[Politech] Replies to bizarre Forbes article, and a note of legal caution [fs]

From: Declan McCullagh (declan@private)
Date: Wed Nov 02 2005 - 14:45:02 PST

Previous Politech message:

-------- Original Message --------
Subject: RE: [Politech] Forbes runs a stunning series of articles on 
fightingbloggers [fs]
Date: Tue, 01 Nov 2005 11:06:04 -0800
From: Malla Pollack <mpollack@private>
To: 'Declan McCullagh' <declan@private>, politech@private

While I love (politically) the anti-Diebold decision under 512(f), would-be
activists should be warned that it is a very bad analysis of the statutes
involved -- both the DMCA allowance of penalties for "bad" take down notices
and the fair use provisions of the copyright act.  I recently compiled a
list of decided 512(f) cases (few are reported) and Diebold is the only one
imposing a penalty for sending an overly aggressive notice.  The most
authoritative case on 512(f) is Rossi v. MPAA, 391 F.3d 1000 (9th Cir. 2004)
which holds that even unreasonable failure to investigate before sending a
notice does not create liability under 512(f).  I hate that outcome, but it
is a good reading of the statute.

Malla Pollack
Professor, American Justice School of Law
Visiting Univ. of Idaho, College of Law

-------- Original Message --------
Subject: Re: [Politech] Forbes runs a stunning series of articles on 
fighting bloggers [fs]
Date: Tue, 01 Nov 2005 14:35:30 -0500
From: Paul Levy <plevy@private>
To: <declan@private>

 >Eerily similar allegations began popping up
 >in anonymous posts on Yahoo, but Yahoo refused
 >Halpern's demand to identify the attackers. "The
 >lawyer for Yahoo basically told me, 'Ha-ha-ha,
 >you're screwed,'" Halpern says

And this guy is complaining about defamation?  Somehow, I doubt the 
Yahoo! lawyer told him this.....

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000

-------- Original Message --------
Subject: RE: [Politech] Forbes runs a stunning series of articles on 
fightingbloggers [fs]
Date: Tue, 1 Nov 2005 13:38:24 -0600
From: Burt,David <david_burt@private>
To: Declan McCullagh <declan@private>


Speaking as a former online activist (in the pre-blog era) and now a public
relations guy who regularly deals with online activists, I would urge 
not follow some if this advice.

As a PR person, I would advise companies to monitor blogs using blog search
engines and issue corrections when necessary.  I have done this when 
information about my company was published on various blogs, and I found the
majority of the bloggers respectful people who genuinely appreciated a
straightforward dialogue with a company.   Very few bloggers are genuinely
interested in spreading information that is demonstrably false.

However, as a former online activist, I can tell you that aggressively
attempting to discredit bloggers is good advice -- for promoting the 
that is.  Nothing makes an activist happier than having the target of his
criticism respond aggressively.  It's like throwing gasoline on the 
fire, and
worse, it positions the blogger as David to the evil corporate Goliath, and
usually just generates even more bad press for the company.


-------- Original Message --------
Subject: Re: [Politech] Forbes runs a stunning series of articles on 
fighting bloggers [fs]
Date: 2 Nov 2005 12:53:46 -0500
From: John R Levine <johnl@private>
To: Declan McCullagh <declan@private>
References: <4367B8F9.4090103@private>

 > Forbes is running a rather stunning series of articles about how
 > bloggers can damage corporations...

They're stunning all right in how far Forbes has sunk under Steve Forbes.
Pump and dump scams fanned by disinformation are as old as stock markets,
and you'd have to be pretty dim either to think that it's new, or that
companies have any more right than anyone else not to be commented on or

The sidebar on Groklaw's allegedly mysterious Pamela Jones is pretty
typical.  She really is a paralegal, the site is utterly anti-SCO and only
pro-IBM insofar as they're SCO's opponents, and if you're not a complete
poophead, she's not all that hard to find:


John Levine, johnl@private, Primary Perpetrator of "The Internet for 
Information Superhighwayman wanna-be, http://www.johnlevine.com, Mayor
"I dropped the toothpaste", said Tom, crestfallenly.

