Court Tells Ex-Wife Of Husband Who Killed Himself To Use Copyright To Delete Anything He Ever Wrote Online
from the that's-not-what-copyright-is-for dept
Last week, we wrote about the unfortunate situation, in which it appeared that a lawyer representing Dina Mackney was claiming copyright on her ex-husband's suicide note (in which he says many unkind things about his ex-wife) and demanding the content be removed. Since then, we've found a lot more of the details of what happened, and discovered a lot of additional content that Mackney's lawyer has been able to remove from the internet with the help of a judge -- who not only gave the ex-wife full control over her ex-husband's "intangible assets" but further directed her to seek to delete all sorts of content from the internet. Now, I should note up front a few things: there may be reasonable claims from the lawyer concerning the privacy of the children (and possibly others) involved. Furthermore, having read through way too many details in this case, it should be noted that Chris Mackney does not come off as the most credible narrator of his own situation. This certainly makes the situation difficult on a variety of levels. That said, it is still immensely troubling to think about the kind of precedent this sets, and how it clearly sets up copyright as a tool for censorship, not just of a suicide note, but of all sorts of online activity. Furthermore, we've been careful in the documents that we're posting to leave out things that are more private in nature (which go beyond some of the claims in the suicide note), instead focusing solely on the legal issues here.It appears that, back in March, a judge put Dina Mackney in charge of Chris Mackney's estate. Given the rancorous divorce proceedings and the eventual suicide, this doesn't seem even remotely appropriate. Then, around the same time, a judge in a Virginia court basically issued a court order telling Dina Mackney to go ahead and seek to use those powers to basically censor a whole bunch of what Chris Mackney had to say online.
ORDERED AND DECREED that Petitioner shall have the legal authority to take any reasonable action necessary to access, remove and destroy any web postings, to require that websites be taken down and/or otherwise dispose of intangible property including but not limited to information that the deceased has posted online on any website or social media account including, but not limited to material located at the following domain names:After that is a long list of domain names, including various blogs that have discussed the Chris Mackney story, but also a broad swath of other sites, including all of Google (specifically calling out Google Docs and Google Drive -- where Mackney had posted many documents, including news articles that he believed supported his position), Facebook (where Mackney had originally posted his intent to commit suicide), Scribd, Reddit, Wikipedia and many more. Some of the links include sites where Mackney had previously commented on blog stories or other discussion groups.
The order goes on to basically tell Dina Mackney that she can seek to delete all evidence of her husband existing online at all:
... and to wind down and remove any website posts or other online activity by the decedent at such time and in such direction as the Administrator may deem appropriate, it being the intent that this Order shall apply to any online activity by the decedent during his lifetime.Again, even while being conscious of the legitimate privacy concerns raised by the situation, this is immensely troubling on multiple levels. First, the idea here is clearly to use copyright as a tool to delete Chris Mackney's online existence entirely. And, indeed, while the lawyer raises other arguments (including privacy and defamation), the letters (and I've seen about half a dozen at this point) all lead with the copyright claim, citing the DMCA's notice-and-takedown provisions. Here's one example.
Second, while some of the reposted content may raise certain issues, the content that Mackney himself posted to various sites clearly is not infringing. When he posted it to those sites, he almost certainly granted those sites a perpetual license to post that content. To after-the-fact claim copyright on it is bizarre and ridiculous. For much of the other content, Mackney himself clearly was granting an implicit license for the content to be shared (and sometimes shared widely). There may be legitimate reasons why that content should not be shared, but copyright infringement is clearly not one of those -- and that's what it's being used for here, not just for the content that may legitimately go too far from a privacy standpoint, but for everything Chris Mackney has ever posted online.
It's difficult to see how that's appropriate in any situation, even if we were dealing with a loving widow after decades of a happy marriage, let alone the opposing partner in a bitter divorce battle (no matter whose arguments in the divorce made more sense). The situation here is certainly messy, but using copyright to basically try to delete Chris Mackney's entire online presence appears to be a massive overreach of copyright law.
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Filed Under: censorship, chris mackney, copyright, dina mackney, estates, social media, suicide
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Just Bizarre...
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Wet dream of many ... doubt it is possible.
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A lot of that looks like things that Chris Mackney himself would not have had a legal leg to stand on trying to get it taken down.
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Good News
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Re: Good News
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Re: Re: Good News
DRM means that the equivalent of "new owners demanding all DVD's be returned or destroyed" is now available for a number of media.
