Dear Angry Person: People Who Criticize You Likely Aren't Defaming You Or Infringing On Your Copyright
from the just-saying dept
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.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:
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.
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.
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.