Back in November 2012, I received an e-mail from the Powers that Be at Pixiq, stating that they had unpublished a post I wrote back in June of 2011, entitled 42nd Street Photo: One to Avoid, after they had received a formal complaint from the photographic retailer about the post I had written. As far as I can tell, it appears that 42nd Street Photo approached Barnes & Noble directly, requesting that the post is taken down. Pixiq's editorial director decided to fold without first discussing the matter with me, and instructed the Pixiq editors to take the post down.
Obviously, if the editorial director feels that the post was worthy of being taken down, he is probably right, but as someone who is rather passionate about copyright, and the protection thereof, I found it rather interesting that 42 Street Photo decided to use the DMCA to get my post taken down.
Of course, since I'm now back on Photocritic, I can publish whatever I like without a gag order, and the review is back where it belongs: On-line, for anyone to read.
Copyright Infringement?
As far as I can tell, the DMCA portion of 42 Street Photo's complaint pivoted on the fact that I had a screen shot of the 42 Street Photo included as part of my blog post:
Says 42 Street Photo: "The author has unlawfully taken a screenshot of the 42photo.com Web site and logo without the express written consent of the copyright holder, 42nd Street Photo."
Now, this is quite interesting, because this isn't technically a copyright infringement; It falls both under US fair use laws, and UK Fair Dealing laws: Using a screen shot in this manner would fall under both news reporting or criticism.
Of course, it is scary to receive a letter from a lawyer saying that you're accused of something under the DMCA, but does that warrant removing the whole blog post?
Libel?
The other part of the complaint from 42 Street Photo is that my negative review might somehow fall under defamation legislation. That's an interesting angle to take. However, for something to be defamatory (whether it's published defamation, in which case it is known as libel, or a more transient defamation, in which case it might be slander), it has to be both malicious and false. It also, generally, has to be about a person - it is rather difficult to defame a company.
Whether my blog post was malicious is neither here nor there, but it most certainly wasn't false.
It is interesting, then, to see how a company like 42 Street Photo decided it was appropriate to turn to the law to try to get negative posts about them expunged from the internet.
Specifically, they wrote that: (...) this post is a highly subjective description of a one-time event allegedly experienced by someone other than the author (...).
'The person other than the author' in this case was my fiancee, now my wife, so the suggestion that I might not know or understand the full details of the case is quite funny.
As for 'highly subjective' — Well... Yes. Of course it is highly subjective; that is sort of what online reviews are all about.
More worryingly, however, is that they claim that the post is "libelous, tortious, harmful and/or defamatory", based specifically on quotes like “42nd Street Photo: One to avoid” (the title of my post) “Tales of dodgy behaviour and atrocious customer service” (after they went through a series of weird business practices that), and “an apparent lack of care about fraud prevention” (charges added to the order by someone who wasn't authorised to do so by the card holder).
So, what's the problem?
Anyway, the worrying thing here is in two parts:
1) By equating a online user review that 42 Street Photo disapproves of as 'harmful' or 'libellous', they are in effect saying that any negative reviews are somehow illegal. I can't quite figure out what they are getting at, but I suspect that 42 Street Photo has received one too many negative reviews, and that they are now trying to do some serious damage limitation — that's the only reason I can imagine why they suddenly decided to take action on a 532-day-old blog post buried deep in the bowels of a very active website.
2) That Pixiq decides to bow to their request by removing my post.
Now, point 2 could be completely innocent (they acted before they read the request properly), mildly immoral (they are trying to get 42 Street Photo to advertise on the site, and don't want to rub them the wrong way), or deeply worrying (negative reviews of any kind are permanently banned from Pixiq, completely ruining the credibility of the site in the process).
What now?
The discussion on the above continued for a while, but I never actually got a response from Pixiq about why they decided not to stand up for one of their writers.
I should add at this point that I have been in journalism for a long time, most notably, I suppose, as the editor of T3.com. We did occasionally get ourselves into some legal wrangling after we wrote something, but that's sort of the way of the world: You write something, someone takes offence, and tries to do something about it. The big difference, however, is that you'll usually find that your publisher will stand up for you: They have a large legal team on staff, and will help defend their editors and writers, if they have done their due diligence.
The fact that Pixiq decided to roll over, and pull my article without even discussing it with me was ridiculous. I'm vaguely amused with 42nd Street Photo's legal petulence, but I'm furious with Pixiq for not shrugging it off for what it was: It was a schoolyard bully squaring up to them, and they ran away without taking on a fight they knew they would win.
I don't know about you, but I think I'm better off here at Photocritic, where I can tell 42nd Street Photo what Pixiq should have said: Your request is hogwash, and the review is staying. Have a lovely week.
Further Reading
- Pixiq Goes Down: Leaving readers and bloggers in the lurch
- Pixiq Goes Down: The response from Sterling Publishing