Dear Angry Person: People Who Criticize You Likely Aren't Defaming You Or Infringing On Your Copyright

from the just-saying dept

Mon, Jul 9th 2012 8:15am — Mike Masnick

What is it about people who can't take criticism and suddenly think that anyone criticizing them either (a) defames them or (b) infringes on their copyright? We see it over and over again. It almost makes you wonder if we can't spread a basic message that screaming about those two laws, when it's clear that you're actually just pissed off that someone is mocking you, is going to backfire badly. The latest case study on all of this: a political cartoonist I'd never heard of named Donna Barstow. The long-standing internet community Something Awful had a forum thread in which they were criticizing political cartoons which they felt were, well, something awful... and some of Barstow's one-panel cartoons showed up and were roundly criticized.

Barstow, apparently unfamiliar with the "sticks and stones" adage, decided to lash out at the Something Awful community, accusing them of copyright infringement and defamation. She did this mostly on Twitter, where she made accusations against Something Awful that were at least on par with the criticisms the community made about her cartoons. This set off a big back and forth, which BoingBoing covered in great detail, including her insistence that those posting her cartoons and commenting on them were "stealing" and that their arguments of fair use did not apply. Her reasoning doesn't make much sense. She just insists that fair use doesn't apply to Something Awful.

"You steal my cartoons (read definition of Fair Use - NOT on SA) and ignore my takedown & DMCA notices. That's evil," she wrote.

To bolster her case, Barstow evoked the Federal Trade Commission, the U.S. Copyright Office and the Digital Millenium Copyright Act, and cited today's story in the LA Times describing how Twitter gets 80 percent of requests for user information from U.S.-based police forces.

As it escalated from there, Barstow also claimed that the Something Awful forum "defamed my work," which got Ken from Popehat and Adam Steinbaugh (two of the best chroniclers of the Charles Carreon affair) to jump in and ask for what she meant. Ken recorded the details of the "conversation" (if you can call it that) in a few screenshots, reposted here:

By the way, her response to Ken's question... was to block him on Twitter. Classy.

Of course, none of that makes any sense. The fair use claim is pretty strong. It's so strong, in fact, that Donna Barstow has a history of taking one panel comics from other artists and posting them to her own site for the purpose of criticism. Here she is posting and commenting on a comic by Ted Rall.

Fair use for me, but not for thee... apparently.

Ken, as he is known to do, wrote a blog post in which he presented what the law actually says and why Barstow's claims of both infringement and defamation are totally bogus. Here's just a part of it, though I recommend reading the entire thing at the link above.

Similarly, if Barstow thinks that she can sue Something Awful and its goon squad for defamation for calling her a racist, she is similarly badly mistaken. First, Something Awful is completely immune for the comments of its forum visitors under Section 230 of the Communications Decency Act. Second, calling Barstow a racist based on her comics is classic pure opinion absolutely protected by the First Amendment. This is not a case of opinion premised on false unstated facts, as if someone said "based on what I overheard Donna Barstow say, she is a racist." Rather it's pure opinion based on disclosed facts — the very cartoons she complains they posted. (Note that this strengthens the fair use argument.) Partington v. Bugliosi, 56 F.3d 1147, 1156–1157 (9th Cir.1995) ("when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.") Such accusations of racism are routinely protected as opinion by the courts. See, for instance, Rambo v. Cohen, 587 N.E.2d 140, 149 (Ind.Ct.App.1992) (statement that plaintiff was “anti-Semitic” was protected opinion); Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir.1988) (Illinois law) (accusations of “racism”); Smith v. Sch. Dist. of Phila., 112 F.Supp.2d 417, 429–30 (E.D.Pa.2000) (granting judgment on the pleadings after concluding that the accusation of racism was an opinion); Martin v. Brock, No. 07C3154, 2007 WL 2122184, at *3 (N.D.Ill. July 19, 2007) (accusation of racism is nonactionable opinion in Illinois); Lennon v. Cuyahoga Cnty. Juvenile Ct., No. 86651, 2006 WL 1428920, at * 6 (Ohio Ct.App. May 25, 2006) (concluding that in the specific context of the accusation, calling a co-worker racist was nonactionable opinion); Puccia v. Edwards, No. 98–00065, 1999 WL 513895, at *3–4 (Mass.Super.Ct. Apr. 28, 1999) (concluding accusations of racism are nonactionable opinion); Covino v. Hagemann, 165 Misc.2d 465, 627 N.Y.S.2d 894, 895–96 (N.Y.Sup.Ct.1995) (concluding statement that plaintiff had “racially sensitive attitude” is not actionable). By contrast, cases finding that accusations of racism were actionable defamation usually involved implication of false facts. See, for instance, Overhill Farms v. Lopez, 190 Cal.App.4th 1248 (2010) (accusation that business fired workers for racial reasons was a statement of fact distinguishable from a mere opinion that farm owners were racist). And those are just the cases I found in about five minutes whilst distracted by yelling at an associate.

