Legal Stuff

Explaining How an Author Terminated a Movie Studio’s Copyright to “Terminator”

11 October 2019

From Pirated Thoughts:

“I’ll be back” said the author of the original Terminator movie. Gale Ann Hurd, the author of the original Terminator film starring Arnold Schwarzenegger, has informed Skydance Media that it is terminating the grant of copyright to the work and seeks to reclaims the rights…but how?

Copyright law is complicated and the ins and outs can be incredibly confusing even to people who claim to specialize in the field. When someone creates a work (painting, screenplay, or photograph) they are deemed the owner of the work. There is one exception, if it is a work made-for-hire. A work made-for-hire comes in two forms: 1) you are paid by someone to create a work for them; or 2) the work is create in the normal course of business for an employer.

First, someone can be commissioned to create a work for someone else, like I am paying you to take a photograph of me and I will own the photograph. As long as the agreement is in writing before the photograph is taken, I own the rights instead of the photographer.

Second, if you create something in your everyday work life for your employer, they own it. For example, if I am a salaried reporter for the New York Times, the Times owns the copyright to any story that I may publish.

. . . .

If a work is a made-for-hire the original creator cannot ever regain the rights to the work. This is how many movie scripts and other stories are created. However, there is an exception.

If I independently create a work, meaning not as a work made-for-hire, I am the owner of the rights and I can do whatever I want with the work including transferring the rights to someone else. However, copyright law provides that after 35 years following publication and author can terminate the transfer and regain the rights to the original.

Gale Ann Hurd was the author of the Terminator film may back in the 80’s.

. . . .

In 1984, the Terminator film was published and here we are 35 years later and, according to the Hollywood Reporter, Hurd has informed the studio who now owns the film, Skydance Media, that is terminate the transfer of rights. Also terminated is the right to make derivative works such as sequels to the original Terminator.  The author must give two years before the termination takes effect and then all such exploitation of the work must cease in any way.

So what does this all mean for movie studios? Utter chaos perhaps as the loss of rights to make valuable sequels and prequels or just another settlement negotiation. Skydance will likely make Hurd a large monetary offer to retain the rights to the valuable franchise.

Link to the rest at Pirated Thoughts

And from The Future of Music Coalition:

Unlike most countries, the United States copyright law provides musicians and songwriters an opportunity to regain ownership of works that they transferred to outside entities, such as record labels and music publishers. Congress established this “second bite at the apple” for authors of creative works after a period of 35 years. “Termination of transfer” is not automatic, however, and there are certain steps creators must take to regain the rights to their works. This guide aims to shed more light on the process for the benefit of musicians and songwriters who are eligible to reclaim ownership of their creations.

As you read this guide, it is important to keep in mind that there are two copyrights in a piece of music: the composition copyright (think notes on paper) and the sound recording copyright (think sounds captured on tape or hard drive). Songwriters often enter agreements with publishers to “grant” their songwriting copyrights in exchange for up-front payment and/or the promise of circulation in the marketplace. Musicians (and bands) transfer their sound recordings to labels for similar reasons, including distribution, promotion and marketing. Authors of both copyrighted works can reclaim the copyrights to their original creations after a period of 35 years.

. . . .

Why do creators have this right?

It is often difficult to determine the worth of a creative work at the time of its creation. Because the value is unknown, musicians and songwriters will not be in the most advantageous position when negotiating what labels and publishers will pay for commercially exploiting their work. Thus, Congress made a policy decision to give authors an opportunity to regain ownership of their copyrights and entertain new, potentially more lucrative licenses for their work. Creators may also choose to re-transfer their copyright(s) under more favorable licensing terms. Consider also that changes in the marketplace can increase the range of potential uses for a piece of music, which may not have existed at the time of its creation. For example, few could have anticipated the explosion of console video games and “synch” opportunities. In addition, artists can now “go direct,” selling music directly to fans without the high barriers to entry common to the historic marketplace. There are surely new platforms for music that have yet to arrive, so it is important that artists have the ability to directly participate in revenue streams generated by potential new uses.

