L’Affaire Niall Kennedy: Sifry’s Disingenuous Defence

Ben Hammersly’s L’Affair [sic] Niall" provides a link to  David Sifry’s (Technorati’s CEO) defense of the company’s actions in this case (see my earlier post which lays out the details).  Sifry has closed comments for this post (don’t you hate weblogs which close comments but don’t note that so you spend 30 minutes crafting a well-wrought comment only to have it bounced back at you??!), so I thought I’d let you take a look at it:

While I have a lot of respect for Technorati, David Sifry & Niall Kennedy, in all due respect, I think David’s trying to "piss on us & make us think it’s rain" (to quote a great line from the film, "Hester Street") in his explanation and justification for his actions in this case.

First, I must correct an awful overstatement from Sifry’s post: there is no "Nazi solider helmet" in the poster. There is a barely visible SOLDIER’s helmet. No one could possibly say what type of helmet it is.

I absolutely detest the false high-minded smugness of Sifry’s post. "We all make mistakes" blah blah blah. If Kennedy had refused to remove the post, then I don’t think everyone would be singing such a false noted happy tune.

Kennedy’s only mistake in my opinion is that the visual component of his poster did not clearly explain the concept and idea behind it. I would’ve designed such a poster differently & might have used logos of companies that HAVE fired bloggers for blogging (like Delta & Microsoft). But that’s beside the point. He had an absolute right to post it and no one should’ve expected or even insinuated that he embarrassed the company by publishing it.

Another disingenuous remark from Sifry:

many readers do not make as clear a distinction between personal and work lives as many experienced bloggers do, and will view a provocative image on a blog in the worst possible light.

The boneheaded "reader" in question in this case was not a primitive yahoo from the non blogging world. Rather it was the CEO of one of the blogging services whose logo Kennedy featured in his poster. That CEO DID view the image in the worst possible light. But who says that the rest of the world & Technorati should snap to his tune? Unless of course the company does not want to damage business relationships with that company (in which case Technorati has sacrificed artistic expression & freedom on the altar of Mammon).

Sifry contends that Kennedy’s use of corporate logos in the poster was a "clear case of trademark violation [and] we asked him to remove the pictures that violated trademark, in order that we not be sued." Read yesterday’s NY Times, Mr. Sifry. A noted constitutional scholar contends that Kennedy’s use of trademark is CLEARLY PROTECTED as a fair use. Ergo, there was no trademark violation. It’s artistic expression, not commercial speech. Do you understand the difference??

The next disingenuous remark: "his [Kennedy’s] actions and postings have been completely his own, including his decision to take down his original post." Right, the CEO comes looking for a mid to low level manager telling him how he’s potentially caused a world of trouble for him [the CEO] and the company (while he doesn’t explicitly tell said manager to take down the da*! post)–that constitutes the action of a free agent??! Nah. Kennedy knew what you and the company wanted. And he likes you, likes the company and wants to please all of you so he does what he knows in his heart of hearts you want him to do. No coercion or intimidation there, huh.

You ask for the technology world’s "forgiveness"!? You act as if Niall with Technorati’s blessing committed a horrible crime. Nobody in this case deserves an apology and nobody should be giving one. I just can’t stand the craven tone of your post & Niall’s as well.

There are principles in this case & none of you have addressed them very well if at all. And your mea culpa, mea maxima culpas only beg the question rather than answering it.

1. What obligations do employees have toward employers when they’re on their own time?
2. What responsibilities do employers have toward employees in terms of granting them privacy rights?
3. Is there a point at which employers’ perceived fear of liabilities or employees’ private speech would breach such privacy needs of employees?
4. Where should the line be demarcated between employer’s needs and employees’ rights?

In effect, what Technorati has done in this case is to create personnel policies by fiat of an outside CEO. Even your executive quoted in the NY Times articles says laughingly there’s no need for such a policy since it would be overkill. I’ve got news for Mr. Hertz…his company just created an ad hoc personnel policy in this case and the policy was seemingly created at the behest of an outside CEO. Not the best way to create or enforce such policies.

Finally, while it is understandable that a child of survivors might think to make reference to the Holocaust in such everyday interactions as this one, but why is such a reference justified in this particular case? It’s absolutely not justified. The World War II poster Kennedy quoted was a generic war poster with no overt reference to any U.S. enemy. Finding a Nazi reference in the poster is just a lazy/easy way for you to dismiss the poster itself. And I for one don’t want to make this any easier for you since I strongly believe that you and your company have done the wrong thing.

It’s a month later, Mr. Sifry & neither I nor the NY Times have "put it all behind us" as you so wistfully request.