Call The Lawyers (Again)

A blogger is being threatened with legal action for (a) a statement made on his blog which could be viewed as defamatory, and (b) violating copyright by re-printing an e-mail.  How will the blogosphere react?

How indeed?  Given the personalities involved, it is an interesting guess.  The blogger in question is Don Luskin, who has been contacted by the publisher of Paul Krugman's textbook.

Here is the allegedly defamatory post, from last December.

Briefly, Luskin mocks the process by which a Prof. Gail Hoyt of the University of Kentucky adopted Krugman's new textbook for her classroom, suggesting that an opportunity to win a $200 Amazon gift certificate may have been part of her decision.

The attorney for Krugman's publisher then argues that Luskin violated copyright by re-printing what looks like a mass e-mailing without permission, and defamed Prof. Hoyt by suggesting that she had been bought off.  In fact, we learn, she has not adopted the textbook.

The attorney says that:

Frankly, I am mystified as to how you could have drawn the conclusion that the $200 prize was a reward for adopting Professor Krugman's book from the Charlie Van Wagner letter you reprint in your post as "evidence" of your allegation.   There's nothing in the letter that even remotely supports such a claim, making it hard to resist the conclusion that you made the allegation up out of whole cloth to support what I understand to be your ideological crusade against Professor Krugman.

Frankly, I am mystified by the attorney's inability, or unwillingness, to read the e-mail Luskin posted (which is, after all, evidence in both allegations).  The lead sentence is this:

If you responded to my email and provided feedback for ranking factors that affect your adoption decision, I just wanted to let you know how much we at Worth Publishers appreciate it.

Emphasis added.  In light of the new information, I will grant that the phrase "factors that affect your adoption decision" does not have to mean that a decision was in fact made to adopt the book.  But that interpretation hardly seems to have been made up out of whole cloth. 

And what else does Paul Sleven, the attorney for Worth Publishers, tell us?

The allegation that Worth would pay and Professor Hoyt would accept in effect a bribe to influence her selection of her class's economics text defames both Worth and Professor Hoyt.

Please - get me the marketing department of Worth Publishers on the phone (or, if need be, the witness stand).  Why would they have the promotional conferences, the free drawings, and the free sample textbooks if not to influence the adoption decision?  That is not a bug, it's a feature! 

If the attorney for Worth Publishers chooses to characterize the activities of their own marketing department as "in effect a bribe", I would suggest that it is Worth that is defaming the many people who purchase their products. [More here].

Just to save people a link, here is what Luskin wrote last December:

It seems that the "adoption decision" is influenced by lottery prizes associated with filling out surveys with respect to the "adoption decision" itself.

Bold words!

Of course, there is a huge, ghastly backstory to all this (Did you guess?).  Back in 2003, Krugman claimed that he was being stalked intellectually.  Then, on Hannity and Colmes, he upgraded that with this famous quote:

Krugman: PoorandStupid.com [Don Luskin's website]. That's a stalker. That's a guy who actually stalks me on the Web and once stalked me personally.

The difference between "literal" and "figurative" did catch people's eye as they contemplated Krugman's arguably defamatory allegation. 

There was an uproar in the blogosphere: Luskin made some noises, asked Atrios to remove a repetition of the defamatory comment, Luskin involved some lawyers, and folks went mad.

Dan Drezner has lots of links to the uproar; from right to left, NRO to Atrios, the reaction was, waddya, nuts?  (I was in a contrary mood, and what are the odds, so I rallied as much of a defense for Luskin as I could).

So, what will happen today?  My guess - from the left, silence for reasons good and poor.  This is ardent righty Don Luskin we are talking about, and the "victim" is a once-obscure University professor rather than a fellow blogger, so the cases will be seen as clearly different.  The e-mail copyright issue will be ignored.

From the right, time will tell.  If bloggers can't cheap-shot university professors, what's next?  Can we say what we really think about reporters?  Where is the line?

And does anyone think that it is Prof. Gail Hoyt driving this lawsuit?  At the risk of defaming her, I will guess that the real impetus can be found elsewhere.

In any case it is clear that Luskin ought to update his original post to note the non-adoption.  Whether he needs to apologize to anyone under threat of a lawsuit remains to be seen.  I'll say this - if it were me, I would fold up like a cheap suitcase - the attorneys would find me whimpering in the back part of my closet where I normally agonize about filing my taxes (and yes, I recently cleared that space to get ready for my own "March madness").

