In addition to sending a cease-and-desist letter to a popular Chinese music gear site, Behringer are now taking rival manufacturer Dave Smith Instruments – and unnamed users of a popular forum – to court.
Last week, CDM reported that Behringer’s global entity, MUSIC Tribe, had sent a cease and desist letter to Chinese news site Midifan, threatening a criminal defamation lawsuit would be the next step. However, as of this writing, no lawsuit has been served.
CDM was tipped off today that court filings are available showing MUSIC GROUP (in the USA) have proceeded with legal action against Dave Smith Instruments and various defendants for libel per se, libel per quod, and product disparagement, in the state of California, seeking damages in excess of US$250,000. The filings are dated 9th of June 2018.
The twist here is that in addition to Dave Smith Instruments, the manufacturer, and employee Anthony Karavidas (an engineer at DSI), the lawsuit seeks damages from an additional twenty individuals posting in the same forum thread. Since the identity of those individuals is unknown, they’re named as “DOES 1-20.” In the words of the lawsuit, “the true names and capacities, whether individual, corporate, associate or otherwise … are unknown to Plaintiff.”
In other words, it’s possible someone reading this article just got sued in California but doesn’t know it yet. Uh… hi there, happy Tuesday.
Behringer name Dave Smith’s Prophet Rev2 as a competitor to the Behringer Deepmind 12 in the suit.
Court filings are available as public record of the San Francisco County Superior Court (that’s the state trial court of the county of San Francisco). Expect a large pile of legal findings from the two companies and their lawyers, but those are located here:
(All documents related to the proceeding are located under case CGC17559458.)
The lawsuit is directed exclusively at commentary published by DSI employees on the Gearslutz forums.
But to review: a selection of comments by a single engineer and twenty unnamed individuals has been turned into a quarter-million dollar-plus defamation claim against a manufacturer, an individual, and pseudonymous forum posters. That thread is still up – it reached the 153-page count before a Gearslutz moderator closed the discussion, on the 4th of July of 2017. One sample:
(Whereas some threads were initiated by forum user Uli Behringer himself, this one came from a third party, before it ballooned.)
Dave Smith Instruments declined to comment for this story.
What the lawsuit says
According to evidence presented in the lawsuit, Tony, appearing as Tonykara, wrote a series of messages in a thread in early 2017 on Gearslutz forums, and later identified himself as an engineer working for DSI when a user asked him who he was. In the same thread, DOES 1-20 [users identified only by handle] chime in with other sentiments tilted against Behringer. (This thread itself was not entirely one-sided – even in the court evidence provided, you’ll read other form posters criticizing Dave Smith Instruments and Tonykara.)
These observations range from general complaints about Behringer products copying other products or characterizing business practices as “underhanded,” to specific allegations – particularly, a post by Karavidas that claims the Behringer CT100 cable tester is a “blatant copy” of a product by Ebtech.
Some of these complaints may indeed be factually questionable or genuinely inaccurate. Other claims, however, would be harder to disprove. For instance, the lawsuit highlights a comment by Mike Hiegemann (aka Paul Dither) who says “it’s not a secret that Behringer has ripped off products in the past and is planning to do so in the future.” The lawsuit characterizes that as “false, defamatory, and libelous.”
It would be hard to prove or disprove what Behringer will do in the future (obviously), but note that past lawsuits by Roland and Mackie in fact claimed some past Behringer-branded products were deliberate copies. Whether or not those makers won those lawsuits, it means that they did product a significant amount of material evidence as a matter of public record.
Or to put it another way: if you go out and say CDM is a “crap site,” I really can’t do anything. Even if you say “CDM is a biased site that only does what it’s advertisers want,” ditto. I might disagree, but could I take you to court for libel? If you say “CDM is a crap site that’s just a bunch of archaic open source tools mixed with advertiser news made for aging music hipsters,” I … actually, okay I think I’m just now projecting. You get the point.
So, the next questions to answer appear to be, how truthful or untruthful were these statements? Can they be held as libelous? What damages would the authors owe MUSIC Group, if so? Is Dave Smith Instruments legally responsible for what one of its employees posted on a forum?
