Public Citizen, an organization set up by consumer crusader (and former presidential contender) Ralph Nader, seems to have carved out a niche for itself by defending Internet sites and bloggers against DMCA notices and accusations of defamation from companies unhappy with the criticism. The lawyers who work on behalf of these firms are also growing aware of the damage that can result when word of their takedown notices hits the web, and have therefore begun to claim copyright on the documents in order to keep them from spreading.
That's what happened in the first case, where a company called DirectBuy (perhaps you've seen their infomercials on TV) accused the owner of infomercialscams.com of defaming it by allowing critical postings that label the company a "scam" or a "nightmare." The letter that made this claim and demanded that the material in question be removed at once under threat of being sued in the US and Canada also claimed that it was copyrighted and could not be posted to the Web.
Public Citizen, which is handling the case, responded with a letter of its own (PDF) that brings the snark in a serious way. Headed "How not to write a cease and desist letter," the missive suggests that the company bypass Canada and file suit in Tashkent instead, since "litigation in a totalitarian state would be more consistent with the view that the Internet makes it too easy for consumer criticisms to be heard."
And just for good measure, Public Citizen went ahead and posted the initial letter online, a move supported by Google's chief copyright counsel William Patry.
If designed to provoke, this worked like a bee sting. It elicited a sarcastic response (PDF) of its own from DirectBuy's lawyer, John W. Dozier, Jr., Esq., who may be the only man I know with two commas and three periods in his title (he's also the only person I know involved in a company that bills itself as "spam lawyers and spam attorneys"). Dozier challenged the claim that "scam" was merely a person's opinions, arguing that it is actually "the most egregious form of defamation." The issue is ongoing.
What can we learn from the spat?
- Lawyers like sarcasm. Tashkent is part of a totalitarian state. Running infomercialscams.com is a good way to see the inside of a courtroom.
The site's operator has also been involved in a dustup with Video Professor, a sensitive soul who also objects to the characterization of his business found in site postings.
This is a fruitful time to be a First Amendment lawyer with a specialty in Internet law, as case law is gradually accreting like coral around the issues of anonymous online speech, liability of site operators for user content, and the validity of critical domain names.
The second case (which was noted by Techdirt) seems more straightforward. Public Citizen isdefending an anonymous Internet user who started the site PowermarkHomesSucks.com. The site, as you might imagine, is quite critical of Ohio-based Powermark Homes. The company took exception to this and filed a DMCA notice with the person's ISP, demanding that the site be taken offline.
ISPs need to comply with these orders in order to maintain their own "safe harbor" under the law, so the site is now indeed offline. The anonymous site owner filed a counter-notification (asserting that he or she was not infringing copyright), but by law the site will still stay down for at least 10 days.
The bitter irony? The alleged cause of the DMCA complaint was apparently this image, which was attached to an exhibit in the lawsuit against the anonymous individual and "appears to be taken from the cover of a trade magazine." So even if the use of an image found in a court document isn't fair use, Public Citizen questions whether Powermark even owns the copyright to begin with.
If that turns out to be the true, the company could rue its short-term victory. The DMCA allows these sorts of extra-judicial takedowns as a way of simplifying the whole process, but it does impose penalties on those who knowingly misrepresent copyright claims and requires that takedown notices be made under penalty of perjury.