How To Write A Takedown Request Without Running Afoul of the Streisand Effect

Law, Law Practice

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

etc.

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.

Last 5 posts by Ken White

46 Comments

43 Comments

  1. Adam Steinbaugh  •  Jul 8, 2012 @9:07 pm

    Is there a categorical difference between the Streisand Effect and the Carreon Effect? Or are they synonymous?

    Follow-up question: is the Carreon Effect synonymous with his proffered "Rapeutation" theory?

  2. Ken  •  Jul 8, 2012 @9:09 pm

    Under the Streisand Effect, an effort to suppress information through legal threats results in many more people being exposed to that information.

    Under the Carreon Effect, making legal threats online to suppress information leads to widespread ridicule of the threatener.

    They are related, but not identical.

  3. Scott Jacobs  •  Jul 8, 2012 @9:19 pm

    Know Your Opponent:

    I like to call this the Paul Christoforo Rule, but it is also known as the Mike Krahulik Rule, the Jose Martinez Rule, and The Bloggess Rule

  4. Chris R.  •  Jul 8, 2012 @9:24 pm

    IANAL, but I don't understand why some hardball it the first time around. It would seem a friendly request would easily get the point across and if further requests were needed you could always fall back on the "we tried it the easy way now here's the hard." Just an observation. If someone emailed me and was like "Hey I really don't like how you went about saying something about me" I'd probably listen and might even modify my approach if I thought it didn't undermine my position.

  5. Ken  •  Jul 8, 2012 @9:26 pm

    Scott, thanks for reminding me of two links I meant to add.

  6. Scott Jacobs  •  Jul 8, 2012 @9:32 pm

    I was rather wondering how they got left out…

    I just assumed they weren't included because they didn't deal with legal threats and/or censorious thuggery, just people not knowing who the fuck they were being dickbags towards.

  7. W Ross  •  Jul 8, 2012 @9:37 pm

    @Ken Everyone in the business community needs to read this, not just the litigious. You've put your finger on the pulse of how organizations fail here, they make a lot of assumptions about a world they don't really understand (but could understand if they did just a little bit of homework.)

    It's like Duke always said "Knowing is half the battle!"

  8. W Ross  •  Jul 8, 2012 @9:44 pm

    I've noticed that the stages of recognizing a fail mimic the 5 stages of grief (http://en.wikipedia.org/wiki/5_stages_of_grief). The quicker you get to acceptance, the easier it is to pull out of the fail, but it's impossible to do until you've reached that stage of recognizing a fail.

    I also learned The Oatmeal looks like Dennis from "It's Always Sunny in Philadelphia."

    So all in all, good month.

  9. M.  •  Jul 8, 2012 @10:05 pm

    I really enjoyed reading this, thank you. I'd love to see more "legalese for dummies"/"fairly general free legal advice" articles like this.

    (Although some of it fits into the same category as "do not store rat poison in Gatorade bottles in the fridge" for me, but I fully believe some people are only alive because natural selection has been mostly neutralized as a survival factor.)

  10. Matthew Cline  •  Jul 8, 2012 @10:06 pm

    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.

    No, no, no, please do be the guy who does that. It'll be hilarious.

  11. Chris R.  •  Jul 8, 2012 @10:07 pm

    @W Ross, I see a bright future for Ken in the seminar circuit. "How not to step in it online" and "If you've stepped in it, how to not slip and roll around in it" and finally "If you need a shower because it's all over you, this is what you have to do."

  12. Thorne  •  Jul 8, 2012 @10:11 pm

    Great post, Ken.

    If I might make a suggestion?

    In your polite "takedown letter" example, you might want to toss in one or two tiny examples of blatant sarcasm lest you be mistaken for "Canadian". :p

  13. Thorne  •  Jul 8, 2012 @10:34 pm

    @ Chris R

    I can see it now…

    "Dookie Trap: Detect and Deter" – Stages 1, 2 and 3.

  14. Chris R.  •  Jul 8, 2012 @10:41 pm

    Lol Thorne.

  15. Aaron Mason  •  Jul 8, 2012 @11:21 pm

    Wise words. The Carreon effect very much needs to stand on its own and not be confused with the Streisand Effect.

    Submitted to UD, let's see if they take it up.

  16. nathan  •  Jul 9, 2012 @1:18 am

    If you follow the link from personal injury lawyer to Dozier, you can find http://dozier-internet-law.cybertriallawyer.com/, which claims:
    'A United States Federal Judge has ruled in the Ninth Circuit that there was a prima facie case made that COPYRIGHT LAW PROTECTS A LAWYER CEASE AND DESIST'
    I won't bother making fun of the rather ungrammatical sentence and the gratuitous shouting.

