Quite famously, snarkier-than-thou music review site Pitchfork posted a brief, incisive review of Australian band Jet’s second album in 2006. The review contained nothing more than the 0.0 score and this embedded video:
This, my friends, epitomizes the legal travails of Mr. Jason Fyk, a “self-made millionaire” who leveraged Facebook’s reach to turn his websites (WTFMagazine and FunnierPics) into relative juggernauts capable of generating (a self-proclaimed) “$275,000 a month.”
So, things were going good for Jason Fyk, at least as of a decade ago. He had 40 Facebook pages, 28 million “likes” and a potential audience of 260 million. Then it (allegedly)(partially) came crashing down. Fyk created a page Facebook didn’t like. Facebook took it down. That left Fyk with at least 39 other money-making pages but he still felt slighted to the extent he decided to start suing.
He shouldn’t have bothered. Anyone with even the most surface-level understanding of Facebook’s terms of service would have foreseen the inevitable consequences of these very particular actions. Here’s how Section 230 specialist Eric Goldman summarized the content at the center of Fyk’s doomed litigation five years ago:
Jason Fyk created Facebook pages “dedicated to videos and pictures of people urinating….Plaintiff alleges that Facebook blocked content posted by Plaintiff and removed content in order to make room for its own sponsored advertisements. Plaintiff contends these actions by Facebook destroyed or severely devalued his pages.”
No doubt those pages were “devalued.” But, considering the hosting site and its rules, there’s no way anyone could logically assume pages “dedicated to videos and pictures of people urinating” would ever have any value. If you subtract zero from zero, you end up with zero.
But not when Fyk does the math. He believes subtracting zero from whatever value he imagines pee videos might be worth on Facebook must be the amount Facebook owes him for dismantling his piss empire.
This angle is now as dead in the water as anything can be. Multiple appeals and re-filing of cases in other venues (Fyk is also exploring his options in the DC Circuit and even asked to have the Supreme Court take a look as his pee video litigation) have only extended Fyk’s losing streak. As Eric Goldman reports, Fyk’s now lost for at least the third time in a row in the same circuit, with the Ninth Circuit Appeals Court finding absolutely no reason to revive his DOA lawsuit.
Fyk argued that the law regarding anticompetitive animus had changed during his 6-year-long litigation quest, citing the Enigma v. Malwarebytes and Lemmon v. Snap decisions. However, the Ninth Circuit previously rejected the implications of Malwarebytes for Fyk’s case in its last ruling, and “Lemmon says nothing about whether Section 230(c)(1) shields social-media providers for content-moderation decisions made with anticompetitive animus.” Without any change in the relevant law, the court easily dismisses the case again. Remarkably, the court doesn’t impose any sanctions for what some courts might have felt was vexatious relitigation of resolved matters.
Apparently, Fyk has plenty of time and money to waste. And while he’s no closer to having his pee video empire resurrected via court order, he at least still has the millions he’s earned from his dozens of Facebook pages that haven’t so flagrantly violated the site’s rules.
The citations Fyk used above do nothing to advance the case since it’s plainly apparent moderating content that Facebook always moderates isn’t an “anti-competitive” action meant to ensure it remains the biggest social media kid on the block. And the rest of the stuff Fyk throws at the judicial wall similarly fails to stick. From the decision [PDF]:
The remaining cases Fyk cites are unpublished, dissenting, out-of-circuit, or district-court opinions, which are not binding in this circuit and therefore do not constitute a change in the law.
Even if they were on point and agreed with Fyk’s weird-ass take on anti-monopoly laws, it still wouldn’t change the fact that Section 230 immunizes Facebook from being sued for content moderation decisions. Furthermore, it doesn’t change the fact that any social media service would likely have made the same moderation decision in terms of this particular content, either finding it in violation of the site’s terms or because the content would have been reported by enough people the site would feel obligated to (completely constitutionally) grant the hecklers their veto.
What’s astounding is that a guy Business Insider once profiled as a smart go-getter is still wasting his time defending an extremely poor business decision. Going to bat for pee videos repeatedly in multiple venues definitely doesn’t provide the sort of ROI that would satisfy most Ferrari owners. Fyk just looks dumber and dumber with each extension of these lawsuits. Fortunately for him, he doesn’t seem to have any investors to piss off (so to speak!), so he’s free to be as stupid as he wants to be. It’s his own money at stake.
The problem is the taxpayers are still shelling out money paying courts to deal with what can only be considered vexatious litigation. If Fyk wants to piss in his own mouth, let him. But it’s pretty irritating when we’re expected to cover the costs of cleaning up the over-spray.
