iProng / iLounge battle heats up
Just before Macworld 2007, iLounge posted in their backstage section describing "thieves" that are stealing their work and using this work in their own editorial works. iLounge described unnamed sources that were stealing writings and taking credit for those as their own work. iLounge also said they were sending cease and desist notices to all bloggers, journalists and websites that were guilty of this. iProng was one of those sites listed as plagiarizing iLounge's content and has responded. Click "Full Story" for the rest.
Read More...
iProng posted their response and DTT was made aware of this by one of our readers. Here is the letter:
Hello Mr. Bierman,
Apologies for not being able to respond sooner to the Cease and Desist you sent me on behalf of your client iLounge, as I've been in California the past week reporting on iPod-related news at Macworld Expo on behalf of my publication iProng.com. Of course your client, iLounge publisher Dennis Lloyd, is already aware of this, as Dennis and I ran into each other several times on our way in and out of the Press Room at the Expo last week, and at one point Dennis and I were sitting about ten feet from each other in the Press Room. Since Dennis knew he would see me and would have plenty of opportunities to speak with me privately if he desired, I must say I'm a little surprised that he chose to Cease and Desist me rather than walk ten feet over to the table I was sitting at and pull me aside if he had any concerns. I also find it odd that the first communication I've had from Dennis (or any other iLounge staff member) in more than two years has come in the form of a Cease and Desist letter; if there was a problem, this seems a rather grandstanding method of attempting to make me aware of it.
In your letter you claim that I've been stealing content from iLounge on an ongoing basis, a serious accusation. Yet you cite only one example, that being the apparent similarity between the listing of iPod-centric Macworld Expo vendors on both the iProng and iLounge websites. As your client is aware, our two publications cover not only the same trade shows but largely the same industry, so it's a given that the companies on the two lists would be largely similar. For the record, I used the publicly available exhibitor list at macworldexpo.com as a basis for compiling my list. As far as the company-specific details reported on my site's listing, I've been in contact with these companies as far back as Thanksgiving, and the details I published were provided directly to me by these companies.
If you're trying to claim that I copied these company-specific details from your client's website, representatives from the various companies on my list can attest otherwise. Additionally, there are companies on the iProng list that are not on the iLounge list, demonstrating that I did my own research. Conversely, there are companies that are on the iLounge list that are not on the iProng list, demonstrating that I wasn't copying your client's list; otherwise, why would I have arbitrarily skipped over some of the companies while copying?
With regard to the fact that the two lists contain some similar information, I will remind you that our two publications cover largely the same companies, and that some of these companies undoubtedly provided both our publications with the same factual information; your client claiming theft would be like two local newspapers attending the same football game and then one suing the other because they both ended up publishing the same final score. The only other similarities between the two lists are the fact that they're both broken into three parts (a reasonable way to break down approximately seventy-five companies), the fact that they both have the word "complete" in their title (which turned out to be incorrect in both cases, as both lists had companies that the other didn't), and the fact that both lists are ordered from A-Z. Best I can tell, your client iLounge is attempting to make a claim on the concept of alphabetical order.
As trade shows and vendors across the iPod economy have begun to show increasingly strong interest in having iProng cover their iPod-related events and products, it would appear that your client iLounge has decided to resort to scare tactics in a rather desperate attempt to prevent an up-and-coming publication from having a fair shake at competing with them. Your Cease and Desist letter literally insists that I remove iProng's Macworld Expo coverage from the iProng website and destroy it. This demonstrates that your client doesn't feel that I have a right to cover the iPod-related aspects of Macworld Expo. Seems more than a bit anti-competitive in nature to me. Furthermore, the timing of your letter, which was delivered on what your client knew would be the day before I departed for the Expo, combined with the fact that your respond-by date was the last day of Expo (a date when your client knew I would be 3000 miles from home), makes it clear that the sole purpose of your letter was an attempt to intimidate me into being unable to properly cover Macworld Expo, either by creating a mental distraction or by forcing me to stay home in order to respond to your letter by your deadline. Seeing as how I was meeting with approximately seventy-five potential advertisers at an Expo which your client attempted to keep me from attending, I believe this may put your client iLounge in direct violation of California Civil Code 17200, tortuous interference of a business relationship and unfair business practice, the very same civil code that you were so fond of referencing in your letter.
