I previously wrote an article entitled “The Legality Of Social Media Gaming”. I analyzed a legal dispute between USocial and the social media giant Digg. USocial is an Australia based company in the business of selling Diggs for money. They are in the business of gaming Digg. I analyzed the Cease and Desist sent by Digg to USocial. I looked at whether Digg would win a lawsuit against USocial or could shut them down through economic warchest superiority. After writing the article I emailed USocial advising them that I was an attorney and had written about the case. I asked if they would keep me updated as to any developments. I received a very nice reply stating that they would be happy do so. After not hearing anything for a month I once again wrote USocial asking for an update. I was not expecting to get anything more than a perfunctory response with the current status if I received any response at all. I was surprised when received an email basically laying out their position and admitting they use a software program to game Digg. I contacted USocial to confirm that this information was already in the public domain. I received a response that it was. My article addressed most of the issues raised although I admittedly did miss the fact that USocial is based in Australia. I have no experience in international jurisdiction issues or how any business USocial does with Diggers residing in the United States(if any) would affect venue. I will leave that one alone. Digg could also go after those involved in the design and marketing of the software aruging that its sole purpose is to game Digg and whatever legal arguments go with that. As it appears that none of the involved parties lived in the United States, it is questionable whether Digg, being in the weak financial it is would do anything unless it could get venue in the United States. Here is the email. It is self-explanatory.
My apologies for not getting back to you sooner, we’ve been getting flogged here with work. We’ve just conducted interviews with several UK publications, a few Australian radio stations and now we have an upcoming story in the LA Times tech section this week so I think things are going to get even more hectic and as such, it’s slipped my mind to send you a reply.
I am being stalked in the social media universe by a Fanboy. It sounds like something out of Nightmare On Elm Street doesn’t it? Here is the deal. Some idiot named Mike Pinto who runs a website called Fanboy has been spending his “valuable” time hunting down my blog content on the Digg social media site leaving arguably defamatory comments. What is a Fanboy? Here is the term as defined by Wikipedia:
“Fanboy is a term used to describe any individual who is devoted to a single subject in an emotional or fanatical manner, or to a single point of view within that subject, often to the point where it is considered an obsession.”
That says everything you need to know about Mr. Pinto. For some unknown reason he has been “social media obsessing” about me for the last few months. His Fanboy site is actually pretty cool focusing on anime, science fiction, science in general among other geek type stuff. I happen to be a Trekkie and the guy has put some cool Star-Trek content up. I have no problem giving his site some props.
The guy is still an idiot. It is res ipsa loquitur. Here is why. An article I wrote about former professional wrestler Jeff Gaylord was posted on Digg. The Digg comments are all pretty inane in general, none having anything to do with the story. That is not unusual within the social media universe. The social media community is no different than any other. There will be those who like you and dislike you based on perceptions formed. The posted comments will to a degree reflect that. These perceptions are never grounded in reality. They can not be because 99 percent of the people have never even met or spoken to each other. We simply know user names and the type of content submitted by a person. I am no different. There are people in the social media realm that like me and dislike me for whatever reason they use to legitimize their feelings. In the Digg realm there are those who do not like me because I wrote an article about getting banned for scripts and admitting that I had gamed the Digg system so some of my content could reach their front page. Ironically that article was my last to make the Digg front page. There are also those in social media who do not like me simply because they do not like my brother. The reasons are limitless bounded only by the limits of what people who have never met either of us can conjure up in their minds. The angry people are easy to spot because the comments are always about Mark or me personally and not the content. I have no issue with it. If it makes “Diggers” or other social media users feel better they can rant away and move on to the next thing that angers them that day.
It is the obsessive Pinto Fanboy/ stalker behavior that is creepy. Not as creepy as the fixation SEC attorney Jeffrey Norris had with Mark Cuban but creepy just the same. It makes you contemplate the things that go through a person’s mind to negatively fixate on someone they have never met in a realm meant to be fun and entertaining. Here is Fanboy Michael Pinto’s comment in response to a my Jeff Gaylord article:
“Isn’t Brian Cuban under investigation from SEC for insider trading charges? Before he yammers on about anything relating to the law shouldn’t he wait until he’s in the clear?”
He has left minor variations of the exact same comment on three other posts of mine that showed up on Digg. Considering not everything I write gets submitted to Digg it is a pretty high fanboy/stalker ratio. So why is Pinto an idiot? The answer is in his comments. Pinto is clearly so wrapped up in his Star Trek fantasy world so as to be completely unaware of anything going on in the real world around him To be unaware that it is my brother Mark who is involved with the SEC. To have missed the international news coverage. The coverage on CNN, Fox, NBC when it was announced is pretty oblivious to the world around you.
