It seems every legal issue that ever comes up at climate blogs ends up discussed at The Volokh conspiracy. This time the post is by the founding blogger Eugene Volokh is commenting on Brandon’s letter. If things get really nasty and involve accusations of “hacking”, I suspect Orin Kerr will end up commenting. (Orin represented the “Weev” in a recent hacking appeal.)
Eugene, a 1st amendment and copyright scholar does provide a caveat at the outset.
I can’t speak to Australian law on this, but here is my view of American law, which I first blogged about in 2008:
He then continues, basically pointing out that letter can be and are copyright protected, but copy may be permissible under fair use. The four factors of fair use are discussed.
I”m going to send you to Eugene’s post to read more, but the summary is
If it weren’t for the unpublished nature of the letter, the Supreme Court’s Campbell v. Acuff-Rose (1994) decision, on which I rely in my quick analysis above, would copying of cease-and-desist letters almost open-and-shut fair use. The unpublished nature of the work undermines that in some measure (see, e.g., Harper & Row v. Nation Enterprises (1985)); but I still think a copier’s fair use argument in such a situation is quite strong.
Quick catch. I was just going to post a link to the Volokh conspiracy post – but see you beat me to it.
Thanks.
RickA,
I knew it was going to be posted.
Even knowing the post was coming, I still didn’t read it until 5 other people had commented.
I can’t help but notice that the dimbulbs in the legal department at Queensland have now made it to the webpages of the Washington Post…and not in a good way.
It seems Volokh is saying UQ has a case. The odds are against winning. But lawyers aren’t supposed to be shy about asserting their case.
Nick,
Trying to get a rise out of Lucia? 🙂
Nick,
Depends what you mean by “has a case”.
He’s saying the same thing RickA, I and others have been saying. Copyright does exist. That means a primafacie but rebuttable case for infringement can be made. Then the person copying can advance their defense. In the situation at hand, the copiers fair use argument to permit copying even though copyright exists is quite strong: that is to say:
if the attorney who wrote the letter brought a suit,the letter recipient who copied would almost certainly win the case
In this situation the current situation this translates to: If UQ brings a case, Brandon would almost certainly win.
Mark Bofill– I’m not sure he’s trying to get a rise. I haven’t been one of the people saying copyright in the lawyers letter doesn’t exist at all or that one couldn’t bring a case.
The real puzzle would be for any claim of copyright in the data. RickA and I have knocked that around on the other thread. Someone has to get really creative to come up with a useful way to use copyright for the data or contents of a database that is not trivial to get around under US copyright laws as it stands. Hypothetically some data of some sort might be copyrightable in the US, but the US copyright office hasn’t managed to ever see any actual data (i.e. ‘facts’) that can copyright protection. They can find copyright in some expression of facts– so some fiddling around with a database, or some issues relative to metadata (if it’s creative on not itself mere ‘facts’) and notes might be copyrightable. Software used to access the data an be copyrighted. In some way a collection as a whole can be copyrighted. Butitself? That would be a tough call. Each ‘datum’ is a ‘fact’ and so really hard to ‘copyright’.
I googled a little and Australia does seem to find some conditions underwhich data itself might be copyrightable– but even that seems a tough sell. We’d need to hear from an Australian copyright lawyer to better understand that one.
It seems like it really wouldn’t help the credibility of the 97% authors if they and/or UQ claim that the underlying data upon which their paper was based is not a collection of facts but rather a creative work.
Earle,
“Creative” is a term of art in copyright. But… still… yeah.
I’ve been tried to contemplate whether a person reading an abstract and then assigning it a value on a likert scale 1-7 has ‘created’ that datum as ‘creation’ is defined in copyright. I just don’t know. I’d love to get 10 copyright lawyers in a room, have them all drink lots of wine and argue about it. The we could see if they all agree or not– but I really don’t know.
That’s interesting Lucia. Why not? Er, I mean, why can’t I copyright any ole’ data I collect? I gather from your response that the problem is thou shalt not copyright facts, which makes a certain degree of sense.
I should probably go dig up the discussion you refer to on the other thread.
[edit – I see. No facts, data, or ideas]
Nick:
Not when “asserting their case” damages their client’s interests, as this one clearly did.