    Anyway, are they quoting something out of context? As in, 'the judge said that yes, you do have copyright in what you write, … BUT you can't use that to stifle fair use etc'? They don't provide a transcript, so I suspect they're hiding something.

  17. greyspoke  •  Jul 9, 2012 @1:59 am

    Great advice Mr Hat. I'd better out myself as a UK lawyer/ law teacher before I proceed. I did find this bit in the "nice" email a bit jarring: "I respectfully submit that this does not constitute fair use under applicable law." A bit too much like a lawyer's threat for a nice email? And a bit US-centric – many non-US jurisdictions do not have a "fair use" doctrine so you need to generalise a bit more if you really want to write a jurisdictionally agnostic nice email.

  18. Kat  •  Jul 9, 2012 @2:52 am

    I almost always use the friendly approach when someone violates my copyrights. The only time I ever went straight to DMCA notice was when I ran into someone who had previously rebuffed other people who asked him nicely, but had henceforth responded to a DMCA takedown notice. It IS a lot easier and keeps the hurt feelings a minimum.

  19. JdL  •  Jul 9, 2012 @3:45 am

    Is there a difference between a "DMCA notice" and other copyright takedown demands?

  20. Jack Leyhane  •  Jul 9, 2012 @6:11 am

    I have to admit that a few years back I allowed a very strongly worded comment to remain attached to a post, more as a horrible example than anything else. Some time later I was contacted by a lawyer on behalf of the man blasted in the comment (a judge's spouse) who said that this comment was surfacing in every Google search of the man's name. I didn't understand that the text in comments might be picked up in searches; in my vanity, I thought the Google spiders only cared to read my own deathless prose. Then the man's lawyer and I both learned that merely taking out the comment did not make the Google results stop. At least not right away.

    There are (I think) a lot of us earnest amateurs out here on the ether, learning (unevenly) as we go.

  21. nlp  •  Jul 9, 2012 @7:17 am

    I would suggest that lawyers also ask themselves just how important the original comment was. The Vero Beach Route 60 Hyundai is an example of what can happen when Twitter comments that were originally seen by some seventy or so people were suddenly being read by thousands.

  22. Carl "Bear" Bussjaeger  •  Jul 9, 2012 @7:29 am

    IANAL, yada, yada…

    I've been told (by other non-lawyers) that courts have ruled that correspondence is generally the property of recipients to do with what they wish. I seem to recall reading about such rulings, generally in relation to unauthorized biographies that printed embarrassing letters. I also seem to recall (please remember I'm _not_ an attorney) some carved out exceptions such as employer/employee (or contractor) business correspondence to protect proprietary information. _If_ these are correct, it would seem to a rational person (i.e.- not a law school graduate [grin]) that these "copyrighted" letters are BS in the face of case law.

    I do know an attorney whose stationary includes a privacy notice (_not_ copyright). But it specifies that the letter may contain privileged attorney/client communications, and is written as if directed toward a third party who might get his hands on the letter, not at the client/intended recipient.

    But I do see a lot of email with copyright claims. I generally treat such blanket warnings with all the seriousness I give spam with notices that it isn't spam and is protected by S. 1618.

    Regarding DMCA letters: I can't afford an attorney, so I went looking for actual samples used by various companies (like Amazon's required format) and tailored those into a standard format for myself. Some people treated them seriously, some (like Amazon itself; go figure) did not. From the reactions, I think a normal, non-legal "please don't do that" would have been as effective. Negative responses ranged from totally ignored (Amazon) to "you have a religious obligation to let us use all your work" (-blink!-) to some polar shift guy who… well, I'm not entirely sure due to difficulties parsing his rantings and ramblings, but I think his position was that the world is about to be destroyed leaving him and his followers the sole survivors so it didn't matter WTF I thought. I just pointed out that if the planet tips over that sundial article wasn't going to do him much good anyway.

  23. John Farrier  •  Jul 9, 2012 @8:26 am

    When a commenter or emailer politely requests that I change or remove a post, I'll do so unless there's a compelling reason not to. When a commenter or emailer angrily demands that I change or remove a post, I rarely do so.

    You can go a long way in this world with just good manners.

  24. John Ammon  •  Jul 9, 2012 @9:21 am

    @W Ross – Yo Joe!

