When word broke of the new stance of the Associated Press with regard to the overuse of quotes from its “creative content,” my take on it was substantive. I thought it was silly of the AP to try to count words across the blawgosphere lest someone step a few syllables over the line.
But the point was different to others. This wasn’t only about word counts, but another post about using lawyers to attack the poor and downtrodden. How I missed this point I don’t know.
Patterico saw it very differently. This was the AP’s assault on the “little guy.” Quoted with approval was Jeff Jarvis, who wrote:
What the AP and The New York Times’ Hansell don’t seem to realize is how hostile an act it is to send lawyer letters to individuals. They have armies of attorneys. We bloggers don’t. The mere act of sending us a letter can cost us money out of our own pockets. Sending a lawyer letter is an assault.
Orin Kerr reacted that this is all a bit overwrought:
Patterico, I realize that you can get very excited in your blogging and can be a bit over-the-top (such as describing the sending of a notice and takedown letter as using an “army” to “terrorize” people — kind of waters down the terms, I would think).
Patterico replied that Orin didn’t, and Jarvis did, “get it.” It’s like they’re all speaking in tongues.
The starting point for the discussion is the issuance of a letter from a lawyer making a demand. Oddly, the letter does no more than assert a right, meaning the right that they claim existed before the lawyer letter was not being fulfilled, and they seek to bring it to the recipient’s attention. The implicit (or explicit) threat of the letter is that if the recipient continues to ignore the right, the other party’s recourse is to go to court and seek relief.
What’s the problem? After all, if people disagree and are unable to work out their problems between themselves, courts are the places where disputes are resolved. That’s why they build those big, fancy buildings, right?
But the threat of litigation itself is viewed as the penalty for failing to comply with the lawyer letter, not the order of a judge years from now. Patterico reads the threat as being, “we have an army of lawyers and can ram our demand down your throat no matter what. Comply or die.”
The very act of expressing the demand itself is an “assault,” according to Jarvis. What does that tell us about the views of non-lawyers toward the legal profession and the courts. We have become “terrorists” in a nation of laws, not men. Our threat to bring the matter to a judge for resolution is a akin to threatening an invasion of Poland. This is troubling.
But what is a lawyer, or more specifically, the lawyer’s client, supposed to do? A lawyer letter is the mechanism of expressing a position and alerting the other party that the client takes issue with some conduct being performed, or not performed. How are lawyers to advise others of their clients’ position in a warm and fuzzy, non-threatening way, and make clear that the client takes the problem quite seriously?
The underlying issue appears to be the cost of litigation. In Jarvis’ reaction, he complains of the cost of disagreeing with the lawyer letter from the AP, with its “armies of lawyers” (another reference to warfare, as if the threat of storm troopers in three-piece suits wielding briefcases instead of guns is a scary image) is more than a blogger can bear.
This makes sense, since the blogosphere is a shoe-string operation, producing little or no revenue with which to defend one’s actions and thus making the risk of a potentially expensive lawsuit a very real threat indeed. But the cost of litigation, a non-productive cost in almost all instances (save plaintiffs’ suits for injuries), is a concern for everyone. Sure, large corporations have litigation budgets, and don’t appear to mind throwing money down the lawyer hole, but regular people and small businesses tend not to want to squander their revenues on litigation which, at the end of the day, leaves them where they started if successful.
The lawyer-haters will see this as a reason to move toward a “loser pays” system, where the little guy who prevails gets his expenses back and thus ends up no worse for wear. But little guys also know that there’s no guarantee that they will win, or collect, and hence will remain every bit as threatened by the cost as if they were putting it down at the craps table and about to roll the dice. They still have to pay the money out in the first instance, and no systemic change is going to alter that problem.
What the recipient of the lawyer letter fails to recognize is that this is nothing more than an assertion of right. Regardless of how silly the AP might have been in this instance, they decided that they were getting angry with bloggers taking too much of their content, the stuff they pay their people to produce, It’s not that the AP is necessarily right, but they are allowed to believe this to be the case. If it’s wrong of them to send a lawyer letter, what then are their options?
