Dear Angry Person: People Who Criticize You Likely Aren't Defaming You Or Infringing On Your Copyright

from the just-saying dept

What is it about people who can't take criticism and suddenly think that anyone criticizing them either (a) defames them or (b) infringes on their copyright? We see it over and over again. It almost makes you wonder if we can't spread a basic message that screaming about those two laws, when it's clear that you're actually just pissed off that someone is mocking you, is going to backfire badly. The latest case study on all of this: a political cartoonist I'd never heard of named Donna Barstow. The long-standing internet community Something Awful had a forum thread in which they were criticizing political cartoons which they felt were, well, something awful... and some of Barstow's one-panel cartoons showed up and were roundly criticized.

Barstow, apparently unfamiliar with the "sticks and stones" adage, decided to lash out at the Something Awful community, accusing them of copyright infringement and defamation. She did this mostly on Twitter, where she made accusations against Something Awful that were at least on par with the criticisms the community made about her cartoons. This set off a big back and forth, which BoingBoing covered in great detail, including her insistence that those posting her cartoons and commenting on them were "stealing" and that their arguments of fair use did not apply. Her reasoning doesn't make much sense. She just insists that fair use doesn't apply to Something Awful.
"You steal my cartoons (read definition of Fair Use - NOT on SA) and ignore my takedown & DMCA notices. That's evil," she wrote.

To bolster her case, Barstow evoked the Federal Trade Commission, the U.S. Copyright Office and the Digital Millenium Copyright Act, and cited today's story in the LA Times describing how Twitter gets 80 percent of requests for user information from U.S.-based police forces.
As it escalated from there, Barstow also claimed that the Something Awful forum "defamed my work," which got Ken from Popehat and Adam Steinbaugh (two of the best chroniclers of the Charles Carreon affair) to jump in and ask for what she meant. Ken recorded the details of the "conversation" (if you can call it that) in a few screenshots, reposted here:


By the way, her response to Ken's question... was to block him on Twitter. Classy.

Of course, none of that makes any sense. The fair use claim is pretty strong. It's so strong, in fact, that Donna Barstow has a history of taking one panel comics from other artists and posting them to her own site for the purpose of criticism. Here she is posting and commenting on a comic by Ted Rall.
Fair use for me, but not for thee... apparently.

Ken, as he is known to do, wrote a blog post in which he presented what the law actually says and why Barstow's claims of both infringement and defamation are totally bogus. Here's just a part of it, though I recommend reading the entire thing at the link above.
Similarly, if Barstow thinks that she can sue Something Awful and its goon squad for defamation for calling her a racist, she is similarly badly mistaken. First, Something Awful is completely immune for the comments of its forum visitors under Section 230 of the Communications Decency Act. Second, calling Barstow a racist based on her comics is classic pure opinion absolutely 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.
Now, most people might read that and think that, perhaps (just perhaps), Ken knows a thing or two about what he's talking about. Instead, Barstow apparently looked up his contact info and called him. Ken's summary of the call was appended to his post:
Thanks to someone on Twitter who pointed Ms. Barstow to my contact information, she just called me at my office. I would characterize the conversation as surreal. Among the things she said: (1) she saw that I didn't list copyright as an area of expertise, so how could I write about this, (2) she hadn't threatened to sue anyone, (3) she shouldn't have to put up with defamation, (4) how can I say bad things about her, (5) Obama created some sort of new copyright department but it was useless, (6) she was just trying to reach out to me person to person, and (7) she thought it was suspicious that I did not "sign" my post.
It certainly is true that no lawsuit has been filed here, but Something Awful does say that she sent them a note demanding they remove her "stolen works." Furthermore, regularly accusing them of "stealing" and of "defamation" certainly implies that she thinks she has a legal claim.

Either way, this seems like all too common a practice. Someone doesn't like being criticized (or mocked) online... and out comes the accusations of copyright infringement and defamation, even if they have no basis in reality. Yes, the copyright claims would need to be judges within the specific context of how the cartoons were used, but it does seem like there's a high likelihood of fair use, given the context. The defamation claims just seem silly. But, beyond all that, what seems clear is that Barstow isn't really concerned about infringement or defamation, but about the criticism of her work -- and resorted to using these two laws as a weapon to try to remove criticism.

This practice is not unique to Barstow, and it's why we end up covering so many cases of chilling effects that come about due to the misuse of both copyright and defamation threats. My general sense is that a lot of people don't understand either law very well, but recognize that both can be used to demand criticism be silenced. I'm not sure what the solution to all of this is, other than continuing to educate people how these interpretations of the law are wrong -- but also hoping they recognize how throwing around such accusations quite often leads to even further criticism and ridicule.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Josh in CharlotteNC (profile), Jul 9th, 2012 @ 8:13am

    Top 3

    Top 3 groups not to piss off on the internet:

    Anonymous
    4chan
    Something Awful

    Wading into Apple/Windows/Linux flamewars is like poking a bear with a stick. Pissing off these groups is like poking a mama polar bear with said stick while you are between her and her cubs.

