Serial DMCA writer and Author of The Dash is at it again: issuing dubious DMCA takedowns. She sent my host one. I’m posting to solicit tips on writing a counter DMAC.
Some of you are familiar with Linda, who tends to send letters demanding very large sums of money to people who post her poem in practically un-circulated pdf newsletters, very lightly read blogs, and so on. When I wrote about this previously, I included a hotlinked parody image of a Linda-Ellis-Troll caricature similar to the one posted at copyright trolls and April Brown’s post about Linda Ellis.
I am contemplating writing a counter DMAC.
Of course writing such a counter-DMCA could potentionally trigger a time consuming counter productive lawsuit which Ellis might file in response. I’m fairly certain I would win. So it’s just a matter of “Is it worth the potential hassle and drama merely to keep a hotlink in a post?” I’m currently undecided. However, I generally advise people (myself included) that in these situations, it is usually best to avoid the drama. (Note that the Minnesotan’s for Global Warming took a similar tack when threatened by Mann with a suit about… whatever it was exactly. For that reason they are not now involved in what appears to be an endless suit like Mann vs. Steyn/Simberg/CEI/NRO. Queue the “Chilling Effects” music we play when we suspect attempts to censor speech. )
What I’m hoping for today is for legal-eagles or anyone with copyright experience to suggest how much information belongs in a counter-DMCA response. My main questions are :
- Should I be brief and merely state that I believe that the DMCA is mistaken? Or should I include some discussion of the specific issues? (I’ll discuss these below.)
- If I write do write this, what legal precedents should I consider? (Once I am aware of are discussed below.)
Alternatively, if someone could suggest path that will result in Ellis’s issuing this DMCA in a way that might highlight the whole story — including the issues surrounding her business plan that resulted in someone making that image in the first place– that might be a more time effective method of dealing this issue. After all: my priority in writing the post in which I embedded that image was to disseminate information about Linda Ellis’s business model.
Now returning to the direct copyright issue: Because I am contemplating the counter DMCA, I would like to invite feedback on my view that the DMCA tak-edown is mistaken, I am providing the main reasons why I believe DMCA is mistaken. My belief the DMCA is mistaken should be enough to permit me to write the counter-strike. Unfortunately, it would not be sufficient to permit me to prevail in court (should Ellis sue). To prevail, I would need to be (a) correct in my belief and (b) well represented. That said, if I am obviously wrong, I would like to know that. So, I would especially like the view of people who know copyright law to comment on my thoughts about where copying or display of this image might fall. (Note: I live in the the northern district of the 7th circuit.)
Here are the two main reasons I think I would prevail in court.
Reason I: The image is not and never was “displayed” at my site, or at least it is not “displayed” as that term is defined under US Copyright law which is the relevant definition in any suit alleging a copyright violation. That is: I do not host the image it is hosted elsewhere but displayed by means of an inline link. This is called “hotlinking”. Hotlinking has never been ruled “display” under US copyright law and has, in fact been ruled by the 9th Circuit court of Appeals to not fit the definition of “display” (see Perfect 10 v. Amazon.) Some might note that I live in the 7th circuit court of appeal which declined to treat Perfect 10 v. Amazon as a precedent when ruling inFlava. But it seems to me that Posner’s ruling in Flava protects me just as well as Perfect 10 would and as such reduces the uncertainty in rulings that might occur at any level below SCOTUS.
The relevant paragraph assessing whether myVidster was infringing by framing videos hosted elsewhere would seem to be
As the record stands (a vital qualification, given that the appeal is from the grant of a preliminary injunction and may therefore be incomplete), myVidster is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer.
That is to say: as far as I can tell, Posner’s ruling ends up agreeing with the 9th circuit ruling. It’s just that being at the same circuit court level, he did not treat the 9th circuit as binding his court. (Lawyers, do correct me if I’m totally bungling this interpretation.)
Now, on to Reason II: The image posted is a transformative use of the original its use falls under fair use provisions of the copyright act. . My copying and display would not violate any copyright Linda Ellis holds even if I hosted it. (Note: I am of course, assuming Linda Ellis did not create this derivative image and that she does not own the copyright for the derivative image. In fact I don’t now who did create the image; I suspect one of two people. Neither of them has complained.)
