May 7th, 2009
Now for the first time, the court's "John Doe" has agreed to tell his own side of the story. "The message is in the fact that a lawsuit is indeed possible based on privacy issues," says the victim, "and those considering similar behavior as Fortuny are advised to consider that fact."
In September of 2006, Jason Fortuny posted a personal ad on Craigslist pretending to be a woman seeking kinky sex — and then published sexy pictures and complete emails he received, including any names and phone numbers, from over 150 men. "[T]he chorus of blog posts saying 'someone ought to sue him' gave me some satisfaction to being able to do just that," says Doe, "on behalf of those who wished for justice in this matter."
"IT IS HEREBY ORDERED AND ADJUDGED," wrote Judge Joan B. Gottschall 30 months later — handing down $74,252.56 in legal fines to Fortuny. Three law firm associates had spent 129.2 hours (at $175 per hour) litigating his 2006 Craigslist prank, plus another 35 hours by the main attorney billed at $275 per hour. As part of the judge's award, Fortuny will have to pay all their legal fees — a total of $32,365.50 — and he'll even end up paying the extra costs accrued because he avoided their process servers.
"I hope that it demonstrates that claims (and attorneys) do exist that enable victims to pursue those who commit wrongful acts," says the victim's lawyer, Charles Mudd.
Ironically, Fortuny was only fined $5,000 for "public disclosure of private facts" and "intrusion upon seclusion." The remaining bulk of the award — $35,001 — was for violating the plaintiff's copyright. "The Copyright Act provides for statutory damages from $750 to $35,000 per infringed work," says Mudd, but those damages "can exceed $35,000 up to an amount of $150,000 per infringed work where the conduct was willful." This means that ultimately, it was Fortuny's own "willful" conduct that increased the price he'd eventually have to pay, Mudd argues. "In general, Mr. Fortuny could have limited the amount of damages under the Copyright Act and could have significantly reduced the amount of attorney's fees throughout the course of this matter.
"He chose not to do so."
Fortuny initially argued that the suit against him was "abusing the intent of copyright law, stretching the common law terms of privacy, using unverified e-mail as alternative process, and side stepping personal jurisdiction." Last summer Fortuny wrote an eight-page letter informing the judge that "I do not have the resources for legal proceedings in another state, much less the exorbitant attorney fees for a Federal copyright case." But John Doe's lawyer points out that Fortuny didn't have to appear in person, and seemed genuinely surprised by the lackluster fight that Fortuny put up.
Judge Gottschall rejected Fortuny's only other response — a "motion to dismiss" — writing that "It appears that the defendant filed the documents in the wrong courthouse." (The court's rules also required a "notice of service" which Fortuny failed to provide.) By the time Fortuny's motion reached the right court, Judge Gottschall had already entered a default judgment against him. "My firm and the Plaintiff provided Fortuny every opportunity to vacate the default," says attorney Mudd, but after several months with no response, the case had moved forward.
"The foregoing being said, I would have welcomed the opportunity to address the claims on the merits."
Fortuny's victim acknowledges that "The judge's verdict was just a formality based on the rules. Fortuny lost this on procedural grounds." But there's still a lesson in his legal experience...
Fortuny's prank became a symbol for unapologetic online "griefing," and last August, the New York Times wrote Fortuny "might be the closest thing this movement of anonymous provocateurs has to a spokesman." Fortuny told the Times he knew two victims had lost their jobs over his prank. "Am I the bad guy?" Fortuny asked rhetorically in the interview. "Am I the big horrible person who shattered someone’s life with some information? No! This is life. Welcome to life. Everyone goes through it. I’ve been through horrible stuff, too."
A Seattle newscast reported one man responded with a picture
exposing himself in his cubicle where he worked — Microsoft —
adding "That man got fired."
But John Doe was determined to fight back.
The Victim's Story
On that day in 2006, Doe was alerted to his sexy picture being published online — first via an anonymous tip-off, and then helpful pointers from two of his friends, according to documents filed in the case. He'd quickly deleted his photo from the Wiki-like page at Encyclopedia Dramatica — only to see it re-appearing there later (and with future deletions disabled). "Through legal counsel, Plaintiff requested that Encyclopedia Dramatica remove Plaintiff's Private Response, Copyrighted Photograph and personal email address from the Fortuny Experiment," reads the case filing.
It adds that Encyclopedia Dramatica complied with Plaintiff's request, but then Jason Fortuny himself grabbed the picture, and re-published it on his own site. It was then that the angry victim sent Fortuny a DMCA notice, arguing that the photograph was copyrighted.
More About Jason Fortuny
One internet rumor says the plaintiff must've luckily had a friend who was a lawyer, but that's not true, says Doe's attorney. "Neither I nor anyone at my firm knew of or communicated with the Plaintiff prior to the Craigslist Experiment." But he adds that "The case was well researched and on solid legal footing, and we had every reason to expect a favorable ruling on merit."
Fortuny's prank may have struck 149 other victims, but John Doe was different. "I had the personal resources and was at liberty to risk additional publicity," Doe says, "unlike apparently all the other victims. Fortuny miscalculated in that regard as he assumed no one could either afford the legal costs nor take the personal risk to oppose him.
"This was a miscalculation that was perhaps not clear to him until a long time after I began the process."
Doe's photo was removed — temporarily — but by the end of the month, the photo was back on Fortuny's site yet again, along with the text of the original sexy email message. Fortuny had filed a counter-notification disputing the copyrighted status of the photo. "The counter notification basically says 'you're a liar liar pants on fire'," Fortuny explained on his blog, "and adds that if you don't respond within 14 days, I get to put my shit back up."
The incident occurred back in September of 2006, and the first summons to Fortuny was issued 18 months later — over a year ago, in February of 2008. "For personal reasons I let some time pass before pulling the trigger on the lawsuit," the victim says, and even then it took more than four months before the executed summons was finally returned. "We had advised Fortuny that we reserved the right to take this up again at our convenience, and I suppose he mistook that for a bluff." The lawsuit acknowledged that after nearly two years, the photo and email were still displayed on Fortuny's site.
And to this day, nearly 100 of the original photos, remain online at Encyclopedia Dramatica. (Caution: link is not safe for work.)
This wasn't Fortuny's first brush with the courts. One of our readers contacted us with a list of Fortuny's other past legal skirmishes — including three municipal court citations for "no driver's license on person" in 1999, 2001, and 2002, as well as a 2004 citation for driving without proof of insurance. But looking at the judge's decision today, Doe sees a larger message. "Beyond the goal of protecting my own privacy, there was a broader 'civic' aspect to this case," he notes, "which was motivating for me and of particular note motivating for my attorney. Fortuny maliciously harmed a lot of people by his actions, and he made the point of bragging about how he was toying with the efforts of those who attempted to deal with him directly.
"It was sad to watch this happen, and it furthered my resolve to act as the 'adult on the playground' and respond to this bully on behalf of all his victims in spirit anyway."
But there's another lesson in the incident — and ironically, it comes from the Craigslist sex troll himself — via the lawyer who prosecuted the case against him. "I believe Fortuny himself sent the message for users of the Internet through the Craigslist Experiment — beware what you read online," says Charles Mudd, "and think several times before communicating personal information through electronic mail to anyone.
"Especially someone you have never met."
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