Scripting News for 4/10/2007

scripting.com outage 

Our ISP had an outage between approx 7PM Pacific and 9:30PM Pacific which caused many of our sites to be offline, including scripting.com. I temporarily mapped the DNS to a server that was working. Of course shortly after that, the main server came back online. Murphy works in mysterious ways!

BTW, it’s kind of cool that I can write an emergency version of Scripting News without getting any lawyers in the loop.πŸ™‚

Today’s links 

Don Imus is an ancient redneck pimp.

My favorite new ad. These women are hot!

Jason Calacanis: “Blogs are about fighting for what you believe in!!” Amen.

I now have a presence on Jaiku.

Scoble video explains what Twitter is. Good explanation.

podLoader allows you to “load content from the web or from other desktop files onto your iPod.”

OPML Editor and IE7 status 

The point of developing Frontier was to create the perfect development environment for me to spend the rest of my career in. It worked. I am very happy with my object database and outline script editor, multi-threaded runtime, HTTP server, etc etc. I program at a very high level and I’m very happy about it.

But now we have a problem with the OPML Editor on Windows, and since I haven’t programmed in C for many years, it’s not realistic for me to solve the problem. We need help and we’re getting it from a surprising place — Microsoft! Let me say that again. We’re getting help from a surprising place — Microsoft!

Wow. Microsoft helping with an open source project. Now I think it makes sense for the platform vendor to help make sure open source stuff works on their platform, maybe even help make it run well on their platform, but I’ve never seen one offer to help. It’s a very good thing.

Here’s the status report from Joshua Allen.

Anyway, I already said thanks on the mail list, and I wanted to echo it here. Thanks!

Sylvia’s mom 

My very good pal and Berkeley neighbor Sylvia Paull lost her mom last week. She wrote a remembrance, on her blog.

I hosted a good portion of her family here on Saturday night, we went to dinner, watched a bad movie on my TV, and a couple of her relatives stayed overnight.

Everyone was in town to mark the passing of the mom and the grandma. Like all families, Sylvia’s is crazy, but it was great to see them all together. There were some people missing, her mom didn’t talk to her sisters. They say they hated each other more than they hated the Nazis (they were Holocaust survivors).

Last night I went to the movies with my friend Evan, Berkeley neighbor and Sylvia’s son. Some days I feel like Sylvia is my surrogate mother, and some days my surrogate sister, which makes Evan my surrogate brother or surrogate nephew. We have a good time when we go out, it’s a total male experience.

The link on Scripting yesterday to the USB-controlled rocket launcher (a cube toy) came from Evan.

We went to see a great movie, Grindhouse — which is actually two movies, over three hours of movie pleasure. They are so disgustingly gory, like Pulp Fiction or Kill Bill, that at first you’re shocked and wanting to walk out, but then you get accustomed to it, and even the most ridiculously gory stuff makes you laugh! I’m laughing right now as I write this. But the first few scenes with sick body parts are very difficult to watch.

By the end of the second movie you’re cheering.πŸ™‚

Thank god for soemthing to write that doesn’t have to pass the lawyer test.

And thanks to Sylvia’s mom for taking care of Sylvia for all those years.

A new reality for this blogger 

I’m not aware of any tech blogger who has received a serious threat of a defamation suit, but I’m sure there have been some. I’ve done more homework on this, and find that the law seems to assume that libel appears in a newspaper or magazine, not in a weblog. The method of retraction they call for seems to reflect a print reality, not an electronic one.

When I chart a course for myself, I feel to some extent that I’m making decisions for other bloggers. If I win, that may help bloggers — if I lose, it may hurt them. I’m pretty sure most people aren’t thinking about who might sue them for their blog posts, I wasn’t — and I think that’s the right thing. I think our two rules for integrity are pretty good:

1. Never knowingly say something that’s false.

2. Disclose all relevant conflicts of interest.

Lawyers however, have a different set of rules, which are more restrictive. So far the blogosphere has operated under the more relaxed rules. For example, there are many things people have said about me that would clearly be actionable under the legal rules. But I don’t sue people for what they say about me, just as I don’t file patents that prevent other technologists from using my ideas. Just because you have the power doesn’t mean you have to use it.

If a business provides bad service, or treats its customers unfairly, that’s something other customers should know. That’s one of the fundamental principles of the Internet, in my humble opinion. It’s why the travel industry, the real estate industry — every service industry is undergoing massive upheaval. Yet, you just don’t see too many people talking online about bad service from lawyers. It seems to me people are pretty scared of what lawyers can do to them, and I don’t think this is a good situation.

And while my words have become more measured, I’ve decided to continue writing about this, while I can, because that’s what I do.

Yesterday’s comments, and today’s.

11 responses to this post.

  1. I have been threatened in the past by a defamation lawsuit, but gave in (and I can’t discuss it openly cause of the agreement I made). Why? Cause my brother’s money was involved. 2) I couldn’t afford to defend myself against a deep pocket company. It’s very scary to go against the system, even when you think you’re right. Proving you are right is expensive and stressful. Most people just fold. I know several other bloggers who gave in to such threats too and also can’t discuss them in public as part of their settlements.

    Reply

  2. Posted by Barry Bowen on April 10, 2007 at 8:47 am

    Dave,

    Check out the Supreme Court decision in New York Times vs. Sullivan. This decision defines defamation and libel. You will be considered a public figure and the attorneys suing you must prove that you knowingly published lies or had a reckless disregard for the truth.

    You can read more about the Sullivan case at Wikipedia:

    http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan

    I had to study this case in a media law class.

