Donald Trump keeps insisting that he's a strong supporter of the 2nd Amendment of the Bill of Rights, but he appears to have skipped right past the 1st Amendment. We've discussed his stated plans to "open up" libel laws and his regular threats to sue newspapers for reporting on him in ways he dislikes. Trevor Timm, of the Freedom of the Press Foundation, recently tried to count how many times Trump had threatened to sue the media since his campaign began (ignoring all the threats from before the campaign). Turns out it's difficult to count them all:
He also left out the non-journalists that Trump has similarly threatened with lawsuits -- including some of the competitors for the Republican Presidential nomination:
I did not count the nine news organizations Melania Trump, the Republican candidate’s wife, also threatened to sue, nor the Daily Mail along with a small blogger, both of whom she actuallysued in September for publishing stories containing rumors about her past.
Nor did I count when Trump threatened to sue an artist for creating a hilariously unflattering portrait of him, a conservative group called Club For Growth for running campaign ads that Trump did not like, former Republican presidential candidate Ted Cruz for running negative ads against him, or former Republican presidential candidate John Kasich and a Super PAC supporting Kasich for the same—all of which would have serious First Amendment implications. Another time, he seemed to threaten Amazon founder Jeff Bezos with tax audits for owning The Washington Post, which has been critical of Trump. I’m not including this in my count either.
You can then read the still quite long list of examples that Timm did eventually count.
But apparently Trump isn't done threatening to sue his election opponents over protected speech either. He's now moved on and is threatening to sue the Clinton campaign over the "nasty" ads they're running against him:
“And then I saw today ... a commercial where — it was really a nasty commercial, totally made up, about me with vets,” Trump said.
“There is nobody that loves the vets more or respects the vets more. They’re spending hundreds of millions of dollars on false commercials, and it’s a disgrace. So what we’ll do, I guess we’ll sue them. Let’s sue them.”
"I guess we'll sue them. Let's sue them." Remember, again, that Trump has happily admitted in the past to filing bogus defamation lawsuits because he knows it will cost a lot to defend against them. It's one thing to be thin-skinned. It's another to continue to trample on the First Amendment while running to be the person in charge of upholding it.
It's kind of amazing how quickly Donald Trump's lawyers seem to threaten any media outlet for publishing information about him that he doesn't like. The latest target is the NY Times which ran a big story over the weekend with some leaked pages of his 1995 tax returns, suggesting that the guy who repeatedly claims he's great at business, reported personal losses of $916 million. We'll leave the analyzing of the tax returns to those who do that sort of thing (though I will recommend reading this analysis, which suggests that it's likely a key part of the NYT article is wrong concerning Trump's ability to use those losses to avoid taxes for 18 years), but we did want to focus in on something more relevant to what we discuss here at Techdirt. The legal threat that the Trump campaign sent to the Times in response:
Separately, a lawyer for Mr. Trump, Marc E. Kasowitz, emailed a letter to The Times arguing that publication of the records is illegal because Mr. Trump has not authorized the disclosure of any of his tax returns. Mr. Kasowitz threatened "prompt initiation of appropriate legal action."
Unlike most of the nine other times (at least) during this campaign that Trump has threatened to sue a media property for their reporting, this one may at least have some tiny marginal legal basis -- though it's certainly not a slam dunk. What is true is that publishing someone's tax return without authorization is a federal crime.
But, it's not that simple. The NY Times would have a pretty strong First Amendment defense that what they're doing here is very much in the public interest. After all, Trump himself has made his tax returns (and his supposed acumen as a business man) an issue in this campaign by refusing to release them, despite every other major party candidate for President releasing tax returns going back decades (and even Trump himself mocked Mitt Romney for taking too long to release his own tax returns in 2012). So there's no argument here that this isn't newsworthy. It clearly is, and that certainly helps the NY Times's case. To me it seems like it should be a clear First Amendment win for the Times -- and plenty of others agree.
On top of that, Trump himself is regularly talking about getting information out there that hasn't been disclosed through authorized means. Remember, he's "joked" about asking hackers to release Hillary Clinton's emails. And just a few days ago, he tweeted for people to go searching for a former Miss Universe's sex tape in order to discredit her comments about how Trump had treated her.
Who knows if Trump is seriously going to pursue legal action -- in the past he's happily admitted to filing SLAPP lawsuits designed to cost whoever he sues money, even if he knows there's no chance of succeeding -- but if he does, it could become a pretty important First Amendment case... from someone who has already made it clear that he has no respect at all for the First Amendment.