Mark Bofill,
That’s pretty much it. So, to copyright data itself you have to must be able to perceive in it an element that is something other than “just a fact”. I suspect the closer to “raw” the data is (are?), the harder it is to perceive it as anything other than “a fact”. Maybe someone can combine it into some sort of “product” and making it no longer a “mere fact”– for example, a graphical presentation of data has creative elements. Steam tables have creative elements and so on. But the data themselves? With copyright, that’s pushing it.
Brandon I don’t know if you can divulge this, so don’t if you’re not sure, but the letter is signed by somebody in the legal department of the U of Q, right?
The rules around copyright are certainly interesting but practically speaking am I missing anything here?
1. If Brandoon holds back the names and data then he’s got a bargaining chip. That gives the University and the other folks something to pursue and it gives him an opportunity to settle things. Maybe,
B. I’m sorry, here’s what I did, and I won’t release the data…
Q. Thank you. We won’t pursue the matter further.
2. OTOH if he releases the data then they have to pursue a claim against him with the hope that their financial gain will exceed their expenses. Treble damages, legal fees, etc, would it be worth pursuing this? It’s a University with billions $$ of assets. In this case they can only hope for an apology (and a broken attack desk lamp).
Brandon’s confidence notwithstanding, my greater interest and concern surrounds the hacking claim – an area where I have no experience. His confidence of the rules surrounding the hacking laws is compelling. But courts exist to settle disputes. I am also compelled to believe that Cook et al don’t agree with Brandon’s opinion and that they would like to find away to returns his various favors.
Now that the details of how he obtained the information have been revealed I would like to see the experts in the room engage in a discussion of those legal issues.
DGH
I’m not sure what you are suggesting as a bargain. If Brandoon gives them what they demand… then… what does Brandoon get from them? They don’t pursue a copyright demand they would almost surely lose. (And in the US, judges can force a losing plaintiff to pay defendents legal costs.)
Sure. But who would be bringing a hacking charge? What would the charge even be? Cook et al can’t force the US authorities to act just because Cook or the university want them to do so.
There’s been some discussion at Brandon’s blog. Frank O’Dwyer has been trying to advance a case for ‘hacking’. Initially, he tried to do it by being coy and just saying he knew of cases. He wouldn’t reveal the names of the case until we started saying things like “do you mean X”. So, we are now discussing them. I was thinking of discussing similarities and differences with “weev”– there are big differences. (And FWIW: Weev’s sentence was overturned on appeal.)
HR, the letter is online now, so there’s nothing to hide. It was from Jane Malloch, “Head Research Legal.” She has a profile page with the university and everything.
It is extremely unlikely that the copyright thing will be pursued. That’s why I posted today and why I am more interested in the legal issues surrounding Brandon’s acquisition of the data.
To your points,
“They don’t pursue a copyright demand they would almost surely lose.”
Brandon would need the capital to fund the the defense against an opponent with deeper pockets and he would have to be willing to lose it all in the event that the sure bet doesn’t pay off. He’d also have to have a lawyer that was willing to make that same bet.
“And in the US, judges can force a losing plaintiff to pay defendents legal costs.”
In my experience that’s a rare thing but I’m happy to have a lawyer in the room contradict me. If a case gets to trial that implies there was sufficient merit in the case not to award damages to the prevailing side. Lawyers don’t litigate for no reason and judges don’t need to hear bad cases. That’s quite a filter. That doesn’t mean there aren’t plenty of bad cases and fees aren’t paid from time to time.
“But who would be bringing a hacking charge? What would the charge even be? Cook et al can’t force the US authorities to act just because Cook or the university want them to do so.”
No, they can’t force anything. Investigators and prosecutors will pursue what they will. But the University can make a complaint to whatever authorities enforce hacking laws.
This case has gotten a bit of attention inside the climate mud fight and also (per this post) in the realm of law. Assuming there’s even a sniff of a case here would it be worth pursuing for some law enforcement person? I really don’t know the rules nor the legal climate around this issue and that’s why I posted.
Regarding Frank O’Dwyer, I lurked that thread at Izuru. It would be more interesting to read about hacking with the legal technical detail that you have applied to copyright as opposed to his innuendo.
