630 F.3d 563 (7th Cir. 2010), 10-1167, Blockowicz v. Williams
|Citation:||630 F.3d 563|
|Opinion Judge:||FLAUM, Circuit Judge.|
|Party Name:||David BLOCKOWICZ, Mary Blockowicz, and Lisa Blockowicz, Plaintiffs-Appellants, v. Joseph David WILLIAMS and Michelle Ramey, Defendants, and Ed Magedson and Xcentric Ventures, LLC, Third Party Respondents-Appellees.|
|Attorney:||Cameron M. Nelson (argued), Attorney, Greenberg Traurig, Chicago, IL, for Plaintiffs-Appellants. Maria Crimi Speth (argued), Attorney, Jaburg & Wilk, P.C., Phoenix, AZ, for Third Party Respondents-Appellees.|
|Judge Panel:||Before CUDAHY, FLAUM, and WOOD, Circuit Judges.|
|Case Date:||December 27, 2010|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Argued Sept. 23, 2010.
David, Mary, and Lisa Blockowicz received an injunction ordering Joseph David Williams and Michelle Ramey to remove defamatory comments they posted about the Blockowiczs on www. ripoffreport. com (" ROR" ), among other websites. Williams and Ramey never responded to the injunction, prompting the Blockowiczs to contact the websites on which the statements were posted to secure compliance with the injunction. Every website complied, except for ROR. The Blockowiczs asked the district court that issued the injunction to enforce it against Xcentric Ventures, LLC, (" Xcentric" ) the host of ROR, and Ed Magedson, the website's manager, pursuant to Rule 65(d)(2)(C). The district court declined, and the Blockowiczs appeal the district court's decision. They argue that Xcentric and Magedson fit within Rule 65(d)(2)(C), and thus should be bound by the injunction, because they had " actual notice" of the injunction, and they were " in active concert or participation" with the defendants in violating the injunction by failing to remove the defamatory statements. We affirm: Xcentric and Magedson were not " in active concert or participation" with the defendants pursuant to Rule 65(d)(2)(C).
The Blockowiczs filed a civil suit against Williams and Ramey (" the defendants" ) on
June 30, 2009, alleging defamation per se based on statements regarding one or more of the Blockowiczs that the defendants allegedly posted on ROR and other websites. Two of the statements at issue were posted in 2003; the third was posted in 2009. After the defendants failed to respond, the district court entered a default judgment and issued a permanent injunction that required the defendants to remove the defamatory statements from ROR, among other websites. The Blockowiczs sent notice of the injunction via email to an email address believed to belong to the defendants. The record does not confirm who owns the email account, but the Blockowiczs assert that the defendants implicitly acknowledged receipt by posting comments on the internet related to the lawsuit. The defendants never responded to or complied with the injunction. So the Blockowiczs contacted the operators of the websites on which the defendants posted the defamatory statements and requested that they remove the statements from their respective websites. Every website complied, except for ROR.
ROR is a website on which users post comments about bad business practices. It is operated by Xcentric and managed by Magedson. In order to post on ROR, users must enter into a contractual relationship with Xcentric by signing Xcentric's Terms of Service. The Terms of Service have a number of relevant provisions. First, they prohibit users from posting defamatory information:
You will NOT post on ROR ... any defamatory, inaccurate, abusive, obscene, profane, offensive, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will use ROR in a manner consistent with any and all applicable laws and regulations. By posting information on ROR, you warrant and represent that the information is truthful and accurate.
Next, the Terms of Service state that users " will defend, indemnify, and hold harmless Xcentric ... for any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your use of ROR, including, but not limited to, any breach by you of the terms of this Agreement."
Third, they state: " By posting information on ROR, you understand and agree that the material will not be removed even at your request. You shall remain solely responsible for the content of your postings on ROR."
Fourth, the Terms of Service provide that when users post information on ROR, they " automatically grant ... to Xcentric an irrevocable, perpetual, fully-paid, worldwide exclusive license to use, copy, perform, display and distribute such information and content...."
ROR also provides information to parties considering suing the website:
[A]lthough our Terms of Service prohibit users from posting false information, we simply cannot serve as the judge or jury in disputes between two parties. If you contact us and demand that we remove information because you contend that it's false and therefore a violation of our TOS, we have no way to determine if this is true, of [sic] if the information is really accurate. These issues have to be determined in court, not by us.
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