A formal response to the Whirled

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The following letter from my attorney is en route to the Tulsa World tonight, in response to their allegations of copyright infringement and threat of legal action against BatesLine. I am represented by Ronald D. Coleman, general counsel of the Media Bloggers Association. Many thanks to Bob Cox of the National Debate (and a founder of the Media Bloggers Association) for contacting me about the organization, and many thanks to Ron Coleman for working with me. If you are a blogger engaged in coverage or criticism of the media, you should join the Media Bloggers Association.

Here is the text -- a PDF of the letter is linked below.

February 17, 2005

BY OVERNIGHT

Mr. John R. Bair
Vice President
Tulsa World
315 South Boulder
P.O. Box 74103-3423
Tulsa, OK 74102-1770
RE: Batesline.com

Dear Mr. Bair:

I am general counsel of the Media Bloggers Association (www.mediabloggers.org) and write on behalf of Mr. Michael Bates, in connection with your letter of February 11, 2005.

The World's complaint appears to be twofold. Let us dispose of the first issue quickly -- the claim that Mr. Bates's website "has inappropriately linked . . . to Tulsa World content." Why a newspaper with a website would want to prevent Internet users from gaining access to that website, regardless of the referral source, is a question best left to the World Publishing Company's board of directors. But while Mr. Bates's links may be "inappropriate" in the view of your newspaper, Mr. Bair, there is no legal basis whatsoever on which the World may prevent it.

Regarding the World's claim that Mr. Bates is reproducing copyrighted material in whole or in part in violation of the Copyright Act, this accusation must be rejected as well. Not only does the First Amendment protect Mr. Bates's activities, but the Copyright Act itself includes a "fair use" exception, granting parties the ability to use copyrighted material without permission from the owner for purposes of commenting or criticism. Mr. Bates's use of excerpted material from the World is obviously fair use and constitutionally protected speech.

Your organization's attempt to intimidate a small media competitor and a critic with the threat of legal action over his free speech is ironic, but it is unfortunately not unique. The Media Bloggers Association Legal Defense Project was formed expressly for the purpose of providing legal advice and counsel, and if necessary to assist in securing local counsel, for webloggers and others whose freedom of expression is threatened by established institutions who act as if the purpose of the First Amendment were to protect a sort of media monopoly. It is not.

We write therefore to advise the World that Mr. Bates is represented by counsel and by the Association, and that any further attempts to silence him, including the filing of meritless litigation as threatened by your letter, will be vigorously defended, including to the extent appropriate by the seeking of sanctions under Federal Rule of Civil Procedure 11 in connection with the filing of meritless litigation claims.

Very truly yours,

Ronald D. Coleman

You'll find a PDF of the letter here.

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23 Comments

Man, that rocks. I'll bet the newspaper never imagined that you would fight back, and with legal representation. Ronald Coleman deserves a kudo for helping out.

Shawn said:

I hope you realize that the entire blogosphere (most of it anyway) is with you. I'm glad to see you have secured legal counsel and that the World will not be able to continue trying to bully you...unless they are complete idiots (beyond what they have shown, that is). Keep up the fight. When the World backs down I'm sure the news will be blogged by a multitude of us. Maybe we'll even start providing hyperlinks to the World's site just to rub their nose in it ;)

Richard said:

Constitutional rights... use 'em or lose 'em. Regarding the Tulsa World... I say screw those losers. I'm hitting your tip jar right now.

Dave said:

Itís a bummer that you had to go through all of this, but there is a bright point to your situation, it's getting the word out to people like me; letting me know what my rights are and helping me to set my own boundaries in the posts I write (I now feel like I have more room to work with).

Here's to you for fighting the good fight so others like me will know our rights!

I'd drink a toast in your honor, but it's too damn early, so I'll salute you with an espresso shot and say thank you!

Pogo said:

It is passing strange that the left-leaning blogs and ACLU aren't all over this, given their complaints about the suppression of free speech since Bush became President. Maybe that only applies to Hollywood types, though.

If this had been the WSJ suing Oliver Willis, you can bet the screams would be loud enough to break glass.

Paul said:

Is that what they call a smack-down?

Beto Ochoa said:
It is passing strange that the left-leaning blogs and ACLU aren't all over this, given their complaints about the suppression of free speech since Bush became President.
They save that enthusiasim for those who call conservative blacks "House Negros", terror victims "Little Eichmanns" and NAMBLA. The North American Man/Boy Love Association
SWLiP said:

It's good that Mr. Coleman reminded the World of Rule 11, in case they needed reminding.

Lord Whorfin said:

Rule 11- is that anything like "Catch 22"??

Just Some Guy said:

I don't think the newspaper has a valid claim here, and I'm glad that someone has stepped up to represent you in this case. I'd have to disagree that the letter represented a "smack down." It was a pretty common letter informing the potential plaintiff that the potential defendant was represented by counsel.

Aside from that, in my humble opinion, the bluster, especially citing Rule 11, was pointless and probably counter-productive. Sanctions are darn near impossible to get, and bringing up Rule 11 is pretty insulting to opposing counsel. Citing Rule 11 says, "You, Mr. Bad Lawyer, have advised your client that he has a very good case and will win, but not only are you wrong in your professional judgment, your advice borders on insane and your client may even have a malpractice claim against you because no competent attorney would have filed that claim." Hence, I generally try to avoid Rule 11 unless opposing counsel is a complete tool who is eggregiously abusing the system and I realize I'm not going to get anywhere with him.