It is possible that I am not giving Pinto enough credit. I admittedly do not know him. He may be very aware of the facts. If that is the case he must have missed the part of my blog where it talks about my occupation as an attorney before he began posting arguably defamatory statements about my being investigated by the SEC. Hopefully he is not under some illusion that because he posed it as a question, it is a defense to a defamation lawsuit. If he wants to ring me up, I will be happy to “yammer” on to him about the law of defamation. My non-legal advice to Pinto is that should I decide to pursue legal action his best bet is to claim what I first said about him. Simply admit he is an idiot and did not know the true facts.
I am being tongue and cheek to an extent. The people who know me are for the most part educated and intelligent. They actually pay attention to the world around them beyond Star Trek, Star Wars and Anime. My skin is also thick. I have no interest in winning a legal judgment against Mr. Pinto and taking Fanboy from him. If I did, in the nature of a true Cuban family “greed is good” profiteer, I would change the web site name to “Dallas Mavericks Fanboy” and start selling Dallas Mavs merchandise on it. I hear William Shatner is a Mavs fan. Instead I will be happy to give Mr. Pinto some true facts about myself. This will give him some much needed social media credibility should he wish to continue “yammering” on about me in the social media universe. It will also give him protection in a defamation lawsuit since truth is an absolute defense. Here you go Mike:
I know If I tried even a little I could find better things to do on a Friday night than to rant about a meaningless subject. In my own defense I AM an alcoholic divorcee. That entitles me to act like a meaningless child now and then.
“Live Long And Prosper”
I was an active user on Digg until September of 2008. I was banned for using a script. That being said I still enjoy going through the front page of Digg to see what new and unusual content is out there. I am also active on Stumbleupon. I recently came across a story regarding a Cease and Desist letter Digg sent to a company called USocial. Without getting into massive detail, USocial allegedly sells positive votes for content submitted on Digg, Stumbleupon and Propeller. A positive vote is a key basic element in propelling submitted content to the “Front Page” of these sites which in turn can generate thousands of unique user hits. This occurs when enough positive votes are accumulated and whatever other algorithmic factors are satisfied depending on the particular social media site. This is a big deal if your web site brings in advertising dollars. When I wrote about using email lists to generate enough diggs and diversity to get my blog stories to the front page of Digg there was no money involved. My blog has never had advertising. It was all for fun. USocial is the big time. They would not be doing it if there were no market for it. A blogosphere ready and willing to help them turn a profit. The obvious Digg correlation is that they either have a lot of nobodys with huge active friend lists signed up or there are some Digg “powerusers” selling Diggs. The math is pretty simple. That however presupposes that most of the USocial business is from Digg. They could be making their money off of Stumbleupon or Propeller votes. The relatively popularity of the particular site is irrelevant.(Digg is by far the most popular) The issue would be what social platform best helps the particular web site’s traffic. That is where they will be buying the votes.
Cease and Desists letters are are not uncommon in the business world. They are simply threats of legal action if person or company does not stop engaging in a certain type of behavior that the sender considers detrimental to its business and in violation of particular principal of applicable law. The sending of a Cease and Desists letter does not necessarily means that there is any legal basis to win the day in court. It means an attorney has an argument that they will win the day. They are also sent when there is no day to win. They are leveraged implied threats by companies that have money directed at offending companies and inviduals that do not have money for lawyers and protracted litigation. The implied threat being that the cost of the legal process itself will put them out of business. The determining factor in their success is often a simple function of who the elephant in the room is. The Cease And Desist from Digg to USocial as posted on Mashable allegedly reads as follows:
IN ADDITION, YOU HEREBY AGREE THAT YOU SHALL NOT USE THE SERVICE (INCLUDING, WITHOUT LIMITATION, BY “DIGGING” ANY CONTENT) ON BEHALF OF (OR PER THE REQUEST OR INSTRUCTION OF) ANY THIRD PARTY. FURTHERMORE, YOU SHALL NOT REQUEST THAT ANY THIRD PARTY, OR PAY OR OTHERWISE ATTEMPT TO INFLUENCE ANY THIRD TO, MANIPULATE OR OTHERWISE AFFECT THE SITE IN ANY MANNER (INCLUDING, WITHOUT LIMITATION, BY PAYING ANY OTHER USER TO “DIGG” ANY CONTENT).
Digg hereby demands that you immediately cease all attempts to have Digg users manipulate or otherwise affect the Digg service. Please provide us with written confirmation of your understanding of this matter within the next ten (10) days and assure us that the foregoing demands will be met.
