I’ve recently filed a lawsuit in New York State Supreme Court that has led to a flurry of press and commentary in the blogosphere. The facts in dispute involve a world premiere of the work of my client, contemporary classical composer Nathan Currier, called Gaian Variations, which, I am sure, was a labour of love for my client showing his dedication to issues surrounding climate change as expressed in the Gaia Theory of James Lovelock.

The problem is, as is stated in the legal pleadings filed in court, that Nathan Currier, who signed a contract with the Brooklyn Philharmonic Orchestra management for a three hour performance of his approximately two hour long work, did not get what he had bargained for. The New York Times stated in a scathing review of the piece that the composer did not seem to know when to end the piece, but this is because the orchestra did not perform the whole piece as alleged in the complaint that was filed in the Clerk’s Office in Kings County.

Many are not aware of this fact, but journalists often cull articles from filed lawsuits. As luck would have it, the reporter who was following litigation in Brooklyn Supreme for the New York Post, Alex Ginsberg, took an interest in the suit, partly, he explained to me, because his parents are both professional musicians and he was knowledgeable regarding union rules, the ways orchestras work and had read my pleadings in detail.

We arranged for a telephone interview with my client and me on the line. These kinds of interviews always make me nervous because a client may inadvertently end up saying things that damage a case. But I was quite confident that Mr. Currier, a very professional composer and teacher, could present his opinion and reaction without delving too much beyond the pleadings into what we call in law, “the merits of the case”.

Well, the article was released online and published in the daily New York Post on April 13, 2009 on page 17 next to an article about the new puppy at the White House. That article, which was more than twice the size of my client’s piece was titled, “Leader of the Flea World”. Now I know the Post is in the business (now often very difficult) of selling newspapers and it is not known for its in depth journalistic reportage. However, I would say that the article (which did not mention my name) was a fairly accurate representation of my pleadings as filed to the extent that such a short article could do such a situation justice. It is very difficult to succinctly sum up legal disputes, something all us lawyers learn in law school, facts seem to multiply and issues sprout up which may not even be in the alleged facts of a case. A journalistic piece may not state all the facts as pleaded and that may make an improper impression. Is there much one can do about that? Press freedom being what it is, it is hard to control the press.

The next day the article was picked up by UPI, United Press International, and then a number of blogs reprinted it or quoted the wire service summary or the New York Post article. A few local papers, such as The Brooklyn Paper (the only other paper to interview us) and the Brooklyn Eagle published short summaries of the case. Some of the blogs (and comments therein) were very sympathetic to my client’s plight, others seem astounded that anyone would sue an orchestra that had even badly performed part of a creator’s work.

The astounding thing was that some of the commentary misstated the alleged facts, or drew erroneous conclusions, i.e. that my client’s career had been permanently ruined. True, the failed performance had a negative impact on him, but to his credit he has returned to creating music of a very high caliber having recently received prizes and awards which show the depth of his talent and virtuosity.

What to do about these comments? We felt the best thing would be to send out our own press release and for me to try and counter some of what we considered the negative publicity stemming from the media coverage; to set the record straight, so to speak, as best we could, so that the press (which now is in the hands of bloggers as much as journalists) could provide something of a more balanced view to the readers of the press and blogosphere.

You often read about blog authors who complain that some “scraper” has republished their blog content on a completely unaffiliated site without permission even when then blog owner has not released that content with an “open source” or so-called “copyleft” license. Can a blog owner easily stop such vandalism? Yes. Under United States Copyright law Article 512 (17 USC §512) provides for an easy extrajudicial mechanism to protect copyright authors from online infringement.

Basically the author, or their authorized agent must get in touch with the online hosting service or “Online Service Provider” (also known as an ISP, or “Internet Service Provider”). Often blog hosting sites have particular pages that deal with providing copyright infringement notices to the ISP’s “Designated Agent”. Under the provisions of the law these “Designated Agents” are also registered with the US Copyright Office and a convenient online database is available to the public to search for the proper agent and their street address, fax number and email address.

The content of this notice is straightforward but in order for it to be effective it must comply with the statute. Basically the notice contains the following elements:

(1) A physical or electronic signature of a person authorized to act on behalf of the owner ofthe work that is being infringed.

(2) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site (best to give them a list of URL links of the work on YOUR site).

(3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (list of links of the site that is infringing).

