Legal Thuggery, or Law as Transaction Cost

(Via JZ) BoingBoing has a neat, infuriating post about a ridiculous takedown threat they received over a post about autism. The threat-0-gram is from The Academic Advantage, by way of their personal injury legal wizards (Lazar, Akiva, & Yagoubzadeh). There are two great things about this. First, the BoingBoing post isn’t even about Academic Advantage: it contains those words, but is utterly unrelated. Second, the allegedly bad part (which L, A, & Y complains about) is the use of the term “scam.” But: the term “scam” was put up by a poster. That means that BoingBoing is immune from any tort action – like defamation – under Section 230 of the Communications Decency Act. Any lawyer admitted to the bar should know that – this is Internet Law 101.

Lazar, Akiva, & Yagoubzadeh – or, more precisely, their attorney Jubin J. Niamehr – nonetheless claim that the page is “unlawful and impermissible,” and request that BoingBoing take it down to avoid “unnecessary escalation of these matters as between [Academic Advantage] and BoingBoing.” Note that the letter doesn’t explicitly threaten legal action, but it does misstate a material fact: there’s no way that the “link address” BoingBoing uses is unlawful and impermissible. (I missed out on “impermissible” as a civil violation in law school, but maybe I wasn’t paying attention.) It’s not related to The Academic Advantage, and the term “scam” isn’t used to describe this undoubtedly exceptional company.

As Cory Doctorow notes, this is law as transaction cost: though there is no possibility of liability here, L, A, & Y have nonetheless sent off a threat-o-gram. Many bloggers would take down the post out of fear, and Web hosts might do so out of a lack of legal understanding. But let’s call this what it is: legal thuggery. Asserting rights where you have none, and implying the threat of litigation behind them, may well be an ethical violation. I hope that BoingBoing files a complaint with the relevant state bar against Mr. Niamehr, and against L, A, & Y. It’s hard to tell whether they are evil or merely incompetent, but in either case, they clearly need a refresher course in basic tort law. Here’s hoping they get one.

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