Camestros Felapton

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Vox Day’s ‘Replatforming’ Backfires

Vox Day has managed to have a large number of his supporters legally doxxed in court documents with the help of his even less competent side-kick former comedian Owen Benjamin. A case filed in the Superior Court of California by crowdfunding tech company Patreon, cites seventy-two people whom they are suing due to a ‘lawfare’ campaign instigated by Day and Benjamin. I’m not linking directly to the court documents but the case “PATREON, INC. VS. PAUL MICHAEL AYURE ET AL” (Case Number: CGC20584586) can be found online via the Superior Court of California’s page https://www.sfsuperiorcourt.org/

The case connects with Day’s struggles with crowdfunding (see past coverage from me here and here) but specifically connects to Owen Benjamin (see past coverage from me here and here) who was kicked off Patreon last year according to the court documents:

Patreon Terminates the Individual Account of Owen Benjamin Smith

18. On October 9, 2019, Patreon terminated the creator account of an individual named Owen Benjamin Smith, a self-described comedian who had repeatedly engaged in hate speech, in violation of Patreon ‘s Community Guidelines. For example, over the course of approximately 18 months, Smith made offensive public statements in which he blamed black people for AIDS, mocked Hollywood rape survivors, and targeted Jewish people for scorn on the 25 basis of religion. 19. Soon after the account termination, Smith, though his attorney … filed a JAMS demand for arbitration against Patreon, asserting claims for breach of contract and tortious interference with alleged contractual relations between Smith and his former patrons on the Patreon platform. Patreon denies, and is presently litigating, these claims in arbitration….20. Smith has an online fanbase, and he responded to his termination by appealing to that fanbase to file abusive claims against Patreon for the purpose of driving up Patreon’s litigation costs and extracting a settlement unrelated to the merits of his claims.

Court documents Exhibit A in DECLARATION…IN SUPPORT OF PLAINTIFF PATREON, INC.’S EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION

The idea as outlined by Day elsewhere is that tech companies like Patreon often have an arbitration clause for disputes. Day’s scheme involves individual subscribers/members/sponsors/patrons/etc also demanding arbitration when a notable member of the far right is kicked off a platform. The tech company then faces not just one manageable arbitration process but potentially hundreds e.g. the Castalia House Patreon account has 1,634 patrons – a number that hasn’t changed by much (if at all) since the initial push last year and which averages as $4 per patron.

Unfortunately, according to the court documents Patreon filled in that potential hole in the terms and conditions:

6. The Current Terms of Use provide that individual users “may not bring a claim against [Patreon] for suspending or terminating another person’s account.” Exhibit A at 11-12. 8 Users expressly agree they “will not bring such a claim[,]” and they are “responsible for the damages caused, including attorneys fees and costs,” if they do bring such a claim.

ibid

The court documents claim that the seventy-two Owen Benjamin supporters had agreed to Patreon being able to amend the Terms of Use when they signed up and by not deleting their account and by signing in this year under the revised Terms had effectively agreed to them.

According to Patreon’s court documents, Benjamin’s lawyer used the possibility of Benjamin’s followers making arbitration claims as a lever in the negotiations:

“On November 15, 2019, Mann made a settlement demand: he would proceed with the threatened 83 additional Patron Claims unless Patreon agreed to pay Smith $2.2 million and reinstate Smith’s Patreon account. Mann made clear that the payment to Smith would resolve the claims asserted by the individual patrons, stating “[o]ur intention is to address all claims -Smith’s and the individual patrons’ – in any discussions with you based upon the required relief described above.” Patreon rejected that demand”

ibid

Instead, it seems the individuals may end up liable for Patreon’s court costs. According to Day this is Patreon “playing dirty” (warning: link to his blog http://voxday.blogspot.com/2020/06/patreon-plays-dirty.html )

“Since a lawsuit is a matter of public record whereas an arbitration is not, the Owen-haters on Reddit have just published all the names of the Bears being sued by Patreon. Needless to say, the Legion is on it and we will be legally retaliating very strongly in order to see that Patreon and their lawyers are severely punished for this despicable and unexpected tactic. But the doxxing has already taken place, so if any of you experiences any blowback from this, please be sure to document everything and let us know right away so that the Legion can include everything in their future filings concerning this element of the matter.”

