Paul Schimmel & Port Salem Pharmacy Corp. v YouTube, Inc. & YouTube, LLC, 2012 NY Slip Op 50133[U] [NY Sup Ct Nassau County 2012] [available here]
The anonymity conferred by the internet can bring out the worst in people, providing cover for sharp-tongued trolls to slander and defame at will. So what do you do if an anonymous video is posted on Youtube that unfairly slanders you and your business? Do you contact Youtube and ask that the video be removed? (Not a bad start.) Do you subpoena Youtube and get the information for the person that posted the offending video? (Maybe.)
Or do you do you find an attorney willing to sue Youtube for $5,000,000?
Paul Schimmel, a pharmacist, chose the latter course. The video in question was titled "CHEATING PHARMACIST," and identified "Plaintiff, Paul Schimmel, and [...] PORT SALEM PHARMACY CORP., in large print thereby implying that both Plaintiffs are 'cheaters' and therefore are dishonest, disreputable and should not be trusted." (Paul Schimmel & Port Salem Pharmacy Corp. v YouTube, Inc. & YouTube, LLC, 2012 NY Slip Op 50133[U].) Sadly, the video has been taken down from Youtube. But it must have been bad, as the plaintiffs alleged they "lost business and suffered damages of not less than $5,000,000" as a result of the video.
The video in question was posted in October, 2008. The statute of limitations for defamation (at least in New York) is one year. The plaintiff sued Youtube on December 15, 2010.
Perhaps realizing that, you know, you can't really sue Youtube for defamation based on the contents of a video hosted on Youtube, Plaintiffs never actually served Youtube with the lawsuit*, and eventually asked the Court "to voluntarily discontinue the action" against Youtube. Instead, the Court dismissed the lawsuit outright, noting (quite sensibly) that you cannot discontinue that which was never properly commenced in the first place.
The plaintiffs also asked the Court for permission to "amend the caption to add Defendants, JOHN DOE and JANE DOE," presumably to act as placeholder names while plaintiffs tracked down the person or persons responsible for posting the "Cheating Pharmacists" video in the first place. The Court (again quite reasonably) held that an amendment is not appropriate where the plaintiffs made no effort to identify the person who posted the video before suing Youtube, and that in any event any action sounding in defamation, against any person or entity, would be time-barred under the applicable statute of limitations.
It is understandable that the pharmacist was pissed off, and wanted to sue Youtube, the Internets, John and Jane Doe, and anybody else who had anything to do with the "Cheating Pharmacist" video. What I don't understand is how the pharmacist actually found an attorney willing to file the lawsuit in the first place.
* In New York, a lawsuit is commenced by filing the summons and complaint with the County Clerk, and then serving a copy on the person or entity you are suing. Both steps must be completed to properly commence an action.
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