Edwin Mellen Press Drops Suit Against Librarian Blogger

The Chronicle of Higher Education reports that Edwin Mellen Press has dropped its lawsuit against librarian blogger Dale Askey, (see earlier blog post), and McMaster University.  In related news, McMaster has agreed to pay Askey's lawyer fees.  However, the related lawsuit against Askey by Mellen Press's founder Herbert Richardson, for personal remarks (actually comments by visitors to Askey's blog), apparently continues. 

The Edwin Mellen Press had come under a great deal of negative press and criticism from bloggers and academic organizations and authors for this lawsuit.  It had been pointed out that this was a second time the press had engaged in a similar lawsuit apparently designed to silence criticism.  #freedaleaskey is the Twitter hashtag for commentary on the lawsuit, and a good search to look for criticism, though simply searching "Edwin Mellen Press" will also turn up a lot.

Edwin Mellen Press suing blogger and new employer over critical post

The Edwin Mellen Press has filed a lawsuit against Dale Askey, now university librarian at McMaster University in Ontario.  They also name McMaster, even though when Askey wrote the blog post in question, he was employed at Hale Library as  --> an associate professor at Kansas State University.  Mellen claims $3 million in damages from Askey and from McMaster University!  They originally just sued Askey, but quickly refiled to include deeper pockets.  It is interesting to note that the blog post was from September, 2010, and Mellen's initial notice to sue came  shortly after Mr. Askey moved to Canada to take his job with McMaster, in June, 2012!  Read farther down about the difference in U.S. state law compared to Canadian law for something interesting to think about the timing of Edwin Mellen's suits!

The post in question has been removed from Mr. Askey's personal blog, Bibliobrary, but can be easily located by reading the Edwin Mellen legal petition, here, kindly supplied by the Canadian Association of Professional Academic Librarians, who strongly support Mr. Askey. They supply a link to a Change.org petition in support, and a partial list of the various other academic organizations which have rallied in his support. 

 The blog post was titled "The Curious Case of Edwin Mellen Press," and Mr. Askey blogs, in relevant part, (handily underlined by Mellen's counsel for us):

 Edwin Mellen has been on my radar as a dubious publisher for over a decade now, and given that libraries monographic budgets are ever-shrinking, I find myself amazed by the durability of Mellen. 

    ... No, they are not technically a vanity publisher, since apparently they earn enough from libraries with their egregiously high prices to avoid asking for subsidies from authors. But at the end of the day, so much of what they publish is simply second-class scholarship (and that is being kind in some cases), and in a time when libraries cannot purchase so much of the first-class scholarship, there is simply no reason to support such ventures. ...

 ... The dirty little secret of libraries is that such purchases are rarely evidence of careful consideration, but rather a sign of how much of the work of acquisitions we outsource to vendors, who supply these books on approval.  Why? Well, since those suppliers take a cut of sales, it is in their interest to sell as many high-priced volumes as possible, and in that scenario, a publisher such as Mellen is a golden goose.  ....

     A few commentators suggest that this may be a SLAPP suit, or Strategic Lawsuit Against Public Participation.  In a SLAPP law suit, the plaintiff does not actually expect to win the suit, but files the petition in hopes of silencing a critique by burdening them with the costs of litigation. In some U.S. jurisdictions, depending on statutory law or court precedent, if a judge concludes that the petitioner has mis-used the court system in order to intimidate the defendant, he or she may 

*  Dismiss the complaint at an early-stage motion; recover damages; challenge subpoenas and protect defined personal information; and protect privileged publication and participation in public proceedings and litigation.   (California)

*  Or, more relevantly, NY, where Edwin Mellen's U.S. offices are located. New York's Anti-SLAPP laws require the defendant to first show 2 things:

1)   First, you must show that the plaintiff suing you is a "public applicant or permittee."  The statute defines a "public applicant or permittee" as an individual or entity that has obtained or is seeking "a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body." The term could include real estate developers, mining companies, garment manufacturers, and private landowners looking to build new structures on their land, among others. In essence, to meet this requirement, you will have to show that the party suing you requires some sort of government license to operate or proceed with a project.  See the excellent link above.

2)  Second, you must show that the plantiff's claim against you is an "action involving public petition and participation." The statute defines an "action involving public petition and participation" as one that involves a public applicant or permittee (above) seeking damages from a defendant on the basis of the defendant's efforts "to report on, comment on, rule on, challenge or oppose" the application to the government. For example, the definition would include a garment manufacturer's lawsuit against a public interest organization campaigning to have the manufacturer's state registration revoked. For another, the definition would include a real estate developer's lawsuit against a blogger who reported on the developer's attempts to secure a building permit, or who called upon local citizens to oppose the application.

