Atavistic metamorphosis proposes that cancer cells are cells that have reverted, evolutionarily, to their ancestral, independent status as unicellular organisms. It is from there that cancer only occurs in plants and animals/humans (multicellular organisms). This also explains why cancer does not occur nor can be induced experimentally in unicellular organisms such as bacteria, fungi and protozoa.
Tagged: Legal Threats
Rain, Rain, falling down
Grey sky shadows, and my sad heart
. . . and so on.
Now, I am not personally offended by improbably-breasted women in comics. I recognize them for what they are: a cultural signal, like golf pants or McDonalds' Golden Arches. Their presence on a book or comic cover signifies that you will encounter nothing unfamiliar or unsettling therein. Anatomically incorrect breasts are the dogs-playing-poker of fantasy art.
[Update: see resolution at end of post]
Peak Internet of Colorado offers ISP services to the Pikes Peak region. Russell Petrick tried their services and was disappointed. He says that their speed was consistently below the benchmark they advertised. When Petrick complained, he says that Peak Internet told him he was getting above their stated minimum speed, so he should be happy with the 12 Mbps he was getting, even if it didn't reach the advertised 20 Mbps top speed.
Petrick complained online on Yelp and elsewhere. Peak Internet, an American company that values American ideals like freedom of speech, recognized Petrick's right to complain and responded forthrightly to the complaint. No, wait, Peak Internet strongly disagreed with Petrick's complaints so it responded online with specific facts and circumstances showing how particular elements of Petrick's complaints were untrue.
Wait, no. I forgot. This is America. So Peak Internet sued. They hired attorney Ryan J. Klein of Sherman & Howard and filed a complaint against Petrick in Teller County District Court for defamation and defamation per se. The complaint is here.
Peak Internet's complaint is bare-bones and notably vague and ambiguous. This is how it explains the basis for accusing Petrick of defamation:
The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.
Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).
Peak Internet's ploy may not play out the way they hoped. Already a local news station ran with the story, allowing Petrick to highlight what appears to be well-documented evidence supporting his complaints about the speed.
I wonder: did attorney Ryan J. Klein explain the Streisand Effect to his client Peak Internet before filing the lawsuit?
It's not clear to me whether Petrick has counsel. If he wishes, I would be pleased to light the Popehat Signal to find pro bono counsel. Meanwhile, I think the story of an ISP that sues its customers over criticism is one that needs a little more attention. Do you agree? Have at it.
Thanks to tipster Carl.
Updated to add: commenters here and on Twitter point out that Peak Internet has gotten four abrupt good reviews on July 30 (the day after the local news story), all from first-time reviewers, all praising Peak Internet. No doubt a coincidence.
Mr. Petrick has sought my help. I am lighting the Popehat Signal.
Mr. Petrick is disabled and does not have funds to hire an attorney to defend his free speech rights. Is there a lawyer out there who can help him in Teller County, Colorado?
We have the right to free speech — in theory. In practice, companies like Peak Internet, and lawyers like Mr. Klein, can trammel that right because the system lets them. It can be ruinously expensive to defend even the most transparently bogus and censorious case. To fight this trend of companies suing to remove bad reviews, we need people to step up. Might it be you? If not, will you help spread the word?
Good Update: I am reliably informed that Peak Internet and Mr. Petrick have resolved the case satisfactorily and Peak will be dismissing its case with prejudice — meaning permanently. Congrats to Mr. Petrick, a nod to Peak Internet for making the right decision after the wrong one, and thanks to several Colorado lawyers who offered to help.
Murrieta, California is a town recently known for angry crowds screaming at Immigration & Customs Enforcement buses full of kids. Apparently Murrieta thinks that sort of coverage is not a selling point for the town, because they hired Xavier Hermosillo, a "Crisis Manager." This is a typical and prudent move. Across America, if you ask public officials "how can we recapture the media narrative, calm hostility and anger, and promote sensible dialogue," they will inevitably reply "hire an internet talk show host."
Hermosillo set to work. What could he do to calm the troubled waters, improve the town's reputation, and capture the sympathy of the media?
Hermosillo was apparently agitated over a La Cucaracha cartoon that suggested the bus-screamers were racist. A political cartoonist commenting on politics and public behavior? THIS WILL NOT STAND!
For the picture-impaired: Mr. Hermosillo said "Lalo, There IS a fine line between your Constitutional right to draw cartoons and expressed [sic] your opinions, and falsely, deliberately, and maliciously labeling and attacking an entire community as racist or as 'Hate City.' You are working overtime to damage Murrieta and such a false premise is actionable. There's a fine line between humor and stupidity. You may have crossed that line at your own peril."
This is, of course, utter bollocks. An "entire community" can't file a defamation suit. Even if they could, political cartoons are at the very core of what the First Amendment protects. Like it or hate it, Lalo's cartoon is a classic example of a political opinion, stated cartoonishly, in reaction to public facts. You may disagree with Lalo's suggestion that the bus-screamers were racists, or that their behavior is fairly attributable to the community of Murrieta, but nobody with the most minimal grasp of defamation law or the First Amendment would think it's an actionable false statement of fact.
Under the familiar Streisand Effect, this buffoonish threat will probably draw far more attention to the comic, draw more negative attention to city leadership ("we paid tax dollars to hire this cretin?"), and make the media substantially more hostile, if that is possible. One thing is for certain: it will not promote any intelligent debate on immigration whatsover.
You would think that a "Crisis Manager" would understand the Streisand Effect, wouldn't you?
It's time for the Popehat Signal — the call for pro bono assistance for a blogger threatened with frivolous and censorious litigation. This time the victim in need of help is Stephanie Yoder of www.twenty-somethingtravel.com. She needs your help to face a thoroughly bogus and repugnant threat by multi-level marketing scheme "WorldVentures."