Vox Populi “Patreon plays dirty”

Day is also reassuring the Owen Benjamin fans (aka “Bears”):

“If you’re one of the Bears concerned, please don’t worry about anything. It’s going to be fine. The Legion – and more – are on it, and everyone will have your back, just as you have had Owen’s. This is an absolutely desperate move by Patreon to try to further delay your arbitrations against them because they are losing very badly. And if you’re wondering how this joke of a lawsuit can be a matter of public record when you haven’t even been served, exactly. As you can see here, Patreon’s lawyers are not following any of the rules of either the legal or the arbitration processes, which is one of the reasons they are losing so consistently and comprehensively.”

Vox Populi “Patreon plays dirty”

Day predicts that Patreon’s actions will lead to its destruction (where have we heard that before?)

“So, it is increasingly looking like there either won’t be a Patreon by the end of the year or Owen and the Bears will own it. It’s rather like finding yourself fighting a duel with someone who genuinely believes his most effective attack is to disembowel himself.”

Vox Populi “Patreon plays dirty”

In an earlier post this month, Day made a similar prediction:

“Of course, literally all of the relevant law and case law, both state and Federal, points to this being either a) Patreon attempting to commit suicide by law, or b) Patreon’s lawyers desperately trying to convince Patreon to keep writing them the checks that it shouldn’t have written in the first place. This legal “strategy”, to the extent that one can call it that, is so obviously futile that if you’re financially dependent upon Patreon in any way, I would not count on it being around in 12 months.”

http://voxday.blogspot.com/2020/06/patreon-ups-ante.html

Quite what will all happen at the end of this, I don’t know. Day has a long history of starting or threatening to start legal disputes. However, I can’t say I have yet to see an actual clear resolution to any of them (the closest in the time I’ve been running this blog has been the Indiegogo dispute whose resolution is unknown). It is worth noting that just because Day has a very flexible concept of what counts as a victory and Owen Benjamin thinks the world is flat and that bleach is medicine, that doesn’t mean they will definitely lose.

The topic is being discussed on various subreddits hostile to Day and Benjamin as well as in Day’s and Benjamin’s own videos.

[ETA the court website also has dates for when the next steps will happen:

2020-11-04 10:30 AMCASE MANAGEMENT CONFERENCE
2020-07-13 9:30 AMOrder To Show Cause Re Preliminary Injunction [Opposition – 6/29; Reply – 7/06)
2020-06-30 9:30 AMNotice Of Motion And Application For Order To Show Cause Re Preliminary Injunction

Looks like this will drag on for months.]

camestrosfelapton

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62 responses to “Vox Day’s ‘Replatforming’ Backfires”

  1. The funny thing here is well, Arbitration clauses in EULAs are bullshit and ought to be outlawed (this country has mainly gone the other way instead, allowing them to negate people’s abilities to file class action lawsuits so as to allow companies to take advantage of people in weaker in poorer positions). So perhaps Vox and his cadre might have a point about Patreon forcing them to use arbitration being bullshit. Incidentally, Vox probably got his idea about a barrage of arbitration claims from what happened to Doordash and Uber (see here: https://www.vox.com/2020/2/12/21133486/doordash-workers-10-million-forced-arbitration-class-action-supreme-court-backfired)

    The problem of course with Vox’s idea is that patrons don’t have standing to bring either litigation or arbitration claims even without the Terms of Use (the Doordash case involved thousands of workers for the company so obviously they have standing), which is a difference Vox and his ilk will never understand. You aren’t harmed financially by a site you like being taken down, so you have no recourse in courts or arbitration, only the siteholder does. So all this is is another case of bad understanding of law resulting in stupid inevitable results.