DGH, this case might prove interesting to you (full opinion here). Short version: the Copyright Act does have a fee-shifting provision, and the trial court has a lot of discretion in deciding whether to award attorney’s fees to whichever side prevails in a copyright-based action.
This is different in other kinds of litigation, and the default in the U.S. is that each side pays its own fees, so in general you are right. But per that case, the trial judge can be a lot more aggressive in awarding fees to Brandon, if the cause of action is copyright; the case does not have to be outright frivolous or die before it gets to trial.
@Joseph W.
Again, this thing shouldn’t ever get prosecuted because it’s a loser for all parties. Your sample case reinforces my opinion in that regard.
“But the statute merely confers discretion on district courts to award attorney’s fees, not a requirement that they do so in the typical copyright suit. If Congress had intended for attorney’s fees to be virtually mandatory, it would have written the statute differently and studied it extensively in light of American practice.”
Regarding this situation….
– Best case in the sad event that this goes forward Brandon can recover his legal fees and learn that he’s in the right. The University can easily absorb his legal bills and suffer the ego damage caused by the loss. Their biggest loss is might be labor hours for employees dedicating time to the case. John Cook will have to write a few things…
– The University’s upside? Legal fees, the damage judgement (which could be as low as $0, i.e. a win with no damages), employee morale and a small scale legal victory. They would also have to assess Brandon’s ability to pay the damages that they might hope to realize.
DGH,
I don’t know statistics, but google “Mattell Bratz copyright judgement” http://en.wikipedia.org/wiki/Bratz
Sure. And I can phone the police and complain about my neighbors….whatever. In the current case, we don’t have any idea what “the hack” was supposed to be (according to U Queensland). That makes it very difficult to speculate about whatever it was Brandon did that might be illegal. So it’s a bit difficult to discuss what you want discussed.
OTOH: We can discuss Frank O’Dwyer’s theory– but we have no idea if that’s got anything to do with U Queensland’s ambiguous claim about evidence of hacking.
I think the answer is “no”. But maybe UQ has evidence of something …. and maybe someone somewhere hacked and that created evidence of something– but who knows what. UQ seem to think the have evidence of hacking of some unknown variety on some undisclosed site– but we have no information about that.
If you want the discussion connected to what Brandon did–we can’t. The answer is: as far as I can tell, Brandon did nothing illegal. Beyond that: UQ hasn’t provided sufficient info for us to guess what they might allege occurred. In fact, they haven’t really alleged anything specific about what Brandon might have done nor how anything they saw might be related to Brandon getting data. Legal letters being what they are, for all we know, the “evidence of hacking” at the site where they think the data was obtained might be the sort of thing every site experiences nearly every day.
If pressed, I could reveal evidence of multiple hack attempts at my site on a daily basis. So I could truthfully make the exact same claim UQ made. Notably UQ doesn’t say that the hacking seemed aimed at getting that particular data– only that there is evidence of some hacking at that site. Well.. uhmm.. yeah. I’ve got that for rankexploits.com too.
DGH,
Given the level of discretion in a copyright case, even if a judge found the universities case meritorious, they could award very low damages and not make Brandon pay attorney’s fees. Judges have lots of discretion over awards in copyright cases and my impression is they use it. (Or at least, that would be the case if the plaintiff is from the US. I’m not entirely sure what happens with a plaintiff form the Australia.)
Oh… DGH,
Are you American? I ask, because if you are not (or even if you are) you may not be aware that the justification for copyright is in the US constitution. That justification does inform the courts reading of any laws enacated. (So does the 1st amendment.)
In the US, copyright is not a “moral right”. The purpose of the law is to promote progress in science and useful arts. As such, when there is any ambiguity or discretion, the issue becomes “would this reading promote science or useful arts or do the opposite”. This even matter when judges are deciding whether to award attorney’s fees. Judges do frown on this particular law being used as a SLAPP, to gain unfair commercial advantage, to beat up on people and so on. So I don’t know how often they reverse fees– but it’s one where ‘the little guy’ picked on the ‘the big guy’ is more likely to get fees awarded fees when he wins than otherwise precisely because judges do not like to see “the big guy” using the threat of unfair litigation (and potentially very scary sounding awards) to inhibit free speech, inhibit competition and so on.