The blog Addiction Myth is devoted to a very out-of-the-mainstream proposition about medicine: that the entire concept of drug and alcohol addiction is a scam perpetrated by law enforcement, rehab groups, and the entertainment industry. By contrast, the United States Department of Health and Human Services is devoted to mainstream medical and scientific propositions1 It is perhaps inevitable that these two worldviews would conflict one day.
But it was not inevitable that HHS's Office of General Counsel would bumptiously threaten Addiction Myth over obviously satirical posts. That, given minimal good sense, could have been avoided.
Back in 2012 I wrote about Michael Mann's lawsuit against National Review Online, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg. There's been plenty of water under the bridge since then — the defendants have filed and lost a motion under Washington D.C.'s anti-SLAPP statute, appealed unsuccessfully, re-filed it as a result of procedural hijinks too dull to discuss here, and lost again.
My view of the case is unchanged. I think the statements Mann attacks are best viewed as opinions expressed through vivid rhetoric and hyperbole, rather than statements of literal fact susceptible to defamation analysis. That view is strengthened by the steady progress of the law since 2012 in cases like Cox v. Obsidian Finance, which I discussed last month.2 The tone and rhetorical flair of the statements, the places they were published, and their entire tenor strongly suggest they were argumentative opinions rather than falsifiable statements of fact. Therefore, they ought to be absolutely protected by the First Amendment. In this I agree with Jonathan Adler and Dan Farber.
Quite frankly I also think that the lawsuit is part of a larger effort to conduct the climate change debate by other means, including lawfare — part of the effort to label certain viewpoints as so unacceptable that they do not deserve full legal protection. As an example of the tone I am talking about, consider a cartoon in today's New York Times:
Mann's case may still be resolved on the grounds that he's complaining about protected opinions rather than defamatory statements of fact. Moreover, Mann may not be able to prove that the statements were false, or if they were false, that they were uttered with the requisite mental state. I will not dwell on that point; I'm scientifically illiterate.
I will, however, dwell briefly on Mark Steyn's disastrous response.
First, Steyn is representing himself — he characterized it as "firing" the well-qualified firm that was representing him. Such a defense can be ruinously expensive, and I'm sure that cost was one factor, but as you'll see it doesn't appear that it was the only one.
Second, Steyn has used the opportunity of defending himself to engage in what can only be described as pro-se antics. He's attacking the judges and the system both in print and in legally feckless and argumentative court filings. Is it Steyn's First Amendment right to rail against the judges associated with his case? Of course it is. May a pro se litigant file a motion as a vehicle to rant about the case as a whole, and the law, and society, and the universe at large? Sure. But while such behavior is viscerally satisfying, it tends to produce bad results. Judges are human, as are their law clerks.
As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don't-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.
Third, Steyn has now answered Mann's complaint and filed two counterclaims against Mann seeking $10 million. Steyn's answer and counter-claims are here. The counter-claims are, to put it mildly, problematical. Steyn doesn't state clearly what causes of action he is asserting, but his text suggests he is suing Mann for suing him, and for threatening to sue him and others, and for chilling speech by issuing legal threats. There are many problems with this legal theory. Among them: the litigation privilege generally prevents you from suing people for suing you, or for things they say in the lawsuit. The exception is the tort of malicious prosecution, but to sue someone for malicious prosecution you first must show that you won the case. Steyn hasn't won the case, and can't sue for malicious prosecution. (This is exactly why "I'm counter-claiming against you for suing me!!!" is something you generally only see from pro se litigants. It doesn't end well for them.) Moreover, the litigation privilege often covers threats to sue, treating them as part of the litigation as a whole.3
The bottom line is this: Mann's threats and litigation may well be privileged — immune from suit. If that's the case, then Mann may be able to respond to Steyn's counter-claims with an anti-SLAPP motion of his own. He may win, which would not only require Steyn to reach into his pocket for Mann's legal fees, but would hand Mann a huge and dramatic propaganda victory.4 I know California's anti-SLAPPP statute and litigation privilege well, but I am not an expert on District of Columbia law. But my review of the law suggests that Steyn's counter-claims are, at a minimum, a very risky gambit. Perhaps there is some theory behind them with a sound basis in law; perhaps Steyn is getting competent legal advice. But I am skeptical.
Mark Steyn seems very frustrated and impatient with the flaws and delays of the legal system, and how it has failed to dismiss what appears to be a censorious lawsuit attacking opinion. It's not unreasonable to be frustrated and angry. It's not unreasonable to say that our legal system ought not require this priest caste of lawyers to navigate lawsuits attacking our fundamental rights. It's not unreasonable to say that such things are outrageous, and the public ought to know about them. But it is unreasonable to expect to be able to navigate the existing complex legal system without training and experience. It is unreasonable to expect publicly castigating your judges to produce favorable results. It is unreasonable to expect angry pro se behavior to produce something other than angry pro se results. You can argue that things ought to be different. I do. But, in terms of producing a good result in a particular case, such arguments are like quarreling with the barrel of a gun.
I support the defendants, including Steyn, in their defense of Mann's censorious lawsuit. I would donate to a Steyn defense fund. I would, if asked, try to round up pro bono support for Steyn — though he is a much, much bigger fish in this bloggy ocean that I am and ought not need my help. I've supported Steyn's efforts against censors for years. But I can't support what appears to be either a grand mal seizure of self-indulgence or an ill-considered piece of performance art. Steyn's approach to this makes it significantly less likely that this case will produce a result favorable to free speech. That hurts not just him, but his codefendants and everyone who might face a censorious and politically motivated lawsuit. If Steyn's antics help Mann win, censors everywhere will be emboldened. I hope someone with Mark Steyn's ear convinces him to stop treating this as a show trial.
