As we've explained over and over again, copyright and censorship go hand in hand. People who want to censor seem to love the power that copyright conveys on them. Take, for example, the Brazilian media giant Globo. As you may have heard, there's a big political fight down in Brazil, as the Congress there looks to impeach the President, Dilma Rousseff. It's a big political mess, made even more ridiculous by the fact that many of the leading voices looking to impeach Rousseff have themselves been indicted for corruption or are being investigated for corruption. Last week, David Miranda wrote an article for the Guardian, arguing that the whole thing is political, and that the corruption claim against Rousseff is just a pretext for an opposing party to gain power. In that article, he blames the major media properties in Brazil for supporting the fiction in pushing an anti-Rousseff story.
The story of Brazil’s political crisis, and the rapidly changing global perception of it, begins with its national media. The country’s dominant broadcast and print outlets are owned by a tiny handful of Brazil’s richest families, and are steadfastly conservative. For decades, those media outlets have been used to agitate for the Brazilian rich, ensuring that severe wealth inequality (and the political inequality that results) remains firmly in place.
Indeed, most of today’s largest media outlets – that appear respectable to outsiders – supported the 1964 military coup that ushered in two decades of rightwing dictatorship and further enriched the nation’s oligarchs. This key historical event still casts a shadow over the country’s identity and politics. Those corporations – led by the multiple media arms of the Globo organisation – heralded that coup as a noble blow against a corrupt, democratically elected liberal government. Sound familiar?
Globo TV was apparently not happy with that and asked the Guardian to post its response, written by the company's Chair of the Editiorial Board, Joao Roberto Marinho, who apparently is the heir to the Globo empire.
Miranda then responded to Marinho over at the Intercept, to show why Globo has been extremely biased in pushing one side of the story in Brazil. Miranda goes through Globo's somewhat sordid history as a propaganda arm, and then goes point for point debunking Marinho's claims. Towards the end he tries to show just how one-sided Globo's coverage has been:
For more than a year, one Globo-owned Epoca magazine cover after the next used manipulative, demonizingart to incite the public in favor of impeachment. The Twitter feeds of Globo’s stars — both news and entertainment — are filled every day with pro-impeachment propaganda. Even when Jornal Nacional tries to deny that it is placing its heavy finger on the scale in favor of pro-impeachment protests, it cannot help itself: It glorifies those pro-impeachment protests and gives them far more airtime than their pro-democracy counterparts:
After this, he linked to a video demonstrating all of this... but soon after his article went up, that video became this:
Yup. Globo suddenly decided to make a copyright claim on the video that was being used in an article demonstrating how its coverage has been incredibly biased. That video had been up for months before that with no problem, but just a little while after it was included in Miranda's article it was gone. Poof.
And people still want to claim copyright isn't regularly used as a tool for censorship?
Yes, the content in the video is content from Globo. But it's not taking it down over any concern over licensing issues or "piracy." It issued the takedown to clearly hide the video from the public viewing Miranda's article. It is purely a censorship move, and copyright is just a convenient tool. Thankfully, others have been reuploading the videos elsewhere, but just think what will happen if the legacy entertainment industry is successful in pushing a "notice and staydown" regime? This kind of censorship will become much, much more effective.
There are lots of dumb ways for companies to combat online critics. You can simply claim copyright over the criticism as a way to try to silence it, although that tends to end poorly for the silencer thanks to public backlash. You can go to the court to ask for an injunction against the critic as a way to try to silence it, although that tends to end poorly for the silencer thanks to the Streisand Effect. Or you can ask the courts to test whether the criticism amounts to defamation, although, again, The Streisand Effect, the public backlash, and the fact that those types of suits are rarely successful.
This story is an extended example of the last of those, with game developer Digital Homicide deciding to file suit against game critic Jim Sterling to the tune of ten million dollars, all because Sterling's shtick is to post online reviews mocking what he considers to be crappy video games.
Digital Homicide claims Sterling, whose real name is James Stanton, has "falsely accused [Digital Homicide] and caused damage" to the company. According to court documents, the company is asking for $2.26 million in direct product damage; $4.3 million in emotional, reputational, and financial distress; and $5 million in punitive damage requests. That adds up to $10.76 million, and it's nothing to scoff at.
The claims are, frankly, ludicrous, but they're the kind you occasionally see leveled against an online critic. As most of you will know, the claims being made will typically need to be shown to have been willfully fallacious to get past what will surely be Sterling's defense, that his criticism is either his opinion or that it is valid, or both. The monetary damages asked for are equally silly. The only real potential meat to this whole thing is the accusation that Sterling falsely accused Digital Homicide of committing offenses or crimes.
In an article titled "Digital Homicide And The Case Of The Sockpuppet Developers," Sterling remarked that another Digital Homicide game, Galactic Hitman, had artwork taken from elsewhere. Specifically, it may have been lifted from an artist on DeviantArt. Sterling later edited the piece to say it "may" have been purchased from Shutterstock, an online repository of media. In the lawsuit, Digital Homicide presented a July 2015 receipt for a Shutterstock subscription.