     

    reply to this | link to this | view in thread ]

  2.  
    icon
    The eejit (profile), Jul 9th, 2012 @ 8:20am

    Re: Top 3

    Not quite: poking said communities is like putting out a campfire with napalm: a massive overreaction to a minor offense, if any even occurred.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    ken (profile), Jul 9th, 2012 @ 8:21am

    Criticizing Political Groups is now Racist?

    Targeting someones political group is now racist? I know many on the left like to define racist so broadly you can drive a Mack Truck through it but this is ridiculous.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward With A Unique Writing Style, Jul 9th, 2012 @ 8:33am

    Re: Top 3

    "Pissing off these groups is like poking a mama polar bear with said stick while you are between her and her cubs."

    Well, I know where I'll be getting my entertainment from soon enough. To think, I was almost worried all this leftover popcorn from the Carreon affair was going to go to waste.

    I can only imagine the response this is going to get, she strikes me as the Carreon type. I see this getting way worse (and hilarious) before she realizes she may have bitten off more than she can chew, and then asking the internet to leave her alone. I didn't feel bad for Carreon, but this lady... I feel some pity for her already.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Dave W (profile), Jul 9th, 2012 @ 8:33am

    She needs legal counsel

    She needs legal counsel and I recommend (for your reading pleasure): Charles Carreon.

    I'm sure they'll get along like a thread on fire.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 8:39am

    Re: Criticizing Political Groups is now Racist?

    Except Barstow doesn't just target someone's political group.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    hfbs (profile), Jul 9th, 2012 @ 8:42am

    "...would need to be judges within the specific..."

    judged*

    :)

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 8:46am

    I really hope she keeps on digging. This is going to be fun.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Jason, Jul 9th, 2012 @ 8:47am

    Her response is silly

    She's just Carreon on....

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 8:49am

    Is it wrong that I sort of hope this goes full on Carreon Effect? I need something to brighten my day at work.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    Nathan F (profile), Jul 9th, 2012 @ 8:55am

    Re: Criticizing Political Groups is now Racist?

    Wow.. so both the Republican and Democratic parties are racists! I already knew there were both filled with assholes, this just adds a whole new level to it.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    Nathan F (profile), Jul 9th, 2012 @ 8:56am

    Re: Her response is silly

    We need to get a "Bad pun" button :p

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    Berenerd (profile), Jul 9th, 2012 @ 9:04am

    Am I the only one?

    I find it funny that the conversation in the comments section of boingboing gets side tracked about talking about throwing rocks at bears....

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    That Anonymous Coward (profile), Jul 9th, 2012 @ 9:19am

    I love her bit of insanity...
    All of the obscene tweets I retweeted!!
    So it is no longer obscene if you repeat it, or you have special rights, if it is obscene your then just as guilty.

    I think its cute she makes snarky comments about people not having been to lawschool, because she is a self appointed expert who knows more than real lawyers.

    She obviously is just drawing cartoons to appeal to her target demographic, and what appeals seems to be racism and finding all of the ills of the world are caused by people they dislike.

    When she does it, it is a critique... when people do it to her its an attack. I find it amazing that what appears to be some of the most hateful people seem to have the thinnest skin.

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    jakerome (profile), Jul 9th, 2012 @ 9:20am

    Ricochet the surf dog...

    Has a massive following. That community has FREAKED OUT when discovering someone wrote a book including a story about Ricochet. You only need to get about 10 comments in to get the flavor.

    https://www.facebook.com/SurfDogRicochet/posts/318905054866395

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Travis, Jul 9th, 2012 @ 9:21am

    Gone

    How odd... Her site appears to be gone now.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    The Groove Tiger (profile), Jul 9th, 2012 @ 9:23am

    "D. Barstow @cartooness
    ... And are you actually suggesting that anyone in SA knows what parody is?"

    'Course not, ma'am! I wouldn't dare suggest that! Everyone knows SA is serious business! Look, I found there this poster for the "Gandhi vs Jason" movie that proves it...

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Donnicton, Jul 9th, 2012 @ 9:24am

    Re:

    Please tell me she has a husband who can compare SomethingAwful to Nazi Germany...

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 9:27am

    So, I'm thoroughly amused. I attempted to go to her site, and it's apparently blocked by my work web filter under the category "Illegal Activities".