    Also, he totally does look like Dennis. I got to meet Matt at Emerald City Comic-Con this year, before all of this mess, he was pretty busy, but he signed a copy of his book for my brother, I had him draw a Bobracha doodle in it. I'm not sure I'll ever be able to top that gift :P

    Fantastic points, as always Ken. As an owner of an entertainment news site that gets a decent amount of traffic, occasionally we get a C&D letter because some studio accidentally released something before they meant to or what have you, and I can say from personal experience that a kind, friendly request to remove content often goes over much better than a harsh bullying request.

  25. Paul  •  Jul 9, 2012 @9:39 am

    I, too, was wondering about the outcome of the whole copyrighted cease-and-desist was. The website for Dozier says that it was found to be copyrighted, but doesn't link to anything. If that's the case, then it suggests that including that line in your cease-and-desist letters now will only result in the Streisand Effect, but if enough lawyers do it and enforce it, it may become too much risk for people to post such letters.

  26. Dan Weber  •  Jul 9, 2012 @9:53 am

    'A United States Federal Judge has ruled in the Ninth Circuit that there was a prima facie case made that COPYRIGHT LAW PROTECTS A LAWYER CEASE AND DESIST'

    They claim the case was made by one party. They don't claim that it was upheld by the court.

    IANAL, so there was a prima facie case made may be a term of art that I don't understand, but it doesn't seem to me that the court approved it.

  27. Dan Weber  •  Jul 9, 2012 @10:26 am

    They have a copy of "the victory" here, but it seems to just be celebrating a win in where the jurisdiction would take place.

    http://dozier-internetlaw.cybertriallawyer.com/

    It's Civil Action No. 3:08CV643-HEH which someone better than me at searching law archives can probably use.

  28. nathan  •  Jul 9, 2012 @10:39 am

    '… that there was a prima facie case *made* that …'
    Ah, Dan, I'd missed that crucial word. So yeah, that's just the judge summing up the claims made to him. They neglected to quote his conclusion, so I suspect it was something like '… but that's not supportable in law'.

  29. Erbo  •  Jul 9, 2012 @10:47 am

    I think this advice, which is very good, can be succinctly summed up in one pithy caveat: "Don't be a dickhead."

    This applies to recipients of polite takedown notices/DMCA requests as well; if the guy who sent it to you isn't being a dickhead, and you try to expose him to ridicule, you just look like a dickhead, and your response deserves to go viral. So, as Ken would say, "Conduct yourself accordingly."

  30. Ae Viescas  •  Jul 9, 2012 @11:10 am

    Thanks for the post. While I applaud your blog which defends the first amendment, I do sometimes worry that it discourages people (usually, smart, sensible, yet relatively uneducated people) from seeking redress when they actually deserve it.

    I'm still left with one question though: how does your advice change when harassment suits enter the picture? Do you have any "cheat-sheet" websites for people facing actionable harassment claims, like the laws surrounding copyright infringement and defamation? (IANAL, but a brief Google search seems to suggest it's somewhat complicated)

  31. W Ross  •  Jul 9, 2012 @2:47 pm

    @Ae Viescas Note that he says "Send a Cease and Desist" first. If you dive in trying to actively get something out of it (make the law punish the person or reward you) you're almost guaranteed to get a Streisand Effect/Carreon Effect.

    With the exception of the REALLY out there stuff, any time you ask to hurt someone with law, you're at risk, but there's another side to that. If you have proof you asked nicely first, the energy that powers a Streisand Effect type situation won't generate. You'll show the Internet that you actually tried.

    But there is no defense if you dive into the "I'm going to make the law force you to take it down." Once you've gone to legal force, you need to realize that you've basically punched someone in the face with law. And like any other situation where you're decking someone, the people around you are going to decide if it was justified, and choose a side.

    (My 400 cents.)

  32. deezerd  •  Jul 9, 2012 @3:38 pm

    Is it a final proof of my naivete that everything Ken says in here reeks of … well … common sense? (Know what you're doing, do your homework, be polite, dot your i's etc.) The kind I take for granted that everyone should know, and am always surprised when people don't?

    Well, maybe if I'd gone to law school, I'd have had that pounded out of me. Seriously, Ken, nice work. I suspect that this could prove useful in any number of areas. :)

  33. SPQR  •  Jul 9, 2012 @5:32 pm

    Carl wrote: "I've been told (by other non-lawyers) that courts have ruled that correspondence is generally the property of recipients to do with what they wish. "

    Carl, the physical copy of the letter is the property of the recipient. Not the copyright. Copyright exists for anything within the scope of copyright law once it has been fixed in a tangible medium. So the author of the letter retains the copyright. There are analogies to paintings, sculptures, photographs etc.