As Sterling dug into other companies Digital Homicide was connected to, he discovered that the people behind the studio had also started a company called ECC Games, which seemed to take its name from a different game publisher in Poland. Digital Homicide points to a line in Sterling's article where he argued it could lead to "potential legal trouble for folks who rebranded and accidentally defamed a completely different studio." In the piece, Sterling spoke with the Polish publisher, who said it had "already taken legal actions."
In other words, you have a commentator or critic raising the issue of potential legal issues, while not directly claiming them to exist as a matter of certainty. That couching language is likely going to mean that the false accusation portion of the suit will fail, as there's very little difference between how Sterling discusses this and how any media outlet deals with the existence of potential criminal or civil actions.
And that's really all a side show, because the fact is that Digital Homicide appears to be chiefly angry about the criticism of its games as leveled by Sterling.
The drama began when Sterling published a 10-minute video of Digital Homicide's first-person shooter Slaughtering Grounds in November 2014, dubbing it the "new" worst game of 2014 "contender" and a game where "the awfulness just doesn't stop." The game did not get much attention outside of Sterling's videos; in fact, one of Sterling's critical videos is the second Google result for Slaughtering Grounds and the first result when you do a search on YouTube. In response to this criticism, Digital Homicide published two videos — both removed, though archived on Sterling's channel — where the developers call Sterling "a fucking idiot" and accuse him of not playing the game correctly.
In another — again, now deleted — post, Digital Homicide explained its position.
"In the sole instance of Jim Sterling's 'Squirty Play' video," said the developer, "We find the usage of the terms 'WORST GAME OF 2014 CONTENDER!' and 'Absolute Failure' to describe the entirety of our product while not actually evaluating it in its entirety unfair and unreasonable use of our copyright material. While the reader may disagree with our claim, we believe the unbiased perspective of a court will agree there has been a violation of our copyright and for this reason we will be pursuing an attorney and proceeding with our complaint."
That last bit had originally come along with a DMCA takedown of Sterling's review, but Sterling appealed the takedown to YouTube, which put the video back up, because the claim that this kind of criticism is copyright infringement is insane.
So, how's everyone in the public reacting to the DMCA takedowns and the lawsuit? Well, Digital Homicide had put up a crowdsourcing site to fund its legal efforts against Sterling, but had to take it down because of the sheer number of people trolling the page. The press, meanwhile, is reporting on this issue, and not in a manner favorable to Digital Homicide. In true Streisand Effect form, Sterling's reviews are spreading as a result, and Digital Homicide comes off looking petty.
In other words, they had better win that ten million dollars, because it doesn't sound like the public is going to be happily buying their games at the same volume as they did before all this nonsense began.
Last summer, our writer Tim Cushing put together something of an omnibus post of stupid DMCA takedown requests, none of which probably deserved their own unique post. One of the individuals he highlighted later went on something of a wacky defamatory crusade against Tim, posting blatantly false information about him, and claiming that Techdirt is actually owned by some telecommunications company I'd never even heard of, that is also a patent troll, or something. But now another entity in that very same post has also decided it's upset about the post, and has taken a slightly different strategy.
The company in question is Andromedical, makers of the creatively named "Andropenis," which is (you guessed it) a penis pump. The company appears to do two things aggressively: push a highly questionable "study" claiming its device is effective... and issue questionable takedown demands. Tim was mocking the fact that Andromedical was asking Google to take down results from the competing Bing search engine, but also the fact that it appeared to be promotional images of the product. So, why are we subject to a takedown notice?
BRING ON THE KITCHEN SINK OF LEGAL THREATS!
In what is announced via email as a "DMCA notice," (and sent to a personal email address of mine, rather than our publicly listed DMCA agent email address) is apparently a combination notice of all sorts of things we didn't actually do:
I write on behalf of the Legal Department of Andromedical, S.L. Company, as an Intellectual Property abuse report to your company. This email is part of a Counterfeit Notification to INTERPOL and must be considered as an official Cease and Desist, Digital Millenium Copyright Act (DMCA) Notification.
We have detected that your website is using our trademark Andropenis® and our copyrighted images without being licensed to do so. It is illegal to use Intellectual Property (IP) without license in your website, whether or not you are selling the actual device associated to our copyrighted properties. Thus, you are infringing the law by using trademarked and copyrighted properties of Andropenis® without license and without IP rights. Please, proceed to delete immediately the following pages and the images in them from your website:
Yeah, so, first of all, it's a DMCA notice, which covers copyright and not trademark. The fact that we don't have a license is meaningless either way. First of all, we can use the ridiculous Andromedical or Andropenis name as much as we want without violating the trademark, because we're using it in a manner that is clearly descriptive of the product, and not in commerce. It's also not being used in a manner to confuse consumers or dilute the brand. So, just the fact that it suggests merely mentioning the name without a license is infringing is ludicrous and wrong. You're doing trademark law badly.
