Usually when we write about legal threats at Popehat, they're bogus. When threats are bogus — malicious, frivolous, or calculated to censor unjustly — we applaud the Streisand Effect. The "Streisand Effect" refers to the the tendency of any attempt to censor online information to result in that information being far more widely distributed. The Streisand Effect is distinct from a phenomenon I'll call the Carreon Effect — the tendency of censorship demands (especially bumptious or obnoxious ones) to result in widespread ridicule of the would-be censor.
But not every legal threat is frivolous. Some people on the internet engage in genuine, actionable copyright and trademark violation and defamation. There's nothing admirable about that. There is a remedy at law, and ought to be. It's perfectly reasonable for a victim of such behavior to write the perpetrator and ask that they cease and desist.
Nobody wants a defamatory attack upon them to be read by a hundred times more eyes as a result of their own efforts. No lawyer drafting a cease and desist letter wants to become an internet meme. So how, in an internet culture that birthed the Streisand Effect and Carreon Effect, can you vindicate your rights without making things worse for yourself? How –as a victim of defamation or copyright infringement, or as the attorney for such a person — can you send a takedown demand without finding yourself infamous?
Despite the fact that our readers seem determined to ignore our advice, whether Patrick gives it or I do, I have some suggestions about how to send a takedown request without running afoul of the Streisand Effect or Carreon Effect.
It's An Art, Not A Science: There are no guarantees here. We're talking about predicting the whims of the anonymous internet hordes. The laws in play are not just the First Amendment and the laws of defamation and copyright, but the amorphous and ever-changing laws of human behavior. It's impossible to predict on an individual level. However, it's somewhat predictable on the mega-level. In other words, you can't predict how the blogger who gets your takedown demand will react. But you can minimize the risk that your takedown request — and the blogger's reaction to it — will go viral.
Dull things don't go viral. Things go viral because they are funny or notable. Things are particularly likely to go viral when they conform to certain popular narratives that are as old as drama or comedy. Those narratives include this doofus doesn't understand how [X] works, the emperor has no clothes, the bully got put in his place, pride goeth before a fall, and the hypocrite criticizes what he's doing himself. Avoid playing into those narratives, and you reduce the danger of the Streisand Effect or the Carreon Effect.
Know Yourself (Or Your Client): Before you send that takedown demand, engage in a little introspection — or, if you are a lawyer, examination of your client.
First off, some people start off so notorious that it's impossible to send a takedown request on their behalf without it going viral. The Kardashians and Paris Hilton probably fall into this category. Some people are so notorious within a particular subculture that it's impossible for them to escape the Streisand Effect. Derek Smart and Uwe Boll fall into that category. (If you're saying "who?", you are not part of those subcultures.) Some people are widely seen as extremely annoying; their demands tend to go viral. Some people start out so notorious for legal threats that any demand letter they send will go viral. Frank VanderSloot falls into that category. If your introspection — or your examination of your client — leads you to believe that you fall into these categories, it's time to ask yourself whether the game is worth the candle.
Second, even if you start off obscure, you need to figure out whether there's anything about you that plays into narratives or promotes your demand going viral. For instance, if you're a convicted perjurer and domestic terrorist, your defamation threats are likely to go viral. If you have a President-Obama-is-a-secret-lizard-person website, your takedown demand is going to go viral. If your website is one prolonged racist screed, your DMCA notice may go viral. Now, domestic terrorists and crazy people and racists have rights too. But this isn't about what's fair. This is about how the internet works. If you or your client are . . . let's be kind and say "colorful," then the probability of a Streisand Effect response to your takedown demand is high.
Third, you need to make sure that the facts you assert about yourself or your client in your takedown letter are true — or at least not easily subject to contradiction. When Charles Carreon wrote to The Oatmeal asserting that his client FunnyJunk was not hosting many instances of cartoons copied from The Oatmeal, Matt Inman was able to respond in devastating fashion demonstrating dozens of live links to copied art. This strongly promoted the viral effect of The Oatmeal's post. Lies or foolishly unverified allegations in takedown requests promote the Streisand Effect.
If you don't feel you know what questions to ask yourself — or if you're not sure what questions to ask your client — ask someone savvy in internet culture.
Know Your Medium: If you want to avoid the Streisand Effect, you need to understand the medium you are working with — the internet in general, and the elements of the internet that concern you in particular.
This is necessary because the "hilarious old/stupid person doesn't understand the internet" narrative is very popular, if somewhat banal. Thus if you demand that somebody take you off Google, your demand is much more likely to go viral. So: be sure that what you ask for is technologically possible and that you have correctly identified the person responsible for the content you are complaining about.
