On June 8, 2012, my ISP forwarded me this takedown notice from Jaq D. Hawkins:
Claim ID: 612740
Requestor First Name: Jaq
Requestor Last Name: Hawkins
Requestor Company: Jaq D Hawkins
[Contact info redacted]
Complaint Nature: Copyright
Federal trademark registration number:
Additional Information: This website has a 5 page slander article that is not linked to by the main site which has been set up to maximise SEO for the sole purpose of causing loss of royalties to the author. There is extreme copyright violation in the extensive outline of the plot of the book that is slandered with mis-representation and derogatory comments included.
The relevant links are:
Please have this content removed within 28 days to avoid legal action.
Furthermore, I request the identity information of the site owner for purposes of potential prosecution.
Please note that I am deaf and have been forced to put an invalid phone number into your non-PC form to acess this complaint procedure.
...to which my ISP replied that they'd get around to horking up my "identity information" just as soon as Hawkins notified them she'd filed a suit.
Except that she doesn't have a suit.
Here, for the benefit of anyone required to evaluate whether my review constitutes EXTREME COPYRIGHT VIOLATION, is my reply:
1. In the U.K., book reviews are protected from libel suits under the defenses of both opinion and fair comment for purposes of criticism. You would have to prove that the objective facts reported were false--for example, "Dance of the Goblins stinks like a dead badger" is a matter of taste, and therefore protected opinion, but "Dance of the Goblins stinks like a dead badger because it was plagiarized badly from Jane C. Doe's masterpiece Boogie of the Pixies" is based on a provably false fact, and can therefore be deemed libelous. You've contacted me twice--in 2008 and 2009--about various facts on my site, and I edited my site accordingly. If you have any further facts to contest, give me the details, and I will make such corrections as are justified by the facts in question and your evidence to the contrary.
2. In the U.S., book reviews are also protected from libel suits under the defense of opinion. According to case law, readers are expected to know that everything in the review is the reviewer's opinion, and to expect those opinions to be stated colorfully, even hyperbolically. Again, only statements of fact that the reviewer knew to be false would be chargeable. (Note that DMCA takedown notices are solely for copyright violations, not for defamation claims.)
3. You yourself have written extensive statements indicating that you understand that book reviews are a matter of opinion. For example, in your blog post of May 17, 2012, "Someone Will Hate Your Book," you write:
Customer reviews are totally subjective, and every reviewer is an individual with their own criteria for what constitutes a good read. It is because people are all individuals that every writer has a virtual guarantee that somebody, somewhere, will genuinely hate their book. .... you are still left with a body of readers who each have their own tastes and preferences. ....
....There will be people who don’t like your writing style, no matter how good it is. Differences in intellect, motivation, interest areas and all sorts of factors determine what one reader likes and another will not. They simply have different criteria. Even the most popular books of all time have their detractors....
There are many variables that determine our book preferences. We cannot all like the same things exactly, but therein lies much room for diversity and a spectrum of adventures to discover. Even the best story would become stale if you never read anything else.
With all of this diversity, some readers will probably love your story while others hate it. The difference is that the latter is guaranteed. The former depends on whether you can write a brilliant story…in somebody’s opinion.....
Personally I take 'professional' reviews with a grain of salt. Many of my favourite films get a slating from the 'experts' while some boring piece of trash gets lauded as the greatest thing since sliced bread. I'm more likely to trust the opinions of people I know, adjusting for personal taste parameters.....
Once in a while I'll even get one of these hate reviews from someone who makes their opinion from highly edited reality television, in other words, who formed their opinion from my old episode of Dragon's Den.....
Given that you have devoted two long posts to describing book reviews as opinion--and refer to my site in veiled terms in one of those posts, without attempting to distinguish it from other, opinion-based reviews--you will be hard pressed to explain to any court why my review is now, suddenly, not a matter of protected opinion.
4. The U.S. has statutes of limitation for libel, which vary by state and apply equally to print and Internet publication. The latest possible date of publication for that group of pages was April 2009, over three years ago, and you personally visited the first incarnation of the page in 2008. The statutes of limitation for most of the United States--including my jurisdiction, my webhost's jurisdiction, my ISP's jurisdiction, my private registrar's jurisdiction, my public registrar's jurisdiction, my grandma's jurisdiction, my maiden auntie's jurisdiction, and the jurisdiction of the shelter where I got my cats--are up.
5. In the U.K., quoting and plot summarizing are allowed under fair dealing for criticism or review. There are no firm guidelines for how much can be quoted, but the Society of Authors recommends a single extract of up to 400 words, or a series of extracts, each less than 300 words, for a total of 800 words. My word processor says I quoted 384 words in three chunks, the longest of which is 199 words long--or, to be precise, I quoted 0.4517% of an 85,000-word work.
6. In the U.S., quoting and plot summarizing are allowed under fair use for commentary and criticism. Again, there are no firm guidelines; and again, less than half of one percent. Plot summaries are considered infringing only when they are excessively detailed, to the point of being a replacement for the original, and are also not used for purposes of criticism and commentary. (See the case of Twin Peaks Productions vs. Publications International, in which the court ruled that spending an entire chapter of a book recounting the plot of a TV show in blow-by-blow detail, AND including very little meaningful criticism or commentary, AND quoting liberally from the original, constituted infringement because the book was essentially a replacement for the TV series.) My plot summary is comparatively brief and undetailed, contains only short quotations, and is heavily interlaced with criticism. (Note that if you filed a DMCA takedown notice, U.S. law would apply because the DMCA is a U.S. act.)
And now to the beginning of your complaint:
7. "This website has a 5 page slander article that is not linked to by the main site":
a. It is neither slanderous nor libelous;
b. There is nothing illegal about having a pocket site within a larger site; and
c. Web archives show that the page has been linked from the front page of issendai.com since at least May 2009 (and it must have been linked from elsewhere beforehand, or you would never have been able to find it back in 2008).
8. "which has been set up to maximise SEO": "Maximizing SEO" means "improving search engine optimization." I assume you mean "The owner placed this content upon the site solely to draw readers," which is, in fact, true. My reviews of Dance of the Goblins were popular, so I put them in a more prominent location to attract more readers. This is what web site owners do. The law doesn't care unless the content is illegal (see points 1-5, this letter), confuses visitors about the true identity of the site (there's no way in hell a reader could mistake my site for an official Dance of the Goblins site), or draws traffic illegally (such as by hacking a competitor's site and diverting their traffic. My traffic is my own, achieved organically).
9. "for the sole purpose of causing loss of royalties to the author": No, I wanted to attract readers. In any case, both the U.K. and the U.S. recognize that while a bad review may discourage consumers from buying a product, this is not illegal, and confers obvious benefits upon society. You would need to prove that I don't actually think Dance of the Goblins stinks like a dead badger, and I'm merely going around saying it stinks like a dead badger to damage your reputation. Considering that you're objecting because I spent five pages giving detailed support for why I think it stinks like a dead badger, you'd have a bit of an uphill slog.
On the legality of posting a takedown notice, permit me to quote Chilling Effects: "There is ordinarily no expectation of privacy or confidentiality in a letter sent to an adversary. Unless you have made a specific promise of confidentiality beforehand, such as in a protective agreement or NDA, a letter demanding confidentiality doesn't bind you." See Techdirt and the Citizen Media Law Project for explanation.