UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

1. My name is William Porta. I am the defendant in this action. This affidavit is made in opposition to the motion for a Preliminary Injunction.

2. Last October, I traveled from my home in upstate New York to Goa, India, to attend my best friend’s wedding, as his best man. I had been married earlier in the year, and he had traveled from Singapore to be the best man at my wedding. It was important to me to be able to reciprocate in kind.

3. I flew to Mumbai, India by Alitalia, and gave them my luggage which included a tuxedo, a suit, and other dress clothes, as well as various personal items worth more than $2000. The wedding was planned to be conducted over a period of several days, unlike an American wedding which is customarily held in a single day. As a result, I needed a large number of dress clothes. Because the flight was so long, however, I dressed very informally so that I would be comfortable for the flight, including a pair of bright pink shorts that were scarcely appropriate garb for a wedding, especially as best man.

4. When I arrived in India, my luggage did not arrive with me. The Alitalia agent told me that my luggage was not "lost," but only "misplaced," and I was assured that I would receive expense money to cover me while I was waiting for actual delivery of the bag. In fact, I was given a form to sign that would enable Alitalia to clear my "mishandled" luggage through Customs in order to deliver it to me at my hotel. When, hours later, I was offered a first aid kit instead of money, I headed for my hotel with the promise that the luggage would follow me.

5. Day after day during my trip, I was repeatedly promised that my expenses would be paid, that my luggage had been found but would take time to catch up to me, and that I should accumulate receipts and all would be paid. I even received a written commitment that these expenses would be paid at JFK Airport. Believing these promises and representations, I postponed buying replacement clothing, and was humiliated by having to attend wedding ceremonies wearing inappropriate clothing which, indeed, I had been wearing for days at this point. And, when I finally returned to New York, I was promised that Alitalia would pay for all my expenses.

6. The pattern became clear: Alitalia officials would repeatedly promise that a different office of Alitalia would pay for all my expenses at some later date. To date, I have not received a penny from Alitalia. I firmly believe that these promises were being made to discourage me from complaining and to make the airline look better to other members of the public who were nearby. In retrospect, of course, I realize that I was being given the run-around.

7. After my trip was over, I was told to write a letter to the Manhattan Alitalia office. On October 24, I was specifically told that the matter would be completely resolved within 35-40 days. Accordingly, I wrote a letter dated October 26 recounting my experiences and expressing my disappointment with the way the matter had been handled to date.

8. I then received a form letter, dated November 10, telling me that Alitalia would make another attempt to locate the luggage, through an "in-depth second-phase computer tracing" that could take up to 45 days "from the date of receipt." A copy of this letter is attached as Exhibit A.

9. On December 10, 2000, more than forty days had expired since Alitalia’s October 24 promise to resolve my dispute with them, and I had heard nothing from Alitalia since the November 10 letter. Accordingly, I registered the domain name www.alitaliasucks.com, and used that domain name to post a copy of my October 26 letter to Alitalia. My purpose was to warn other consumers about the danger of dealing with Alitalia. I attach as Exhibit B a copy of the electronic receipt for this registration on December 10.

10. On December 12, I called Alitalia to complain about the fact that they still had neither paid me for my lost luggage, nor honored the various promises that had been made to me since the luggage had been lost. When the Alitalia representative told me that would take still another month or two to resolve my baggage claim, I invited him to examine my new web site. I was informed that my claim could be resolved more quickly if I took the web site down. I replied that I would not take the site down. I attach as Exhibit C a copy of a log file showing that somebody using Internet Protocol ("IP") number 194.243.176.2 accessed the alitaliasucks web site on the afternoon of December 12, and a copy of a trace result showing that Alitalia has reserved a block of IP numbers from 194.243.176.0 though 194.243.176.255. In other words, this exhibit shows that Alitalia viewed my web site as early as December 12, and hence was aware by that date that the site was posted on the Internet. Exhibit C also shows that Alitalia accessed the site on December 13 and December 19 as well.

11. Alitalia later called back to propose that I accept payment of only $640 for the lost luggage, plus $200 in expenses and an unspecified amount in travel vouchers. The justification I was given for this small payment was that the Warsaw Convention prevented them from paying any more. They repeated that they thought that this was satisfactory and again said that if I took down my web site they could handle things much more quickly. I said that this was much less that what I had been promised.