Charles Harder is the California lawyer who likely will forever be known as "Peter Thiel's lawyer" after Thiel helped set up his own law firm with the "focal point" of hunting for any lawsuit that might destroy Gawker. It appears that Thiel is happy to share his pet lawyer with his new best buddy, Donald Trump, or Trump's wife, Melania. On Monday the UK's Daily Mail (not exactly known for its accuracy in reporting) received a threat letter from Harder, representing Melania Trump, claiming that its recent article on Melania was defamatory.
I'm not exactly sure where Mr. Harder is looking to sue but, if it's in the US, it's difficult to see how the article reaches the level of defamation by any stretch of the imagination. Melania Trump is, obviously, a public figure and, under US law, for a news report to be defamatory it needs to not only be incorrect and harmful but also published "with actual malice" -- meaning that the Daily Mail would have known that the published statements of fact were false, or they had a reckless disregard for the truth. Reading through the original Daily Mail article, I don't see how that could possibly be the case. The supposed "bombshell" claims in the piece are statements from a couple of different sources alleging that Melania was an escort when she first came to NY (and that may be how she met Donald in the first place). But the Mail is actually (somewhat surprisingly, given its reputation), quite careful with those statements, pointing out that they came from a book, but also noting that there's little evidence to back them up. It also points to a Slovenian magazine article claiming that the modelling agency Melania worked for was actually an escort service, but the Mail only notes that the magazine said this, and then gets a quote from the guy who ran the modelling agency saying (vehemently) that the story wasn't true.
Furthermore, the Daily Mail noted:
There is no evidence to back up these startling claims made in Suzy magazine.
The rest of the article is just kind of weird. Perhaps it's how the Mail normally reports, but much of the second half is stories from a guy who had a crush on Melania when they were both teens.
But, yeah, it's not at all clear how any of this rises to the level of defamation. The Daily Mail doesn't say anything defamatory about Melania at all. It just notes that certain sources (a book written by an anonymous author and a Slovenian magazine article) make these claims (both of which are accurate factual statements) and then notes that there's little actual evidence to back them up. And yes, this is a trashy tabloidy kind of thing to do ("some people say..." to say something mean, rather than making the case themselves), but it's difficult to see how it comes anywhere near the standard for actual defamation.
And it's not just the Daily Mail that Harder is going after. The Guardian reports that Harder has said that Melania may also sue Politico and the Week for reporting on her immigration status a few weeks back. You may remember the story. Politico noted some discrepancies in the timing of when Melania had claimed she had come to America, and the date of some nude photos that the NY Post dug up from a photo shoot in NY. That led Politico to raise questions about whether or not Melania was an illegal immigrant -- a bit of irony considering her husband's hardline stance against illegal immigration.
Once again, going through the Politico story, it's basically ridiculous to argue that anything in there is defamatory. Again: the statements need to be statements of fact (not just questioning things) that were made with "actual malice." There's no way the Politico article reaches that level.
But, again, we're talking about Charles Harder and the Trumps here, and the legitimacy of the case may be secondary to just threatening people. Trump, of course, has a long history of SLAPP-like lawsuits designed to bury journalists he doesn't like. And that's not me just saying that, Trump has flat out admitted to doing this:
Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. "I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about."
And, again, that's the basis of Thiel's campaign against Gawker, where no matter what you think of the Hogan case, the other cases that Harder has filed against Gawker appear to pretty clearly be basic SLAPP suits designed to burden the company with legal fees.
This is being written under duress because I don’t have enough money to fight a legal battle against the Trump machine.
You can see the full threat letter that Charles Harder sent on behalf of Melania and judge for yourself. Harder claims that he can show "actual malice" in the reporting "by nature of the fact that my client has publicly denied the foregoing statements." That's not, actually, how one proves "actual malice."
Without being able to see the original stories at Inquisitr and Liberal America, I can't say definitively if either one said anything that would be considered defamatory, but it certainly sounds like they were just quoting what was in the Daily Mail article, which does not seem to be defamatory.
