Court Tells Ex-Wife Of Husband Who Killed Himself To Use Copyright To Delete Anything He Ever Wrote Online

from the that's-not-what-copyright-is-for dept

Last week, we wrote about the unfortunate situation, in which it appeared that a lawyer representing Dina Mackney was claiming copyright on her ex-husband’s suicide note (in which he says many unkind things about his ex-wife) and demanding the content be removed. Since then, we’ve found a lot more of the details of what happened, and discovered a lot of additional content that Mackney’s lawyer has been able to remove from the internet with the help of a judge — who not only gave the ex-wife full control over her ex-husband’s “intangible assets” but further directed her to seek to delete all sorts of content from the internet. Now, I should note up front a few things: there may be reasonable claims from the lawyer concerning the privacy of the children (and possibly others) involved. Furthermore, having read through way too many details in this case, it should be noted that Chris Mackney does not come off as the most credible narrator of his own situation. This certainly makes the situation difficult on a variety of levels. That said, it is still immensely troubling to think about the kind of precedent this sets, and how it clearly sets up copyright as a tool for censorship, not just of a suicide note, but of all sorts of online activity. Furthermore, we’ve been careful in the documents that we’re posting to leave out things that are more private in nature (which go beyond some of the claims in the suicide note), instead focusing solely on the legal issues here.

It appears that, back in March, a judge put Dina Mackney in charge of Chris Mackney’s estate. Given the rancorous divorce proceedings and the eventual suicide, this doesn’t seem even remotely appropriate. Then, around the same time, a judge in a Virginia court basically issued a court order telling Dina Mackney to go ahead and seek to use those powers to basically censor a whole bunch of what Chris Mackney had to say online.

ORDERED AND DECREED that Petitioner shall have the legal authority to take any reasonable action necessary to access, remove and destroy any web postings, to require that websites be taken down and/or otherwise dispose of intangible property including but not limited to information that the deceased has posted online on any website or social media account including, but not limited to material located at the following domain names:

After that is a long list of domain names, including various blogs that have discussed the Chris Mackney story, but also a broad swath of other sites, including all of Google (specifically calling out Google Docs and Google Drive — where Mackney had posted many documents, including news articles that he believed supported his position), Facebook (where Mackney had originally posted his intent to commit suicide), Scribd, Reddit, Wikipedia and many more. Some of the links include sites where Mackney had previously commented on blog stories or other discussion groups.

The order goes on to basically tell Dina Mackney that she can seek to delete all evidence of her husband existing online at all:

… and to wind down and remove any website posts or other online activity by the decedent at such time and in such direction as the Administrator may deem appropriate, it being the intent that this Order shall apply to any online activity by the decedent during his lifetime.

Again, even while being conscious of the legitimate privacy concerns raised by the situation, this is immensely troubling on multiple levels. First, the idea here is clearly to use copyright as a tool to delete Chris Mackney’s online existence entirely. And, indeed, while the lawyer raises other arguments (including privacy and defamation), the letters (and I’ve seen about half a dozen at this point) all lead with the copyright claim, citing the DMCA’s notice-and-takedown provisions. Here’s one example.

Second, while some of the reposted content may raise certain issues, the content that Mackney himself posted to various sites clearly is not infringing. When he posted it to those sites, he almost certainly granted those sites a perpetual license to post that content. To after-the-fact claim copyright on it is bizarre and ridiculous. For much of the other content, Mackney himself clearly was granting an implicit license for the content to be shared (and sometimes shared widely). There may be legitimate reasons why that content should not be shared, but copyright infringement is clearly not one of those — and that’s what it’s being used for here, not just for the content that may legitimately go too far from a privacy standpoint, but for everything Chris Mackney has ever posted online.

It’s difficult to see how that’s appropriate in any situation, even if we were dealing with a loving widow after decades of a happy marriage, let alone the opposing partner in a bitter divorce battle (no matter whose arguments in the divorce made more sense). The situation here is certainly messy, but using copyright to basically try to delete Chris Mackney’s entire online presence appears to be a massive overreach of copyright law.





Filed Under: , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Court Tells Ex-Wife Of Husband Who Killed Himself To Use Copyright To Delete Anything He Ever Wrote Online”

Subscribe: RSS Leave a comment
66 Comments
David says:

Re: Re:

If this is taken as a precedent, it means that permissions granted under copyright can be withdrawn at a latter date.

Have you been living under a rock? What do you think retroactive copyright extensions are? If you bought a record in the sixties, you were granted the right to freely copy and distribute it now or even considerably earlier.