The answer is obvious. Just commence the lawsuit. No warning. No demand. No opportunity to discuss the issue or try to work it out. Just drop the bomb. Is this what Jarvis and Patterico want? I don’t think so.
The lawyer letter is a shot across the bow, but it does no harm in itself. It should be viewed as an opportunity rather than an assault. It’s intended to make clear that the sender is serious about his concern and wants the recipient to take the concern seriously. It does not, and cannot, force the recipient to comply. It’s just words. But it opens the door to a serious dialogue about the concern. The recipient is free to disagree with the sender on whether rights have been infringed, or wrongs have been done. He can ultimately decide to tell the sender to go fly a kite, if that’s his choice, and put the ball back in the sender’s court to do as he must.
But don’t hate the lawyer letter. There has to be some way for a party to alert another party that there’s a problem, and we would be worse off with it.
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This is the attorney full-employment act at work.
Why have a lawyer express that right or disagreement. Why not (pardon me) a human being: AP to blogger? Bringing in lawyers on one side NECESSITATES bringing them in on the other side or else you may forfeit or screw up your own rights. And that brings cost.
Yes, you should see it as troubling that lawyers are seen as terrorists.
But, come on, you know that is precisely why they are being used: to be threatening, to strike terror and fear.
If the AP cared about resolution and a decent relationship with those sending them audience, traffic, branding, and attention, a simple email from an AP person to a blogger person and a discussion would be a radically different and smarter way to approach this than to buy software to ferret out quotes as if they were crimes and to then treat quotes and links not as the gifts they were — in the link economy — but as cause to call in the lawyer armies.
Please don’t be naive or don the hairshirt on why there was this reaction to a lawyer letter. It is a threat. Be realistic.
“Nice little house you have here. Shame if something were to happen to it. Houses burn down, you know. I sell fire insurance. You should really have some.”
In the above hypothetical, have I done something wrong, maybe? Or am I simply alerting you to a need to manage your risk with regard to home fires, and offering you an opportunity to manage that risk? Does it make a difference whether or not I’m licensed to sell fire insurance in your state?
The AP — with its highly paid attorneys — had several much better alternatives than sending out lawyers letters or filing a lawsuit.
I’m sure all the lawyers around here will be happy to know that whenever they send a letter, there are still a few people out there shaking in their boots. Most people ignore the lawyer letter, and most of the rest just tell the lawyer to get lost.
Now if you got a “simple email from an AP person to a blogger person,” then you would feel empowered to tell the AP person to suck eggs. And that’s your argument for why corporations should send lawyer letters, because it makes it harder for you to ignore it or disagree? So this would be good for you and bad for the AP, and this is why you think the AP should do it your way?
But your example is hardly comparable (though that may be the way a non-lawyer perceives a lawyer letter). If it came from a lawyer, it would say:
Please be advised that you are required to maintain fire insurance on your house. You have failed to do so, in breach of your fire insurance obligation. Either obtain fire insurance and provide proof thereof in 30 days or we will commence an action to compel you to purchase fire insurance.
In other words, there’s an assertion of a right and a demand to do something, and a statement of what they will do if you fail to comply. It’s not a veiled threat, but a direct assertion. Entirely different.
And again, why would you expect the AP to take the least effective path to accomplishing something it believes is important? Because it would make the other side feel better about ignoring or rejecting it?
“It’s intended to make clear that the sender is serious about his concern and wants the recipient to take the concern seriously. It does not, and cannot, force the recipient to comply. It’s just words.”
Almost everything a lawyer does is just words, so that’s not exactly a comfort.
And maybe it’s not just words, maybe it’s notice of some kind—an official requirement before the next step. Is there some response I have to make to preserve my options? Did the letter start some clock running that will ring later on?
Whenever I get a letter that someone spent over $100 to write (maybe way over $100), it gets my attention. If I have to pay a lawyer to read the letter for me, it could easily cost more than all my out-of-pocket expenses for a year’s worth of blogging.
A lot depends on whether the AP tried a lighter hand first. Did they originally send a letter that starts something like “Hi, I’m Bob Smith at Associated Press, and we just noticed something about your website that caught our attention…”?