Similarly, you have to understand the method you are using to make your demand. Demands issued by email are only as private as the recipient chooses to make them, but it requires a little effort for the recipient to publicize your email. On the other hand, demands or threats issued on Twitter or Facebook or in the comments of the recipient's blog are inherently public and likely to become more so.
Finally, its imperative that you understand that the internet has cultures and subcultures and subcultures of subcultures, each with its own language and memes. You might or might not understand what that blogger is saying about you. Before you fire off that takedown demand, try looking up unfamiliar terms on UrbanDictionary.com. If the site is referring to you with bizarre pictures or jokes that don't make sense, try looking them up on a site like Know Your Meme. Don't be the guy who writes a blogger angrily demanding that he stop suggesting that you are a cat with poor grammar and an eating disorder.
If you don't understand the technology you are talking about and using, ask someone who does.
Know Your Opponent: Never threaten someone without understanding them first.
Bloggers with huge audiences, and forums with vigorous and mischievous participants, do not have any special right to defame others or to violate copyright laws. But practically speaking, demands made to them are more likely to go viral — especially if those demands play into popular narratives. When Donna Barstow chose the tone and approach she used with Something Awful, one must presume she didn't understand the culture of the place. (The fact that she later indicated that she thinks 4chan is a British television channel tends to confirm this.) If she had done any research, she might have learned that Something Awful has an entire article category for hilarious responses to legal threats, and that the denizens of its forums are known as forum goons. This might have modified her approach. Similarly, when Charles Carreon wrote his ridiculous letter to The Oatmeal, he admits that he was completely taken by surprise by the response. This was unforgivably poor opp research, particularly for someone who bills himself as an internet lawyer — to anyone familiar with internet culture in general and The Oatmeal in particular, a comedic response was as predictable as the dawn.
This is a rule that doesn't just apply to big websites. When lawyers for Ranaan Katz threatened to sue First Amendment asskicker Marc Randazza for representing his client effectively, either they utterly failed to grasp their opponent or they had no client control whatsoever. Or maybe they're in it for the lulz, I don't know.
This ancient rule — "know thy enemy" — applies to more than just online legal threats, by the way. Paul Christoforo's awful non-apology apology — which amounted to "I wouldn't have treated you that way if I knew who you were" — nicely illustrates how blind aggression can take you viral. Fight blind, and you may be the one hearing "stand by for a demonstration of relevance."
If you can't figure out how to research your opponent, ask someone who can.
Know The Law: You don't have to be a lawyer to send a takedown demand. You don't have to earn a law degree to put together a DMCA notice. But whether or not you are a lawyer, you do need to put a reasonable amount of effort into understanding the law that you are talking about.
Threats and demands that misstate or ignore relevant law are far more likely to trigger the Streisand Effect. Use any of the excellent free resources on the web — the Citizen Media Law Project, for instance — to educate yourself. If you are making a DMCA demand, educate yourself about copyright and fair use. If you're making a defamation claim, make sure you know the distinction between fact and opinion, and be sure you are familiar with the impact of Section 230 of the Communications Decency Act. Consider researching the sort of legally meritless demands that have attracted the most negative attention at the Electronic Frontier Foundation or ChillingEffects.org.
Specific Is Better Than General: It's a mantra here at Popehat — vagueness in legal threats is the hallmark of censorious thuggery. If you write a takedown demand saying "your post defamed me, take it down immediately!" your demand is more likely to go viral, because you haven't made your case. You haven't explained how you've been defamed — you've just made a demand that could be interpreted to mean "you're not allowed to say bad things about me."
A bad demand — one likely to go viral — just says "you defamed me." A much better demand — much less likely to go viral — is very specific. It says something like "your post asserts that I was convicted of theft. In fact, I was arrested for theft, but the charges were dropped. Your assertion that I was convicted of a crime is defamatory." The specific version is better for a variety of reasons. First, believe it or not, some bloggers actually want to be accurate, and will amend what they write. Second, believe it or not, many internet readers care about accuracy, and won't see a demand as noteworthy or ridiculous if it points out actual mistakes of fact. Third, being specific forces you to think about and articulate exactly what about a post is defamatory, which hopefully will sharpen your legal investigation discussed above. Fourth, if you put a defamer on notice of specific false facts and they fail to make a correction or retraction, your legal position will often be improved.
But bear in mind that being specific isn't the same thing as being long-winded. Brevity is safer. DMCA notices follow a terse formula; there's no reason not to follow it. Takedown demands should also get to the point immediately without exposition or argument. The more you say, the more is there to trigger a viral response. Identify what's wrong, identify why it's wrong, and get out.
If you have trouble being specific or brief, ask a friend to help.
Proofread It: Look, I'm the last one who should be criticizing people for typos and spelling and grammatical mistakes. The first few comments on my posts typically feature observations like "Ken, you misspelled the blog's name again," and "Ken, I've read that third sentence ten times now and it still doesn't make sense and now there's a roaring in my ears," and "Ken, I'm pretty sure that Abu Dhabi isn't the capital of Pakistan."