On the copyright question, we did post an image of some of Andromedical's own promotional images, but in a manner that was clearly fair use. It was part of our news article, explaining Andromedical's abusive DMCA practices, and as part of showing the kinds of images it was taking down, we showed a few thumbnails of those images. This is obviously fair use, so Andromedical can take its DMCA notice and pump it.
Then we get to the whole "Counterfeit Notice to INTERPOL" -- to which I can only say... huh? There's no counterfeiting. We're not selling any products in our post -- legitimate or counterfeit. We're just posting a story about the company, which is perfectly legal to do.
Nevertheless, the company insists that if we don't take down our article, it will follow through with a list of increasingly aggressive/ridiculous tactics:
You have one week after the reception of this email to delete any and all images of Andromedical and/or Andropenis® products, any and all Andromedical and/or Andropenis® trademarks, and any and all Andromedical and/or Andropenis® information and references from your websites. Legal actions against your company will be stopped if these actions are undertaken. If you fail to do so, our Legal Department will:
Remove your company’s visibility in GOOGLE, Yahoo and/or other search engines, such as Yahoo! or Bing, via DMCA notices. Please find attached to this email the DMCA notice in question. (https://www.google.com/webmasters/tools/dmca-notice?rd=1&pli=1&authuser=1 )
Block your payment gateways via intellectual property abuse reports to your payment processors, VISA, PAYPAL. (http://usa.visa.com/about-visa/our-business/intellectual-property-rights.jsp?ep=v_sym_ReportBrandAbuse, https://www.paypalobjects.com/webstatic/ua/pdf/US/en_US/infringementreport.pdf)
Contact your web hosting service to have your website removed, as you are infringing their Terms of Service by using their server space for unlawful purposes.
Contact INTERPOL, as your company is committing an international crime by trafficking in illicit goods and counterfeiting. (http://www.interpol.int/Crime-areas/Trafficking-in-illicit-goods-and-counterfeiting/Trafficking-in-illicit-goods-and-counterfeiting).
Wait, we're "committing an international crime by trafficking in illicit goods and counterfeiting" because we posted a story mocking your stupid DMCA takedown requests... and your response is to send an even stupider and more ridiculous takedown demand? Yeah, that's not very smart. You're also lying, which may be an issue for you given that the DMCA forbids making false statements in DMCA takedowns.
And, just to be clear: we're not selling any stupid penis pumps, counterfeit or not. Did you miss that simple fact? I imagine Interpol might wonder why you're wasting their time making false reports.
Next up, the email lists out the various trademarks in different jurisdictions that the company has -- all of which is totally meaningless and unimportant because writing about your company is not violating your trademark in any way, shape or form. That's not how trademark works.
And then the closing:
Andromedical S.L has not signed a valid license contract in this seller’s favor to use the trademarks of Andropenis® or its copyright. The names referred and its images pertain, only and exclusively, to Andromedical S.L.
I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Eduardo Gomez de Diego
Yeah, that's great. Except, again, we're not selling anything, and we're not violating your trademark or your copyright. Your "good faith belief" is either not in good faith at all, or just wrong. Our use is clearly authorized by the law.
Finally, note that the opening of the email threat said that it was coming from "the Legal Department of Andromedical." So, that would imply that our friend Eduardo Gomez de Diego is a lawyer, no? So, then, why does he show up as a doctor stumping for an Andropenis penis pump? And the author of the "study" that claims that Andromedical's penis pump actually "works"?
In summary, I'd argue that Eduardo's legal claims are about as strong as his scientific and medical claims.
We've written a few times now (including just recently) about the Spanish firm Ares Rights, whose sole purpose and job in this world appears to be to abuse any and all systems to take down content to try to hide content that either Ares Rights or its clients dislike. Mainly, the takedowns seem to focus on the interests of what appears to be its main client, the government of Ecuador, and its main tool is totally bogus DMCA notices, that too many companies follow without looking at the details.
However, Ares Rights also has a history of abusing takedowns to try to hide negative information about itself. And apparently, it will abuse other tools as well, such as Twitter's policy on shutting down accounts for abuse.
Daniel Nazer is a lawyer for EFF (focusing mostly on patent issues). Last week, he found out that his Twitter account had been shut down. Eventually, he was allowed back into the account, but was told he could only reopen the account if he agreed to delete a tweet. Which tweet? One in which he referenced Ares Rights and linked to an email exchange he'd had with the head of Ares Rights, Jon Palma. As background, Nazer explained how, back in 2014, he had tweeted negatively about Ares Rights, (accurately) calling what the company engages in as "copyfraud." Palma, apparently misunderstood Nazer's tweet, thinking that it was in support of Ares Rights, and emailed Daniel asking for business advice. Nazer posted the content of that email:
There are all sorts of levels of ridiculousness here, from Palma misunderstanding Nazer's tweet, to the fact that he filed an abuse complaint with Twitter, to Twitter's decision to disable Nazer's account. Someone from Twitter who saw me discussing this (on Twitter, naturally), reached out to point to Twitter's policy on private information posted on Twitter. This is the policy that's supposed to allow Twitter to shut down accounts of people doxxing someone, posting credit cards, harassing people, or posting revenge porn or whatnot. And it seems likely that the folks at Twitter would argue that Nazer's original screenshot of the email revealed Palma's "non-public" email address. If that's the case, even then it seems like a stretch. In context, it's clearly not for the sake of "doxxing" or harassing Palma, and it's unlikely that anyone actually looked at the original screenshot and decided to angrily email Palma.
