Joel Watts Fails to Defend His DMCA Takedown Application Against Vridar

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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.

Screen Shot 2013-07-17 at 8.39.06 PMBut 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.





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Neil Godfrey

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14 thoughts on “Joel Watts Fails to Defend His DMCA Takedown Application Against Vridar”

  1. Neil, I understand and sympathize with your feelings of outrage, but as I understand it, all you can try to get is compensation for actual damages, which lawyers tend to think of only in terms of financial losses. I’m not a lawyer and don’t pretend to be one, but I would expect any court you got into to ask: How much did it cost you to set up your new site after WordPress shut you down, and how much revenue did you lose as a result of the site change? It’s my impression that your financial losses, if any, were trivial, but if you can prove otherwise, then you should probably find a competent attorney and have a consultation with them.

    I don’t agree that Joel got off scot-free. I’m sure this episode didn’t cost him anything financially, but I would not assume that his reputation has suffered no damage at all. Of course he remains blameless in the eyes of those who already supported him, but nothing you could accomplish in court is going to change their minds anyway. The people whose opinions you should care about, I think, are going to perceive him as you do.

  2. The problem I think is the word “knowingly.” How do you establish that Joel knew that your post didn’t infringe at the time he filed his complaint? His subsequent conduct suggests that he figured out that it didn’t fairly quickly, but is that enough? Trying to prove what someone knew is never as easy as it looks.

  3. It’s up to you, but anybody would have to be crazy to engage in an international lawsuit, unless huge sums of damages were at issue (and real damage had been suffered, too large to ignore). Consider the wise words of Auberon Waugh, himself no stranger to libel lawsuits: “Anyone who goes to law places himself in the hands of a ring of grinning rascals who will run up costs as fast as they can until someone has to pay.”

    My own solitary experience of litigation confirms this: I paid a lawyer to write a letter on my behalf once, and no more. This they did, but I then received a letter from that practice telling me that they had the whole “case” in hand and would proceed against the other party. I wrote them a very clear letter that I had not instructed them to “act for me” or do anything whatsoever other than write that letter. But they tried, they definitely tried to make a money-spinner out of it, and if I hadn’t been alert, or had been angry or careless, then they would have had hundreds of dollars of fees out of me for doing nothing useful. You will find the same.

    Your friend above who queried what damage you had suffered (to a lawyer’s eye) is right. “De minimis non curat lex” — the law doesn’t care about trifles. Civil law is about money, basically. You probably have no recourse, since you suffered no money loss.

    BTW is your write-up above quite right? From what you say, the legal events are that WordPress received a take-down notice, and complied. They received a counter-notice from you, and awaited a response. Receiving none, they cancelled the matter. I imagine Joel had no intention to take down your blog, and did not wish to be drawn into litigation himself (and wise man, if so). The truth or falsity of the claims were not tested at any point by anybody.

    All the same, good to have your website back. But if I were you, I would simply repoint the wordpress url to your external site. Why put yourself at their mercy?

  4. I admit that I am a lawyer.

    Although I cannot act as your lawyer (I work for a corporation), I will do a little research for you on this provision of the DMCA and get back to you with what I find. You may also have recourse under American and Australian libel laws.

    I do have access to a number of public interest lawyers (i.e., lawyers who work for free to address issues of social concern), and it is possible somebody might be interested in representing you at no cost. You are the victim of an abuse of the DMCA that can be (and likely is) used by many others to chill “offensive” speech, and I can see how an American free speech advocate could be interested in your case.

    My sense is that what you really want out of this is Watts’ admission of guilt and an apology, and I think you can get that without filing any kind of lawsuit. If that’s what you want, just ask him for it, and see if he doesn’t give it to you. My experience is that most disputes are resolved well short of litigation, and if you give somebody the chance to do the right thing when they know they’re wrong, they generally will do the right thing.

    Take the dispute offline and give Watts a chance to do the right thing before you lawyer up. You have plenty of time before the statute of limitations runs, and you will both be much happier if you can fix things yourselves without involving lawyers. Litigation is a choreographed dance, and once you start the dance, the choreography dictates when you can stop dancing. Kind of like Anderson’s red shoes . . .

  5. I just posted this on FRDB

    A public interest group that might be interested is the EFF – Electronic Frontier Foundation https://www.eff.org

    If you search their site for , they have a file of cases where DMCA was abused. It looks like they spend their time and effort at lobbying and rulemaking, but they have brought lawsuits.

    E.g. https://www.eff.org/takedowns/diebold-tries-wipe-out-discussion-e-voting-flaws

    “EFF represented one ISP, Online Policy Group, in a landmark case against Diebold for sending the false DMCA takedown threats and won, proving that would-be DMCA abusers should think twice before attempting to squelch free speech online.”

    Of course, if Joel Watts were a member of a professional organization that had standards of conduct, and enforced them, you might be able to complain to that organization. But he’s a Christian – not perfect, and forgiven for his sins.

    1. That’s just the surface of it. In this case we have the script kiddie lying and fabricating evidence to damage my reputation. After all, I’m an unconscionable atheist who exposed his “scholarly” nincompoopery. But I am assured the statute of limitations still allows me to respond.

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