There are four aspects to fair use. I think all four cut in favor of anyone and everyone being able to use the derivative image with permission of the author of the derivative image and without regard to the wishes or inclinations of the underlying image that was transformed. I’m not going to belabor all four. But I’ll touch on two, which I think with respect to this use are the most important:
Factor a: “Purpose and Character of Use”:
The purpose and character of the use is commentary and speech about Linda Ellis: that is to say, it attempts to make a statement about Linda Ellis through imagery. This is protected speech. To communicate an opinion about Linda Ellis (and use in articles commenting on her business model involving heavy copyright demands) the image in question was ‘transformed’; this would be evident by side by side inspection. (I would link, but I think I can’t do that until after I send a DMCA counter-strike!)
In the original image which currently displays on her “about page”,Linda Ellis’s eyes, complexion and teeth suggest a persona who might write sickly sweet poems ( www. linda-ellis. com/about-linda-ellis.html remove spaces to see). This fits her marketing spin as some sort of inspirational poetess. In the transformed image her eyes burn a fiery burning red, her skin has been rendered in a pebbly lizard like green, and she has been given a down hanging fang, all of which suggests the an evil fairy tale troll. After transformation, the image communicates the message “Linda Ellis is a Troll”, an opinion formed by some who are aware of her business practices aimed at demanding heavy fees for what amount to de minimus uses of her poem.
As far as I can determine, at least some courts interpret creating transformative images of the sort shown in the image Linda Ellis complains of in her DMCA filing both “transformative” and “parody”; the later enjoys broad protection. While some argue that parody requires the item copied must be parodied and the person transforming the image intends to parody the subject of the image, the judges ruling in Kiennitz v. Sconnie Nation LLC (W.D. Wis. Aug. 15, 2013) ( pdf) notes that the issue of “what is parodied” is not an either/or one. Transforming the expression conveyed by the can be viewed as parody aimed at the image itself which could be sufficient to deem this use parody. This is precisely what is happening here.
In any case however, parody is not the only transformative use that falls under fair use and in his ruling Judge Crocker cited a 2nd circuit court of appeals ruling in Cariou_v_Prince_-_2d_Cir_2013. I will leave it to interested readers to read that.
Factor B: The effect of the transformed images use as a market substitute for the original image: There is no effect on the market for that image of Linda Ellis or at least none that counts under copyright law. Note that this might seem to In the first place: this image is not commercially valuable to anyone other than Linda Ellis. There are no millions and zillions of people ‘out there’ who wish to specifically purchase images of Linda Ellis and I’m pretty sure she doesn’t even try to market this image. In anycase, no one who wants an original image of Linda Ellis would use the transformed version as a substitute. One might argue that the fact that the transformed images exists means Linda herself might no longer wish to use the original image because it’s no got “bad karma”, but that effect specifically does not count under copyright law.
The other two factors are “Nature of the copyrighted work” and “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.” In Kienitz the judge ruled the former factor was a wash with equally strong points on both sides of the issue and that the balance favored the defendant when assessing the latter factor. If I understand, the Judge’s view is that those creative-non-factual elements that were in the original were precisely what was transformed and so not “copied”. I think the same would hold for the current image.
I think the use Ellis complains of would be permitted under our copyright law if either of reasons I or II applied. I think in fact both apply. My impression is nothing would prevent me from arguing that I think I applies, but even if it does not, then II applies. I welcome comments on my analysis, suggestions of other court cases that might apply, and general discussion about this. Thanks!
——
Notes: For the time being, to comply with my hosts requirements, I am not posting any links to the Linda-Ellis-Troll caricature. I think they have instructed me not to do so unless I first write a counter letter. You can read the letter Dreamhost sent me in DMCA_ELLIS.txt)
Update: I submitted the takedown request to chilling effects.
Legal code is pretty straightforward.
Just send them a brief letter saying you believe it’s non-infringing, and they have to reinstate the content within 14 days. It’s then up to the courts to decide. It’s unlikely the DMCA troll will take you to court, since she is unlikely to prevail. At that point, it’d be fun to then sue her — obviously the fact she didn’t take you to court implies that the original DMCA notice was in “bad faith” and hence against the law.