Sean P. Fodera is a science fiction writer who works in the publishing industry. He's angry.
He started out angry over ongoing upheaval in the science fiction and fantasy literature community. That upheaval is mirrored in the gaming community and skeptic community and other communities with devoted and vocal fanbases. It's a conflict between two groups: a group that thinks the communities have a problem with racism, sexism, and harassment and should take steps to address it, and a group that thinks that the first group is engaged in free-speech-suppressing political correctness and should be resisted. A full description of the dispute would be too lengthy for this post.5
The Daily Dot published a post about this ongoing dispute, and in the course of doing so quoted and linked to some of the angrier things that Fodera said about Mary Robinette Kowal, a science fiction author and officer of the Science Fiction and Fantasy Writers of America. Kowal has spoken out against harassment in the science fiction and fantasy literature community, and SFWA is currently a locus of controversy about such allegations and the official reactions to them. In forum threads on SFF.net, Fodera complained at rather tedious length about Kowal, called her things like "incompetent," said that she agitated him in a manner he compared to how dogs agitate him, and sneered that she was a hypocrite for complaining about sexism given how she sometimes dresses:
I find it very funny and ironic that she would jump on this bandwagon. For a long time, her website featured an array of photos of her in a diaphanous white outfit, posing on a beach. No metal bikinis or such, but they were not innocuous writer headshots either. One of them, with her recumbent on the sand with legs exposed, made her somewhat attractive. I also recall she's fond of wearing tight-fitting gowns and plunging necklines when she attends cons and award ceremonies.
I'll have to add "phony" to "incompetent" and "arrogant" in the mental tags I've assigned her.
Girls give up the right to complain about sexism unless they dress conservatively. It is known.
Anyway, if Fodera was angry before, this coverage made him really angry. How dare someone quote him and link to the full quotes! He penned this threat:
I will note that since I now have the name of the writer, and I can prove that the quotes were edited to change their meaning, I have a very good case for a libel suit. I suppose no one noted that I work in the legal profession within the publishing industry, and have taught college courses on the subject.
BTW, as of now, it looks like the article was "shared" 1,200 times already. That makes each of those sharers a part to the libel, and makes each of them equally culpable in the eyes of the law. I'll speak to my attorney first thing tomorrow.
The Streisand Effect predictably ensued. Multiple people — author John Scalzi, for instance — wrote about Fodera's bumptious legal threat, and the Daily Dot article probably got several orders of magnitude more traffic than it otherwise would have.
Though Fodera works "in the legal profession" and has "taught college courses," he does not appear to have a firm grasp of the subject matter.
First, Fodera thinks that the Daily Dot article is defamatory. It isn't. The article quotes things he wrote on the internet. It links to his original text so that the readers can judge for themselves. Fodera seems to think that the Dot article wrongly paraphrases or selectively quotes him. That's a tendentious and unpersuasive reading. Take, for instance, how the Dot quoted and paraphrased him in his dog analogy:
He calls Kowal, who is a Hugo-award-winning author, "an unperson… no one you should have heard of." Then he goes on to compare her to an aggressive dog:
“Oh, I know she has no power over me. Still, I get agitated when I think about her. There was a lot of good I could have done for SFWA, and she was a primary factor in my not being able to do it… In a way, it's like my reaction to dogs… My brain kept saying 'it's a service dog; they're well-trained; he won't hurt you,' but my body wanted nothing more than to dump my bowels and flee…”
But the Dot directly links to Fodera's own words. The Dot description and partial quote is fair and accurate. And the readers can determine that for themselves by following the link.
Is it possible for misquoting someone to constitute defamation? Yes. But the bar is set very high. In Masson v. New Yorker Magazine, the United States Supreme Court examined whether fabricating quotes and attributing them to an interviewee could be defamatory. The court applied the familiar "gist" or "sting" doctrine, saying that misquotes are only "false" for defamation purposes if they materially change the meaning of the quote:
We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S., at 279-280, and Gertz v. Robert Welch, Inc., supra, at 342, unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.
Here, the Dot has not materially changed the meaning of Fodera's words. Frankly I don't think they've changed the meaning at all. Moreover, they've linked the words so the reader can review them directly. The Supreme Court's discussion of misquotes was premised in part on the notion that the misquote misleads the reader and gives them no notice that the quote might not be exactly what the speaker said; the Dot's article serves up a way for the reader to read the underlying words if the paraphrase or partial quote interests them. Courts increasingly recognize that linking to one's sources for a challenged statement makes it less likely that it will be treated as defamatory.
Fodera's claim of defamation therefore appears specious.
Second, Fodera appears confident that if the Dot article is defamatory (and it isn't), then anyone who merely links to it is a participant in defamation. That confidence is misplaced; it's not clear whether Fodera is ignorant of the law or merely argumentative about it. While not firmly established in every jurisdiction, the emerging trend is for courts to rule that merely linking to defamatory content does not republish it for defamation purposes. Eric Goldman has good coverage of this issue.
New York, regrettably, has only a mediocre anti-SLAPP statute that wouldn't be of assistance if Fodera is foolish enough to follow up his threats with a lawsuit. But as the sad case of Rakofsky v. The Internet demonstrates, New York judges are still prepared to dismiss frivolous and censorious lawsuits. Moreover, any lawsuit would be an extinction-level event for Fodera's reputation and credibility in the publishing industry, as it ought to be. I would not hesitate to light the Popehat Signal to find pro bono assistance for anyone Fodera menaces.