Section 203 of the Copyright Act permits authors (songwriters and recording artists) to terminate deals that they made transferring or licensing their copyrights after 35 years. Meaning, if you transferred your recording or song to a record label or publisher at the beginning of your career or licensed certain rights, you may be eligible to regain ownership or terminate the licenses after this period. Artists may have more leverage than they did at the time that they signed away their copyright(s), and using this leverage, artists could re-grant their copyrights in a better deal or recapture ownership for the purpose of licensing directly.

. . . .

Generally, any type of transfer or license that authors make with their copyright(s) can be terminated. This includes assignments (even such grants that purport to give someone else power over your copyright forever!) The grants that you can terminate apply only to transfers of copyrights; trademarks and other “related” non-copyright rights are not affected or terminable (e.g., if you transferred the trademark in your band name to your label, it will retain ownership of the trademark).

Link to the rest at The Future of Music Coalition

Lessons From Literal Crashes For Code

6 October 2019

From Jotwell:

Software crashes all the time, and the law does little about it. But as Bryan H. Choi notes in Crashworthy Code, “anticipation has been building that the rules for cyber-physical liability will be different.” (P. 43.) It is one thing for your laptop to eat the latest version of your article, and another for your self-driving lawn mower to run over your foot. The former might not trigger losses of the kind tort law cares about, but the latter seems pretty indistinguishable from physical accidents of yore. Whatever one may think of CDA 230 now, the bargain struck in this country to protect innovation and expression on the internet is by no means the right one for addressing physical harms. Robots may be special, but so are people’s limbs.

In this article, Choi joins the fray of scholars debating what comes next for tort law in the age of embodied software: robots, the internet of things, and self-driving cars. Meticulously researched, legally sharp, and truly interdisciplinary, Crashworthy Code offers a thoughtful way out of the impasse tort law currently faces. While arguing that software is exceptional not in the harms that it causes but in the way that it crashes, Choi refuses to revert to the tropes of libertarianism or protectionism. We can have risk mitigation without killing off innovation, he argues. Tort, it turns out, has done this sort of thing before.

Choi dedicates Part I of the article to the Goldilocksean voices in the current debate. One camp, which Choi labels consumer protectionism, argues that with human drivers out of the loop, companies should pay the cost of accidents caused by autonomous software. Companies are the “least cost avoiders” and the “best risk spreaders.” This argument tends to result in calls for strict liability or no-fault insurance, neither of which Choi believes to be practicable.

Swinging from too hot to too cold, what Choi calls technology protectionism “starts from the opposite premise that it is cyber-physical manufacturers who need safeguarding.” (P. 58.) This camp argues that burdensome liability will prevent valuable innovation. This article is worth reading for the literature review here alone. Choi briskly summarizes numerous calls for immunity from liability, often paired with some version of administrative oversight.

. . . .

The puzzle, then, isn’t that software now produces physical injuries, thus threatening the existing policy balance between protecting innovation and remediating harm. It’s that these newly physical injuries make visible a characteristic of software that makes it particularly hard to regulate ex post, through lawsuits. In other words, “[s]oftware liability is stuck on crash prevention,” when it should be focused instead on making programmers mitigate risk. (P. 87.)

In Part III, Choi turns to a line of cases in which courts found a way to get industry to increase its efforts at prevention and risk mitigation, without crushing innovation or otherwise shutting companies down. In a series of crashworthiness cases from the 1960s, courts found that car manufacturers were responsible for mitigating injuries in a car crash, even if (a) such crashes were statistically inevitable, and (b) the chain of causation was extremely hard to determine. While an automaker might not be responsible for the crash itself, it could be held liable for failing to make crashing safer.

Link to the rest at Jotwell and here’s a link to the Washington Law Review article that Jotwell discusses.

The similarities and differences between injuries caused by what an author writes in a book and how an author writes computer code are interesting to PG.

Medical Influencers Show Up in False Advertising Case

4 October 2019

From Rebecca Tushnet’s 43(B)log:

Wright [Medical Technology] is a medical device developer, manufacturer, and distributor; its products include surgical plates and other instruments used to repair bones in the foot and ankle areas. Paragon, founded by three former high-level Wright employees, makes competing orthopedic plate systems and other devices used to repair bones in the foot and ankle. Trade secret claims ensued.