While I've never stolen from your client, there have been multiple instances over the past three years in which iLounge copied ideas from my publication iProng (formerly iPod Garage) to varying degrees. To cite two quick examples: in 2004 Dennis Lloyd of iLounge copied my previously published idea for an online iPod User Group and published a derivative group of his own, copycatting the details right down to a nearly identical meeting agenda. More recently, iLounge's Christina Easton copycatted iProng's ongoing series of interviewing famous musicians (a fairly out-of-the-box idea for an iPod-themed website). Lucky for your client, I'm too busy covering the iPod industry to have any time to waste making legal threats against the other iPod sites out there. But one must ask the question of who's been copycatting whom for the past three years.
The most serious aspect of this situation, and the one that makes this actionable on my part, is the article published on iLounge.com by Editor-in-Chief Jeremy Horwitz on January 3, 2007, a direct internet link to which is provided below:
http://backstage.ilounge.com/index.php/backstage/comments/bad-news-for-content-thieves/
In this article, while declining to name names, Mr. Horwitz claimed that iLounge was going to take legal action against two publications, and then using confusing wording he intentionally tried to mislead his readers into believing that both publications were stealing "pieces of news stories" and "photographs" from iLounge. Since iProng is clearly one of the two sites that iLounge was referencing, and since there was no mention of "pieces of news stories" or "photographs" in your letter to me, it's clear that your client was hoping to mislead the public into believing that my publication is stealing news stories and photos when in fact your client's only claim is this nonsense about alphabetical order. Since I'm not an attorney like Mr. Horwitz is, I'm not quite sure of the legal term for what he's done here in his article, but it reads quite a bit like defamation to me.
Furthermore, in the reader comments posted to Mr. Horwitz's article (comments which he later removed but which I have screen captures of), at least one reader's comment confirms that Mr. Horwitz's attempt at bait-and-switch succeeded, with the commenter stating that he believed the claims were directed at me. Additionally, at least one newspaper journalist has already contacted me upon reading Mr. Horwitz's article under the assumption that I was being accused of the crimes referenced in said article. This proves that both the public and the press have been actively misled by Mr. Horwitz into believing that iLounge was accusing me of crimes that they are in fact not accusing me of, thus proving that Mr. Horwitz's intentionally misleading article caused damage to the reputation of both me and my publication. As an attorney, Mr. Horwitz should know better than to tread on such thin legal ground, and in fact I believe his legal background demonstrates that he knew what he was doing and set out to intentionally violate my civil rights with his article.
As far as your claim that I have "made false and misleading statements as well as untrue disparaging comments about iLounge," I've done no such thing. And since you've failed to provide any evidence of this behavior, or to even cite a single supposed instance of this behavior, I can only assume that you tacked this nonsense onto the end of your letter in an attempt to make it sound even scarier (I believe this may again put your client in violation of your favorite California Civil Code 17200). I have in fact noticed that iLounge's reputation appears to have fallen quite a bit over the past year, but that's not my doing or my fault. If they're looking for someone to blame, I suggest that your client take a look in the mirror.
Clearly, the sole purpose of your letter was an attempt to scare me and the rest of the iProng staff out of covering this industry's biggest annual event (a goal at which they failed), as well as an attempt to intimidate me from covering an industry that iLounge clearly thinks its has exclusive domain over. I think it's time your client came to grips with the fact that there are now at least four or five other quality iPod-centric publications out there, and that this industry is no longer solely their playground. This kind of nonsense is not going to help their cause.
If your goal was to scare me, then you've succeeded, but not for the reason you were hoping. If there were to be an actual lawsuit, the only result would be sanctions � against you � for wasting the court's time. But what does scare me is that this latest nonsense, combined with some other disturbing behavior I've seen from iLounge over the past year, makes me fear that your client is headed on a path toward self-destruction. I love the motivation that comes from competition, so I don't want to see iLounge cease to exist, I just want to see them stop being idiots. However, if iLounge is in fact bent on self-destruction, then I'll kindly ask that they stop trying to drag me and iProng into their blast radius.
Things are heating up. We're interested in how this turns out.