This message should not be construed as a waiver of rights, an offer of settlement, or reliance on any specific facts or legal theories. Digg reserves all of its rights and remedies under applicable law.
If you have any questions or comments, please do not hesitate to contact me at
This is not the first time the Cease and Desist has been used to stop gaming, bots and the like. MySpace was involved in a publicized battle with the commercial marketers of Bot programs such as Friend-Adder and Badder-Adder These programs automated friend adding and commenting protocols bypassing the Myspace captcha safeguards. MySpace sent Cease and Desist letters to these companies briefly shutting many of them down. It is important to note that the companies that shut down did not do so by court order but voluntarily. Myspace had the financial leverage to scare them into shutting down if just temporarily. In that situation they were the elephant in the room. As the scripts circulated and were improved upon, new companies popped up as fast as the old ones shut down. With the exception of suing spam king Scott Richter and instituting some onerous captcha and sophisticated I.P.tracking they finally gave up chasing after these bot developers. The MySpace pursuit logic was that these bots violated state and federal anti-spam laws as they allowed people to bypass the captcha spam safeguards and send tens of thousands of comments to its membership base.
I will break down Digg’s letter point by point addressing the legal issues:
“ IN ADDITION, YOU HEREBY AGREE THAT YOU SHALL NOT USE THE SERVICE (INCLUDING, WITHOUT LIMITATION, BY “DIGGING” ANY CONTENT) ON BEHALF OF (OR PER THE REQUEST OR INSTRUCTION OF) ANY THIRD PARTY. FURTHERMORE, YOU SHALL NOT REQUEST THAT ANY THIRD PARTY, OR PAY OR OTHERWISE ATTEMPT TO INFLUENCE ANY THIRD TO, MANIPULATE OR OTHERWISE AFFECT THE SITE IN ANY MANNER (INCLUDING, WITHOUT LIMITATION, BY PAYING ANY OTHER USER TO “DIGG” ANY CONTENT).”
Since Digg has no contractual privity with USocial they attempt to classify USocial activity as a third party tort entitled “tortious interference with contract” What is tortious interference with contract? California law would probably apply in any lawsuit filed. I will address it under general tort principals.
The general elements of tortious interference with contractual relationships are: (1) the existence of a contract subject to interference; (2) the occurrence of an act of interference that was willful and intentional; (3) the act was a proximate cause of the claimant’s damage; and (4) actual damage or loss occurred.
1. The user must have adequate notice that the proposed terms exist;
2. The user must have a meaningful opportunity to review the terms;
3. The user must have adequate notice that taking a specified, optional action manifests assent to the terms; and
4. The user must, in fact, take that action.
Digg will have to prove that USocial is recruiting people with valid contractual agreements with Digg and inducing them to breach that agreement. What if the Diggers are coming voluntarily to USocial? Does that change the analysis? They will then have to prove damages. That would be worth the price of admission in itself. Digg would to an extent have lay out its business model and inner workings. I suspect much of that evidence wold be produced under seal(shielded from the public). The other price of admission event would be when USocial is forced to turn over the list of people it has selling Diggs. Expect a whole new wave of bannings when that happens. The names may suprise a lot of people. The point is that shutting down USocial and others companies that may spring up selling Diggs, Stumbles, Reddit Votes, is more complicated than sending out a Cease and Desist letter. This is especially true if they have some money behind them and their own attorneys. I suspect USocial has attorneys who may agree with me. As of the writing of this article they are still up and running.
A likelihood of success on the underlying tortious interference claim; irreparable harm for which it has no adequate remedy at law;that greater injury will be suffered from denying the order, and that the granting would not disserve the public interest.
I suspect this would be the next thing Digg does if they are serious about shutting USocial down. In order to get the restraining order and injunction they would have to convince a judge that they will in all likelyhood win the underlying tortious interference claim. This is like a “mini-trial” where a lot of the same evidence is layed out. They will also have to show that they have no other adequate remedy at law. USocial will certainly claim Digg has other remedies. Is their a way for Digg to identify and go after its own offending member base? If there is they may not be entitled to a TRO against USocial. Digg will have to show they are suffering irreparable harm. They will have to lay out to an extent their algorithim and business model and how the selling of Diggs affects this. They will then have to translate that into damages. The argument would probably be that if people game the system, it loses its integrity,no one buys advertising, other revenue streams go away and the company fails. An intersting part of this is that they have to be currently suffering irrperable harm. How will they prove this up? They would probably have to show that they have actually lost revenue due to the activities of USocial. If they are successful with this they could turn TRO into a permanent injunction. That would be end of USocial. In a month somone will pop up to take their place. As long as there is money to be made the Digg Cease and Desist lawyers will stay busy.
Added on 22 May 2013