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Last summer, at just this time, my freedom to blog ended.

I lay next to my husband in bed one afternoon and said to him:

I’m going to stop. I’m going to shut the whole thing down and not write another word. This firm that has sued me – Righthaven – they could sue me again, for something else I’ve excerpted from a newspaper. Any other firm with the Righthaven business model could also sue me. Righthaven is seeking damages of hundreds of thousands of dollars from us. They’re going to take my domain name. All because I excerpted part of a newspaper article. I named and linked back to the source of that excerpt, the way millions of bloggers do every day. I got no commercial benefit from it, because my blog has no advertising. But a man just came to our door and served me with legal papers that say that if I lose this copyright infringement case they’ve filed against me we will be ruined. I don’t have any choice. I have to shut down University Diaries.

My husband looked at me and said

No you don’t. No you won’t. Do some research. Find out about Righthaven. What they’re doing sounds completely nuts. We’re talking about a total – and seemingly unfounded – threat to your freedom to express yourself. Calm down. Keep a cool head. Call a lawyer who knows something about this.

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Now that the Righthaven enterprise is collapsing – now that they’re losing all of their cases (I turned out to be one of hundreds of American bloggers carpet-bombed by Righthaven), now that their legal staff is abandoning them (The Righthaven lawyer who sued me has expressed regrets about having worked for Righthaven. If I were facing the possibility of lawsuits and sanctions because of my association with Righthaven, I’d say the same thing. Yet in our phone chats, this person was thrilled with his job. Quite the eager beaver.), now that numerous judges have said that Righthaven never had standing to sue in the first place, I can look back on this experience and see that it was a lesson, a hard lesson, for UD, in American freedom, and in the rule of law that sustains American freedom.

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It was also a lesson in trust. Having decided to settle with Righthaven rather than pay who knows how much and suffer how much protracted misery to defend myself, I could have become cynical about a legal system that can prey on people like me and chill their speech.

Instead, I’ve watched one judge after another express rage against Righthaven for what it’s done. I’ve watched public interest outfits like the Electronic Frontier Foundation take on pro bono cases for Righthaven targets and win them big. I’ve watched legal and free speech groups all over the country respond aggressively and successfully to this threat.

*********************************

Back to last summer. I talked to a lawyer – a wonderful man who told me exactly how to get Righthaven out of my life right away, which is all I wanted.

Throw money at them. They only want money. They have zero interest in going to court. Tell them you’ll give them this much (He named an amount.) and they’ll take it. Or they’ll ask for a little more…. But are you sure you don’t want to litigate? We’re eager to defend you. We’re eager to shut Righthaven down. You will without question win the case.

What would it entail?

Well, first we’d have to depose you… How much experience have you had of the law?

None. I’m a legal virgin… And I’d like to stay that way. I think I’ll settle.

Okay. Send them an email. Remember to say (He told me exactly how to word it.). And if you have any questions or concerns at all as this moves forward, I want you to call me.

What do I owe you?

Nothing.

***********************************

A day later I’m at a doctor’s appointment and my cell phone rings and it’s eager beaver. We begin negotiating. I say to my doctor

I know how obnoxious it is for someone to interrupt what’s going on and talk on their cell phone. I’d never think of doing this ordinarily; but I’ve simply got to get through this conversation now.

He nodded and said he’d be back in a few minutes.

And that was it. The rest was signing and faxing and scanning, end of story.

***********************************

Of course they’d frightened me right down to the ground. Of course I was very angry. But I had the money to make Righthaven go away very fast. Many of its other targets don’t, and it’s been painful to follow their stories.

Like me, most of these people write non-commercial blogs with an interest in – as UD‘s tagline goes – changing things in American political and social life. Many are retirees, veterans, disabled people. For months now, their lives have been nightmarish, filled with fear that they will lose everything they own because they quoted a few lines from a newspaper story.

That’s pretty much over now. Although things are still ugly, and Righthaven, cornered, continues to snarl, it’s gradually being put down. Beset by people fighting back and draining the firm’s resources, and, again, currently facing sanction, Righthaven seems to have stopped filing new cases. Already filed cases are being dismissed en masse.

Yet a lot of damage has been done, and that’s damage that you don’t ever really undo, even if you compensate people.

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The upside (UD, a ridiculously obstinate optimist, always looks on the bright side) of this experience, viewed now from the distance of a year and from the knowledge of Righthaven’s likely collapse, is pretty obvious. This Fourth of July, none of it is abstract. None of it is patriotic bromides. I’ve had my run-in with unfreedom, and I’ve watched the institutions of my country take firm action against unfreedom.

