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Friday, July 29, 2005

ConyersBlog Admin allegedly defames blogger -- The implications and oversight needed


Hatfill v. NYT, No. 04-2561


It's a problem when someone is accused of a crime. But it's a larger problem when the person making the allegation allegedly has no legal foundation. They expose them to litigation over matters of defamation.

Congressman Conyers' blog needs some attention. Things are getting interesting on the blog. It looks like someone has made accusations about criminal conduct but there remains no legal foundation for that accusation.

There are real litigation risks which the Congressman should be aware. We outline our concerns and make some general comments so that the blogosphere might assess the situation for themselves.


The information below is not legal advice. It is a personal opinion. The information is intended to be general in nature for purposes of contributing to a worldwide public discussion on blogging.

You should consult with a licensed attorney with the American Bar Association before taking action. You are advised to seek counsel.


The ConyersBlog Admin has allegedly accused someone of a crime. Normally, when there is no actual conviction, one could review the matter and reasonably conclude that the ConyersBlog Admin has allegedly defamed another specific individual.

  • 17 USC 107 outlines that there are exceptions based on the purpose and character of use

  • See Exhibit 10 at this link for the alleged defamation.

  • Educational fair use exception to copyright law is mentioned here over 650,000 times.

  • See Exhibit 9 at this link for a copy of the posting, to include the date time group.

  • See Exhibit 14 at this link which suggests the number of bans is much larger than publicly admitted.

  • See this link for criteria to use to evaluate public comments and their contribution to a more civil society.

    Fair use is defined under the statute as:
    fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
    In light of this standard, we argue that this particular work copied onto the ConyersBlog fits the definition of "fair use" in that it:

  • Is educational;

  • Can be copied in full because it is for a non-profit use;

  • The objective of the full copy was to provide the full evidence requested for educational, discussion, and public comment in relationship to news, matters of public interest, and public debate on issues of significant public interest;

  • There was no commercial gain;

  • The entire work, as a single entity, was the object of the fair comment, discussion, and basis for a substantial public decision affecting many people on the floor of the House and Senate;

  • The use of the material did not affect the commercial value of the underlying work not interfere with the commercial profits of the source of the copyright;

  • The information was requested by the ConyersBlog Admin to make a substantial decision; and

  • The entire work had to be considered, presented, and placed before the blogosphere and ConyersBlog Admin without any links so that the entire work could be reviewed as a single item within the blog for purposes of comment, criticism, debate, education

  • The objective of public debate, criticism, research, and education is substantially supported when work remains in tact and in the future there could be no claim that the "link didn't work", ensuring the blogosphere can understand the full scope of issues within the original work which precipitated the reasonable public comments, criticism, news, and education.

    Based the above arguments and a plain reading of the statute, we believe that the court would ultimately decide that the use of the material in full was not only fair, but that the ConyersBlog Admin inappropriately asserted that the blogger had violated the copyright law. Thus, we believe it is more likely than not, that should a cause of action for defamation in accusing someone of a crime would prevail.

    However, it remains a matter of law whether any cause of action is brought; or whether the court will recognize any remedy when a blogger is not specified by a "real name," as opposed to their sign in name.

    Regardless the opinion of the court, we would hope that the ConyersBlog and Congressman Conyers take a moment to reflect on the conduct of the ConyersBlog Admin. By accusing someone of violating the copyright laws when there is a reasonable exception and "fair use" of copyrighted material, the ConyersBlog Admin casts themselves in an unfavorable light. This does not reflect well on either the ConyersBlog, Conyers Re-election Campaign effort, or Congressman Conyers.


    The purpose of this note is to outline the specific allegations that have been made and outline the specific problems we see.

    This is not to be taken as legal advice nor as a formal legal opinion. Rather, the comments below are general in nature, intended for a wide audience, and are intended to state a personal opinion of the facts as we know them.

    Clearly, there are many other mitigating factors which through discovery may be understood. However, all we have at this juncture are the public comments. Indeed, it is troubling that even attempts to privately discuss this matter have proven fruitless.

    The ConyersBlog Admin has been unresponsive to attempts to discuss the various issues, concerns, or other general and benign issues related to blogging, registration, or how to log into the ConyersBlog.

