Monday, August 31, 2009

The Streisand Effect

In the late 1990s, an officer in the REO Speedwagon fan club got into a legal scuffle with the band.

Like other bands and performers, REO took to the Internet to meet their fans, and sometimes didn't like what they saw and heard. Just as fans and other strangers got into conflicts, so did the performers themselves. According to a number of sources (some of which I saw with my own eyes at the time) members of the band posted comments in open forums that this lady considered derogatory.

When most fans are confronted by the artists they admire - and "confronted" can mean anything from an insulting joke to legal action - they usually run and hide. They either drop out of sight altogether, or find another safe place to vent their frustration over the event.

This lady didn't run or hide.

She sued. She got a lawyer and filed suit claiming defamation of character.

After they got up off the ground, REO Speedwagon and their representatives quickly moved to settle.

They blinked. They caved. In practical terms, the plaintiff WON! Without so much as a deposition, let alone a trial!

(Sources that are still available on the internet:
Many more details were available on fan boards run by AOL but are now gone.)

In the 1980s, lawsuits intended to "just shut someone up and make them go away" by burying them in paperwork and legal fees became so common they got their own name: SLAPP suits. They were originally conceived to silence critics of local government but, as usual with the legal system, private entities got involved in the fun. With the explosion of the Internet, legal wrangling became the norm as information could fly faster and do more damage (or benefit, based your POV) if it wasn't squashed quickly.

But it stopped working. People like the lady described above stopped accepting what they and their attorneys deemed strong-arm tactics. Since it was silence the plaintiff valued most, the target gave them the opposite: publicize the complaint or issue even more - let it go viral. Then all of the legal action in the world couldn't take it back. Then legislation came along (antiSLAPP) to prevent the suits or punish them.

One of the most famous in the USA was Streisand v. Adelman et al., in California Superior Court; Case SC077257. In short, a photographer documenting coastal erosion in California captured some property belonging to Barbara Streisand. She called every lawyer she knew and slammed the company with as much legal power as she could muster. She had good reason to be concerned: for performers of that level of visibility privacy = security. But the photographer and his company had a genuine interest in the photos and they fought back. The legal firefight generated so much publicity that the photos were more widely viewed than if Babs had kept her mouth shut and put velvet mittens on the attorneys' paws. Hence, a failed attempt to use legal action to suppress information is called, "The Streisand Effect".

Artists' representatives have a difficult row to hoe when deciding how to protect their clients' interests.

The traditional legal threats usually work, but you can screw yourself royally if you run across that ONE fan or other person who is not only not intimidated by such action, but they consider a threat a clarion call to defend themselves and they just happen to have a salivating attorney warming up in the bullpen.

Then you also have the speed of the Internet. Information almost moves faster than thought. If someone feels wronged, they will find support somewhere. Whether their actions are legally defensible or not is immaterial to the public learning of the conflict. Even the most hated person in the world can find friends on the Internet to come to their aid. Lawyers can't stop that. If they try, their actions will only spread what they want silenced to a broader audience.

Worst of all, the loudest voice wins and the public loves an underdog. If the public perceives the poor, widdle fan is being bullied by the big, nastybad lawyers, they will get public sympathy. Even if the lawyers have the more defensible position. God help the complainant if a judge thinks they're going the SLAPP route.

Artists or any party with a legitimate beef with someone are going to have to get more creative in protecting copyrights if they want material to disappear. First, if you have to get legal assistance, make sure you're in the right. For example, if you want someone to take videos or photos off of a public website claiming copyright infringement, you have to say so the nanosecond you become aware of it. If the respondent can show that you tolerated the content being posted for any length of time, they can claim that your consent is implied and your case is a house of cards in a hurricane.

Second, approach counts for a lot. Nuclear blasts have to be a last resort. Otherwise, your target will blast that content all over creation. So much for privacy and other "rights". Part of the "cease and desist" demand has to be persuasion. Force will backfire. The attorney has to be subtle enough to bring your target around to your way of thinking. Then your privacy and intellectual/creative rights will be worth something.

Only the parties involved know for sure who is in the right in their conflict. But being right doesn't amount to a hill of beans if care isn't taken in solving it. Or in the damage control if all attempts at care fail. If your reputation for being a bully precedes you, there's more damage to control.

I'll bet there's a lot more people looking at photos and videos wherever they can find them these days.... Bet somebody didn't want that to happen....

(No, I am not an attorney, however many of my friends, neighbors, relatives, sorority sisters, and business clients are - including entertainment - and they provided the background for tonight's schpiel.)

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