Dr. Phil Sues Deadspin For Reporting On Manti T'eo Hoax Even Though Deadspin Broke The Story
from the who's-leeching-off-whom? dept
If you recall the insane concept of "hot news," you know all about the attempt to treat factual information as intellectual property as long as you were breaking that information as news. Courts have since seen through that kind of insanity, but that doesn't keep some of the more obnoxious organizations out there from attempting end-arounds that amount to the same thing. And since I used the word "obnoxious," you just had to know that the latest example of this is going to feature Dr. Phil, who is every bit an M.D. as I am a velociraptor.Many months back when people still gave a damn about college football, Dr. Phil had a two-part series with Ronaiah Tuiasosopo, the man who says he perpetrated the hoax of a fake, dead girlfriend on Notre Dame linebacker and now NFL draft-dropper Manti T'eo. Deadspin covered the story, including the use of clips from the show, in which Tuiasosopo performed his falsetto girl-voice in one of the most awkward television moments this side of that one time when Tom finally caught Jerry and ripped his limbs off in victory (FYI, that never happened). Dr. Phil has apparently cried copyright foul. His reason for this is that some of history's worst math mixed with a touch of irony told him that Deadspin's coverage cost him massive amounts of viewers.
Peteski Productions is arguing that Deadspin spoiled a two-part cliffhanger on the Dr. Phil program by posting a clip of Ronaiah Tuiasosopo speaking in what he said was the voice of the fictitious girlfriend "hours before the Dr. Phil Show aired to over 98% of its viewers." In other words, the clip was posted after the episode of Dr. Phil had already been broadcast in some markets, breaking the show's own news blackout on the question of whether or not Tuiasosopo would perform the female voice.
According to Broadcasting & Cable, the first and second parts of the interview drew 4.8 million and 4.3 million viewers respectively, exceeding the show's average of 4.1 million. That performance helped make Dr. Phil the No. 1 rated syndicated talk show for that sweeps period.Keep the math we're discussing here in mind, because the level of stupid is about to approach epic proportions. Dr. Phil's ratings during those two shows exceeded their averages. Meanwhile, the two Deadspin posts in question garnered a grand total of 164k views together. The lawsuit alledges that the second Deadspin post, which had 103k of those views, caused the drop in viewership between the first and second episodes of the Dr. Phil show. Read that again. A post with roughly 100k views cost Dr. Phil 400k viewers. Clearly, Dr. Phil's doctorate isn't in mathematics. Nor is it in intellectual property law, I'm afraid, as most people would have to conclude that using the short clips to report on the story, with additional commentary, would very likely fall under fair use.
So, there you have the bad math part. But I promised you irony, didn't I? For that, we'll return to the lawsuit, which references Deadspin's ex-editor, AJ Daulerio's joking claim about how people refer to the site as a "content remora" and then the lawsuit helpfully goes on to describe exactly what that is.
A remora is a fish, sometimes called a suckerfish, which attaches itself to other fish like sharks. The host fish gains nothing from the relationship but the remora is enriched by obtaining benefits (usually food and transportation) from the host.Got it? The lawsuit is claiming that Deadspin is leeching off of Dr. Phil, providing nothing to them but benefiting from Dr. Phil's laborious undertakings. So why is this ironic? Well, because Deadspin broke the damned T'eo story to begin with. No Deadspin, no Dr. Phil shows with higher-than-average ratings. The remora reference would only be apt if remoras left their host sharks regularly to order those sharks Chinese takeout and deliver said takeout personally. And, of course, Daulerio's use of the term, in context, shows that he was actually mocking those -- like Dr. Phil -- who falsely imply that Gawker and its sites like Deadspin only leech off of someone else's content. The whole point of Daulerio's statement was to show that they're not, in fact, leeching, and yet Dr. Phil's lawsuit attempts to flip that around.
So take your own advice and get real, Dr. Phil. This was a case of fair use and your piss-poor math is as laughable as it gets. You should be thanking Deadspin for the story in the first place, not slinging mud and lawsuits in their direction.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: aj daulerio, copyright, deadspin, dr. phil, fair use, gawker, manti t'eo, ronaiah tuiasosopo
Companies: gawker, peteski productions
Reader Comments
Subscribe: RSS
View by: Time | Thread
He's not a doctor
[ link to this | view in chronology ]
Re: He's not a doctor
[ link to this | view in chronology ]
Re: Re: He's not a doctor
And he was hilarious in that film. He saved Shaq.
My fav is still Scary Movie 2, James Woods as Father McFeely was down right awesome!
[ link to this | view in chronology ]
So thats why you wear the Dark Helmet
[ link to this | view in chronology ]
Shortest litigation ever...
