up those "snippets" all the time. Everyone does.

Or is my comment "liable?"

Anonymous said...

If Klein thinks it's from Lamar University, how come he's not suing them to find out who's using the computer. What bullshit.

Anonymous said...

This ain't about liable. Phillip paid 250 dollars to file the suit and got a lot of publicity for suing google.

Anonymous said...

He talked on ch. 4. he didn't get that much publicity.

Anonymous said...

Don't get between klein and a camera or you'll be trampled like a bull elephant.

Anonymous said...

This is why our courts are clogged up.

Anonymous said...

I guess he can't ever complain about junk lawsuits . . . wow, what lawyer actually took his case?

Anonymous said...

John "slasher" Morgan

Anonymous said...

Mr. Morgan; Don't let this guy ruin you. Name association alone will cost you everything.

Anonymous said...

I hope this new station will give Phillip Klein a new radio show...I used to love hearing him beg for callers and then when one finally called, he would yell at them and call them names.

Anonymous said...

Gus, you pegged Klein! So which firm do you work for?

Anonymous said...

Anon 727, I called his talk show several times but could never get through his call screener.

The moment I told the min wage employee that I disagreed with Phillips wacked-out opinion, they hung up on me.

Gus is right because Klein's too much of a chickenshit to face his critics. Hang in there, Gus, we're pulling for you.

Anonymous said...

Nice brief.

Anonymous said...

Just a word about name association: Klein is being given credibility by Channel 4, and look what's happening to them now. Lot of internal stuff going on (looks like Klein just lost one of his "sources"). I wonder if the Review will "learn" what all is goin on over there? Hint: the morning show's future, for starters.

Anonymous said...

Never mind, just read his blog post about Walker. He doesn't have a clue. Walker was "well respected" by the staff at KBTV?? PLEASE!! (By the way, I like the way he acts as if that statement was exclusive or something.)