Now, most people might read that and think that, perhaps (just perhaps), Ken knows a thing or two about what he's talking about. Instead, Barstow apparently looked up his contact info and called him. Ken's summary of the call was appended to his post:

Thanks to someone on Twitter who pointed Ms. Barstow to my contact information, she just called me at my office. I would characterize the conversation as surreal. Among the things she said: (1) she saw that I didn't list copyright as an area of expertise, so how could I write about this, (2) she hadn't threatened to sue anyone, (3) she shouldn't have to put up with defamation, (4) how can I say bad things about her, (5) Obama created some sort of new copyright department but it was useless, (6) she was just trying to reach out to me person to person, and (7) she thought it was suspicious that I did not "sign" my post.

It certainly is true that no lawsuit has been filed here, but Something Awful does say that she sent them a note demanding they remove her "stolen works." Furthermore, regularly accusing them of "stealing" and of "defamation" certainly implies that she thinks she has a legal claim.

Either way, this seems like all too common a practice. Someone doesn't like being criticized (or mocked) online... and out comes the accusations of copyright infringement and defamation, even if they have no basis in reality. Yes, the copyright claims would need to be judges within the specific context of how the cartoons were used, but it does seem like there's a high likelihood of fair use, given the context. The defamation claims just seem silly. But, beyond all that, what seems clear is that Barstow isn't really concerned about infringement or defamation, but about the criticism of her work -- and resorted to using these two laws as a weapon to try to remove criticism.

This practice is not unique to Barstow, and it's why we end up covering so many cases of chilling effects that come about due to the misuse of both copyright and defamation threats. My general sense is that a lot of people don't understand either law very well, but recognize that both can be used to demand criticism be silenced. I'm not sure what the solution to all of this is, other than continuing to educate people how these interpretations of the law are wrong -- but also hoping they recognize how throwing around such accusations quite often leads to even further criticism and ridicule.

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Filed Under: criticism, defamation, dmca, donna barstow, fair use, something awful

58 Comments

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Josh in CharlotteNC (profile), 9 Jul 2012 @ 8:13am

Top 3
Top 3 groups not to piss off on the internet:

Anonymous
4chan
Something Awful

Wading into Apple/Windows/Linux flamewars is like poking a bear with a stick. Pissing off these groups is like poking a mama polar bear with said stick while you are between her and her cubs.
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The eejit (profile), 9 Jul 2012 @ 8:20am

Re: Top 3
Not quite: poking said communities is like putting out a campfire with napalm: a massive overreaction to a minor offense, if any even occurred.
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ken (profile), 9 Jul 2012 @ 8:21am

Criticizing Political Groups is now Racist?
Targeting someones political group is now racist? I know many on the left like to define racist so broadly you can drive a Mack Truck through it but this is ridiculous.
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Anonymous Coward With A Unique Writing Style, 9 Jul 2012 @ 8:33am

Re: Top 3
"Pissing off these groups is like poking a mama polar bear with said stick while you are between her and her cubs."

Well, I know where I'll be getting my entertainment from soon enough. To think, I was almost worried all this leftover popcorn from the Carreon affair was going to go to waste.