Twitter claims that it "may consider the context and nature of the information posted," but it's hard to see how that was the case this time. In the end, things worked out, and Ares Rights, yet again, looks like a horrible, censorious, thin-skinned bully. But it's a bit disappointing that Twitter was willing to help the company along in that endeavor.
World Intellectual Property Review (WIPR) is reporting that the European Patent Office, EPO, has threatened Roy Schestowitz with a defamation lawsuit over a blog post he did. Schestowitz writes the Techrights blog, which I personally think can go overboard with some of its stories at times. However, to argue that his stories are defamation, especially by a government agency, is crazy. Back in October, Schetowitz had a story claiming that the EPO was prioritizing patent applications from large companies like Microsoft to "foster a better esprit de service." I actually don't think the program described by the EPO actually sounds that crazy, and the EPO's response isn't that crazy either -- it's just about more efficiently handling certain patent applications to keep the office from getting swamped. Indeed, it does seem like Schestowitz may have overreacted with his interpretation of the memo. But, misinterpreting something is hardly defamation.
In fact, to argue that Schestowitz's post is defamatory is crazy. Threatening Schestowitz with a defamation claim is much crazier and dangerous than even Schestowitz's own interpretation of the EPO's memo. If you're working for a government agency, such as the EPO, you have to be willing to accept some amount of criticism, even if you disagree with it. To claim it's defamation and to threaten a lawsuit is really, really screwed up. Frankly, this calls into question what the EPO is focused on much more than any claims of favoring large companies. Also bizarre is the fact that WIPR edited its own story to remove any mention of what Schestowitz's original blog posts were about in the first place. They had originally included a sentence briefly describing the original Techrights blog post that got the EPO upset, but then deleted that part.
The EPO has been coming under a fair bit of criticism lately, and the entire organization appears to be astoundingly thin-skinned. A few months ago, the office apparently blocked access to Techrights altogether from within its network. That seems like a pretty strange move in the first place. Florian Mueller (and, yes, I know that many people here don't trust Mueller, but...) has pointed out how absolutely ridiculous the EPO can be about just about anything related to how it works:
The European Patent Office is the last dictatorship on Central European soil. Local police cannot allowed to enter the EPO's facilities without an invitation from the president. National court rulings cannot be enforced; compliance is voluntary. Employees and visitors are subjected to covert surveillance. And if employees are fired (or "suspended"), which just happened to several staff representative, they won't get their day in court for about ten years.
The EPO's leaders have a rather selective attitude toward the law. When it's about their wrongdoings, they want their organization to be a lawless, autocratic island that disrespects human rights. But when the rules of the world around the EPO come in handy, the leadership of the EPO tries to leverage them against those who dare to criticize it.
I'm having trouble thinking of any other governmental agency that has ever threatened a public critic with defamation. Basic concepts around free speech suggest that the EPO should suck it up. If it disagrees with Schestowitz's interpretation of what it's doing, then it can come out and explain its side of the story. Threatening him with defamation actually only makes me think that perhaps his interpretation hits closer to home than I originally believed.
Last year, Dr. Edward Tobinick sued Yale physician Steven Novella over a blog post Novella had written that questioned and criticized Tobinick's off-label use of immune-suppressing drugs to treat… Alzheimer's patients. Here's a short quote from the post at the center of the lawsuit:
The claims of Tobinick, however, are not in the gray area—they are leaps and bounds ahead of the evidence. Further, the conditions he claims to treat are not clearly immune-mediated diseases. It’s one thing to use an immune-suppressing drug to treat a disease that is known to be caused by immune activity, and probably the kind of immune activity suppressed by the drug.
Tobinick, however, is claiming that a wide range of neurological conditions not known to be immune mediated are treated by a specific immunosuppressant.
Tobinick first demanded Novella take the post down. When Novella refused, Tobinick sued him and Yale University. Tobinick didn't allege defamation, as one would expect. (At least, not originally, allegations of libel were added to an amended complaint.) Instead, Tobinick claimed Novella's post was "false advertising" and actionable under trademark law.
There are very few cases where plaintiffs have been successful misusing intellectual property laws to shut down critics. This one is no exception. Back in June, the court granted Novella's anti-SLAPP motion, striking Tobinick's motions for unfair competition, trade libel and libel per se. All that was left unaddressed was Tobinick's Lanham Act claim.