[ link to this | view in chronology ]
The Supreme Court's adoption of the hot news doctrine in INS is very much good law today. What's insane about it? It's a legitimate claim. It hasn't been preempted by federal copyright law. See, e.g., H.R. Rep. No. 94-1476, at 132 (1976) (��Misappropriation� is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as �misappropriation� is not preempted if it is in fact based neither on a right within the general scope of copyright . . . nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy . . . against a consistent pattern of unauthorized appropriation by a competitor of the facts . . . constituting �hot� news, whether in the tr aditional mold of International News Service v. Associated Press or in the newer form of data updates from scientific, business, or financial data bases.�) (internal citation omitted); NBA v. Motorola, 105 F.3d 841 (2d Cir. 1997) (holding that hot news misappropriation claim was not preempted by Copyright Act). Some claims may be presented as hot news that are in fact copyright claims in disguise and thus preempted, but hot news is very much alive and well.
And since I used the word "obnoxious," you just had to know that the latest example of this is going to feature Dr. Phil, who is every bit an M.D. as I am a velociraptor.
You do realize that people with a PhD often are called "Doctors" because, well, they hold a doctorate degree, right? Apparently not.
That said, what does hot news misappropriation have to do with this case which has only one claim which is copyright? Are you sure you're qualified to discuss legal matters?
[ link to this | view in chronology ]
Re:
Are you? Wait, I don't even know who you are.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Is it?
http://www.medialawmonitor.com/2011/09/the-future-of-the-hot-news-misappropriation-tort-after-ba rclays-capital-inc-v-theflyonthewall-com/ makes a good case for why it is not and the courts recognize that.
Separately, can you name a successful hot news case in the last decade?
You do realize that people with a PhD often are called "Doctors" because, well, they hold a doctorate degree, right? Apparently not.
You do realize that he has used the title to imply he's a medical doctor, right? Apparently not.
[ link to this | view in chronology ]
Re: Re:
Really? Doctor Phil annoys me for some reason but he doesn't come across as dishonest. Maybe he just spoke in a haste and wasn't really thinking. People make mistakes. Then again I don't really watch his show though I've seen a few snippets as others were watching it. I don't know how anyone can sit through it.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Not that I don't believe you but do you have a citation for this?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
Why let someone who does not understand get you so worked up?
[ link to this | view in chronology ]
Re: Re:
I'm not saying you're wrong, but some evidence would be useful.
If he used the title to imply that he is a qualified clinical psychologist, to the point of having a master's and doctorate in that field, then... well... that would pretty much be the opposite of misleading.
[ link to this | view in chronology ]
Re: Re:
I was actually coming back just now to correct my mistake in saying that INS is still good law. It's not after Erie, as you point out. Nice catch. I appreciate the correction. While INS itself is not good law in that there is no federal common law claim for hot news, the point remains that state law INS-like claims survive preemption. The "June 20, 2011, a three-judge panel of the Second Circuit Court of Appeals" you cited to is the opinion in Barclay's. The court there was applying New York state misappropriation law, which, as the panel in NBA held, is not preempted by the Copyright Act. In other words, hot news is a viable tort in New York to this day--as it is in other states. There is no FEDERAL common law action for misappropriation post-Erie, but the state law torts still exist.
Separately, can you name a successful hot news case in the last decade?
Not off the top of my head. I think you fail to understand that hot news is just a subspecies of the tort of misappropriation generally, and that misappropriation itself is a subset of unfair competition law (trademark law is another subset of unfair competition, for example). These notions are centuries old (which is why the Supreme Court in INS was comfortable identifying a federal common law misappropriation claim). You might consider reading up on this stuff since it's quite interesting and it would give you some broader perspective on things. You might be surprised to find out that not all competition is fair.
You do realize that he has used the title to imply he's a medical doctor, right? Apparently not.
Really? Seems to me he's accurately reflecting his PhD. What causes you to think he's intentionally misleading people by accurately using the title? Sounds like FUD to me, unless you have evidence to back it up. I'd love to see your evidence.
[ link to this | view in chronology ]
Re: Re: Re:
You should be bothered by c) the most because nothing you've offered actually refutes anything Mike said. All you've offered is your profound and hollow belief that you are more knowledgeable and therefore right. Blech--people like you really piss me off.
I've been reading this blog for years and perhaps it is you that needs to do some reading so that you'd realize that Mike has not only a deep understanding of this material, but he demonstrates it over and over again with both references and facts.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
and who are you again? At least I know who Mike is so his findings can at least be traced to someone to hold accountable for them when wrong, why should I care about the findings of some random AC? I have a much longer history of Mike than I do of you.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
It's television, it's supposed to get viewers. In order to do that it's common to take something mundane and boring and present it in a captivative manner. To me it's still mundane and boring and I don't see how anyone can see it as entertaining.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Good point....thing is about Dr. Phil...until that episode about Asperger's Syndrome he had a really high ratings score.