But Don is made of sterner stuff!

Now, there is an obvious caveat to this - if the two sides have been exchanging e-mails for a while and this is the culminating eruption, Don Luskin ought to let us know.

However, he assures me by e-mail (which I dare not reprint) that his first contact with this issue was by means of the threatening letter.  That being so, let's just say that the attorney for Krugman's publisher is being ridiculous.

MORE:  At the risk of defaming him, the question of why the publisher's attorney is having such a hard time reading the e-mail and seeing how Luskin derived his false inference is explained by Krugman, below.

Link : "It is difficult to get a man to understand something," wrote Upton Sinclair, "when his salary depends upon his not understanding it." To make sense of what passes for debate over Social Security reform, one must realize that advocates of privatization — of replacing the current system, at least in part, with a system of personal accounts — are determined not to understand basic arithmetic.

At the risk of defaming Paul Krugman, I will assert that his regular readers are aware that he regularly implies that anyone who disagrees with him is intellectually corrupt.

For example, that Upton Sinclair tidbit itself shows up in three separate columns as well as in his article that appeared in The Economists Voice.

Comments

[gt]

Why on earth do you read Luskin?

[Al]

More importantly, why on earth do you read Krugman?

[gt]

Because he, unlike Luskin, actually knows economics?

[closedanger]

Leonard "J." Crabs may have some legal advice on somethingawful.

[Al]

"Because he, unlike Luskin, actually knows economics?"

That is obviously not the reason.

[monkeytoe]

Krugman knows economics? I suppose the proof of this would be the fact that every single economic forecast Kroguman has ever made in his life has been proven 100% wrong (even Krugman himself has admitted that his forecasts are never correct). If someone's knowledge of a subject does not allow them to ever be correct about the subject, how can we believe that someone "knows" the subject?

[Eric]

Krugman is a paranoid twice-a-week NYT columnist. He is convinced the extreme opinions on the Right are so connivingly devious that they will be adopted whole into any social policy.

Krugman has mistaken Gorver Norquist with the Burning Bush.

His prognosticative abilities are driven from this view.

Sadly, he is mainstream, and his appearance on MTP (where Joe Klein slapped him and the Democrats down) proves this to be so.

[TM]

Why on earth do you read Luskin?

Why does Krugman read Luskin?

[Jeff]

So we have a situation in which a lowly blogger is being threatened for obviously legal actions by a faceless corporation (who owns Worth, anyway?) and you expect avowed lefties to chime in with outrage?

Fair enough: I'm outraged. Krugman oughta come out publicly and call Worth worthless.

I'll add that lefty bloggers OUGHT to be covering this (or at least keeping an eye on it) because I damn sure want to be able to reprint emails I receive. Expect to see something at Am Street today.

Isn't the recipient generally considered the "owner" of letters? Doesn't that mean the Luskin should be able to do whatever the hell he wants with his property?

[TM]

Jeff, it's you and me. Maybe I should offer a toaster to the next blogger to post on this.

And thanks very much - I think the e-mail question is pretty easy to get irked about (unless they had a privacy notice in the e-mail, I suppose, but they did not cite that in the letter we saw.)

[gt]

Tom,

Touche*

*Unless it wasn't Krugman that read it but the editors of his textbook. In that case, no touche! ;)

[TM]

Jeff, it looks like you and the InstaPundit may be getting toasters. Let's see what the three of us can do.

[Otter]

Emphasis added. In light of the new information, I will grant that the phrase "factors that affect your adoption decision" does not have to mean that a decision was in fact made to adopt the book. But that interpretation hardly seems to have been made up out of whole cloth.

In my IANAL opinion:

1) This is not sufficient basis for a libel case in the US. (The copyright issue is potentially interesting, though.)

2) Luskin is a jackass. (Note, please, that stating that Luskin is a jackass does not in any way constitute an endorsement of Paul Krugman, who is a somewhat different sort of jackass.)

[DR]

monkeytoe:

How many economists do you know who HAVE been right? They are always wrong. It's funny, I watch Kramer be wrong week after week, but he continues to have a show on CNBC. Amazing.

And "Every single economic forcast?" Come-on, we all know that isn't true. But then it's okay if Repubs exagerate, just not Al Gore.

[Jaibones]

qt,

"...knows economics...?" This is one of the silly fields of science, where two supposedly brilliant PhDs will argue the exact opposite point with conviction.