    Liked by 3 people

    • Unless you’re talking about some other statement by VD that isn’t quoted here, I don’t see how the inappropriateness of a “must use arbitration instead of suing” clause is relevant here. He doesn’t seem to be complaining about having to use arbitration; instead he’s complaining that his attempt to use the arbitration process as a weapon via third parties was seen for what it is.

      Liked by 1 person

      • And while I’m not a lawyer (maybe someone who is has already weighed in on this in the other discussions that were mentioned, I don’t know), if these complaints were all being pursued through the courts instead of arbitration, it’s not as if courts don’t care about standing. Depending on the jurisdiction, he might have even run up against anti-SLAPP laws; Patreon wouldn’t have the same open-and-shut case that for instance a news organization would, but VD openly admitted that the purpose of the crowdsourced actions was just to harm Patreon rather than to address any harm done to those other people.

        Liked by 3 people

      • I don’t have a quote but I think the point is relevant. Day’s been hihlighting the arbitration aspect as a kind of hidden vulnerability that companies put in thinking it would dodge legal trouble but which a supermegagenius can exploit.

        Like

      • I was summing this up to Mr. LT (reaction: sighs, head-shaking) and said “That’s the quiet part! You don’t say that part out loud!”

        For gun nuts, these guys sure know how to shoot themselves in the foot rather than hit their target.

        Why are people doing anything Teddy says? Give money to Worldcon to lose spectacularly and enrich your “SJW enemies”. Sue a company with no standing and an air-tight arbitration/anti-suit TOS and get doxxed plus maybe on the hook for corporate lawyers. Give Teddy $4/month when he’s already living large in Europe on his daddy’s ill-gotten gains. Looks like being a supporter of his gets you nothing but less money and more trouble.

        Liked by 4 people

    • Like I said, there’s maybe something with Indiegogo. They kicked him off but then he sort of got back on somehow (but in a low key way) after some sort of litigation. The details are unclear.

      Aside from that, Day claims a big legal win from his failed computer game career but the truth of that is unclear also. In the five years I’ve been writing about him there are big legal threats that then vanish (remember when he was going to sue BlackGate and then Amazing Stories for publishing the essay were Foz Meadows calls him a Nazi?)

      Liked by 1 person

  5. “Day’s been hihlighting the arbitration aspect as a kind of hidden vulnerability that companies put in thinking it would dodge legal trouble but which a supermegagenius can exploit.”
    Yes, well, I think we’re all in agreement that won’t help him. His gloating about Patreon’s vulnerability makes him sound like a third-rate supervillain (“Fool! Blundering right to your own destruction!”).

    Liked by 2 people

  6. *Nelson from “The Simpsons”: HA-HA!*

    Yes, arbitration sucks, but it’s the law, and it isn’t going to change as long as big corporations can buy Congresscritters and figurehead Presidents.

    You know, right-wing capitalism that the Teddy Boys and their ilk love so much.

    Liked by 2 people

  7. A non-lawyer but speaks lawyer friend of mine (note: this is not legal advice, blah blah) has looked at the documents and found that Patreon spent the extra $1060 to designate this case as “Complex”. Which is lawyerese for “Gonna be expensive. Hire the good lawyers.”

    I’m looking at one page and Patreon has already spent upwards of $1600 in filing fees. Which doesn’t even count lawyer’s fees, clerical stuff, etc.

    It does appear that only 5 people actually are named in the suit, so if they settle now, they can probably get out for only about $1000-2000 EACH.

    You will be unsurprised that Teddy didn’t join in this suit, proving even he doesn’t believe in it.

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      • Oh, and that’s $450 *each* Patreon had to pay to file the summonseses against the suing parties, of which there are indeed 50 or 60 of them (I didn’t count and don’t care). I’d bet anything they’re each going to have to come up with at *LEAST* that amount of money to give to Patreon.

        They have 30 days to file a written response (which of course costs them a fee upfront) or lose by default.

        Losing by default looks to be their cheapest way out now.

