Category Archives: Legal Musings

What’s the Deal with Slander?

on October 10, 2011

Welcome to legal musings!  I haven’t written a legal blog in a while and thought maybe I should.  While I’d like to discuss the legislation regarding internet piracy, that bill has been stalled in committee and doesn’t seem to be going anywhere.

Some time ago there was a hubbub on twitter about an agent allegedly threatening a client with a slander case because the client allegedly talked about their current contract on the internet.  Note that I have no idea if this really happened or not.  However, it does bring up a couple of interesting issues regarding slander (spoken) or libel (written).  Basically:


Yeah.  So if you’re saying the truth…you can’t be sued for slander.  Well, now…you can be sued.  I mean, anybody can file a lawsuit.  But you’re going to win for sure because you’re telling the truth.  People don’t tend to realize this.  The truth can be mean and even hurtful…but it isn’t slanderous. 

Also, your opinion is mostly protected.  If you’re just giving your opinion (I think Bob is a total jerk), then you’re probably all right.

So what if we’re not telling the truth?  Something to think about is that unlike most areas of the law, slander/libel law treats different victims differently.  How odd is that?  Public figures (actors, famous writers, politicians) are treated differently.  You can say meaner things about a famous person than you can your next door neighbor. 

In other words, if you’re a famous author and someone slanders you…you have to prove they did it maliciously.  Your Aunt Betty doesn’t.  Why is this?  According to the United States Supreme Court, public officials and celebrities, the Court has said, have chosen to step into the limelight and subject themselves to public scrutiny. They need less protection because they have more opportunities to counter false information published about them.  See New York Times Co. v. Sullivan, 376 U.S. 254, (1964), and Hatfield vs. New York Times, 532 F.3d 312 (C.A.4 Va. 2008.)

So there’s a brief overview of slander and libel law.  Though we all should just go back to what we learned in Kindergarden…if you can’t say anything nice…

CYA Disclaimer:  This is not legal advice.  If you need legal advice, hire a lawyer.  If you’re planning on slandering someone…stop it.  Karma doesn’t follow the U.S. Supreme Court decisions.  Karma will nail your butt.  If you’re being slandered, tell all the writers on your yahoo loop–we often work with karma to find justice.  Again…this is not legal advice.  Just sayin.

Agents as Publishers…We only have one Butt

on August 1, 2011

The writing loops have exploded with news that literary agencies are opening up self-publishing businesses for their clients as well as other writers.  While these folks may have the best of intentions, this violates the law of agency—if the agent is both the agent and the publisher.

Yeah, I know ‘violates’ is a tough word. Here’s a definition of agency law:  The law of agency is an area of contract law when a person, called the agent, is authorized to act on behalf of another (the author in this case) to create a legal relationship with a third party(the publisher in this case).  The term “third party” pretty much shows us what’s wrong with a literary agent also acting as a publisher. 

(Note:  An agent assisting an author with self-publishing is different from an agent opening up a publishing business.)

So, when an agent negotiates with a publisher for a deal—how in the world does an agent
negotiate with herself for the deal?  Can’t be done.  No matter how honorable and good intentioned the agent (and I truly believe these folks are both), it is physically impossible to sit on opposite sides of a table at the same time.  We only have one butt, and it has to be in one chair.

An agent owes a fiduciary duty to his/her client—and the agent’s goal can never be counter-productive or opposite to the client’s.  There’s no way an agent can fight hard for her client—when she’s fighting with herself and her bottom line.  No matter how nice the agent.

So, is there a conflict of interest?  Yep.  Anything that isn’t directly in the client’s interest…is a conflict. 

This has nothing to do with trust, loyalty or track record.  Agency law is…agency law.  It’s quite simple.

CYA Disclaimer:  This is not legal advice.  If you need legal advice, hire a lawyer.  Especially if you’re in Colorado, Utah, or Wyoming.  Those guys need to buy skis every year — and boy are those expensive.  The opinions expressed, while brilliant, are mine and you should get your own.  In fact, there are so many lawyers out there right now, law schools are cutting down on admissions.  We only want to tempt fate so much.

What is Cyber Stalking???

on May 12, 2011

Welcome to Legal Musings where I talk about the law and…stuff.  Often copyright or writing issues…sometimes not. 

Well…first of all, there isn’t one set definition to cyberstalking.  As close as we get is “the use of technology to stalk victims—shares some characteristics with real-life stalking. It involves the pursuit, harassment, or contact of others in an unsolicited fashion initially via the Internet and e-mail.”   National Institution of Justice.

When I thought about doing a post about cyber talking, I assumed that there would be a strong federal law dealing with it.  NOT.  Now, for those of you who haven’t taken a government class in a while…keep in mind that the states have their own laws.  So New York may have a tough cyber stalking law while Oregon may not.  Or visa versa.  I don’t know because I haven’t looked yet.  I’m more interested in federal law right now.

But…I truly thought there would be a strong federal law.  The main federal cyber-stalking law we have is incorporated in the Violence Against Women Reauthorization Act of 2005, where Congress extended the Federal interstate stalking statute to include cyberstalking (18 U.S.C. §2261 A).  But, this overall Act mainly deals with domestic violence situations…and many cyber stalkers are strangers.

If there is an actual threat made by a cyber stalker, 18 U.S.C. §875(c),makes it a federal crime, punishable by up to five years in prison and a fine of up to $250,000.  But there has to be a THREAT made.  The law hasn’t really been challenged, so it’s unclear whether or not it applies when a stalker harasses someone using a chat room or bulletin board. 

