There are few things more delightful to me than capable pro bono counsel putting a censorious bully in its place. The firm Martin & Associates of Vermont has delighted me today.
Our story begins back in June. As Mike Masnick at TechDirt reported, the American Banker's Association and its law firm, Covington & Burling, threatened a blogger named Greg Thatcher, who had compiled an online list of routing numbers for banks. Those numbers are publicly available on the Federal Reserve's web site. The ABA says it created routing numbers and doing so took "creativity" and Greg's infringing their copyright. This argument is like the Post Office suing you for posting a list of zip codes.
In stepped Andrew Delaney of Martin & Associates. Representing Greg Thatcher pro bono, Delaney sent one of the very best responses to a bogus and censorious threat I have ever seen, folding together wit, whimsy, forceful legal arguments, and cheerful abuse of footnotes. It received wide and justifiable praise. Go read it. This is my favorite part:
If you do feel it's necessary to sue our client, we are open Monday through Friday from 8:00 A.M. to 6:00 P.M. and We have lollipops for people who serve process. So if you do file a complaint and send someone over with a summons, please have them wear something with a bit of purple . . . we all like purple. We eagerly await your reply.
I write today with two delightful updates. First, Martin & Associates waited for some time for a reply. One must wait when dealing with a large and venerable firm like Covington & Burling, the sort of place where the stick up their ass has a stick up its ass. Eventually curiosity quite overcame the better angels of Andrew Delaney's nature and he sent this letter to the ABA's attorney Nigel Howard:
It has been just over two months since we last wrote. We expected a response but none has been forthcoming. We have therefore advised Mr. Thatcher to reestablish the routing-numbers section of his website. As a courtesy, we wanted to let you know.
We have not received any response or counter analysis, and we cannot conceive of any reasonable explanation why these identifYing numbers might fall within copyright protection's purview. If you have such an explanation, feel free to share.
If you're ever in Vermont, please stop in so we can chat. Lunch is on us.
This is a very polite lawyerly way of telling someone they are full of shit.
Today, Mr. Howard finally responded to Mr. Delaney's letter. Did he respond to Mr. Delaney's copyright arguments or meet the challenge to support his position? He did not. This was the sum total of his argument about the ABA's copyright:
As I've mentioned before, this is known as the Canadian Girlfriend school of legal argumentation.
Mr. Howard goes on to concern troll a bit:
In addition to infringing the ABA's copyright, Mr. Thatcher's actions may put the public at risk. We have found instances where unauthorized sites are disseminating inaccurate information.
Mr. Howard does not cite any inaccurate information on Mr. Thatcher's site. He simply says that there is inaccurate information out there, and that's bad, and mumble mumble [trails off awkwardly].
Even the data in the FedWire and FedACH files that are currently available from the Federal Reserve website are not entirely up to date.
If you're keeping score at home, the ABA just admitted that the data on the Federal Reserve's website may not be accurate, and they are responding by . . . hiring Covington & Burling to pester a blogger.
Mr. Howard also accuses Thatcher of misusing information from the Federal Reserve to populate his website:
The Federal Reserve website states that the information may not be sold, re-licensed or otherwise used for commercial gain. Your client is using the ABA Routing Numbers for his own commercial gain, namely to generate advertising revenues, in violation of this restriction.
Now, Mr. Howard doesn't say that he's representing the Federal Reserve now in addition to the ABA, so I'm sure he's just saying that to be helpful.
Mr. Howard concludes:
The ABA is committed to providing only the most accurate information possible on Routing Numbers and is continuing to take steps to address this problem.
That's the sound of a bully slinking away.
Kudos to Andrew Delaney and Martin & Associates.