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 9:31am

    Re: Re: Top 3

    She's already taken her Twitter feed private.

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    That Anonymous Coward (profile), Jul 9th, 2012 @ 9:39am

    Re: Gone

    it appears to have been folded and now there is one of them awesome parking webpages....

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 9:47am

    Re:

    I find it amazing that what appears to be some of the most hateful people seem to have the thinnest skin

    This should amaze you less and less the more hateful people you meet. Hate is a philsophy for those too afraid to look within for change. The louder, more self-certain and more vitriolic they are on the outside, the more hopeless and desperate on the inside.

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    Anonymous Coward of Esteemed Trolling (profile), Jul 9th, 2012 @ 9:48am

    she moves fast: Good for her.

    http://opedcartoons.com/2010/12/16/cartoons-on-murder-a-shark-and-an-octopus/
    gone !

    quickly went to cache.
    Got quick screencaps of the link mentioned, but its gone from google cache already. ( as I was looking at it)
    Screencap One
    Screencap two

    http://opedcartoons.com is also now gone.



    She tried an Inman and it didn't work.
    She shouldn't be calling people thieves for criticizing her work.
    But she doesn't deserve a world of hate for it.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 9:52am

    Re:

    I don't get it.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    Anonymous Coward of Esteemed Trolling (profile), Jul 9th, 2012 @ 9:57am

    Re: Re:

    the one on the left is her original comic.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 10:09am

    Re: Re: Re:

    That makes it worse, I don't get either one of them. haha.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    Anonymous Coward of Esteemed Trolling (profile), Jul 9th, 2012 @ 10:11am

    Re: Re: Re: Re:

    : )

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 10:16am

    Re:

    FTFY:
    She tried a Carreon and it didn't work.

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    Spaceman Spiff (profile), Jul 9th, 2012 @ 10:24am

    Just in case

    Just in case someone else hasn't also mentioned it (I haven't read all the comments), Barstow seems to be oblivious to the Streisand Effect, as well as to the fact that she is getting a very bad reputation on the net... So now we have the Carreon Effect, and soon the Barstow Effect. When will these maroons learn to let sleeping dogs lay?

     

    reply to this | link to this | view in thread ]

  30.  
    icon
    Anonymous Coward of Esteemed Trolling (profile), Jul 9th, 2012 @ 10:24am

    Re: Re: Re: Re:

    I don't really get it either. It was her cartoon that she found funny, so I just twisted it back at her.
    It doesn't mean I find it funny or unfunny. But "knowing" her humor (via her comic), she will find it unfunny.

    There was also the unrelated point of, is criticism by copying "theft".

     

    reply to this | link to this | view in thread ]

  31.  
    icon
    Anonymous Coward of Esteemed Trolling (profile), Jul 9th, 2012 @ 10:34am

    Re: Re:

    Calling a site that users upload images to "thieves" ?
    I think you will find Inman done that.

    Getting the law involved is all Carreon, he is a lawyer after all.
    "It certainly is true that no lawsuit has been filed here"

    no.... More of an Inman than a Carreon.

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    mattarse (profile), Jul 9th, 2012 @ 10:40am

    Re: Re: Top 3

    I'm personally just waiting for the next chapter in the blockbuster "The Carreon Effect". One of the most entertaining things I've seen this year, much better than "Prometheus".

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 10:40am

    Re: Gone

    She will probably claim that there was a DoS attack :D

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    fb39ca4 (profile), Jul 9th, 2012 @ 10:46am

    It's back

    Charles Carreon 2.0

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 10:49am

    Re: Re: Top 3

    It's like swatting a fly with an ICBM?

     

    reply to this | link to this | view in thread ]

  36.  
    icon
    The eejit (profile), Jul 9th, 2012 @ 10:57am

    Re: Re: Gone

    a Direct Operating System attack? O.o

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    Simple Mind (profile), Jul 9th, 2012 @ 11:01am

    Re: Re: Her response is silly

    All puns are bad.

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    Togashi (profile), Jul 9th, 2012 @ 11:10am

    Re:

    Of course she has special rights; she's a creator! They get protection. All those other peasants are the ones who have to watch what they say and know what they're talking about.

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 11:18am

    Re: Re: Re:

    "no.... More of an Inman than a Carreon."

    1) Only because she didn't know how to file a lawsuit.
    2) Inman used humor. From what I've seen of her work (which is getting hard to do as she takes her sites and feeds off th Net), she has the same sense of humor as Carreon...none.

     

    reply to this | link to this | view in thread ]

  40.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 11:20am

    Re: She needs legal counsel

    "She needs legal counsel and I recommend (for your reading pleasure): Charles Carreon."