      If you meet these 2 standards, you can file a motion to dismiss.  This does not allow you to halt discovery (unlike California, above). But if you prevail on the motion to dismiss, then the defendant in a NY SLAPP case can be awarded costs and attorneys' fees if the case was without basis in fact. If they can show they suffered harm, the defendant can be awarded compensatory damage in the amount to make them whole.  And if they can show that the ONLY reason for the lawsuit was to injure their rights, the NY SLAPP defendant may also be awarded punitive damages.

       Kansas does not have any SLAPP statute or case law.  However, if Edwin Mellen brought suit against Mr. Askey in the U.S., I wonder if Askey might have been able to remove the suit to New York state, where the suit might have become far more dangerous to Mellen?
    
      You can check Mr. Askey's blog dated Feb. 21, 2013, to see his thanks to a very long list of organizations which have come out in support.  There have been a number of articles about this as well:

Chronicle of Higher Education

Inside Higher Education

Library Journal (which notes that Mr. Askey is currently paying his lawyer expenses for both suits, which are both continuing, out of his own pocket!  McMaster is only covering the costs of the suit against the University.)

InfoDocket blog, (from Library Journal) with an excellent list of links for supportive comments and news stories.

     I was interested to read in several of these stories that Edwin Mellen Press had filed a similar suit for libel against the well-regarded journal Lingua Franca in 1993.  They lost that law suit, though Lingua Franca is now defunct, apparently from other causes.  There is even a book about the suit, The Edwin Mellen Press versus Lingua Franca: A case study in the law of libel, by Paul H. Reid, Jr.  Published by Edwin Mellen Press -- somebody either has no shame or a huge sense of either humor or irony!  

     The decoration is from an article in the Economist online paper dated Jan. 8, 2009, "Libel Tourism," which is interesting in itself. It appears that at least for a while, British citizens were suing non-Brits in British court, often very wealthy Brits against very humble non-Brits, over claims of libel. 
 

Right of Publicity Laws

The Boston Globe had an intriguing article in the Ideas section today about a bill pending in the Massachusetts legislature enlarging our current right to publicity: "Life, the aftermarket: New laws to protect celebrities push the bounds of what part of a human life can be considered property." (I gave the title and subtitle from the print Globe. Online as you will see, the title is "Who owns you after you die? A Massachusetts bill opens a window onto a shifting corner of the law.) According to the article by Leon Neyfakh, comedian Bill Cosby, a Massachusetts resident, became concerned about the possibility that his likeness might be used after his death to promote products or ideas he would never approve of. He asked his state legislator to sponsor a bill that would allow celebrities and regular residents alike to protect their images, names, speech patterns and various "signature affectations" even after death. This is a form of Right to Publicity Law (the article does not say so), and so far 13 states have extended the right to control an individual's publicity to post-death, according to Neyfakh. His article focuses on the philosophical issues raised between the individual's interest in controlling use of his or her persona balanced against First Amendment free speech and creative rights of others.

There are some interesting, brief quotes from the Boston College law professor who studies death law, Ray Madoff, author of Immortality and the Law: The rising power of the American dead. There are a few, less investigated issues raised briefly in the article that I wish had gotten more discussion, but perhaps that is asking a bit much of a newspaper article. These are questions that raise the specter of owning the right to human beings, even a "persona," echoes most uncomfortably the law of slavery. The question, what are we giving up by allowing major figures to become monetized assets? The question, isn't there some public right to cultural heritage?

In Massachusetts, the current law on right of publicity is codified at MGLA Chapter 214, section 3A. Citizens Media Law Project has a very nice guide about it. The law in Massachusetts currently does not extend to posthumous control of publicity. There is a handy survey of state laws on Right of Publicity compiled by Prof. Jonathan Faber, an (adjunct?) professor* at Indiana University, Indianapolis and Bloomington. The statutes I checked on very nicely reproduce the text and citation, rather than referring the reader to various states' websites. However, be alert that the statutes and blog may not be more current than say, 2008, when Faber lists some amendments pending for the laws in California and Illinois. The link to the survey of statutes will also link to his very interesting blog that includes commentary, case notes, and some marketing stuff.

There are some interesting notes on efforts to pass a federal Right to Publicity law, at International Trademark Association, an article posted online from the Communications Lawyer, vol. 28, no. 2, Aug., 2011, "Why a Federal Right to Publicity Statute is Necessary," by Kevin L. Vick and Jean-Paul Jassy.