Now, the court has handed a victory to Novella, granting his motion for summary judgment and ordering the case closed. The court finds no merit to Tobinick's argument that Novella's critical blog posts were "commercial speech" and therefore actionable under the Lanham Act.
[T]he Court finds that the speech at issue here—that is, the First and Second Articles, published on www.sciencebasedmedicine.org —is not commercial speech. The Articles proposed no commercial transaction, and consequently do not fall within the “core notion” of protected speech. See Bolger, 463 U.S. at 66. Furthermore, the Articles do not fall within the scope of the definition expounded in Central Hudson, “expression related solely to the economic interests of the speaker and its audience.” 447 U.S. at 561. Both articles clearly state their intent to raise public awareness about issues pertaining to Plaintiffs’ treatments.
Thus, the First and Second Articles can only potentially qualify as commercial speech under Bolger. Yet the Articles differ from the pamphlets at issue in Bolger in a number of ways. First, the Articles are not conceded to be advertisements. Second, the only products referenced in the First Article are Plaintiffs’ treatments. To the extent that the Second Article mentions Defendant Novella’s practice, it is in direct response to the instant litigation as opposed to an independent plug for that practice.
The main thrust of Tobinick's Lanham Act argument was that because Novella made money indirectly from the website, it was commercial speech. The court doesn't care for this argument either, and points out that even certain commercial speech is still protected under the First Amendment and not subject to Lanham Act claims.
The third and final factor from Bolger, whether there was an “economic motivation” for the speech, is the primary basis for Plaintiffs’ opposition to summary judgment. Essentially, Plaintiffs contend that the Articles are commercial speech because SGU Productions, a for-profit company controlled by Defendant Novella, earns money by selling advertisements on its website (skepticsguide.net), advertisements in a podcast, memberships, and goods such as t-shirts…
Thus, even if Defendant Novella directly earns money from an organization sponsoring or producing the speech, this alone would not make the speech commercial. Furthermore, the specific evidence elicited in this case regarding SGU does not point to a strong economic motivation for the speech. Although Plaintiffs argue that “[t]he flow of money to Novella . . . is significant, as [Jay] Novella testified to over $200,000 last year,” Jay Novella also testified that, despite this profit, SGU “made no profit after expenses” because “we reinvest the vast majority of the money back into the company when we have a positive cash flow.”
The Court therefore finds that Defendant Novella’s speech in the First and Second Articles does not qualify as commercial speech, such that the Articles can form the basis of a Lanham Act claim.
Once again, we see a plaintiff learning the hard (and expensive) way that speech that may harm your commercial interests isn't automatically a.) defamatory or b.) a violation of intellectual property laws. Of course, many litigants already know this. They're apparently just hoping the courts don't.
With the granting of the anti-SLAPP motion, it looks like Tobinick will be paying the costs of defending against his bogus lawsuit. But it's not as though people looking to censor critics will be any less willing to engage in Hail Mary-esque lawsuits. Many defendants simply aren't willing to put themselves through the financial and mental pain and suffering that accompanies litigation. Because of this, this string of IP law-abusing legal failures won't prevent similarly bogus attempts from being made in the future.
As you've probably already heard, last week former tennis star James Blake was blitzed by an NYPD plain clothes officer in front of his hotel, tackled to the ground, and left cuffed there bruised and cut. The officer in question thought he was brutalizing someone who had committed credit card fraud. In itself, this would be quite a problem, as credit card fraud isn't the kind of crime that typically results in an NYPD beatdown. Except that James Blake is black. He's also, as it turns out, not even the suspect this officer was supposed to be looking for. He just happened to fit the description. The NYPD has since apologized to him, an apology that one would hope was met with narrowed eyes and a defiant chin.
But you'll never guess who isn't apologizing. Actually, you probably will, because it's NYPD Patrolemen's Benevolent (hah!) Association President Patrick Lynch, who penned a letter to the media covering the story. Let's just see how much we can get through this before we stop pretending like we're dealing with a sane person, shall we?
AN OPEN LETTER TO ALL OF THOSE INCLINED TO JUMP TO CONCLUSIONS
And we're off to a bad start. Jumping to conclusions isn't the best description when there is public video of Blake getting tackled and the NYPD has already apologized. Oh well, on to the real meat of this gem.
To all arm-chair judges:
If you have never struggled with someone who is resisting arrest or who pulled a gun or knife on you when you approached them for breaking a law, then you are not qualified to judge the actions of police officers putting themselves in harm's way for the public good.
And just like that, we're done. I've embedded the rest of the letter below the post in case you want to read the whole thing, but you really probably shouldn't. There isn't much point in continuing to read something built on a premise that rests entirely on the logical fallacy of argument from authority. The very idea that anyone who hasn't arrested an armed resistor ought be precluded from judging those who have is provably false. After all, there is no test of would-be judges that includes a screening to make sure they've experienced this. And they're literally judges. Beyond the courts, the press has long been investigators into police misconduct, highlighting abuses. It's their job, after all. And the public falls under the purview of our laws, which just so happen to apply to police as well. And those laws are built by the public's representatives, so you best believe that the public has every right to judge public servants against those laws.