Krugman is, of course, a foaming-mouth, partisan moonbat and the greatest embarrassment in the history of Princeton. Luskin runs circles around Krugman, every time he opens his mouth.

[DR]

If they sent him a letter telling him to admit that there was no bribe or they would sue, would that be okay? Because once he knows that there was no bribe, it becomes libel if he doesn't give a retraction.

You can't say "Joe Blow is a male prostitute" if you KNOW it isn't true. Once he knew it wasn't true, he had a legal obligation to stop saying it.

Now, we are supposed to believe Luskin that they sued him first?

[Jeff]

Jeff, it looks like you and the InstaPundit may be getting toasters.

Yeah, it's up. Not exactly the language a righty would use, perhaps, but hey, I'm a pinko commie. And also, while the protagonist ain't my cup of tea, the story has a great villian for a lefty to love.

[John]

"Because he, unlike Luskin, actually knows economics?" Huh? As a professional trader who makes a very nice living using my economic knowledge I find that quote hysterical. When I first encountered Krugman's columns I thought that he was just another semi-ignorant political hack who was in way over his head with the merest mention of an economic idea. I was bowled over when I found that Krugman is an actual "economist". For some time I have understood that Krugman and his ilk are the principal reason that many well-educated people are clueless on the subject of economics. Those well-educated folks are heeding the words of the ignorant; unfortunately sometimes the ignorant are professors.

[Gregory Koster]

Dear Mr. Maguire: Go back to the post of Luskin's that is being found objectionable. The way I read it, Professor Gail Hoyt got the $200 by RESPONDING to an email by Worth's editor about why she did/didn't adopt Krugman's textbook. By responding, she was entered in a drawing of the respondees, and got lucky. Mr. Luskin seems to have missed this distinction, which is important to his post.

Best regards,
Gregory Koster

[simon]

http://www.answers.com/topic/stalking

By definition, stalking implies a repeated act and Mr. Krugman stated you 'even stalked him once'. Mr. Krugman has accused you of a crime that by standard legal definition, you have not committed. Far more defamatory than anything read on your site. You have an excellent counter-suit, regarding defamation of character if he has publicly accused you of a crime, where the definition of the crime does not fit.

I think he is more alarmed that in order to get feedback, his publisher has to have give aways.

Check the state where Krugman said this 'stalking' occurred and examine their legal definition.

[scarhill]

Jeff wrote:
Isn't the recipient generally considered the "owner" of letters? Doesn't that mean the Luskin should be able to do whatever the hell he wants with his property?

IANAL, but my understanding is that, in the case of snail mail, the recipient owns the physical letter (i.e. the piece of paper), but the author owns the copyright. So if I receive a letter from J. D. Salinger, I am free to sell it to a collector, but I may not, for example, publish it in a magazine.

In the case of email, I would expect that the same would apply, except there is no physical copy to own. So publishing an email is only legal if you have the author's permission, or you meet one of the exceptions (e.g. "fair use") in copyright law.

Luskin's publishing of an excerpt might be fair use. Even if it's not, it's hard to see how Worth could recover any actual damages for copyright infringement.

Jim

[AT]

There's only one proper American response to a lawsuit: a countersuit.

I'm gonna get popcorn and a beer for this one.

[Xrlq]

If someone's knowledge of a subject does not allow them to ever be correct about the subject, how can we believe that someone "knows" the subject?

Getting it wrong most of the time requires no knowledge at all. Getting it wrong all of the time, does.

[Pogo]

Re: Because he, unlike Luskin, actually knows economics?"
and
"How many economists do you know who HAVE been right? They are always wrong."

Hayek, Mises and Becker have had rather good track records, actually. The MSM tends to ignore the Austrians and conservative economists in general, so it only looks like "they're always wrong".

[Pogo]

Oh, and Krugman is to economics as Joyce Brothers is to psychology.

[Jeff]

IANAL, but my understanding is that, in the case of snail mail, the recipient owns the physical letter (i.e. the piece of paper), but the author owns the copyright. So if I receive a letter from J. D. Salinger, I am free to sell it to a collector, but I may not, for example, publish it in a magazine.

Interesting analysis. I wonder if commercial speach is the same as intellectual property? Morevoer, journalists have greater freedoms when reporting on a story than do individuals seeking their own profit. Excerpting from a mass email to critique the sales practice seems very much a fair use issue. But then, I ain't no lawyer, either. Nor for that matter a journalist.