    Going forward, we hope to outline the specific allegations that appear to be credible; and formulate a series of recommendations that the blogging community and/or Congressman Conyers may choose to take as "informal feedback". Whether anyone does or doesn't take this input is of no consequence. We feel it is appropriate to outline our perspective of the matter so that others may be in a position to assess for themselves to what extent, inter alia:

  • The ConyersBlog is meeting your objectives;

  • The ConyersBlog Admin is professionally representing Congressman Conyers;

  • The public can be assured that the membership rules are uniformly, consistently, and reasonably enforced;

  • The ConyersBlog is a suitable forum for civil discourse, dialog, and spirited debate of all political persuasion;

  • The ConyersBlog remains a viable platform to rally others to assert the rule of law over what is arguably a reckless White House.

    At this juncture, these are open-ended questions. However, we remain concerned that the method by which the ConyersBlog Admin interacts with opposing views, that the ConyersBlog is beginning to not only act as a distraction from the overall objective of a uniform assertion of the rule of law over the White House, but that it runs the risk of becoming a counterproductive force in that effort.

    At best, the environment is combative which could be expected of any spirited debate and is welcome as a source of feedback on the state of the blogosphere ether. However, at worst, the ConyersBlog Admin has essentially given a green light to engage in the very abuses to which this nation's leadership has been asserted to have violated.

    That is problematic. In our view, it needs to either end, or there needs to be a cooling off period by which the pattern of conduct is reviewed and there is a change in oversight procedures. Whether this means that the ConyersBlog Admin loses some independence, or that the decisions of the ConyersBlog Admin are personally reviewed by a staff attorney remains matter for Congressman Conyers to decide.

    Regardless the way forward, our goal is to outline our perceptions of where things are, and provide public notice for all who are interested of "where things appear to be." Indeed, the way forward is not clear. But we do offer some suggestions and by no means expect that any or all of the recommendation will be immediately implemented.

    Regardless the subsequent adjustments, if any, it is our goal to give fair warning to all who may seek to interact on the ConyersBlog what environment you may encounter and what options you may wish to consider before deciding to register. In turn it is our goal that the recommendations below serve as a starting point for a discussion on what would need to occur to appropriately improve the functioning of the ConyersBlog.


    1. We allege that the ConyersBlog Admin has defamed another blogger by accusing them publicly of a crime of copyright infringement.

    2. Copyright laws permit fair use for educational purposes.

    3. ConyersBlog Admin requested specific information from a blogger.

    4. Requesting information publicly would reasonably be inferred to mean that a "request for education" has been initiated.

    5. A plain language interpretation of the copyright laws could infer that the compliance with this request for education falls within the education exception of the fair use doctrine.

    6. The blogger provided a full copy of the requested material. This material was specific, substantially complied with the request for information. And the posting was done in a noncommercial setting, in a public forum, for purposes of education.

    7. By posting the material in on a publicly accessible blog, we allege that the posting is fair use in that it is for educational purposes.

    8. We are concerned that, upon complying with the request for education, the ConyersBlog Admin then used that compliance with a demand to then accuse the blogger of violating the copyright rules.

    9. We allege that the information posted was never read.

    10. We further allege that, had the full contents of the educational material been read, that the ConyersBlog Admin would have realized there was a reasonable basis for the statements being made.

    11. We allege that the ConyersBlog Admin was not serious about getting any "proof," but that this was merely an orchestrated ruse to further annoy, harass, demand, humiliate, and otherwise annoy someone who simply had another view.

    12. We allege that the allegation of "committing a copyright violation" was not protected; was made in bad faith; and substantially ignored the "fair use" exception of the copy right.

    13. Further, we allege that the ConyersBlog Admin has substantially shown that they are in need of close oversight, training on the various copyright, personal privacy statutes, and issues related to the 1st Amendment related to slander, libel, defamation, public figures, malice, and other terminology in the ConyersBlog registration.


    We find it absurd that the ConyersBlog Admin has demonstrated a poor understanding of the copyright laws. There is no evidence before us that the ConyersBlog Admin understands the exceptions to the copyright laws, can see that a request for "full information" or "proof" would not constitute a request for education.

    At this point, in our personal opinion, it is clear the following occurred:

  • A. ConyersBlog Admin demanded information and a request for education

  • B. The blogger provided that information and education

  • C. The education is an exception to the copyright laws as a "fair use" for education, research, and support of public discussion in a non-commercial arena.

  • D. The ConyersBlog Admin has asserted, incorrectly, that providing full text articles is a violation of the copyright laws, and has shown no capacity to include exceptions of the "fair use" or "education" exception of those doctrines.

  • E. ConyersBlog Admin has no basis to assert that there has been a "violation" of the copyright laws; or that a specific individual has "violated" the copyright laws when the "fair use educational exception" is considered.

