Can You Sue For Defamation If Someone Points Out Publicly That You Are Wrong?

from the thanks-for-nothing dept

Remember the publication that put legal statements on its site claiming that fair use did not apply and you could not reproduce anything on the site? Yes, the same one that then threatened to take legal action against the guy who (correctly) pointed out to them that you can’t take away someone’s right to fair use like that? Well, it appears that they changed part of their legal language to get rid of the bit about fair use not applying, though they kept up the part saying that you can’t reproduce anything. The former lawyer, David Giacalone, who had pointed this out to the editor in the first place, sent her a nice followup email thanking her for making the change. In response, however, the woman claims she will be suing him for defamation and has already alerted law enforcement and her attorney. It’s hard to see how it’s defamation to point out that the legal language on a site appears to be mistaken. The editor claims that the posts about the legal language encouraged “threats, intimidation and profanity” though, if you read the original posts on the topic it’s a pretty big stretch to seeing them as encouraging any such activity (not to mention that it was all brought on by the problematic language on her publication’s site). In the meantime, Eugene Volokh also has posted a followup on this issue, asking why anyone should trust the accuracy of the content on her site when her claims about copyright are inaccurate? Update: Giacalone lets us know that, after just one day, the site has gone back to claiming fair use is not applicable.


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Comments on “Can You Sue For Defamation If Someone Points Out Publicly That You Are Wrong?”

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20 Comments
david giacalone (user link) says:

she's denying fair use again

Thanks for covering this topic again, Mike. Ms. Maxam is getting her advice on “defamation” and “harassment” from the same place she studied copyright law. It is a shame, but after one day without the denial of Fair Use, she put the same statement back on her articles today. See my post today, OCt. 26, 2006.

Steve Florkey says:

Re: she's denying fair use again

It’s even funnier when you read the side bar of the North Country Gazette which says, “In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette.” Then read Ms. Maxam’s Victims-of-Law site which explains that she has relied on Fair Use to quote other’s work without first getting permission. See http://victimsoflaw.net/about.htm#Terms,%20Conditions%20&%20Disclaimer0.

Someone seems confused here.

cooper (user link) says:

Can You Sue For Defamation If Someone Points Out Publicly That You Are Wrong?

Well, yes you can. You might not “win” but you can certainly file suit.

This is the primary problem with all IP law right now — it is civil, and basically “enforced” and usually “won” by the person with the deepest pockets retroactively. While defamation is one of those things that has always been somewhat nebulous, it seems to me that unless I said, “Ms. Maxam is an ignorant, idioticly deceptive turd-muncher who would know copyright law from a hole in the ground and should be strung up for being such a complete liar on the topic while austensibly working in the ‘media’ industry, — not that I would ever actually say such a thing — defamation would be a hard case to make.

WhatMeWorry? says:

Just Goes to Show...

Just goes to show that anyone can post anything and threaten anyone without having the facts, the law, or even common sense to back them up.

Fair use is the law. The sad fact, however, is that how much use is allowable under fair use is not set in stone and is subject to interpretation on a case-by-case basis. Much depends on the judge that hears the case.

As far as the civil threats are concerned, me thinks the lady doth protest too much…

Aaron says:

That's not...

That’s probably not the angle they’re going to take, if it really results in a suit being filed – my guess is it would be a claim that he was inciting “the masses” to send e-mails and whatever to the site and individuals associated with the site.

Short of having a bad lawyer, my guess is any suit would fail, as it sounds like all that was said was the facts and the author’s personal opinion without even so much as a suggestion of contacting the site. If it were me and I got sued for a stupid reason, I’d be sure to file a claim of my own for damages.

Then again, I’m just some guy babbling on a web page, definitely not a lawyer…

Chief Elf (profile) says:

Some Rights Restricted

The blog at elfink.blogspot.com is copyrighted, and absolutely no use of it qualifies as “fair.” In fact, you are not allowed to read my blog without prior written permission, and you must have my verbal permission to read the written permission.

Furthermore, the designs on the t-shirts I sell at http://www.cafepress.com/elfink are also copyrighted, and I hereby declare by fiat that any and all purchases of said t-shirts only entitles the buyer to receive the shirt and hide it in a closet. You may not wear or use any Elf Ink products unless you hire 3 union elves during the entire process of wearing or using.

david giacalone (user link) says:

a correction to a factual assertion

I wanted you to know that I just put the following Update & Correction at the top of my post of Oct. 26, 2006, titled defamation self-help (for myself, too):

Update & Correction (Oct. 27, 2006): I have learned this morning that, a day after I was accused of defamation by the Editor of North Country Gazette, I made an erroneous statement about NCG in a Comment to a prior post: After comparing the text of the two articles, I mistakenly said that NCG had taken another newspaper’s story without attribution. Here is the Correction notice that I have placed in the Comments to that post:

“CORRECTION (Oct. 27, 2006): Yesterday evening, I erroneously stated in this Comment that NCG had copied from this article in the Westchester News, when it wrote this story — showing that at least five sentences from the NCG article were identical to the sentences in the Westchester.com article. It has been brought to my attention that the source of the NCG article was this release from the Westchester County District Attorney. I apologize for my error. Clearly, NCG did not take the information from Westchester.com. If NCG had attributed its story and facts to the Westchester DA’s press release, my mistake would not have occurred. My main point remains, however, that NCG was claiming exclusive rights to use materials that the public has every right to reproduce, when it placed the statement “This material may not be published, broadcast, rewritten or redistributed by anyone without the express written permission of the publisher. This article is copyright protected and Fair Use is not applicable” at the end of the article.”