Do you know whether I would have to sue her in Georgia where she lives? In Illinois where I live? or California, where Dreamhost is?
No point in larding up a response with arguments, claims and characterizations you may want to change or drop later. A polite minimalist formal rejection is always the best approach. If the silly bastards litigate, then you can counterclaim accordingly.
I don’t see why the $7,500 demand you mention in the linked post offends you. It is almost lawyer boilerplate. If you were to demand the statutory max, a judge would ignore that number and compute it from scratch. The defendant would also know it’s contrived. If instead you pretend to have arrived at a lesser figure for allegedly substantive reasons, it might be used as a starting point in assessing damages or a baseline for settlement negotiations.
Anybody have any stats or estimates of how many DMCA claims are made per year? If it were manageable, I would propose an mandatory arbitration stage–pay $5 or $10 to send the demand to the arbitrators who would (a) reject it out of hand if it’s stupid; (b) return it for more info or (c) forward to the alleged infringer and accept the response and issue a finding. Either party can move to the next stage in fed court as an appeal of the findings of the screening/arbitration service but the shotgun legal fee nuisance strategy would be greatly reduced.
George Tobin,
On the $7500: The targets of these letters often don’t know those amounts are not contrived. I would need to explain the long list of people who have gotten them– mostly naive groups. When people who get the letters respond, she does press for high payouts. As far as I am aware, she has not taken any of these people to court. The full record of some of what she does was taken off line due to another legal manouver that is now pending appeal. Also: those weren’t DMCA’s. Those were cease and desist letters. In those cases she could have written a DMCA, but I suspect the point might not have been to merely get content removed. It was to collect money. I think the letters are “the” business plan.
I don’t know how many DMCA claims are made a year. Likely load. That said, there are likely an even larger number of infringements (including some the copyright holders don’t care about.)
BTW: I requested and obtained the takedown request Linda Ellis sent. She’s waving around 9th circuit precedent that… of course would hold in the 9th circuit. Others don’t need to see it as a precedent. Ironically, the 9th circuit is also “Perfect 10 v. Amazon” which is the one that rules “hotlinking ≠copyright violation”.
I requested Dreamhost forward me the letter Linda sent them. This is partially redacted for brevity.
I always thought hotlinking was the display of an image on your web page where the source URL for an image visibly shown on your web page is requested and retrieved from another site. It is considered poor form to hotlink as that is using the bandwidth of the site where the image resides to retrieve the image for your use every time your web page is loaded. Since you always maintain local copies of any images I have seen you use, I would say you just have a link. Not a hotlink.
IANAL
I could be wrong, but I don’t think so.
I see Dreamhost is saying they altered the code on your site so the image wouldn’t display. Is is possible you were actually displaying the image and using anonmgur.com for the source URL?
Bob Koss
The image was hosted at anonmgur.com. I hotlinked. Dreamhost visited my database, found the post and removed the html used to display the image.
That is precisely what hotlinking is. I usually host images I create at my site but it’s not any sort of a policy and I do sometimes hotlink. The reason I usually host images is that I create them in the first place– using R, EXCEL, my one camera and so on. It’s convenient for me to upload these from my mac to the server that hosts my site. This is very easy because wordpress has an “upload” button, and I can do it as I write my content. Also, the images are then nicely organized on my site.
However, I don’t always upload images hosted elsewhere. For example: When visitors insert links into my comments, I sometimes change the html to display: those are all hotlinked.
The brouhaha suggesting hotlinking is bad form has simmered down substantially over time for many reasons. One of these is that for many sites it’s CPU and not download that overloads a site. Another is that many people know how to prevent hotlinking. A final one is some site exist precisely to let people host images they can hotlink elsewhere for discussion. When I see an image I like already hosted at an image hosting site– like anonmgur.com, and I believe the hosting that site is not itself a copyright violation, I hotlink because it’s actually easier than copying. So, in this case, when I saw the image on anonmgur.com and wanted to include it, I hotlinked.