Another federal statute, 47 U.S.C. §223, makes it a federal crime to harass someone over the telephone.  But, violating this section results only in a misdemeanor, punishable by not more than two years in prison.

If you are being harassed or stalked via the internet…you should go to your local police.  Find out if your state has decent stalking laws—some do.  Then move on to the federal authorities.  But so far, the strongest laws are in the states, and not federally.

DISCLAIMER:  This is not intended to be legal advice…and the mermaid is not naked.  Really.  She’s dressed.  This is a great place for you to start your research…not to rely on for legal advice.  I’m an awesome lawyer.  But I’m not your lawyer.  Frankly, I’d rather write about vampires in my jammies than dress up and go fight with some windbag in court.  So again…not legal advice.

Can you sue for a mean blog comment?

on May 3, 2011

Welcome to Legal Musings where I try to blog about something going on in the legal world.  Often the topic will include writing, copyright..etc.  Sometimes it won’t.

As the internet has exploded with millions of blogs and people who comment…the question arises as to whether or not you can sue someone for a comment hurting your feelings, or worse, damaging your reputation. 

The quick answer is…it depends.  Yeah.  Welcome to the law. 

Interestingly enough, the The Federalist Papers, penned by James Madison, Alexander Hamilton, and John Jay, were published under the pseudonym “Publius.”  So even way back when, critics were anonymous.

So, there’s an interesting case in federal court where one guy (Max)  wrote about another guy’s (Dimeo) event party…and then other people ripped the party apart, basically saying the party sucked.  Several of the comments were anonymous.  So, Dimeo sued Max for defamation, citing those anonymous comments by other people.  The court didn’t buy it.  Dimeo lost on the defamation claim because, well, Max is like Google.  Yeah, Google. 

Interestingly enough, the court used the same analysis with Max as it did with the large GOOGLE case I cited a few weeks back. (Parker v. Google).   Max is like Google???  Well, under a CDA (Communications Decency Act) analysis, Max is like Google and thus gets immunity.

Three elements are required for § 230(c)(1) immunity. First, the defendant must be a provider or user of an “interactive computer service.” Second, the asserted claims must treat the defendant as a publisher or speaker of information. Third, the challenged communication must be “information provided by another information content provider.  (The commenters).  Dimeo v Max, 433 F.Supp.2d 523 (E.D.Pa.,2006).

So, at least in the federal district court in PA, Max (and thus any of us with a website) has the same immunity as Google when it comes to third party comments.  Wozza.

I thought this was an interesting way for the court to finish its opinion.

“Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar-in a word, “indecent” in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice.”  Dimeo at 533.

So, keep in mind this is one federal district court opinion only.  There are many other jurisdictions, and this case didn’t go up to the appellate or supreme court. 

When I get some time, I’d like to delve into the CDA, considering some of it (not any of the parts cited above) have been found unconstitutional.  For now, let’s be nice as commenters.  While our words MAY not be actionable, there are still several federal laws dealing with harassment we really don’t want to mess with.  I’ll go into a few of those at a later date. 

DISCLAIMER:  So, I’ve been getting more comments about my disclaimer than the blog entries.  🙂  No, the mermaid isn’t naked.  Yes, she has a shield and sword because the law is both a shield and a sword.  In a disclaimer, it’s a shield.  A big one that I’ll hit you over the head with if you take anything I say as legal advice.  Yeah, I’m being accurate.  But I’m not your lawyer.  This is not intended to be legal advice.  You may not rely on any of it (except me hitting you with the shield) as legal advice.  For the love of Pete – there are tons of starving lawyers out there.  Go hire one if you need one.  🙂

Are Teeth a Dangerous weapon?

on April 12, 2011

Hi and welcome to Legal Musings!  I try to talk a bit about laws dealing with writing and copyrights…but not always.  Today I’m still behind from attending the RT Convention (more posts to follow) so here’s my legal analysis.

Teeth, at least in Oregon, are not considered a dangerous weapon.  Who knew?  More importantly, why does it matter?  Well, assault with a dangerous weapon is so much worse than just plain assault…more jail time. 

A couple of drunk guys got into a fight in a Oregon bar…and one bit the ear of the other.  The biter was charged and convicted for first degree assault, and the lower court determined his teeth were dangerous weapons.  (No, he’s not a vampire).  The guy got 90 months in jail.  The appellate court disagreed, stating that teeth are not external to the human body, so they can’t be a dangerous weapon.  State v. Kuperus, WL 1005364 (2011)

This brings up the question:  what if someone uses dentures?  I mean, those are external to the human body, so…I guess we’ll just have to wait for that case to appear in Oregon.    (Thanks to Rita for sending me the link to the case!)

So…what else has been determined not to be a dangerous weapon?

THE OCEAN:  Yeah.  This guy named Shea invited two women onto his boat off the Massachusetts shore and when they wouldn’t get naked with him, he threw them overboard and drove away.  He was charged with a whole bunch of crimes, including assault with a dangerous weapon (the ocean).  The Massachusetts Court held that the ocean couldn’t be a dangerous weapon because the defendant had no control over it.  Though Shea still ended up in jail for the other crimes.  Commonwealth v. Shea, 38 Mass.App.Ct. 7 (1995).

You know what have been found to be dangerous weapons?  (Depending on jurisdiction).  Mace, Bb guns, chairs, wrenches, concrete…

CYA Disclaimer:  This is not legal advice.  If you want to bite someone, I wouldn’t, but it’s up to you.  Think of the germs.  Yuck.  If they bite you, I still wouldn’t bite them back.  But again, this is not legal advice.  Don’t take this as legal advice.  It is not intended as legal advice.  If you bite someone, you’re on your own.