Friday, January 13, 2012

Defending a Fearful Magic

I suppose that writers should, in a way, feel flattered by the censorship laws. They show a primitive fear and dread at the fearful magic of print.
I've been debating with myself whether or not to write this post. In fact, it's taken me a very long time to put my thoughts down, and I've even held this post back even after I finished it. You see, a recent post of mine was received somewhat, shall we say, unfavorably by someone. I had put down my thoughts on some general rules to follow when writing things on the internet, whether it's in a blog, comments on a newspaper article, Facebook, what have you. As some illustrative examples of what not to do, I included some screen shots of this individual's tweets and other comments, but never actually used the person's name in my own composition, though she did identify herself in the comments, later on. In fact, she left her comments only minutes after sending me an e-mail.

I had tried to inject some humor into the post as a means of keeping the issue light while still providing an educational point. But, as anyone who has done extensive writing or reading in the skeptical community, you can probably see where this is going.

The individual whose actions were at the heart of my post was apparently less than amused. In the wee hours of the morning of December 19, she sent me an e-mail with several claims and demands. After a salutation (IN ALL CAPS!), her very first demand was the complete removal of my post. Not just part of it, not just corrections. She wanted the whole thing nixed. Much like she presumably sent her comment on an LA Times article down the memory hole, she wanted to do the same thing with my bit of prose. Not only that, but I was to remove all announcements and links to the post everywhere on the internet, as if I somehow had control over what other individuals chose to do with their web sites. If I did not comply, I was to, in her words:
FACE CRIMINAL AND CIVIL LEGAL ACTIONS [sic]
Her primary claims as to why I should pull the post were: copyright violations, trademark violations, cyberstalking, violation of her right of publicity, and defamation. Some of these claims we've heard before, most recently in the uproar over the Burzynski Clinic and the actions of one Marc Stephens in attempting to bully bloggers like Rhys Morgan and Andy Lewis into silence with similar legal threats. In fact, on the internet, one of the quickest response to any substantive criticism seems to be threatening the critic with a defamation suit.

At any rate, what finally convinced me to write up this post is that my experience could serve as a good educational example for would-be plaintiffs (i.e., another "what not to do" list) and defendants. So let's take a look at the specific claims made in the e-mail I received, whether there is validity to the claims and how to respond. Before we proceed, however, I want to make clear a few things. 1) I am not a lawyer. I do not present myself as a lawyer, and nothing I write here should be construed as legal advice. If you want legal advice, find a lawyer. 2) I emphatically do not condone anyone addressing this individual directly through e-mails, phone calls or any other means for the purposes of harassment. Public comments are welcome, but I ask my readers not to post any threatening comments toward this person. The point of this post is to discuss the legal issues raised in the e-mail.

Now that we have all that clear, let's move on.

Copyright Violations

Intellectual property is a rather fascinating area of law and one which touches on anyone who posts anything to the internet. Any physical thing that someone else creates is their property, whether it is a photograph, digital image or audio file, as well as anything they write. There are both legal and illegal uses of other people's property, and how they share the information can play a role in the determination of what is and is not acceptable use of their materials.

What were the allegations regarding my post?
First, you are violating my Copyright by publishing photos of me that belong to only me.

Second, you are violating my copyright - by publishing any words actually by me.
I did, indeed, publish words that she wrote, as well as her photo, which, at the time of my post, she used as her public Twitter avatar and Facebook profile photo. Was my doing so a violation of her copyrights? For that, we need to look at the copyright laws. If we do, we see that there are certain situations in which a person may reproduce another's work without prior permission, also known as "fair use". Fair use covers purposes such as "criticism, comment, news reporting, teaching, scholarship, and research" (17 USC 107 [PDF]). This section includes four factors to determine whether or not someone's use constitutes fair use or is an infringement of copyright:
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
My original post was for commentary or criticism, rather than for any commercial gain or promotion of myself or anything associated with me. The screen shots depicted public comments, visible to anyone who cared to look for them at no cost. While I could have shown every single thing this individual wrote (e.g., all 100+ tweets sent from her Twitter account to Liz Ditz's Twitter followers accusing her of stalking and harassment), I only used enough to illustrate the points that I was making, and my use of the screen shots doesn't have an effect on the value of her words, since they were already freely available to one and all.

As far as her accusations of copyright violation go, from my perspective and understanding of what the above-cited U.S. law states, while it may have been polite of me to get her permission first, I was fully within my rights to excerpt her writing to illustrate the points that I made.

And a final point. Notice that she said "any words actually by me". She did not specify which words were hers. Indeed, in several tweets to various individuals, she gave the impression that Liz wrote the LA Times comment and put this woman's name and picture on it. Given this assertion, it would have been helpful for her to tell me exactly which words were hers so that, if I had actually been in violation of copyright law, I could have removed the specific text which was at issue. Therefore, if you are going to accuse someone of violating copyright, specify the exact text which was wrongfully copied.