I never heard of anonmgur.com before. If they are an image hosting site it’s unlikely they object to hotlinking. Might be kinda shaky on the copyright though if it was displayed. Wouldn’t even want to try to hash that out.
Bob Koss,
With respect to this it’s best go see what courts have actually ruled. Copyright must be filed in a federal court. I think the levels are:
District.
Circuit.
Supreme Court of the US.
To my knowledge the issue of hotlinking has reached two circuit courts but never reached the Supreme court. I discuss both above. These are “Flava” and “Perfect 10 v. Amazon”.
In principle, unless someone can argue differently, any copyright suit filed against me would be filed in a district court contained in the 7th circuit. That’s the circuit where we actually have a ruling on hotlinking, which would bind the district court. That ruling is Flava Works v. Gunter 2012 would appear to set the precedent on that issue. That ruling involved overturning a preliminary injuction granted by the lower court. The ruling was authored by Judge Posner who still presides on that bench.
Posner is somewhat flowers (and lots of fun to read!).
Features of the ruling reflect what Flava Works claimed for harm which included “contributory infringement”. So among other things the ruling seems to say that
* site visitors watching Flava’s porn videos hotlinked by Vidsters were not violating copyright.
* Because the visitors were not violating copyright, Vidster could not be found to be contributing to their infringement.
* The people who might be “copying” are those who upload. In this case, Vidster framed (which is a type of hotlinking) and Posner wrote
So: it seems to me that Posner is saying those hotlinking stuff are not infringing even if that stuff is pirated.
* he also seems to say Vidster isn’t ‘inducing violations” even if it knows some of the videos it links are pirated.
He goes on to discuss theories having to do with “public performance” and so on. And pretty much finds for Vidster (who frames.)
The court also discusses the fact that Vidster used to permit customers to upload videos, and points out that Flava works could request an injuction on that basis (see page 19 of the Flavaworks case), and then remands to the lower court. I would say one might suggest he gives Flava Works guidance to request an injunction based on behavior that could be infringing (i.e. actually copying) rather than behavior that is not infringing (i.e. hotlinking).
That’s the circuit court ruling that seems to be a precedent in Illinois and Wisconsin. I’m sure an attorney presenting to a district court in Illinois would quote from that case. And I suspect anyone in a district court would know that any appeal would go straight to Posner– who tends not to mince words. In fact, he is so good at zingers that if a district court does something he thinks not quite right, those zingers can travel around the internet fast.
So: I’m reasonably confident that I would not lose a “hotlinking” case in my circuit.
My understanding is that she has to sue you. As for venue, I think you get to state that in your challenge.
Also, what’s the syntax for quoting?
“what’s the syntax for quoting?”
<blockquote>quoted-text</blockquote>
HaroldW–
That’s it. If you screw up, I can fix it.
Lucia:
The DMCA takedown letter above is overreach. The phrase “material available” is apparently intended to gloss over the fact that you are not hosting and did not upload the content at issue so you cannot be deemed an infringer.
It is a real stretch to try to apply the Washington Shoe case to hotlinking a photo. The defendant in that case ripped off a shoe design, had it made in China and pawned it off on the market in another state as made by the plaintiff company. The appeals court pushed the state law arm statue to the limit because the alleged behavior was so egregious and involved obvious economic harm.
If Ms. Ellis owns rights to the photo, she can rightfully go after whoever hosts it. If that is taken down, then all links would go too. Requiring instead that linkers must ascertain the lawfulness of what’s published on other sites before linking is an unreasonable burden that copyright law does not in fact impose. The facts and reasoning in Flava and Perfect 10 differ but they both point to a strong resistance to expanding copyright liability to those who happen to see or cite an allegedly infringing publication.
Go talk to the folk at Popehat. Copyright and patent trolls are their catnip. Thems lawyers too.
Eli
Eli Rabett,
The planets must truly be aligned because I agree with you. Also: you are a mensch to suggest it, as Popehat is potentially helpful. I did copy his @Popehat name on a tweet, but of course that might not be “enough”. I’ll look to see if there is a direct line to get issues in front of him.
I’m also looking at EFF and other things.
