Last week, Michael Crook approached me wanting to tell his side of the story. In the interest of fairness and integrity, I am giving him that chance. To ensure that no personal bias on my part entered the article, I am publishing the interview in Q&A format. All of my questions are in bold, all of his answers are in plain text, as he wrote them. Obviously, all opinions expressed in this work are Crook’s, not mine.
To start at the beginning, please tell me the events that lead to the creation of the image and how it wound up on the Web.
The image came from a May 2005 appearance on “Hannity and Colmes” regarding a website that I ran which was critical of the U.S. military.
One of my detractors made a screen capture of it, and posted it. It spread like wildfire, and was posted all across the internet.
How and when did you discover that the image was being used on the Web? Also, what was your initial reaction to seeing it?
I found out pretty much right away, as at the time I was very much hated, and people used it whenever they talked about me, whether or not it had anything to do with the anti-troop site.
After discovering the images on multiple sites, you sent out DMCA notices to various hosts. Approximately how many did you send and what was the overall reaction to them, specifically, were hosts responsive?
I have sent numerous DMCA notices, and thus far most hosts have been responsive. A few have put up a fight, but have complied after I’ve pointed out their obligations under the DMCA.
Prior to this case, did you have any experience involving the DMCA or other copyright matters? If so what and what were the results?
Yes, I submitted DMCA notices for photographs and material that were clearly mine – which I was able to prove – and there was no problem getting them pulled.
Did you try any other means to get the works removed such as cease and desist letters?
I went directly to the hosts, because my thought was that the person posting it knew what they were doing, and a cease and desist would be pointless. However, in very few cases when I knew the blogger, I’d e-mail them and ask them nicely to take it down, and they did.
Describe the events that took place from the time you filed your DMCA notice against Diehl to the filing of the lawsuit.
When I filed the DMCA, the photo came down, only to reappear when he changed hosts. I submitted another DMCA, and I got a call from Scott Beale, who runs Laughing Squid Hosting. He basically asked me what I was doing, and I told him to obey the DMCA notice and hung up on him. About two weeks later, the lawsuit was filed.
What transpired between the filing of the original lawsuit and the filing of the countersuit that prompted such a strong reaction? Was there anything in particular that you were upset about?
I wasn’t really upset – it’s normal for a lawsuit. What irked me though was Diehl’s intentional prodding of me. Whether he chooses to admit it or not, he continued to do what he did not out of an interest in free speech, but to provoke me. I should note here that I have never taken issue with someone’s words. I never asked for words to be pulled, even when he called me a “jerkoff”.
The lawsuit, as you know, is being followed closely on this site as well as others. What is going on with the case now? We are aware of your conference call earlier this week, were there any major developments from that?
Basically, if this case goes to trial, it may happen as soon as October. The EFF plans to object to my request for a dismissal and to my countersuit. If it gets to that point, I will oppose that as well. As always, both sides remain interested in settling this matter in a manner that’s in the best interests of each respective side. So in that regard, it may not go to trial, but it’s too early to make predictions.
How are you feeling about the case right now? Are you confident of victory and do you still plan on it going to trial?
If we are unable to come to terms on a settlement, then I will pursue my defense at trial. I am confident that at the very least I can prove I didn’t file the DMCA notice out of intentional fraud, or in a manner designed to infringe on Diehl’s business, which seems to be limited to a few click ads. Whether I prevail or not is not for me to say – it’s up a jury, and ultimately the judge who in some cases can override the jury. I am certain, though, that regardless of who prevails, the other side will promptly appeal.
Many copyright lawyers, including Denise Howell, have taken strong exception to your claim of copyright of an image of your face. On the U.S. Copyright Web site, it says that “Copyright law protects the original photograph, not the subject of the photograph.” With that in mind, how do you explain your assertion of copyright over this image? Is there some statute, ruling or contract we are unaware of?
I cited 17 USC 201(a), which basically covers co-authorship. My contention is that since no fee was paid for my appearance, my photo was not a “work for hire”, and because I provided a fair portion of the content by way of the interview, an element of co-authorship exists. I realize that this theory has yet to be tested in court, and if I prevail it could set a precedent. I am confident that I can present a coherent argument to this end. I realize that copyright lawyers worldwide are laughing, but keep in mind that many precedents have been established when competent lawyers balked. Ultimately, let the lawyers laugh– it’s the judge who has the final say, and if that answer isn’t satisfactory, our court systems have established a system of appeals for just this purpose.
Another common criticism of your case involves fair use. Many feel that, even if copyright could be established, that Diehl and others who used the photo were within the bounds of fair use. How do you answer that?
It is possible that Diehl could argue Fair Use, but I stand behind my argument in my filing that harassment can result in loss of that protection. Furthermore, I think the Fair Use provision has been abused. Not just in my case, but in other cases, such as the Spocko matter that’s going on. I strongly support the notion of redacting the Fair Use provision from law. It leaves open too many chances for abuse and loss of copyright holders’ rights.
Do you feel that any element of this case and the attention it has gotten is due to pre-existing ill will against you regarding your actions and political views?
I do feel that I am somewhat of a scapegoat here. I find it odd that Diehl felt compelled to bring up the past in regards to the Craigslist Perverts site. I am also concerned that he would solicit complaints from the internet public, knowing full well that plenty of people bear ill will towards me and could present “evidence” that is fake, and that “evidence” could be believed, based on a pre-existing perception of me based on my opinions.
Given how far and wide the photo has now spread and how much attention has been drawn to this case, do you regret any of your actions? Would you do anything different if you could start all over again?
In a way, this has given me a new audience, and a chance to prove that I can present opinions that don’t have to do with the military. That said, if I had to do it over, perhaps I would attempt to come to some arrangement with Diehl to remove or substitute that picture.
Do you plan to continue perusing others that use the photograph?
I plan to do so until enjoined by a competent court. Even if Fox were to ask me specifically to stop (which they haven’t), I would continue, based on my citing of 17 USC 201(a).
Do you have any further comments, thoughts or information that you would like to share?
I think that this case can establish precedent one way or the other, regardless of who prevails. I also think it’s a shame people aren’t willing to set aside the websites I’ve run in the past, and consider this matter on its merits, rather than automatically dub me the enemy.