Grammatical, spelling, and syntactical mistakes aren't inherently funny. However, they are reliably funny in two circumstances: (1) when someone makes them in the course of criticizing someone else for their mistakes, or (2) when someone makes them in the context of a threat, particularly if the threat is pompous or otherwise over-the-top. In those circumstances they feed into popular narratives like "that threatening person is crazy" and "that self-righteous person is stupid."
So: get someone to proofread your takedown requests for you.
A Friend In Need: Notice that I keep saying "get someone to help you." I mean it. That's not just a sales pitch for my fellow lawyers. It's serious advice designed to mitigate the consequences of human frailty. Being insulted, or having your work stolen, is upsetting, and upset people do a bad job assessing data and making choices based on it. Ask a friend to be a sounding board. That's what they're there for.
And you lawyers — don't be too proud to ask for help. This is a great time to get to know that associate or paralegal or offspring you don't talk to much. Don't be the lawyer who makes his or her client's situation vastly worse because you bumbled into a culture you know nothing about.
Try A Little Tenderness: Sure, you could start with a DMCA notice or a demand letter. But sometimes courtesy and friendliness are more effective than bluster and demands. Not only does that approach get results, it's far less likely to go viral — a polite and friendly request doesn't play into any narratives.
Here's an email that's I've sent that's resulted in the recipients responding in friendly fashion and doing what I asked when they had copied entire Popehat posts in ways that I thought did not constitute fair use:
Dear Mr. Blogger:
Please take this as what it is: a friendly request to excerpt and link my work rather than copying it wholesale.
In this post [link] you copy and paste my entire copyrighted blog post, rather than quoting a portion and linking the rest.
I respectfully submit that this does not constitute fair use under applicable law.
Please remedy it by altering the post and quoting a reasonable portion.
Thank you very much. I appreciate your interest in my post and your kind words regarding it.
Very truly yours
Was it possible that this could be used to ridicule me? Sure. But that ridicule wouldn't be particularly appealing, and would likely not go viral.
Even if a polite and non-threatening request doesn't work, an understated approach is always better than bluster. Extravagant legal threats are far more likely to go viral. Most people don't particularly like lawyers, and nobody likes bullying legal threats from a lawyer or someone pretending to be one. Such threats play into narratives about lawyers, and narratives tend to promote viral effects. The problem is that lawyers like to make florid threats, and people sending lawyer-style letters feel that they ought to emulate that practice. But that's often an affectation or a form of strutting, not a legal necessity or a good tactical choice. If the recipient is sensible, they will react appropriately to a professionally written demand that makes its case briefly and without gratuitous insults or threats. If, on the other hand, the recipient is not sensible, then a blustery letter is likely to move them to outrage, not to contrition. A look-how-gigantic-my-balls-are takedown demand might impress a client, but it poses enormous risks of going viral and prompting a Streisand Effect response, and is unlikely to be much more effective than a polite but firm letter than states the case without scenery-chewing.
What would such a letter look like? Perhaps something like this:
Dear Mr. Blogger,
In your post of July 1, 2012 "Scum-Sucking Thief," you assert that my Client, Mr. Defamed, has been convicted of theft. That is untrue, as a reasonable inquiry of public records would have revealed. Mr. Defamed has never been convicted of any crime. The incident to which you refer led to his arrest, but no charges were ever filed against him.
Your post is defamatory and causes substantial harm to Mr. Defamed's repuation. Though you have a First Amendment right to state your opinion, and to criticize Mr. Defamed in harsh terms, you do not have a right to make false and defamatory statements against him. Though Mr. Defamed is not a public figure and we need not establish actual malice to make a case of defamation against you, your course of posts about Mr. Defamed show a level of hostility that will make it easy to prove malice, which will entitle Mr. Defamed to punitive damages. Please correct and retract the statement immediately. If you do not, I will take appropriate legal action on Mr. Defamed's behalf.
Note that in the letter, I make specific reference to the blogger's First Amendment rights, and concede that the blogger has the right to state negative opinions about the client. Saying this up front helps blunt narratives and preempt the Streisand Effect — it makes it much harder for the blogger to argue that the client is trying to silence him.
No, Your Takedown Demand Is Not Copyrighted: Don't try to pull that ridiculous "I demand that you take down your post, and I demand that you not print this demand letter, because it is copyrighted." That's just stupid. Really, really stupid. That's begging for it to go full Streisand.
I would sum up all of these points like this: when considering a takedown demand, take a "first do no harm" attitude. Make sure you understand what you're doing, and ask for help. Learn from the mistakes of the infamous.
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