But according to Lynch's amazingly stupid letter, this all goes out the window when it comes to the police. They have earned the benefit of the doubt. Why? Because danger, yo.
That is why no one should ever jump to an uninformed conclusion based upon a few seconds of video. Let all of the facts lead where they will, but police officers have earned the benefit of the doubt because of the dangers we routinely face.
Dangers like tennis players standing idly outside a hotel lobby? Do tell!
In any case, commentators appear to not be taking Lynch's letter to heart. You really should read all of Ken Womble's open letter in response to Lynch's, but since I only made it through a couple of grafs of Lynch's, we'll keep this fair and include only the first paragraph of Womble's response.
Sept. 16, 2015 (Mimesis Law) — Dear Pat,
I am in receipt of your letter entitled “An Open Letter To All Of Those Inclined To Jump To Conclusions.” First, allow me begin by making a point that I think is vitally important. Fuck you.
Miami Heat part-owner Ranaan Katz will be parting with a bit of his fortune because he is a censorious blowhard who doesn't know when to quit.
Back in 2012, Katz got all sensitive about a blog that posted some court documents he didn't want published. To add imagined insult to imagined injury, the blog also posted a less-than-flattering photo of Katz. This one, to be exact:
Katz tried a "fresh" approach -- one that has been used by others with similar censorious motivations. He went the copyright infringement route. He purchased the copyright to the unflattering picture and filed an infringement lawsuit against the blogger (and Google, which hosted the blog). He also threatened to sue the blogger's lawyers, because Ranaan Katz has yet to discover a hole he couldn't make bigger.
And, for some ungodly reason, he nearly won. His barefaced effort to use copyright protection as a blunt "shut the fuck up" weapon was humored by a lower court, which issued a ridiculously broad injunction against the blogger. But upon later review, the district court decided the use of the photo was clearly fair use.
Plaintiff holds the copyright to an unflattering photograph of himself which Defendant published as part of highly critical blog articles she wrote about Plaintiff. Plaintiff purchased the photograph only after he realized Defendant’s use of it in her blog. Plaintiff’s purchase of the photograph was, from his perspective, to “stop this atrocity” of Defendant using the picture in her critical blog.
As explained by Magistrate Judge Chris M. McAliley in her Report and Recommendation recommending granting summary judgment in favor of Defendant:
Plaintiff is a businessman who testified that he considers the Photo “ugly” and “candid and embarrassing.” He does not claim to be a celebrity and does not claim Magriso’s (the original copyright holder’s) market as his own. Not surprisingly, Plaintiff has not tried to sell or license the Photo to anyone. Rather, Plaintiff testified that he obtained the Assignment of Copyright “[b]ecause I wanted to stop this atrocity.” (Plaintiff views the transfer of copyright as “a correction - correction of a mistake that happened.”). He has not used the Photo other than in this litigation, and has done so here to prevent its publication.
As Judge McAliley recognized in her Report and Recommendation, no reasonable fact finder could find for the Defendant. Plaintiff was privy to all the facts which led to summary judgment in Defendant’s favor from the outset of the litigation. He was fully aware when he filed the suit that he had no intent to profit from his copyright, nor was he a victim of any economic damages from Defendant’s use. The fact that the Court found three out of four factors weighed in favor of Defendant and the other was neutral clearly indicates that Plaintiff’s attempts to stymie Defendant’s speech are precisely what Section 107 is designed to protect against.
Even better, the court calls him out for using copyright as a weapon.
Instead of using the law for its intended purposes of fostering ideas and expression, Plaintiff obtained the photograph’s copyright solely for the purpose of suppressing Defendant’s free speech. Unsurprisingly, Plaintiff argues that protecting his rights under the Copyright Act was his sole motivation for filing this suit. [D.E. 187 at 13]. That assertion is rather dubious. Plaintiff has characterized this action as “just one battle” in a “malicious war.” [D.E. 187 at 1]. While Plaintiff might view it necessary to remove his unflattering picture to “stop this atrocity” [D.E. 148 at 23], he may not resort to abusive methods to do so.
Copyright as censorship. Only this time, someone's actually out a fair bit of cash for abusing the system. That, in and of itself, is an anomaly.
Remember Adam Miller? The so-called, self-professed "faith healer" sued an online critic, Stephanie Guttormson, earlier this year. It was a clear SLAPP lawsuit. Guttormson had taken one of Miller's laughable promotional videos and added some commentary mocking it. You can see it here:
That video had less than 1,500 views at the time Guttormson was sued. It now has about 65,000. The main claim in the lawsuit was copyright infringement, which is laughable. It's clearly fair use. The video was used in a non-commercial manner for commentary and criticism. It's easily fair use, and the lawsuit was clearly designed to silence public comment. The lawsuit also made some ridiculous claims, such as claiming that calling Miller's nonsense "faith-based bullshit" is "defamatory" because "Mr. Miller's work does not require a client to hold any faith." Yeah. Let that one sink in for a moment.