Also, to quote Fogerty —
“The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public.”
When boilerplate lawyer nastygrams are protected as “original literary, artistic, and musical expression”…then we will know our doom is nigh. ‘course if anyone described that letter as “science” or “useful”…that would be pretty bad too.
The claim of copyright in a cease and desist letter is despicable and abusive. (Whether that has any effect under Australian law, I don’t know. However, as a matter of policy, it is ludicrous.) If you could copyright cease and desist letters, then everyone would copyright these letters hoping that lay people would not turn them over to lawyers.
Checked out Australia’s Solicitors’ Conduct Rules, and it appears that there are a number of potential violations of these rules. Here are the rules that I think are relevant: [See http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/AustralianSolicitorsConductRules.pdf ]
3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.
4.1.2 A solicitor must also:
4.1.2 be honest and courteous in all dealings in the course of legal practice;
5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that
the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or
5.1.2 bring the profession into disrepute.
21.1 A solicitor must take care to ensure that the solicitor’s advice to invoke the coercive powers of a court:
21.1.1 is reasonably justified by the material then available to the solicitor;
21.1.2 is appropriate for the robust advancement of the client’s case on its merits;
21.1.3 is not made principally in order to harass or embarrass a person; and
21.1.4 is not made principally in order to gain some collateral advantage for the client or the
solicitor or the instructing solicitor out of court.
22.1 A solicitor must not knowingly make a false statement to an opponent in relation to the case (including
its compromise).
22.2 A solicitor must take all necessary steps to correct any false statement made by the solicitor to an
opponent as soon as possible after the solicitor becomes aware that the statement was false.
34.1 A solicitor must not in any action or communication associated with representing a client:
34.1.1 make any statement which grossly exceeds the legitimate assertion of the rights or
entitlements of the solicitor’s client, and which misleads or intimidates the other person; …
34.1.3 use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass
or frustrate another person.
Sorry for the long excerpt, but I think all of it is potentially applicable. If the University’s lawyer is blowing smoke (and there is a very substantial chance that she is), then the honesty of the lawyer is called into question, and the rules cited seem to apply.
JD
Nick “so they have a case” Stokes’ comment somehow reminds me of this:
Harry Dunne: One time, we successfully mated a bulldog with a Shih-Tzu.
Mary Swanson: Really? That’s weird.
Harry Dunne: Yeah, we called it a bullshit.
Lloyd Christmas: What do you think the chances are of a guy like you and a girl like me… ending up together?
Mary Swanson: Well, Lloyd, that’s difficult to say. I mean, we don’t really…
Lloyd Christmas: Hit me with it! Just give it to me straight! I came a long way just to see you, Mary. The least you can do is level with me. What are my chances?
Mary Swanson: Not good
Lloyd Christmas: You mean, not good like one out of a hundred?
Mary Swanson: I’d say more like one out of a million.
[pause]
Lloyd Christmas: So you’re telling me there’s a chance… YEAH!
The Bratz matter has proceeded beyond the timeline provided in the wiki article you cited. The judgement was partially vacated leaving only the payment of legal fees in the amount of $137 million.
This is the same “best case” that I described above for Brandon. He would have to stake the legal fees in order to take a chance that he would get them back. I don’t know statistics but that doesn’t sound like a great bet.
Simply put Brandon hacked system where the data was stored and took the data*, he then sent a letter asking John Cook what Cook would do for Brandon not making the data public. Now Brandon is complaining that he got an Email in which UQ asserted copyright against him making the letter public, which he did anyhow. Since Emails from lawyers inevitably include such language**, why do they include it. UQ’s lawyers were doing nothing unusual.
*By analogy, if you leave a window open and someone climbs in and takes your kitten, that is theft. You may have an issue with your insurance company but not with the cops taking a report. If the person who took your cat then writes you a letter asking what you would do to get the kitten back, what is that?
** Typical example in Eli’s other inbox – This communication contains information which is confidential and may be protected by attorney/client or other applicable privileges. It is for the exclusive use of the intended recipient(s). If you are not the intended recipient(s), please note that any distribution, copying or use of this communication or the information in it is strictly prohibited. If you have received this communication in error, please notify the sender immediately and destroy any copies of it.