So what are we left with? A thin-skinned Presidential candidate who has admitted to happily filing bogus lawsuits to burden journalists whose reporting he doesn't like, whose wife has teamed up with a lawyer who was basically set up in business to "focus" on filing a bunch of lawsuits for the purpose of overburdening a publication another billionaire disliked. People have been disagreeing with me over whether or not the Gawker shutdown is a big deal, insisting that "if you just don't publish private sex tapes, there won't be a problem." Yet, here we have publications already being intimidated into not publishing stories and other larger publications being threatened for reporting which does not appear to be defamatory at all.
Doesn't that seem the least bit problematic to some people?
Is there no goodwill that the Pokemon Company's lawyers won't step in and kill off? With the popularity of Pokemon Go, some third parties had started trying to develop some services to go with it, and as part of that, a few have tried to create Pokemon Go APIs. A user going by the name Mila432 had created an unofficial Pokemon Go API in Python, and posted it to GitHub. If you go now, you may notice that the Readme now reads:
see you in court nianticlabs, with love from russia xoxo
That's because the Pokemon Company (not the game developer Niantic, but rather the Nintendo subsidiary that owns a piece of Niantic along with all the Pokemon rights) sent Mila432 a legal nastygram claiming that the creation of the API could violate the Computer Fraud and Abuse Act (CFAA). Mila432 posted screenshots to Reddit. We have all the screenshots posted at the end of this post.
Additionally, your actions with respect to the Mila 432/Pokemon_Go_API potentially violate the federal Computer Fraud and Abuse Act ("CFAA"), a statute that prohibits the unauthorized access of servers and access which exceeds authorization, as well as similar state statutes. And your inducement of others to violate numerous terms of service provisions violates the CFAA. While notice is not a prerequisite to liability, Pokemon hereby puts you on notice that you are barred from accessing Pokemon servers or infrastructure, and barred from facilitating access by others. Any continued access, whether directly or at your direction or on your behalf, will be unauthorized.
See that language right there, about putting Mila432 "on notice" and saying that s/he is barred? That's straight out of the very recent Facebook v. Power.com decision in California, where the court ruled that once a company (in that case, Facebook) had sent a cease-and-desist notice, any further access was a CFAA violation. We were troubled by that ruling, and the use of it here further illustrates how problematic it was.
Now, yes, you can argue that unauthorized APIs can cause problems for games -- and that's true. Of course, it can also help make them more compelling by allowing others to build on the game and add more value. But, wherever you come down on that debate, going legal seems pretty silly. Niantic, for its part, had simply gone the technology route of limiting access to third-party servers, to deal with some quality of service problems created by such third parties accessing its system. That is, rather than totally freak out about such APIs, it noted the actual problem (overloaded machines) and sought to fix it through technology.
It's just the Pokemon company that took it up a few unnecessary notches to pull out a big gun like the CFAA. But, I guess, how can I be surprised? This is the same company that legally fucked over a party by Pokemon fans at PAX last year, suing the people who organized it.
Any time we discuss the segment of our population that is still, despite all evidence to the contrary, pushing anti-vaccination conspiracy theories out into the ether, the comments section is inevitably invaded by these proponents. I know I can't stop it, so just go ahead and leave what I'm sure will be your well-reasoned, science-backed arguments as to why we shouldn't trust one of the most life-saving kinds of medicine ever invented.
That said, this is not a post about the plausibility that vaccinations are the reason for all the world's ills. It is instead a post about how the distributors of the upcoming sure-to-be smash hit film about the horror of vaccinations, creatively entitled Vaxxed, are also going around threatening people arguing against its message with defamation for pointing back at the filmmakers' own words.
Meet Fiona O'Leary of Ireland. Fiona is an advocate for autistic children, helping to run a group called ART (Autistic Rights Together) as well as a Tumblr page dedicated to dispelling the myths of autism and vaccines. On that Tumblr page and on social media, O'Leary has often set her sights on the makers and distributors of Vaxxed, including producers Polly Tommey and Del Bigtree. Included in her pushback, O'Leary points out some rather unfortunate comments both have made about autistic children, as well as interviews and videos in which Tommey in particular pushes religious faith to treat autism. Through it all are the calls for parents to not vaccinate their children.
The result of this work has been a letter sent threatening a defamation lawsuit.
Fiona O’Leary has posted the threats, from Cinema Libre Studio CEO Philippe Diaz, on her Facebook profile:
Wow you threaten to sue an Autistic Advocate and Mother to five children in West Cork! Why? Because I don’t want babies and children DYING from preventable diseases! Because I have had enough of your lies about Vaccines causing Autism! Because I am sick of how you exploit Autistic people! How dare you!