    She needs psychiatric counsel.

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 11:21am

    Re: Re: Re: Gone

    I think he means "Denial Of Service"...which I thought only worked on shopping sites...

     

    reply to this | link to this | view in thread ]

  42.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 11:38am

    Re: Re: Re: Re: Re:

    "There was also the unrelated point of, is criticism by copying "theft"."

    How can criticism be "theft"?

     

    reply to this | link to this | view in thread ]

  43.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 11:44am

    Re: Top 3

    Or poking a mama polar bear with her cubs on a stick?

     

    reply to this | link to this | view in thread ]

  44.  
    icon
    Watchit (profile), Jul 9th, 2012 @ 11:48am

    Re: Re: Re: Re: Re: Re:

    exactly, that's what we're asking her

     

    reply to this | link to this | view in thread ]

  45.  
    icon
    Anonymous Coward of Esteemed Trolling (profile), Jul 9th, 2012 @ 12:03pm

    1)true
    2)true
    I agree 100%...

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 12:53pm

    Re: Re: Re: Re: Re:

    Ok, this I get. Thanks.

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 1:37pm

    Read the thread at Something Awful. You will get whats happening then. http://forums.somethingawful.com/showthread.php?threadid=3493770&userid=0&perpage=40&pag enumber=1

     

    reply to this | link to this | view in thread ]

  48.  
    icon
    apauld (profile), Jul 9th, 2012 @ 2:24pm

    Re: Gone

    she actually took herself down (her sites and twitter feed), on Saturday (IIRC), after it was pointed out to her that she was complaining about copyright theft for the same thing she was doing to others.

     

    reply to this | link to this | view in thread ]

  49.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 3:04pm

    (7) she thought it was suspicious that I did not "sign" my post

    I wonder if she's going to show up at SA? If she does, she'll get probated quick; I remember from when Jason Yungbluth got an account that signing your posts is frowned on there.

     

    reply to this | link to this | view in thread ]

  50.  
    icon
    CallmeFred (profile), Jul 9th, 2012 @ 3:17pm

    If she needs a lawyer, give her Charles, Esq's number.

    Fred

     

    reply to this | link to this | view in thread ]

  51.  
    icon
    Cory of PC (profile), Jul 9th, 2012 @ 6:12pm

    Re:

    I got "spam" as a filter block. Now I'm going to go make some. Maybe she'll enjoy some good spam...

     

    reply to this | link to this | view in thread ]

  52.  
    identicon
    TojoHitler, Jul 9th, 2012 @ 7:26pm

    One of the best parts was when she confused 4chan with Channel 4 and was threatening to sue in the UK.

     

    reply to this | link to this | view in thread ]

  53.  
    identicon
    Lurker Keith, Jul 9th, 2012 @ 7:43pm

    Re: She needs legal counsel

    As I commented, before Mike revealed he'd written this & was waiting to edit before posting, one of the Popehat commenters said (& provided Tweet screen captures as evidence) he sent her to the parody Carreon site. When she complained, he gave her the link to the real Carreon site. Considering she'd read about Carreon, &, due to the context ("is he a real lawyer"), apparently the Oatmeal debacle, she really should've know this would happen.

    Also, rather than make a seperate post...
    Here's just a part of it, though I recommend reading the entire thing at the link above.
    Mike, you forgot to link ot Popehat, so there is no link to the whole thing "above".

     

    reply to this | link to this | view in thread ]

  54.  
    identicon
    Anonymous Coward, Jul 9th, 2012 @ 7:45pm

    Re: Top 3

    "Something Awful"

    That shithole still around? What is this, 2005?

     

    reply to this | link to this | view in thread ]

  55.  
    identicon
    Lurker Keith, Jul 9th, 2012 @ 9:14pm

    The Oatmeal posted the money pics

    Not sure where this should go so people can see it w/o waiting on Techdirt making an article (submitted it)...

    The Oatmeal v. FunnyJunk, Part X: Philanthropy > Douchebaggery

    Popehat has posted that The Oatmeal has posted pics of the money:

    http://theoatmeal.com/blog/charity_money

     

    reply to this | link to this | view in thread ]

  56.  
    identicon
    Anonymous Coward, Jul 10th, 2012 @ 2:28pm

    Re: She needs legal counsel

    OH!! Mother fucker :( You beat me to it rofl!!
    Well played sir.

     

    reply to this | link to this | view in thread ]

  57.  
    identicon
    Anonymous Coward, Jul 11th, 2012 @ 1:53am

    So how long until the goons from Something Awful start asking people to make Mrs. Barstow kill herself? Cause that's usually how they work...

     

    reply to this | link to this | view in thread ]


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