Eli, your analogy is broken, because it would mean that anything openly published online is presumptively protected , unless there was explicit permission to read it. Or to put it another way, you are guilty of interfering with Lucia’s pussy, sorry I mean website, unless you can show explicit permission that she granted you to read and post here.
A long line of cases involving search engine robots etc., and common sense, has generally gone towards the other assumption – publishing to an open web page is presumptively taken as an implicit license to access.
If this were not the case, simply opening your browser and clicking on links would expose you to a legal minefield.
JD Ohio, thanks for that. I’m not really one for filing complaints, but I think there would be a case for one here. I’m not entirely sure how much of this is Jane Malloch’s fault though. The University of Queensland recently posted a public statement which is incredibly wrong. That makes me think the problem originates higher up than with her.
Eli Rabett, if you’re going to make libelous remarks, you should try making the falsity of them less obvious. The only other person I know foolish enough to accuse me of blackmail is willard.
Eli “Since Emails from lawyers inevitably include such language**”
Eli, the language you quoted is typically found in faxes and emails and is designed to limit the behavior of people who receive the fax or email by mistake. In this case, Brandon was the intended recipient. An additional differentiating fact is that there is no mention of copyright protection in the language you quoted.
xx
Copyright law is intended to protect the commercial rights of artists and business persons to profit from their own publication and republication of the fruits of their labor. In this instance, the claimed use of copyright is being used to prevent the republication of the letter by anyone. That is not what copyright protection in the U.S. was designed for.
JD
Brandon: “I’m not really one for filing complaints,”
In Ohio anyone with knowledge of lawyer ethical misbehavior can file a complaint. I don’t know what the process is in Australia. However, I wouldn’t be surprised if it was the same. Please understand that I know nothing about Australian law and can’t possibly give advice about Australian procedures, but I think it would be helpful if those with knowledge of Australian law could chime in.
JD
Eli
It’s all well and good to precede your claim with “simply put”. But can you tell us which “system” was involved in said hacking? Possibly giving a domain name? And can you describe which action Brandon took constitutes hacking? If you think things are simple and clear, you should be able to clarify further. Clarification would help people figure out what precisely you are alleging.
Here’s another analogy: if someone leaves a box of kittens on the street wth a sign that says “Free kittens”, and then someone takes one, it’s not theft. If the person who left the box of kittens on the street writes people letters saying the kittens were stolen, they are being ridiculous.
People laugh at these ridiculous claims too and then pay them little heed. I assume that’s your point.
We discussed this back in 2011. These notices might have some effect when you get to court. If someone is trying to introduce the e-mails as evidence or get them in discovery, the other side’s lawyer might use those notices to prove he tried to limit dissemination (if you make your “privileged” information public you can waive the privilege). But, as we discussed back then, they don’t create any special duty on the part of the recipient.
RE the Free Kitten analogy…
Had to clean the keyboard and monitor of coffee. If you do that again I’ll sue. The price of a Starbucks coffee is well worth fighting over.
Mark Steyn has now republished the letter to Brandon himself:
Well put, that man.
Good on Steyn.
I’d republish… but the DMCA takedowns are a PITA to deal with.
I’d be more happy with Mark Steyn’s article if he didn’t get my views on Michael Mann’s case wrong.
Eli has revealed him to be less knowledgeable about the Internet than Ted Stevens. Did Lucia ever do a fluid mechanics analysis of the set of tubes?
Brandon, if you email him a correction (mailbox at steynonline.com) he’ll likely not only acknowledge but print it (he typically prints excerpts from his weekly mailbag on Sundays).
From the University of Queensland Law School Web Page
“What is Copyright?
Copyright is one type of intellectual property. The others include patents, trademarks and designs. It is a bundle of rights – economic, legal, political and moral. Copyright is a type of personal property right that is founded on a person’s creative work. It is designed to protect the copyright owner against unauthorised use by others of their creative work. While there is no requirement to attain a specific literary level, the output must take a tangible form. There is no copyright in ideas.”
See https://www.library.uq.edu.au/copyright/copying-for-research-or-study#email”
The most important part of the statement appears to be is that it is designed to protect creative work from unauthorized use. Would be interesting to see if Law School supports copyright claim made by Malloch.