And the threat letter itself:
As always, a great rule of thumb applies here: if someone accuses another person of defamation without pointing out a single specific thing that is supposedly defamatory, it's a bullying attempt and should likely be ignored. This case appears to be no different. With all that O'Leary has said about the film and its producers, and with all that she's posted that includes responses to specific things Bigtree and Tommey have said and claimed, to fail to cite even one defamatory instance should tell you everything you need to know.
It seems that this video response in particular is what likely caused the threat to be sent. In it, O'Leary details how the two producers have compared autistic children to monkeys and dogs, threatened government officials, and even declared that firearms should be used to keep children from being vaccinated.
And now that the threat letter has been sent and then shared by O'Leary with her followers, and now that the press is picking it up, all of those comments are being shared even more widely than they would have been otherwise. It seems the Streisand Effect is taking the deplorable comments of these anti-vaxxers viral, because the universe does not lack a sense of irony.
Earlier this week there was a fascinating piece in the New Yorker by Jane Mayer, interviewing Tony Schwartz, who is credited as the co-author to Donald Trump's first and most famous book, The Art of the Deal (Schwartz is interchangeably referred to as the ghostwriter or co-author -- his name appears on the book as the much smaller type-faced co-author, which is unlike most ghostwriters -- but Schwartz claims he really wrote the book after just following Trump around for a bit and getting some ideas from him). The interview with Schwartz is great storytelling and focuses on his belief that Trump would be a disastrous President (and the fact that The Art of the Deal was exaggerated reality).
Despite the fact that the Republican National Convention happened this week, where Trump was officially nominated as the Republican Party candidate for President, Trump apparently found the time to have his lawyer dash off a ridiculously stupid cease and desist letter. It's the kind of cease and desist letter that we tend to see from complete cranks, rather than serious businessmen, let alone the official nominee for President from a major political party. Everything about the letter is flat out ridiculous (and at points, contradictory). Throughout it, Trump's Chief Legal Officer, Jason Greenblatt, keeps saying that Schwartz's statements are defamatory, but fails to name a single one. As has been pointed out many times, if you're screaming "defamation" but fail to point to a factual statement that is defamatory, you're just making noise.
The letter also claims that Schwartz is attempting to "rewrite history" and even starts out suggesting that Schwartz's claim of writing the book is an exaggeration, because the contract was merely to "provide certain services." But, rather than actually follow through on that line of argument, Greenblatt then more or less admits it, while arguing something totally different: that the book was successful because of Trump's association with it, not because of Schwartz. But Schwartz never argued otherwise, and that's completely besides the point.
Mr. Trump hired you to provide certain services in connection with the
preparation of the Book. Although it has long-suited you to dramatically overstate your work on
the Book in order to further your own career, (for example, telling George Stephanopoulos on
Good Morning America that, "I wrote every word of [the Book], Donald Trump made a few red
marks when I handed him the manuscript, but that was it."), let me set the record straight about
the origin of the Book: Mr. Trump was the source of all of the material in the Book and the
inspiration for every word in the Book. You would not have had access to any of the information
that appeared in the Book without Mr. Trump. He was the mastermind behind the deals described
in the Book, and he provided you with the facts and facets of each of these deals in order for you
to write them down. What's more, Mr. Trump is wholly responsible for the great success of the
Book, not you. It was his ingenuity that made the deals described in the Book happen, and it was
his promotion of the Book that made it a runaway success.
Again, so what? That's got nothing to do with Schwartz's point and is nowhere near defamatory. Greenblatt also goes on to weirdly attack the one claim from Schwartz that he's pretty sure that many of the things in The Art of the Deal are false. Greenblatt wastes many perfectly good English words arguing that the book contract gave Schwartz the right to make changes to the book to make sure it was accurate, and somehow suggesting that his failure to change things proved that he didn't actually believe things in the book were false. Of course, again, this is not what Schwartz was arguing. He was saying that the stuff Trump told Schwartz, which Schwartz then crafted into the narrative of the book, were lies told by Trump. That should be obvious to anyone with basic reading comprehension skills.
