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I imagined the following scenario, where how to mount a defence for the lowest cost (without settlement, in order to clear one's name) wasn't clear to me:

The hypothetical case

Vocal code critic Frank Bloggs (popularity similar to Linus Torvalds) has been shown code by academic James Coda. Frank has written a publicly scathing review, with very minimal snippets of code utilised under fair use (criticism) to demo. Frank is the only other person to have seen James' code. It's kept confidential, as it's academic research, although Frank is not aware of this fact. By showing the code to Frank, it's implicit that he would publicly comment (as he does with any other code he's given). Assume James has the means to prove Frank was the only other person to have seen the code.

James gets bad press. James is furious, decides to frame Frank for leaking the entirety of his code and then sue. James goes to code site A (akin to GitHub), registers account 'fbloggs' with a disposable email, then posts the same code Frank would have seen. Frank doesn't become aware of the page until after he receives a legal notice from James.

Frank tries to contact the site, asking them to reveal the email address/IP, to try to prove his innocence, but they refuse (assume it's too costly for Frank to sue. They would rather close down like LavaBit). Sleuthing the password reset, Frank gets f****.bl****@somemail.com. Frank's typical email (hidden from the usually angry public) is frank.bloggs2@normalmail.com. Somemail.com refuse to help; but James used a proxy, and Frank's details can be found publicly, so the account is plausibly forged.

James's argument

  1. Frank is the only other person to proveably have seen his code
  2. The URL where the entire source code is leaked contains 'fbloggs'
  3. The website contains the same code he gave to Frank
  4. Frank has proveably seen the code based on his web review containing snippets
  5. James omits the plausibility of the email account (he knows he isn't supposed to know it's private details), but if Frank were to bring it up, then James would claim it's plausibly Frank's
  6. James omits the part where he states he didn't leak it (overly specific denial), but if accused he would mention.

Ergo, James accuses Frank of leaking his confidential code.

Judge character flaw

The case is put before a tech unsavvy judge (who would believe because the URL contains 'fbloggs' it must be likely Frank Bloggs' page), a flaw that isn't found out until after trial proceeds (EG judge can no longer be vetoed). Similarly, Frank Bloggs arguing 'it could be anyone with fbloggs as their name!' won't pass muster with this particular judge.

How does Frank successfully defend himself for the lowest cost whilst maintaining his reputation?

Looking for responses for US, and also UK law.

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    I think the usual thing would be for Bloggs to call an expert witness to testify that there is no real evidence the page belongs to him. Of course, if you posit that the judge will ignore all evidence in Bloggs' favor, then obviously he will lose the case - you've made the question inherently unsolvable. He may have a right to appeal. – Nate Eldredge Feb 1 at 6:38
  • I'm basing it on a mixture of real world cases. For example, judges who came to unusual copyright law decisions on code (such as Sony v Bleem compared to Sony v Connectix Corp, which were almost diametrically opposed). Having a tech unsavvy judge isn't uncommon, from what I've observed. The judge isn't vindictive, merely ignorant (although is sceptical of 'wasn't me!' type claims). I was wondering if there were 'out of the box' solutions, like Frank using the tech ignorance of the judge to his advantage. – SSight3 Feb 1 at 7:01
  • In the US, would this call for a jury trial if the suit was not in small claims court? – David Thornley Feb 1 at 22:56
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How does Frank successfully defend himself for the lowest cost whilst maintaining his reputation?

At the outset, it will be hard for James to prove his allegations against Frank. For instance, the ability to create fake accounts is widely known, whence James would need credible evidence that the person who posted on site A was actually James.

To defend himself for the lowest cost, Frank ought to seriously consider litigating in pro per despite the intense dedication and steep learning curve that this will entail. That is quite a challenge because there is a deadline of less than a month (counting from the day James's complaint is served upon Frank) for Frank to file his responsive pleadings and affirmative defenses. But court costs and deposition expenses are minimal compared to the bills Frank would have to pay to his attorney, who may turn out to be incompetent anyway.

Back to the core issue: One of Frank's first steps should be to request court orders to the effect of compelling site A and somemail.com to disclose the identity, timestamps, IP addresses, and other non-content information related to the creation and activity of fbloggs and the somemail.com address. Depending on the circumstances, this might or might not suffice for proving Frank's innocence and possibly unearthing James's fraud on the court.

Frank's motion for such orders need to be premised on the Stored Communications Act, the Electronic Communications Privacy Act, and preferably case law which reflects Frank's entitlement to proceed with that discovery. For instance, see In re Zynga Privacy Litigation, 750 F.3d 1098, 1106 (2014):

we hold that under ECPA, the term "contents" refers to the intended message conveyed by the communication, and does not include record information regarding the characteristics of the message that is generated in the course of the communication. We have previously made this distinction between contents and record information. See United States v. Reed, 575 F.3d 900, 917 (9th Cir.2009) (holding that information about a telephone call's "origination, length, and time" was not "contents" for purposes of § 2510(8), because it contained no "information concerning the substance, purport or meaning of [the] communication"). And this conclusion is consistent with the reasoning of our sister circuits. See Gilday v. Dubois, 124 F.3d 277, 296 n. 27 (1st Cir. 1997) (holding that a device that "captures electronic signals relating to the [personal identification number] of the caller, the number called, and the date, time and length of the call" does not capture the contents of communications and therefore "is not within the ambit of the Wiretap Act"); see also In re Application of U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov't, 620 F.3d 304, 305-06 (3d Cir.2010) (holding that cell phone users' location data is not content information under the Stored Communications Act)

In cases like this, much the parties' efforts will focus on credibility issues and circumstantial evidence. For instance, the fact that Frank was judicious in how much code was disclosed in his scathing review is inconsistent with the thorough disclosure thereof that James imputes to him.

Frank's discussion of true deficiencies of James's coding makes it plausible that the subsequent publication that is falsely attributed to Frank was in [fraudulent] retaliation for the bad press James got.

Frank's attempt to take advantage of the judge's tech ignorance is unnecessary and detrimental: James can readily fill the gaps of the judge's ignorance, and that would hurt Frank's credibility.

If Frank manages to prove that James's lawsuit was fraudulent, Frank should sue James for malicious prosecution (assuming the existence of provisions such as MCL 600.2907).

That being said, all of the above is quite theoretical. As a defamation plaintiff in pro per, I know from personal experience (and also from talking to other defamation plaintiffs) that judges in US courts do whatever they want even if that violates the law and is against the great weight of the evidence.

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    Excellent response, thank you! – SSight3 Feb 1 at 17:56

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