12. On December 19, I received a letter from Alitalia telling me that, at some time about a month later, it would send me a check in the amount of $840 in full settlement of my claim, in addition to two travel vouchers of $150 each that I could apply toward the purchase of more chances to have Alitalia lose my baggage. I was outraged both by the continued delay and by Alitalia’s invocation of the Warsaw Convention as an excuse for welching on its post-travel promises of full compensation for all my expenses.

13. Also on December 19, I called Alitalia to object to its letter. During the conversation, Alitalia’s representative asked me once more to remove the web site, which I again refused. During this I also explained how search engines work, and mentioned that, in order to bring my web site to the attention of more consumers, I was planning to register the site with a number of search engines. I did not couple this statement with their payment or non-payment of my expenses, and, in fact, at this point I felt that consumers should know about what happened to me regardless of whether the airline ultimately pays me. I was angered as much by Alitialia’s cavalier attitude as by its low offer of payment.

14. I chose Alitalia for several reasons, including pride in my Italian heritage. I am maintaining my web site, and expect to expand it by providing more information about Alitalia and by bringing the site to the attention of more consumers, so that other prospective travelers can take the airline’s faults into account in deciding whether to commit their luggage to its care.

15. My web site is completely non-commercial. I do not sell any merchandise on the site; I do not carry any advertising banners on the site; I do not link to other sites of Alitalia’s competitors. I do not derive any revenue from the site. Nor do I have any financial interest in or connection to any other airline.

16. I am the founder and owner of a small business, Occasional Expressions, which sells gifts. Much of our business comes in through the Internet, and indeed we do a great deal of advertising for our business over the Internet. As a result, I believe I have some insight into how consumers use the Internet both to find businesses and other entities with whom they want to interact, and to find other kinds of information of various kinds.

17. I believe that it is well known that, if you know the name of a company or brand-named product, and you want to find it on the Internet, one good way to find the company is to type "www.companyname.com" or "www.brandname.com."

18. Although some domain names consist of the name of the company, person or product owned by the person that owns the site, very often that is not the case. Many domain names reflect, instead, the content of the site. They may consist of a word or words describing the subject matter of the site, or the point of view expressed on the site, or some other aspect of the content of the site. In this respect, a domain name served much the same function for a web site as a book title plays for the book. I attach as Exhibit D a list of several domain names that take this form.

19. Another way of finding web sites about particular companies is by entering their names into a search engine. The search engine then typically provides a list of sites that somehow relate to the company; that list is not, however, limited to the company’s official site. It is possible that a search using the word "alitalia" would yield a list of sites that includes my own www.alitaliasucks.com web site, although in my experience a search using that word does not show my site anywhere near close to the top of the list of search results (if it was in there at all). In my experience, people who use search engines do not plow their way all the way through hundreds or thousands of results, but limit their inspection to the first screenful or so of search results.

20. When search engines return a list of results, they normally show the name of the site, together with the description following the name and the uniform resource locator or "URL" of the site. In the case of my site, this information would make it clear to the consumer that my site is a criticism site that is in no way affiliated with Alitalia. In order to create a list of search results that would include my page, I ran a search on NBCi for the term "alitaliasucks." A copy of the search results is attached as Exhibit E.

21. Although consumers sometimes use the internet to try to locate a company itself, for the purpose of doing business with that company, that is not the only reason why consumers use the Internet for searches related to a company. Consumers are often looking for information that can help them to decide whether a particular company is the one with which they want to deal; or, if they have had problems with a company, they want to find out whether other people have had similar problems, whether the company is responsive to complaints, and what methods have proved useful for solving their problems. Thus, if critics of companies were unable to use the names of the companies they are criticizing in a way that facilitates identification of their sites to persons looking on the Internet, I believe that the public’s access to balanced information about big companies would suffer.

22. I cannot think of any company that I would expect to find by going to a web site at a domain name consisting of "www.", plus its name coupled with the word "sucks", plus ".com".

23. I am familiar with numerous web sites, developed by other persons who were unhappy about various companies, that were posted under comparable names, using the company’s name coupled with the word "sucks" or some similarly derogatory word. I chose the domain name www.alitaliasucks.com because I knew about other such sites, because it sums up my feelings about the airline and because it is, in my view, a fair summary of the sentiments expressed on the site. I attach as Exhibit F a list of several other "sucks" sites using domain names similar in form to mine.