Los-Angeles-Shooter Loc: Los Angeles

The judge is way out of line for many reasons. One of the most obvious is that copyright issues are under federal jurisdiction, yet this nincompoop jurist evidently purported to transfer copyright into the ex-wife's hands. Absent ownership of copyright, she has no authority whatsoever to demand (presumably under the DMCA) takedowns.

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Ex-Wife Uses Copyright To Ban Use of Hubby’s Suicide Note
Copyright Law, Intellectual Property, Litigation by Oscar Michelen
Chris Mackney, a Virginia father of two, took his own life in December 2013, leaving behind a four-page note blaming his suicide on a “broken” family court system that stripped him of his parental rights. The note is somewhat nasty towards his ex-wife, Dina, and reveals personal information about his kids; it’s also clearly Chris’ side of the story – which is likely not an objective analysis of the bitter divorce between him and Dina. His note became a speaking point for “Men’s Rights” and “Father’s Rights” activists who regularly complain that Family Court too often favors the mother over the father.
Things kept going Dina’s way in court when, despite the animosity between the two parties, a Virginia judge made Dina the administrator of Chris’ estate. Then in March of this year, the court gave Dina permission to essentially remove Chris Mackney from the internet. Chris had not only published his suicide note, but had uploaded numerous documents and articles he wrote about his case to various blogs and websites. The court’s order reads:
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 decree comes a long list of domain names: various blogs that have discussed the Chris Mackney story; Facebook (including the post where he said he intended to commit suicide); Scribd; Reddit; Google Docs; and Google Drive — where Mackney had posted many documents, including news articles that he believed supported his position).
The order basically gives Dina permission to delete all evidence that her ex-husband existed 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.
copyright logoWhat? How is this possible? Chris -in his lifetime- wrote comments, submitted articles, uploaded documents- and in doing so gave permission – express and implied – to those websites to host those statements and documents. His ex is now using the power given by the court to send cease-and-desist letters alleging copyright infringement (and some privacy claims) to scrub the net of Chris’ existence. Many sites discussing this are blaming the wife. But the fault lies with the court. This sweeping order appears not to understand the nature and purpose of copyright, as well as its limitations. Most of these postings fall under the “fair use” exception in that they are discussing and commenting on the piece of copyrighted material and/or are reporting on a newsworthy aspect of the material and are not using all of the material. But state courts rarely deal with issues of copyright as that is the exclusive domain of Federal courts. Also since Chris was deceased at the time of the orders, it appears that these orders were issued by the court without anyone arguing the other side; very likely Dina’s lawyer(s) crafted the language in the order for the judge to sign, a common practice. For example, I am currently involved in an appeal of Georgia State Court decision that held that a website operator was guilty of harassment for language contained in posts other people put up on his website that discussed Linda Ellis, a poet who is known on the Internet for copyright trolling over the use of her poem “The Dash.” That court signed a sweeping order requiring the operator to take down any mention of Ms. Ellis – even ones that were not allegedly harassing.
Most sites are immediately complying with the cease-and-desist letters; its just easier for big names like GoDaddy and Wikipedia to take down the objectionable content as they have plenty of content and bigger fish to fry. But some Men’s Rights’ sites, like “A Voice for Men,” have taken a stand and refused to take down the material. Noted First Amendment attorney Mark Randazza is helping them pro bono In an article on the website Raw Story, Randazza argued that Chris Mackney intended for his suicide note to be published, and that this license could not be revoked after the fact – particularly by someone who was not the copyright holder at the time it was first published:
“She is attempting to take the dying words of this man as her own property, despite no intention by him to grant her any such right,” Randazza argued. “Then, she is attempting to use that right in order to erase his expression from any further public existence.”
Kudos to Mark Randazza for taking this on. Let’s see if Dina will actually follow up on her demands and file suit against the sites that are refusing to comply with her demands. Will she put her money where her mouth is or will she just join the list of copyright trolls who send scary letters with questionable demands and then move on? Only time will tell. But what is clear is that State court judges may be confronted with these issues in the future and they need to educate themselves as to the reach of copyright law and the effect of their decisions in this arena may have on a person’s right to express themselves even after death and on the rights of others to continue to publish those expressions.

Danilo Loc: Las Vegas

Very interesting post, LAS. I think we'll see more of this as our nation's highest officeholders extend their authorities beyond the limits set by law, they set a dangerous precedent. These actions smack of bullying, something the liberal element is feverishly trying to stamp out.