It's banal to be a trash-talking blowhard on the internet. Fodera could have gotten away with that — there are so many blusterers, and so little time to care about them. But Fodera has transformed himself into something else, something more iconic: the big talker who can dish it out but can't take it. Nobody respects that person. Nobody should. Fodera strikes me as a sad and stunted person, lashing out at someone for holding a mirror up to him.
I sent Mr. Fodera an email seeking comment, and asking for responses to some specific questions, but have not heard back as of the time of this writing.
"Never miss a good chance to shut up." "If you find yourself in a hole, stop digging." "It's not the crime, it's the cover-up." "First, do no harm." These familiar sayings all carry the germ of the same simple but true idea: when you're in a jam, it's easy to make it worse, so try not to.
Plano, Texas attorney Carl David Ceder ought to familiarize himself with that rule.
If you want to be a quasi-literate racist asshole, go right ahead. It's a free country. There are lots of quasi-literate racist assholes around and it's unlikely you will distinguish yourself. I trust the marketplace of ideas to assign appropriate social consequences to you and your business. I may or may not help distribute those social consequences depending on the degree to which you irritate me.
But when you start threatening to sue people for pointing out that you're a racist asshole, I feel that you are going out of your way to antagonize me. I feel that it's time to put on my cockroach-stomping boots.
You might have seen the coverage at Lowering the Bar or FindLaw or numerous other sites of a breathtakingly racist caricature in a purported law firm advertisement produced by a company called Definitive Television, the vehicle of one Jim DeBerry of DeBar Holdings Ltd. The advertisement features a man dressed up in an Asian-caricature costume using an Asian-caricature voice to recommend a law firm called McCutcheon & Hamner, PC in Alabama. The caricature is a character Definitive TV offers to its clients. Definitive TV is a little defensive about it right out of the gate:
IF YOU ARE ON A SENSITIVE WITCH HUNT OUR SUGGESTION IS TO FOCUS YOUR ATTENTION TO MURDERERS, DRUG DEALERS, CHILD MOLESTERS THAT LIVE NEAR BY YOU.
When Joe Patrice at Above the Law reported on this, two things happened. First, the law firm of McCutcheon & Hamner PC claimed that it had been "hacked" and that it did not approve the commercial. That may or may not be true. Second, Jim DeBerry wrote Above the Law and threatened to sue for suggesting that the advertisement is racist.
The threat is a masterful example of sub-literate drivel from a self-important tool who thinks he's learned law from ten minutes on Google, seven of which were spent looking at lolcats. There's the moronic "it's not racist under this dictionary definition I chose" rhetoric:
We object to the statements of racism, as we do not fit under the legal definition, which is, The belief that race accounts for differences in human character or ability that a particular race is superior to others. 2. Discrimination or prejudice based on race.
There's the bizarre use of commas, odd diction, and weird capitalization that suggest that Jim DeBerry just took a break from sending 419 scam emails:
Furthermore, upon your interview request, we have read MR. JOSEPH PATRICE article/blog
YOU MAY FIND IT ODD THAT I EMAIL YOU BUT I HAVE A BUSINESS PROPOSITION FOR YOU MR. JOSEPH PATRICE. I AM THE QUEEN OF ROMANIA.
Finally, there's the barely-coherent jibber-jabber threat:
We firmly believe MR. JOSEPH PATRICE statements of racism when done with intentional malice and to damage our name for gain of revenue and promotion on his article through your business. Mr. Patrice is not stupid or ignorant, by lacking intelligence or common sense. By all appearances, He is educated and he fully understood the reckless racist statement claims with intentional malice he chose to type and for yourself to distribute when he submitted for article creation in which you accepted. We are currently consulting with another party regarding how we should pursue action against the libel statements made by Mr. Patrice, through your company, and others.
I will accept a retraction and apology related to the racist claims made by MR. JOSEPH PATRICE published by your company.
Let's be clear: Jim DeBerry's legal threat is complete bullshit and shows that he's pig-ignorant in addition to a racist. When Above the Law or any other blog or individual looks at DeBery's douchey video and calls it racist, that's a classic statement of opinion absolutely protected by the First Amendment. Above the Law didn't claim that DeBerry's company produced a racist video based on a secret review of some undisclosed videotape. If that had been the case, DeBerry might argue that Above the Law was implying false undisclosed facts. Instead, Above the Law and other commentators are offering opinions based on a specific disclosed fact — the video. You might not share the opinion that the video is racist, or that it reflects racist attitudes by the people who produced it. That's your prerogative. But calling the video racist — and calling the classless untalented hacks who shat it out racists — is classic opinion. As I have explained before, such an opinion is protected by the First Amendment:
This is not a case of opinion premised on false unstated facts, as if someone said "based on what I overheard Donna Barstow say, she is a racist." Rather it's pure opinion based on disclosed facts — the very cartoons she complains they posted. (Note that this strengthens the fair use argument.) Partington v. Bugliosi, 56 F.3d 1147, 1156–1157 (9th Cir.1995) ("when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.") Such accusations of racism are routinely protected as opinion by the courts. See, for instance, Rambo v. Cohen, 587 N.E.2d 140, 149 (Ind.Ct.App.1992) (statement that plaintiff was “anti-Semitic” was protected opinion); Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir.1988) (Illinois law) (accusations of “racism”); Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 429–30 (E.D.Pa.2000) (granting judgment on the pleadings after concluding that the accusation of racism was an opinion); Martin v. Brock, No. 07C3154, 2007 WL 2122184, at *3 (N.D.Ill. July 19, 2007) (accusation of racism is nonactionable opinion in Illinois); Lennon v. Cuyahoga Cnty. Juvenile Ct., No. 86651, 2006 WL 1428920, at * 6 (Ohio Ct.App. May 25, 2006) (concluding that in the specific context of the accusation, calling a co-worker racist was nonactionable opinion); Puccia v. Edwards, No. 98–00065, 1999 WL 513895, at *3–4 (Mass.Super.Ct. Apr. 28, 1999) (concluding accusations of racism are nonactionable opinion); Covino v. Hagemann, 165 Misc.2d 465, 627 N.Y.S.2d 894, 895–96 (N.Y.Sup.Ct.1995) (concluding statement that plaintiff had “racially sensitive attitude” is not actionable). By contrast, cases finding that accusations of racism were actionable defamation usually involved implication of false facts. See, for instance, Overhill Farms v. Lopez, 190 Cal.App.4th 1248 (2010) (accusation that business fired workers for racial reasons was a statement of fact distinguishable from a mere opinion that farm owners were racist). And those are just the cases I found in about five minutes whilst distracted by yelling at an associate.