It is a mediocre poem by wack job.
Why bother with this?
The thing about tilting at windmills is that windmills invariably win.
George Tobin
Beyond that, it’s a 9th circuit precedent, and applies Washington state law. I’m in the 7th circuit, Dreamhost is already in the 9th and Linda is in the 11th. The ruling might be a slam dunk for her if she was trying to get the 9th circuit to hear a case involving a Washington state plaintiff, but otherwise… it’s a tough climb. But using that law, someone might be able to try California Dreamhost based defendant in Washington state rather than in California. But here’s the thing: She doesn’t live in the 9th circuit at all.
Given that, it’s not at all clear what she might intend. Would she try to persuade the 11th circuit that a 9th circuit ruling applying Washington law applies in Georgia? Maybe she could succeed, but it’s hardly a slam dunk.
Precisely.
And beyond that: This is a transformative use which makes her case even more tenuous as far as I can see. Courts being what they are, if she files a court case could be costly– especially upfront costs. That said: Substantial cost can be recovered by a defendant in a copyright case.
I’m hunting the copyright registration page and cannot find a photo that lists Ellis as the claimant. I’ll keep looking. But if the original isn’t registered, then “worst that could happen” side of a potential suit is definitely affordable. Fines would be relatively low even if I lost.
I always like to look at both the “best that can happen” and “the worst that can happen”. Obviously, if one gets sued, “the best” is generally not all that splendid. I can’t after all, actually make money as a defendant in a copyright suit. I can, at best, have my legal costs covered as part of the award in a favorable judgment.
hunter
There is a free speech issue here. Specifically: I wrote a post because I specifically want people who receive demand letters from Linda to be aware what is going on. I want people in general to be aware that copyright trolling goes on so they can prepare for it, form opinions about it and ultimately, so we as a society can try to craft fair and effective laws that strike a fair balance between the needs of content creators and content consumers. No conversation about this is possible if discussions can be chilled by threats of copyright infringement.
Some other people are also interested in publicizing this issue. That’s a news/speech issue.
In that regard, the “Linda Ellis Troll Caricature” plays a role of conveying the message of her trollish nature.
Owing to the way people communicate, communicating messages through images can be very powerful. In particular, that image happened to be very highly ranked in Google such that people who might google “Iinda ellis” often were presented that image. The image is also sufficiently ‘cute’ or “click attractive’ that people wondering about Linda would click to my article discussing her. That meant that image helps me get my more details message disseminated. Knowing how effective images can be at communicating messages, I added it when I found it online.
So: I would like to keep the image precisely because it makes a statement I wish to publicize. It also creates synergy with statements I make using words.
In fact, I suspect that one of the Linda’s motives in issuing the “takedown” is to limit my speech on this issue. Of course, I can’t be sure of that– but in fact, one of the reasons “fair use” exist is precisely to permit Copyright law to dovetail nicely with “The First Amendement”. The parody exception is strong precisely because parody is often “speech”, very effective and so often deserves 1st amendment protection.
And so: This has nothing to do with the quality of her poems. Which. Suck. (Though the Dash did become popular. Go figure.) That said: I suspect the number of people willing to spend money on bound books, laminated printed poems and so on is rather small because the poems are mostly irredeemable drek.
But the poems quality is irrelevant: My desire to speak out on springs from disapproval of her trollish business model. For that reason, I would like to keep the images up.
Linda Ellis filed FALSE DMCA notices on 3 of my Youtube accounts. I had posted a video that exposes her copyright trolling scheme. It took me awhile to figure out what to do. i got help from http://www.extortionletterinfo.com. All accounts were restored. It took almost a month. I seriously contemplated filing charges against her. It appears that filing False DMCA notices is common but almost no one files a complaint against the people who lied. If you want to join me, I will file and pay for the court costs. This woman is a horrible copyright troll who bully’s and harasses her victims into silence. I’m still talking. I will never be silent. Email me and let me know if you are interested.
Ianal, but I wanted to comment on a previous comment. You are not afaik limited to waiting for her to sue you. You could sue her for a declaratory judgement of non infringement, since her DMCA letter puts you under credible threat of a suit. It might be worthwhile to seek the declaratory judgement even if she sues first.
