On Monday, I posted a clip of Rob McKenna from a short video I downloaded from the Washington Association of Realtors’ (WAR) website. It was by any measure of the term, “fair use,” as I couldn’t very well comment on McKenna’s statement for political purposes, without illustrating my commentary with a piece of the video itself. Still, that didn’t stop the chickenshits at WAR from seeking to violate my First Amendment rights by having YouTube pull down my clip.
Why do they hate America?
Of course, in response, I just uploaded the clip to another service, and updated my post accordingly. In fact, I’ve uploaded the clip to multiple services, and I’m ready to plug in their embed codes one after another as long as WAR is willing to play these games. Indeed, I’ve got an infinite number of email accounts at my disposal, and could create an infinite number of YouTube accounts if that’s what it takes to wear the other guys out. And finally, I’ve got all the tools at my disposal to host the video myself, with only a modest extra monthly cost to up my alloted bandwidth.
So I’ll tell you what… if you folks at WAR really believe that I’ve violated your copyright, and you’re not just playing lazy legal games attempting to prevent a broader audience from hearing McKenna’s lies and blatant suckupery… then I suggest you sue me. That’s right… prove your case in court, and sue me for everything I’ve got. I’ve only got one significant asset, the equity in my home, so go ahead and try to take that away from me in defense of your handful of crooked members who specialize in doing exactly that. You gotta at least love the irony.
Because if you don’t sue me—and win—I’m gonna continue to post constitutionally protected political commentary using video clips from your website. You know, like this one:
The cunts at WAR are like all republicans – they don’t have the nutsack to back up their words. Fuck em. Way to go Goldy. Show these republican skanks for what they are.
For your lawsuit: 17 U.S.C. Section 107 reads: “Notwithstanding the provisions of [the copyright law] the fair use of a copyrighted work . . . for purposes such as criticism, comment, [or] news reporting . . . is not an infringement of copyright.”
The problem with “fair use” is that it’s a defense, which means it comes into play only after you’ve been sued — and no one really knows whether a particular usage is “fair” or not until the issue has been litigated. Conversely, the material you’re copying is copyrighted, so you’re a prima facie infringer, which puts you on the defensive from the get-go. It’s clear you’ve made unauthorized use of copyright material; and whether you had a right to do so is debatable not to mention subject to second-guessing by hostile lawyers and an irritable judge who may be in a bad mood the day your case is heard. This tends to diminish somewhat the practical value of the right conferred by the statute, because most people will get financially whomped merely by being sued, regardless of whether they “win” or lose.
Offsetting this is the aggrieved party’s expense of suing you. Don’t doubt for a moment this expense is a major deterrent to such suits. But the best deterrent of all is being judgment proof — i.e., being in a position to engage in lawless behavior because you own nothing and we don’t have debtor’s prisons in this country! That most assuredly limits the options of any parties you may have wronged — it pretty much reduces them to seeking revenge by extralegal means outside the judicial system. If they sue you in one court, you’ll pop up in another place and infringe them over there, and so on, and all they’ll ever accomplish by going after you in the courts is to spend themselves into bankruptcy and enrich my lawyer friends. Not that I’m opposed to that — I have nothing against hardworking trial lawyers making a buck or three off stupid clients willing to destroy themselves tilting at windmills! But if you’re fortunate enough to be judgment-proof, there’s not much they can do to exact satisfaction from you except beat you up or kill you, or key your car.
By the way, what’s Washington’s homestead exemption up to now?
I seem to recall that someone asserting a baseless claim of copyright violation, for the purpose of restricting someone else’s rights, is also subject to counter-suit and damages, including attorney’s fees. I haven’t looked it up myself, Roger Rabbit and Richard Pope are free to chime in if they agree.
Gee, those depositions might be kind of fun. If you can prove malicious intent on the part of the realters, it might multiply your damages. So that gives you a right to question them about everybody they spoke with, every e-mail, text message, etc. regarding their decision to have You-Tube pull down the link. It would be interesting if those instructions came from the local Republican Party, which would make then an accessory.
LOL. Great crawler on the video, I’m sure those were her thoughts exactly! More power to you, Goldy.