(4) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted (your name address and telephone number and email address, and your main page url)

(5) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(6) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

We have prepared a form that can be downloaded for your use here: Takedown Notice Form (pdf version).

Please contact me if you have any questions about using the form.

One of the most important document fraud protection devices is using “red tape” to tie and seal a legal document. Once the document has been tied and sealed it is virtually impossible to alter the document without destroying it and making such destruction known to anyone who comes into possession of the document.

This method was used since ancient times and is the origin of personal and governmental wax seals, as the seal imprint (made by the seal matrix) indicated that the creator of the document was present at the time the document was tied and seals. The term “red tape” has its origin in the practice of the British government sealing all documents that were sent abroad as part of the administrative superstructure of the British Empire and it is still used today as a term referring to overly bureaucratic procedures.

In order to tie a legal document it is best to have the document, a document cover (with a fold over lip), a length of 1/8 inch to 1/4 inch red ribbon twice the length of one of the pages and twice the width of one of the pages, a wax seal system (modern practitioners of this art use an electric glue gun and faux wax which is a mix of plastic and wax) or standard notarial gummed seals (which can be sealed with an embossed seal). A hole punch and razor blade or artist’s “exacto” knife are also necessary. There are also variations of this method. In the former Soviet Union most notaries use a needle and thread to tie a document along with postage or legal stamps. The ribbon can also be placed on the side of the document, a variation using two holes is possible and it can also be done with one hole and a grommet.

First, decide where you are going to position the seal and ribbon (which will appear from underneath the seal). Make three slits with a razor blade or sharp knife in this blank space. The slits should be diagonal (from the direction the ribbon will be coming from behind the page), about 1/2 ” long, 1/8 ” apart and parallel to each other.

Second, Staple all the will or other pages together approximately 1/8″ from the top of the page (without the cover) with two staples so the top of the page is divided into three sections (one hole will go in each section).

Third, Fold over a half inch to one inch flap on the cover and insert the will pages underneath the flap.

Fourth, Punch three holes across the top through all pages and cover, on in the middle and the second and third holes about one inch from the edge of the papers.

Fifth, Take the piece of ribbon with the ends of the ribbon cut on a diagonal. Insert each end of the ribbon from the back through the two outside holes and tie a double knot directly over the center hole.

Sixth, Pull one strand of the ribbon through the center hole to the back of the document. Run that strand around the ribbon going across the back of the document and then take that strand back through the center hole and pass it to the back of the previously cut signature page. Pass the other strand through the center hole to meet the first strand between the signature page and the cover. Now both strands should be behind the signature page.

Seventh, Holding the both strands of the ribbon at their ends (you can also wrap them in a small piece of scotch tape), pass them through the top slit on the signature page, then back through the center slit and, finally, forward through the bottom slit so that both strands appear on the surface of the signature page.

Eighth, Spread the two ribbon strands apart slightly to form an inverted “V”, and while holding them down affix your seal using a notarial seal or melt sealing wax over the three silts and then imprint a seal using the matrix over the wax before it begins to harden, wait until the wax is dry and then remove the matrix. Using a pair of scisssors you can trim the ends of the ribbon to a proper length.

Are you responsible if some anonymous poster writes a comment about someone on a blog and it is defamatory? It is certainly true if you own the blog and you write a posting on the blog that you are responsible for the legal consequences of your authorship, but if a third party writes a comment post (and there are many more comment posts than there are blogs for sure) will the owner of the blog be responsible or be protected under the provisions of § 230 of the Communications Decency Act?

In a law review article published by Professor Glenn Reynolds (sometimes known as the Blog Father and author of the blog InstaPundit) he makes some interesting observations about why defamation law should be diluted on the internet in the age of the instant blog. Why? Because an article that has been published on the internet can be easily countered by a blog by the person who feels he or she has been defamed. While he makes some good points I would not concur with this reasoning because, as my grandmother used to say, “two wrongs don’t make a right”. If someone publishes defamatory information (and the legal definition of publication means it can be spoken to one third person, not just in the New York Times) a response to this wrong statement does not eradicate the incorrect statement made elsewhere. The point of bringing a defamation action is to get a judgment that states that the person made a defamatory statement, not to allow them to continue to make such statements and even, perhaps, to profit over such statements as being a “discussion”.

