Maryland Council Member Kirby Delauter Admits He Was Wrong To Threaten To Sue Newspaper For Using His Name
from the well,-at-least-you-figured-that-out dept
Earlier this week, we wrote about Kirby Delauter, a Frederick County, Maryland, Councilmember who got angry about some press coverage he didn't like, telling the reporter on Facebook that she was not allowed to use his name without "authorization" and threatening to sue.
This made some people wonder if Delauther would keep digging or admit his error. The wise move is to admit being wrong -- but all too often we see people in these positions keep digging, somehow hoping that standing by their argument will somehow magically make them pop out on the other side of the world where everything is right again. This never works.
So, at the very least, kudos to Delauter for taking the other option and actually admitting he was wrong:
“The first amendment is alive and well in Frederick County. As a public figure working to maintain and improve the county, it can be very frustrating to feel misrepresented or misinterpreted by a local media outlet.It does seem a little late to recognize the basic fact that, yes, anyone can use your name in a news story (even if you're not an elected official), but at least he decided to admit his mistake rather than choosing the alternative.
“Over my career I have fired off my fair share of angry e-mails, which in hindsight I wish I hadn't. I can't think of one that had a positive effect. Usually, they only served to escalate the conflict. I thought I had long ago learned the lesson of waiting 24 hours before I hit the send key, but apparently I didn't learn that lesson as well as I should have.
“Of course, as I am an elected official, the Frederick News-Post has the right to use my name in any article related to the running of the county -- that comes with the job. So yes, my statement to the Frederick News-Post regarding the use of my name was wrong and inappropriate. I'm not afraid to admit when I’m wrong.
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Filed Under: apology, free speech, kirby delauter, wrong
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Too specific?
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He does deserve props for recognizing his mistake, which is more than can be said for other elected officials.
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(sic) Daylater?
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Re: (sic) Daylater?
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And once Kirby finished telling his story, his attorney filled him in on the fact that he wouldn't be able to sue for 1 billion dollars because he is a public official and it would be fair use under the first amendment, so he should come back from Fantasy Island and get a grip on the fact that he was wrong and would only further peoples opinion that he was being an ass.
Now I am only guessing here, but it wouldn't surprise me at all if a call like that didn't take place.
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Just wanted to mention that a newspaper (or anyone) is free to write about anybody they please, whether a public official or not. And fair use is related to copyright, which doesn't enter into this situation. Delauter was wrong because of the 1st Amendment, not because he's a public figure.
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That gives me a bit of a migraine.
Fair use is 17 usc 107. It's part of the copyright act.
The first amendment is a part of the constitution.
The first amendment trumps the copyright act. However, they are two separate doctrines, and one can still have constitutionally protected speech that is a copyright violation. Meaning you can go ahead and say it, but you will have to pay someone for it. For instance, it is entirely constitutionally protected for me to display "Skyfall" on a 40 foot screen in times square - but unless I paid royalties, it would be a gross copyright violation.
Importantly, however, at issue was libel law. Libel is printing falsehoods about another person. If the person in question is a "public figure" then the complainant (i.e., the person suing) needs to prove "actual malice." This is exceedingly hard - and rightly so.
The issue here is not copyright, not first amendment law, but libel law. And Delauter obviously was completely clueless about libel law, until, as you rightly point out, his lawyer corrected him.
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I know that's how the law works, but surely you can see you completely insane that is? Those two parts of the Constitution are clearly at odds with each other -- something even the framers acknowledged. There are so many exceptions to copyright law precisely in an attempt to minimize the amount that copyright law limits the first amendment.
And if you have to pay someone to say something, that speech isn't free at all (I'm not using "free" in the monetary sense there.) It's speech that remains tightly controlled by someone else.
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The first amendment guarantees that the government cannot lock you for speech *before you have made the speech.* You can, and rightfully so, be sued by private third parties, fined or jailed by the government, for the *content* of your speech. What the first amendment does it make it so that you cannot be imprisoned or fined by the government for a "prior restraint" on speech - i.e., the government gets wind you are going to publish a tell-all about topic X (think Snowden here) and then throws you in the slammer to prevent it.