Similarly, if I said "I've reviewed his personal papers and Jim DeBerry is illiterate," that might be defamatory, because I'm implying potentially false facts. But that's not what I'm saying. I'm saying that Jim DeBerry's idiotic legal threat, which I've linked, shows that he's less literate than the average penis-enlargement spammer — in addition to being a racist douchebag. That's opinion based on disclosed facts and therefore absolutely protected.
Before closing comments on the YouTube video, someone (consider the diction and grammar, and guess who) from Definitive TV wrote this:
We are respect your 1st amendment right and your freedom of opinion and speech on our comment board and will approve your comments. Due to the overwhelming feedback (50% positive and 50% negative) and at the request of McCutheon & Hamner at Law we have elected to disable the comment thread. We may open the comment section back up soon when we can reply.
Of course, this is wrong. YouTube is private and Definitive TV is private and nobody has a First Amendment right to post comments there if YouTube and Definitive TV don't want them to. But Definitive TV's mention of the First Amendment here is more than a little erratic, given their bogus legal threat to Above the Law. Maybe being a racist douchebag all the time is mentally taxing.
So: don't let the stupid threats of the Jim DeBerrys of the world chill you. Instead, call them out.
And I propose, to commemorate Mr. DeBerry's idiocy forever, that we make "We are respect your 1st amendment right!" a catchphrase for dealing with such censorious thugs.
Remember Donna Barstow? She's the cartoonist with a history of bogus legal threats who got into an ill-considered internet fight with the forum goons of Something Awful when they posted some her cartoons in a thread that criticizes awful cartooning. I wrote about her in July 2012, which resulted in a truly surreal phone call from her. I also wrote about her odd follow-up rant in which she suggested that copyright is a federal crime. Apparently she actually meant that copyright violation is a federal crime. I think.
Anyway, this morning (that is, nearly 17 months after I wrote about her) I got an email from Google indicating that she had complained that my post contained private information:
We're writing from Google.com to bring the following page to your attention:
A Whois search indicated that you're the host for this page.
A concerned user contacted us to report that handwritten signature is published on this page. We hope that you'll assist this individual in restricting access to this private information by removing the page from the web. If it's changed to return a true 404 error via the http headers, please let us know and we'll also remove the listing from the Google index.
We appreciate your assistance. Should you have any questions, please don't hesitate to contact us.
The Google Team
On 11/18/13 15:54:25 email@example.com wrote:
your_name: D. Barstow
hidden_subject_signature: Your personal information removal request for a
As far as I can tell, Ms. Barstow has used a Google tool asking Google to remove my post about her from Google's search results. Her premise is that I published "private information" about her — to wit, her "handwritten signature."
There's only one place Ms. Barstow's signature appears in my post about her — it's in her cartoon about Mexico, which I put in the post to comment upon it, criticize it, and report on ongoing allegations that some of her cartoons are racist or otherwise obnoxious. It's the signature that she displays to the world in all of the cartoons she publishes. It's "private" in the sense that you can't see it unless you look at one of her cartoons on her web site or published elsewhere by her.
I've written back to Google. I presume they won't fall for what I can only characterize as a dishonest — and even fraudulent — attempt to de-list criticism.
I've written Ms. Barstow seeking comment. I'll update this post if I get a reply.
In 1987, the Beastie Boys wrote this:
Girls – to do the dishes
Girls – to clean up my room
Girls – to do the laundry
Girls – and in the bathroom
Girls, that's all I really want is girls
Two at a time I want girls
With new wave hairdos I want girls
I ought to whip out my girls, girls, girls, girls, girls!
That's a rare instance where a reference to new wave hairdos isn't the most embarrassing part of the lyric.
A company called Goldieblox, which sells toys designed to get girls designing and building rather than princessing and preparing to be drunkenly pawed by oafs, did a parody cover as part of an advertisement:
Girls to build the spaceship,
Girls to code the new app,
Girls to grow up knowing
That they can engineer that.
Girls. That’s all we really need is
Girls.To bring us up to speed it’s
Girls.Our opportunity is
Girls.Don’t underestimate Girls.
Compare the videos here.
Goldieblox claimed that the Beastie Boys cried copyright infringement and threatened action. So Goldieblox sized the initiative and sued for declaratory relief, seeking a declaration of non-infringement in federal court in San Francisco. Seizing the initiative like that is often an effective tactic. Goldieblox isn't playing around; they are represented by giganto-firm Orrick.
The Beastie Boys are playing wounded innocence:
Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad.
We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.
As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.
When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.
Awwww. The Beastie Boys may be using this as a continuation of the "sorry for being douchebags" tour. Goldieblox may be using it for very clever pre-Black-Friday self-promotion. But the core issue is interesting.