RR @ 3: Just a quick look, but RCW 6.13.030 seems to set the homestead allowance figure at $125,000 for real estate & improvements. Quite a bit better than it used to be, I remember when it was just $25,000.
There’s a silver lining in every cloud, and the bright side of poverty is that you can do whatever you want and nobody can do anything about it. Lawsuits only work against people with money.
What the assholes busily expropriating the middle class don’t realize is that after we’ve all become judgment proof we’ll be in a position to fuck with them a lot worse than we do now.
@6 That should be enough to cover Goldy’s equity. Any house he can afford to live in probably didn’t cost more than 125k when he bought it.
@4 I don’t know off the top of my head; but as a general proposition, a deep-pocketed plaintiff suing a judgment-proof defendent under circumstances which might expose the plaintiff to countersuit is red meat to hyena lawyers like my carnivorous friends of the trial bar. I would want to be the defendant’s lawyer in that scenario.
Wow. Hammer down.
To the ByeByeGOP anatomy-confused poet:
Check your facts dinkus. The “Republican” realtors have given more money to Gregoire than Rossi. I guess Gregoire is a closet R?
RR @ 8: Well, here’s how it’s done, based upon my understanding.
The court is supposed to hold a hearing to determine the value of the house and any underying encumbrences (mortgages, liens, etc.), and to determine if the judgement creditor has exhausted all his other remedies to satisfy the judgement (wage & bank garnishments, executions upon personal property, etc.). (This process was added because of an attorney up in South Snohomish County in the late 1970’s and early 1980’s who got gready & seized a few grandmother’s houses for very small judgements without giving them notice).
In the hearing, the court estimates the total value of the property (expert witnesses required), deducts the costs of sale (about 10%), deducts the amount of all mortgages & liens, then deducts the $125,000 homestead exemption. If there is still a positive number after those calculations, and it is enough to make it worth the effort, a writ of execution can be ordered for the sheriff to seize and sell the property, keeping the net but paying the homestead allowance to the judgement debtor and satisfying any mortgages or liens.
But unless things have changed over the past fifteen years since I learned the process, a judgement debtor has a right of redemption up to a year after the sale, so usually the judgement creditor is the only bidder at the auction. He’s stuck with property he can’t pass clear title to for up to a year. So it isn’t a quick way to get rich – despite what you might hear from the “buy distressed properties” adds you hear on late-night TV.
Nice to see you fighting for Fair Use. /cheer quick questions:
1. Did you get a copy of the takedown letter? would love to see it posted or up on http://chillingeffects.org/ it is a project of EFF and a few law schools to track these kind of abuses
While we’re on the subject of the Realtors, I wonder when the PDC will finally issue their report of investigation of the complaint filed pertaining to the Realtors’ involvement in the Bellingham elections. The PDC was all set to rule on the complaint a few months ago, and then pulled it at literally the last minute, offering no explanation as I recall. Maybe they are finding the reporting problems go beyond just the Realtors and extend to some of their vendors as well.
A lot of money changes hands with very little oversight of how the money is actually being spent, especially with so-called “independent” expenditures and in-kind contributions.
@11 the realtors support Rossi – you can lie about it if you want to but you can’t change it. Just like you and Monkeyface Bush are in the terrorists’ camp.
Goldy said:
“…I’ve only got one significant asset, the equity in my home,…”
Godly, don’t you have any retirement assets put aside, like an IRA or 401k/403b from a previous job? Social Security ain’t gonna cut it as far as providing any sort of decent retirement. Man, you need to get something going, or you’re gonna be working the rest of your life.
Rock on Goldy!!!
rhp @12,
Of course, even if successful, what kind of monetary award could the Realtors ever get? I took a short clip from a video they posted to their website. Do they want the few bucks in advertising I earned that day? What commercial value did I cost them?
They might get a lower court to order me to remove the clip, but they’ll have a helluva time proving monetary damages, and they won’t get attorneys fees because fair use in this situation is a reasonable defense.
Goldy;
I don’t have any expertise in copyright law, you might want to talk to someone who does. But my understanding of the digital copyright act is that it didn’t require the plaintiff to prove actual damages or any monetary benefit to the usurper. It’s kind of like a defamation lawsuit – it’s how the “victim” “feels” that they are damaged that’s relevent.