JD
Joseph W., I actually did that a couple hours ago. I also directed him to my series of posts about Michael Mann to indicate to him how little I think of Mann’s chances in a lawsuit.
Good! I hope his legal team makes good use of them.
Since we are having fun with analogies:
If some illiterate buffoon posts “Free Cake” on the door of his garage, he does not get to sue the crowd raiding his pantry because really he only meant his mom and he wasn’t too sure what that combination of letters meant anyway.
This is pretty much our friend Mr Cook.
Eli,
Finding something laying on the street is not ‘hacking’.
Since this data was available freely on google, it was in effect laying on the street.
Brandon can certainly speak to this more, but UQ is going irrational:
http://hiizuru.wordpress.com/2014/05/20/university-of-queensland-doubles-down-on-hiding-data/
The sloppiness in Eli’s thinking never ceases to amaze me.
It seems to work like this: “I feel this with my heart, therefore truth.”
Carrick,
I doubt it. I have a hunch Eli would be glad to have you think that, but I don’t buy that that wascally wabbit is a sloppy thinking simpleton. No clue what the diabolical genius masterplan is (/silly), or to put it more seriously I’ve no idea why he posts some of the stuff he posts. Maybe just kicks. Mebbe something else. (I can’t go there without my tin foil hat and I left the darn thing in the car this morning /mas silly)
Anyone who constantly refers to themselves in the 3rd person and as a bunny probably isn’t all there.
Carrick,
.
“I feel this with my heart, therefore truth.â€
.
IMO, this is a recurring theme in most all liberal/left thinking. It stems, I suspect, from a continuous focus on the desired (“fair”) outcome, not rational thinking. The growing divergence in incomes between skilled and unskilled leads to all manner of hair pulling and teeth gnashing, but no substantive plans to better train/educate/prepare people to contribute to today’s economy. Instead we get cries for much higher taxes…. to directly transfer wealth from rich to poor. I think there is an argument to be made for higher taxes on certain kinds of income, but the liberal left never makes that reasoned argument…. always the focus is on greater “fairness” of outcomes, not greater fairness of opportunity. Never on growing the pie, always in cutting the same size pie into more equal pieces.
As I understand it, UQ does not want certain unspecified info made public, does not want anyone to know they made this demand/threat (hence the silly copyright claim) and believes the entire matter contains the risk of harming the image and reputation of the UQ (“any conduct impacting”).
If it were a matter of a legit claim regarding IP and nondisclosure, wouldn’t they have (a) precisely identified the content a issue; (b) precisely outlined what steps regarding its handling were to be done etc. instead of broader vague threats?
It appears the real intention is to toss out enough nebulous legal harrumpfs to try to deter public examinations of the foundations of the Cook paper, which examination could presumably make them look bad. (Hasn’t this already happened?)
I infer from the letter that whoever instructed the solicitor has a suspicion that the Cook paper is an embarrassment which could get worse.
If it were just an alleged hack and an issue concerning possession and distribution, all that broadly threatening crapola at the end of the letter would be superfluous and the demands would have been more precise.
As for the copyright claim, there is some history of lawyers trying to copyright boilerplate and form language–it is hard to protect such stuff. This letter is in no danger of being a popular and valuable legal template. A cautionary example, maybe.
Re: SteveF (May 20 11:07),
Are you familiar with the Myers-Brigss Type Indicator? It would seem that left/liberals tend to fall on the Feeling side of the Thinking/Feeling dichotomy.
[Wikipedia linked above.]
Which is not to say that Thinkers always make better decisions than Feelers. But if you’re the plaintiff in a personal injury case (or the Menendez brothers), you want a jury of Feelers. As I remember, the description of the jury in the first Menendez brothers trial was ‘Oprah watchers’.
Perhaps we should consider that under Eli’s rationale everything he has posted has a copyright, and that everytime we talk about his rabbitty ways he could be compiling a list (pretty long by now) of copyright violators to be shaken down later. /sarc
DeWitt,
.
No, I was not aware of that indicator, but it does not surprise me. The “we are the world” touchy-freely types dominate the mass media. The hard science/engineering types are a small(ish) minority.
.
The weird thing for me is not that this dichotomy exists… I saw that by the time I was in my early 20’s…. the weird thing is that the touchy-feely types never seem to get past the adolescent stage of Kumbaya and holding hands around the campfire.