  34. W Ross  •  Jul 9, 2012 @5:39 pm

    http://theoatmeal.com/blog/charity_money

    Basically, you don't want that to happen to you. That link above represents the absolute worst case scenario.

    (Oatmeal wins… Fail-tality!)

  35. Derrick Coetzee  •  Jul 10, 2012 @2:03 am

    This is hands down the best post I've seen on this topic, and good advice for well-meaning lawyers everywhere. That said, multiple parts of this advice suggest the need for a new professional role in our society: an Internet consultant. Someone who is trained in Internet culture, language, and memes in a variety of popular websites and forums, who can explain the intention of a piece of speech, and can advise what language to avoid in a particular context. Such a person could also be an invaluable aid to lawmakers. I've joked about how Carreon should've spoken to an average teenager before filing suit – why not make such things into real practice?

  36. Jonathan  •  Jul 10, 2012 @12:08 pm

    Not a lawyer, but been through this on both sides many times. My 2ยข :

    Don't ask for or specify damages / compensation on the initial correspondence, even if you think you're deserving of them and will eventually seek them. Save that for later discussion, once you have communication channels open. If you drop in dollars in the first email, you put the other party into defensive mode and make them super antagonistic. If someone feels like you're trying to extort them or silence them, they will try to make it viral or generally be very unpleasant with you.

  37. Terry  •  Jul 10, 2012 @2:46 pm

    I've never threatened anyone for defaming me. Never felt the need.

    I do however regularly find people who are copying and pasting my articles on their websites. (Mostly I find these in Google Webmaster tools because they've screwed up a link to my site.)

    I use a similar "quote me but don't copy everything" email in most of the cases. This has resulted in me meeting many new people who write about similar topics.

    The exception is with scraper sites. These are sites that scrape content off the web and mash it up on their site in an effort get search rankings or collect affiliate commissions. With a scraper site, I immediately send a DMCA complaint containing links to the copy and my original content to their hosting company.

  38. Nikki  •  Jul 10, 2012 @3:07 pm

    Just a small point re: your defamation takedown example: in defamation law, "actual malice" does not refer to "malice" in the sense of ill will. The actual malice standard refers to a publisher making statements that he knows, or should know, are false. Therefore, it is not necessary to show that the blogger is using harsh language towards the client. Rather, actual malice is shown when the plaintiff shows that the blogger *knew* plaintiff was not convicted of theft, but chose to publish that information anyway.

  39. Tom ( iow)  •  Jul 11, 2012 @3:46 am

    Also, don't do the device of '… we demand that the Acme Vacuum Cleaner Review Blog (hereafter known as "The Blog")'.

    It doesn't sound clever, and sounds more like someone who ordinarily can't understand basic English sentences.

  40. John David Galt  •  Jul 11, 2012 @7:58 pm

    This is from today's news, but I couldn't resist posting it on Popehat:

    Can someone as famous as the Pope become a victim of the Streisand Effect? We may be about to find out:
    http://www.spiegel.de/international/zeitgeist/pope-benedict-xvi-sues-german-satire-magazine-titanic-a-843690.html

  41. Elise Logan  •  Jul 12, 2012 @10:12 am

    Thank you, actually. I posted a link to this article in an author community to which I belong. We are always running into issues of piracy and requirements for take down notices. Having a clear discussion of what is appropriate and not appropriate is extremely helpful. I certainly have no problem with fair use (take, for example, the issue of using quotes in reviews – this is standard practice and certainly would fall under fair use), and I have no problem with unflattering or negative reviews (obviously everyone has a right to his or her opinion, and a right to state it. I cannot reasonably expect that everyone in the universe will love my writing – if I could, I'd patent whatever I did to make that occur and sell that process for a gajillion dollars. But when you have a situation where an entire work, sometimes your entire body of work, is made available for free download, or sold without your consent or remuneration to you, well… then an author needs to take some action. Usually it's simply reporting it to the publisher- they generally have lawyers who deal with that sort of thing. But in today's world where self-publishing is so common (and self-publishing of previously published work is common even for really big names), a lot of authors don't have access to a publishing company's resources. This kind of information is invaluable in those circumstances. So, again, thank you.

  42. bob  •  Jul 15, 2012 @12:43 pm

    "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."

    Anybody else read that and hear Jeff Foxworthy's voice? :-)

  43. Chris R.  •  Jul 22, 2012 @9:21 am

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