    Reply

  3. Hey Dave, IAAL, but this is not legal advice, obviously. In general, statements of opinion are protected, but false statements of fact can get you into legal trouble. As a lawyer, I’ve been following your comments about your own lawyers, past and present, closely, and I’ve view your comments as one man’s opinion. In other words, I don’t think you’ve done anything that would make you liable for damages at the end of the day. But, as you know well, lawyers can file lawsuits about anything in the world, so long as they have some colorable basis to do so, forcing you to run up legal fees to defend yourself….even against claims you ultimately will win. I for one hope you keep blogging about this.

    – Bret

    Reply

  4. Dave,

    During South by Southwest last month, I sat in on a panel titled “Journalism In The Blogosphere: A Legal Guide To Internet ‘Press'”, given by Dineen Pashoukos Wasylik of the Conwell Sukhia & Kirkpatrick firm in Tampa, Fla. Her presentation expanded on some of the points made here. Here are some notes from her talk

    Reply

  5. Posted by PH on April 10, 2007 at 12:04 pm

    Barry,
    I’ve studied that case as well and my understanding of it is slightly different. For starters, “public figure” typically refers to the person being defamed not the person doing the defaming. In fact, a public figure is in a WORSE position for a libel suit because there’s more evidence that the statements were damaging.

    So Dave being a “public figure” (and it would be a close question, as I read it, whether or not Dave actually qualifies) only makes it harder for him to sue for libel, it’s not a protection for him.

    As for the “malice” — If I recall one of Dave’s posts correctly, he was explicit in the fact that he wanted to make known what kind of lawyers R&H were… and then goes on to talk about “frivolous” suits. So, from where I sit, the malice element is pretty clear: Dave is on record as saying he wants them to look bad… the question, then, is whether or not his words are true, and I would disagree with Bret on one issue: claming that R&H are “abusing the system” and filing “frivolous” suits (and especially the latter) I think would probably be sufficient to convince some juries.

    Clearly accusing them of suing their former client is factual and accurate… it’s when Dave starts using legal terms of art where things can get tricky. I also believe, though I am not 100% sure on this, that what is at stake in terms of the fact vs. opinion debate is not what Dave intended his words to mean, but how they would be read by a “reasonable person”.

    Obviously this is not open and shut, reasonable people can (and do, it seems) differ… but were I in the same spot, I’d redact all opinion and stick to straight facts from here on out.

    Reply

  6. Posted by Jeremy on April 10, 2007 at 12:35 pm

    PH: I agree with your analysis. It looks to me that this would be a case that could go either way.

    Reply

  7. if you’re going to play around with this the voice and methodology to use is satire, which has a much higher barrier to libel than reportage. The key thing to remember is that “truth is not a defense if the defendant can prove “malice aforethought.”
    I’m aware of one other blogger who was threatened with a defamation suit, which resulted in his talking to a libel lawyer in NY who gave him the guidelines he needed tp put his mind at ease.
    Dave, if you want specifics, I’ll put you in touch with him. It’s not appropriate for me to link in a public place, given the rabid curiosity about this person.

    Best,
    Jim Forbes

    Reply

  8. Posted by Barry Bowen on April 10, 2007 at 2:44 pm

    Dave, I believe you should add a third rule for integrity:

    3) Promptly correct factual errors when they come to your attention.

    In 1997 Matt Drudge was sued for libel. Drudge published an article stating that Sidney Blumenthal abused his wife. The next day Drudge published a retraction when he learned that his source was wrong. Drudge won the lawsuit.

    PH, you are correct that being a public figure is not a defense for Dave in this situation.

    To win their case, the plaintiff must prove that something Dave published was untruthful and could cause harm to them. If something Dave wrote was incorrect, but wouldn’t harm the the plaintiff, it is not defamation.

    Reply

  9. Posted by brian armitage on April 10, 2007 at 4:10 pm

    while PH nails it somewhat, let us not forget how this whole thing came about: some guys, who probably already have a shedload of money, saw someone else making some dosh and wondered how they could get their cut. unfortunately, it’s somewhat symptomatic of the world a lot of us have to live in today.

    Reply

  10. Posted by Jeff Walsh on April 10, 2007 at 9:03 pm

    What I’ve always written in the ongoing “Is blogging journalism?” debate is that bloggers think they’re reporters, but coming from a journalism background, they are all realy opinion columnists. People tend not to blog about things they have no interest in whereby, as a journalist, it was never my choice what I wrote about as far as the daily news grind.

    So, I think you are freely allowed to have an opinion about this, because I don’t think of anything on this or any other blog as trying for any sense of being objective. When you say Grindhouse is awesome, I don’t take that as a statement of fact. My mind adds “Dave thinks Grindhouse is awesome.”

    So, I think that, even if there is a way to prove you were wrong in what you posted, I don’t think it counts a libel, because you are allowed to think things are wrong. And, anything you say about a lawyer, a new technology, or anything else has that hidden “Dave thinks” added to it, and people are allowed to have wrong opinions, as long as there was no malice or intent to cause him or his business any harm.

    As for the lack of ability to properly correct something online. I think that is easy, were you interested in doing it. Since the initial posting got posted on the front page of scripting.com, posting a retraction on the front page of scripting (and crosslinking the retraction to the original story, and v/v), would be the same thing as what any newspaper does.

    Reply

  11. Did you feel that, Dave? 5:33 AM PDT Wed, magnitude 2.4, 10 km below Berkeley. Minor brief shaking here.

    Reply

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