[ link to this | view in chronology ]
Re: Re:
Source: http://www.drphil.com/shows/page/bio/
Sounds like a real doctor to me. Licensed and practice clinical psychologist. I'd love to see where he pretended to be an M.D. Doesn't sound at all plausible, Mike. I know you're an evidence-based buy, so I can't wait to see your evidence.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
That being said, I have had more value from treatment from non medical Masters and PHd's than from the folks that can prescribe. One med that I was told absolutely not to quit 'cold turkey' I did quit 'cold turkey', and nothing happened. In an encounter with the prescriber a short while later, he said after I reported that nothing happened, and I quote "It was only preventative". How should that make one feel about the medical profession?
I would not feel comfortable talking to a guy like Dr. Phil, and certainly not on TV. If one really wants to deal with their issues, stuff, more personal than might be revealed in even an hour of 'TV Therapy' is necessary. THAT stuff takes time to get to.
There is a difference between treating symptom vs treating cause.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
http://everydaypsychology.com/2008/01/is-dr-phil-actually-psychologist.html#.UYs7YrWR-S A
Not licensed. Not allowed to imply he's a psychologist. Not allowed to make use of it except for entertainment purposes. And yet... he's done all of that.
Fwiw, there are two people in my immediate family with PhDs. One in psychology. Neither regularly uses the term "Dr." except in exceptionally formal settings.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
In my field, once you fail to pay your annual dues to the professional engineering association, you lose the right (privilege?) to call yourself an engineer.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
That's stupid and I think against free speech rights. If I wanted to recommend a doctor, even as a non-doctor, why can't I? and if it is my free speech to recommend someone why can't someone with a Ph.D. do the same?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re:
When I make a referral to a patient to a psychiatrist....it's usually because I sit down with them and actually analyze what is going on with them and get to know their quirks...but all in an onjective mannor. Before I make the referral, my analysis usually checks in with reference materials I have on hand just in case I feel that medication is needed...after which, if it is so deemed, I refer them to a psychiatrist so that they can get treatment. You have to be liscensed to do that so you don't endanger people's lives.
Lets see what Dr. Phil does that violates typical practices of actual psychologists.
1. Client confidentiality...you loose your lisence for doing that. His show is public...no confidebtiality what so ever for his "clients".
2. Part of renewing your lisence requires you to be up to code with current DSM standards and diagnoses. He has not renewed his since his show started.
Oh and I do charge about $150 for a half hour session....
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
Well, yeah, but if the patients themselves make information public there is little you can do to stop them (short of locking them up?). If the people on Dr. Phil are willing to go public with their information then how much confidentiality can they reasonably expect? I understand if patients were seeing the psychologist privately then there would be a reasonable presumption of confidentiality that the Dr. would generally be bound to (with few exceptions).
Then again you can argue that some of this might involve the patient's family or guardians publicizing some of this information on T.V. even if the patient would rather not. But they can do that without Dr. Phil.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
That's not a problem in his case. Approximately 100% of the "advice" that he gives on his show is common sense and general.
If anyone came in with a problem that required specific treatment, that probably wouldn't end up on his show.
[ link to this | view in chronology ]
Re:
You do realize that your sarcasm detector is malfunctioning, right? You do realize that the author probably knows this but he sometimes gets a bit facetious. You should realize this by his previous posts by now.
[ link to this | view in chronology ]
Not everybody who has a PhD will be a "Medical Doctor".
[ link to this | view in chronology ]
Re: Trainers
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
This is no defense of his actions though. I giant douche bag is a giant douche bag, with or without a title.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
Of course, this doesn't mean that there aren't both M.D. and PhD holders who are mouth breathing idiots, and Doofus Dr. Phil, assuming he really has any sort of legitimate credentials, is a prime example of a pompous dumb-ass whose ego constantly writes checks his abilities can't make good.
[ link to this | view in chronology ]
A remora is NOT a leech.
Just sayin'.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
I'm sure you all know the one where the guy actually makes a woman cry.
Harsh? Too bad I'm OOTB and I find it very funny.
Also, I hate velociraptors they're always crawling up your asshole and biting it from the inside.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
But yes, Dr. Phil is a fraud...not one thing he tells people about actual disorders is true.
[ link to this | view in chronology ]
Dr Phil being spectacularly wrong?
[ link to this | view in chronology ]
[ link to this | view in chronology ]