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UPDATE.

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Another update.

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18 Responses to “UD’s July Fourth Post”

  1. Clarissa Says:

    You were one of the people targeted by the jerks at Righthaven? How horrible!

    I, for one, am extremely happy that you didn’t shut down this blog. I’m learning so much from it about the academic world to which I belong. The work you do to get all the information together and update it so often is really impressive.

    I hope these scammers will go down with a crash very very soon. I also hope that all the other scammers out there are following Righthaven’s case with attention.

    Thank you for a great blog!!

  2. Margaret Soltan Says:

    Clarissa: Your words mean a lot to me. Thank you so much!

  3. Robert Mathiesen Says:

    I want to echo what Clarissa said — loud and clear. You bring greatly needed clarity to our national discourse on the clouded future of academia. I can’t think of any other blogger who contributes as much and who articulates my own concerns so well. Being retired, I am out of the trenches now; but I still care very much about the war’s outcome.

    Also, Righthaven’s business model could eventually have been applied to all scholarly writing. That would pretty much have shut down scholarship in the humanities altogether.

    Thank you so much for finding the courage to fight this battle.

  4. adam Says:

    Do you have standing – or stamina – to sue them now?

  5. david foster Says:

    Glad you didn’t shut down the blog. Thanks to both you and your husband for your courage.

  6. Margaret Soltan Says:

    Thank you, adam, Robert, and david.

    As to adam’s question: It’s certainly a subject of a lot of chatter on the blogs that have been following this story. Here’s what I think, based on what I’ve read.

    A class action suit in which those who’ve settled argue that they settled under false pretenses, etc., would be very iffy indeed. There’s language in the settlements about how we can’t reopen these cases. But there are observers – legal observers – who suggest that a winning argument might be made that such language is invalidated by revelations about Righthaven’s standing to sue in the first place. In short, it might be successfully argued that since we settled under deceptive conditions, we can be compensated.

    I don’t think this is very likely to succeed, however.

    And yes – there’s also the stamina question. The sleaze factor here is high, believe me, and will certainly go higher if Righthaven is challenged in this way. Feh.

  7. Bernard Carroll Says:

    Feh, indeed. It’s like trying to convince the professional societies that Nemeroff, Schatzberg and Keller should be sanctioned. They don’t want to hear about it.

  8. DM Says:

    Dear Margaret,

    Kudos for standing up for free speech.

    If I understand you well, your conclusion is that “the system works, after all”. I’m not so convinced.

    Not so long ago, you discussed the case of an American professor of law being sued for criminal libel in Paris by an Israeli author, for writing a negative review of one of her books. Even though the plaintiff lost her suit, with scathing comments from the court and having to pay $11000 to the defendant, you concluded that “France has to revisit its libel laws”.
    http://www.margaretsoltan.com/?p=29575

    Your reasoning, I suppose, is as follows: even though the plaintiff lost in the end, the problem is that she was allowed to waste the time and energy of the defendant for months, perhaps years (French courts being overburdened, they take years for non-urgent matters such as libel against private individuals), not to mention money for lawyers’ fees, which he may or may have totally recovered from the ruling. The defendant was a law professor and thus had the means and intellect to defend himself, but most people would have settled or retracted themselves.

    It seemed to me that the same reasoning could, and should, be applied against US laws on copyright and, more generally, US court procedures. Quite evidently, you are discussing the case of a private corporation threatening massive damages in order to extract piecemeal amounts of money from private individuals. Each individual faces a dilemma: either pay a reasonably small amount to just get away with the threat, or face proceedings, lawyers’ bills, and an uncertain outcome.

    Even though, as in the French case, “the system works” and in the end those mounting frivolous lawsuits lose them and even get punished, the after-taste is still unpleasant. Those who paid for staying out of trouble may never see their money again; some of them may have ceased to exerce their right to free speech by writing on a blog (a common advice to innocent people who get into trouble with, let’s say, online wrongdoers, is that they should simply shut up and stop writing online; an advice akin to telling women not to go out at night in order to avoid rape).

    It seems that the crux of the matter is the ability to threaten private individuals with enormous damages not proportionate to any harm done – a not entirely empty threat: such enormous damages have been awarded in certain copyright infringement cases involving private individuals on p2p networks.

    This is probably a problem that the US needs to fix.

    Furthermore, a last remark: even though the companies involved may be “punished”, those who in reality profited from their actions will not: their lawyers, their executives (at least, most of them), will have earned their fees and salaries.

