June 22, 2011 Leave a comment
At 9:30 AM today he tweeted; “I’ve been silenced! WordPress has disabled my ability to post on my blog, presumably upon a complaint from Access Ministries!”
This is related to his June 15th post Cowboys and Chinamen? in which Mike originally published parts of an ACCESS Ministries resource, Man Hunters and linked to a PDF he had uploaded to his blog containing the full text. The post describes a disturbingly anti-science theme to a story set in violent Victorian gold rush days with ample revenge, blood and shoot outs. Heading the post is an update – the reason for which I’ll get to immediately. Mike writes:
NOTE: As you may be aware, Access Ministries have threatened me with legal action over this blog post. I’ve made transcripts of the dialogue and removed all but one of the images. I believe what remains constitutes fair use of the text for the purposes of a critical review of the text.
This came about following circumstances outlined in ACCESS STRIKE BACK! posted by Mike on June 17th. Pop over to read the “Access Ministries, Infringement of copyright” letter from Nils Versemann, senior lawyer and trademark attorney for Moores Legal. We can spot what’s happened here. Mike’s response and intention is summarised in the quote above. It would seem this doesn’t satisfy “Our client’s requirement” as relayed by Nils Versemann. Namely:
Our client requires that by 5 pm on Saturday 18 June you:
- delete your 15 June blog post;
- delete the reproduction of our clients book from WordPress.com
- destroy any other infringing copies or our client’s book in your possession, including any infringing electronic copies.
Our client further requires that by 5pm on Wednesday 22 June you provide a written undertaking not to reproduce our client’s book in whole or part without our client’s prior written permission.
If you fail to comply with these requirements in full, our client reserves the right to take copyright infringement proceedings against you without further notice.
It was certainly a bold move on Mike’s part. On the other hand, there are requests from ACCESS that are simply unrealistic and bullyish. Namely to delete any electronic copies – a demand impossible to police without infringing on Mike’s rights. Furthermore insisting on “a written undertaking not to reproduce”, is arrogant and unnecessary. Particularly given the quality of legal help Victorian’s are funding for ACCESS. Copyright law is quite clear in protecting the owner.
Mike’s letter would no doubt be filed to use as a legal sledge hammer against any further examination of the material that ACCESS deem appropriate to fill young student’s heads with. I would query the legitimacy of such a request made outside of the context of obligations to parties in fulfilling contracts.
It is distressing to see taxpayer monies being used in this aggressive fashion. No doubt similar requests went to WordPress leading to an apparent suspension of Mike’s account. In proceeding with this action ACCESS have again sent a loud message to Victorians that they shall hold to their own script and defend it aggressively. If Man Hunter carries the theme of revenge, it appears it is mirrored in ACCESS’ defence of material. So, was this necessary or a ridiculous and vengeful overreaction by ACCESS?
A far more suitable way to deal with Mike’s ambitious reproduction would be to file a Digital Millennium Copyright Act – DMCA – infringement. Broadly speaking this consists of a Statutory Declaration pursuant to the relevant Act section, written by the copyright holder to the ISP – in this case WordPress, whose hosting servers are in the USA. ACCESS would claim exclusive ownership of material held at URL X, and claim in good faith that Mike’s use is not authorized, thus constituting an infringement of their copyright.
What follows is an immediate “DMCA Takedown” in which the material in question is removed pending confirmation. The complainant – ACCESS Ministries – must then provide proof of ownership within ten days to uphold the complaint. The Act itself is explicit in placing the burden of action upon the ISP. They themselves have no jurisdiction over the material once the claim is made.
To satisfy the ISP a brief letter from Moores Legal confirming copyright would suffice. Mike would be free to post material of his own. This is made more compelling – if not absurd – in that to get WordPress to react as they have, the DMCA must have almost certainly been invoked or consulted by either or both parties. The DMCA infringement notice and copyright confirmation could have been emailed together by ACCESS Ministries itself.
In short this could easily have remained an administrative issue on the part of ACCESS, with equally effective results. Indeed, very effective results. I’ve had genuine documents of mine removed by an anti-vaccination lobbyist as reported here.
Update [June 23]: Automattic is the company responsible for WordPress blogs. Their DMCA online submission form provides for the breach of ACCESS Ministries copyright, as outlined in the Moores Legal letter to Mike Stuchbery. Automatic request in part:
You must include the following:
- A physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
- An identification of the copyright claimed to have been infringed;
- A description of the nature and exact location of the content that you claim to infringe your copyright, in sufficient detail to permit Automattic to find and positively identify that content; for example we require a link to the specific blog post (not just the name of the blog) that contains the content and a description of which specific portion of the blog post – an image, a link, the text, etc – your complaint refers to;
- Your name, address, telephone number and email address; and
- A statement by you: (a) that you believe in good faith that the use of the content that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; (b) that all of the information contained in your Infringement Notice is accurate, and (c) under penalty of perjury, that you are either the copyright owner or a person authorized to act on their behalf.
Jonathon Bailey of Plagiarism Today has a comprehensive article on submission to WordPress.com – see Copyright Complaints. This confirms that the above page provides for a DMCA takedown.
Surely, this would have been a more suitable approach and a more worthy use of taxpayer funds. Such heavy handed tactics by ACCESS herald a most unfortunate precedent by a Christian ministry purporting to propagate Christian values. One can only struggle to imagine just how this particular caper would be relayed via cartoon.
There is simply no apparent legal need, beyond flexing financial muscle, served by involving Moores Legal.
Mike has already written about this issue on his other site, under the title Gagged!
His Twitter stream is here for those keen on developments.