And I suspect most of interest to readers of this site, can Behringer unmask a series of people posting under pseudonyms and hold them responsible, as well?
There are three charges made in the lawsuit:
Libel per quod. Paraphrasing: claims about Behringer’s business practice and alleged history of copying other products are false and have hurt the company’s reputation. This category requires demonstrating specific legal damages in court.
Libel per se. This is a related set of claims, but because of US law forbidding attacking someone else’s business profession falsely, might not require damages. [Very big disclaimer: I’m not a lawyer. If I were a lawyer, I would probably advise you that you shouldn’t take this description as legal advice. But you can get this literally from what “per quod” and “per se” mean.]
Product disparagement. Here, because potential customers read these statements, and they refer to the Behringer brand and products, there’s a specific claim of damages to the brand and the products, beyond
If you can find your way through the court documents, you’ll find exhibits reproducing the complete forum thread, plus a cease and desist letter sent on the 7th of March 2017 – and an agreement by Tony Karavidas to comply with the letter.
There are a couple of things here that are unclear to me, which I will try to investigate.
One, reading through the lawsuit, I’m unclear as to the degree to which Karavidas may have violated the terms of the cease and desist. It appears that some message posts – as he attempted to continue to explain and/or complain about the situation – post-date an agreement to cease disparaging Behringer. It may be that failing to adequately respond to the cease and desist triggered the legal action, instead of defusing the issue.
Two, it’s unclear what will happen to other, pseudonymous posters to Gearslutz. The lawsuit says these “Does” 1-20 will be amended to the lawsuit once their identities are known. That may mean attempting to obligate the forum to reveal those identities. (Historical footnote: when Apple attempted to unmask sources and authors of stories on its leaked “Asteroid” audio interface over a decade ago, courts ruled it couldn’t, in a case called Apple versus Does. This is a different set of circumstances, but it gives some clue to how courts handle unidentified users in legal cases.)
Watching this case, however, may prove itself interesting. The law is intended to prevent damage to a profession – whether you’re one person or a big manufacturer – based on untrue claims. But this means two things, if the courts work correctly. On one hand, if false claims were made about Behringer, that will presumably come out. On the other hand, if Behringer are simply gagging criticism, and if industry complaints that their products are unfairly copying intellectual property, theoretically, that should come out, too.
And, of course, it’s possible for both of those scenarios to be true at once, depending on how this shakes out.
But for anyone who believed that defamation was some peculiarity of Chinese law last week, in fact US law and many international laws do hold individuals and publishers (like this one) legally responsible for damages if we make claims that are false. And yes, suffice to say, that could put a publisher out of business, on legal fees alone. That’s not a commentary on this case – that’s the reality of tort laws worldwide. And those laws exist to balance protections on free speech with the impact that speech can have as others.
Behringer had not yet responded to CDM’s request for comment as I published this.
Behringer and China
Late last week, I shared news that Chinese news portal Midifan had received a cease and desist letter from Behringer, via Music Tribe.
Midifan emphasized that the letter complained about products “copying” existing products, and in fact the letter from Music Tribe singled out coverage of Superbooth introductions of products with appearance, names, and structures based on the Sequential [Dave Smith] Pro One, Roland VC-330, SH-101, TR-808, and vintage modules, plus the ARP Odyssey. (Note that KORG had licensed the Odyssey and collaborated with its original creators; Behringer did not.)
Midifan and Music Tribe also clashed over reports by Midifan of a worker strike at Behringer’s MUSIC Tribe City manufacturing facility in Zhongshan, China.
Behringer has declined to comment publicly on CDM’s story. I did reach out to Uli Behringer directly over the weekend, and had a conversation, but got no further public comment.
Uli Behringer did post a statement to the MUSIC Tribe Academy Facebook group, which CDM shared via our own channels.
This post disputes claims of worker health issues at their own MUSIC Tribe City manufacturing facility, opened this year. And it invites us to go visit the actual facility.
It doesn’t respond to other questions about the cease and desist letter.
If Behringer add more, I’ll run it here.
The post Behringer have sued Dave Smith Instruments, forum posters for defamation appeared first on CDM Create Digital Music.