Diary of a Mad Editor

I was sitting at my computer one afternoon minding my own business, catching up on reading email and answering correspondence when I stumbled across this email from this guy accusing me of invading his privacy. Apparently, I had published an email message of his online without permission. He suggested that I had somehow stolen it from his own computer (he couldn’t imagine how I got my grubby hands on it) and threatened to notify a number of important agencies if I did not remove it from my web site. After taking a moment and thinking about it, I came to the conclusion that I had indeed posted his message in the “Last Word” section of the Asterius Press home page. I was puzzled. It is not exactly a secret among my readers that I post such communications on the web site without asking permission as an object lesson to disgruntled writers. There are public statements to that effect online, and certainly I am not the only editor who publicly lampoons individuals who choose to task me with their egocentric horseshit. This guy was a bit of a novelty, however: he had never actually submitted anything to me other than this letter of complaint. He just wanted to give me a piece of his mind. What is also interesting is that his email had been on my web site for more than two years at this point and this was the first time he’d said one word about it. Normally, if I do or say something someone doesn’t like, I hear about it within a few days. Prior to this incident, I hadn’t received a single complaint from authors of any message posted there.

It got me thinking about privacy. I make no claim to being an expert on privacy law — I am not, after all, a lawyer. However, I’d like to believe I know a little more about privacy and copyright than most of the people who submit manuscripts to me. The architects of American democracy were mostly concerned with invasions of privacy by the government and its surrogates — not with privacy violations perpetrated by individuals. The absolute right to privacy is not a right explicitly guaranteed in the constitution of the United States and is still pretty well limited to four basic kinds of privacy rights: unreasonable search and seizure, misappropriation of one’s name or likeness, publication of private facts and using private information to create a false impression or “false light.”

Essentially, this guy sent a rather belligerent, unfriendly email message to me, the editor/publisher of Asterius Press bitching about my guidelines and my demeanor. He sent this message to me willingly and for no legitimate reason other than to make it known to me what he thought of me. In other words, I was the subject of his message and he made me a party to the communication. As far as I’m concerned, that makes his email as much my intellectual property as his and I am free to share its contents with whomever I choose to share it with and the manner in which I choose to share it makes no difference. And, since he voluntarily transmitted his message to me, it’s hardly a purloined product swiped off of his computer or from the mail server. Unreasonable seizure does not apply (and that usually applies to agents of law enforcement, anyway). Misappropriation doesn’t work either — I posted an email, I didn’t exactly print his name and picture on a t-shirt and go hawk it on Main Street. I didn’t publish any private information about him. His name is not, by itself, private information. Nor is his name uncommon or notable enough to identify him specifically to a third party who is not already familiar with him. Nope, can’t stick me with that charge. Nor did I put him in a “false light.” I published his message whole and not at all out of context — I didn’t even edit it. I doubt anyone reading it could get a false impression from the man’s own words.

It was fairly clear from the man’s threats that he either didn’t understand privacy law or he was operating under the assumption that I didn’t and would respond to threats. He said that if I didn’t remove his message, he would file complaints with my ISP, the Better Business Bureau, the FBI and the FCC. For one thing, my ISP doesn’t have anything to do with my web site, and its privacy policy and terms of use, only apply to its services, so my ISP couldn’t and wouldn’t help this man. And the BBB? Well, they are a public consumer advocacy group — not a government agency, right, so all they could do for him would be to investigate the matter — and they wouldn’t do that unless there were numerous complaints against me. For the record, I am not a member of the Better Business Bureau, nor is the electronic publishing arm of Asterius Press a commercial enterprise, so it really doesn’t fall under the purview of the BBB. The FBI? Even if I had violated this guy’s privacy, I can’t see the FBI sending a S.W.A.T. unit to my house to drag me away to the gulag. And the FCC doesn’t have a lot of jurisdiction over the Internet. Certainly, I am not sitting around worrying about Michael Powell’s thought police. I’m afraid all this guy could do is to take his complaints to a lawyer and attempt to file a law suit. I can’t imagine a lawyer of any stripe who would do more than snicker at him and send him on his way. Privacy Law varies from state to state. There is also a statute of limitation for filing such a law suit and I don’t think it’s more than two years in most cases. So, if he can’t tag me with a privacy violation, can he fairly get me for copyright infringement — after all, even though my use of his email was public and notorious, I didn’t, admittedly, ask him if I could post it, and I did make fun of him, although I don’t think the founding fathers had email in mind when they crafted the first copyright laws. A reasonable man might think that if this man doesn’t care if I know what he thinks of me, how could it hurt him if Joe Shmoe knows what he thinks of me? At the very least, he should have considered that I would tell some of my literary friends about the incident, which amounts to about the same thing as putting the offending email on my website. Also, having disturbed my private space with his unsolicited, unwanted comments, insulting me in the process, he can hardly expect that I would respect the sanctity of his communication as if I were a priest who’d received it in a confession booth. So yes, I’d cop to copyright infringement — save for one thing: In posting this message in the manner I did, as a very public response with the clear intent to poke fun at the man, I’m fairly certain, if my understanding of the 1994 Supreme Court ruling in the matter of Campbell v. Acuff-Rose and general test for fair use are correct, that my response to his email is fair use and is also protected first ammendment speech. By that I mean that in interjecting my comments with the clear intent to poke fun at the man, I turned his whiny message into a parody. I don’t know of any similar incidences in which an editor was successfully sued for posting a letter or email on his website. As I stated, I am not a lawyer, so I may be gravely mistaken in my assessment. However, I think what’s really happened here is a tit-for-tat expression of bad manners. He insulted me and I returned the favor. If this guy is embarrassed by his email, perhaps he should be. So, Mr. Man, when you show some humility and apologize for being an ass, I’ll apologize for equality immature, equally assinine response, but I have no intention of removing the offending email from my web site. You feeling me, sport?