Also, the above accusation is doubly weird, because just a page earlier in the letter, Greenblatt was arguing that Schwartz was a mere conduit and was basically just hired to scribble down Trump's words of wisdom. If he played such a minor part, then isn't that more or less admitting that Schwartz would have no say in correcting falsehoods in the book? The letter also tries to claim that Schwartz has been begging Trump for more work for decades and recently signed an agreement for royalties on the audiobook version of it. Schwartz, for his part, denies ever asking Trump for more work and says he actually turned down the offer to work on the sequel. The agreement on the audiobooks may be true, but it's difficult to see how that matters. Schwartz now speaking out against Trump, if anything, would likely diminish the interest in the book, and would impact Schwartz's own royalties (for which Schwartz has pledged to charity for any works purchased this year).
Even more hilariously, Greenblatt ends the letter by demanding Schwartz not only shut up, but also return all the royalties earned over the years from the book, including his half of the $500,000 advance.
Thankfully, Schwartz had lawyer Elizabeth McNamara at Davis Wright Tremaine respond to the letter, calling bullshit on it. The whole thing is worth a read (it's really only two pages), but here's a snippet:
Your letter alludes vaguely to "defamatory statements," "outright lies" and "downright
fabrications," but you do not identify a single statement by Mr. Schwartz that is factually false,
let alone defamatory. Instead, it is self-evident that Mr. Trump is most concerned with Mr.
Schwartz's well-founded expressions of his own opinion of Mr. Trump's character, as well as
Mr. Schwartz's accurately taking credit for the writing of The Art of the Deal, which you
pointedly do not contest. Also, in Mr. Trump's eyes, Mr. Schwartz has been "very disloyal" in
speaking out on these issues, as he is quoted saying to Mr. Schwartz in the recent New Yorker
article by Jane Mayer.
The fact that Mr. Trump would spend time during the week of the Republican National
Convention focused on settling a score with and trying to censor his co-author on a thirty-year-old book is, frankly, baffling, but only further underscores the very basis for Mr. Schwartz's criticisms. In any event, the demands you make in the letter are without any foundation in law or
fact. Mr. Schwartz will not be returning any of the advance or royalties from the Book, and he
has no intention of retracting any of his opinions about the character of the Republican nominee
for the presidency, nor does he have any obligation or intention to remain silent about this issue
Of course, as we've noted in the past, this is kind of par for the course for Trump. When people say mean things about him, his lawyers tend to go ballistic, threatening (and sometimes suing for) defamation, even when there clearly is no defamation at all. This is why it's so ridiculous when Trump talks about "opening up" libel laws to go after those who write or say mean things about him.
Being so thin skinned and willing to at least threaten to drag an author to court for stating his opinion hardly seems particularly Presidential.
It's become common game by many in America and elsewhere to crap on lawyers whenever the opportunity presents itself. This is done unfairly in many cases, with a lack of understanding of what the adversarial nature of our legal system requires of legal advocates. For instance, a lawyer that strongly advocates for a client accused of something terrible isn't himself or herself terrible. That's the duty of the job.
But for one of the lawyers on the staff of Johnny Manziel, the seemingly troubled and frequent guest of the court who was once primarily known as a football player, it appears both that proper lawyer-ing is a bit more difficult than for most and that he's a bully to boot. As you may have heard, Bob Hinton, who had been tasked with representing Manziel in his domestic abuse court case, accidentally texted the Associated Press information about his attempts to settle the case in a rather unfavorable light with respect to his client.
An attorney handling Johnny Manziel's domestic violence case expressed doubts about the Heisman Trophy-winning quarterback's ability to stay clean and said he was given a receipt that shows Manziel may have spent more than $1,000 at a drug paraphernalia store just 15 hours after he was involved in a hit-and-run crash, according to a lengthy text message accidentally sent to The Associated Press. Defense attorney Bob Hinton's text indicated Manziel's legal team was seeking a plea deal with prosecutors, but suggested that could be tricky.
"Heaven help us if one of the conditions is to pee in a bottle," the attorney wrote.
This oops-text happened after the AP had apparently sent Hinton a text message requesting comment about a hit-and-run accident that Manziel was reportedly involved in (Manziel claims to be the victim of the accident). Hinton had meant to text what he sent to the AP to co-counsel. The communication also included information about a smoke-shop receipt that may have indicated that Manziel had been purchasing synthetic marijuana, a fact not useful for the defense team of a high-profile individual with well-covered run-ins involving substance abuse. To accidentally text that information to the Associated Press has to be one of the best examples of what not to do as an attorney for such an individual.
But the really face-palm-inducing move by Hinton was to then threaten to sue the AP if it did any reporting around that text message.
