This settlement agreement is made this 24th day of January, 2001 by and between WRNN-TV Associates Limited Partnership, a Delaware Limited Partnership, its employees, executives, officers, agents and assigns ("WRNN"), and the individual also known as "webmaster," through his attorney Paul Alan Levy of Public Citizen Litigation Group, Washington, D.C. (WRNN and "webmaster" are sometimes referred to herein collectively as the "Parties" or, individually, as the "Party"). Upon execution of this Settlement Agreement by both parties, WRNN will dismiss the cause of action against Yahoo!, Inc. currently pending in the Superior Court of Connecticut, Judicial District of Stamford/Norwalk at Stamford with D.N. CV-00-0180990S.
WHEREAS, Plaintiff WRNN is a Delaware Limited Partnership with offices in New York, New York. WRNN operates a television station out of Kingston, New York which is known as the Regional News Network ("RNN"); Richard French, Jr. is the President of WRNN?s General Partner, New Mass Media, Inc. and Richard French, III is the General Manager of WRNN?s television station, WRNN-TV.
WHEREAS, Yahoo! Inc. ("Yahoo!") is a Delaware Corporation with its principal corporate offices in Santa Clara, California;
WHEREAS, Yahoo! is a global Internet communications, commerce and media company that offers a comprehensive branded network of services to more than 156 million individuals each month worldwide;
WHEREAS, Yahoo! operates a subsidiary known as Yahoo! GeoCities which is a publishing community where individuals (known as "users" or "members") can build and publish their own web sites on the World Wide Web ("WWW") for free;
WHEREAS, Yahoo! GeoCities enables its users to build their web sites and promote them on its member page s directory where such sites are listed;
WHEREAS, These pages are accessible to any of the estimated 242 million worldwide Internet users and the 120 million Internet users in the United States and Canada; Anyone using the WWW can access these pages and need not be a user of Yahoo!;
WHEREAS, To create or "build" a web site on Yahoo! GeoCities, individuals must complete a membership registration form and submit it to Yahoo!, and, in doing so, the individuals create a Yahoo! ID (also known as "username") and provide Yahoo! with personal information that can be used to identify the individual ("personally identifiable information");
WHEREAS, Yahoo! collects and stores the data representing the personally identifiable information of its GeoCities users in its Account Management Tool and Yahoo! Mail User Tool;
WHEREAS, Included within the information maintained in the Account Management Tool and Yahoo! Mail User Tool, Yahoo! collects and stores the data provided when the user's account was created, the member's log-in identification (the Yahoo! ID or username), an alternate e-mail address for the user provided at the time of registration, whether the member has a mail account at Yahoo!, and the Internet Service Provider ("ISP") address for the member at the time of registration including the county, city, state, time zone and zip code pertaining to such address;
WHEREAS, "Username" means a pseudonym or real name used by an individual to identify, or not, himself; "Yahoo! ID" means the username individuals submit to Yahoo! when completing their membership registration so that they may create or "build" a web site on Yahoo! GeoCities and/or use the services of Yahoo!; "Personally identifiable information" means personal information submitted to Yahoo! through its membership application or other interactive means that can be used to identify the individual and/or relates to the individual;
WHEREAS, "Account Management Tool" and "Yahoo! Mail User Tool" mean the Yahoo! specific tools through which Yahoo! collects and stores the data representing the personally identifiable information of its GeoCities users including, but not limited to, the data provided when the user's account was created, the member's log-in identification (the Yahoo! ID or username), an alternate e-mail address for the user provided at the time of registration, whether the member has a mail account at Yahoo!, and the Internet Service Provider ("ISP") address for the member at the time of registration including the county, city, state, time zone and zip code pertaining to such address
WHEREAS, "Web Page" means any content contained within the hypertext markup language ("HTML") of a single Uniform Resource Locator ("URL"); "Web Site" means any content contained within a single domain name or directory of a single domain name including, but not limited to, directories, subdirectories, web pages, message boards, documents, email addresses, chat rooms and logs, and related HTML code;
WHEREAS, In or around September of 2000, an individual, described here as "webmaster," registered as a user with Yahoo! and created a web site at www.GeoCities.com/rnnsucks;
WHEREAS, "webmaster" uses the Yahoo! ID or username of "rnnsucks" and Yahoo! email address of "rnnsucks@Yahoo.com";
WHEREAS, In addition to creating the home page for this web site, the "webmaster" created a message board at http://messages.yahoo.com/bbs?action=m&tid=0a16160b0d1b130b&sid=0a16160b... (through mid=817, where ?x? represents the message number);
WHEREAS, the webmaster and other individuals have posted messages on the message board;
WHEREAS, WRNN believes that some of the messages on the message board contain derogatory, false and libelous statements about WRNN and certain of its executive officers and on-air personalities as well as confidential business information concerning WRNN;
WHEREAS, WRNN and "webmaster," through counsel, have discussed the claims arising from the conduct of "webmaster" and the other individuals who have posted messages on the message board;
WHEREAS, the WRNN and "webmaster" desire to settle all claims between them.
The foregoing background recitals are a part of this Agreement and are incorporated herein.
"Webmaster" agrees to bring down and terminate the publication of the "rnnsucks" web site and message board including all of their component web pages and the content therein (hereinafter collectively referred to as the ?"rnnsucks" web site?) by deletion or any other means.
