The first hearing in the case is scheduled for tomorrow (Tuesday the 4th) at 1:00pm Eastern time.

We're informed by the court clerk that it's a public hearing (this was a huge surprise to the opposing counsel, apparently) and that means it is open for the public to view. We'll be sharing the link in the Dreamkord 30 minutes before the hearing for any who would like to observe. (This is the court's broadcast system- I don't know if it provides commentary options, but we'd ask everyone to observe only and be respectful of the procedure for all involved.)

It's only a scheduling hearing, so likely to be rather dry, but we wanted to keep you in the loop.

Speaking of- there have been updates to the docket.  

The other defendant being sued, Fiberhub, also motioned to dismiss- and the Plaintiff argued, in spectacular form, they did not have the right to file a motion to dismiss. Front Range Legal Services responded to this, and you may enjoy the details.

As always, the court docket is public and if you have an account in their system, I believe anyone can view the filings.

Overview:  Where is the case at now?

So far, to my understanding, a judge has not seen any of this.

The Plaintiff sued us (and others) in federal court, everyone has filed a motion to dismiss, the Plaintiff filed motions trying to argue against dismissal, our legal team filed responses correcting these, and finally after all this back-and-forth, the whole mess will be reviewed by a judge who will decide whether to grant the motions to dismiss.

When will the judge decide?

It can take some time, but we'll be sure to announce the result here either way.

Thank you again to everyone donating to our defense- you are lifesavers.  Please consider sharing the situation with artists who could potentially be affected by court precedents relating to posting commission pieces, and anyone else who might take an interest.

Best,

-Dave & Liz

It appears the Plaintiff does not want this case to be dismissed- they have filed a motion arguing against it:

Plaintiff's Response to the Motion to Dismiss:

• https://drive.google.com/file/d/1Hfdm5WUOFLCzGHRbIY7EYtjnFm2npiZH/view?usp=sharing

Novel legal theories and misunderstandings abound in this motion, as our counsel has clarified in their Response:

• https://drive.google.com/file/d/14JaMrZARge4w0B9OSLAWbpxT1CjpZh04/view?usp=sharing

You may peruse these filings and the full docket at your leisure.  

For now, I'll share at least my layperson impressions. I can't believe some of what I'm seeing. 

First off, they sued us wrong.

(Not bringing ethics into it, I mean just technically.)

Their lawsuit was incompetently filed way back in October, and the court was about to throw the whole thing out in January until the Plaintiff's attorney scrambled to beg for a chance to sue us correctly. The court literally said they would allow it "on this one occasion," and essentially told their attorney to please learn how the law works.

That's just square one.

And it turns out they're not *just* suing us- they're also suing some company I'd never heard of, that- I guess??? Is somehow upstream of our website, maintaining internet infrastructure.

In their response, right out the gate Mr. Baker (The Plaintiff Mr. Harm's lawyer) accuses our attorney of using AI- because... Well, perhaps it seemed like a good thing to throw into an official public filing with no evidence. They're touring federal court for the first time ever, why not have some fun.

One of the major crimes they accuse us of is using the phrase "as a favor to you" in correspondence with the Plaintiff- which in their mind proves we were wantonly and willfully insulting.

They literally put this into a federal court document. And they expect a judge to look at it and take them seriously. I am not kidding.

Further, their justification for suing our company Vivid Publishing AND David as an individual is to claim we don't have a legitimate business.  To bolster this claim, it would appear they scrounged through our corporate filings to prove there weren't any-

But found that we do indeed register annually.  Well, they claimed Vivid isn't a real company anyways, because evidently in their mind that would help their case if it were true. 

Beyond these gems are what appear, at least to my untrained eye, as fundamental misunderstandings of how the law actually works, ranging from which part of the process is appropriate to attach exhibits to, and the difference between a 'factual allegation' and a 'conclusory statement.' 

But perhaps they grasp the law adequately, and know what they are doing.

Our attorney found one instance where they slyly omitted the middle of a quote, to try and make it appear that a legal precedent applies to this situation, when it really applies to the relationship between an insurance company and an insured benefactor. Nice try?

The image attached to this post shares a handful of excerpts, but for the full richness of this experience, you can peruse the legal documents linked above.