When asked about the text, Hinton said he had meant to send it to co-counsel Jim Darnell and was unaware the AP had received it instead. He insisted the contents were protected by attorney-client privilege and threatened to sue if certain details were published.
I guess we'll get to take the measure of that threat, as the AP most certainly did report on not only the text, but the subsequent threat as well. Such threats are unlikely to ingratiate a lawyer to the press and, while I won't say the AP reported because of the threat, it seems like the added threat has given the story some extra flavor, propelling it Streisand-style into wider coverage.
And, not surprisingly, others are now reporting that Hinton has been booted from Manziel's legal staff as a result. Not a good day for the counselor, I think. The mistake was bad enough, but the attempted cover-up, as always, ends up doing more harm.
Folks in the Bitcoin/blockchain world can be fairly opinionated -- that's no surprise. But just because you have an interview go sideways, it doesn't mean you get to threaten a lawsuit over it. That's not how it works. Perianne Boring founded and runs a lobbying organization focused on Bitcoin/blockchain issues called the Chamber of Digital Commerce. I have to admit to not being that familiar with the organization (I'm more familiar with another organization called Coin Center). However, late last week, Boring appeared on a podcast called Bitcoin Uncensored. To say the interview did not go well... would be an understatement.
Again, there are lots of different opinions around Bitcoin and blockchains, and the hosts of the show are pretty clearly skeptical of both Boring's position and knowledge on the issues -- and they don't hide their skepticism at all. The interview is basically a long attempt to pick apart Boring's knowledge of Bitcoin/blockchain and the regulatory issues related to it. It doesn't really get very confrontational in terms of yelling. They just keep asking questions that lead to more buzzwordy answers than substance, and then ask followups that highlight that. It does come across as a bit of badgering by the hosts who are playing a game of gotcha. But, still...
Not surprisingly, the interview doesn't go over well. They close it out by highlighting that she doesn't appear to understand a number of issues related to Bitcoin/blockchains, and they worry about what happens when people think she represents the technology and the regulatory questions. They point out that there are tons of scams in the space, and they worry that when someone represents the space and can't understand what's a scam and what's legit, it can lead to very bad results overall.
Fine. That kind of thing happens. People give bad interviews with people who are deliberately trying to make them look foolish. It doesn't necessarily mean they really are foolish, just that they got caught in such an interview. What happens next is where things go weird. Boring apparently emailed one of the hosts of the show, Chris DeRose, to demand he take down the episode. Like so many people who are angry about content online, she trots out all the ridiculous reasons why:
Incredibly disappointed by what happened today. Please delete the episode (link referenced below) immediately -- you are not authorized to publish this content. A cease and desist letter is forthcoming, and charges of harassment and slander will follow if you do not comply.
Yeah, so that's not how any of this works. She clearly agreed to go on the program, so there's no "authorization" needed to publish the interview. Publishing her own interview is also neither harassment nor slander. She does get credit for being correct that "slander" is the word for defamatory speech (whereas it's libel if it's written), but having listened to the entire interview, I don't hear anything that comes even remotely close to slander. They do mock her, and are perhaps a little harsh, but it's not slander. And, of course, threatening them only makes this worse. I never would have heard about any of this if she hadn't sent such a bogus threat email, and now it's getting more attention because of it. There's a term for that somewhere...
I actually think it's good that there are people working to educate politicians on Bitcoin and blockchain technologies. I'm not nearly as skeptical as the guys who run the podcast are of the technology, though I agree that there are lots of questions about where it will go and if it will ultimately be as useful as some expect. I also recognize that sometimes interviews can go weird and not come out the way people expect. But to react by demanding it be taken down and waving around bogus legal threats doesn't seem particularly productive, and only seems likely to call into greater question Boring's other claims.
from the Ellora's-Cave-re-enters-the-realm-of-speculative-financing dept
Back in 2014, erotica publisher Ellora's Cave sued the person behind the influential and respected website Dear Author for defamation in response to a post questioning the imprint's financial stability and detailing multiple authors' claims that the publisher wasn't paying out royalties in a timely manner.
Dear Author based its post on statements from Ellora's Cave writers, as well as public records, which included a handful of tax liens against EC founder Tina Engler (a.k.a. Jaid Black). The post was a balanced and sobering examination of the publisher's financial problems and included plenty of citations for every assertion it made. Rather than address the issues raised by the post, EC/Jaid Black decided to sue.
