by Neil Godfrey
Today I received notice from WordPress that I was free to restore to public access my blog post in which I exposed Joel Watts as an incompetent scholar and lazy fool with respect to his efforts to argue against mythicists and even against the generally accepted nature of history itself as understood among historians. He did not contest my counter-claim to the original takedown notice within the 14 days required.
But after learning that Joel had clearly turned back his system clock to make it look like he had indeed sent me an email to try to arrange a one-to-one settlement to the dispute as required, and that he had subsequently removed the Creative Commons notice to the page that I had (rightfully) copied for critical review, I sent an amended counter-notice four days later. I asked about this and Automattic assured me that the amended counter-notice made no difference to the time schedule and that I am free to republish the post in question.
Today at work I happened to attend a refresher and update seminar on questions of copyright. One point of relevance to this issue emerged. Internet companies, service providers, institutions responsible for databases making intellectual property available to a wider public, very often — for obvious reasons — adopt a strict “Risk Averse” policy. That means that if there is any doubt or question about the legality of something made public on a system they are responsible for, they will remove it until the matter can be resolved officially or decisively.
It appears to me that that’s exactly why WordPress removed my post as soon as they received Joel Watts’ sworn statement that he had followed the required procedures and attempted to ask me directly to remove the post (ha! he did not! and he did not contest my claim that he did not!), and that he formally swore that my post violated his copyright (ha! it did not! it was a creative commons content, and Joel did not contest my claim that it was CC at the time I copied it for purposes of critical review and with due attribution!).
WordPress was acting as many companies do in such situations. When legal action is in the wind they play it safe. They do not investigate and make decisions about the correctness of contents of the legal application. That is for a court.
So I lodged my counter-claim, and then my amended counter-claim, protesting my good faith and rights within the law to do what I had done.
Joel was required to respond within 14 days.
He did not, so WordPress assumed that he had no answer to my counter-claim and informed me that there was, in effect, no case to answer, and that I could restore the post.
So now, all those folks out there in internet land who have used this little fiasco to accuse me of being a law-breaker and stealer of intellectual property etc etc etc — I do trust you will all publish deeply apologetic retractions! (Ha! No doubt Joel will argue what a nice fellow he is and why he had pity and decided to not pursue his “rights”. . . . )
Meanwhile, there is this little clause in the DMCA legislation that Joel relied upon:
Sec. 512. Limitations on liability relating to material online
(f) MISREPRESENTATIONS- Any person who knowingly materially misrepresents under this section–
(1) that material or activity is infringing, or(2) that material or activity was removed or disabled by mistake or misidentification,shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
What I would like to know is how an Australian can lodge a claim against someone in America who is guilty of such a misrepresentation as Joel Watts clearly is. Preferably I would like to do it without the expense of a lawyer. My natural sense of justice does not allow me to think Joel Watts can get away scot-free with what he has done. There is surely a principle involved that affects many others, here.