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Re:
Have you been living under a rock? What do you think retroactive copyright extensions are? If you bought a record in the sixties, you were granted the right to freely copy and distribute it now or even considerably earlier.
This right has been withdrawn since then.
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Clarify
I would think that if its a state court then the order wouldn't be binding outside of that state.
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Re: Clarify
It's a state court. The documents are now embedded under the article.
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Re: Re: Clarify
Great, another state on my s**t list - it can go right next to New Jersey.
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Re: Clarify
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Documents available...
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Re: Documents available...
Please contact me.
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Remove him from the company web site. Remove his domain login. Remove his email account. Remove his phone extension. Remove his voice mail account. Remove his information from his PC. Remove him from various other online accounts and services. It was like I was killing off the remaining part of him, and burying the traces that he ever existed.
To do it maliciously - or even merely without an appropriate reason - seems unspeakably evil.
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Re:
And that's what is pretty galling about this situation. While there could be points in this particular situation where some of Chris' speach could and maybe should be removed, like for purposes of legal privacy, defamation, or even simple decency.
Instead a completely different person (and one that almost definitely has a specific, and possibly dishonest agenda) is given full rights to request the removal of all of Chris's speech and expression regardless of the reason? I can really feel the 'progress of the arts' right there. Again copyright is being used for a purpose completely separated from its intent.
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Re: Re:
A note to Ms. Mackney, and I mean this with all due respect, I hope the internet destroys your entire fucking life.
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Re:
It makes no sense to continue the fiction that the man is alive or still working for the company when he is not. In my company, when someone leaves, this is what we do because that person isn't available any more to attend our customers. However, a comment in the company blog, or even an entire post to wish the person well, often follows when someone decides to leave for another position elsewhere. I'm sure your coworker received a memorial writeup somewhere in the company blog or social media. That's appropriate. Well, I hope he did.
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I can't help but wonder...
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The problem with your argument is that the licenses were revocable and were in fact revoked. But you'll just whine about everything, won't you?
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Re:
You know, just because you make an assertion doesn't make it true.
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If anyone else shared his suicide note post, Facebook retains a license to use it until everyone else who has shared it deletes it. This is only part of what you sign away to Facebook in return for using their services.
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Re: Re:
...and yet some people still insist that these services are free. Sad.
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Re: Re:
That is saying if you share something, you are permitting others to hold a copy, and deleting your account will not delete the copies you have permitted. That is nothing sinister, just the legalese to say that Facebook will not delete copies you have permitted others to have when your account is deleted.
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Re: Re: Re:
I notice that Facebook uses the “IP content”, while you're using the term copies. That provokes a question—
Are the copies at issue “computer programs”?
Are the copies used by Facebook computer programs?
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Re:
Those licenses are and cannot be revoked other than by the actual licensee and NOT by his estate for the purpose of desecration (what other word is there) to remove fully and with malice all history of the persons absolute existence and ideas on content that is absolutely not contextual to the action at hand.
In fact his actual descendants (children) would have an absolute case against there mother (even now) for removing there fathers thoughts and actual online being and therefore denying them the absolute right to know whom he was.
This doesn't stop specific information from being removed, but that specificity has to be weighed against the absolute human right to be immortalized by your thoughts and actions no matter what those thoughts/actions are. For the mother to even attempt this malicious and ego driven action means she has major psychological issues and gives reasonable suspicion that the children might be at risk of psychological or other abuse. The triggers are all there.
She isn't just desecrating the memory of their father, she is removing him from ever existing in the first place in all ways shapes and form.
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Re: Re:
Licensee? Did you mean licensor?
licensee [dictionary.law.com]
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Re:
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Court orders
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Re: Court orders
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Re: Re: Court orders
Notice was never served upon the ex.
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I mean how spiteful, how petty, do you have to be to want to completely eliminate any evidence of a person from the net once they're dead? To completely destroy any trace of them so that they might as well have never existed?
That, to me, is not the kind of actions a decent person would even consider, so by her own actions she seems to be doing nothing more than validating any claims he might have made against her and her nature.
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Re:
Just make it clear he's not with us any more so people don't go trying to get in touch with him. I mean, who handles the account when someone passes away? It'd be appropriate to make a memorial page but to leave the guy's online litter lying around... why would you do that? It's like refusing to tidy up his room or give away his clothes because getting rid of his physical stuff means he never existed, or something.
