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

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46 Responses

  1. 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 says:

    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 says:

    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. says:

    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 says:

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

  6. Scott Jacobs says:

    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 says:

    @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 says:

    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. says:

    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 says:

    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. says:

    @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 says:

    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 says:

    @ Chris R

    I can see it now…

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

  14. Chris R. says:

    Lol Thorne.

  15. Aaron Mason says:

    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 says:

    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 says:

    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 says:

    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 says:

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

  20. Jack Leyhane says:

    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 says:

    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. 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 says:

    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 says:

    @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 says:

    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 says:

    '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 says:

    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 says:

    '… 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 says:

    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 says:

    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 says:

    @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 says:

    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 says:

    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 says:

    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. 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 says:

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

    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 says:

    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 says:

    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) says:

    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 says:

    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 says:

    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 says:

    "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? :-)

  1. July 8, 2012

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  2. July 10, 2012

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