That said, assuming you thought the claim was so far beyond the pale that a judge would agree it didn't pass the laugh test, YOU DON'T TELL SOMEONE THAT YOU HAVE RULE 11 SANCTIONS IN MIND BEFORE YOU FILE THEM! No lawyer worth his salt is going to be intitimidated by laughable threats, and it just gives them a heads-up and an opportunity to cover themselves by fortifying the complaint or motions.

Given the facts and the newspaper's apparent business model and legal strategy, if I were their counsel, I'd make a note that the blogger was represented by counsel and go ahead and file my complaint. Not that I wouldn't advise my client that it wasn't a stupid claim...

Beto Ochoa said:

Rule 11 applies to clients who instigate the improper action as well. Considering Mr. Coleman is not an attorney in Oklahoma and studied on its rules applying to frivolous suits, he was right to point out the relief available to his client he was sure about. Rule 11 has a very light trigger now and in this case, were the World to pursue action on the arguments presented its threatening correspondence, would definitely be an option for Mr. Bates relief.
One other consideration is whether there was a conspiricy to damage Mr. Bates, if so RICO applies.

Andy said:

Oh, this is too sweet. :)

DANEgerus said:

I'll lay off lawyer-jokes for a week in solidarity.

Robert Cox said:

Actually, the "left" has been heard from on this matter in that The Media Bloggers Association has members from all stripes who support the effort of the MBA to protect ALL bloggers from meritless threats such as those emanating from the World. The MBA happens to have Oliver Willis as a member.

This is not about left or right but right or wrong. The effort by any company, organization or government to silence those who lawfully publish bloggers is wrong the MBA will do what it can to prevent that.

R. G. Newbury said:

I'm glad you retained expert counsel.
You did however miss one opportunity to really get the Whirl'ies choking on their coffee.
You should responded *first* with a short letter saying: "Sirs. Fuck yourself. Strong letter follows from my lawyer."

As I understand it penalties under Fed Rule 11 are difficult to get awarded. If the Whirl'ies do go ahead however the complete lack of basis for a sustainable claim may mean that the Rule applies. Good luck,

I'm a lawyer in Ontario and let me tell you that thecosts regime which *requires* the loser (of the motion, or the action) pay costs really tends to keep things under control. Costs are awarded and payable forthwith in the case of motions.. That means, if the plaintiff moves for relief to which he is not entitled and loses the motion, and does not pay the costs, he can be stayed from proceeding with the action: stop, do not pass go.

And the costs can be substantial.

Geoff

Micah said:

Thats great! I have been telling anyone I can about this story. Even talking about it on my small corner of weber-net.

I am looking forward to when the "Whirled" backs off their claims. Hopefully soon. You dont deserve this. But, Jesus never said the road of truth would be smooth...

Pogo: (Seems funny typing that, fan of Walt Kelly's work that I am.) My situation has received attention from left-leaning bloggers like Atrios, Matthew Yglesias, and Kevin Drum, and plenty of other folks whose entries start with words like, "I don't agree with Michael Bates on anything, but I support him in this fight." I think bloggers of all stripes realize what is at stake here, and I've been gratified by the support from across the political spectrum. And I can't thank Bob Cox, Ron Coleman, and Media Bloggers Association enough for being there for me.

Actually, I thought the letter quite competent. And an amusing contrast to the silly letter Tulsa World wrote Bates. The Rule 11 reference is not quite as over the top as some here believe in the case of SLAPP ( an acronym for actions like Worlds' - Strategic Lawsuits Against Public Participation ).

Nice work Mr. Coleman.

Thanks, Robin, and all the other people who said kind things about our letter. I am writing in my blogger identity now, and not on behalf of Mike!

Speaking generally, then: It is true that Rule 11 sanctions are rarely granted. But neither are they lightly sought. And, in my practice, they are very rarely threatened.

Incidentally, there is no state court jurisdiction over copyright matters (unlike, say, trademarks, which permits private actions in state or federal court) -- so, indeed, only the Federal Rules would apply.

puredata said:

Hey lets all link to the Tulsa World!!!!

www.tulsaworld.com

UML Guy said:

Regardless of whether a Rule 11 claim is likely to succeed or not, I think mentioning it has a value in this case.

Sometimes, in some situations, someone with deep pockets may take an attitude of "I can't win, but I don't have to. My deep pockets will let my lawyers tie things up until his shallow pockets run dry. He'll have to give up, and we'll have to win by default. We don't have much to lose."

But then their attitude goes even further: they know that the little guy knows this value equation as well. So they figure they can bully him on the cheap: for the cost of a simple letter, they can make him see the value equation, and surrender without a fight.

Mr. Coleman's letter changed that equation. First, it said, "I'm being paid by an association. They have deeper pockets than Mr. Bates does." And the Rule 11 mention says, "And if you think you have nothing to lose, think again. We expect to win your suit handily, and then see if we can make you pay for the attempt."

In essence, it says, "I call your bet, and raise. You still wanna bet?" Given the weak hand the World has, that should give them pause.

/pd said:

This is a kewl opening move !!

Now its time to wait for rebuttal /reply from World. !! What happens if they do no reply and sit on it and then pull up their "old" letter and once again (after lets say 3 months) and action it in courts ?? Can this be done ??

Jason Smith said:

Is life that doggone slow in Tulsa that the newspapers have to pick on, as MSM puts it, "guys in their living rooms wearing pajamas"???

VIVA LA PAJAMA REVOLUCION!!

About this Entry

This page contains a single entry by Michael Bates published on February 17, 2005 9:22 PM.

Whirled guilty of tortious interference? was the previous entry in this blog.

"I'd be hiring him" is the next entry in this blog.

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