        Like

      • @JJ: I think running up against opponents who know how to play *two*- dimensional chess would be pretty much of an insurmountable obstacle for Day and his minions.

        Liked by 4 people

      • Yes, I eventually found it. For the shorter version, they only use the first 4 or so in alphabetical order. Paul A. is the unlucky man who’s going to have this come up whenever he’s searched for, since the US has no “right to be forgotten”.

        Are these poor suckers Teddy’s followers or Owen’s, specifically? I’d guess Owen’s, though some of them are probably giving Teddy money too — big overlap.

        The Order to Show Cause says, “Patreon is currently incurring unnecessary and nonrecoverable arbitration costs and legal fees …” which I interpret as meaning “Dear Judge, please throw this out now, it’s wasting everyone’s time and money, and it’ll only get worse.”

        It also says that the lawyers named as representing the complainers aren’t any more, unless I misread that. The lawyers are only for the arbitration, and have specifically said they aren’t representing in this motion to dismiss, order to show cause, etc.

        Also most of the defendants don’t live in California, which further negates their standing because… rules.

        And Patron even has “TLDR” versions of their terms, one of which says “If we are sued […] you have to help pay for it.”

        Interesting that Teddy thinks public records are “despicable”. So I’ve got no right to see how my tax dollars are being spent.

        Cam: Sorry about the serial posting instead of just putting it all in one, but I keep finding more things to click! It’s been … fun? reading all the documents. The legal bafflegab is at a less-confusing level than a lot of these things are.

        Liked by 2 people

  10. So, reading this, basically it went like this?

    “Bears”: We’re going to file bogus arbitration requests and cost you a lot of money unless you give us what we want.

    Patreon: OK, if you do that NOW we’re going to sue you to get our money back.

    “Bears”: file arbitration requests

    Patreon sues as everybody should have expected.

    Teddy complains about “doxxing” even though it’s just a side effect of something the “victims” should have been expecting.

    Unless the “bears” got their arbitration requests in before the TOU change they really don’t have much to go on. I can’t see the courts as wanting to support harassment or seeing that part of the TOU as unreasonable.

    Patreon isn’t playing multi-dimensional chess, they openly set up a zone of fire and the “bears” casually strolled right into it.

    Liked by 1 person

  11. Wow, flashbacks to the Vic Mignogna defamation case where hundreds of “fans” went around harassing the defendants and making absurd legal claims they’d been fed by incompetent lawyers and right-wing cheerleaders. (Vic lost.)

    Patreon has been dealing with lawsuits from right wingers it kicked off and others for several years now. I doubt they’re shaking in their boots at an arbitration. But they were probably annoyed enough at the arbitration lawyers’ attempt at blackmail to file the lawsuit. That Vox and co are trying to declare that the court has illegally made public records of a filed lawsuit available is quite a take.

    Liked by 4 people

    • Reading the sequence of events, ‘blackmail’ sounds about right. And it’s not exactly the height of strategy to tell someone you’re planning on blackmailing them, waiting until they get all their legal loopholes closed off and they respond, and only then blackmailing them.

      Liked by 3 people

  13. Cam –

    don’t take this the wrong way, since it’s not aimed at you, but why would anyone in the wide wide world pay attention at all to Vox? Or his cohorts? I’ve been watching from afar over the last 5 years or so, and he hasn’t succeeded at *anything*. The man competes with the Trump lads for the right to be the most complete example of ‘failson’ on the face of the Earth. The only difference between him and Jacob Wohl is the age gap.

    Liked by 3 people

    • It’s more a matter of Owen Benjamin, who has been kicked off of numerous sites, has sued several sites and has a not huge but sizable mob of followers who like to harass people and provide him with income, plus some back Hollywood work. Owen is a bigger deal in the rightwing mediosphere than Vox. Vox is trying to ride the coattails. Cam keeps track of the Puppies and whether they are trying to do other stuff, so this is one of those.

      Liked by 2 people

    • There’s something weirdly fascinating about watching someone step on a rake over and over, and then go staggering off shouting, “Winning!”