Also, Paragon allegedly promoted a “cadaver course” intended to teach surgeons to perform procedures of the foot and listed Dr. Christopher Hyer, a Wright “Key Opinion Leader” (KOL, a common term for a medical influencer), as “anticipated course faculty” on the course’s promotional material. It also allegedly engaged in unfair competition by submitting a patent application that was nearly identical to a patent application that Wright had filed a month prior and by offering several KOLs equity or ownership interests in Paragon, leading to the KOLs using Paragon products in surgical procedures without disclosing their interests.

As to false advertising, Paragon argued that predictions (here, about who would teach the course) couldn’t be false advertising. But Wright alleged that there was never any consent for the use of the doctor’s name in advertising, and that Paragon was aware of this lack of consent, which was enough. (But that reasoning has to be incomplete: did Wright allege that Paragon never even asked the doctor to teach the course/that he turned them down before they started promoting it? If he had agreed to teach the course, even without specifically consenting to use of his name in advertising the course, it shouldn’t be false advertising, though the right of publicity result might be different (given the First Amendment-implicating nature of the course, though, it might not).) Anyway, the rule is that, while “[a]n honest or sincere statement of belief about a future event is not actionable,”…a statement known at that time by the speaker to be false, or a statement by a speaker who lacks a good faith belief in the truth of the statement, may constitute an actionable misrepresentation.”

Link to the rest at Rebecca Tushnet’s 43(B)log

PG says it’s a generally a risky idea to use someone’s name in an advertisement without their consent. Presumably, the use of the name is designed to show the advertiser in a better light because of the advertiser’s association with the individual.

If someone complains about such a use, such a complaint may gain wider attention than the original promotion/advertisement did and tend to create a negative public image of the advertiser as dishonest or prone to make statements that can’t be relied upon.

The OP reminded PG of the tort claim called False Light. From Wikipedia:

In law, false light is a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person’s right to protection from publicity which puts the person in a false light to the public. That right is balanced against the First Amendment right of free speech.

False light differs from defamation primarily in being intended “to protect the plaintiff’s mental or emotional well-being”, rather than to protect a plaintiff’s reputation as is the case with the tort of defamation and in being about the impression created rather than being about veracity. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories—false light cases are about damage to a person’s personal feelings or dignity, whereas defamation is about damage to a person’s reputation.

The specific elements of the tort of false light vary considerably, even among those jurisdictions which do recognize this Tort. Generally, these elements consist of the following:

    1. A publication by the defendant about the plaintiff;
    2. made with actual malice (very similar to that type required by New York Times v. Sullivan in “Defamation” cases);
    3. which places the Plaintiff in a false light; AND
    4. that would be highly offensive (i.e., embarrassing to reasonable persons).

Link to the rest at Wikipedia

The bottom line from a general business and legal standpoint is to not use a person’s name without his/her consent. One of the major exceptions to the general rule would be if someone who is well-known (a “public figure”) made a statement about a product or service in public where he/she knew or should have known others besides her/his immediate companions would be likely to hear it.

To stay out of online spats and maintain a good relationship with a friend or someone who may influence others with respect to your product/service, ask them for permission to quote them in your promotions and/or advertising. If they say “yes,” send them a nice thank you email or text thanking them for their generosity and helpfulness. And keep a copy of your thank you for your records.

At ‘Captions’ Hearing, Judge Hammers Audible’s Fair Use Argument

27 September 2019

From Publishers Weekly:

If the decision to issue a preliminary injunction against Audible’s “Captions” program comes down to fair use, Audible may be in trouble.

Over the course of a 90-minute hearing on Wednesday, federal judge Valerie Caproni appeared thoroughly unmoved by Audible’s defense of its Captions program, and highly skeptical that Audible’s plan to scroll snippets of computer generated text alongside audiobooks in its app should be called anything other than what it is: reading.

Opening the day’s arguments, the plaintiff publishers’ attorney Dale Cendali told the court that Audible’s Captions program was “quintessential” copyright infringement, and was quickly engaged by Caproni, who questioned whether the “clunky” experience of Captions really competed with reading a book. Cendali, well prepared for the question, responded that Captions didn’t need to be “a substitute” for a book for it to be harmful. Captions “provides a reading experience,” Cendali stressed, “saying it is something other than that just doesn’t make sense.”

. . . .