This right has been withdrawn since then.

jill mitchell says:

Re: Documents available...

please contact me about Chris I can provide you with substantive documentation that will establish him as being a highly credible victim of abuse. I understand that the his hyper intense focus can be interpreted as being uncredible, but in fact that hyper focus is a classic symptom of PTSD and other panic and terror related disorders. The fact that his ex, rather than his brother Jeff was designated as the executor of his “estate” is beyond ludicrious. I wonder if Jeff even knew about her effort before the court proceeding. To be sure, Chris was the worst example i’ve run across in terms of the constant, unrelenting attacks by his ex wife and father in law (ie: felon). I’ve saved all his writings to give to his kids when they are of age. thanks

Please contact me.

Roger Strong (profile) says:

One of the most disturbing things I’ve had to do is remove the online presence of a coworker and friend who passed away.

Remove him from the company web site. Remove his domain login. Remove his email account. Remove his phone extension. Remove his voice mail account. Remove his information from his PC. Remove him from various other online accounts and services. It was like I was killing off the remaining part of him, and burying the traces that he ever existed.

To do it maliciously – or even merely without an appropriate reason – seems unspeakably evil.

Anonymous Coward says:

Re: Re:

To do it maliciously – or even merely without an appropriate reason – seems unspeakably evil.

And that’s what is pretty galling about this situation. While there could be points in this particular situation where some of Chris’ speach could and maybe should be removed, like for purposes of legal privacy, defamation, or even simple decency.

Instead a completely different person (and one that almost definitely has a specific, and possibly dishonest agenda) is given full rights to request the removal of all of Chris’s speech and expression regardless of the reason? I can really feel the ‘progress of the arts’ right there. Again copyright is being used for a purpose completely separated from its intent.

Pragmatic says:

Re: Re:

Remove him from the company web site. Remove his domain login. Remove his email account. Remove his phone extension. Remove his voice mail account. Remove his information from his PC. Remove him from various other online accounts and services. It was like I was killing off the remaining part of him, and burying the traces that he ever existed.

It makes no sense to continue the fiction that the man is alive or still working for the company when he is not. In my company, when someone leaves, this is what we do because that person isn’t available any more to attend our customers. However, a comment in the company blog, or even an entire post to wish the person well, often follows when someone decides to leave for another position elsewhere. I’m sure your coworker received a memorial writeup somewhere in the company blog or social media. That’s appropriate. Well, I hope he did.

mcinsand (profile) says:

I can't help but wonder...

Please tell me that I’m misunderstanding something and that there is some barrier of rationality that would prevent Ms. Mackney et all from disturbing Techdirt over articles like this. The court does seem to be setting a dangerous precedent for squelching potentially-displeasing dialogue. Read something you don’t like about you or your family? Claim copyright and get a court-approved order to force undesired communications to disappear.

Anonymous Coward says:

This is the kind of censorship “right to be forgotten” proponents want to get away with regardless of the circumstances. It is the equivalent of an author’s estate being able to force the destruction of all publicly available copies of an author’s work, including those published with the author’s consent.

Anonymous Coward says:

Second, while some of the reposted content may raise certain issues, the content that Mackney himself posted to various sites clearly is not infringing. When he posted it to those sites, he almost certainly granted those sites a perpetual license to post that content. To after-the-fact claim copyright on it is bizarre and ridiculous. For much of the other content, Mackney himself clearly was granting an implicit license for the content to be shared (and sometimes shared widely). There may be legitimate reasons why that content should not be shared, but copyright infringement is clearly not one of those — and that’s what it’s being used for here, not just for the content that may legitimately go too far from a privacy standpoint, but for everything Chris Mackney has ever posted online.

The problem with your argument is that the licenses were revocable and were in fact revoked. But you’ll just whine about everything, won’t you?

R.H. (profile) says:

Re: Re:

Facebook Statement of Rights and Responsibilities Part 2 Sub-Section 1 states:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. [emphasis mine]

If anyone else shared his suicide note post, Facebook retains a license to use it until everyone else who has shared it deletes it. This is only part of what you sign away to Facebook in return for using their services.

Anonymous Coward says:

Re: Re: Re:

This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

That is saying if you share something, you are permitting others to hold a copy, and deleting your account will not delete the copies you have permitted. That is nothing sinister, just the legalese to say that Facebook will not delete copies you have permitted others to have when your account is deleted.

Anonymous Coward says:

Re: Re: Re: Re:

? copies?

I notice that Facebook uses the ?IP content?, while you’re using the term copies. That provokes a question?

Are the copies at issue ?computer programs??

A ?computer program? is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

Are the copies used by Facebook computer programs?

G Thompson (profile) says:

Re: Re:

Actually thats bullshit, and not just bullshit but totally unmitigated uneducated idiotic bullshit!

