I had kind of thought that after we posted our response
to Teri Buhl, who got upset about our original article
about her whacko claims that her publicly posted tweets could not be quoted, that the story would hopefully fade away. However, this morning, Jim Romenesko, who allowed Buhl to "respond"
to us via his blog, has published another story noting that the thanks he received from Buhl is that she is threatening to sue him
. Lovely. Oh yeah, and in her communication with Romenesko, she apparently told him she's planning to sue us at Techdirt, too (which, by the way, is the first we've heard of this):
Today, Buhl is threatening to sue me for using the photo from her Twitter page. She says she owns the image and never gave me or others permission to publish it. She adds that she's going to file a small claims suit against Mark Bennett and Techdirt for keeping the photo on their sites after being told to take it down.
"I don't want add you the same list [sic]," she writes. "I'm asking Poynter and Knight to do the same thing today before I file."
My response to her: "Really, Teri?"
yes really Jim – I am going to push it. It's a matter a principle I am sick of other publications lifting other jurnos ideas, photos, words etc… and printing them on their publications with out permission or proper credit with links etcc. I think it's an issue that should have been challenged a long time ago. I took the photo I own it etc…
Of course, in our last post on the subject, we suggested that Buhl acquaint herself with fair use rules. It would appear that she has chosen not to do that. We did not "lift" her "ideas, photos, words." We reported
on her actions and statements.
It also appears that she has not familiarized herself with the nature of copyright law, and the fact that small claims courts have no jurisdiction
over copyright issues. Not that I should be doing the legal work the lawyer she claims to have contacted failed to do, but 28 USC 1338
The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.
This is kind of basic stuff.
Amusingly, just a few weeks ago, we wrote about the Copyright Office exploring
the idea of setting up a small claims court for copyright. But, as of right now, it does not exist.
And, even if
we ignored that pesky bit of information, we've still got the fair use hurdle, which she can't get past. She claims "I took the photo I own it etc." Except, it's not that simple. If she took the photo, she might
hold the copyright on certain elements of the photo -- but that is not the same as "owning" the entire photo and being able to block any and all uses of it. This is another thing any lawyer would hopefully explain to her. Our use of the photo, to show the key point of contention that led to the story (her claiming via her Twitter profile, incorrectly, that no one could quote her Twitter feed), was clearly for the purpose of reporting on her claims. Suing us, Bennett (a lawyer) or Romenesko would not likely go well for Buhl who seems very focused on bluster, with little legal basis to back it up. We could go through a very, very, very long list of case law and the actual text of copyright law that shows that what we did is absolutely reasonable and protected action, but I guess we'll save it for this "lawsuit" should it ever actually be filed.
Oh, and one more thing. In the comments on the Romenesko post, she makes this rather incredible statement:
how about this - no one who wrote about this little debate has bothered to call an experienced copyright lawyer and get a comment. I did before I wrote Jim.
This is actually wrong on so many levels. The initial story
, involving her original claims, included "experienced copyright lawyer" Marc Randazza noting that her claims were "moronic." However, for her edification, this morning I reached out to three more "experienced copyright lawyers" who agreed that she doesn't seem to understand the law, on a whole variety of levels, as we discussed in our response to her many attempts to contact us, and as explained above.
In the meantime, Mark Bennett, who wrote the original post that kicked this whole thing off, has been doing a nice job cataloging the ever-changing legal theories
that Buhl keeps tossing out there -- none of which have much basis in reality:
- That republishing tweets designated "not for publication" can be the basis for a lawsuit.
- That she hadn't written the tweets I republished ("Mark did you fact check my twitter feed to make sure I tweeted what you published?").
- That I libeled her.
- That retweeting "protected" tweets can be the basis for a lawsuit ("I think the question is if tweets are protected are they public").
- That republishing her tweets violates her copyright.
- That republishing her background photo violates her copyright.
As he notes: "Changing theories is always a good indication that the person threatening a lawsuit has no good reason to sue: if you have a reason to file suit, you know it."
So, once again, Ms. Buhl might want to think carefully before proceeding with any planned legal action against us or others. Contrary to her stated opinion, these are not unsettled matters, nor is the law in her favor. Similarly, she might want to recognize that, once proven wrong, digging in and making further claims is not a productive course of action. Sometimes it's okay to admit that you were wrong, and to let it go.