Cendali hit all the major points in the publishers’ complaint, finding a mostly receptive audience in Caproni. Captions is not transformative, she argued, and it is commercial in nature. Despite its “public benefit” argument, Audible is in fact seizing what should be a negotiated right to gain a competitive advantage over its competitors, Cendali stressed. If allowed to go forward, Captions would harm the market for books, e-books, and immersion reading; weaken rightsholders’ ability to license works in other markets; “devalue and cheapen” those rights by offering the feature as a free add-on; and the poor quality of the Captions program would cause reputational harm to authors and publishers who might be associated with a shoddy program, their works wrested from their control without permission.

The last point seemed to especially hit its mark with Caproni as an example of the kind irreparable harm—distinct from the market harm also in play—required to win a preliminary injunction. “As much as there might be a moral rights issue [in U.S. copyright law] this is a moral rights issue,” Cendali argued. “The damage this does would be impossible to measure. Money damages cannot make up for this. It affects the entire industry. This is a sea change, what they are trying to do. That’s why you have all these publishers, authors, and the agents here together. That shows you how dramatic it is.”

. . . .

Captions is designed to work alongside an audiobook, not “divorced” from it, [Amazon’s attorney] argued, and it does not provide a reading experience.

“What do you mean it’s not a reading experience?” Caproni interjected. “It’s words.”

What followed was a strained back and forth about what constitutes reading a book, with Reisbaum suggesting that seeing words as you listen to them is, well, something else.

“The fact that you can see the words doesn’t make it a book,” Reisbaum insisted at one point, trying to convince the judge that Captions is an enhanced audio experience, not a book experience—users couldn’t flip forward or back at their own pace, for example, nor could the text be stored, or shared, or skimmed. The experience was designed to increase comprehension of the “words” that Audible customers have paid for. Caproni didn’t appear to be buying it. “They paid to have the words read to them,” she pointed out.

. . . .

Cendali reiterated that none of the publishers’ agreements granted Audible the right to generate and distribute text.

But that’s a conclusion not supported by evidence before the court, Reisbaum insisted. The parties have acknowledged that they have valid license agreements. Captions is a program to be used with that licensed content. Without seeing those agreements, and where Audible is alleged to have breached them, how does the court know that speech-to-text is not covered under those licenses?

But perhaps the most surprising moment came when Caproni realized that Captions had not launched, and that a launch was not imminent. Why was she being asked to grant a preliminary injunction?

. . . .

The publishers strongly protested. “We beg you to rule on the motion,” Cendali pleaded with the judge, saying that the uncertainty surrounding the Audible program was already impacting the publishers, harming their ability to do other deals. Caproni replied that it was only a preliminary injunction at stake, that there would still be uncertainty even if she granted it. Why not get right to trial and resolve the issue?

“They can’t just do a head fake,” Cendali said referring to Audible’s still unannounced launch date, adding that not ruling on the motion would give Audible “a get out of jail free card.”

“It’s not a get out of jail free card,” Caproni responded. “I don’t have any get out of jail free cards. What I have is a chance card,” she said, pointing out that the publishers could possibly lose the motion. Caproni reserved ruling for a later date.

Link to the rest at Publishers Weekly

Rap Lyrics in Court

22 September 2019

From The New Yorker:

This week, in a New York district court, one of music’s least sympathetic characters, the Brooklyn rapper Tekashi 6ix9ine, took the stand to testify against alleged members of the Nine Trey Gangsta Bloods, the gang with which he associated himself. The rapper, whose real name is Daniel Hernandez, became a star witness, pointing out gang members who appeared in his music videos, explaining gang signs, and detailing the hierarchy of Nine Trey and its alleged leaders. At one point, prosecutors asked him about the lyrics for his hit song “GUMMO,” and whether the words included any threats against rivals. “It’s a song towards, like, somebody who I didn’t get along with,” the rapper said. “I don’t know. I thought it was cool at the time.”

It’s a cautionary tale; 6ix9ine’s outlandish antics rocketed his music up the charts, but he thought he needed street clout. His efforts to skirt one hip-hop faux pas—being a poser—crash-landed him into another: snitching. And, in doing so, he had to confirm what many had already figured out: nothing about his persona or his lyrics was authentic, which cast a light on the disconnect between the optics of hip-hop music and reality. The independent journalist Matthew Russell Lee reported on Twitter that 6ix9ine claimed he was never initiated into the gang, but he had an arrangement to “keep making hits and giving financial support,” and, in return, he got his “career, credibility, protection, all of the above.”

