Free Speech and Fair Use (Speech isn’t free unless Chuck Dowling approves it.)
In November if 2003 I was browsing posts made to the photo.net website. A discussion caught my eye. It was about a project to photograph from moving car, every mile on the mile, the width of the USA .
I had heard about a Kodak-sponsored project of this nature, and read through a number of the comments made in the thread. One in particular caught my eye. It was made by a photo.net user who’s username (at the time) was “Chuck Dowling (Tampa Florida).”
With regards to the proposed project, Chuck Dowling said this:
Having driven across the US many times, I can say that there would be little to see. Sounds like a waste of film..
This is a direct quote from Chuck Dowling as posted to photo.net
Unfortunately, the original thread was in the Photo.net forum called “General - Non-Archived”
This means that threads started there have a lifetime of about three days. If, after three days, no photo.net moderator or administrator marks the thread as “to be archived” the thread is deleted.
This is what happened to the thread: It was deleted after a couple of days. The original url, however, is here:
http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=006ZeS
I found Chuck’s statement about the project to be quite off base. In fact, I found his statement to be, as I put it “ignorant” And I said so in my LiveJournal post:
http://www.livejournal.com/users/cetan/287656.html?view=398248
The exact post is copied here:
Subject: Ignorance at its finest
Chuck Dowling (Tampa, Florida), nov 20, 2003; 05:23 p.m.
Having driven across the US many times, I can say that there would be little to see. Sounds like a waste of film.http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=006ZeS
I don’t deny the fact that there may be a questionable “benefit” to photographing the width of the US along a single route from a moving car at one mile increments.
However, to claim that “there is little to see” is probably the most ignorant statement I’ve ever seen.
I, of course, thought little of the post until August 22nd 2004 (nearly a year later) when an anonymous user posted a comment to my LiveJournal account. The comment was made in the LJ post in question. As I screen all anon. posters, I reviewed it and realized it appeared to be Chuck Dowling himself. I unscreened his post in order to respond to it in the public domain. This lead to another response, and finally a third.
Here are the first two comments:
Had you posted the whole thread, which is now expired, it would have been clear that there was a suggestion to randomly snap photos at timed intervals while driving a main route cross-country. I stand by my statement that the photos would be boring / uninteresting. Having driven the main cross-country routes many times, there is little to see except gas stations, truck stops, etc. The thread wasn’t about stopping in towns or at landmarks, etc. Perhaps you are ignorant for not carefully reading the entire post.
My response:
A little Google Happy are we Chuck?
It doesn’t matter how much of the thread I posted. Your statement can stand alone on its own as one of ignorance.
The fact that you believe you alone can decide for me what is and is not interesting photographic materials is why I posted your amazingly stupid statement.
His response to that:
I wasn’t deciding anything for you, I was replying to a question someone posted on photo.net about taking timed interval snapshots out of a car window whilst driving cross-country. This has nothing to with photographing something interesting, the shots were to be RANDOM. It is wrong of you to post a statement I made out of context.
And finally my response to his second comment:
My journal, my rules Chuck.
This has nothing to with photographing something interesting, the shots were to be RANDOM.
This is you trying to decide if shots taken at random have value for others, which you sum up very clearly in this statement: “Sounds like a waste of film”
I’m sorry you’ve got a problem with this project Chuck. I’m sure everyone is going to try doubly hard to make sure they fulfill your requirements for “real” photography with their next project.
His third response threatened me with legal action. Chuck Dowling claimed that
1) I am in violation of copyright law and that I have
2) defamed him and his business.
Here is his entire comment:
I have tried to be civil with you. You are in violation of copyright law. This is an excerpt from the terms of use policy at www.photo.net:
Prohibited Usage of the Site
The content and materials available through the Site are the property of photo.net or its licensors (the users), and most of the materials are protected by copyright, trademark and other intellectual property laws. Furthermore, photo.net has expended its resources to gather these materials and to publish them or to make them available to its users. You agree not to reproduce or
distribute, or cause to be reproduced or distributed, any material that you retrieved from the Site, without the express prior permission of both photo.net and, in the case of copyrighted materials, the copyright owner, except for such reproduction as occurs in the normal course of reading or viewing the materials using a Web browser.REMOVE THIS THREAD IMMEDIATELY, OR YOU WILL BE SUBJECT TO LEGAL PROCESSES OR OTHER REMEDIES WHICH WILL INSURE YOUR COMPLIANCE.
I have already filed a complaint against you with livejournal.com. I am a working journalist, and your posting of defamatory comments about me using my name is against the law, and detrimental to my business. I have asked you nicely here to remove my statements and references to my name from this (livejournal) website.
My immediate response was to post this:
You have never once asked me to remove your comments.
I’m not in violation of copyright law.
I believe your opinions are wrong and it is my right under the First Amendment of the Constitution of the United States of America to say so.
Any further posts by you to this journal will be deleted.
And this is true. Chuck never once asked me to remove the comments or his name. His legal threat was the first mention of it.
I don’t believe I’m in violation of any copyright law. I believe Chuck does not understand copyright law nor does he understand the photo.net Terms of Service (TOS). His copyright violation claims are, in my opinion, without merit.
About an hour after my final response to the thread, I did receive an email from the Abuse Team at Livejournal, their response was quite a shock to me.
They said I was in violation of the LiveJournal terms of service and have ordered me to remove the name from the post or face account termination. I must comply by 12:01am August 27th.