I also believe that if she did sue you, or you sued her first, there are probably claims you could probably bring against her if you believe her DMCA claim was in bad faith, especially if you could link it to other activities she has tried against you (making it part of a pattern of bad faith actions). Things like interference with economic relations, unfair competition, and interference with contract (the contract between you and your host). Each potential claim would need to be researched. But my point is that there are things that you could possibly get damages from her from, if you win.
Good luck. And keep up with the Mann steyn stories. Us lurkers are enjoying that saga immensely. Almost as much as l’affaire gleick. And there’s so much fascinating stuff in Mann’s complaint and amended complaint, that it will keep the likes of you and Steve McIntyre busy for years even if the lawsuit is settled tomorrow.
Lucia,
Interesting point. In a sense, Michael Mann is the Linda Ellis of climate science, using courts and threats of law suits to silence criticism of his dreck.
Your fight might have much broader implications.
If the need arises and you need some capital to fight this extortion, do not hesitate to let us know.
hunter,
Thanks. I will. For now, I’m fine as there is no demand other than takedown. DMCA takedown notices don’t permit including a monetary demand.
Copner
This is my first interaction with Ellis. Read April Brown above. Ellis filed numerous DMCA notices on her youtube account. April got those restored with the counter DMCA. There are other people who have been sent letters.
That said: I (and April) believe that everyone who receives something like this from Ellis should be very vocal to be sure others are informed.
I am contemplating a suit– but that would be in consultation with a lawyer.
As you likely have read on the Mann threads, judges are reluctant to deem something “frivolous”. So, to estimate the likelihood of a judgement in a suit for bad will, we might need to see these from a “on the other hand” point of view. And (oddly to some) we might need to include “On the other hand, if the person filing the DMCA is an idiot who doesn’t know much about copyright would a judge consider this absolutely frivolous.” Filing a pro-active suit against her is something I would need to consult an attorney on. (I certainly couldn’t do that myself. I don’t have the skilllz.)
Anyway: I do think I need to first file the DMCA notice and then see what happens.
Please note I said “especially if”, not “only if”.
Anyway, assuming everything you say is correct, then
1. You can’t claim damages for her alleged transgressions against other people.
But: 2. You might perhaps be able to use her general behavior to others, as evidence that she is engaged in a bad faith campaign, of which you are just the latest victim.
Or, to put it another way, if you sue for your damages, it’s unlikely to hurt you, if you can also prove that your opponent is a dirt bag who has damaged many others too. Plus, if you can sure you have behaved impeccably (which isn’t the same as being a push-over), then you are likely to be in an even stronger position.
As it happens, I am aware of Linda Ellis, April Brown, and the Matthew Chan cases generally speaking, and have even formed some general impressions of the dispute. FWIW I think that it was a mistake for Ellis’s opponents to call her names, or disparage her poem, as they end-up defending that behavior (in courts, and in public discourse) rather than smiling nicely, being factual but polite, and waiting for the right moment to crush Ellis in the courts.
P.S. “frivilous” (rule 11, etc) isn’t coterminus with “bad faith”.
And depending on the state law, it may be the case that something can be interference with contract, interference with economic relations, unfair competition, or other similar claims, without necessarily being exactly either of the above.
Copner,
I think Matt Chan made a number of mistakes including being overly aggressive and so attracting a suit over a restraining order, and then not taking an attorney with him to court. Not taking an attorney to court is an especially bad move if one thinks that at least part of the motivation is censorship.
By the same token, I think publicizing Ellis’s business model isn’t something one can just wait to do in court. It is also somewhat difficult to comment on the business model without also commenting on the quality of the poem(s) because to some extent they are interlaced. And it is difficult to comment on the business model without calling Linda a “Troll”. I don’t know if you consider that name calling.
As for other comments about Linda’s aging appearance which has nothing to do with the business model: If the Ellis thread at ELI were still live, you could see that “lucia” did sometimes comment that she didn’t think that type of thing was useful or effective. I’m pretty sure “Jerry” said similar things. I also have not been a big fan of the “flushing down toilets” meme (even though I think they are fair use) or some other images. I think much of that wasn’t useful and in the end counterproductive. (Although, I do recognize some counter arguments about why it’s not counter productive. We could argue about that endlessly.)