. . . .

The extraordinary confession of 6ix9ine comes on the heels of several trials involving high-profile rappers, such as those of the Texas rapper Tay-K, the Florida rapper YNW Melly, and the California rapper Drakeo the Ruler, where rap videos and lyrics have been introduced into the courtroom. Andrea Dennis, a professor at the University of Georgia School of Law and the co-author of the forthcoming book “Rap on Trial: Race, Lyrics, and Guilt in America,” described how law enforcement weaponizes rap lyrics to convict and incarcerate rappers, a legal assault that is unique to hip-hop. “We have searched widely, and, based on our research, rap is the only fictional art form treated this way,” she said. “No other musical genre and no other art is used in the same way or to the same extent.”

In April of 2017, the rapper Tay-K was under house arrest and awaiting trial, in Texas, for capital murder after his involvement in a 2016 robbery that left one person dead. He cut off his ankle monitor and fled the state, evading authorities for three months; he was arrested in New Jersey, in June, and brought to trial in July. The rapper’s music, particularly his single “The Race”—which, as its title suggests, was built around his status as a fugitive (and some otherwise cliché shit-talk)—was not really needed as evidence in the courtroom. Though he pleaded not guilty to the murder charge, Tay-K and his co-defendants had already taken deals that confirmed his role in the robbery. Nevertheless, during sentencing, prosecutors introduced the video and lyrics for “The Race,” along with the cover of his EP, #LivingLikeLarry, which depicts the then sixteen-year-old rapper holding a gun. The goal, it seems, was to dehumanize the rapper in the eyes of a jury through the use of his music.

. . . .

In many of these cases, an artist’s very participation in hip-hop is painted as a moral shortcoming that suggests a propensity for real-world violence and degeneracy. One Louisiana judge went so far as to tell the perpetually troubled rapper YoungBoy Never Broke Again, “Your genre has a lot to do with the mindset people have. Your genre has normalized violence.”

Link to the rest at The New Yorker

How the CASE Act Benefits Authors

22 September 2019
Comments Off on How the CASE Act Benefits Authors

PG has posted items about the proposed CASE legislation. While virtually any law can be abused, he thinks this legislation can help authors who are afflicted by small-time copying of their work.

From the Executive Director of the Authors Guild via Publishers Weekly:

Copyright law is the backbone of the publishing industry and the lifeblood of writers and other creators. It puts food on the table and pays the rent. It allows an author to write the next book or article, the photographer to set up the next shoot, the songwriter to keep writing music. The internet has made it easier for writers, composers, filmmakers, photographers, designers, and other creatives to distribute their work to the world—but it also makes it easier to steal or exploit others’ creative works.

Today, the vast majority of individual and small business copyright owners do not have the ability to enforce their copyrights. Copyright claims can only be brought in federal court, and such litigation generally costs hundreds of thousands of dollars. This is true even if the copyright owner simply seeks a reasonable license fee of a few hundred or thousand dollars. Such a system is absurd. A bill to create a much more sensible alternative to federal litigation has been working its way through Congress and promises to make copyright meaningful again for the millions of individuals and small businesses whose welfare depends on it.

The Copyright Alternative in Small-Claims Enforcement (CASE) Act would create an administrative tribunal within the U.S. Copyright Office to handle small copyright infringement cases. It would provide a streamlined, less formal process than federal court and would be drastically cheaper and more efficient. The parties would not need to hire attorneys, and all proceedings would be conducted remotely. To ensure impartiality, the Librarian of Congress would appoint a three-“judge” panel, with at least two of the panelists possessing previous experience representing a diversity of copyright interests. To address constitutional concerns, the process would be entirely optional for both parties.

With so many threats staring down 21st-century creators—many of them enabled by the digital transformation—a small claims court for copyright disputes is needed more than ever. Take book authors, for example. According to a recent Authors Guild survey, writing-related earnings plummeted to a median of $6,080 in 2017—down 42% since 2009. Full-time U.S. authors, meanwhile, earned a median of only of $20,300 from their writing. That’s well below the federal poverty line for a family of three or more. Over half of the authors surveyed reported earnings from their writing that were below the poverty line for an individual. These are not your typical federal court litigants.