Trademark Violations

Where copyright applies to larger works, trademarks apply to words, phrases or symbols. They are meant to distinguish one manufacturer and/or their products from another. Trademarks could be unrelated (in a logical sense) to the underlying product (e.g., the Nike "swoosh" mark has no logical connection, in and of itself, to athletic shoes), or they could be descriptive of the product (e.g., "Pearl Vision" describes eyesight-related services or products). The mark could have a secondary meaning, as well, one that describes a specific product (e.g., "Pearl Vision" is a particular vision care business, distinct from, say, "Vision Center").

Here is the accusation regarding my post:
Third, you are violating my trademark by using my name which is trademarked by me to describe the unique legal services I provide.
Frankly, I'm rather curious how her friends and family refer to her. Do they need to get her permission every time they say or write her name? At any rate, referring back to what I said earlier, we're dealing with a couple different meanings. On the one hand, her name refers to her as an individual, just as my name is associated with me and yours describes you. On the other, according to her trademark claim, her name has a secondary meaning that is specifically associated with her legal services.

It seems rather clear to me that I was referring to her as a person, not to her business or the services she provides as a lawyer. In fact, I only used her name in the screen shots themselves, which showed her personal comments, rather than any particular legal services she was providing to others. That said, even if I had used her name to describe the particular services she provides, I would still, to my understanding, be able to use her name to talk about her or her services, much like I would be able to talk about my dining experiences at McDonald's without running afoul of infringing on their trademark.

Out of curiosity, though, I paid a visit to the U.S. Patent and Trademark Office to verify whether she had actually registered her name as a trademark. Using their Trademark Electronic Search System and her last name as a search term in any field, I was unable to locate any pending or registered trademarks for her. Go figure.

In the end, given my lay understanding of how trademarks work, just like with the copyright accusations, her allegations that I infringed on her trademark appear to have no merit. So what's next?

Cyberstalking

Here's what she told me in the e-mail:
Fifth, you are participating in the crime of Cyberstalking, which under the Penal Code is a felony. I will pursue this as far as needs be and I am adding your blog to the list being given to the FBI. If you persist with keeping this blog up, you are knowingly engaging in cyberstalking because I am informing you to remove it.
Quite an accusation, this one. I admit, I was taken aback at being seriously accused of this. She threw it about a lot (and, in my opinion, recklessly and erroneously) in regard to Liz, so it isn't really a surprise that she would accuse me of the same thing. Still, it was very unexpected. Stalking is a scary thing, which can often turn into something far worse than simply being a nuisance to a person. It can frequently elevate to physical harm. At any rate, I felt I needed to find out just what the penal code of California stated, with regard to stalking. I was fairly certain I had done nothing that could be construed as stalking, but better safe than sorry.

Here's how California Penal Code 646.9 defines the matter:
Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.
Let's see, I did not repeatedly follow or harass her, seeing as I had no contact with her other than my one post, which was not even addressed to her. No e-mails sent to her. No phone calls. No comments posted on her web site or Facebook page. No tweets directed to her. Nada. In my post, I made no threats against her or her family, and, as I stated above, I do not condone others doing anything of this nature. Seems to me that her cyberstalking claim is baseless.

If you do feel that someone is stalking or harassing you, contact your local authorities or a lawyer, accurately explain the actions you feel meet the definition of stalking or harassment and get their advice on what to do next. This is a very serious allegation, so do not fling it about simply because you're offended by something someone wrote. Make sure that what the person is doing really is stalking/harassment, since making this accusation without just cause can create a lot of problems for all involved, and going so far as to file a claim against the person when they are not actually doing so is a waste of law enforcement resources.

Right of Publicity Violations

This is something that I did not know much about until recently, when I was looking into whether or not to have my Quacktion Figures™ manufactured. It was fortunate that the issue came up prior to this e-mailed legal threat. Not only did I recognize the phrase and claim, but I actually had at least a modicum of knowledge about it. As my interlocutor writes:
SEVENTH, YOU ARE [sic] violating my right of publicity in using my name and likeness.
The right of publicity basically prevents the unauthorized use of a person's likeness for commercial purposes. Not all states have actually codified this right, but California has, in Civil Code 2233:
Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.
Here's the problem with her claim: there was no commercial aspect to my post. I was not advertising or selling anything, nor was I soliciting purchases of anything. The use of her image and name in the screen shots was incidental to the post.

If someone is using your likeness without your permission, and you think that they are violating your right to publicity, examine just how they are using your likeness first. Are they actually using your image to promote a product or service? Or are they simply offering commentary, to which your image is either tangential or used only for illustrative purposes?

