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Chilling free speech

by: Eric B.

Fri Jan 25, 2008 at 14:53:23 PM EST


You rarely see someone trot their lawyers out first thing when dealing with media errors.  So it naturally caused my eyebrow to arch when I read the other day that Michigan Messenger had received, first thing, a letter from attorneys representing Sovereign Deed and its CEO Barrett Moore demanding a retraction of an article claiming that Moore had lied about his military service.

Michigan Messenger has been kind enough to post not just the letter from Sovereign Deed, but also the response letter from their attorney asking that Sovereign Deed produce evidence that Michigan Messenger's story was false.  You don't often get to see this kind of thing take place in the open, and it's an interesting exchange.

There are two likely outcomes to this ... that there was some erroneous reporting, and Moore's attorneys decided to throw everything plus the kitchen sink in hopes of negotiating their way down to what they really want.  However, I'm told that Tuesday's deadline came and went, and neither the Michigan Messenger nor its D.C. attorneys has since heard from Moore's attorneys, which raises the ugly possibility that the real goal in threatening the site was not to correct the public record, but to chill free speech (this is outcome number two).

We'll see, I guess, because it's still pretty early in the game to start throwing around charges that Sovereign Deed has violated Michigan Messenger's First Amendment rights.  Still, the thing is worth watching for a couple of reasons, and the longer it takes for the company to show its cards, the more you have to start thinking that the company was hoping to bully Michigan Messenger into silence.

The first is that this would be the most significant threat to free speech involving an Internet outlet in the state of Michigan.  Mike Bishop's blocked access to Blogging for Michigan last summer generated a lot of headlines, but in the end really only cut off access to the site by a handful of state computers.  This, on the other hand, means cutting the story out at its knees.

The second is that the company is tied to public money.  If it's true that the company's CEO is responsible for making empty threats that violate Michigan Messenger's First Amendment rights, then one would hope that public bodies responsible for that would reconsider giving economic breaks to a firm with so little regard to the bedrock freedoms on which this nation was founded.

Eric B. :: Chilling free speech
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Jack Lessenberry had an excellent column on (4.00 / 1)
Sovereign Deed today - it's not up yet at http://jackshow.blogs.com/ but it should be soon.

He interviewed a journalist (I did not catch her name) who came at this from the Libertarian angle - why should taxpayer dollars be flowing to build infrastructure to help out a company predicated on saving the rich from disasters, since... government CAN'T protect the rest of us, because there is not enough tax money to do so? How screwy is that?


I heard about that... (0.00 / 0)
I'll be looking for it tomorrow.

Among the Trees

[ Parent ]
Ann Stanton... (0.00 / 0)

from whatever the alternative paper is in Traverse City.

Jack (and Ann) approached the subject a little differently than the folks at Michigan Messenger have in that they both just touched on the allegedly shady past of the owner of Sovereign Deed but mostly focused on the fact that while this program is only for the uber-rich, the company wants tens of millions in tax rebates and the community of Pellston is using CDBG grant dollars to underwrite some of the costs associated with this project.  CDBG money is supposed to be used to help out low income people, not the uber-rich.



Do stupid people know they are stupid?

[ Parent ]
Northern Express is the name....... (4.00 / 1)
of the alternative TC paper and here is the link to the article which is very interesting.

http://www.northernexpress.com...

The end of the human race will be that it will eventually die of civilization.

 - Ralph Waldo Emerson


[ Parent ]
Thanks! (4.00 / 1)
I was driving when I heard the story and only caught her name...  I was trying to write it down, drive on 696 and call Eric at the same time.  Not my finest moment, I might add.

Do stupid people know they are stupid?

[ Parent ]
Court Says You Can Copyright A Cease-And-Desist Letter (0.00 / 0)
I saw this first on slashdot.org.  It does not directly relate to the Soverign Deed issue on hand but rather specifically the practice of news sites / blogs publishing cease and desist letters as a means of defending ones First Amendment rights.

It involves a left leaning blog called  43rdstateblues.com and their publishing a cease and desist letter they recieved   for a post about a company called Melaleuca, and the CEO, Frank L. VanderSloot.  When they published the cease and desist letter their attorneys sent them a take down notice, invoking the Digital Millennium Copyright Act of 1998 ("DMCA").  