Link to the rest at Publishers Weekly

What to Do if You Need To Sue Someone But Don’t Know Who They Are

11 September 2019

From Pirated Thoughts:

Picture this, someone with the Twitter handle of “John Doe 55” sends out a tweet saying that you are the most vile, disgusting person ever and have been involved in criminal conduct….and it’s not true.  Any lawyer would tell you to sue that person for defamation.  But, how do you sue someone hiding behind an anonymous avatar? A lawsuit about pot candy holds all the answers.

The Internet is filled with people hiding behind the privacy of their laptop. People go on social media and spew hate-filled lies, an eBayer sells counterfeit jeans, or a person bullies other people. It is easy to hide behind the anonymity of the Internet but there are always ways to try to figure out who the person is.

Speaking from experience, I once had to sue an anonymous person who created a fake Facebook account and pretended to be a corporate executive of a major fashion company. The biggest question, how do you find out who that person is and how do you serve them with the lawsuit. In my case, I had a Facebook profile name and that was it. I commenced the lawsuit naming “John Doe” as the defendant. (John Doe gets sued a lot that poor guy.) I then issued a subpoena to Facebook. A subpoena is a legal document requiring a party to produce documents or answer questions or face penalty. Back when I sued, privacy was not so much of a hot button issue and Facebook turned over all they had on the person who created the account….an email address…that’s it. So just give up, right? Nay. I then had to subpoena Microsoft, it was a Hotmail account, so help us. After the response from Microsoft, I learned that the name of “John Doe” and what country he resided in. The fashion company chose not to pursue the action any further because the Facebook account was taken down after the issuance of the subpoena.

. . . .

Picture this, someone with the Twitter handle of “John Doe 55” sends out a tweet saying that you are the most vile, disgusting person ever and have been involved in criminal conduct….and it’s not true.  Any lawyer would tell you to sue that person for defamation.  But, how do you sue someone hiding behind an anonymous avatar? A lawsuit about pot candy holds all the answers.

The Internet is filled with people hiding behind the privacy of their laptop. People go on social media and spew hate-filled lies, an eBayer sells counterfeit jeans, or a person bullies other people. It is easy to hide behind the anonymity of the Internet but there are always ways to try to figure out who the person is.

Speaking from experience, I once had to sue an anonymous person who created a fake Facebook account and pretended to be a corporate executive of a major fashion company. The biggest question, how do you find out who that person is and how do you serve them with the lawsuit. In my case, I had a Facebook profile name and that was it. I commenced the lawsuit naming “John Doe” as the defendant. (John Doe gets sued a lot that poor guy.) I then issued a subpoena to Facebook. A subpoena is a legal document requiring a party to produce documents or answer questions or face penalty. Back when I sued, privacy was not so much of a hot button issue and Facebook turned over all they had on the person who created the account….an email address…that’s it. So just give up, right? Nay. I then had to subpoena Microsoft, it was a Hotmail account, so help us. After the response from Microsoft, I learned that the name of “John Doe” and what country he resided in. The fashion company chose not to pursue the action any further because the Facebook account was taken down after the issuance of the subpoena.

Link to the rest at Pirated Thoughts

When The ‘Whisper Network’ Goes Public: The ‘S****y Media Men’ List, 2 Years On

6 September 2019

From National Public Radio:

In 2017, the “S****y Media Men” list began making the rounds on the Internet. Coming right on the heels of the downfall of movie producer Harvey Weinstein, the list seemed poised to take down even more men in media. The editable, crowdsourced spreadsheet contained accusations — all made anonymously, that ranged from “creepy” direct messages to “rape” — against prominent figures in journalism and publishing.

“Wikipedia wrapped in razor blades” is how journalism professor and news veteran Jill Geisler described the list at the time, pointing out that the list represented a welcome reversal of power and gender dynamics, as well as potential to cause harm. “By all means examine it — but do so carefully or there may be a lot of blood on your hands,” Geisler wrote.

One man on the list who believes his life was damaged is Stephen Elliott, author of The Adderall Diaries, as well as other books. He has filed a defamation lawsuit against list creator Moira Donegan, and the anonymous “Jane Doe” contributors.

. . . .