      Liked by 3 people

      • “That will show those progressive rake handles who’s the real man!” Would you mind terribly if theres a rake-like incident in a future Trigger story?

        Liked by 3 people

  14. If there’s anything we’ve learned (but they haven’t), when Teddy says “it’s all under control, we’ve got you covered”, that’s the exact time you should run around like Panic Blob and cut your losses.

    Trying to blackmail large companies with schools of lawyers at hand never goes well. The lawyer’s letters (plural) asking for upwards of $2M could only have been more blatant if he’d typed “nice company ya got here, shame if anything was to happen to it”.

    Patreon could have paid them off to go away (and that’s obviously what they were hoping), but instead they literally are in this for the principles and not the money. They’re willing to put their high-powered lawyers and staff to work filing and such to show that they don’t capitulate to blackmail and nuisance suits.

    Another thing Teddy’s wrong about — it’s only the NAMES of the litigants that have been revealed (because they were stupid enough not to realize court filings are public records?), not their addresses. Presumably this is a trivial matter to discover nowadays, but well, actually…

    I made a mistake as well, but am big enough to admit it. These 72 people have not been charged the $450 *yet*. They only have to pay that if they or they representatives show up in court next month to contest this. Right now, I believe (IMO) they’re “only” out the $250 filing fee their lawyers charged them to start this nonsense in the first place. Betcha Teddy and Owen aren’t going to reimburse them each for that!

    So basically they’ve paid $250 for the privilege of everyone with an internet connection knowing they support an unfunny racist “comedian” and can’t read a Terms of Service. If they’re extremely lucky, Patreon won’t charge them for all the giant legal fees they’re racking up, but if they do… hoo-boy. So many billable hours. Their lawyer will have a few expenses incurred for his minimal efforts, unless he’s taken this on contingency and written it off as a loss.

    (I don’t know about you guys, but I don’t know anyone who’s got at *minimum* $250 to spare for someone they don’t know getting his fee-fees hurt.)

    The “Bears” options boil down to:

    a) realize “play stupid games, win stupid prizes” is the lesson and stop NOW.

    b) hire a lawyer (a different one than the previous, because they’ve both noped the hell out of it at this point) or represent themselves by showing up in court in beautiful downtown San Francisco on July 13th and drag this out further. If they don’t show, Patreon wins by default.

    Read the fine print yourselves, everyone. At least the TLDR version.

    Final random thoughts:

    1) They better wear a mask if they show up, as SF has been serious about Covid from the start.
    2) There will be a bear on the flag in the courtroom, but it ain’t on their side.
    3) “Bears” means something different in parts of San Francisco.

    Liked by 3 people

  16. I shouldn’t laugh. I shouldn’t. But I did. I am.

    Another way that Voxie could call this a victory would be to admit that these idiots always were cannon fodder and they have fulfilled the purpose of cannon fodder beautifully.

    😉

    Liked by 3 people

    • Yeah, even he’s not quite stupid enough to do that. Using useful idiots are how he gets his egoboo and extra cash.

      Of course, these 70+ are going to be short of extra cash after this fiasco, and hopefully have wised up not to keep sending it to Teddy and Owen.

      But it got people talking about him again, and that’s a victory for him, even when 99% of the talk is making fun of him and his latest stupid idea.

      Like I said to Mr. LT about my Nelson reference and KasaObake’s Sideshow Bob:

      “We’re a bunch of well-educated people who read and in many cases write science fiction, and this situation is so stupid that only Simpsons GIF references can perfectly sum it up.”

      Liked by 2 people

  17. As a lawyer, I have never been particularly impressed with any “brilliant” legal strategy proposed by a non-lawyer. A lot of my job is explaining to people that the things they think are related or relevant simply are not. Beale is just a particularly humorous example of this tendency because he is not just ordinary bad as legal analysis, he is amazingly and stupendously bad at it.

    I predict that the “Bears” are about to get their heads handed to them in court, and I also predict that Beale will never mention this again after they do.