The song is clearly a gleeful parody of the Beastie Boys' lyrics, which display typical and banal sexism. If someone did it to promote a nonprofit, or for art, or for fun, it would rather clearly be protected as fair use. It only uses part of the song, it transforms the song through parody, and it doesn't interfere with the market for the song. But this is a commercial use. Does that one factor outweigh the others? Not necessarily. In 1994, addressing 2 Live Crew's song "Pretty Woman" (a parody of Roy Orbison's song), the Supreme Court held that commercial vs. noncommercial use is just one of the fair use factors, and is not necessarily determinative.
It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of "Oh, Pretty Woman" rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one.
Instead, the case may involve detailed inquiry into how much GoldieBlox's version departed from the Beastie Boys' version:
This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free. In parody, as in news reporting, see Harper & Row, supra, context is everything, and the question of fairness asks what else the parodist did besides go to the heart of the original. It is significant that 2 Live Crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics for its own ends. 2 Live Crew not only copied the bass riffand repeated it, [n.19] but also produced otherwise distinctive sounds, interposing "scraper" noise, overlaying the music with solos in different keys, and altering the drum beat. See 754 F. Supp., at 1155. This is not a case, then, where "a substantial portion" of the parody itself is composed of a "verbatim" copying of the original. It is not, that is, a case where the parody is so insubstantial, as compared to the copying, that the third factor must be resolved as a matter of law against the parodists.
This will be a thoroughly entertaining fair use case to watch — if the Beastie Boys don't decide to find a graceful exit first.
Updated to add: GoldieBlox has taken down the parody ad, apologized (allegedly because they didn't realize that the late Adam Yauch had asked that Beastie Boys songs never be used to advertised), and said they will dismiss the lawsuit if the Beastie Boys agree not to sue. This doesn't determine the fair use question, but it does suggest to me that either (1) GoldieBlox and its lawyers never thought this through, or (2) it was all a publicity scam from the start. The fair use analysis aside, I think the Beastie Boys come out looking better in this dispute.
A college campus is a perfect place for more speech leading to social consequences. Lorenzo Garcia of the University of Texas-Austin Young Conservatives of Texas learned that quickly when he and his organization promoted a "catch an illegal immigrant" event at UT-Austin:
The "game" goes like this. On Wednesday, volunteers will walk around the UT campus with tags that say "illegal immigrant." If a UT student catches one of the bozos, they can bring them back for a $25 gift card.
Mr. Garcia, in common with people do do such things, says he's just trying to get a discussion started:
Lorenzo Garcia, chairman of UT's YCT chapter, said Wednesday's event is not intended to instill anger or promote prejudice, but instead to educate college students about a serious issue.
It's intended to “spark a campus-wide discussion about the issue of illegal immigration and how if affects our everyday lives,” he said in a statement.
Mr. Garcia did start a discussion, though perhaps not the one he wanted. He and the Young Conservatives of Texas were subjected to widespread condemnation and ridicule both locally and nationally. Politicians — including conservative politicians — distanced themselves. Garcia thinks people are just mean:
He nonetheless took issue with the backlash he received on Monday and said he hoped the controversy would stir debate on the issue of immigration.
"I have been called an 'Uncle Tom.' I have received emails and comments via social media filled with obscenity," Garcia said in the statement. "The reactions of some who claim that YCT is creating a demeaning or degrading environment on campus have been truly disgraceful."
If the matter had stopped there, it would be a free speech success story: group engages in speech that others find offensive, others exercise their right to response speech, marketplace of ideas distributes social consequences for free expression.
But it didn't stop there. As the FIRE points out, threats of official censorship played a role.
It's completely fine for the administration of UT-Austin to say that Garcia and the YCT are being assholes and that UT-Austin doesn't share their views. As I've argued before that's the right way for a university to respond. But the UT-Austin administration both condemned the speech and ominously suggested that the speech violated the university's honor code, which can trigger discipline up to and including expulsion. As The FIRE points out, that's a threat of official retaliation against protected speech:
UT-Austin had no business making thinly-veiled (arguably, not veiled at all) threats against students planning to engage in political theater. Such threats have detrimental effects on the community’s willingness to debate, curtail the free exchange of ideas on campus, and seriously risk chilling protected speech.
In a statement, Garcia partially blamed a statement issued by UT President Bill Powers and Vice President of Diversity and Community Engagement Dr. Gregory Vincent for the cancellation. Garcia said, "I spoke with our chapter's members, and they are both concerned that the university will retaliate against them, and that the protest against the event could create a safety issue for our volunteers."
As the FIRE also points out, the reaction of some students is deeply disappointing. Some are demanding that UT-Austin revoke recognition of YCT for its speech:
While we, the undersigned, acknowledge and respect the university's role in allowing a diverse range of political organizations and demonstrations under the banner of "free speech", the University has an obligation to its students to roundly denounce harmful, alienating narratives and, in doing so, make the University a safe environment to historically oppressed groups. The YCT have routinely hidden behind the University's adherence to "free speech" as a means of attacking, intimidating, and degrading non-white students on campus. They have a documented history of attacking specific racial groups, playing on xenophobic hysteria, and being, as Faulkner said, "inhumane". Therefor, we formally request that the Dean of Students revoke the YCT's status as an officially registered student organization. Should the university fail revoke the YCT's status as an officially registered student organization, it will be making the implicit claim that not only are outlandishly racist events ignored by the tower, but that all students of color are fair targets for future "hunts".
I find Lorenzo Garcia and the YCT to be mundanely douchey. But their belabored trolling can be effectively addressed by the marketplace of ideas. Their proposed game has led to internet-infamy, an outpouring of support for the people they targeted, and a surge in discussion of political ideas opposed to them, and will probably impact their social interactions on campus for the foreseeable future. Speech has consequences.
