Weberman v. Soros

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ) ) ) Alan Jules Weberman ) Plaintiff, ) ) ) 1:16-cv-03567-GHW -against) ) Steven Eric Rayman and ) The New Press ) Defendants, ) ) ) Michael Drobenare ) 2203 Avenue X ) AMENDED COMPLAINT Brooklyn, N.Y. 11235 ) FOR VIOLATION OF 15 U.S. Code 718-797-3030 ) ยง 1125, NEW YORK STATE COMMON ) (attorney for Plaintiff) ) LAW TORTIOUS INTERFERENCE WITH ) CONTRACT ) Miller Korzenik Sommers Rayman ) LLP ) ) 488 Madison Ave ) NYC 10022 ) 212-752-9200 ) (attorney for Defendants) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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JURISDICTION Under Article III of the Constitution, federal courts can hear "all cases, in law and equity, arising under this Constitution, [and] the laws of the United States..." US Constitution, Article III, Section 2. The Supreme Court has interpreted this clause broadly, finding that it allows federal courts to hear any case in which there is a federal ingredient.

Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738 (1824). This Court also has subject matter jurisdiction under 28 U.S.C. ยง 1331, because the matter involves a Federal question.

The Federal Question is based upon the required interpretation of 15 U.S.C ยง 1125 also referred to as the "Lanham Act".

The Federal Question was upheld in the case of NATIONAL ARTISTS MANAGEMENT CO., INC. v. WEAVING, 769 F.Supp 1224 (S.D.N.Y. 1991) the Court held: II. Federal Question Jurisdiction A claim against Weaving and Martini for unfair competition under Section 43(a) of the Lanham Trademark Act, 15 U.S.C. ยง 1125(a) (1988). Plaintiffs allege that Martini and Weaving have made false or misleading representations of fact concerning NAMCO Booking's services and commercial activities for the purpose of promoting a competing theatrical booking business to be formed by Weaving and to be called "Tour de Force".

Section 43(a) of the Lanham Act was amended in 1988 to reach false statements made by a defendant not only about the defendant's own products or services, but also about the plaintiff's products or services, in the context of commercial advertising or promotion used in connection with goods or services. See Trademark Law Revision Act of 1988, Pub.L. No. 100667, Section 132, 102 Stat. 3935, 3946 (effective November 16, 1989). Section 43(a) now provides, in relevant part: Any person who, on or in connection with any goods or services, uses in commerce anyfalse or misleading description of fact, or false or misleading representation of fact...

(2) in commercial advertising or promotion, misrepresents the nature, characteristics [or] qualities ... of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

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Venue is proper in this district under 28 U.S.C. § 1391 (b)(2) because a substantial part of the events or omissions giving rise Plaintiff's claims occurred in this district.

FIRST CAUSE OF ACTION Defendant, Steven Eric Rayman, acting on behalf of his client, The New Press caused Plaintiff A. J. Weberman’s book, The New Crow Jim to be censored in its entirety by threatening CreateSpace and Amazon and Kindle with a law suit by erroneously and maliciously informing these entities that the cover of The New Crow Jim violated copyright law or Trademark law. This representation was done without any legal basis other then the opinion of the Defendant, STEVEN ERIC RAYMAN The Defendant, STEVEN ERIC RAYMAN never started copyright violation legal action in Court, but instead acted unilaterally to have the book removed from Amazon and other vendors, when Defendant knew or should have known the cover was clearly free speech protected under numerous federal court decisions regarding parody. (SEE EXHIBIT A) Defendant also caused Kindle E-Books to remove 2 other books in this series, Obama and Islam and Escape from New York, from its catalogue. (SEE EXHIBIT B) This caused Plaintiff a loss of income for Plaintiff and because the advertising Plaintiff was running was concurrently removed as there was no book to advertise. This violated a key provision of The Latham Act: 15 U.S.C. § l 125(a)(l)(B), FALSE DESIGNATIONS OF ORIGIN, FALSE DESCRIPTIONS, AND DILUTION forbidden (a) Civil action (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial 3

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activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

This caused Plaintiff economic loss as the book, which was high on the Amazon Charts in Law Enforcement and Civil Rights, disappeared. (SEE EXHIBIT C) By misrepresenting the nature of the cover to Amazon and Kindle Defendant violated The Lanham Act. 15 U.S.C. ยง l 125(a)(l)(B), concerns misrepresentations made "in commercial advertising or promotion". Mr. Rayman, acting on behalf of his client The New Press, did exactly this.

