ConyersBlog Admin allegedly defames blogger -- The implications and oversight needed
Authority
Hatfill v. NYT, No. 04-2561
Overview
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.
Disclaimer
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.
Introduction
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.
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:
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.
Discussion
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:
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.
Allegations
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.
Discussion
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:
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:
Recommendations
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:
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.
Requests
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.
Summation
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.
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