  • F. ConyersBlog Admin asked for, and received education; yet then asserts that a compliance with a reasonable request for information is then a violation of the statutes which permit the very education sought.

  • G. ConyersBlog Admin has demonstrated nothing to warrant any substantial belief that they read what was asked for

  • H. ConyersBlog Admin ignored the fair use exception to the copyright laws; and subsequently used a "full attempt to comply with a request for education" as further "evidence" to "justify" banning someone and is an unreasonable basis to ban someone.

  • I. We alleged that the ConyersBlog Admin defamed a blogger by asserting without qualification that they had committed a crime.

  • J. The comments are not protected, qualified, privileged and there is no defense to making such accusations.

  • K. It appears the ConyersBlog Admin has been held responsible to enforce board discipline without understanding the exceptions to the copyright laws, fair use doctrines, or what constitutes a "fair comment" or "personal opinion" by someone about a matter of public importance or public figures.

  • L. We allege that ConyersBlog Admin is liable for damages to the blogger for having defamed them. In cases where the person is not specifically identified, this becomes a problem; but in this case, the party accused of "having committed a crime" is a specific individual, with a specific IP and sign-in name. It remains to be understood how this IP is used, transmitted, or what action has subsequently been taken.

  • M. Based on information and belief we allege that the bannings and IP blocking is not isolated and that there are a number of other people who have been inappropriately banned. It remains a matter of discovery to determine how these IP numbers were subsequently transmitted to "anti-spam" websites, or how the identifying information has been used to allegedly further harass, annoy, and otherwise interfere with reasonable attempts to communicate other views on either the ConyersBlog or other forums.

    Going forward

    The above conduct warrants outside review, public commentary, and some general discussion on what other conduct do people observe.

    We encourage the public to spiritly discuss the issues:

  • Is this kind of treatment what you want to be around

  • What remedies and improvements are needed

  • How will the Downing Street Memo coalition be served or undermined by this conduct

  • Are closer oversight policies required by Congressman Conyers

  • Does a staff attorney on a random basis need to visit the ConyersBlog and provide some legal advice to the ConyersBlog Admin in properly monitoring the board

  • Should detailed instructions and policies be generated to guide the ConyersBlog Admin to effectively manage the ConyersBlog

  • What training should the ConyersBlog Admin have in the areas of copyright law, personal privacy, the 1st Amendment, slander, libel, defamation, public figures, malice, and recklessness

  • How effective is the training plan in place

  • What public forums or discussions on the ConyersBlog would serve as an outlet to discuss the issues related to the membership agreement

  • Do the members when the confirm they will comply with the membership agreement really understand the terms

  • If there are allegations of misconduct, do the members who join in with those accusations understand their role in shunning someone who is making reasonable comments

  • What methods, oversight, or other reviews could be instituted to ensure that the bloggers, ConyersBlog Admin and blogosphere better understand the terms of interaction

  • What can be done to refocus the efforts of the blog on matters substantially related to objectives of Congressman Conyers

  • What is needed to focus the efforts of the blog on matters related to substantially important issues like the Downing Street Memo, House Judiciary Committee agendas, possibility of impeachment and war crimes charges to be brought against the White House civil servants.


    The above list is not intended to be exhaustive. Rather, the list is intended to focus the debate on something that will mobilze some action and discussion on a way forward. We make no claim that the above issues are necessarily appropriate nor immediately answerable.

    Rather, our goal is to share our perspective and provide a rather loose "way forward" while the country is focused on rather important issues.

    It is our concern that unless there is a period of reflection, close monitoring, and active blog-intervention, that the blog in its present course will simply contribute to more of what is not desirable: Shunning people for opposing views; making accusations without legal foundation.

    In short, the ConyersBlog runs the risk, without appropriate remedies, of duplicating the abuses alleged to have been committed by the RNC: Double standards on rules, and ignoring inputs and feedback from those who dare disagree.

    When a group of people or single individual moves with the assumption that "they know best," we have seen that that can be disastrous in Iraq.

    Let us hope that "those who know best" understand that those who are making comments on the ConyersBlog do not necessarily know what they are talking about. They may, but they also may be saying things simply because someone has made an accusation.

    We would hope otherwise. For in the future, the test will be who can make the most credible argument in support of the rule of law; and which side can best couch their evidence to justify a conclusion per the jury instructions, caselaw, and other public standards of conduct.

    The time has arrived to embrace the principles we assert the RNC "should be" embracing:

  • Full debate

  • Open dialog

  • Asserting conclusions based on legal foundations and facts

  • Generating solutions

    We are concerned that the very criticism that many in the Downing Street Memo are asserting the RNC and PNAC are committing are now being slowly embraced as "acceptable" standards of conduct.

