Nov 23, 2009

A Message From The Editor

Philip writes on the Southeast Texas Political Review:
Over the past week we have been working with our legal counsel and other interested parties in preparing a web page called "Lawsuit" regarding our filed suit against Google, Inc. etal. In such, we have posted the public filings and a small portion of the background of this case.

The purpose of such is to keep you - and the media informed of what is happening with the lawsuit. In such - we anticipate that we will be writing some case law with this lawsuit.

As well, in our continued cooperation with law enforcement regarding (1) Mail Fraud issues, (2) the Use of Public Computers for purposes other than government business, (3) impersonation of a federal official issues that are still on the table and being investigated, we are not posting all of the information regarding this suit. Some will be held "in-camera" for the judge assigned to this case to review.

In no way shape or form is this web page posted today an attempt to garner support from a jury pool or an attempt to sway any person - it is an attempt to get the facts out there.

Make no mistake - this case will be a very important case for the 1st amendment and how it relates to the public. Clearly - we have set aside enough money to take it all the way to the US Supreme Court if necessary - and we will - but our guess is that this will be resolved soon.

Everyone has the right to speak their mind. Those that detract from the view of this web site and myself have that right to call me names, disagree with me and frankly to give the other side. But you do not have the right to use copyrighted material in words, voice or image. And then claim parody. It simply does not work.
There is little fact in Philip's delusive description of his nuisance lawsuit; it's mostly erroneous information and blatant falsehood. As just one example:
A third web site agrees to cooperate in giving the legal team and investigators all IP addresses passed through their site from Operationkleinwatch over the past four months since the site posted a link to an anonymous IP address block site. Such was received on October 5, 2009 in an agreement not to litigate.
Ignoring PRK's gibberish, he's referring to From their privacy policy:
Logfiles: Anonymouse does not keep records of site accesses. Usage logs will only be created during technical problems and are immediately destroyed after the technical problem is solved.
Since Anonymouse doesn't keep logfiles, they can't provide  "all IP addresses passed through their site from Operationkleinwatch over the past four months..."

As another example, Philip contradicted his own published version of his interaction with Google. According to Philip's new timeline:
Violations of the MCA continue - with requests to Google USA to intervene. They refuse stating the 1st amendment issues and a lawsuit in New York that had been filed mirroring the same claims. The reference is the State of New York : Liskulula;, petitioner v. Google, Inc.
According to his statement from May 2008:
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.
Philip's story changes more frequently than the weather in Texas. These falsehoods are legion throughout his bizarre account and readers can decide for themselves whether Philip R. Klein is credible.

The real facts are these: PRK filed a civil action in Jefferson County under Rule 202. This is not a lawsuit, but a simply a petition for Court approval to subpoena my account information from Google to discover my identity. As the sole operator of Operation Kleinwatch and representing myself, I anonymously filed a motion to quash Philip's request. Sam the Eagle apparently did the same, but Google will not release this information without specific direction from the Court.  Philip has posted these three documents on his website, which verify these facts.

I've previously addressed the rest of Philip's complaints that are pertinent to this case, such as Philip's spurious copyright claims. I've reprinted that article below.

On Klein V. Google (Reprint)

Posted: Thursday, September 3, 2009 | Posted by Gus Pillsbury |
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 and a nuisance lawsuit.

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...

impersonation of a police officer or government official
who dat, not prk calling the turkey a duck
who is recognised at ball games as fbi
who pulls guns on liddle laddies in the p.o.
not me said the nederland turkey
we am all of them and more, never singular

Anonymous said...

It might be embarrassing if someone introduced the original versions of some of those documents. Wouldn't that constitute altering public documents, Gus?