This case may be over, but Ellora's Cave's dire financial state persists. Authors and staff say that they're still not getting paid, which means we could soon be hearing of a new lawsuit, bankruptcy, or both.
In fact, the situation is so bad that Ellora's Cave is neglecting to pay their counsel. Or so a footnote in one of the filing suggests:
Further, Ellora’s may be planning for bankruptcy even at this time–but have refrained from doing so in the hopes that this SLAPP suit will bear fruit. In fact, Ellora’s counsel has reported to the undersigned on numerous occasions that Ellora’s has failed to pay his bills.
The Digital Reader also pointed out that Dear Author wasn't the only entity to pick up on the fact that EC's payments to its authors were either greatly delayed or completely nonexistent.
Saoirse Moen also noted that Ellora's Cave is not in good standing with the RWA [Romance Writers of America] because it wasn't paying its authors, and the tweets of numerous authors who say that they are only now getting their February 2015 royalty checks confirm the financial issues.
Author Kellie Jamieson has revealed on Facebook that Ellora's Cave is making legal threats against the RWA. On Thursday she published part of a notice which she says the RWA sent out.
RWA has repeatedly contacted management at Ellora’s Cave to demand payment to authors. RWA has also requested that the publisher revert rights if it is unable to pay authors in full. The response we received was a letter signed by Steve Mastrantonio, attorney for Ellora’s Cave, in which he states, “any premature comment by RWA that Ellora’s Cave is in breach of their agreements is reckless, false and Defamatory.” Mr. Mastrantonio asserts that Ellora’s Cave is paying authors as it should, and “any false comments by RWA to harm his clients reputation will be dealt with in a forceful manner.
In light of Ellora's Cave's lawsuit against the Dear Author book blog, that is not a legal warning so much as it is an outright threat, an attempt to silence the RWA through legal intimidation.
The RWA has basically cut Ellora's Cave off for violating its Code of Ethics -- which includes things like not paying royalties on time. It has banned EC from RWA conferences and forbidden it from using the group to recruit new writers.
The last lawsuit apparently didn't reverse EC's downward trend. Apparently, the publisher has enough money to fund litigation, even if it's still having trouble paying its authors. Nate Hoffelder of the Digital Reader has rounded up comments from EC authors indicating the publisher is anywhere from 8-11 months behind on royalty payments.
Hoffelder notes that the RWA has stood up to major publishers like Harlequin in the past so it's unlikely to be intimidated by EC's legal threats. And it now appears that Hoffelder's reporting has added him to EC's legal threat list. This Facebook post by EC founder Jaid Black was spotted by a reader of Hoffelder's site:
This guy is the blogger who reported Allison Kelly's email as factual and not at all misleading. Oh and he libelously referred to the lawsuit we filed and later settled as a SLAPP suit. Where's the judicial ruling backing up that sick assertion??? One should be able to prove what one writes about others.
Somehow, EC believes it can sue its way back to respectability. But that's incredibly difficult to do when you're better known for legal threats than timely royalty payments.
from the 'this-will-end-the-criticism-once-and-for-all!' dept
Copyright: for when you just don't feel like being criticized. (Currently available for periods up to, and including, seventy years past your death!)
Matt Hosseinzadeh, a.k.a. "Matt Hoss," a.k.a. "Bold Guy," a.k.a. "Horny Tony," runs a moderately successful YouTube channel containing his moderately well-done videos of his "characters" performing feats of pickup artistry and parkour. It's all fairly ridiculous, but considering the depths pickup artists can plumb, the HossZone videos are actually fairly tame.
According to H3H3, it all began with a demand for the removal of the video and $3,750 in legal fees racked up so far by Hoss's lawyer. From there, it got stupider. After failing to secure instant capitulation, HossZone's lawyer altered the terms of the deal. ("Pray I don't alter it stupider...") H3H3 could avoid paying any money by apologizing via their channel for misappropriating Hoss's "art," say some nice stuff about him in their apology video, and throw additional compliments HossZone's way for a period of no less than 60 days. (I am not kidding. Watch the video above.)
H3H3 refused to do so, so Hoss has now filed a copyright infringement lawsuit against Ethan and Hila Klein. Hoss also hit H3H3 with a copyright strike, despite the fact that the video central to the complaint had been set to "private" shortly after his lawyer began issuing legal threats.