"Webmaster" agrees to refrain from placing any additional content on the "rnnsucks" web site, as well as refrain from commenting on the settlement and the dissolution of the "rnnsucks" web site in any other fora under any other name or pseudonym or username.
In exchange for bringing down and terminating the operation and publication of the "rnnsucks" web site and message board as agreed in paragraphs 2 and 3, WRNN agrees to release "webmaster" from any and all claims relating to its activities with respect to the "rnnsucks" web site subject to the following conditions:
- "webmaster" has not and will not republish the "rnnsucks" web site or any content contained therein or any facsimile thereof;
-? "webmaster" has not and will not transmit, deliver or exchange to any third parties (with the exception of webmaster?s legal counsel) for any reason any content, including web pages, hypertext markup language ("html"), graphics, or other components contained within the "rnnsucks" web site, whether subsequently deleted or maintained from the time of initial publication, which has come into its possession except that the following shall not be considered a breach of this agreement: (1) that "webmaster" published the "rnnsucks" web site at its current location and (2) if a person other than "webmaster" downloaded some or all of the content of the web site before it was terminated, without the assistance, advice, aid or counsel of the "webmaster," and that person other than the "webmaster" republishes some or all of such content;
-? "webmaster" has not and will not offer or provide any assistance, advice, aid or counsel to any third parties with respect to recreating the "rnnsucks" web site in any fora or creating, maintaining, or publishing a web site similar to the "rnnsucks" web site in any fora;
-? "webmaster" represents that it did not post or publish any information on the "rnnsucks" message board other than under the username "webmaster" except for the four (4) messages posted to the message board under the username " did my time" with the following url addresses:
-? "webmaster" agrees to place its legal name and correct address in escrow with its Connecticut counsel pursuant to the escrow agreement annexed hereto as Exhibit A.
General Release - WRNN also agrees to release all other individuals who have posted or published messages on the "rnnsucks" web site and/or message board for all claims relating to their activities with respect to the "rnnsucks" web site, except to the extent any of such individuals posted or published to the message board at the following url addresses:
"Three worst months of my life"
"Blame me :)"
More specifically, WRNN hereby expressly reserves all of its rights with respect to the individuals who posted or published to the message board the specific messages mentioned in this Paragraph 5 and does not waive or limit such rights in any way.
Breach - In the event of a breach of this agreement by the "webmaster," the webmaster?s legal name and identity shall be released from escrow to WRNN and all releases provided to "webmaster" by WRNN shall be thereby waived by "webmaster."
No Prevailing Party - The Parties to this agreement acknowledge and agree that this Agreement does not render any Party a prevailing Party on any of the claims asserted in the Action and that this Agreement is not, and shall not be considered, an admission of any wrongdoing or liability on the part of any Party, and that each Party in fact expressly denies any liability or wrongdoing, and enters into this Agreement for the sole purpose of avoiding further conflict, expense and uncertainty. Except to the extent necessary to enforce this Agreement, neither the Agreement nor any part of it may be construed, used or admitted into evidence in any judicial, administrative, or arbitral proceeding as an admission of any kind by any Party.
Acknowledgement of Full and Final Release - The Parties further represent that they understand and agree that by their execution of this Agreement, they have fully and finally released all of their claims of every nature and kind, including, but not limited to, those claims arising directly or indirectly out of, or in any way connected with or based upon, or related in any way to, any and all claims and/or counterclaims which were or could have been asserted against any of the Parties in the Action, whether known or unknown, asserted or unasserted, suspected or unsuspected, including, but not limited to, claims for punitive damages, attorneys? fees, expenses and costs of litigation EXCEPT as provided in paragraphs 4 and 5 of this Settlement Agreement.
Penalty for Breach of Agreement - The Parties each agree that, if any party shall knowingly and intentionally breach any provision of this agreement, the breaching Party shall be liable to the non-breaching Parties for reasonable attorneys? fees, costs, damages and expenses resulting from such breach.
Further Acknowledgements - The Parties each acknowledge that he/she/it has read and understands this Agreement and the effect thereof and that his/her/its attorney has explained the same to him/her/it, and that in executing this Agreement, the Parties have not relied upon any statement, representation or promise of any Party or of any Party?s representative, other than as set forth herein.
Entire Agreement and Amendments - The Parties agree that this Agreement (along with any Exhibits hereto) constitutes the full and complete understanding among them and may not be modified or amended, except in writing, signed by all the Parties hereto. In the event that any provision of this Agreement is held to be void or unenforceable by a Court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the Parties with the same effect as though the void or unenforceable part had been deleted.
Governing Law - This Agreement shall be governed by the laws of the State of Connecticut without reference to its principles of conflicts of laws. Each of the Parties hereto expressly consent to the personal jurisdiction of the state and federal courts located within the State of Connecticut, and waive any claims and/or defenses with respect to jurisdiction and venue including, without limitation, inconvenient forum. Each Party agrees that all claims arising out of or in connection with this Agreement shall be brought in the state and federal courts located within the State of Connecticut.
WRNN-TV Associates Limited Partnership
A Delaware Limited Partnership
By New News Media, Inc.
Its General Partner
Richard French, Jr.
By and Through Paul Alan Levy
Public Citizen Litigation Group
By Paul Alan Levy
Public Citizen Litigation Group ?