Additionally - copyright law is *not* a part of the constitution. It is authorized by article 1, section 8, clause 8 of the constitution, reading:
"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
I would argue, and I think Masnick would agree, that the current scope of copyright law in particular vastly exceeds its original mandate. However, you are confusing two different parts of law, and they are distinct for very good reasons:
The first amendment has *nothing* to say about what you may owe to another private party as a result of a lawsuit because of the content of your speech. All the first amendment has to say is that the government itself *cannot stop you from speaking in the first place.* They are two wholly different concepts. That we currently have crappy copyright law is incidental - however, the proper function of the first amendment is foundational and systematic to our very system of governance.
Copyright law can be changed, assuming that the congress ever has the willpower to do so. I imagine that fair use will get a substantial expansion in the not too distant future, as digital natives start to get elected to office and the white-hairs die off.
However, I am a young man, and I do not have any reasonable expectation whatsoever that I will see a constitutional amendment, for any reason, executed within my lifetime.
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Not just before, but during and after as well.
And this is where the conflict comes in. Copyright is government: it is federal law that restricts speech. The constitution restricts the power of government from doing this. That's the conflict.
"I would argue, and I think Masnick would agree, that the current scope of copyright law in particular vastly exceeds its original mandate."
I agree.
"I imagine that fair use will get a substantial expansion in the not too distant future, as digital natives start to get elected to office and the white-hairs die off."
You are much more optimistic than I. I think that if this happens at all, it is a LONG way off. A couple of generations, at least. The pressures that are causing copyright law to get increasingly oppressive over the years are not because of the age of legislators, and getting rid of the "white-hairs" wont affect things at all. The pressure is from the major amounts of money being paid by major corporations. I don't see that situation changing anytime soon.
I am reminded of the hippies in the '60s, who often opined that government will get better once the white-hairs of the day die off and are replaced with the enlightened youth. We can see how well that worked out. What really happened was that the flower children became the white-hairs.
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But I still have to disagree with you regarding the distinction between the first amendment and copyright law. Copyright is not enforced by government - it is enforced by private parties suing one another. It is a form of private ownership. Indeed, the publications of the federal government are actually explicitly barred from being the subject of copyright. Saying that "copyright is government" simply because it is enforced in a court is tantamount to saying that "theft is government" because I have the right to sue you, in a court, for your theft of my bicycle.
While I agree with you completely that copyrights are not like bikes, in that copyright is totally intangible, I have to disagree in saying that it is improper for a public institution, such as a court, to enforce rules over private citizens. It just doesn't make any sense. Is it "government" when I get to sue the factory next door for dumping cancer causing chemicals in my back yard? Is it "government" when I get to sue a car company because my car exploded due to egregious defects in its manufacturing? That proposition just doesn't make much sense to me.
And, honestly, in the end, I think you have to remain optimistic. If you cannot believe in a better future, why even get out of bed in the morning? Just to watch the world burn? Count me out.
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Saying that "copyright is government" simply because it is enforced in a court is tantamount to saying that "theft is government" because I have the right to sue you, in a court, for your theft of my bicycle.
As far as it goes, that's mostly the same. You can sue over copyright infringement because copyright infringement is illegal, just like you can sue over theft because theft is illegal. One is statutory and one might be common law, but otherwise yes it looks the same to me.
It just doesn't make any sense. Is it "government" when I get to sue the factory next door for dumping cancer causing chemicals in my back yard? Is it "government" when I get to sue a car company because my car exploded due to egregious defects in its manufacturing? That proposition just doesn't make much sense to me.
Of course it is. What do you think the courts are if not part of the government? Where do you think those rules you're suing over come from if not the government?
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It is not a form of private ownership. It is a government-granted monopoly. Criminal copyright infringement is not private parties suing each other, it's the government directly enforcing copyright law. Civil copyright infringement is private action in terms of how it works -- but it still counts as government action, since it is still using a power that the government grants. In a sense, the private party is acting as a government agent.
"I have to disagree in saying that it is improper for a public institution, such as a court, to enforce rules over private citizens."
I never asserted otherwise, and can't find n my comment where I implied that I did. Perhaps I did not make myself well understood.
"Is it "government" when I get to sue the factory next door for dumping cancer causing chemicals in my back yard? Is it "government" when I get to sue a car company because my car exploded due to egregious defects in its manufacturing?"