Unlike others who have sought to abuse copyright to censor critics, Hoss appears to have his end of it pretty much nailed down. He has a valid, registered copyright that predates the H3H3 reaction video and his complaint isn't filled with vagues assertions about ethereal property and even vaguer assertions about how it's been violated.
That being said, detailed allegations aren't always credible allegations. It appears that fair use is still misunderstood by a great deal of the population, including those representing plaintiffs in copyright infringement lawsuits. From the complaint:
On or about February 15, 2016, Defendants published a video on their YouTube channel that copied and displayed virtually all of Mr. Hoss’s original Work (the “Infringing Video”).
The Infringing Video features the Defendants purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop in the Defendants’ “comedy routine.”
Contrary to what Hoss's lawyer implies here, there is nothing in caselaw that forbids the use of "virtually all" of a work under fair use. Judges and juries may be more sympathetic if you don't, but this does not automatically make a work infringing, rather than fair use.
The 13 minute h3h3 productions video in questionuses about three minutes of HossZone’s skit, while the rest of the video features Ethan and Hila talking about the setting, script, character development, and even the costume design used by HossZone. They also talk about random things pertaining to their life, as most vlogs of theirs do.
The original video runs 5:25, so H3H3 used a little more than half of it, but that half only makes up about a third of the total reaction video runtime. Not that all this math makes much of a difference when fair use is raised as a defense, but it does serve two purposes: it illustrates there was a great deal of commentary surrounding Hoss's content and it appears to contradict the claims made by the plaintiff.
The Infringing Video was created and published without license from Mr. Hoss in direct violation of Mr. Hoss's exclusive rights as an author pursuant to 17 U.S.C. § 106.
Fair use does not require the obtaining of a license from a copyright holder (no matter what Sony Music claims...) because that's exactly what "fair use" is: the use of copyrighted works in a non-infringing way.
The Infringing Video does nothing to alter the original Work with new expression, meaning, or message
The Infringing Video fails to contribute a single substantive comment, criticism, or even parody to or of the original Work.
These are opinions, not factual assertions. The court will determine how substantive Hoss's take on H3H3's video is, but even those standing far outside of the IP-wonk circle can plainly see these are purely subjective statements.
Aside from the fact, as described in greater detail above, that the Infringing Video does not constitute a transformative fair use, it is also the fact that the Defendants operate the Ethan and Hila YouTube channel, where they published the Infringing Video, as an entertainment channel via which the Defendants generate advertising revenues.
People make money from fair use all the time. This argument has been debunked so often, it should ingrained in the mind of any decent IP lawyer.
What's interesting about this lawsuit is that HossZone also accuses H3H3 of filing a "false" DMCA counter notification in response to Hosszone's takedown request.
On or about April 26, 2016, the Defendants submitted to YouTube a counter notification, pursuant to 17 USC § 512(g)(3), affirming under penalty of perjury that the Infringing Video was improperly removed because it was, among other reasons, a fair use and “noncommercial.”
And if it's Hoss's takedown that delivered a strike to H3H3's account is determined to be bogus, what then? Still going to go HAM on the "perjury" angle?
Hoss's lawyer seems to take particular issue with the possibility that the Klein's may have received ad revenue from their reaction video. In addition to claiming YouTube's third-party advertising makes any uploaded video a "commercial" product, the attorney claims that most of H3H3's popularity is due to Hoss's talent and inherent likability, rather than the commentary added to the video or the rest of H3H3's video productions.
Upon information and belief, the Defendants have unfairly derived profit from the Infringing Video in the form of their YouTube channel, which generates advertising revenue, increasing in popularity during the two-month period that the Infringing Video was displayed.
Upon information and belief, the Defendants’ YouTube channel more than doubled its number of subscribers due, at least in part, to the popularity generated by the Infringing Video.
The lawsuit also claims that Hoss is so charismatic his 3-minute appearance in a video mocking him somehow resulted in the Kleins being able to generate income from Patreon and Kickstarter.
All in all, it's a fairly ridiculous lawsuit which is made worse by its apparent motivation: to remove something Matt Hoss doesn't like from the internet. Even if this somehow works out for the parkouring pickup artist, the battle is already lost. A supporter of the Kleins set up a fundraiser for their legal defense, which amassed over $100,000 in under 24 hours. Meanwhile, what's left of Matt Hosszone's web presence is being savaged by dozens of angry commenters -- most of it far more brutal than anything the Kleins said during their criticism of his video.