Either way, just days after this started getting attention, it appears that Miller and his lawyer realized that this was going to end badly and let the matter drop. As we noted at the time, he dismissed the lawsuit without prejudice, meaning that he could potentially file it again in the future. We wondered if that opened up an opportunity for Guttmorson to file for a declaratory judgment, but she announced that she was just going to let the matter drop.
Well... Adam Miller is back and he's insisting that he's going to reopen the lawsuit against Guttormson. Oh, and not only that, he's also launched a new site, FaithWarrior.org where he insists that he's declaring "war" on "anarchy" and a variety of other things, including communism (he insists his critics are all communists), "faith bashing," "cyberbullying," "online harassment" and more. I'm almost wondering if he's signed up Charles Carreon as his lawyer. Carreon similarly declared war on his online critics, after they mocked him for his own SLAPP antics, and he shows up every once in a while to randomly attack those who called him out for his censorship attempts.
Miller's own personal website has been redone -- though parts of it mentioned in the article above appear to have been taken down and replaced with a "coming soon" promotion for a book (which makes it look like Miller thinks all this negative publicity may help him sell books) and the following almost incomprehensible text:
The truth always comes out. Regardless of how many idiotic minds shout in the streets. Faith will prevail and communism shall not rule. And you thought that this was about the healing work... this was just a bait and you have taken it. " Hook. Line. And Sinker. " Every one of you will be exposed. :)
For a "faith healer" he sure seems pretty angry. It starts out "Hey, Guttormson, ASSHOLE!" The rest of it is also somewhat incomprehensible. After some weird mention of Deepak Chopra (huh?), he says:
So here it is. Just because you have a computer, does not mean that you people are something new. Because 80 years ago, in Russia you same people took over the churches and killed all the priests. That's who you people are and I'm going to take you all down.
I have no idea what he thinks he means by that, but then there's his second video where he insists that he's reopening the copyright case against Guttormson and explains how he's going to war against his critics.
In it, he declares that athiests are "communists." He claims "they're backed by the Communist rule. They're put as cells around the country in order to disrupt any kind of belief system." Considering that Miller himself argued that anyone calling his nonsense "faith-based bullshit" was defamatory, you'd think he'd be more careful about making statements of facts about his critics that are laughable.
Then he insists that the lawsuit is back on, though it's not clear he understands the lawsuit he himself is supposedly filing.
My lawsuit is for copyright infringement only.... I am suing Guttormson because he has made ridiculous statements that are completely untrue about a work he knows nothing about. I am now going to reopen that case. We're going to drag this individual into Arizona because he is in Maryland, and we're going to continue the lawsuit. It's very important that everyone follows this lawsuit and understands what I'm going to do to this individual. Because this has everything to do with faith. You see these people are set in this country and they are completely brainwashed again as communist cells and they want to bring communism to America and make sure that we have no freedom of any kind of rights whatsoever.
So much to parse and so little time. If the lawsuit is for "copyright infringement only" as Miller claims, then why does he say it's about "ridiculous statements that are completely untrue"? That's not about copyright at all. That's only true about defamation. And, again, nothing in the original appeared to be either defamatory or infringing. Also, directly saying that you intend to drag someone across the country, and saying it's because you believe she made statements you don't like kind of makes it that much more clear that this is nothing other than a clear SLAPP suit.
Unfortunately, while both Arizona and Maryland have anti-SLAPP laws, they are both super narrowly targeted, only focusing on lawsuits that are about speech regarding government efforts. Yet another reminder of why we need (desperately) a federal anti-SLAPP law.
Also, it seems ridiculous that Miller is claiming that it's Guttormson and others critics wanting to make sure "we have no freedom of any kind of rights" (whatever that means), when it looks like he is seeking to suppress speech through questionable lawsuits. So, again, he's claiming (maybe) defamation while defaming people, arguing that those he's looking to silence are trying to take away all "freedom of rights." So that's two out of the three things that he's claiming others are doing to him that it appears he may actually be trying to do to others. What about the third? Remember how he claimed this is "about copyright infringement only"? Well, the third video that Miller has uploaded to his new YouTube account is a clip from a documentary on the Soviet Union. That seems like it may be copyright infringement, no?
Again, it seems like there's a decent chance Miller is trying to pull a reverse Streisand Effect here. Deliberately picking on those who mocked him in the past, thinking that it will apparently help promote his new book. And, as he says himself, "this was just bait and you have taken it." I doubt it's going to help sell many copies of the book though. Either way, people filing bullshit censorious lawsuits deserve to be called out for doing so.