    If that is the case, then we reject that momentum. For if we are to defeat the enemy of the Constitution, then that enemy must be different than what we do.

    When there is a blurring of distinction between those who assert the rule of law and those who support tyranny, the answer is not to embrace tyrannical methods to rally others to your side.

    The world can see through that. The time for a correction is at hand. We outline several options the community way wish to consider.

    In the end, your conduct will be judged per the rule of law and to what extent you clearly assert in both word and conduct that you are for the rule of law and the Constitution; and at the same time rising above tyranny, not embracing its methods.

    Requests for Congressman Conyers to consider

    Given the weighty issues before the Congressman and matters of state on the agenda before the House Judiciary Committee, we have no reason to expect that the Congressman will actually read any of the comments below.

    Rather, we expect that the blogosphere will review the matters, and summarize tea comments for the Congressman. We outline in great detail what we believe is an appropriate way forward not to burden the Congressman with details, but to act as a general framework for the blogosphere and Congressman's staff to discuss and either concur or concur with alterations.

    Our goal is to outline a general framework with the full expectation that it be destroyed, and replaced with something far more responsive and appropriate. This is only a place to start and we welcome a spirited public discussion on what would be an appropriate way forward.


    1. ConyersBlog Admin ["Admin"] should apologize to all bloggers on Congressman Conyers Blog for allegedly defaming a blogger;

    2. Admin shall cease and desist from allegedly defaming bloggers by accusing them of crimes;

    3. Admin shall receive training on all terms on the user member agreement for the ConyersBlog registration;

    4. Admin shall publicly discuss on a periodic, but frequent basis, reason for not reinstated or approving requests for membership;

    5. Admin shall reinstate all requests from bloggers after giving amnesty to all;

    6. All records related to IP numbers shall be destroyed;

    7. Congressman Conyers shall make a good faith effort to ensure that all IP numbers retained are appropriately secured, no longer kept, and there is a full accounting of how the IP numbers collected have been forwarded to third parties;

    8. Admin should be closely supervised by delivering to a qualified staff attorney a summary of all pending bans, reasons for bans, and have a clear showing that the basis for banning/action is consistent with a legally supportable action per the member agreements;

    9. The Staff attorney shall on a periodic basis assert in writing to Congressman Conyers and in the Blog that they have reviewed the Admin files using an appropriate sampling method and remain satisfied that the Admin remains [a] in compliance with the Blog policies; [b] up to date on the appropriate caselaw, and [c] understands the various definitions in the membership agreements.

    Note: One perspective on why it's important to have attorneys involved in matters of staff oversight here -- Attorneys, when they are involved, will take their job seriously; failing to take their duties seriously could have repurcussions. It's good to have responsive people involved in matters of public service.


    It is our personal opinion that "Fair use" of copyright must take precedence over allegations of having violated a copyright; and that "fair use" includes specific situations where the ConyersBlog Admin has requested specific information. It is absurd to demand someone "prove" something, and then use "their proof" and attempt at education as then as a "foundation" to assert they have violated the law.

    Such conduct, if allowed to continue without comment, simply invites more absurdity to which this nation supposedly detests and fights when it seeks to assert the rule of law over a tyrant in the White House.

    If you want someone to do something, do not use their "compliance with that request" as the basis to then hammer them over the head with their contribution.

    Such as response not only invokes public outrage, but a complete rebuke for any and all future requests. In short, this is a credibility problem. We now can reasonably ask to what extent the "criteria" or "expected response" will not simply be used as a basis to further inflame, accuse, demand, and other wise distract attention.

    Most troubling is that there never existed any legal foundation to assert that anyone had committed an infraction; nor was there any real legal foundation to demand that anyone do or do not give a response to a request for additional information.

    If the above momentum is not addressed and managed, we fully expect to hear of further absurd abuses. The blogosphere should take note: Those who fight the tyrannical farmers on Animal Farm are no looking more like the farmer, and have less sympathy as a class in need of public support.

    Leadership is needed. We expect it. If you do not wish to demonstrate that, then you are no longer needed in the Downing Street Movement.

    Leaders lead, they do not abuse, and they ensure the support staff and volunteers are appropriately trained in civility not tyranny.

    To do otherwise, asks the world to embrace one tyrant over another.

    That is not an option.

    We choose the Constitution, rule of law, and civility.

    And we demand nothing less.