.
I mean, really, where does the liberal left offer substantive ideas for…. well, for any significant problem? I see nothing of substance, only Robin Hood economics moved to 2014…. and Eli Rabbett writing the odd orthorgonal comment on blogs. Full of touchy-freely thinking, of course.
Hunter, I think you have it reversed.
Eli is the potential copyright violator. Like brandoon he has been accessing public accessible web sites using his browser. Using Eli’s theory, unless he can show explicit permission for accessing these kittens, I mean websites, he is a copyright infringing and hacking bunny.
I therefore propose to set up a series of websites that I think Eli will access. You know, sites about the coming climate catastrophe, the evilness of climate contrarians, novel theories of law, and bunny rabbits. When my forensic examination of the logs show he has accessed one of these sites, I will then accuse him of hacking and copyright infringement, and sue him for his entire carrot supply.
Copner,
We might even be able to induce him into to making ‘unauthorized’ visits to the uri’s by dropping referrers in his referrer logs!!
In this very relevant Volokh Conspiracy post, it is noted that a court ruled that a newspaper could not be held liable for publishing something that the government inadvertently let out/published itself.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05/19/government-erroneously-releases-information-someone-publishes-it-can-government-order-the-publisher-to-take-it-down/
This is just the case with the data Brandon has from Cook’s paper: it was sloppily put in a public place (assuming no hacking) and thus copyright can’t be asserted since they are simple facts and not a literary or creative work.
Could a tar baby be in the works? Ref: Uncle Remus
>and that everytime we talk about his rabbitty ways he could be compiling a list (pretty long by now) of copyright violators to be shaken down later.
Perhaps this is what he has in mind when he says that Mark Steyn is going to make lots of money from his donors after losing his lawsuit and declaring bankruptcy.
Copner,
lol. Taking a Rabett’s carrot supply hostage is cruel.
If I were Brandon I would be VERY pro-anti-SLAPP right now.
http://www.steynonline.com/6360/the-tree-rings-of-pyongyang
I wouldn’t wish Steyn’s ordeal on anyone. The trial itself would be interesting … but only if someone else (like Mann) were paying for it. Even so, there is lost time, wages, and reputation that will never be recovered (and I’m not thinking of Mann’s).
Ledite, I’ve been very pro-anti-SLAPP since I discovered it while doing research in high school.
I see Brandon v. Steyn is being argued over in
http://hiizuru.wordpress.com/2014/05/22/is-mark-steyn-being-willful-obtuse/
.
Brandon, you are willfully escalating this question about the intent or misinterpretation of a few words. “[…] I believe his claims, if true, would […]”
.
Generalizing that, anybody willing to lie or make up or exaggerate claims deserves to have his day in court (read pound of flesh).
The courts then become a license to maim, at much government expense. Not good. There should be some pre-screening of cases to prevent the unreasonable ones from getting that far. The judge who looked at SLAPP didn’t get it. There goes your big “IF”.
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In ye goode olde days, cases like Mann v. Steyn and Brandon v. Steyn would have been dealt with by having a duel. That custom went away and was replaced by slander and defamation suits. The olde way had the positive aspect of posing some risk to the challenger, although not enough for many hotheads.
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Brandon, don’t let your emotions override your reason. Admit that Steyn may have a point and offer to buy him a beer. Steyn will admit he is wrong in print, but escalating the argument is not the way to convince him.
Ledite
Alas, it also posed less risk to those who were skillful with weapons that others leading to stories like the movie plot in “Scaramouch”. That’s not a good system even of this sort of thing makes good movies
Just so you know Ledite, if not for the fact I use an RSS reader to follow comments on this blog, I’d have likely never seen your comment here.
What!? Why do you say I’m escalating this when I attempted to resolve this disagreement in private with a polite e-mail? It was Mark Steyn who decided to escalate things. He forced this disagreement into the public arena. He chose not to address my complaint. He chose to raise new issues by making new claims he had no basis for.