A month ago, we wrote about actor James Woods bizarrely suing a trollish Twitter user who had been mocking Woods on the site. The whole lawsuit seemed ridiculous. The specific tweet that sent Woods over the edge was this anonymous user (who went by the name "Abe List") saying "cocaine addict James Woods still sniffing and spouting." Soon after our post on the subject, Ken "Popehat" White posted an even better takedown entitled James Woods Punches the Muppet. That post has now been updated with a brief note that White has now been retained to defend the anonymous Twitter user. And, if that gets you excited for what to expect in the legal filings, well, you don't have wait. As first reported by Eriq Gardner at the Hollywood Reporter, White has filed the John Doe's opposition to Woods' attempt to unmask the guy. And it's worth reading.
Problem number one with Woods' suit is laid out right at the beginning of the filing, which is that Woods himself has a habit of accusing others of using illegal drugs as well, just as Abe List did:
The filing shows other tweets from Woods that have similar words that Woods complained about Abe List using, such as "clown" and "scum." As the filing notes, it appears Woods thinks that he can use those insults towards others, but if anyone uses them towards him, it's somehow defamatory.
Plaintiff, an internationally known actor, is active on Twitter, a social media platform.
There he is known for engaging in rough-and-tumble political debate. Plaintiff routinely
employs insults like “clown” and “scum,” and even accuses others of drug use as a rhetorical
But Plaintiff apparently believes that while he can say that sort of thing to others,
others cannot say it to him. He has sued Mr. Doe for a derisive tweet referring to him as
“cocaine addict James Woods still sniffing and spouting” in the course of political back-andforth.... He also complains, at length, that Mr. Doe has called him things
like a “clown” and “scum.” Naturally, Plaintiff has himself called others “clown” or “scum”
The filing, quite reasonably, notes that these kinds of hyperbolic claims cannot be seen as defamatory, and since there's no legitimate claim here, there is no reason to do expedited discovery or to unmask Abe List, who is entitled to have his identity protected under the First Amendment.
Oh, and, not surprisingly, White will be filing an anti-SLAPP motion shortly, which may mean that Woods is going to have to pay for this mess that he caused.
The filing also notes that while Woods sent a subpoena to Twitter to try to seek Abe List's identity, the company turned it down as deficient. The full two page letter is in the filing below as Exhibit B, but a quick snippet on the First Amendment concerns:
Meanwhile, Woods has already filed a response in which he is still seeking to uncover the name of Abe List, and which repeats more ridiculous claims about the whole thing, starting off with the simply false claim that the original "cocaine addict" tweet was likely seen by "hundreds of thousands" of Woods' followers. That's wrong. They would only see if they followed both Woods and the Abe List account, which very few did.
The filing, somewhat hilariously, claims that calling someone "a joke," "ridiculous," "scum" and "clown-boy" are not protected by the First Amendment. Which makes me wonder what law school Woods' lawyers went to. Because that's just wrong:
AL's outrageous claim appears to be the culmination of a mlaicious on-line campaign by AL to discredit and damage Woods' reputation, a campaign which began as early as December 2014. In the past, AL has referred to Woods with such derogatory terms as a "joke," "ridiculous," "scum" and "clown-boy." ... Although AL's rantings against Woods began with childish name calling, it has escalated beyond the protections of free speech, i.e., the First Amendment does not permit anyone to falsely represent to the public that another person is addicted to an illegal narcotic.
Um... but Woods himself did exactly that (see above). It's standard hyperbolic speech, which is clearly not defamatory especially when mocking a public figure like Woods who has a history of using the same sort of hyperbolic insults on Twitter. Even more ridiculously, Woods' lawyers claim that by saying that the statement was a joke, that's Abe List admitting that he knew it was a false statement. I can't see that argument flying. I can see it backfiring big time once the anti-SLAPP motion is made.
So, what about those similar tweets made by Woods himself? His lawyers tell the court to ignore those piddly things.
... to the extent AL or TG attempt to argue that the Court should consider other statements on their Twitter accounts, or any previous tweets by Mr. Woods, the argument is a red herring. First, there is no reason any of Mr. Woods' followers, all of whom were exposed to the defamatory statements, would even bother to investigate the speakers and/or their Twitter sites to determine if they were reliable sources. As to Mr. Woods, we are not aware of any false statements of fact made by Mr. Woods and his sometimes sharp commentary on political matters is irrelevant to the allegations here.
Except, uh, again, Woods suggested someone smoked crack, just like Abe List joked that Woods was a cocaine addict. And, again, Woods and his lawyers are just wrong that all of Woods' followers would have seen Abe Lists' tweets. They're just factually wrong.
You never know how courts will rule in any particular case, no matter how ridiculous, but I have a hard time seeing how Woods gets out of this without having to pay two sets of lawyers -- his own and Ken White -- for filing a clearly bogus defamation case designed to shut up (and identify) an anonymous Twitter critic. No matter what, James Woods may not be a cocaine addict, but he has made it clear that he can dish it out but can't take it back when people make fun of him. What a clown.