I can only imagine the response this is going to get, she strikes me as the Carreon type. I see this getting way worse (and hilarious) before she realizes she may have bitten off more than she can chew, and then asking the internet to leave her alone. I didn't feel bad for Carreon, but this lady... I feel some pity for her already.
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Dave W (profile), 9 Jul 2012 @ 8:33am

She needs legal counsel
She needs legal counsel and I recommend (for your reading pleasure): Charles Carreon.

I'm sure they'll get along like a thread on fire.
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Anonymous Coward, 9 Jul 2012 @ 8:39am

Re: Criticizing Political Groups is now Racist?
Except Barstow doesn't just target someone's political group.
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hfbs (profile), 9 Jul 2012 @ 8:42am

"...would need to be judges within the specific..."

judged*

:)
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Anonymous Coward, 9 Jul 2012 @ 8:46am

I really hope she keeps on digging. This is going to be fun.
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Jason, 9 Jul 2012 @ 8:47am

Her response is silly
She's just Carreon on....
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Anonymous Coward, 9 Jul 2012 @ 8:49am

Is it wrong that I sort of hope this goes full on Carreon Effect? I need something to brighten my day at work.
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Nathan F (profile), 9 Jul 2012 @ 8:55am

Re: Criticizing Political Groups is now Racist?
Wow.. so both the Republican and Democratic parties are racists! I already knew there were both filled with assholes, this just adds a whole new level to it.
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Nathan F (profile), 9 Jul 2012 @ 8:56am

Re: Her response is silly
We need to get a "Bad pun" button :p
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Berenerd (profile), 9 Jul 2012 @ 9:04am

Am I the only one?
I find it funny that the conversation in the comments section of boingboing gets side tracked about talking about throwing rocks at bears....
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Anonymous Coward of Esteemed Trolling (profile), 9 Jul 2012 @ 9:09am

Hey ... you forgot to mention trolls.

OH wait.... they are all trolls. OK then , this is my response.
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That Anonymous Coward (profile), 9 Jul 2012 @ 9:19am

I love her bit of insanity...
All of the obscene tweets I retweeted!!
So it is no longer obscene if you repeat it, or you have special rights, if it is obscene your then just as guilty.

I think its cute she makes snarky comments about people not having been to lawschool, because she is a self appointed expert who knows more than real lawyers.

She obviously is just drawing cartoons to appeal to her target demographic, and what appeals seems to be racism and finding all of the ills of the world are caused by people they dislike.

When she does it, it is a critique... when people do it to her its an attack. I find it amazing that what appears to be some of the most hateful people seem to have the thinnest skin.
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jakerome (profile), 9 Jul 2012 @ 9:20am

Ricochet the surf dog...
Has a massive following. That community has FREAKED OUT when discovering someone wrote a book including a story about Ricochet. You only need to get about 10 comments in to get the flavor.

https://www.facebook.com/SurfDogRicochet/posts/318905054866395
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Travis, 9 Jul 2012 @ 9:21am

Gone
How odd... Her site appears to be gone now.
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The Groove Tiger (profile), 9 Jul 2012 @ 9:23am

"D. Barstow @cartooness
... And are you actually suggesting that anyone in SA knows what parody is?"

'Course not, ma'am! I wouldn't dare suggest that! Everyone knows SA is serious business! Look, I found there this poster for the "Gandhi vs Jason" movie that proves it...
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Donnicton, 9 Jul 2012 @ 9:24am

Re:
Please tell me she has a husband who can compare SomethingAwful to Nazi Germany...
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Anonymous Coward, 9 Jul 2012 @ 9:27am

So, I'm thoroughly amused. I attempted to go to her site, and it's apparently blocked by my work web filter under the category "Illegal Activities".
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Anonymous Coward, 9 Jul 2012 @ 9:31am

Re: Re: Top 3
She's already taken her Twitter feed private.
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That Anonymous Coward (profile), 9 Jul 2012 @ 9:39am

Re: Gone
it appears to have been folded and now there is one of them awesome parking webpages....
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Anonymous Coward, 9 Jul 2012 @ 9:47am