Section XVI of the LiveJournal Terms of Service states:
You agree to NOT use the Service to:
1. Upload, post or otherwise transmit any content that is in LiveJournal.com’s opinion to be unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive to another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information with out the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
However, there seems to be a direct conflict between Section XVI and Section XV “Guidelines for posting your online journal”
Section XV:
All Content posted to LiveJournal.com in any way, is the responsibility and property of the author. LiveJournal is committed to keeping the Service in decent standing for all audiences but is not responsible for the monitoring or filtering of any journal Content. Within the confines of international and local law, LiveJournal.com will not place a limit on the type, or appropriateness of user content within journals.
I immediately opened a support request with the Abuse time to attempt to get an explanation of why they believed I violated the TOS.
The name was posted as part of a quote from a public
web site. The name (Chuck Dowling) was already posted
in public on photo.net (a completely open photography
web board) and I simply quoted it for reasons of
commentary.
I would like to add some further information to this ticket.
The text in question, which is in italics on the original post, is a direct quote from the photo.net website. Photo.net allows free and open access to any and all of its forums.
For an example of how each users response is shown please visit the following example url:
http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=0092a9&unified_p=1Notice how each user can customize their username.
The username of Chuck Dowling in November of 2003 was:
“Chuck Dowling (Tampa, Florida)”
Because photo.net allows users to change their usernames at any time, Chuck Dowlings current username is:
“Chuck Dowling (www.fotomagik.com)”
I quoted him for reasons of commentary as allowed under fair-use laws. The only way to credit him for his quote was to copy the username as shown on photo.net. Mr. Dowling chose to make his username his full name. I simply quoted his post for purposes of commentary.
The abuse team has responded just once more with the following information: I am in violation of the TOS because I invaded his privacy by posting his name as a part of my quote.
The LiveJournal Abuse team is attempting to claim that, for the purpose of commentary, I am not allowed to use anyone’s name that has not given me express written consent to use their name to comment on statements they have made.
I couldn’t understand how they could claim this and I posted the following response:
But he has no control over who sees his full name. He posted it to a public forum. He gave up the right of control by making his posting in a public arena. Thje photo.net forum is not a private forum, it is completely public and no registration is required. I did not invaid his privacy.
I respectfully request that this be considered. It is impossible to make commentary with reguards to comments made in the Public on LiveJournal if those making the commentary can not use the name of the person making the Public statement.
After some thought, I realize now where the problem lies.
When you go to the following url:
http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=006ZeSyou see a message saying that you are unauthorized to view the thread. That is not because there is any security surrounding the thread. It is because the thread no longer exists. The original comment was posted on a PUBLIC message board that does not archive its threads without the intervention by a moderator or administrator. The forum is called “General - Non-Archived”
This area is meant for threads that are duplicate or not worthy of archive by photo.net but this is NOT, and I really want to emphasize this, this is NOT a restricted posting or viewing area. Anyone from the public can view threads here while they exist. This is not a restricted viewing area. It is very very important to understand this, because this is where Mr. Dowling made his post. He posted his name in a public forum, and I am allowed, under fair-use to quote him. Because there is no way to link to an individual comment on photo.net, the only way to properly credit the quote is to also quote the username of the person making the statement.
Please consider these facts. Thank you.
Unfortunately, there has been no response from the LiveJournal Abuse team on this matter. It would appear that my support ticked has been marked “resolved” and they will hear no more about it.
I don’t understand how my quoting someone who makes a statement in a public forum is a violation of the LJ TOS. It seems that being able to provide commentary on public discussions is one of the fundamental pillars of LiveJournal.
With regards to the original comment and the charge of defemation, I believe that too is without merit. I did not and have never attacked Chuck Dowling. I attacked what he said, I attacked his statement, not him. He claims that the statement is out of context, and yet I provide the context of the original photo.net thread by my paragraph under his quote.
I am concerned, however, about the response of the LiveJournal Abuse team. My original LiveJournal post is, as someone put it, tame in comparison to what goes on there, and yet there are no squads of abuse teams banning those users. How has LJ Abuse staff decided that my case is different? Have I actually violated any of their Terms of Service?
Edit/Update - August 25th 2004 - 9:15AM
The Livejournal Abuse team has responded and still claims a violation of privacy. I believe their decision is completely wrong. However, faced with the termination of my LiveJournal account, I have decided to comply with their request and change the name on the original post. I also have posted this blog entry on my personal domain in order to continue to exercise my right of Free Speech. I have simply removed LiveJournal from the equation.
Thank you for your continued support.
Edit/Update - August 25th 2004 - 11:45AM
Another update with regards to the claim of defamation by Chuck Dowling. dbaker, via a livejournal post wrote this explanation:
Defamation and libel only cover intentionally false statements that hurt a person’s or business’s reputation. Neither really have anything to do with just attacking a person. In order for it to be actually legal libel, you have to be able to prove that the other person was aware that the statements were false, which is usually extremely difficult (if not impossible) to prove.
Voicing my opinion about a statement made by Chuck Dowling is not libel and not defaming to him. It is my opinion and it is protected as free speech.
Edit/Update - August 26th 2004 - 3:00pm
The LiveJournal abuse team has decided to no longer address any issue surounding this case with me and are now actively ignoring any further requests for clarification:
We are now satistfied that this case has been handled appropriately, according to our policies. Further inquries of this nature will be closed without response.