Those licenses are and cannot be revoked other than by the actual licensee and NOT by his estate for the purpose of desecration (what other word is there) to remove fully and with malice all history of the persons absolute existence and ideas on content that is absolutely not contextual to the action at hand.

In fact his actual descendants (children) would have an absolute case against there mother (even now) for removing there fathers thoughts and actual online being and therefore denying them the absolute right to know whom he was.

This doesn’t stop specific information from being removed, but that specificity has to be weighed against the absolute human right to be immortalized by your thoughts and actions no matter what those thoughts/actions are. For the mother to even attempt this malicious and ego driven action means she has major psychological issues and gives reasonable suspicion that the children might be at risk of psychological or other abuse. The triggers are all there.

She isn’t just desecrating the memory of their father, she is removing him from ever existing in the first place in all ways shapes and form.

Anonymous Coward says:

Court orders

How much leeway does a court have in compelling parties not involved in a case to follow certain orders, even when those orders are contrary to the rights those third parties would normally enjoy? Can a judge in some Podunk jurisdiction order the whole world to take down certain content without each person being afforded the right to act as a defendant?

That One Guy (profile) says:

I was fairly neutral in this case, not quite sure how accurate the ex’s claims were about how terrible a person the wife was, but given she’s essentially trying to wipe away his existence online, remove any evidence that he ever even existed there, I’d say the evidence that she really is as bad as he claimed are becoming more and more probable.

I mean how spiteful, how petty, do you have to be to want to completely eliminate any evidence of a person from the net once they’re dead? To completely destroy any trace of them so that they might as well have never existed?

That, to me, is not the kind of actions a decent person would even consider, so by her own actions she seems to be doing nothing more than validating any claims he might have made against her and her nature.

Chris ODonnell (profile) says:

My wife has a friend that committed suicide last year. His Facebook account is still there. It’s more than a little creepy to see him on the friend list on my wife’s wall. Death and online identity is still a huge unanswered question, and I imagine we’ll see a lot more stuff like this case before we figure out how to handle it.

Pragmatic says:

Re: Re:

Status update: “X___ has sadly passed away.”

Just make it clear he’s not with us any more so people don’t go trying to get in touch with him. I mean, who handles the account when someone passes away? It’d be appropriate to make a memorial page but to leave the guy’s online litter lying around… why would you do that? It’s like refusing to tidy up his room or give away his clothes because getting rid of his physical stuff means he never existed, or something.

It might be hard to do it at the time (imagine doing it for a baby, as happened to a friend of mine), but life goes on and sooner or later you have to let go.

Are we trying to immortalize ourselves digitally, like the ancient Egyptians did by making mummies? It seems like a weird thing to do, but if that’s your intent I can understand it.

David says:

That's what copyright terms are about.

As long as he did not explicitly disinherit her in a legally binding manner, copyright for his works have likely passed on to her. Any continuing publication (and a web server is essentially creating new copies) is up to her unless they have a binding signed contract to show. “Terms of service” don’t really count since she apparently does not want to have the service continue.

This is a side effect of inheritable copyright. But frankly, this kind of “he/she never would have wanted that” effect is present for basically any kind of inheritance between people who have turned into enemies.

Anonymous Coward says:

Re: That's what copyright terms are about.

The degree to which terms of service are binding is open to debate, but remember that we’re talking about a license to reproduce rather than an outright transfer of copyright. That could be enough to make the difference between binding and non-binding adhesive terms.

If Linus Torvalds were to die, should all the various distributions of Linux cease to be distributed at the say so of his heirs? If Cory Doctorow were to die, should people no longer be able to share his works? It makes no sense to attach the enforceability of such terms to the existence of a signature. As with online forums, the authors’ desire to publish is unambiguous and should not be revoked after the fact.

Anonymous Coward says:

Re: Re: That's what copyright terms are about.

license to reproduce

The 17 U.S.C. ?106(1) reproduction right uses the term ?copies? which are defined in 17 U.S.C. ? 101

?Copies? are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ?copies? includes the material object, other than a phonorecord, in which the work is first fixed.

The reasoning of MAI v Peak has been heavily criticized, and there is significant doubt whether the operator of a web server fixes multiplied ?copies?.

T (profile) says:

Re: That's what copyright terms are about.

“‘Terms of service’ don’t really count since she apparently does not want to have the service continue.”

Every competently written Terms of Service includes in one clause (call it A) a grant of perpetual license to display the posted content on the site, and in the Termination clause a statement listing many clauses that will survive any termination of the agreement that includes clause A. So, yes, armchair lawyer, the Terms of Service do “count” very much, because they probably provided that the man himself could not have used copyright to get his own posted content removed, so anyone who inherits his copyrights could not either.

Doug says:

Did Judge say or suggest copyright?

Mike said, “First, the idea here is clearly to use copyright as a tool to delete Chris Mackney’s online existence entirely.”