This Linda-Ellis-Caricature troll image however, I happen to like a lot. It is a visual message that expresses a precise opinion relevant to her business plan. It’s easy to explain what “speech” it is trying to communicate. It’s easy to point out what is “transformed” in the image, and the bit that is transformed is definitely the “heart” of the image. Moreover, the “creative” aspect (lighting, pose, expression) are all transformed– and so those bits are not copied. This makes the fairuse claim rather strong for that image.
Oh– Thanks for the explanation of “bad faith”.
Lucia,
I am pleased to see that you are committed to using legal counsel from professionals, if this dreck turns into a legal action. Anyone who would go into court representing themself as counsel has a fool for a lawyer. There is an inside story on the huge fall of the “King of Torts”, Dicky Scruggs, from billionaire plaintiff attorney to a convicted criminal and federal prisoner. The story involves his being sued over a relatively small matter (by his standards) and hiring a team of talented lawyers to defend him. Before he decided on the strategy of attempted bribery of the Judge trying the case, he had reduced his attorneys to a team of clerks. Instead of providing legal counsel and advice, he expected them to simply take orders, no questions asked. He became his own chief counsel and destroyed his reputation and fortune over it most foolishly.
hunter
Whoa!! Lucky for me I don’t have enough money to even consider such a course of action. 🙂
Also, since I am not an attorney, I know full well that I would not have the chops to deal with anything unexpected that might arise in court. I would not know how to make sure things were preserved for appeal (in the event I lost in some initial phase) and so on. People often just don’t understand issues like the need to preserve facts for appeal, or knowing that certain judgements become “law of the case” (is that the term?), knowing that you can ask for summary judgements, dismissals and/or knowing when you can request them and so on.
And this is true even if one can tend to read court rulings and gain an impression that one more or less understands them. While I can read some rulings and develop an notion of what they say and mean, I know for a fact that I know nothing about procedure, and I know that improper filing can really, really matter and so on. I know that sometimes, even though you think a ruling “holds” it will turn out that it’s not precedent in your court (e.g. On hotlinking, Perfect v. Amazon is in the 9th circuit. But that doesn’t cover the whole USA: Posner didn’t consider that precedent in the 7th. But he made a ruling– so conveniently for me– Flava Works is — I hope– a precedent in the 7th circuit. At a minimum, it’s a ruling that would be given weight in any district in this circuit. In other circuits: no precedent at circuit level which makes things very inconvenient for both plaintiffs and defendants. And in some circuits, there may be different precedents in different districts. This could make things very dicey for different defendants and plaintiffs and each might have to swallow hard and think about the possibility of taking things to SCOTUS. That is NOT something one should contemplate doing without an attorney! )
But the one thing I really know: What I don’t know about the law would be very important if this became a court case. As an adherent of the “Stoic” philosophy of judging what one should do, I always like to consider “What’s the worst that could happen?” and collect data to figure that out. Often, the worst that could is actually tolerable. (It also seems improbable. But it’s tolerable.)
Right now, the “worst that could happen” seems tolerable (and also improbable.) But I am collecting a bit more data– and making sure I have an attorney lined up just in case. Because “the worst that can happen” does involve Ellis suing, and in that case, I need an attorney. I want to know who that is before I file the counter DMCA.
Lucia
“I would not know how” ?
typo_Police
bill_c….erhmm… thanks. Fixed.
April Brown mentioned above has a website aprilbrown.com. April has previously experienced DMCA’s by Linda. April is on Squarespace which rarely goes down but her site is down today. I don’t know if these are related but I sort of suspect they might be. Or… not. . I’m trying to find out from April.
Use http://www.aprilbrown.com (bad site management. It needs the www in front.)
Her website’s up now. She looks like an established professional who is active in her community with leadership in various charities.
Yes. And the take down didn’t have anything to do with Linda Ellis. Turned out she’d asked godaddy to do something, but something was specified incorrectly. So, it was down. Nothing dramatic– the coincidence got me worried.