Why are you talking about me escalating things while ignoring the fact Steyn is the instigator? I’m not being rhetorical about any of this. I really don’t get what you’re arguing. Similarly, I don’t know what you’re arguing when you say:
The judge laid out a standard for the situation and applied it. If the judge was wrong, explain what the correct standard would have been. Don’t just wave your hands around and expect people to assume you know more about the legal issue than the judge whose job it is to examine it.
What makes you think you know what Steyn will do? I contacted Steyn privately to inform him of a mistake he made. He made no effort to address the point, instead publishing a post in which he painted me a buffoon by adding further misrepresentations.
Mark Steyn didn’t admit he was wrong, and he was the one who decided to escalate things. How do you reconcile that with your portrayal of this situation?
Brandon
We don’t know whether the judge interpreted correctly. He may or may not have. That’s an issue that is being decided in the appeal of the anti-slapp ruling. They are also deciding if the anti-slap rulling can be appealed before or after the full case goes ahead.
I don’t know whether the lower court ruling is correct. It seems to me that it’s wrong, but then I think the ruling to dismiss is wrong even without the Anti-slap and I admit I haven’t gone through ANTI-SLAP laws, precedents and so on, so I don’t really know whether the anti-slap ruling was wrong.
lucia, I agree we don’t know. The judge might have been wrong in his interpretation of the standards for this issue. I specifically highlighted that possibility when I wrote my post about this. People seem to have ignored that. I’m not sure why. It was a major caveat.
Anyway, most of what’s been said, including nearly all the comments saying my position is wrong, have had no references to case law or any actual laws. I don’t know why so many people seem to think vigorous hand-waving and wishful thinking would make for compelling arguments.
Someone over at Brandon’s blog mentioned differentiating between finely ground pepper to fly dung….. I think that pretty well sums up what this argument is about.
Brandon, My read of Steyn is not that he thinks you are a loon. He is tired and angry. He sees what Mann’s game actually is: to never have a day in court, but to grind things out until his victims cave in.
He could have been kinder and lower key, and the response you made was correct. But I would not take it personally.
From Eli –
“** Typical example in Eli’s other inbox – This communication contains information which is confidential and may be protected by attorney/client or other applicable privileges. It is for the exclusive use of the intended recipient(s). If you are not the intended recipient(s), please note that any distribution, copying or use of this communication or the information in it is strictly prohibited. If you have received this communication in error, please notify the sender immediately and destroy any copies of it.”
What always amazed me about the climategate emails was that the climategate emails were littered with these statements. The climategate email release provided evidence that said emails were forwarded to parties that had no right to receive the emails with the above notice (I am addressing the acting of forwarding an email by the named parties, not the act of anonymously acquiring the email store). All parties involved in the act of forwarding these emails are easily identified.
Why has no legal action been taken against those who violated these notices?
hunter, I don’t think Mark Steyn believes me to be a loon. My impression is he thinks I’m naive/foolish/ignorant. He seems so sure of it he doesn’t even hesitate to believe I do unbelievable things.
For example, a person claimed I was only complaining in order to get myself into the spotlight. I pointed out I had contacted Steyn privately to try to resolve the disagreement, not what I’d do if I were trying to draw attention. Steyn responded by saying:
Even if we leave aside the ridiculous exaggeration, this is incredibly misleading. I never said a word to suggest I was upset Steyn published my e-mail to him. All I said is I contacted him privately. Nothing about that implies I believed the communication needed to be kept private.
In effect, Steyn just makes things up to mock me because he doesn’t like that I disagree with him. And the entire basis for his mockery is his refusal to read simple sentences.
Nick writes — “The odds are against winning. But lawyers aren’t supposed to be shy about asserting their case.”
Really? I’m a lawyer and I’d say that’s completely wrong.
I wonder. I seem to recall from about fifty years ago that the original copyright is for first publication. And sending the item to another could be considered the first publication. Am I recalling improperly or have things changed?
JimB,
Sending it to another might be considered first publication– or not. It sort of depends. But copyright law has changed quite a bit in 50 years. For example: copyright now exists before ‘publication’. It exists at the moment when something is first given some sort of tangible form. (So: the film has been exposed. You have a digital copy of a manuscript and so on.) That means that copyright might exists quite a bit before someone emailed anything to someone else.
Copyright protection also last longer than it used to last.
Some aspects of our old laws sort of made more sense than the current ones, but others did not translate well to new technologies.