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Tuesday, June 7, 2011

Vigilantes

Taking matters into your own hands can backfire, so don’t play the fool when enforcing your copyrights. In the Wild West world of the Internet, everything isn’t necessarily as cut-and-dried as it seems.


While failing to request log information may be an opportunity missed, sometimes the more prudent course of action involves taking no action at all. Indeed, if Arena did something ill-advised, it was venting his frustrations and anger in the open letter, which he then published for all the world to see. In the United States, most states recognize the concepts of defamation, libel and slander, and many consider accusing someone of engaging in criminal activity as defamation per se or libel per se—where liability for publishing the offensive statement creates a conclusive legal presumption of loss or damage, which may also entitle the person falsely accused to an award of punitive damages. In some jurisdictions, the person publishing libelous or defamatory statements may even face criminal, and not just civil, liability (in Florida, for example, certain instances of defamation and libel also may be punished as first-degree misdemeanors). Arena is fortunate that Hillsgrove—who was vilified by numerous people who read Arena's open letter—didn't take action. As Hillsgrove wrote in her response to Arena, "I think that people who said really nasty things to me and about me should know that it wasn't a walk in the park for me."

Above All, Maintain Objectivity
Even if there were no risks associated with creative approaches to remedying copyright infringement, and even if you possess sufficient technical knowledge to seek out and preserve the proof necessary to effectively enforce your rights, there's still an inherent danger in pursuing remedies for claims of infringement by yourself, namely the loss of objectivity.

As the English philosopher Francis Bacon aptly suggested some 400 years ago, "[t]he human understanding is like a false mirror, which, receiving rays irregularly, distorts and discolors the nature of things by mingling its own nature with it." Although it's not impossible to maintain objectivity when encountering an instance of infringement, it's far too easy for our emotions to color our objectivity in subtle ways that effectively preclude us from truly being objective. This is particularly true when we believe we've been wronged, and when the ethos of that violation, even on a subconscious level, triggers the panoply of emotions of wrongs committed against us in the past.

There's an old adage that the lawyer who represents himself has a fool for a client. The adage is equally applicable to nonlawyers. It's only by remaining objective, or by seeking the guidance of someone who can remain objective, that we can most effectively pursue claims of infringement and enforce our rights. Fail to maintain objectivity and to know what you can and can't do when seeking to enforce your rights, and you may end up playing the fool.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Fla., and a professional photographer who has covered sporting events for more than a quarter century. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


 

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