If bloggers ignored a friendly request, a lawyer letter is just the next obvious step.
So there should be a requirement for a “friendly letter” to precede a “lawyer letter” to precede a lawsuit because the recipient might be afraid that “it’s a notice of some kind– an official requirement before the next step.”
But what if the “friendly letter” is too formal, too business-like? Should there be a “really friendly letter” before the “friendly letter” before the “lawyer letter” to precede a lawsuit…
But writing is so formal in itself. Shouldn’t there be a phone call preceding the “really friendly letter…” And if no one answers the phone, and no one knows if they got the message, should someone go to the door, very friendly and happy, to precede the phone call to precide the “really friendly letter…”
Does any of this strike you as a bit unwieldly? After all, the lawyer doesn’t have to send a lawyer letter. He can just sue. Would that make everybody happier?
Maybe I misunderstood the tone of the original complaints, but I don’t think anybody’s saying AP should face a “requirement” to be friendlier. But we can sure as hell complain about it when they aren’t.
It’s like when your neighbor has a party late into the night and the music is too loud. You could call the police to complain, or you could ring his doorbell and ask him if he wouldn’t mind turning the music down a little. Either approach is allowed, but one of them is a little more neighborly.
Three things to bear in mind. First, this isn’t only about AP, but any lawyer letter. Second, there’s nothing to stop someone from asking nicely first. Third, the AP isn’t your next door neighbor, and you’re not the AP’s.
Nice Letter, Lawyer Letter
Few things generate as much anger from non-lawyers as the lawyer letter.
Nice Letter, Lawyer Letter
Few things generate as much anger from non-lawyers as the lawyer letter.
Scott,
When you find yourself in a deep hole, stop digging. You’re hopelessly wrong here and making it worse. (How’s that feel?)
I’m a one-man firm who just got hit with a letter from a multi-billion dollar financial firm saying “we require that you change the name of your firm [I’ve been dba this name for 12 years]…and cease all use of the phrase [my firm’s name]…should we not receive a positive response within 10 days, we will proceed with all steps necessary…”
You think this isn’t threatening as a first step? Then you’re not human.
I called them back. They said well you’re not violating our trademark now, and no one has complained, but somebody someday might, etc.
I said why don’t you write me a letter saying I’m not in violation now and reserving your right to attack me later if I ever do violate, thus demonstrating your vigilance and preserving my right to do business as I have for 12 years.
Nope, not good enough. Unless I comply, the attorney said, “we will initiate proceedings–because we have the power, and you don’t.” Unquote.
I said I thought that attitude sucked, and the response was: “that’s normal business practice, there’s no reason to have an attitude.”
If you’d care to differ with this Harvard Law (and full of it) attorney about what’s “normal business practice” I’ll be happy to put you both in touch. You can argue who’s more out of touch with humanity.
Meanwhile, I’m out $5000 so far–much spent arguing my own attorneys out of trying to settle for a crime that has yet to be committed.
Not to mention my time. And their lawyer’s. So when you say “what are we supposed to do, write a letter before a letter or make a phone call?” my answer is yes, yes and yes.
I suggest reading. Start with the fable about catching more flies with honey than vinegar.
Proceed then to Stephen H.R. Covey’s recent book The Speed of Trust where he points out infinite examples of how low-trust incendiary behavior like those you and my Harvard “friend” think is efficient are in fact the source of gross economic distortions.
Read how Warren Buffet bought a $22 Billion business on a handshake–so as to avoid the monstrously inefficient costs brought on by due diligence proceedings, aka the Lawyer and Accountant Full Employment Act.
I am aghast at your inability to tell a threat from an “assertion of right.” It speaks volumes about your lack of basic emotional intelligence–empathy, or the ability to comprehend others’ emotions.
I know exactly how I would handle such a situation in your case. I’d make a phone call, explaining calmly that you’re calling about an important legal issue, and are trying to lower the heat level by phoning first; that there are other levels of interaction if necessary but that you don’t want to cause undue concern by starting with incendiary letters. They can always talk to an attorney, etc.
That is, treat the other person like another kind of professional might treat a client.