The update continues:

I have never had an “axe to grind” with NCG. In Oct. 30, 2005 and December 8, 2005, I had pointed to NCG articles as new sources at my other legal weblog and, on September 26, 2006, had discussed one of its editorials in a posting at this weblog. When I approached the Editor of NCG last week, it was with one simple purpose: to ask that she remove the incorrect clause “Fair Use is not applicable” from NCG articles and commentary. My purpose when I wrote about the topic at this weblog was to get the clause changed and to help the public better understand the Fair Use concept. That is why I wrote to Ms. Maxam thanking her, as soon as I learned that the clause was removed in the Oct. 24, 2006 articles at her site (and why I was disappointed when she reverted back to useing it the next day. I apologize to her for the one erroneous claim that I made, which is discussed above. I apologize to shlep’s readers and Team for allowing the story to take up so much of this weblog’s resources this week and for allowing the situation to get muddied by making that one incorrect assertion. Having said that, I hope the sources supplied below on defamation law will be helpful.

screenname says:

Re: a correction to a factual assertion

david giacalone had an axe to grind allright. He claims to be a lawyer but yet he’s not practicing. Giacalone is wrong. NO ONE can take an entire article, strip off the byline, put on a new headline and claim its fair use. Too many blogs are stealing entire articles and then claiming they can do so under fair use. There’s nothing fair about stealing someone else’s original work. Giacalone created a hell of a stink. He’s not out of the woods I don’t believe.

Alex (user link) says:

personal rights always apply

the funny part of this really is, just because one company or person wants to interpret fair use, and try to enforce their own interpretation of it, doesnt mean it isnt going to cost THEM for wasting someone elses time.

Actually, I think i’m going to go and fairly use anything I like on their site within my rights and then send them a notification.

it will show them what I’ve “fairly used”, and CLEARLY state that contacting me, with the intent of me investing time to consider what they say – amounts to them agreeing to be billed my standard rate of 125$CAD/hr.

If they so much as waste 15 mins of my time (my smallest bill-able block), i will bill them for each block they use… and I will send collectors as well.

Nice idea. thanks guys!

Solo says:

You may make all the false claim you want on the front page of your website or at the bottom of any page. This is the internet.

Standards for accuracy are somewhat lower than in other media (not that lower though) but you have to remember this media is shared by people who belive in the ‘greys’ (alien invaders who have secret agreement with the US government) or the ones who think the earth is hollow, and inside, is inhabited by a futuristic society of uber-men.

Also worth mentioning are the scams, the pyramid schemes, the free energy people, usw.

So, in light of all this, some misinterpretation of the law (agravated by a misguided editor, and when I say misguided, I really mean [expletive deleted]) is not that much to frown about…

http://en.wikipedia.org/wiki/Greys
http://en.wikipedia.org/wiki/Hollow_Earth

lilrabbitfoofoo says:

Can You Sue For Defamation

she must have a crazy form letter she sends out. i’m a memeber of an aol online messageboard forum where we discuss the terri schiavo case. whenever anyone tries to discuss her “journalism”, she threatens us with emails. i know i and a few others have gotten quite the collection of them. she claims to have an attorney “monitoring” the aol boards and we’ll be named in a defimation suit.

Anonymous Female says:

can u sue someone for posting information about yo

is it possible to sue to someone for posting information about you online (without your permission), on websites like myspace or facebook or any kind of online community? what i want to know, is can you sue the person or have them be forced by the authorities to remove the information wheter it’s tru or not?

WHO CAN YOU SUE (user link) says:

DEFEMATION OF CHARACTER!

Can you sue for defamation of character if someone spreads an untrue rumor about you?

Can you sue for getting fired without a “just cause”?

Can you sue a restaurant for finding a roach in your meal?

GO TO http://www.whocanyousue.org

Can You Sue For Defamation If Someone Points Out Publicly That You Are Wrong?
from the thanks-for-nothing dept
Remember the publication that put legal statements on its site claiming that fair use did not apply and you could not reproduce anything on the site? Yes, the same one that then threatened to take legal action against the guy who (correctly) pointed out to them that you can’t take away someone’s right to fair use like that? Well, it appears that they changed part of their legal language to get rid of the bit about fair use not applying, though they kept up the part saying that you can’t reproduce anything. The former lawyer, David Giacalone, who had pointed this out to the editor in the first place, sent her a nice followup email thanking her for making the change. In response, however, the woman claims she will be suing him for defamation and has already alerted law enforcement and her attorney. It’s hard to see how it’s defamation to point out that the legal language on a site appears to be mistaken. The editor claims that the posts about the legal language encouraged “threats, intimidation and profanity” though, if you read the original posts on the topic it’s a pretty big stretch to seeing them as encouraging any such activity (not to mention that it was all brought on by the problematic language on her publication’s site). In the meantime, Eugene Volokh also has posted a followup on this issue, asking why anyone should trust the accuracy of the content on her site when her claims about copyright are inaccurate? Update: Giacalone lets us know that, after just one day, the site has gone back to claiming fair use is not applicable.

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