Just by happenstance, the Globe also carried a brief opinion piece in the same issue, "Fan Fiction has a Place in Literature," by Cathy Young. She discusses the right and independence of fan fiction authors to riff on beloved characters in previous works. It sort of ties into the Right to Publicity. In a way an author's rights over his or her characters are a bit like celebrities' or even their own interests in their protecting their personal image from exploitation by others. And yet, as the Young points out, Shakespeare used characters from earlier works of all sorts, like The Moorish Captain, an Italian novella, which became the kernel for Othello, according to this editorial. Most of the great plays by ancient Greek or Roman playwrights were based on characters fully lifted from their myths and legends. As with the earlier article, Young raises the question of what creative chains we apply to the future by locking up access to potential mother lodes of inspiration.

* Faber may also (or perhaps, more clearly?) be an associate in the law firm McNeely, Stephenson, Thopy and Harrold -- he is not listed as a faculty member at IU Indianapolis, and may be an adjunct at both IU Bloomington and at IU Indianapolis.

The picture of a child peering through chains is from a blog, "Circles All the Way Down".

Twitter achieves granular tweet blocking & marks blocked tweets

From the Twitter blog:

As we continue to grow internationally, we will enter countries that have different ideas about the contours of freedom of expression. Some differ so much from our ideas that we will not be able to exist there. Others are similar but, for historical or cultural reasons, restrict certain types of content, such as France or Germany, which ban pro-Nazi content.

Until now, the only way we could take account of those countries’ limits was to remove content globally. Starting today, we give ourselves the ability to reactively withhold content from users in a specific country — while keeping it available in the rest of the world. We have also built in a way to communicate transparently to users when content is withheld, and why.

We haven’t yet used this ability, but if and when we are required to withhold a Tweet in a specific country, we will attempt to let the user know, and we will clearly mark when the content has been withheld. As part of that transparency, we’ve expanded our partnership with Chilling Effects to share this new page, http://chillingeffects.org/twitter, which makes it easier to find notices related to Twitter.

There’s more information in our Help pages, both on our Policy and about Your Account Settings.

One of our core values as a company is to defend and respect each user’s voice. We try to keep content up wherever and whenever we can, and we will be transparent with users when we can't. The Tweets must continue to flow.

If a tweet is withheld, the update note to the blog says that users will see an alert box that says “Tweet withheld” or “@Username withheld” in place of the affected Tweet or account. Tweets cannot be censored as they are entered, says the blog. There are simply too many. This will apparently only come up if Twitter is notified by a host country that there is problematic content that must be removed, and so a tweet will come down after the fact.

This is a timely development since it about one year after Twitter began to be so important in the Arab Spring efforts in Egypt and other Middle Eastern countries, some of which made efforts to globally block all tweets.

Occupy Wall Street, and its off-shoots

Occupy Wall Street has grown from a very small protest this past summer, thanks in large part to a brutal over-reaction by New York City police. On September 1, a small, sort of pre-protest was held, to test how it would be to hold peaceful, legal protests by occupying public sidewalks 24 hours in New York City. The protesters encamped relying on a previous decision, METROPOLITAN COUNCIL, INC v. HOWARD SAFIR, Commissioner of the New York City Police Department, et al., 99 F. Supp. 2d 438 (S.D. NY, 2000). Nine of the protesters were arrested when they refused to disperse. They videotaped the event, and I have to say the police were quite polite.

On September 17, Occupy Wall Street worked with US Day of Rage, which was, despite its name, launched a peaceful protest. In a well-planned and supported protest, the group organized an occupation of a growing swath of New York City to protest a variety of issues. The group has acted in a democratic fashion to allow the protesters to articulate what they think the protest is about, so the issues are sometimes shifting and sometimes murky. But most agree about the unequal distribution of wealth ("We are the 99" is one common slogan, referring to 99% of the population in contrast to the 1% that has the vast majority of the wealth).

Eventually, a few of the New York City police did act brutally toward some of the protesters, and were caught on video. These reports came out on September 25, and galvanized the protests in New York and elsewhere. Suddenly, the protest seemed much more important.

Occupy Boston sprang up (and last night was rousted out of its expansion onto the Rose Kennedy Greenway by Boston Police). On their website, they claim that there are now 120 Occupy sites throughout the country. I know there is one in Atlanta, Charleston, Chicago, Dallas, Humboldt (California), Knoxville, Los Angles, Oakland, Portland, Sacramento, San Diego, San Francisco, San Jose, Santa Fe. Actually, the cities in California have a shared website, Occupy California. To find out what is happening, you can check into Twitter and use the general hashtag #occupy.