But those are cases where you have had your property or contractual rights infringed. Copyright is nothing like that. Copyright is a government-granted privilege, not some kind of right.
"And, honestly, in the end, I think you have to remain optimistic. If you cannot believe in a better future, why even get out of bed in the morning? Just to watch the world burn? Count me out."
Oh, I agree. I'm actually a strong optimist about the future. I'm just skeptical that we can overcome the power, money, and wishes of megacorporations when it comes to copyright in the near future -- I think this will be a long haul battle (in part because it's a battle we've been fighting for decades, with negative progress to show for it.) This is a point I would be thrilled to be wrong about.
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If that's true, please explain why copyright infringement is treated as a criminal offense, why the DOJ went after Kim Dotcom, and why Homeland Security keep shutting down websites for infringement on the rightsholders' say-so. Explain SOPA and the endless attempts to bring it back piecemeal.
It is a form of private ownership.
Constitutionally, it's a temporary monopoly privilege. This has been misrepresented by IP maximalists as both property and a welfare scheme for creatives and their families, neither of which was the Founders' intention.
As for getting to sue the factory next door for dumping chemicals, see this: Put simply, Tort Reform means making it harder for citizens to sue corporations.
Good luck with that, depending on where you live.
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Kirby Delauter, Kirby Delauter, Kirby Delauter
Wrong again, Kirby. They can use your name in any article about any topic.
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Why is this idiot still in his position?
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Re: Why is this idiot still in his position?
The concept that public officials can never make substantial mistakes without resigning is a) contrary to the human condition, and b) contrary to our best interests.
For a), we're all flawed humans and we make mistakes--its part of how we learn and part of how we innovate and grow. That doesn't mean damn the consequences, but it does mean that we need our leaders and administrators to feel they have some ability to use judgment and take risks. Otherwise, we're led to b).
For b), it is in our best interests that public officials feel safe to admit mistakes. If every significant mistake results in scorched earth, we'll end up with the result we often see today: no one admits mistakes even in the face of overwhelming evidence because the personal cost is too high. I contend that a situation where the public official admits their mistakes, is possibly punished, but remains in place, is the best possible outcome. There is a limit of course, and that's what makes this hard, but zero mistakes should not be the limit.
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As you say, there are limits, but I really like to see people, especially politicians, able to admit mistakes, truly learn from them, and not repeat them.
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For c) keeping them their current jobs and limited to advance no further in their positions of power until they can truly (not some smarmy attempt at an apology) admit their mistakes, will hopefully serve as a deterrent to others with their own megalomaniac ideals of self importance.
The quicker these types of individuals can be singled out and dealt with, before they advance to stages of higher levels of power, the less damage they can do in the long run.
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Re: Re: Why is this idiot still in his position?
Tho he'll probably get re-elected by his more stupid constituents.
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I would say the election is how they should tell them that. I certainly wouldn't resign mid-term because I was unpopular.
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Snowing in hell?
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c'mon...
No mealy-mouthed non-apology apology. Slight nod to humor (and admitting to past lapses is a nice touch). I'm down with this.
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Re: c'mon...
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Re: c'mon...
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Our brains do funny things when our level of perceived injustice hits a certain level -- we end up doing/saying things that in no way reflect our everyday personality. To me, this actually sounds like it was written by Delauter -- the noted disconnect makes it seem all that much more probable.
Believe it or not, people make mistakes, and sometimes even admit to them and try to avoid them in the future.
Then again, this is why I think that no politician should be allowed to touch social media for anything related to their job -- it's too easy to mouth off and have yourself not misrepresented, but represented in a way that shows only your bad side.
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People screw up. All of them. But most of them won't admit it or say they were wrong for it; most of them get defensive and explain how they were right all along. Kudos to any individual with the humility to admit their failures.
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If someone managed to actually be perfect, I would consider that a character flaw.
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I think he had help
Which doesn't change the fact that he did make a real apology, but I don't think it got as far as his lawyer.
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Dang
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2) inflated sense of self importance - check
3) clueless idiot - check
4) megalomaniac tendencies - check
5) elected official - check
Sounds like a professional politician. What personality flaws contribute to this deviant behavior and how can a society work to correct them?
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