Jack Yan: the Persuader Blog: Lawyers should be nice

I can’t divulge the company names involved here but it involves a friend of mine running a web site. It has a forum. Copyrighted images were posted there, not that he wished that to happen. Now the copyright owner is on his case, which is ﬁne, as I would be, too, in their shoes.
They want to know who posted the material (the poster is anonymous, and he doesn’t host his own board). They also want the post to be removed ASAP.
He wrote back politely to the American lawyer to ask what he could do to assist and got a fairly nasty reply back. It told him to seek legal advice and it would not comment on the Copyright Act 1976.
A better solution would have been to advise my friend of how they both could move forward.
It seemed pretty obvious that the client and lawyer didn’t have a clue on how these forums worked, and my friend does not know that much about copyright law. Perfect: an opportunity to cooperate.
The lawyer could do this without breaching client–attorney privilege. After all, by working together, they might be able to ﬁnd a solution to tracking down the anonymous poster. It’s in the client’s best interests. If my friend merely deleted the ﬁle as they demanded, both parties would never be able to trace the poster—not without a degree in advanced computing, anyway, or full access to the hosting company’s logs. Right now, that isn’t an option. It’s like asking for a gold-plated toilet: it’s possible, but it isn’t particularly viable.
My friend could propose a solution such as warnings on his forum that would keep the publishing company happy long-term. And the lawyer should agree, if he really was serving his client.
But no: the adversarial approach is the name of the game in the legal profession, and it isn’t limited to the United States.
We have had to patrol a lot of web sites over the years for our own material, and that of my colleagues. We might learn of an infringing web site, for example. All the “hard” approaches of my colleagues tended to fail, or at least it did not get the result they wanted without raising the blood pressure of all involved.
We would write in, explaining the situation, how little the original owners made off their work to begin with, and could they please remove certain ﬁles?
Within a few hours I had agreeable responses. Occasionally, they would comment on my colleagues’ approach and how impolite they had been.
Cooperation and dialogue aren’t solutions just for cross-cultural misunderstandings. They can help you on copyright matters.
All my friend now has is a sour taste with the publishing company’s titles, thereby damaging their brands. Which is good for me, since the more people know they are run by a bunch of idiots, the happier I’ll be.
I hope that if we were to ever hire lawyers and take copyright infringement matters out-of-house, we won’t deal with idiots who opt for bullying tactics ﬁrst. We have a few pretty good ones we use in New York and yes, they do advise me occasionally for free—because now I have become an even more loyal client.
Sounds to me like this lawyer is getting everyone mad so he has more billable hours. I’ll be noting his name to avoid him in the future. He probably watched too much LA Law when he was training.

Del.icio.us tags: law | lawyers | professional conduct | ethics | brands | cooperation | dialogue | copyright | intellectual property | copyright infringement

Posted by Jack Yan, 22:01 permalink

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It happens. I believe that by present copyright law in the United States, the site can be requested to be taken down. The host could be compelled to comply. It's all rather... draconian.

Lawyers aren't hired to be nice. They are hired to look out for the legal interests of their client - that your friend didn't hear from the person who has the copyright infringement directly is the real problem. That's just poor on the part of the copyright holder, because then there could have been dialogue. But many copyright holders are tired of people doing that on the web... especially if they are using the bandwidth of the server to get the job done.

Now - here's the real catch. If your friend has a disclaimer for his boards that basically states that people are responsible for their own posts, you can pretty much have him to tell the lawyer to pound sand once the copyrighted material is no longer there. There are also privacy laws (except, perhaps, in the United States! LOL). Now, if they are serious about nailing the copyright infringer, they could get a copy of the server logs (I doubt that they would take the server to do that).

Make sure your friend is backing up his server.

Suggest that he comply, within the limits of the privacy agreements and disclaimers he has on his message boards, and also suggest that he get a point of contact to discuss future issues with that is not a lawyer - since, of course, your friend doesn't want to have copyright infringement on his site.

Of course, fighting the PR war with the publishing company might get them to respond without the lawyer. Publicity has a very calming effect on people who make money based on their appearances. Personally, I'd like to know more about this... I want to know which publishing company hires lawyers before they talk to people.

I doubt it's O'Reilly. O'Reilly tends to let people know personally - I found that out when someone was posting copyrighted material from an O'Reilly book at LinuxGazette.com when I was running it - so I immediately took it down and dealt with the person who posted it.

# posted by

Taran: 2/11/2006 01:16:00 AM

You are right, Taran, and I did advise my friend to cooperate, explaining some of the things I mentioned in my post. The Digital Millennium Copyright Act in the US could be used in this case, as the host is American—a simple request from the lawyer to the host would have worked, and my friend would be site-less, probably after a warning from that host.
I still can’t mention the company name: in fact, my friend hasn’t even given me permission to mention this case, which is why I have been vague about everything. But I wanted to get it out of my system this morning.
I agree that not having dialogue ﬁrst is piss-poor, and can think of a few cases there, too, including one I am involved in!
I can say, however, that it’s not O’Reilly. I used to know someone there, too, and I always found them pretty nice. I do know of this other company, and I can say they tend to be highly strung most of the time.

# posted by