Los-Angeles-Shooter Loc: Los Angeles

As a little takeaway lesson: people should make clear who gets their copyrights and other intellectual property after their death. Doing so would make it harder for evil 3rd parties and dunderheaded judges to violate the law and the deceased's posthumous property rights. It would also give the inheritor standing to oppose disgusting actions by the likes of this ex-wife.

Athanar Wellington Loc: Barboursville, VA

Please post the name of the judge, the jurisdiction and style of the case so interested persons can follow the proceedings. Thank you.

sb Loc: Florida's East Coast

And apparently this judge never heard of freedom of speech? Whoever owns the websites/blogs that those statements are posted upon certainly has the right to post them without interference of any court.

Danilo Loc: Las Vegas

Many of your questions will be answered at http://www.avoiceformen.com/mens-rights/family-courts/here-come-the-lawyers-to-avfm-yet-again/ All I did was Google "Chris Macney"...lots of info there.

Athanar Wellington Loc: Barboursville, VA

Thanks. So many facets of interest! I would note that I never thought of a person who croaked him or her self as a victim. More as a coward with the persons they abandoned being in some cases the ones who are victimized. I would not call any judge an idiot, either, although some are clearly less than competent.

Los-Angeles-Shooter Loc: Los Angeles

Suicide is sometimes cowardly, sometimes the bravest thing, for example when the suicide spares the family endless emotional suffering and financial ruin. As to judges, some are idiots, some are incompetent, a few are thoroughly corrupt or at least dishonest. And some, such as the judge who upheld the 2257 statute, are accused of being all of those.

Danilo Loc: Las Vegas

I hear you Athanar. I've know 7 or 8 people who have committed suicide, and I was mostly angry with them for what they did. But I also know a divorced father who is being alienated from his children by a vindictive ex-wife, with the help of the courts. I hope he doesn't do the "dastardly deed" but finds some way to reconcile his situation.

By posting his experiences and frustrations on those websites and public forums, Mr. Macay was possibly seeking answers, possibly trying to educate others in similar situations. Perhaps his messages should be allowed to remain, without any personal references to his ex-wife. I don't know if the judge was within, or outside his domain of authority.

Los-Angeles-Shooter Loc: Los Angeles

I personally know a number of cases where men have been abused by ex-wives coupled with the anti-male laws and legal system.

As to the situation here. If the man did not leave a will or otherwise say what would happen to his copyrighted material, the ex-wife MIGHT have had a copyright claim. However, her DMCA takedown notices are outrageous because the material is protected by the "fair use" exemption. Since the DMCA notices were thus not in good faith, the victims of the notices could theoretically sue the ex-wife and have close to a slamdunk.

LESSONS TO ALL OF US who might face divorce and a vicious ex-wife who might try to takedown your writings, whether you are alive or dead:

Choice #1: Put all such material into the public domain before killing yourself. That way the ex-wife has no claim to copyright and any DMCA takedown request will be illegal and fraudulent.

Choice #2: Irrevocably transfer all copyrights to some friend or other person before killing yourself. That way the ex-wife has no claim to copyright and any DMCA takedown request will be illegal and fraudulent.

Athanar Wellington Loc: Barboursville, VA

I love this! So much to think about! Differentiation is the highest order of intelligence, right? First, I do differentiate between euthanasia or whatever it is called when a person is terminally ill, in pain, and doesn't want his heirs to be bereft because of appalling medical expenses. I put my very old dogs to sleep so why not myself in the same state? As to suicide, two men I cared deeply about croaked themselves as well as three women. They caused terrible grief and anguish to the people they left behind and in two cases, used gas so could have blown up many other people. But none of them impugned or slandered the people they absconded from. This suicide is a special case.

I will also say that I was a court reporter for over 20 years. I hated divorces because of the appalling viciousness sometimes. I agree that the system is weighted toward the mothers but being a woman who bore a child to a deadbeat, I think the system absolutely should be weighted in favor of the mothers.

Los-Angeles-Shooter Loc: Los Angeles

By coincidence I was reading a lengthy article about "fair use" in the Los Angeles legal newspaper, the Daily Journal. It mentioned a significant point I made earlier. That the recipient of a DMCA notice can get significant damages against the person who issued DMCA notices in bad faith. Bad faith includes issuing a DMCA takedown when the material at issue was clearly covered by fair use. As in this case. I am hoping that the vicious ex-wife and her unethical lawyers get absolutely nuked for their attempted censorship which includes making bad faith DMCA takedown notices, and attempting to litigate a copyright matter in state court rather than the proper court; federal court.