Re:
I find it amazing that what appears to be some of the most hateful people seem to have the thinnest skin

This should amaze you less and less the more hateful people you meet. Hate is a philsophy for those too afraid to look within for change. The louder, more self-certain and more vitriolic they are on the outside, the more hopeless and desperate on the inside.
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Anonymous Coward of Esteemed Trolling (profile), 9 Jul 2012 @ 9:48am

she moves fast: Good for her.

http://opedcartoons.com/2010/12/16/cartoons-on-murder-a-shark-and-an-octopus/
gone !

quickly went to cache.
Got quick screencaps of the link mentioned, but its gone from google cache already. ( as I was looking at it)
Screencap One
Screencap two

http://opedcartoons.com is also now gone.

She tried an Inman and it didn't work.
She shouldn't be calling people thieves for criticizing her work.
But she doesn't deserve a world of hate for it.
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Anonymous Coward, 9 Jul 2012 @ 9:52am

Re:
I don't get it.
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Anonymous Coward of Esteemed Trolling (profile), 9 Jul 2012 @ 9:57am

Re: Re:
the one on the left is her original comic.
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Anonymous Coward, 9 Jul 2012 @ 10:09am

Re: Re: Re:
That makes it worse, I don't get either one of them. haha.
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Anonymous Coward of Esteemed Trolling (profile), 9 Jul 2012 @ 10:11am

Re: Re: Re: Re:
: )
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Anonymous Coward, 9 Jul 2012 @ 10:16am

Re:
FTFY:
She tried a Carreon and it didn't work.
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Spaceman Spiff (profile), 9 Jul 2012 @ 10:24am

Just in case
Just in case someone else hasn't also mentioned it (I haven't read all the comments), Barstow seems to be oblivious to the Streisand Effect, as well as to the fact that she is getting a very bad reputation on the net... So now we have the Carreon Effect, and soon the Barstow Effect. When will these maroons learn to let sleeping dogs lay?
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Anonymous Coward of Esteemed Trolling (profile), 9 Jul 2012 @ 10:24am

Re: Re: Re: Re:
I don't really get it either. It was her cartoon that she found funny, so I just twisted it back at her.
It doesn't mean I find it funny or unfunny. But "knowing" her humor (via her comic), she will find it unfunny.

There was also the unrelated point of, is criticism by copying "theft".
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Anonymous Coward of Esteemed Trolling (profile), 9 Jul 2012 @ 10:34am

Re: Re:
Calling a site that users upload images to "thieves" ?
I think you will find Inman done that.

Getting the law involved is all Carreon, he is a lawyer after all.
"It certainly is true that no lawsuit has been filed here"

no.... More of an Inman than a Carreon.
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mattarse (profile), 9 Jul 2012 @ 10:40am

Re: Re: Top 3
I'm personally just waiting for the next chapter in the blockbuster "The Carreon Effect". One of the most entertaining things I've seen this year, much better than "Prometheus".
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Anonymous Coward, 9 Jul 2012 @ 10:40am

Re: Gone
She will probably claim that there was a DoS attack :D
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fb39ca4 (profile), 9 Jul 2012 @ 10:46am

It's back
Charles Carreon 2.0
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Anonymous Coward, 9 Jul 2012 @ 10:49am

Re: Re: Top 3
It's like swatting a fly with an ICBM?
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The eejit (profile), 9 Jul 2012 @ 10:57am

Re: Re: Gone
a Direct Operating System attack? O.o
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Simple Mind (profile), 9 Jul 2012 @ 11:01am

Re: Re: Her response is silly
All puns are bad.
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Togashi (profile), 9 Jul 2012 @ 11:10am

Re:
Of course she has special rights; she's a creator! They get protection. All those other peasants are the ones who have to watch what they say and know what they're talking about.
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Anonymous Coward, 9 Jul 2012 @ 11:18am

Re: Re: Re:
"no.... More of an Inman than a Carreon."

