Colin Purrington made an error in judgment.
His error was this: he believed that simply because he had created something himself — specifically, a helpful guide for creating scientific posters — that it was safe to go about asking other people not to appropriate it for their own profit.
Colin was wrong. This is America, Colin. What were you thinking?
See, Colin saw that an outfit called the Consortium for Plant Biotechnology Research was using some of his language in appendices to its grant applications. Colin, as is his practice, sent a wry missive asking that they stop, with a humorous coda:
If you can cover the shipping charges, I would be grateful if you to send me the head of the person who did this.
Oh, Colin. You are too gentle for this world. We live in a world of money and laws, Colin, and laws are wielded and money is guarded by megalawfirms like Arnold & Porter. Arnold & Porter is one of the 800 pound gorillas of law — perhaps an unfair comparison, since gorillas do not generally charge $1000 per hour to throw feces. The Consortium for Plant Biotechnology Research reacted to Colin's email by calling forth Arnold & Porter in the form of attorney David P. Metzger, who sent Colin a very threatening letter. The upshot of the letter was that the Consortium had copyrighted the language in question in 2005, and that unless Colin took it down from his website, he would be facing a lawsuit, statutory damages of up to $150,000, court costs, and attorney fees — Arnold & Porter-sized attorney fees. Mr. Metzger was also shocked, shocked, to the point of pearl-clutching over Colin's humorous salvo:
Finally, I wish to express CPBR's concern with your statement in the Purrington E-mail: "I would be grateful if you to send me (sic) the head of the person who did this." This language was interpreted by CPBR's staff as a physical threat against their personal safety. Should you make any further similar threats, CPBR staff will have no choice but to contact authorities to protect themselves.
This all seemed a bit unfair to Colin. I'll let The Chronicle of Higher Education explain why:
In the not-at-all-friendly letter sent to Purrington, the consortium’s lawyer explained that the material was created by the consortium itself in 2005. That would be a very strong and persuasive point if Purrington hadn’t posted his guide as early as 2001, a fact that can be verified by going to the date-stamped Internet archive.
. . .
He started writing the guide back in 1997 as part of a class he was teaching, made it available to his students, and later posted it for anybody who wanted to use it.
Oh Colin. Facts are facts, justice is justice, but in America, money is money. The Consortium has hired Arnold & Porter, and they can threaten whomever they want, the facts of it be damned.
Fortunately Colin seems to be a fighter and has hired counsel. The Consortium? It's not yet clear. I wrote Mr. Metzger asking for a comment. Somehow I think he might not write back, based on his response to the Chronicle:
The consortium’s lawyer, David Metzger, also hung up on me. In a follow-up e-mail, he said he was abiding by his client’s wishes.
Here's the thing about sending blustery threatening letters for clients: sometimes, to the regret of attorney and client, they backfire. This is a good thing. In the American legal system, clients and their lawyers can credibly threaten to inflict hundreds of thousands of dollars of costs and years of misery on their enemies without regard to whether they are in the right. The internet — and the Streisand Effect — can help counter that injustice. The internet can help impose reputational consequences upon litigants and their lawyers when they make unjust and bumptious threats. Are you doing your part?
Perhaps the Consortium has some innocent explanation for its conduct. Perhaps it can prove that it was the originator of the language in question and Colin somehow misappropriated it years earlier and posted it without their knowledge. Perhaps, against all appearances, the Consortium and their attorney conducted some sort of due diligence before making extravagant legal threats against Colin. Perhaps, against all appearances, some tender pussywillow at the Consortium actually was intimidated by Colin's obvious joke, and the closing threat in Metzger's letter is not merely the parting shot of a shameless prat.
On the other hand, perhaps it would have been much more prudent for the Consortium to have handled this situation some other way. Maybe the government agencies that give grants to the Consortium will have a viewpoint.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016