Last week, Michael Crook sent the attorneys at the EFF something of an olive branch, albeit a wilted one, when he offered a proposed settlement in their lawsuit.
Under Crook’s settlement, the two parties would have gone their separate ways, each paying for their own expenses, and Crook would have agreed to an injunction barring him from sending out a DMCA Notice regarding the interview ever again.
However, a Christmas miracle (or disaster) was averted when the EFF attorneys politely declined the terms of Crook’ settlement and offered up their own.
Under the EFF proposed settlement, the following things would have taken place:
- Crook would have publicly apologized for sending the false DMCA notices.
- Crook would be enjoined from sending any cease and desist or DMCA notices without first seeking legal counsel
- Crook would have agreed to withdraw every DMCA or cease and desist letter sent in regards to the Fox News image
- Crook would waive all past claims
- Crook would compensate Diehl for $50,000 for “fees, damages, costs and expenses”
- Diehl would voluntarily dismiss his claim
Crook, in turn, rejected the counter offer and ended the negotiations with a very strongly worded reply. With Crook’s counterclaim already filed, the case appears to be on a one-way track for a courtroom.
These types of negotiations are pretty common following lawsuit. However, they are usually much more civil in nature since they are, most of the time, conducted by two attorneys. Also, there usually a lot more back and forth since neither party, in most cases, wants to go to court.
However, there are two things that really stand out.
First, the EFF is clearly very confident in their case and rightfully so. They aren’t going to settle for anything less than total victory. Given their high demands, especially the one enjoining Crook from filing any further DMCA notices without legal counsel, it’s clear that this is not a case about money to the EFF, but about setting precedent. They seem to want a court date just as bad as Crook does.
Crook, on the other hand, showed a great deal of weakness on the case. By offering to never again send DMCA notices over the Fox News interview, one has to wonder if it has finally sunk in that he does not own the copyright of the image and that, in turn, his notices were indeed invalid.
He might claim to be seeking a settlement because he “has a life” but with his strong rhetoric and sabre-rattling over the case, it seem strange to me that he would simply offer up a potential settlement, especially when he has filed a multi-million dollar counterclaim.
All in all, this exchange seems to speak to the direction the case is handling. The EFF is growing more secure in its position by the day and Crook, despite his heated rhetoric, seems to be succumbing slowly to reality.
Though this is definitely one of the most unusual and entertaining copyright cases I have followed, its precedent will likely affect bloggers and Webmasters all over the world since most Web hosts are based in the United States.
In the end, I’m just glad that it’s the real attorneys that have the high ground in this case and that, maybe, it can help restore some sanity to the DMCA process.