By misrepresenting the cover of The New Crow Jim as a trademark or copyright violation without the color of law of law, he caused Amazon to withdraw the ads (SEE EXHIBIT D) Plaintiff was running for it.

Courts in this Circuit, including this Court, have held that to be actionable under that latter provision, statements must be "(1) commercial speech; (2) for the purpose of influencing consumers to buy defendant's goods or services; and (3) ...disseminated sufficiently to the relevant purchasing public."

Citations: Jus Punjabi, LLC v. Get Punjabi Inc., No. 1:14-cv3318-GHW, 2015 WL 2400182, at *11 (S.D.N.Y. May 20, 2015) (Woods, J.), quoting Boule v. Hutton, 328 F.3d 84, 90-91 (2d Cir. 2003), affirmed, 640 F. App'x 56 (2d Cir. Feb. 22, 2016).

Here, Defendant Rayman's notification of an infringement claim under federal law, on behalf of his client, can plausibly constitute "commercial speech." Commercial speech is a US legal term relating to speech done on behalf of a company or individual for the intent of making a profit. Aside from The New Press wanting to suppress its content, Defendant may have erroneously believed The New Crow Jim was diminishing the sales of The New Jim Crow. This is economic in nature and has the intent of convincing the audience to partake in a particular action, often purchasing or conversely not purchasing a specific product. What other type of speech could this be other than commercial? A new genre of literary criticism?

Amazon.com, a retailer, or the publisher of Plaintiff's book the Amazon Company, Create Space constitute representations to "consumers" or "the relevant purchasing public." They are for-profit institutions. The advertisements pulled by Amazon are prima fascia representations of the book to consumers of the United States. What else can they be? The ads that were pulled were entirely commercial in nature.

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Dismissal of the Amended Complaint in its entirety is not warranted under Fed. R. Civ. P. 12(b) (6); and the Court should find that it does not lack federal question subject matter jurisdiction under 28 U.S.C. §1331.

SECOND CAUSE OF ACTION: NEW YORK STATE COMMON LAW: TORTIOUS INTERFERENCE WITH A CONTRACT Tortuous Interference With A Contract case law dates back to Keeble v. Hickeringill, Queen’s Bench, 11 East 574, 103 Eng. Rep. 1127 (1707).

Plaintiff Keeble placed duck decoys and nets in a pond on his land and sold the captured ducks for profit. Defendant Hickeringill fired guns near Keeble’s land merely to frighten and drive away the ducks, not to capture them for himself.

Keeble brought an action in trespass on the case and was awarded 20 pounds. Hickeringill appealed. Can a party recover against another for malicious interference with his ability to use his land for pleasure and profit? Ruling: A party can recover against another for interfering maliciously with his ability to use his land for pleasure and profit.

Plaintiff’s use of Amazon, Kindle and CreateSpace to publish books and sell them for profit was lawful. Every scholar has the right to publish the results of their research; however, The New Press objected to Plaintiff’s findings, labeled them “racist” and committed an intentionally wrong act by having the book removed from being sold using the excuse that the covers were similar while knowing well that the cover was a parody of The New Crow Jim cover and considered Fair Use. Did The New Press and Eric Rayman believe that the readers of The New Jim Crow were so undiscerning that they might buy The New Crow Jim by mistake? A valid action lies in all cases where a defendant commits malicious acts interfering with the profession or livelihood of another. The proper action would have been to start a copyright infringement action in Court, before unilaterally moving to have the book removed from being sold.