OHAI. I am sorry that you have crossed paths with Ms. Ellis.
My claim to fame is fighting copyright trolls mainly of the porn subcategory.
However I did want to share some things.
Her notice clearly states derivative work, and one can look at the law covering those works and discover that is a defense to copyright infringement.
https://en.wikipedia.org/wiki/Derivative_work
As the content in question was not hosted on your host, she sent her notice to the wrong party. While they can remove the link to the image, they never hosted the image.
Parody would be a strong defense as from the description they made her appear to be what she is… a troll.
Something else Ms. Ellis seems to be unaware of is that a court has ruled that reposting something in its entirety (like say her little poem) can be fair use.
It seems that she is like the trolls I deal with, she wants to scare and shock people into paying her money to avoid the imaginary dollars she claims to have lost, and is hoping no one will stand up to her. Unlike many trolls who will run rather than fight, she seems to have no problem taking on her detractors with wild claims of stalking and harassment for them merely discussing how loathsome they find her and her tactics.
IIRC she filed the copyright on the poem well after it was first “published” and I can’t remember if her timing tied her to actual rather than statutory damages. It would be wise to make sure she actually has obtained a copyright on the image as claimed, sometimes they forget to do that right away and it can create issues.
I wish you well in whatever you decide to do, as I often tell other targets of copyright trolls I hope that you stand strong but the decision is fully yours and only you know what is best for you.
Hi That Anonymous Coward,
I’m spending a little time re-reading court cases before writing the DMCA counter strike, but I plan to submit one.
April Brown really, really dislikes Ms. Ellis and apparently so do a lot of other people.
The Ellis website is interesting- no extra books of poetry, no fresh poems that can be seen. Just the one poem that must not be quoted, repackaged and reconfigured, over and over and over.
hunter,
Yes. April really hates Linda, and for good reason actually.
Also: Yes. Linda Ellis isn’t really writing much poetry. Or, she does write some and periodically posts it on her facebook page. It’s about the quality of my haiku. But I don’t try to sell laminated haikus.
isn’t it about time for a Lucia/Josh collaboration? A haiku on one side of a mug with something from Josh on the other?
Earle,
Some of us have been bleating our requests for Lucia to grace us with some of her smug mugs for quite some time. The more the merrier….
It would not surprise me at all to see Mann & gang, if they prevail against Steyn/NRO, go after skeptics in the blogosphere in a way that makes Linda look like a girl scout.
Possibly the fairest thing to do is follow her instructions completely, and totally. Remove all material related to “The Dash”, her photograph, and even her name, from this site, from all sites she has attempted to troll – and for that matter all other sites.
In essence she would become a non-person.
Robert Leyland,
My removing all mention of her may be the “safest” thing to do, but it is neither what I want to do nor the most moral thing to do. There are reasons why criticism of Linda need to appear on the web.
Also: my not mentioning her would not make her a non-person. My not mentioning her would not cause her to stop sending heavy monetary demand to people and it would not give them any means to learn the context of these demands nor learn their options for responding.
So, while my doing that would be safest for me, it is not what I will be doing. 🙂
Indeed image #2 in my search was of the troll herself. Maybe you can join forces with Google. They might have a dime or two to spare.
P.S. First attempt at blockquotes…
Serial DMCA take down writer. I like that term. Another one who would fit this description in Brianne Chantal Patterson of British Columbia. She has even gone so far as to copy and past post into her own blog, back date them, then claim DMCAs on the original authors.. even when what she has c/p makes her look bad!
http://thatsonecrazycanadianbitch.blogspot.com/2014/01/brianne-chantal-loves-her-some-dmca.html
hmm, clearly I need to use the /sarc tag better!
@Robert Leyland,
You never know with Lucia, she has a pretty mean deadpan delivery…
Marginally related:
Getty is freeing some 35 million images for online usage.
link
I read that.
They are creating an embedding tool like youtube. They have some TOS that people might violate. So I guess I’m waiting to see whether they go after people for violating TOS and also whether they stop going after people who still find images elsewhere and use them.
But overall, I think they are creating something that could be a win-win. We’ll see!