03/02/2020 AYYADURAI v. FLOOR64, INC | 270 F.Supp.3d 343... | 20170907d75| Leagle.com Courts have repeatedly held that language such as "fraud," "snake-oil job," "rip-o ," and "scam" is generally protected as hyperbolic speech. See Phantom Touring, 953 F.2d at 728; McCabe, 814 F.2d at 841-42; Paterson v. Little, Brown & Co., 502 F.Supp.2d 1124, 1135 (W.D. Wash. 2007). In context, no reasonable reader [270 F.Supp.3d 362] would interpret the references to plainti 's claim as "fraudulent" to suggest that plainti actually committed a fraud — that is, that he made a false statement, with knowledge of its falsity, for the purpose of inducing another to act on the representation, where the other relied on that representation to his or her detriment. It is clear, particularly from the surrounding language describing plainti 's claims as "bogus" or "easily debunked," that the articles are simply using colorful and gurative language and are not making any fact-based accusation that plainti has actually committed a fraud. (See, e.g., Compl. ¶¶ 36(a), 37(d)). Accordingly, the statements are protected. b.  Statements That Plaintiff Is Generating a Fake Controversy Three of the allegedly defamatory statements identi ed in the complaint state that the controversy over who invented e-mail is "fabricated," "manufactur[ed]" by plainti , or is a "faux controversy over something that is blatantly untrue." (Compl. ¶¶ 35(e), (g), (h)). Those statements are essentially just variations on the statements that plainti 's claim to have invented e-mail is not true; the controversy is only "fabricated" or a "faux controversy" if one believes that plainti 's claim is false. Accordingly, as with the statements discussed above, these statements are protected because they are both incapable of being proved true or false and are subjective statements that do not imply knowledge of objective facts. As to the latter point, it is signi cant that the September 3, 2014 article in which all three statements appear includes a link to the 1977 RAND report that Masnick claims demonstrates that "lots of folks were developing all sorts of components of an electronic intero ce mail system" at the time, and tells readers to follow the link and "[g]o read the primary documentation." (Compl. Ex. H at 3). c.  Statements That Plaintiff Misrepresented Copyright Law and the RAND Report The statements that plainti has misrepresented both copyright law and the RAND report are likewise protected. When read in context, they are clearly subjective statements that do not imply the existence of objectively veri able facts. The articles at issue do not simply state, without more, that plainti misrepresented copyright law and the RAND report. Rather, they fully explain the basis for their position, thereby enabling (and in some instances even directly inviting) readers to come to their own conclusions. For example, in the September 2, 2014 article, Masnick stated that Ayyadurai and his supporters misrepresent the meaning of a copyright when they state that "[o]n August 30, 1982, the US government o cially recognized V.A. Shiva Ayyadurai as the inventor of email by awarding him the rst US Copyright for `Email." (Compl. Ex. G at 2). He then explained the basis for his conclusion: [c]opyright was not, and has never been `the equivalent of a patent.' Copyright and parents are two very di erent things. Copyright protects speci c expression. Patents protect inventions. That's why copyright protected only the speci c code that Ayyadurai wrote, rather than the concept of email. While it's true that software wasn't considered patentable by many at the time, that doesn't, in any way, mean that a copyright on a particular piece of software was the equivalent in any way, to a patent at the time. (Id. at 3). By disclosing the non-defamatory facts on which he relied, Masnick made clear that he was expressing his own subjective opinion and that he was not relying [270 F.Supp.3d 363] on other, nondisclosed facts. See Piccone, 785 F.3d at 771. That same article stated that plainti wrote: "totally misrepresent[s]" a 1977 RAND report on computer messaging. (Compl. Ex. G at 4). In the post, Masnick Here's what Ayyadurai, Weber and their friends claim Crocker said [in the 1977 RAND report]: At this time, no attempt is being made to emulate a full-scale, inter-organizational mail system. The fact that the system is intended for use in various organizational contexts and by users of di ering expertise makes it almost impossible to build a system which responds to all users' needs. (Id. at 3). 10 He provided a link to the full report, telling his readers "you can read it here." Id. He explained his conclusion that plainti has misrepresented the report by noting that the two sentences quoted come from di erent pages of the report, and by quoting sections of the report that he contends belie plainti 's claims. (See id. at 3-4). Again, by providing, and even directly linking to, the relevant information on which Masnick draws his conclusion, he made it clear that he was expressing his own interpretation of those facts and inviting his readers to come to their own conclusions. d.  Statements That Plaintiff's Story Has Changed over Time The same is true of several of the statements suggesting that plainti 's story has changed over time. The September 4, 2014 article stated that " [c]omputer historian Thomas Haigh has been tracking Ayyadurai's lies and misrepresentations for years, and alerts us to the fact that Ayyadurai's story has notably changed over the years" and that he "has conveniently tried to rewrite his own history to counter the debunkings" of his claim. (Compl. Ex. I at 1-2). In the post, Masnick provided a link to a lengthy article by Haigh in which he explained his conclusion in great detail, and also quoted extensively from that post. As one example, Masnick wrote: [I]n 2011, [plainti ] originally claimed that while he was `challenged' to create an electronic intero ce messaging system in 1978, he didn't actually get it to work until 1980. But, of course, by then email was much more widespread. So, Ayyadurai changed the story, and pretended that he was both challenged and wrote his 50,000 lines of code and got it all working in 1978. (Id. at 2). The complaint alleges that the nal sentence is defamatory, but does not appear to challenge the accuracy of the rst two. Accordingly, once again, Masnick presented his own conclusion that plainti had changed his story, but made it clear that he was expressing his own subjective view by fully disclosing the facts on which that opinion was based. e.  Statements That Plaintiff Has Based His Entire Reputation on His Claim to Have Invented E-Mail A number of the challenged statements suggest that plainti has based his entire reputation or identity on his claim to have invented e-mail. (See, e.g., Compl. ¶¶ 44(a) ("[Ayyadurai] has staked his entire identity on the outright false claim that he invented email"); 47(b) ("Ayyadurai ... has built his entire reputation on the false claim" that he invented email)) Plainti contends that those statements are demonstrably https://www.leagle.com/decision/infdco20170907d75 7/15