1) Only because she didn't know how to file a lawsuit.
2) Inman used humor. From what I've seen of her work (which is getting hard to do as she takes her sites and feeds off th Net), she has the same sense of humor as Carreon...none.
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Anonymous Coward, 9 Jul 2012 @ 11:20am

Re: She needs legal counsel
"She needs legal counsel and I recommend (for your reading pleasure): Charles Carreon."

She needs psychiatric counsel.
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Anonymous Coward, 9 Jul 2012 @ 11:21am

Re: Re: Re: Gone
I think he means "Denial Of Service"...which I thought only worked on shopping sites...
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Anonymous Coward, 9 Jul 2012 @ 11:38am

Re: Re: Re: Re: Re:
"There was also the unrelated point of, is criticism by copying "theft"."

How can criticism be "theft"?
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Anonymous Coward, 9 Jul 2012 @ 11:44am

Re: Top 3
Or poking a mama polar bear with her cubs on a stick?
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Watchit (profile), 9 Jul 2012 @ 11:48am

Re: Re: Re: Re: Re: Re:
exactly, that's what we're asking her
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Anonymous Coward of Esteemed Trolling (profile), 9 Jul 2012 @ 12:03pm

1)true
2)true
I agree 100%...
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Anonymous Coward, 9 Jul 2012 @ 12:53pm

Re: Re: Re: Re: Re:
Ok, this I get. Thanks.
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Anonymous Coward, 9 Jul 2012 @ 1:37pm

Read the thread at Something Awful. You will get whats happening then. http://forums.somethingawful.com/showthread.php?threadid=3493770&userid=0&perpage=40&pag enumber=1
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apauld (profile), 9 Jul 2012 @ 2:24pm

Re: Gone
she actually took herself down (her sites and twitter feed), on Saturday (IIRC), after it was pointed out to her that she was complaining about copyright theft for the same thing she was doing to others.
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Anonymous Coward, 9 Jul 2012 @ 3:04pm

(7) she thought it was suspicious that I did not "sign" my post

I wonder if she's going to show up at SA? If she does, she'll get probated quick; I remember from when Jason Yungbluth got an account that signing your posts is frowned on there.
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CallmeFred (profile), 9 Jul 2012 @ 3:17pm

If she needs a lawyer, give her Charles, Esq's number.

Fred
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Cory of PC (profile), 9 Jul 2012 @ 6:12pm

Re:
I got "spam" as a filter block. Now I'm going to go make some. Maybe she'll enjoy some good spam...
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TojoHitler, 9 Jul 2012 @ 7:26pm

One of the best parts was when she confused 4chan with Channel 4 and was threatening to sue in the UK.
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Lurker Keith, 9 Jul 2012 @ 7:43pm

Re: She needs legal counsel
As I commented, before Mike revealed he'd written this & was waiting to edit before posting, one of the Popehat commenters said (& provided Tweet screen captures as evidence) he sent her to the parody Carreon site. When she complained, he gave her the link to the real Carreon site. Considering she'd read about Carreon, &, due to the context ("is he a real lawyer"), apparently the Oatmeal debacle, she really should've know this would happen.

Also, rather than make a seperate post...

Here's just a part of it, though I recommend reading the entire thing at the link above.
Mike, you forgot to link ot Popehat, so there is no link to the whole thing "above".
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Anonymous Coward, 9 Jul 2012 @ 7:45pm

Re: Top 3
"Something Awful"

That shithole still around? What is this, 2005?
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Lurker Keith, 9 Jul 2012 @ 9:14pm

The Oatmeal posted the money pics
Not sure where this should go so people can see it w/o waiting on Techdirt making an article (submitted it)...

The Oatmeal v. FunnyJunk, Part X: Philanthropy > Douchebaggery

Popehat has posted that The Oatmeal has posted pics of the money:

http://theoatmeal.com/blog/charity_money
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Anonymous Coward, 10 Jul 2012 @ 2:28pm

Re: She needs legal counsel
OH!! Mother fucker :( You beat me to it rofl!!
Well played sir.
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Anonymous Coward, 11 Jul 2012 @ 1:53am

So how long until the goons from Something Awful start asking people to make Mrs. Barstow kill herself? Cause that's usually how they work...
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