In a related movement, Lawrence Lessig and Mark McKinnon have called for for a Constitutional Convention to be hosted at Harvard. The post linked here actually appeared last spring, so this movement began earlier than the Occupy Wall Street, but it arises from the same frustration.

Washington is hopelessly addicted to money and thus to the status quo; drunk with power and incapable of getting sober and fixing itself. It’s time for an intervention—by the states.

Politically, we two disagree on just about everything. But the one thing we do agree on is that the institutions of government in Washington have become corrupt, held hostage by well-funded special interests. It’s no wonder that only 17 percent of the American public in a recent Gallup survey said they had a favorable opinion of Congress. American voters believe, and rightly so, that corporations, labor unions and moneyed special interests have a chokehold on politicians. Voters are disillusioned and discouraged because they don’t believe Washington represents the will of the people. And the recent Supreme Court decision in Citizens United v. F.E.C.—which permits unlimited independent corporate campaign expenditures—will only make this worse.

And so too many throw up their hands and say, “We give up. Congress won’t fix itself. And there’s nothing that we can do about it.”

But there is something we can do. We, the People, can take back the power we gave to Congress. We can take it back through the states.

The framers left open a path to amendment that doesn’t require the approval of Congress: a convention. Article V of the Constitution requires Congress to call a convention to propose amendments if 34 state legislatures demand it. Any proposed amendment would then have to be ratified by both houses of 38 state legislatures (three-fourths of the states).

(snip) Even if 34 states don’t call for a convention, history teaches that a real threat is often enough to get Congress to act. The only amendment in our history that changed the structure of Congress (the 17th, making the Senate an elected body) was proposed by Congress because the states were close (just one state short) to calling for a convention. If nothing else, the possibility of a body they can’t control is enough to get Congress to pay attention.

Some will resist the idea of a convention because they fear a “runaway” in which fringe elements would take over the agenda and propose radical amendments. But the framers anticipated such a danger and established a very high bar against it. Amendments are ratified by legislatures (or state conventions), not by referenda. And if even one chamber in 12 state legislatures refused to ratify an amendment, it would die. There will always be twelve solid blue states and twelve solid red states in America. There’s thus no danger that one extreme can overtake the other. Conventional wisdom will argue that constitutional conventions or amendments are just impossible. Just like it was impossible to wrest a republic from the grip of monarchy or abolish slavery. Or impossible to elect Ronald Reagan or Barack Obama. But conventional minds are always wrong about pivotal moments in a nation’s history. And this is a pivotal moment in ours, when a movement to restore democracy is possible.

Indeed, the movement has already begun. Legislators in South Carolina, Virginia, Oregon, Rhode Island and Florida are already throwing sparks that could soon become a brush fire across the country. More and more are coming to see that if reform is necessary—as most all of us, whether from the right or left believe—this is the only way.

Interestingly enough, when I searched for information on Occupy Wall Street, the top item returned was a Wikipedia entry reminding readers of Article Five of the Constitution, giving the citizens the power amend the Constitution or to call a constitutional convention. It was a sponsored link.

Taking a Hammer to a Mosquito

When dealing with students, it is usually better not to overreact. Although this is true all year long, it is especially true during final exams, when tension levels rise. Right now, my library is literally packed with students, and it is becoming difficult to find a place to study. The staff is endeavoring to ensure that burned-out lightbulbs are replaced in a timely fashion and that the building is a comfortable temperature at all times. We try to remain calm when responding to complaints brought to us by students, but at times it is difficult. An article in The Chronicle of Higher Education made me think about ways that law school administrators interact with students.

The article describes a satirical blog, SUCOLitis, which aims "to be something like The Onion of law-school life." Focusing on Syracuse University College of Law, the blog features "fake headlines about beer pong, third-year students serving burritos, and the election of the university's 'sexiest Semite.' It delights in attributing fake quotes to students and faculty, as well as to famous alumni ... " I think that my reaction to the blog would have been to ignore it, but Syracuse took a different approach. "The law school has threatened 'harassment' charges against a student who is allegedly a writer for the anonymous blog." The student, Len Audaer, is being investigated, but Syracuse refuses to give him any information about the charges against him unless he signs a gag order. This information comes from a press release issued by the Foundation for Individual Rights in Education (FIRE), an organization "known for its efforts to stop campus officials from restricting the free-speech rights of students and faculty members." The blog, which is on WordPress, was made private last week, and readers have to access it using secure accounts. More information about the controversy appears here. Coming down hard on the student blog author has generated the kind of negative attention that most law schools try to avoid.