The Google spreadsheet Donegan created and shared with her female friends in media allowed contributors to add men’s names, employers and allegations against them. Donegan has said the list was meant to be private. In an essay in The Cut, in which she outed herself as the list’s creator, she says she took it down after 12 hours because she was overwhelmed by the response. But the spreadsheet — which was not password protected — was shared widely throughout the media industry, reported on in a Buzzfeed article, and versions of it were posted on Reddit and YouTube.

As Stephen Elliott describes it, appearing on the list resulted in a brutal fallout — both personally and professionally. Elliott is an acclaimed writer who has written extensively about his own destructive behavior. The New York Times wrote that his novel Happy Baby is “the most intelligent and beautiful book ever written about juvenile detention centers, sadomasochism and drugs.” A movie inspired by The Adderall Diaries starred James Franco and Cynthia Nixon.

But, Elliott says, when his name appeared on the Media Men list, the literary community “turned” on him. “I kind of stopped introducing myself as a writer, actually,” he says. He thought at first that the accusation against him — rape — was ludicrous. “I knew that was false,” he says. “I knew, not only that I had not ever raped anybody but also that there was nobody out there that thought I raped them.”

Even so, he says that media coverage planned for a new book he had coming out was canceled and that he was uninvited from book events. He claims his agents dropped him. Some sources close to his agents’ decisions deny Elliott was dropped because of the list. Elliott wrote a long essay — published on Quillette — in which he denied the allegations and talked about how the list damaged his career. But, he says, even that didn’t make things better. Within the literary community, he contends, minds were made up.

“I just realized that my community was not going to engage with me on this in good faith,” says Elliott. “‘You’re accused of rape. You’re on the S****y Media Men list. You’re canceled. You cannot be in this community anymore.'” Elliott figured: “The only way to clear my name is to file a lawsuit.”

. . . .

Long before the #MeToo movement reached its peak, women shared the names of the men they believed to be sexual predators informally, through “whisper networks.” Moira Donegan has compared the “S****y Media Men” list to those networks.

She declined to be interviewed for this story, but her attorney, Roberta Kaplan, agrees, saying the goal of the list was to keep women safe: “So that if a certain guy who you worked for was on the list you would know not to go out to drinks with him, or not to be alone in a room that you might be compromised with him in. And it was really meant as a kind of a warning and as a protection mechanism.”

At the top of the spreadsheet, Donegan included a disclaimer that reads: “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt. If you see a man you’re friends with, don’t freak out.”

“What Moira was doing with this list was a very good faith effort,” says Kaplan, “not to try to get men in trouble — but to protect women from not being in these situations going forward. And under the First Amendment, given the fact that she did in good faith and given the fact that that was her motive, she can’t be sued for doing it.”

. . . .

NPR reached out to several men on the list. Aside from Elliott, only one agreed to an interview on the condition that his name not be used. He denies the allegations made against him. “It’s breached every corner of my life,” he says.

“Being accused of sexual assault is a really difficult thing to deal with. It makes you call into question every potential or actualized romantic or sexual relationship. Every interaction that I’ve had,” he says. “I spent months just thinking through everything that I had ever done and looking for something that would back [the allegation] up. When you’re accused of something like that it’s hard not to suspect yourself, I guess, in the way other people might suspect you.”

. . . .

As for Elliott’s defamation lawsuit against Donegan, a judge gave Elliott permission to subpoena Google for the names of the anonymous contributors. A Google spokesperson tells NPR the company “objects” to the subpoena.

Elliott’s lawyer Andrew Miltenberg says this case isn’t just about the “S****y Media Men” list. It’s about how we feel, as a society, about anonymous allegations of serious offenses that can stay online forever.

“This could be any of us. This could be any one of us, in any of our professions, could be anonymously attacked over and over again until our reputation is destroyed,” says Miltenberg.

Link to the rest at National Public Radio

Regardless of the political background, PG says the spreadsheet and online publication of its contents as described in the OP was almost certainly going to attract a defamation suit.

First, some definitions, per Law.com: (emphasis and paragraph breaks supplied by PG):

defamation

n. the act of making untrue statements about another which damages his/her reputation.

If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander.

Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment.

Damages for slander may be limited to actual (special) damages unless there is malice.

Some statements such as an accusation of having committed a crime, having a feared disease or being unable to perform one’s occupation are called libel per se or slander per se and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed.

Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.