But the sentiments of the students who want to invoke the power of the state to censor Garcia and the YCT are disturbing. Imagine a nation of voters and leaders like that — people who think that free expression is something to be put in scare quotes, who think that upsetting speech should be addressed by government mechanisms, who think that the purpose of the state is to make people feel good about themselves by stifling ugliness and stopping people from being "inhumane."
Lorenzo Garcia, YCT, and their ilk are losing. The response to their speech shows it. I'm not afraid of them. But I'm afraid of the America imagined by the anti-YCT petitioners. What powers will state administrators in that America crave, and what powers will those students — trained to think that they are entitled to be free of offense or upset — give them?
As I mentioned in my post earlier today about the demon-haunted world of Gordon Klingenshmitt, people who want to write about controversial subjects online face a persistent problem: dishonest, thin-skinned, censorious people who are willing to abuse the Digital Millennium Copyright Act – or DMCA — to force hosts and writing platforms to take down content they don't like. We've seen it happen with a glassy-tongued poet and an over-sensitive lighting company that doesn't like negative reviews and even Ecuador, and we've even been the subject of a bogus DMCA demand ourselves filed by a wire-fraudster extortionist.
The DMCA does have a provision allowing a cause of action for bogus takedown demands, under Section 512(f):
(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Unfortunately, courts have been interpreting Section 512(f) narrowly to apply only to false statements of ownership of the copyright, as opposed to false statements that the targeted material is infringing. In other words, courts have often refused to use this section to impose consequences on censorious liars or fools who claim copyright infringement when faced with parody, satire, criticism, and other stuff clearly protected by fair use and the First Amendment. The Ninth Circuit, for instance, requires plaintiff citing this section to show that the DMCA takedown was subjectively, knowingly false — even if the person sending the takedown was objectively unreasonable and even if they didn't conduct a reasonable investigation. The music and movie industries would like to go further — they want to argue that the only thing you need to be truthful about in a DMCA takedown demand is your ownership of the copyrighted work, not the infringing nature of the target. The music and movie industry like that rule because (1) they don't want to spend money to hire competent or honest people to write DMCA demands for them, and (2) they are perfectly happy to deter satire, criticism, parody, reviews, and discussions if it makes it easier for them to fight the Great War on Piracy. That's why when the MPAA or RIAA complains their industries are dying, I'm tempted to ask how soon I can piss on the grave.
But even under the entertainment-industry-castrated version of Section 512(f), there are still opportunities to stomp censors. Today WordPress announced that it has filed federal lawsuits against two abusers of the DMCA. One defendant is none other than Nick Steiner, the head twerp of StraightPride, which resorted to a bogus DMCA complaint to make a false claim of copyright as to an interview to which it consented. The other defendant filed false DMCA demands against our friends at Retraction Watch, which has been subjected to numerous threats before. The Retraction Watch DMCA abuse was on behalf of the fake-Rhodes-scholar Anil Potti, previous subject of Patrick's wrath.
These suits fit into even the narrowed interpretation of Section 512(f) because both involve not just false statements about whether the targeted items are infringing, but false statements about the existence or ownership of the copyright in the first instance.
These will be lawsuits to watch. Mike Masnick, who has done good work on 512(f) issues, is on the case and his coverage will be worth watching. The Technology & Marketing Law Blog is another great source for Section 512(f) analysis.
By popular demand — which is a polite way of saying yes, I heard about this, for the love of God stop sending me emails about it — it's time to talk about KlearGear, an online company that sells "desk toys" and gadgets and tchotchkes and such. Tim Cushing at Techdirt has the story.
KlearGear is not having a good week in the social media. That's because KlearGear attempted to enforce a jaw-droppingly repulsive and unethical fine-print-condition-of-sale to retaliate against a customer who complained about bad service.
In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.
Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.
The link to that language is from a web archive, because KlearGear has now sent it to the memory hole upon public scrutiny. Tim Cushing at Techdirt points out that, according to the Internet Archive, the clause didn't even exist when Jen Palmer clicked "yes" and bought her bauble from KlearGear. That suggests that KlearGear made a demand for money to Jen Palmer based on a contract she never signed. There's a word for that: fraud.
Could Jen Palmer defend a lawsuit on the basis that KlearGear can't prove that she agreed to the non-disparagement clause, because it wasn't on the site when she clicked "yes"? Yes she could. Could she also defend a lawsuit based on a variety of doctrines and defenses available when companies attempt to enforce bizarre hidden clauses in form contracts — sometimes called "contracts of adhesion" — against consumers? Yes. But a lawsuit isn't at the heart of KlearGear's despicable tactic. Ruining the credit of its critics is:
The clause goes on to say if a consumer violates the contract they will have 72 hours to remove your post or face a $3500 fine. If that fine is not paid, the delinquency will be reported to the nation's credit bureaus.
Once again — if KlearGear asserts falsely that someone accepted a contractual term, and asserts a debt based on that false statement, and reports that debt to credit agencies, that's fraud. It's not just a civil wrong, it's a crime.
I tried to get a comment from KlearGear. I tweeted their Twitter account. I left a message on their Facebook page. I repeatedly called "Rob Key," their "Media Relations" person, at the number they provided; it was constantly busy over two days. I called the main number on their website; the recording always says that a customer representative is unavailable on this time and to check the website. It's almost as if Jen Palmer's online criticism — that it's impossible to talk to a live person at KlearGear — is true.
KlearGear's non-disparagement clause is probably an effort to salvage a reputation hammed by bad results like an "F" grade from the Better Business Bureau in 2010, earned through shitty service.
