I’ve just discovered the USC Annenberg Online Journalism Review and it’s full of terribly useful articles regarding blogging. I’ve just written about a recent article touting a major attitudinal shift in online news sources opening up their sites to bloggers and web surfers.
Here, I’ll be talking about a great article (Overzealous Lawyers Beware: Today’s Sites Are Fighting Back) which reminds bloggers and those who host websites that they are not sitting ducks for any Tom, Dick or Harry who comes along wanting to sue for copyright or trademark infringement.
Why is this subject so important to me? Simply because I once wrote a post here about John Kerry’s Jewish roots. My post quoted portions of an online article (properly linked, credited and attributed) which contained interesting material and research on the subject. After publishing my article, the author came forward demanding a fee for use of the article (see the demand letter in the form of an e mail message which I registered at ChillingEffects.com). I was indignant. This helped fuel an escalation to the point that the author accused me of copyright infringement.
My wife, who is an attorney (but doesn’t specialize in copyright or intellectual property law) was terribly freaked out at the prospect that defending a lawsuit might cost tens of thousands of dollars. Neither did she want to hire an attorney to explore our options. For the sake of peace in the household and my wife’s well-being, I agreed to allow her to attempt to settle the case, and the matter was resolved even though in my view the dispute should not have arisen in the first place.
This experience has taught me several good lessons:
1. When you receive a demand letter as I did, do not freak out or panic. Do NOT lash out at the other side. Be calm. Don’t let the other side smell blood in the water. Take a deep breath, consider your case and your options carefully. Do not allow the other side to stampede you into anything. Do not allow the other side to intimidate you with a warning of huge potential liability.
2. Hire a lawyer with copyright or intellectual property experience, preferably one who has defended such cases previously. If you cannot afford to defend a lawsuit, you should still hire an attorney and consult with him/her about your options and how strong your defense might be. An attorney can also suggest to you strategies that might promote a reasonable settlement of the claim.
3. Do not represent yourself or have a close family member represent you. It puts too much pressue on you and them and ends up straining relationships. Spend a few bucks and consult with an independent attorney who is not personally invested in the outcome of the case.
4. Do consult Public Citizen’s list of non-profits (see link below–page 1) which sometimes can provide legal assistance to those in your cirucmstances.
5. Try to fairly balance the claim of the offended party. Is there any validity to it? Is there anything you can do to accomodate their concerns or interests short of absolute surrender? Is a compromise possible that reconciles the two conflicting viewpoints? Try not to look at the situation solely from your own personal vantage point (though it is certainly all too easy to do that), but imagine it from the other side’s as well; and imagine it from the perspective of a judge. Would a dispassionate judge easily accept your argument? If not, try to accomodate the other side.
6. Finally, as soon as you are served with a demand letter take the offending post down. Leaving it up, as I mistakenly did does not help your case. If you win or reach a compromise settlement you can always republish the post later. In other words, swallow your pride so you can live to fight another day.
The above points of consideration derive from a combination of my own experience, the OJR article and a Public Citizen online legal paper, Legal Perils and Legal Rights on Internet Speakers. let me add an important caveat: I am not an attorney. I am not giving legal advice. If you ever find yourself in my predicament, do your own research and find a good attorney to consult. In determining your course of action, don’t rely solely on anything you read here.
The OJR article is meant to hearten people like me who are threatened with legal action and who might feel they are dangling in the breeze with no recourse to any form of moral or legal support. Believe me, it’s a lonely, depressing place to be. The other side hounds you with demands framed in the most ominous terms while at home your loved ones may be afraid that you are going to drive your family to bankruptcy if you try to fight.
That where the OJR piece comes in. It provides examples of companies and individuals who HAVE successfully defended themselves in such cases. It notes that some companies like Diebold which overstep the bounds of legal propriety may suffer drastic consequences. I note that the OJR article hasn’t been updated to reflect that the 9th Circuit recently awarded attorney’s fees to the defendants in the Diebold case and found that the company had engaged in fraudulent copyright claims.
The field of copyright and internet speech is a pendulum swinging between the extremes of locking in the full rights of copyright holders and considering the legitimate rights of defendants in such cases. The great benefit of this article is that it points out that the pendulum has swung to the side of copyright holders; but that those who vigorously defend themselves may help bring the pendulum back to the middle.
Finally, I want to make clear that I’m not propounding the foolish proposition that bloggers are always right in copyright infringement cases and that they should never back off a demand from a copyright holder. Bloggers, like copyright holders can sometimes be in the wrong in the positions they take regarding these issues. As a blogger, you must carefully consider your position and that of the other side before doing whatever you eventually decide to do.