It might be hard to do it at the time (imagine doing it for a baby, as happened to a friend of mine), but life goes on and sooner or later you have to let go.
Are we trying to immortalize ourselves digitally, like the ancient Egyptians did by making mummies? It seems like a weird thing to do, but if that's your intent I can understand it.
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That's what copyright terms are about.
This is a side effect of inheritable copyright. But frankly, this kind of "he/she never would have wanted that" effect is present for basically any kind of inheritance between people who have turned into enemies.
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Re: That's what copyright terms are about.
“Copy”, in the context of copyright, is a term of art.
There's a good argument that mere transient display is not multiplying copies.
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Re: That's what copyright terms are about.
If Linus Torvalds were to die, should all the various distributions of Linux cease to be distributed at the say so of his heirs? If Cory Doctorow were to die, should people no longer be able to share his works? It makes no sense to attach the enforceability of such terms to the existence of a signature. As with online forums, the authors' desire to publish is unambiguous and should not be revoked after the fact.
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Re: Re: That's what copyright terms are about.
The 17 U.S.C. §106(1) reproduction right uses the term “copies” which are defined in 17 U.S.C. § 101
The reasoning of MAI v Peak has been heavily criticized, and there is significant doubt whether the operator of a web server fixes multiplied “copies”.
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Re: That's what copyright terms are about.
Every competently written Terms of Service includes in one clause (call it A) a grant of perpetual license to display the posted content on the site, and in the Termination clause a statement listing many clauses that will survive any termination of the agreement that includes clause A. So, yes, armchair lawyer, the Terms of Service do "count" very much, because they probably provided that the man himself could not have used copyright to get his own posted content removed, so anyone who inherits his copyrights could not either.
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Re: That's what copyright terms are about.
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Did Judge say or suggest copyright?
I don't see where the judge suggests copyright is the tool to use. Is that spelled out anywhere. The judge gave Dina the legal power to do what she wants, and she and her lawyer may have chosen copyright as their tool, but the judge didn't really say or imply that, or did I miss that detail.
It seems Dina and her lawyer are the ones that got the coypright ball rolling, no?
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Re: Did Judge say or suggest copyright?
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Re: Did Judge say or suggest copyright?
I see defamation as the more valid way to take this stuff down but that is the harder path to prove (and the defendant is deceased) ... and I don't know if defamation laws are only monetary rewards or if they allow removal of offending content.
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Re: Re: Did Judge say or suggest copyright?
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Re: Did Judge say or suggest copyright?
It will really come down to whether or not any of the companies challenge the DMCA takedowns being issued to determine if they fall under the "reasonable measures" she can use. I would tend to think they amount to copyfraud, but I wouldn't imagine she is going to get much of a challenge.
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Re: Re: Did Judge say or suggest copyright?
It seems possible to me that the judge might find the use of copyright takedown notices to be *unreasonable*.
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Re: Re: Re: Did Judge say or suggest copyright?
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Re: Did Judge say or suggest copyright?
They're simply throwing everything at the wall in the hope that something will "stick", where "stick" does NOT mean stand up in court, but simply work to win *voluntary* compliance with the request. That's all they're hoping for, as that's all they're legally entitled to. The sites may well comply not because they're not sure they'd win in court, but because they simply don't care enough about the content posted by this one user to pay even one lawyer to fight it.
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Should be taken to heart by all who would alter history, especially when it is on the Internet.
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Re-moulding doesn't mean Deleting and rewriting!
PS: amazed someone else actually knows of Omar's works! awesome
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Legal question.
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The Judge has obviously overstepped the authority granted the office, and one should be curious who the Judge appointed to argue for the rights of the decedent.
To give power to the opposition without any testimony from the other side would seem like a gross miscarriage of justice. Even if every word he said was false, something the court couldn't really hear without representation for BOTH sides, giving her the power to wipe away every trace of his speech is chilling.
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Appointment of Administrator
I'm not going to go looking around on this but it appears that the husband died intestate. Had he left a will then the person he named would be administrator of his estate unless they declined or were unable to perform the functions required.
If the divorce was not final she was still his next of kin and would be appointed without question. If the divorce was final and she had custody of his children who would then be considered next of kin, she would be appointed executrix to protect their interests, if any, in the estate. If no one else was interested then she could have been appointed because she was the only one who asked.
Take away: Make a will and update it when your life changes.
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Re: Appointment of Administrator
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Streisand Effect!
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natural selection?
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Article
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