Kleargear.com claims to offer products to "make your home and desk more fun with our desk toys, cool gadgets, stress relievers, games, cube decor, geek toys, and unique computer accessories." However, consumers across the country tell BBB that dealing with this company is anything but fun. BBB has issued an F rating to San Antonio-based Kleargear.com for failing to respond to consumer complaints. Click here to view the company’s current BBB Reliability Report™.
Consumer disputes received by BBB allege Kleargear.com does not deliver products purchased online in a timely manner and, in some cases, fails to deliver any product at all. Consumers further allege that attempts to contact the company go unanswered. In the past three years, 95 of the 123 disputes forwarded by BBB staff to Kleargear.com have gone unanswered, though some consumers later notified BBB they did eventually receive their products.
KlearGear's BBB rating has since improved. However, the Western Michigan Better Business Bureau reported in 2012 that KlearGear was falsely displaying a positive BBB rating on its web site:
As of November 28, 2012, the BBB became aware that the company's website is displaying a BBB Accredited Business logo and BBB Rating A+; however, the comapny is not a BBB accredited business and the BBB rating is not A+.
The BBB contacted the company regarding these issues and this matter is pending the company's response.
As of November 28, 2012, the BBB discovered that some pages of the company's website display the BBB Accredited Business Logo and state "BBB Rating A+", when neither is true.
The BBB contacted the company at the Michigan mail drop address instructing the company to immediately remove the incorrect BBB logo and reference from their site.
This matter is currently pending.
Companies, through the people who run them, can make errors of judgment. They can correct those errors, and consumers can make rational decisions that the company is again worthy of their business.
This is not such a situation.
KlearGear has begun to reap what it has sown. Techdirt, Simple Justice, Consumerist, and more sites have written about it. KlearGear deserves to fail as a business based on this conduct, and hopefully will. But that's not enough. Somebody needs to use public records to identify the owners and decision-makers behind KlearGear who countenanced this conduct, and any lawyers who participated in the threats to consumers. Their identity should be published, and they should suffer social consequences. Their communities, and their future potential employers or customers, should see them for what they are: scum.
Do you think KlearGear should suffer consequences for its actions? You can help by spreading the story.
Edited to add: In this life, you take your fun where you find it:
There are few things more delightful to me than capable pro bono counsel putting a censorious bully in its place. The firm Martin & Associates of Vermont has delighted me today.
Our story begins back in June. As Mike Masnick at TechDirt reported, the American Banker's Association and its law firm, Covington & Burling, threatened a blogger named Greg Thatcher, who had compiled an online list of routing numbers for banks. Those numbers are publicly available on the Federal Reserve's web site. The ABA says it created routing numbers and doing so took "creativity" and Greg's infringing their copyright. This argument is like the Post Office suing you for posting a list of zip codes.
In stepped Andrew Delaney of Martin & Associates. Representing Greg Thatcher pro bono, Delaney sent one of the very best responses to a bogus and censorious threat I have ever seen, folding together wit, whimsy, forceful legal arguments, and cheerful abuse of footnotes. It received wide and justifiable praise. Go read it. This is my favorite part:
If you do feel it's necessary to sue our client, we are open Monday through Friday from 8:00 A.M. to 6:00 P.M. and We have lollipops for people who serve process. So if you do file a complaint and send someone over with a summons, please have them wear something with a bit of purple . . . we all like purple. We eagerly await your reply.
I write today with two delightful updates. First, Martin & Associates waited for some time for a reply. One must wait when dealing with a large and venerable firm like Covington & Burling, the sort of place where the stick up their ass has a stick up its ass. Eventually curiosity quite overcame the better angels of Andrew Delaney's nature and he sent this letter to the ABA's attorney Nigel Howard:
It has been just over two months since we last wrote. We expected a response but none has been forthcoming. We have therefore advised Mr. Thatcher to reestablish the routing-numbers section of his website. As a courtesy, we wanted to let you know.
We have not received any response or counter analysis, and we cannot conceive of any reasonable explanation why these identifYing numbers might fall within copyright protection's purview. If you have such an explanation, feel free to share.
If you're ever in Vermont, please stop in so we can chat. Lunch is on us.
This is a very polite lawyerly way of telling someone they are full of shit.
Today, Mr. Howard finally responded to Mr. Delaney's letter. Did he respond to Mr. Delaney's copyright arguments or meet the challenge to support his position? He did not. This was the sum total of his argument about the ABA's copyright:
As I've mentioned before, this is known as the Canadian Girlfriend school of legal argumentation.
Mr. Howard goes on to concern troll a bit:
In addition to infringing the ABA's copyright, Mr. Thatcher's actions may put the public at risk. We have found instances where unauthorized sites are disseminating inaccurate information.
Mr. Howard does not cite any inaccurate information on Mr. Thatcher's site. He simply says that there is inaccurate information out there, and that's bad, and mumble mumble [trails off awkwardly].
Even the data in the FedWire and FedACH files that are currently available from the Federal Reserve website are not entirely up to date.
If you're keeping score at home, the ABA just admitted that the data on the Federal Reserve's website may not be accurate, and they are responding by . . . hiring Covington & Burling to pester a blogger.
Mr. Howard also accuses Thatcher of misusing information from the Federal Reserve to populate his website:
The Federal Reserve website states that the information may not be sold, re-licensed or otherwise used for commercial gain. Your client is using the ABA Routing Numbers for his own commercial gain, namely to generate advertising revenues, in violation of this restriction.
Now, Mr. Howard doesn't say that he's representing the Federal Reserve now in addition to the ABA, so I'm sure he's just saying that to be helpful.
Mr. Howard concludes:
The ABA is committed to providing only the most accurate information possible on Routing Numbers and is continuing to take steps to address this problem.
That's the sound of a bully slinking away.
Kudos to Andrew Delaney and Martin & Associates.