But I think RR’s on the right track – keeping yourself judgement-proof is a pretty good way to go, in your business. You can never have too much money to protect you from being sued, whereas the opposite IS true. Remember the wisdom of Chris Kristopherson: “Freedom is just another word, for nothing left to lose” (lyrics from “Me and Bobby McGee”, made famous when sung by Janis Joplin).
Of course, it’s the people in the middle who are really screwed – the ones who have a bit too much to be judgement-proof, but not enough to hire an attorney to defend them.
Remember also that retirement accounts have a pretty generous exemption from execution in this state. You might want to talk to a financial planner on this one – get a good one who knows the law, not someone who’s just out to sell products.
Actually the DMCA only applies to taking stuff down. To get damages – people need to sue under Title 17. Fair use is a recognized defense. Not a chance in my mind this case would go anywhere or accomplish anything more than getting Goldy some great free publicity.
Personally, I can’t see any serious person bringing suit arguing that publication of my own words, recorded by them and uttered in public for the purpose of being heard by others, were so harmfull to me that I should recover damages. It would be just too embarrassing to make such a claim.
@9: Yep. If they sue a countersuit would be boadacious.
@21: That doesn’t stop big corporations from threatening “copyright infringement” actions at the drop of a hat. There’s lots of literature on that.
They are shameless, and shareholders are the worse off for it.
@16 “Social Security ain’t gonna cut it as far as providing any sort of decent retirement.”
That’s true, but there are damn few Americans — even among those with pensions — who will be able to get along without Social Security, and too damn many who won’t have anything else — thanks to the corporate greed that is steadily cutting wages and eliminating pensions.
And everyone in America knows which party hates Social Security and will damage it any way they can and do away with it if they get the chance.
@24 was posted by Roger Rabbit, not his cranky spouse.
How about that 1% LIMIT on property taxes Gregoire’s advertising.
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA
Now that is really really fun to watch her spew this one….I doubt if that ad will stick when people get their assessments this year…
@23 Capitalism and big corporations, left to their own devices, devour themselves. They will rape the land until it doesn’t produce anything anymore; they will rape consumers until they don’t buy anything anymore; they will rape workers until they have nothing left to lose by walking out and shutting their employers down; and when they have pillaged and raped everyone and everything, they will discover they have destroyed themselves.
@26 Given the average education level in this state, your chances of getting a majority of voters to buy Dino’s claims that he can cut taxes and build more roads at the same time aren’t very good. Most people aren’t as idiotic as you are. They realize you can’t get more of something by paying less for it.
Goldy:
Maybe you should call Senator Stevens and ask his opinion on this one.
Goldy, wasn’t there a movie in the 60’s or early 70’s called “Mc Kenna’s Gold”?
Goldy sez:
Still, that didn’t stop the chickenshits at WAR from seeking to violate my First Amendment rights by having YouTube pull down my clip.
Actually, YouTube is run by a private company. The First Amendment rights belong to YouTube, not to Goldy. YouTube has the First Amendment right NOT to run any given video, for whatever reason its management and employees choose. It makes no difference whether YouTube chooses to censor political views that it disagrees with, or whether YouTube has an irrational editing policy that incorrectly assumes copyright violations.
The WAR is certainly violating the SPIRIT of the First Amendment. But the actual First Amendment rights belong to the publisher — which is a private company for the YouTube website, and Goldy in the case of the HorsesAss website.
RR @ 28: Hence we see the reason why the Republican neo-cons hate to pay for a quality public education system, and insist that the only proper education is one where they can control the curriculum (i.e., private acadamy, home-school, or church based).
Roger @ 24 & 25,
The point is that Goldy is the one that’s in trouble (unless he’s independently wealthy, has rich parents in ill health, or he’s already set a bunch of bucks away for retirement). You’re attacking the Republicans and others who’d like to see more choice with how their paycheck withholding is handled when you should be encouraging everyone to save, save, save for retirement!
Get a grip, rabbit!
What’s more important: your political views or financial security for everyone?
Goldy, the only thing you fail to mention is that your take on that original piece was 100% wrong. I didn’t see you ever go back to support your position in that thread.
That said, I don’t see why WR (their new initials) would care about you linking it.