Defamation

And so we come to the last of her claims:
AND LASTLY [sic], you are intentionally defaming me.
This is probably the most common allegation levied against skeptical bloggers. Those who find themselves the object of criticism, particularly when they are unable to adequately defend their statements based on facts and logic, seem to readily resort to this tactic. James Randi, Stephen Barrett, Simon Singh, Paul Offit and others have all been targets of such attacks, and there are many, many more writers who have pulled their posts in the face of such threats simply because of the costs associated with defending a legal case, even one which has no merit. Sometimes the pressure to cease writing on one's own time can even come from an employer as a result of threats of a defamation suit.

Each state has their own definition of what constitutes defamation (libel is written defamation, slander is the spoken form), but they generally include the same elements:
  1. publication of a statement of fact
  2. that is false,
  3. unprivileged,
  4. has a natural tendency to injure or which causes "special damage," and
  5. the defendant's fault in publishing the statement amounted to at least negligence.
The best means for a blogger to avoid libeling someone is to stick to the truth where facts are concerned. For example, don't say that someone committed a crime unless they actually were found guilty of committing that crime. If someone claims that you are libeling them, should you choose to respond to them, Rhys Morgan's response to Marc Stephens is a great example of how to do so, asking his accuser to state the specific words that were defamatory and why. Working with the person in this way could help avoid the expense of hiring a lawyer and defending against a lawsuit. Of course, like Mr. Stephens, they could simply continue to demand the removal of the post completely, without specifying which specific statements were defamatory. That's a good clue that they are simply trying to bully you into silence.

If you think that someone is defaming you, run their words through the factors listed above. Are they making statements of fact or of opinion? If they are stating something as fact, is it false (e.g., they said you committed the crime of X when you did not)? Will their statement have a significant negative effect on your reputation, such that your business or social standing will suffer? Did they appear to make the statement willfully or without regard to the veracity/falsity of the statement? If so, it might be libel. Check with a lawyer. If you think that it is defamatory and your lawyer agrees, start by politely asking the individual to remove the defamatory text. And, as always, be specific! This may be enough to resolve the issue. If you can avoid taking things to court, so much the better. Legal battles are expensive and, if you are wrong about your claim, there's always the possibility that the other person will sue you back for their defense costs. Remember, comments that might be mean, hurt your feelings or paint you in a negative light do not necessarily constitute defamation. The best piece of advice here is, as with avoiding making a fool of yourself on the internet, think before you act.

Other Sundry Bits

Now, you may have noticed that there are some numbered claims/demands that I did not list in my quotes from the e-mail I received. That's mainly because the missing bits consisted of statements that had no relevance to any alleged wrongs. Number 4 stated that her comment was not on the LA Times web site, which is true. What she left out was that it was, at one time, on the LA Times site, as screen shots from multiple sources attest. Number 6 alleged that she was being cyberstalked by Liz Ditz and included a link to the site of a fellow who, it appears, made up a whole bunch of stuff. Number 8 was a statement that she helped set up a web site for a man with autism, as if that somehow exonerates her of the statements she made, much akin to the racist that says, "I'm not racist! I have a black friend!"

None of those things has any relevance to any perceived wrongs. If you're going to send legal threats to someone, stick to the things that actually relate to your claims. Extraneous stuff simply works against you, making you appear petty or whiny.

Then there was the closing statement (capitalization and punctuation as in the original):
I DEMAND THAT YOU IMMEDIATELY REMOVE THIS BLOG POST, ALL LINKS TO IT, ALL ANNOUNCEMENTS OF IT IN ANY LOCATION -- OR FACE CRIMINAL AND CIVIL LEGAL ACTIONS.

In Summary

The e-mail I received was full of accusations of various wrongful acts both criminal and civil, as well as threats that I would face legal action. Upon closer examination, none of the accusations seemed to hold any water. What's worse is that they were made by a lawyer. In my opinion (again, I don't know her or her history, so this is just my opinion), this either speaks to a sad lack of understanding of the relevant law, or suggests that knowing the law, this person felt she could attempt to bully me into silence. Either way, though I did not know anything about this person before this whole brouhaha developed, it did nothing to give me a favorable opinion of her as a person. She may be quite accomplished at representing her clients, but she did not make a very good impression with me in how she handles herself. Bottom line: if you're going to issue legal threats, make sure they would actually hold up in a court. Otherwise, you paint yourself as a bully or a fool or both.

Hopefully, my experience can give other bloggers some insight into what they may encounter if they comment on what someone says or does, as well as how they might go about responding. If someone accuses you of defamation or of violating their copyright or right of publicity, and you choose to respond, ask for specifics. Be polite and cooperative. Who knows, you may have actually crossed the line. Depending on the accuser, though, it may be best to simply ignore them. Or, you could seek actual legal advice of your own.

What Did I Do?