In order to state a cause of action for tortuous interference with contract, a plaintiff must allege “the existence of a valid contract between the plaintiff and a third party, defendant’s knowledge of that contract, defendant’s intentional procurement of the third-party’s breach of the contract without justification, actual breach of the contract, and damages resulting therefrom.” Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996). The plaintiff must also allege that the contract would not have been breached “but for” 5

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the defendant’s interference. Washington Ave. Assocs., Inc. v.

Euclid Equip., Inc., 229 A.D.2d 486, 487 (2d Dep’t 1996).

“Although on a motion to dismiss the allegations in a complaint should be construed liberally, to avoid dismissal of a tortuous interference with contract claim a plaintiff must support his claim with more than mere speculation.” Burrowes v. Combs, 25 A.D.3d 370, 373 (1st Dep’t 2006). The allegations cannot be merely “vague and conclusory.” Washington Ave. Assocs., 229 A.D.2d at 487. Also See Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120, 134 N.E.2d 97, 99, 151 N.Y.S.2d 1, 5 (1956).

1. EXISTENCE OF VALID CONTRACT WITH THIRD PARTY Plaintiff Alan Weberman agreed to the terms of both Amazon Create Space and Amazon Kindle and entered into a contract with them to publish The New Crow Jim. SEE EXHIBIT E 2. DEFENDANT STEVEN ERIC RAYMAN HAD KNOWLEDGE OF THIS CONTRACT

SEE EXHIBIT A 3. DEFENDANT’S INTENTIONAL PROCUREMENT OF THE BREACH OF THE CONTRACT WAS WITHOUT JUSTIFICATION

THIRD-PARTY’S

Defendant Rayman was aware of the District, Appellate and Supreme Court determinations as to what constituted parody by virtue of his distinguished career in law and as an Adjunct Professor but had The New Crow Jim censored anyway in order to satisfy his client, The New Press. Rayman was remunerated for his deed. Defendants have engaged in conduct "for the sole purpose of inflicting intentional harm on plaintiff" by having his book censored. (NBT Bancorp, Inc. v Fleet/Norstar Fin. Group, Inc., 215 AD2d 990, 990 [3d Dept 1995], affd 87 NY2d 614 [1996]). However, it is incumbent on this Court to determine if the cover of The New Crow Jim is obviously a parody of The New Jim Crow or is a copyright infringement.

4. ACTUAL BREECH OF THE CONTRACT

SEE EXHIBIT A 5. DAMAGES When The New Press and its attorney Steven Eric Rayman had The New Crow Jim censored the royalties stopped. Plaintiff would have still been selling books had not the book been censored just as it was gaining momentum.

PARTIES

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Plaintiff Alan Jules Weberman is a well-known author and researcher. He is a former Congressional researcher for the late Congressman Henry Gonzalez of (Dem. San Antonio, Texas), and the late Senator Richard Schweiker (Rep. Pennsylvania) on CIA involvement in the Kennedy assassination. He is the author of Coup D’état In America, The CIA and the Assassination of JFK and The Oswald Code, a stenographic analysis of Lee Harvey Oswald’s address book. He coined the word “garbology” as a means of journalistic spying on subjects via their trash and is cited in California v. Greenwood, 486 U.S. 35 (1988) in which the Supreme Court legalized garbology. He also coined the word “Dylanology” in relation to his analysis of the poetry of Bob Dylan. His works have been viewed by two million people on Scrib’d and articles about him, or by him, have appeared in almost every major newspaper, magazine or website.

Plaintiff recently testified before the Portuguese Parliament regarding CIA involvement in the assassination of the Portuguese Prime Minister and was granted permission by the Portuguese Minister of Justice to film one of the assassins in his jail cell in the Prison of the Valley of the Jews.

Defendant Steven Eric Rayman was general counsel to The New Yorker magazine from 1998 to 2000, and Vice President and Deputy General Counsel of Simon & Schuster from 1984-1998. Between 1980 and 1984, he was Chief Counsel, Studio and Network Operations at Home Box Office. He began his career at Paul Weiss Rifkind Wharton & Garrison, where he practiced law from 1977 to 1980.