Long tragic story short to quote the press release:


The Court, in its decision, found that a copyright had been adequately established in a lawyer's cease and desist letter. The unauthorized publication of the letter, therefore, can expose the publisher to liability. Statutory damages under the US Copyright Act can be as much as $150,000 per occurrence plus attorneys' fees that can average $750,000 through trial. The publisher of the letter raised First Amendment and "fair use" arguments without success.

Hopefully another Federal judge will rule differently.  I fail to see how this is not fair use.

In addition I would imagine that the cease and desist letter is a part of the public record of the court.  If there are any lawyers reading this, I would love an actual authoritative voice on the matter as opposed to my legal navel gazing inspired by one too many episodes of Matlock.

I don't know where to begin safely expressing my opinion of this insane opinion that will not subject MichLib to the sling and arrows of outrageous legal bills.

Chilling free speech indeed.  


Fair use... (0.00 / 0)
I don't think Fair Use covers republishing the entire text of another document.  It's usually limited to, like, 500 words.

This might be a bit different, since the document is recreated in its whole on another site's document cache.  I'd be interested to see how this kind of thing would play out in court.

Among the Trees


[ Parent ]
The copy right office says (0.00 / 0)

One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
     
  2. the nature of the copyrighted work;
     
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
     
  4. the effect of the use upon the potential market for or value of the copyrighted work.


The emphasis is mine.  

What would the market value be of a cease and desist letter?

Isn't this a matter of public record anyway?

BTW, I saw this here.


[ Parent ]
Not public record (4.00 / 2)
because C&D letters aren't filed with the court--they're private correspondence threatening a lawsuit.  The C&D is sort of like foreplay before the parties get down to screwing each other.

I'm surprised at the federal court opinion, because newspapers publish the full text of letters all the time (see Papers, Pentagon).  I don't have time to read the opinion; did the judge say the website wasn't journalism?


[ Parent ]
Thanks for clarifying (4.00 / 2)
My understanding of the Digital Millennium Copyright Act of 1998 is that the threshold is very very low to "file a take down notice".

It is so low that more and more people are using copyright protection to stifle criticism.  I saw this first on BoingBoing.net

Uri Geller, who claims to be psychic, has been using the DMCA to force YouTube to remove videos that debunk his stunts (which include bending spoons and locating hidden objects.)

...

The DMCA allows copyright owners to file a "takedown notice" with a service provider such as YouTube, provided that the copyright owner swears under penalty of perjury that he or she owns the copyright in question ("I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner of an exclusive right that is infringed").

If we consider how bad the DMCA is, it is not that surprising that a judge could "properly" interpret its terrible provisions.

p.s. the boingboing article also states.

The only bright spot is that Geller's actions to suppress criticism may expose him to legal liability (provided that one of his victims has the resources and will to fight this litigious spoon-bender).

His liability? Geller does not apparently own the copyrights to the videos that he demanded YouTube remove.

p.p.s (fyi) the blockquotes were taken out of order to better fit with my narrative


[ Parent ]
No copyright on C&D (4.00 / 2)
Man, it took some digging (which is testimony to the sorry state of the MSM these days), but the press release you linked to is just that--the plaintiff's lawyer's press release (which he put out on PRweb, which cost his client a buck or two).  It completely distorts the federal court's opinion.  I'll let TechDirt tell it better than I can:
...this latest ruling in that case simply stated that, since the cease-and-desist had been registered at the copyright office, the firm (in that case) had met the low prima facie bar to show infringement. Basically, all the court said was that if the letter had been successfully registered at the copyright office, then the copyright holder had ticked off the necessary checkmark to move the case forward. That does not mean that cease-and-desists are automatically copyrightable. It does not mean that posting a cease-and-desist you receive is not protected under fair use. Also, in that same case, the judge later denied using the copyright claim to unmask the anonymous blogger they were trying to reveal...[the plaintiff's lawyer] conveniently left that part out of the edited version of the court's decision he uploaded to his site.

Moral of the story:  source everything.  Then source the source.

[ Parent ]
nice research (4.00 / 1)
thanks for taking the time to dig through this... not an attorney or an investigative journalist so it's nice to have folks who know how to do this stuff around.

Do stupid people know they are stupid?

[ Parent ]

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