Essentially, our position asserts their accusations lack the coherence to be capable of any sort of informed consideration, and if they want to actually sue us they have to put together some sort of document that does a good impression of making sense.

When I imagine the caliber of legal advice the Plaintiff has been subjected to, I begin to feel sympathy- until I remember that they're trying to rip $100,000 from our indie creative business and us personally.

It'll be up to the judge to see if this case crashes forward in its current state, or if the Plaintiff and his attorney need a little time to go and think about what they've done.

Please bear in mind, regardless of how disjointed the legal filings from the opposition are, the only reason we are capable of standing up to them is directly thanks to YOU. So, thank you, and please continue to share this and shed more light on the situation!

Many have expressed curiosity regarding the agreement we had with Mr. Harms, and if it really gives us permission to share what we wrote and drew- we've shared highlights in an image, and you can observe the contract in its entirety here.

https://drive.google.com/file/d/1TEBbCDJ-kqaO1VyloBscCghqbS873nFv/view?usp=sharing

It was after signing this contract that the Plaintiff proceeded to file a $100,000 lawsuit against us in federal court.  

We would have liked to share this (and MUCH more) earlier, but we aren't attorneys, and we need to hang back and let the professionals take care of business. But as the contract is now publicly available on the docket for this case, we can share.

Litigation is ongoing, and every contribution and share helps!  Thank you for helping us defend our right to share what we've drawn, and for shedding light on this lawsuit- we never thought we would be put in this position, and it means the world that good people have our backs.  Thank you.

Major progress on the case today.

In response to the $100,000 lawsuit filed against us, with your help we have been able to secure the services of Mr. Arsenault of Front Range Legal Services.

His areas of expertise include intellectual property, copyright, trademark, patent preparation, cryptocurrency and blockchain, internet, privacy, business transactions, licensing, employment law, corporate subpoena responses, and regulatory compliance.

As of today we have officially filed a motion to dismiss.

PDF of the motion to dismiss:

https://drive.google.com/file/d/1dJGKcOALK9WJ92K_NqHJBq3XXdufQ1bj/view?usp=sharing

Online record of all legal motions (May require a PACER account):

https://ecf.cod.uscourts.gov/cgi-bin/DktRpt.pl?217532640644535-L_1_0-1

The way I understand it, a motion to dismiss does not engage with whether the Complaint is right or wrong, or involve our counterclaims, but instead on specifically whether the Complaint itself meets the legal threshold to even be worth consideration by the Court.

So what happens next?

• The court may deny our motion, and the case will move forward to the next stage.
• The court may grant our motion, and then the Plaintiff will have the option to change their Complaint and file against us again.
• And lastly, the court may grant our motion with prejudice, and throw this lawsuit out forever.

The situation seems incredibly clear cut to us but every single step hits us with major expenses, so we would be grateful for any awareness you can raise by sharing this GiveSendGo campaign!

Thank you again to everyone who is helping us stand up and fight back for our right to share what we have drawn. Please help us meet goal, I know with the team we’re working with we can prevail.

THANK YOU so much for the outpouring of support. You have no idea how much this means to us- you’re giving us hope in the midst of a difficult time.

We appreciate everyone, for sharing and helping get this legal defense fund off to such an incredible start. I’m trying to get around and engage with people, but if I miss any messages it’s because we are juggling a lot right now. A couple of general notes:

1) People want to know more. It would be a relief to us to share more of the details and background to this situation. However, our attorneys have advised us to minimize conversation about ongoing litigation, especially in public. For this reason we cannot respond casually to many of the questions that people will have.

2) Some have mentioned it might be worthwhile to show the contract the Plaintiff signed with us- I’ll review this with our legal team to see what they advise.

3) The first motion from our legal team is currently being drafted, and we will share with an update as soon as it is filed so that you can see the progress of the case. I expect it to be within 14 days.

4) I’ve seen some anger and frustration on social media over the situation- while that is understandable, I want to just remind people again to be cool- it DOES NOT help us to act out on those feelings, the best thing to do is be supportive in positive ways and let the legal team take care of business.

5) We’ve had some questions about if we are open for commissions. If you’re interested, keep an eye on our other socials, we’ll keep this space focused on the legal situation exclusively.

Again: Thank you to everyone for the show of support. After dealing with this so long in isolation, you don’t know how much it means. Thank you.