High Cost for Free Speech

As I have said, a case like this is extremely draining — especially on an emotional level — and can create massive chilling effects on free speech.


Over the past few weeks there have been 2 court cases that have been decided about free speech in the age of new media.  H3H3 Productions won the lawsuit from last year for using clips from another YouTube content creator in their own videos that they used for criticism. And TechDirt’s had the case against them for defamation dismissed.

As a creator I am concerned about the lessons that will be taken away from these cases, and whether new creators realize how tenuous these decisions may be in regards to other situations. People have an incorrect idea that law is written in stone, and just like an equation once it is proven it will be held as an ultimate truth.  The reality is that the law is very fluid, changes based on the whims of politicians and regulators who only have a tangental understanding of the lives of most citizens, and can rest on almost idiotically specific minutia.  When dealing with the courts I argue that it’s like having someone do brain surgery with a baseball bat.  If all other options have been used up, and hope is lost, then why not have some bureaucrat try to beat the tumor out? Normally it would be a horrible idea, but there’s a certain point when you have nothing to lose.

The issue of Fair Use and H3H3 is particularly worrying as to how new creators will interpret it. Essentially H3H3 had a 12 minute video where they used 3 minutes of another creators content to mick the creator.  The argument was that the video was obviously criticism, and that the amount of work taken was low and did not have a negative impact on the financial success of the original work.  My concern is how many creators are very selectively listening to what was said. That some people feel that simply using only 3 minutes of other video in a 12 minute final creation was enough.  The issue is that even the US Copyright office warns that Fair Use is a case by case decision. Simply because H3H3 won this legal battle does not mean the next creator in a similar, but not identical circumstance would prevail.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.


In the TechDirt case the argument was about defamation of someone who claimed to invent email. To be clear wherever TechDirt lies legally they definitely were not being “nice” in posts titled such things as:

  • Why Is Huffington Post Running A Multi-Part Series To Promote The Lies Of A Guy Who Pretended To Invent Email?
  • Guy Who Pretends He Invented Email Whines At Every Journalist For Writing Obit Of Guy Who Actually Helped Create Email

Find more here: https://www.techdirt.com/search-g.php?q=invent+email

Per the court filing the defamation case was about the charge of being called a “liar” and “fake” which gets a bit convoluted once you look into the full story. What can be overlooked in this case is that it’s not simply about debating facts, but rather when does a post go from protected speech to slander?

Defendants posted a series of 14 articles disagreeing with Ayyadurai’s claim, stating, among other things, that he is “a liar,” that his claim is “fake,” and that he has made several misrepresentations in support of his claim.
Ayyadurai then brought this action, asserting claims for libel, intentional interference
with prospective economic advantage, and intentional infliction of emotional distress.


This is the point in the story where the n00bs start laughing at me and my concern since both of these cases were dismissed and the “right” parties prevailed. I obviously don’t know anything about free speech and my degree in Criminal Justice was a waste of time. But… BUT… what I want you to think about here is the real cost, and whether this is the route you find wise to go down.  As said before these 2 cases do not write anything into stone which means darn near identical cases could be fought on basically the same issues within weeks.  There is no way to fully guess where the next cases will end up, and in order to fight these cases it costs a tremendous amount of money, and time that could be better spent.  H3H3 apparently spent $50,000 approx. half way through their case.  They “won” at a punitive cost.

New Media is currently in a phase where creators are trying to create the most melodramatic content possible generally based on the actions of others.  We live in the Age of Commentary where people are making their livings by trying to rip other people down. The concept of Free Speech and Fair Use is being pushed to the edge by many people who have possibly not thought everything through, and then these actions are copied by others.  You have people who have never briefed a case, who have never gone line by line through a contract, who have never researched law playing by their own rules on the assumption that all they have to do is win the argument with their followers.  This is a dangerous game…

At this moment Sargon of Akkad who is a UK national is being sued in New York based off of copyright infringement.  (https://morrisonlee.com/wp-content/uploads/2017/08/Akilah-Sargon-Complaint.pdf) How will that end?  Where are jurisdictional boundaries on the Internet?  When do the truly nasty lawsuits start where “winning” the case is not the objective rather it is grinding the creator into oblivion?

When I started EverymanIT.com years ago I spent weeks researching Fair Use. I realized the implications of using others content in my own creation and that what I thought was perfectly legitimate may not be seen that way by others.  My decision was to stay a mile away from the edge of legitimacy.  I think of the law as the edge of the Grand Canyon.  I see myself in business stumbling through a dark foggy night as I try to get to where I’m going.  In that dark fog it is near impossible to know exactly where I am, and the moment my foot goes over the edge of the Canyon I am dead.  So I stay a mile from the edge.  Sometimes I’ll be a bit closer, sometimes further away, but if I gave myself a mile to be safe.  I would have you think about this if you decide to become a creator.

Do you really want to base your work off of demeaning others?  Do you really want your paycheck based off of someone else’s intellectual property? Is this not only the world that you want to create, but a world you feel safe living in?

You’ll notice on Failed Normal I use the photographs I have taken as the featured images.  Where possible I link to embeds of original work, and I only copy the exact amount I need to prove a point.

Even when I’m being “mean” I keep it in the family.  I don’t troll Reddit to find idiots to mock, I only mock the folks that contact me directly.  You’ll notice I ravage PR morons, but have you ever seen me call out a PR moron by name? If you go back and see me at my most savage you’ll notice that the people or companies I’m tearing down CAME TO ME! (Generally saying how much they love my work…). This keeps everything rather secure.

I say opinions about others, generally not statements. With a large library of content it’s hard to argue that you are surprised with my actions if I tear down a stupid person that comes to me.  And generally I focus on idea/ products/ actions rather than people. My goal is not about winning in court.  My goal is to not present a valid enough target that a lawyer would touch a case against me.

I feel that many are taking the lazy way out of creation, and then trying to use Free Speech as a shield for their rather questionable actions. At the end of the day they may win, but they may also be hammered. The Sargon case opens up a frightening new reality that many creators haven’t begun to fathom.  There was a court case ears ago I believe in Alabama that revolved around local pornography laws.  The servers were in California, but it was argued that the business was actually conducted at the location of the web browser.  So the website was sued in Alabama because that is where the porn was viewed.  For YouTube and other platforms on an international level this reasoning could be catastrophic.  Imagining uploading to YouTube and then having France, or Turkey, or Thailand bring charges against you.  Some year in the future you go on a holiday for some warmth and sun and end up spending the next decade in jail for an offense you barely remember.

Freedom should be fought for, but just make sure you know what fight you’re getting into and whether you really think its worth it. The difference between using the word “moron”, and “liar” may be the difference between a new house or another decade in an efficiency apartment. The distance between talking about a piece of content vs. copying chunks of it in your work may be the distance between counting your pennies vs. taking a vacation in South Beach.

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