I asked some friends and other bloggers for advice on how to handle this e-mail. Some suggested I just ignore her. For myself, given the fact that she is a lawyer and actually brought out some claims that I hadn't really encountered before nor read about in other bloggers' accounts of legal threats, I decided to treat her e-mail seriously. I decided to go to lawyers that specialize in media, defamation and intellectual property issues. Perhaps I didn't need to, but I'm happy I did. A lawyer can help draft a response or advise whether you should take corrective actions on your posts. What's more, they may be able to reference court cases that establish a precedent applicable to your writings and which build on whatever laws you're accused of violating.

And a Final Brief Note for My Accuser

Lest you take offense at this post, please understand that my sole purpose in writing it was to hopefully help other bloggers out there who might find themselves the target of legal threats. I bear you no ill will. My personal advice to you is to simply let the whole thing slide into obscurity. Time, as they say, heals all wounds. But, if you feel you must comment, take the high road. Own up to your actions and simply admit that you may have been in error; you would garner far greater respect for doing so than you would by continuing down the path you started. Although I may not particularly respect you because of what you have done, I do nonetheless wish you the best in your endeavors.

To the rest of my readers, if you feel like commenting, I ask that you not comment about this person. My point in this post was not to vilify her nor to encourage others to do so. Please do not mention this person's name (barring her "outing" herself), insult her, threaten her in any way or discuss her. Of course, if my accuser chooses to comment on this post, my readers are welcome to respond, but I will ask that you keep things civil.

I feel that the topics raised in this post are important issues that face bloggers, especially those in the skeptical community, and deserve discussion. As such, I want to encourage lively commentary of these issues. Feel free to share your thoughts on how to approach these issues, best practices, personal experiences and so forth. If you have been on the other side of the coin, facing a post that was at least in your opinion defamatory, please share your comments, as well.

Addendum: Two more pieces of advice. If you are going to issue legal threats (whether valid or not), make sure you provide a current physical address (e.g., a P.O. Box that can actually receive mail) for any legal correspondence. Barring a physical address, accept PDFs of any correspondence as an attachment to an e-mail. If you have a Gmail account, don't claim you can't open attachments or files, since there's that little "View" link allowing you to safely view attachments like PDFs without actually downloading the file to your computer.

8 comments:

  1. Thanks for posting this. It's good to know that reasonable and carefully thought out reactions still win.

    Wait. Did I just write that? :-p

    ReplyDelete
  2. Trademarks don't need to be registered with the US Patent & Trademark Office (PTO) to carry weight. Mere use of a business or product name gives it trademark protection when someone comes along and tries to sell similar services with a similar name in the same market region (like southern California). The best ways to claim trademark protection are using the "TM" symbol when publishing a product/business name, or registering the mark with PTO, which allows you to use the circled R mark for a registered trademark. Registration also pushes trademark protection nation wide in your market segment.

    I agree that despite her fair claim of trademark attached to her services, it does not prevent your from stating facts and issuing opinions about public behavior which may diminish the value of a brand. Further abusive [threats of] legal action could also result in disbarrment.

    ReplyDelete
  3. @SpeckUp

    Yeah, I should have mentioned that point. Like copyright, you don't need to register it for it to be protected, but when it comes to holding it up in court, registration sure helps.

    ReplyDelete
  4. This would be the nasty piece of work who viciously libelled Liz on her own blog? The one whose 100+ tweets *I* Storyfied? Oddly enough, I've never had a peep out of her about that, in spite of my little compilation coming up on the front page of a search for her name.

    The blog post is till there. I think she's added to it to make it sound even nastier.

    ReplyDelete
  5. As I mentioned in my article, please keep comments to the legal issues raised and do not comment about the individual.

    Thanks.

    ReplyDelete
  6. Sorry, Todd, very tired. I thought she was accusing you of the Storyfication. Nevertheless, in the context I do find it odd she hasn't demanded I delete that compilation, and this inconsistency further weakens any case she might have against you. I don't need to be a lawyer to know that.

    Incidentally, I fail to see how you could possibly comply with her demand to remove all links to a blog post or any announcements to it when these have been made by third parties. Google's cache can take years to clear. Even if her claims were founded, which I do not think them to be in the slightest, it is difficult to see how you could do as she requires.

    Clearly, you must govern yourself accordingly!

    ReplyDelete
  7. Todd, maybe you should add an "I am not a lawyer" to the "I am not a doctor" and "I am not a scientist" disclaimers in the side-bar :-)

    I am curious how this all works out, and whether SOPA or PIPA would have any affect on such copyright infringement claims. Both acts are supposed to pertain to foreign (non-US) sites that host copyright-infringing material, but it isn't clear, at least to me, that they are actually restricted to foreign sites.

    ReplyDelete
  8. Thanks for posting this and the background work that went into it. The person's post falsely vilifying me by name is still live, but thankfully her Google juice is so weak it doesn't appear in searches on my name.

    ReplyDelete

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