And stop digging.
I love that expression about digging the hole, but I’m afraid that it only works in certain circumstances. This, I’m afraid, is not one of them.
Try this exercise: If they called you nicely and asked you to change your business name, would you? So when you refuse, then they sue you. And how has that helped your plight?
Your problem isn’t with the lawyer letter, but that you don’t like being a subject to the American legal system. That’s a completely different hole. And like most “business people,” you hate lawyers now,buth when you get screwed by the next guy, will you then you want a lawyer who will rip their head off? That’s why comments like yours are just silly and naive.
But thanks for telling your story.
Louis Vuitton Nixes Navarro’s Straps – AOL News has guitarist Dave Navarro neither ignoring the letter nor telling LV to get lost. What a BFD is his opinion, and the equivalent of an AP should have called, first, he says, and acted nice. What timing.
Great story. I love how he’s using the LV knock-off on-stage, and they’re evil for bothering him.
Who would he call to stop any of us from trading or reproducing his recordings in violation of his copyrights?
You would think he would have more taste or at least pride in ownership of an LV leather guitar strap among his “many items.” What people will do to save money never ceases to amaze. Like what they do to make it.
Would like to complete the terrorist analogy:
Terrorists take hostages and threaten to blow things up saying;
“NOW that I’ve taken this step, you will HAVE to do what I say…OR ELSE I will turn your quiet, simple life upside down and you will never be the same again”.
How is that any different than an individual (blogger) receiving a letter from an attorney. Failure to comply will turn the person’s world upside down – no matter who is right. The other side of the coin – it’s just another day in the office for the attorney.
As for the argument of ‘lack of a better alternatives’, I look at the people who created the process – and how they left out alternatives.
Undoubtedly it’s more efficient that way.
Was it Judge Roy Bean(?) who had similar thoughts about efficiency in his court room – quicker and more efficient to just hang the defendant than to fuss with a trial.
So let’s see where your analogy takes us. You hire a fellow to do some work on your “cafe”, and he does. You refuse to pay him because you aren’t satisfied that he’s done a good job. He says he’s done great work. You tell him to take a flying leap.
He goes to his lawyer, who then sends you a letter to pay up or he’s going to sue you. And your answer is that the lawyer is a terrorist. So, you win, since the fellow who did work isn’t allowed to seek redress for your nonpayment. You get the work and don’t have to pay. He gets screwed out of his payment, and he’s not allowed to have his lawyer send you a letter as a precursor to having a court decide whether he deserves to be paid or not, because you’ve decided that he’s a terrorist?
Your analogy doesn’t play out quite as well for the other guy as it does for you, now does it?
There is a bit of difference between entering into and then breaking a contract (yours) verses going peacefully along, minding you own business and getting blind sided by some lawyer (mine and the original article) never knowing that someone is upset. Attorneys in general don’t play fair because they are the ones that write the rules.
One would think, in an organization that has some of the most brilliant minds, they could figure this out. It’s become so obvious that judges rule against attorneys and the contracts they write as a matter of course when dealing with insurance. It doesn’t matter what the contract says, awards almost always go to the insured because judges don’t think attorneys play fair.
As one poster said above, it’s not unusual for attorney letters to have time limits….created by whom? enforced in who’s playground?
Between a plumber(random choice) and an attorney, who do you think has an easier chance to wreck the others life when they get mad? What’s the plumber going to say…I’m mad, now you have to take time off from work to come to my playground, where me and my buddies have been writing the rules for the last 200 years. Matter of fact, we’ve made the rules so complex that you have to hire another plumber just to explain them to you. And by the way, you have 10 days to respond or I’ll have more of my buddies take your business, home, etc away from you.
Nope plumbers can’t do that…but attorneys sure can.
These are the same people who send you letters because a customer spills a cup of coffee in their lap. Who sue gun manufactures because a tool with the manufacturer’s name on it “looks” like a tool that was used in a crime. And on and on and on.
Yes your arguments may be valid, but since you write the rules….there is no controlling legal authority.
ps. thanks for the vent, no need to post if you don’t want.
My pleasure.