-------- Original Message --------
Subject: Re: [Politech] Forbes runs a stunning series of articles on 
fightingbloggers [fs]
Date: Tue, 1 Nov 2005 15:24:59 -0500
From: Danny <ayavuzk@private>
To: Declan McCullagh <declan@private>, <joehall@private>
References: <4367B8F9.4090103@private>

Looks pretty one-sided. I like how in cases of "too much free speech," the
side the author represents is always "the truth" and the opponent is always
spouting "lies, libel, and invective"... seems what they could, instead of
seeking to discredit, outshout, or outlawyer, they could outTRUTH the "evil
bloggers"... after all, the truth is almost always simpler than the lie...

And I'm sorry for the poor corps who feel they're so threatened by 
saying things about them, and feel their only recourse is to squash them 
bogus DMCA legal threats, ISP intimidation, or paid propaganda 
bloggers... but
the benefit to the greatest number comes from allowing all to say what they
want, and let others decide whether it's true or not, based on facts,
evidence, and common sense.

That's one of the biggest problems, IMHO, about the "information age" -
there's a hell of a lot of "information," but not a lot of Truth, and it's
awfully hard to tell the difference when it's one word against another on a
screen, from someone you've never met, with motivations you can't hope to

That's what libel and slander laws were established for - to examine speech
that damages one party's reputation, in a courtroom setting, and thereby
determine whether the truth was told. So corps are afraid of having to 
go to
court because it costs money to prove their truth is The Truth... but 
who has
more money? The corporations. They can lie all the way to the bottoms of 
checkbooks - through their countless advertising and "public relations"
mouthpieces - but individual citizens can only lie to the extent of their
meager resources by comparison.

But when we need to hear the truth, about whom do we most need to hear? 
dirt a corp's PR flacks dig up on Joe Schmo in Anytown, USA, who for some
reason is saying Bad Things about the corp... or the dirt Joe Schmo digs 
up on

Without prejudging the truth of either's speech, I'd rather have them 
both say
whatever they like, and sort the truth out in court if it comes to that, 
allow any corporation or business entity to kill dissent without so much 
as a
single witness.


-------- Original Message --------
Subject: Re: [Politech] Forbes runs a stunning series of articles on 
fightingbloggers [fs]
Date: Tue, 1 Nov 2005 15:56:03 -0500
From: Danny <ayavuzk@private>
To: Declan McCullagh <declan@private>
References: <4367B8F9.4090103@private>

and it's a small quibble, but there's no such thing as "the first blog" 
- I've
seen pages on the net that could qualify as blogs since long before 1997.
There was Justin Hall's links.net page, which I first used back in 1994...

-------- Original Message --------
Subject: Re: [Politech] Forbes runs a stunning series of articles on 
fighting bloggers [fs]
Date: Wed, 02 Nov 2005 00:55:49 -0800
From: Thomas Leavitt <thomas@private>
Organization: Godmoma's Forge, LLC
To: Declan McCullagh <declan@private>
References: <4367B8F9.4090103@private>

Stunning is a rather mild word... what the hell? The level of vitriol
displayed in these articles is astounding. They are yellow journalism

What message is Forbes trying to send its readers? Is it serious in
contending that the blogosphere is this incredibly dangerous and out of
control Wild Wild West which has the potential to destroy any company
overnight on the slightest of pretexts. What could possibly motivate
them to take this approach?

Not to mention the questionable ethics and severe bias displayed by the
articles themselves - I mean, talk about the pot calling the kettle

"blog mob"?

"blog-riddled Linux software movement"


Also, I'm pretty sure the author of GrokLaw didn't endorse knocking
SysCon off the 'net, although one of the sidebars you quote sure implies
she did. Note: I haven't read the GrokLaw article in question they quote
from (unlike your average blogger, Forbes doesn't bother to actually
cite its sources in a fashion that allows you to go read the source
material in question and draw your own conclusions), so my assumption
might be wrong... but I find it hard to believe a lawyer would endorse
an blatantly illegal act of that sort.

Does SysCon really pull down $50,000 a day off a single site that can be
knocked offline by hackers? That's $18 million a year! Nine times what
the same set of articles quotes Weblogs.com pulling in, and the latter
was worth $25 million an acquisition - linear math would put SysCon's
market value at $225 million. Is the online advertising business *that*
lucrative already?!? Could this attack be prompted sheer jealousy on the
part of Forbes? :)

Thomas Leavitt

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