Professor Reynolds’ article is worth reading and he does review case law back to the seminal 9th Circuit Carafano v. Metrosplash.com case (also known as the Star Trek Actress case) which is still quoted as one of the leading cases in the interpretation of ISP liability limitations under the Communications Decency Act which can be used to apply to the comments area of blogs because such comments are not under the control of the blog publisher. He also rightfully points out something that I often come across in my practice that the mere statement of opinion does not rise to the level of defamation even if such an opinion is, as stated in Penn Warranty Corp. v. DiGiovanni, 810 N.Y.S.2d 807 at 814 (2005), “offensive, vituperative or unreasonable”.

I agree with many of his observations about the transient nature of blogs and how the internet, while empowering everyone to post slanderous statements also reduces the impact of these statements because anyone can start a free blog and also link their blog entry to the original offending post, thus making the publication more of a dialogue rather than a statement of fact.

When blog writers do act as “reporters” stating “first hand fact” the policy analysis is much similar to that of the historical approach of American defamation case law but Prof. Reynolds does point out that blogger libel is somehow more similar to slander because of the ability to link back to original posts and to post comments that can link to the offending material, thus avoiding the problem that occurred in published defamation remarks, i.e. there was no link between the original publication and any later retraction making it nigh impossible for a researcher to later discover the defamation.

One thing that I have to question is the professor’s belief that most bloggers could not afford to defend a defamation action or that they are somehow “judgment proof”. I don’t really understand this aspect of his analysis because I know it is possible to file a defamation action in a small claims court or court of limited monetary jurisdiction like NYC Civil Court (called county or district court in some other jurisdictions). These courts allow for the prosecution of cases by plaintiffs without constant legal counsel (some advice may be necessary) and they can often be started through the mail. The fact that most blogger defendants may not be rich should also not be a deterrent for someone who is a victim of libel because a judgment is usually good in most states for 20 years and sometimes people get their money plus interest many years after the fact so much like tenants sue landlords for rent overcharges victims of defamation have an easy way to seek a smaller award of damages through these “user friendly” lower courts.

If the offending blogger is trying to hide his or her identity one might still resort to long arm jurisdiction even to establish the identity of a party as defamation rest on publication of the libel in the jurisdiction of the plaintiff which with today’s internet is clearly possible though that is also an open question of law and while there were cases (like the famous Gutnick v. Dow Jones case from the Australian Supreme Court) the recent trend in the U.S. is to limit jurisdiction to the place of publication, see the Second Circuit case Best Van Lines v. Walker (decided June 26, 2007). One can ask for service of process by some more modern means, such as sending an email to a defendant or even posting the summons on the offending blog.

Free speech advocates can and do argue that it should be hard for bloggers to be sued for their writings based on some of the professor’s theories. However I would like to point out that not all victims of defamation are going to be bloggers and even if they do they won’t all feel a warm fuzzy feeling when they post a comment somewhere if their blog has little traffic and the blog where the defamation occurred has major traffic (and possibly is a deep pocket defendant with a lot to lose). With the costs of litigation in federal court (and the need to find the forum of the defendant to properly file a suit that will not be dismissed for lack of jurisdiction) it may be better for most victims of internet defamation to take the “self help” approach being advocated by the professor, or to file a smaller claim (which may none-the-less represent a significant amount of money to the plaintiff) in one of the lower courts.

Reynolds, Glenn Harlan, “Libel in the Blogosphere: Some Preliminary Thoughts (Final Version)” Washington Law Review, Vol. 84, p. 1157, 2006 Available at SSRN: http://ssrn.com/abstract=1030527

The idea-expression dichotomy or divide is embodied in Section 102(b) of the United States copyright code. It states:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

I often get calls from potential clients who as me if their “idea” can be protected by copyright and I have to explain to them that unless the idea can be embodied in a patent or used in commerce as a trademark that it is not possible through copyright law to protect such ideas.

This division between ideas and their expression also means that historical fact and actualities cannot be protected by copyright when they are publicly available, so the so-called “newsworthy event” exception to copyright law also applies to information in its purest form and in this way one could argue that a open source copyright license for an online resources such as Wikipedia is unnecessary if the articles are purely informational, and thus, unprotected by copyright as being straightforward expressions of ideas. One might even argue that the appearance of Wikipedia dilutes copyright protection for any source of factual information to a degree.