  9. Margaret Soltan Says:

    DM: I agree entirely. The underlying problem is that you want a legal system in which it’s relatively easy to sue someone – the barriers shouldn’t be so high that ordinary people cannot bring suit, for instance – but you also want a legal system that can somehow “flag” lawsuit mills, vindictive greedy fools with no case, etc., etc., quickly enough to keep them from doing a good deal of damage before their ultimate takedown.

  10. Bill Gleason Says:

    Hmm…

    Since this IS University Diaries, I’ll bring up another little use of the legal system to beat people up with involving … a university.

    Suppose some poor faculty member, purely hypothetically, gets involved in a grievance matter with, well let’s say his unscrupulous department chair or maybe even the dean of his medical school. These folks have, shall we say, the benefit of advice from the office of the General Counsel.

    Well, you say, the faculty member could get a lawyer. Of course then the administrator can basically turn the matter into a quasi-legal proceeding where the administrator has a “free” lawyer and the faculty member is holding the bag on legal fees. Many faculty members may not be able to afford this.

    So the faculty member ends up having to be his own lawyer and we all know the injunction: a man who is his own lawyer has a fool for a client.

    And so it goes.

    [Some day when I retire, think I'll write a post about this.]

  11. dmf Says:

    thanx for ringing the liberty bell and letting those commie redcoats know that they can’t tread on we the people.

  12. Steve Stern Says:

    I suppose we were served about the same time and I understand as completely as possible how you feel. From my persective, having spent more than a couple of decades as a reporter for a major paper and now a flack, and arguably one of the best resources the Review-Journal had, I was appalled at the service, yet down the road settled. Considering the apparent financial condition of that newspaper (roughly 100,000 in home delivery and under 200,000 circulation, with little advertising), it’s fairly clear to me that Sherman Frederick, et al considered this to be a revenue stream. Obviously, it isn’t. More importantly, reporters I know from the three or four major newspapers in this country are remarkably perplexed. More that, I understand from a couple I know at the RJ that resources for stories have dried.

    Keep your blog going — I’d never seen it before and just put it on my RSS reader. If you ever want to communicate about the news business, feel free to be in touch.

  13. Quid plura? | “I stand for motherhood, America, and a hot lunch for orphans…” Says:

    [...] At University Diaries, Margaret Soltan marked Independence Day by discussing her Righthaven lawsuit. [...]

  14. Margaret Soltan Says:

    dmf, Steve: Many, many thanks.

  15. Pennywhistle Says:

    This story of yours is horrifying in several ways. Firstly, the fact that you were all served in what was clearly a suit with no merit, doesn’t say much for the legal system. Secondly, that you were advised by legal experts to pay to stop your pain, proves extortion works. And thirdly, your stirring conclusion was the most horrific part: “I’ve watched the institutions of my country take firm action against unfreedom.”

    Unfortunately, the institutions are nothing to feel proud of. They are failing every day. In fact, the irony of your “piracy” and the status quo of non-enforcement against the big pirates broke my own silence, to make me begin my own blog: Sink Corporate Pirates.

    I would love that blog to be under some name that isn’t an obvious pseudonym, but that’s another problem these days that needs fixing. It’s used to stifle honest criticism.

  16. Pennywhistle Says:

    er, I meant to say that the law and institutions are used to stifle honest criticism. One example was reported just last month on TechDirt: here, where “This is a clear case of Newport Television abusing copyright law and the DMCA, in particular, to stifle and censor critical commentary.”

  17. Margaret Soltan Says:

    Hi Pennywhistle: Thanks for the comment. A couple of responses.

    Actually, I was advised not to settle. I was strongly advised, given the baseless nature of the suit, to fight it. It was entirely my call to pay what was an affordable sum (yes, to allow myself to be extorted) in order to stop having to have anything to do with the legal community.

    As for what my being served with a meritless suit says about the legal system: You need a legal system that allows suits to be brought without too much trouble; at the same time, the system has to have a way of making it difficult to bring meritless suits. The problem here involves the rapidly changing copyright laws – it’s a dynamic area, a gray area, and Righthaven has been trying (with some initial success; they are currently way up shit’s creek) to take advantage of that.

    Although I don’t much care if I get my money back, I think I probably will – when I decide which class action suit against Righthaven I want to join.

    The fact that you call my story “horrifying” suggests that you don’t have much perspective on the issue. There is nothing horrifying about my story, and if you’re just patient enough, Pennywhistle, I think you’ll find that it concludes in a satisfying way. I agree that my case is appalling for what it says about the slowness with which justice operates, and the stupidity with which some people believe they can beat systems. But patience is a virtue.

  18. University Diaries » When UD teaches Intro Amer Lit… Says:

    [...] More on Righthaven here. [...]

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