I don’t see where the judge suggests copyright is the tool to use. Is that spelled out anywhere. The judge gave Dina the legal power to do what she wants, and she and her lawyer may have chosen copyright as their tool, but the judge didn’t really say or imply that, or did I miss that detail.

It seems Dina and her lawyer are the ones that got the coypright ball rolling, no?

DCL says:

Re: Did Judge say or suggest copyright?

Could the judge really be suggesting to use defamation (libel/slander) laws instead and the wife’s lawyer just taking the closest thing on the self”

I see defamation as the more valid way to take this stuff down but that is the harder path to prove (and the defendant is deceased) … and I don’t know if defamation laws are only monetary rewards or if they allow removal of offending content.

Michael (profile) says:

Re: Did Judge say or suggest copyright?

That’s a pretty good point. The decree from the judge just says that she can take any reasonable action to remove content from those sites. He could mean that she has the right to gain access to the accounts and use whatever means they have available in them to remove or change the content (remove his Facebook posts).

It will really come down to whether or not any of the companies challenge the DMCA takedowns being issued to determine if they fall under the “reasonable measures” she can use. I would tend to think they amount to copyfraud, but I wouldn’t imagine she is going to get much of a challenge.

Doug says:

Re: Re: Did Judge say or suggest copyright?

Yes, that’s my point, in general and specifically in response to AC’s and DCL’s replies. Restating Michael: “Reasonable action” could just mean that she has the legal right to log into his accounts and have them deleted via the site’s standard procedures. Or if she can’t log in, to contact the site’s administrators saying she represents her dead ex-husband and would like them removed. Anything he could have done easily by himself.

It seems possible to me that the judge might find the use of copyright takedown notices to be unreasonable.

T (profile) says:

Re: Did Judge say or suggest copyright?

It is no doubt her lawyers that came up with the copyright tactic. Any competent law firm would know any sites on which he posted were likely granted (by him, under the Terms of Service in effect when he posted) perpetual and irrevocable licenses to display to visitors his posted content. If you read their DMCA take-down letter to GoDaddy, they follow the copyright ownership rationale required by DMCA with irrelevant (to a DMCA-takedown request) plaints about invasion of privacy, defamation, the safety and privacy of the minor children, the legitimate concerns of the public, etc. They even complain that her holy name is used without her permission!

They’re simply throwing everything at the wall in the hope that something will “stick”, where “stick” does NOT mean stand up in court, but simply work to win voluntary compliance with the request. That’s all they’re hoping for, as that’s all they’re legally entitled to. The sites may well comply not because they’re not sure they’d win in court, but because they simply don’t care enough about the content posted by this one user to pay even one lawyer to fight it.

G Thompson (profile) says:

Re: Re:

I think she is misinterpreting this other Rub?iy?t of Omar Khayy?m’s

Ah love! could you and I with Him conspire
To grasp this sorry scheme of Things entire
Would we not shatter it to bits – and then
Re-mould it nearer to the Heart’s Desire

Re-moulding doesn’t mean Deleting and rewriting!

PS: amazed someone else actually knows of Omar’s works! awesome

Anonymous Coward says:

and the idiot judge who ‘decreed’ she could do all this, just because she wants to hide what he said about her and he isn’t around now to back up his statements is who? more than anything, it sounds like yet another case where the person trying the case/making the ruling has less knowledge of the internet than an idiot and is making himself look a complete plum because of it!!

That Anonymous Coward (profile) says:

I think while the copyright claims need to be looked at, I think much more looking needs to be done into this case and a review of the Judges involvement.
The Judge has obviously overstepped the authority granted the office, and one should be curious who the Judge appointed to argue for the rights of the decedent.

To give power to the opposition without any testimony from the other side would seem like a gross miscarriage of justice. Even if every word he said was false, something the court couldn’t really hear without representation for BOTH sides, giving her the power to wipe away every trace of his speech is chilling.

Deirdre says:

Appointment of Administrator

Given the rancorous divorce proceedings and the eventual suicide, this doesn’t seem even remotely appropriate.

I’m not going to go looking around on this but it appears that the husband died intestate. Had he left a will then the person he named would be administrator of his estate unless they declined or were unable to perform the functions required.

If the divorce was not final she was still his next of kin and would be appointed without question. If the divorce was final and she had custody of his children who would then be considered next of kin, she would be appointed executrix to protect their interests, if any, in the estate. If no one else was interested then she could have been appointed because she was the only one who asked.

Take away: Make a will and update it when your life changes.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Ctrl-Alt-Speech

A weekly news podcast from
Mike Masnick & Ben Whitelaw

Subscribe now to Ctrl-Alt-Speech »
Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...