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.

Filed Under: censorship, chris mackney, copyright, dina mackney, estates, social media, suicide