Truth is a defense a defamation suit.

Continuing from Law.com:

libel

1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others.

Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation.

It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie.

Publication need only be to one person, but it must be a statement which claims to be fact and is not clearly identified as an opinion.

While it is sometimes said that the person making the libelous statement must have been intentional and malicious, actually it need only be obvious that the statement would do harm and is untrue.

Proof of malice, however, does allow a party defamed to sue for general damages for damage to reputation, while an inadvertent libel limits the damages to actual harm (such as loss of business) called special damages.

. . . .

Minor errors in reporting are not libel, such as saying Mrs. Jones was 55 when she was only 48, or getting an address or title incorrect.

2) v. to broadcast or publish a written defamatory statement.

Libel per se involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages. Libel against the reputation of a person who has died will allow surviving members of the family to bring an action for damages. . . . broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis) or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for “general damages,” and not just specific losses.

Most states provide for a party defamed by a periodical to demand a published retraction. If the correction is made, then there is no right to file a lawsuit. Governmental bodies are supposedly immune to actions for libel on the basis that there could be no intent by a non-personal entity, and further, public records are exempt from claims of libel. However, there is at least one known case in which there was a financial settlement as well as a published correction when a state government newsletter incorrectly stated that a dentist had been disciplined for illegal conduct.

The rules covering libel against a “public figure” (particularly a political or governmental person) are special, based on U.S. Supreme Court decisions.

Here’s a link to another story written by the originator of the list identifying herself.  Here’s a story identifying the list that appeared shortly thereafter providing more analysis and originating the “Wikipedia wrapped in razor blades” characterization of the list.

Back to PG’s thoughts. He will note that the lawsuit was filed in New York and that state’s libel laws will govern the outcome. He will write here only generally about the way defamation laws are written and enforced across the United States. Needless to repeat, nothing on TPV is legal advice. You obtain legal advice by hiring a lawyer, not by reading a blog.

PG suggests that the originator of the “S****y Media Men” list “published” the list for libel purposes when she sent it to a group of friends. Publication doesn’t have to occur in The New York Times to provide that element of a libel claim.

PG thinks that an accusation of rape most definitely qualifies as an accusation of a crime for purposes of the libel per se definition.

Does the originator of the list bear responsibility if someone else added the plaintiff’s name to the list and if, as the plaintiff claims, he did not rape that person or anyone else?

Was it reckless for the list’s original creator to send word of the list and provide access to a lot of her friends and leave access to the spreadsheet open for a period of time, thus enabling anyone who learned of the existence of the spreadsheet to add material, including the person who entered the plaintiff’s name and details of the alleged rape?

If the list was semi-public, should the originator have reasonably foreseen that one or more people would copy the list and republish it more widely and that the contents of the list would spread virally across the public internet?

Is the originator of the list responsible for its widespread distribution, including the broad dissemination of the plaintiff’s name, which was allegedly entered by someone other than the originator of the list?

Should the originator have reasonably foreseen that the limited publication of the list and the ease with which it could be further spread would lead someone to enter the Plaintiff’s name on the list as the perpetrator of a rape when such an allegation was, in fact, false?

PG notes that, based upon the contents of the OP, there was no way of confirming the identity of any of those who may have entered accusations against any of the men on the list, including the Plaintiff? Based on the OP, it appears that even the gender of people who included accusations on the list could not be verified.

Lest anyone mistake PG’s personal (rather than legal) opinions, he believes that anyone who commits a sexual assault on another person is guilty of a serious crime and should receive a severe punishment. He also acknowledges the many difficulties the victim may face in making an accusation of such crimes to an appropriate law enforcement agency and following through with that accusation through the criminal legal processes to a conviction and imposition of punishment upon the perpetrator of such a crime.

PG will note that the single most difficult court matter in which he was involved back when he spent a lot of time in court was as the appointed legal representative of a juvenile female victim in the rape trial of her assailant.

That said, false accusations of rape against someone who did not commit that crime or any lesser similar crime are also abhorrent and do nothing to improve the status of women who are victims of rape. In addition to the injustice done to the man, news of such false accusations play into the hands of defense counsel representing a properly-accused rapist when counsel casts doubt upon the truthfulness of the rape victim’s testimony.

Here’s a link to a bit more about defamation from Nolo.

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