    Liked by 3 people

    • That’s not entirely surprising. Beale’s father was one of the ‘I don’t owe any taxes; all my supposed income belongs to my church, which pays me a stipend to live on’ sorts who then went on to convene a ‘citizen’s court’ to try to put the judge in his previous court case on trial… so it’s not like he had the best of examples on how legal systems actually work.

      Liked by 2 people

    • Teddy might mention it in a screed about how horrible San Francisco is. Of course, the MAGA types have never been there — they’d see it’s beautiful, full of average people (and tourists), interesting things to do (from museums to champion sportsball), amazing food of all sorts, and the air’s clean thanks to the lovely ocean and bay. The touristy parts are completely safe; I’ve walked around town as a small lone woman and taken public transit by myself very often.

      @Aaron, Esq: This is a particularly egregious case of Stupid Layman Tricks. The Patreon Terms of Service are incredibly clear, even in the full boilerplate. The TLDR summaries are even more so; your average 12 year old would understand them* and realize this suit fails on multiple grounds. You can’t sue, you can’t sue on behalf of someone else, and if you sue you have to pay for their lawyers. In plain English in big dark letters.

      * I think this is considered best practice among a lot of companies, writing something at that level so those with limited proficiency can still understand it. It’s a CYA move, but also nice for people who are ESL, have learning difficulties, or went to a school that right-wingers wouldn’t fund properly.**

      ** Cam’s not the only one with an asterisk mine.

      Liked by 1 person

  18. Generally speaking, you don’t have a legal right to go shit in someone else’s house. But then trolls wouldn’t be trolls if they understood that they were not masters of the universe.

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  20. Oof. Found this blog while looking into matters of patreon getting their asses handed to them after their injunction request was denied recently. Just gotta laugh at you and your commenters’ tenuous grip on reality. Looks like Patreon will be paying all those arbitration fees after all.

    If you are going to smugly bloviate endlessly you might want to see about knowing what the fuck you are talking about first.

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    • //If you are going to smugly bloviate endlessly you might want to see about knowing what the fuck you are talking about first.//

      As I said in my post ” just because Day has a very flexible concept of what counts as a victory and Owen Benjamin thinks the world is flat and that bleach is medicine, that doesn’t mean they will definitely lose”

      Like

  21. this post aged well

    https://nationalfile.com/patreon-loses-lawsuit-with-owen-benjamin-fans-likely-to-pay-millions-in-arbitration-and-legal-fees/

    so you say:

    “Instead, it seems the individuals may end up liable for Patreon’s court costs. According to Day this is Patreon “playing dirty” ”

    so not only does it look like the bears will not be paying for patreons court costs…. but it turns out Day was right (as usual) and this attempt at a class action by patreon can be classified as another deceptive practice

    its also likely that this deceptive practice can also be added to the existing arbitration case and may increase any damages / settlement

    are you going to write a retraction and admit you were wrong?

    Like

    • //are you going to write a retraction and admit you were wrong?//

      I’ll keep covering the case. As for admitting I’m wrong about my speculations, that is something I do habitually — even about poor old Vox Day.

      e.g. on this same issue on July 14 I wrote: “Suffice to say, that’s at least a minor win for the bad-guy’s team (not that Patreon are exactly good but they aren’t actively wishing we were all dead). Leading their case is Marc Randazza4 a controversial lawyer who is associated with far-right disinformation outlet InfoWars. Whatever Randazza’s ideological stance might be, he is not without some legal talent. I’ll keep keeping an eye on this. Vox Day appears happy, which is always a worry.” https://camestrosfelapton.wordpress.com/2020/07/14/meanwhile-in-law-virulent-nationalism/

      Like

      • That’s why they wanted the retraction quickly. Same reason they celebrate victory so soon–probably won’t get a chance later.

        Like

  23. Oof, guess piling on a cancel culture feeding frenzy isn’t going to age so well. Lot’s of egg on lot’s of faces here…

    Like

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