Since 1988, Mr. Rayman has taught media and entertainment law at Cardozo School of Law, where he is an Adjunct Professor.

Professor Rayman is the editor of a book entitled 100 Years of Harvard Lampoon Parodies Selections from the Best Parodies by the Nation's Oldest College Humor Magazine 1976. Defendant Rayman should have advised The New Press that he clearly recognized the cover fit all legal criterions for Fair Use yet had the book blocked anyway because his client, The New Press, disliked the content and wanted to suppress it out of malice. It should be noted that when Plaintiff first discovered that Rayman was behind his book being censored he had no idea who Rayman represented or if he represented himself as someone indignant over the books contents. In subsequent letter motions it was revealed that his client was The New Press. There are other books on Amazon and Kindle with a cover similar to The New Jim Crow (see EXHIBIT E) however The New Press and Defendant Rayman had these e-books and paperback books blocked because they did not fit The New Press’s political agenda.

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The New Press is a nonprofit public-interest book publisher that focuses on public issues such as Black crime. A look at its website reveals its authors are 90% rich White liberals who have no idea what goes on in prisons or ghetto neighborhoods as they look down from their Ivory Towers and multi-million dollar condos in lily white neighborhoods and pontificate on subject matter that is far removed from their lives. They receive funding from The Tides Foundation which is linked to George Soros, a Jew who survived the Holocaust by sending Austrian Jews to their death, and from other Soros front groups. Many of the employees of The New Press had previously worked for Soros entities such as The Open Society Foundation. The author of The New Jim Crow, Michelle Alexander, is a Soros Fellowship winner.

FACTS Plaintiff, Alan Jules Weberman, is the author of a book that was sold on Kindle and Amazon entitled The New Crow Jim, The Empowerment of the Black Criminal Subculture and was partially an answer to the New Jim Crow by Michelle Alexander.

The New Jim Crow blamed the high incarceration rates in the African-American community entirely on an unfair legal system combined with poverty and racism. The New Crow Jim blames this high incarceration rate on the creation of an indigenous criminal subculture with its own language, dress and moirĂŠs. It argues that because of this subculture African-Americans have a higher crime rate and that is why they have a higher incarceration rate. The cover of the book is a parody of the cover of the New Jim Crow. The cover was not copied or traced but was created by a layout artist and had major differences: the title, the subtitle, the author, the color of the man behind bars were all changed. It was meant to be a parody and after it was initially removed Plaintiff added a disclaimer on the cover of the Kindle edition stating that it should not be confused with the New Jim Crow But what constitutes a parody v. a copyright or trademark violation? This is the heart of this case. The bottom line is that the Defendants had the Plaintiff's book removed from being offered without any basis in law, having failed to initiate a copyright violation action before taking any actions based solely on his own opinion.

CLAIMS FOR RELIEF Plaintiff argues that Defendant Professor Steven Eric Rayman intended to prevail extra-judicially because of the costs that are entailed in filing a federal lawsuit such as retention of counsel; filing fees etc. would exceed revenues accrued by plaintiff from The New Crow Jim. Caused his book to be removed 8

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from Kindle and Amazon Books under the pretext of copyright violation knowing full well the cover in question was a parody and fell under Fair Use and that Kindle or Amazon could NOT be held liable for its content even if it did not. Plaintiff asks this Court to award him $76,000 in compensatory damages for the money lost because the book was taken off the open market and $10,000 in punitive damages and all costs associated with filing this complaint to deter others from acting in a similar manner and to order the Defendant to restore The New Crow Jim back to Amazon and Kindle with its original cover.

Dated: Brooklyn, N.Y. September 15, 2016

Michael Drobenare, Esq. 2203 Avenue X Brooklyn, NY 11235 718-616-2111 mikedro1@yahoo.com (Attorney for Plaintiff)

To: Miller Korzenik Sommers Rayman, LLP 488 Madison Avenue New York, New York 10022 212-752-9200 (attorney for Defendants)

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EXHIBIT A

EXHIBIT A

EXHIBIT B

EXHIBIT C

EXHIBIT D

EXHIBIT E