[Jeff]

And while I understand that Krugman is despised on these pages, let's, just for the hell of it, spend a moment considering his qualifications as an economist. I get that you all hate his politics and find him unreliable. It does not follow that his academic reputation is similarly in doubt. Let's not get carried away.

He was the Ford International Professor of International Economics at the Massachusetts Institute of Technology and has served on the U.S. Council of Economic Advisers. He was the recipient of the 1991 John Bates Clark Medal, an award given every two years by the American Economic Association to an economist under 40.

[Forbes]

Well, Krugman is an economist, but his NYTimes gig is an open ended op-ed space where he weighs in on politics and policy, shrouded by his CV as an economist. So what? His specialty has been international trade theory--where he's been ground breaking in spots--rather than the applied economics of monetary and fiscal forecasting, so as with others venturing outside their specialty, consider it with a grain of salt. His pronouncements on meterology or medicine would carry as much weight. He's a polemicist that gt would find agreeable were Krugman to pronounce the earth flat.

Marketing as bribery, now that's worth a flame war! The FCC will be looking at that issue in no time, I imagine.

(Where do I report to get my bribe?)

[D. Johnston]

I spoke with my own attorneys today and they made sure to emphasize to me that whenever I mention Paul Krugman in print (email, blog, or article format) that I be sure to put the term "economist" in quotes - just to protect myself against any litigation.

Paul Krugman is an "economist." There we go.

Just a heads-up to all the rest of you guys.

DJ

[TM]

The way I read it, Professor Gail Hoyt got the $200 by RESPONDING to an email by Worth's editor about why she did/didn't adopt Krugman's textbook.

Well, as I noted, alternative interpretations are possible. I also noted that Luskin's original interpretation was wrong.

However, the issue would seem to be whether Luskin's interpretation is so inconsistent with the letter as to be made up from whole cloth (which, I guess, would imply malice or reckless disregard for the truth). So to say, "I read it differently" hardly addresses that point.

Otter - pretty funny, and I say that as a frequent nominee for that club myself.

Or, as someone might have said, if you're not stepping on toes, you're not dancing.

[richard mcenroe]

Forbes — Krugman is an economist, and George Custer was a cavalryman. Having the job doesn't mean you're any good at it...

[RedDan]

What a silly thing to sue about.

Luskin should retract and apologize, the publishing company shoul go away, and if Krugman is driving the suit (something I doubt very much), then he should stop it and simply continue his highly entertaining, periodic (but all too infrequent) intellectually, academically, and rhetorically devestating eviscerations of the likes of Don "Gollum" Luskin.

As for the poster who suggested that Krugman was "always wrong" - what's the value of the Euro, again? And when, exactly was Krugman talking about the Euro and its valuation? How about that Argentine economy...whoooo fireworks! And when, exactly, was Krugman pointing out some rather disturbing trends in Argentina?

Hmmmm?

[RedDan]

if you're not stepping on toes, you're not dancing

Oh.

That explains a lot...

[RedDan]

Oh, and since Worth Publishers puts out economics textbooks by more than one author...including Mankiw...

And since the letter clearly states NOTHING about WHICH textbook was chosen, and only asked for feedback regarding factors influencing the instructor's choices...and since Luskin pretty clearly implies that there is some nefarious connection between Hoyt getting that prize, Hoyt using Krugman's new book, and Worth buying professors...

Well, Luskin's being an arrant ass.

[RedDan]

Libel...

Is Worth Publishing a public or private figure?

How about Hoyt?

How about Krugman?

I would say that Hoyt has the strongest case against Luskin - she is a private figure.

[Jellis]

I agree, withdraw the post and if needed apologise. When an ABC presenter threatened me with legal action, thats what I did. He was happy, I was happy and most importantly no one got sued!

[TM]

I would say that Hoyt has the strongest case against Luskin - she is a private figure.

Really?

(Hey, I just take what Google gives me.)

[RedDan]

I am rendered speechless.

And if you knew me, you would agree that such an accomplishment is stunning.

[Joe Mealyus]

"Frankly, I am mystified by the attorney's inability, or unwillingness, to read the e-mail Luskin posted...."

But what the attorney was unwilling to read was the line which preceded the e-mail, where Luskin says "the 'adoption decision' is influenced by lottery prizes associated with filling out surveys...."

The attorney's mystification for Luskin "draw[ing] the conclusion that the $200 prize was a reward for adopting" is kind of odd, since Luskin clearly states (correctly) that the reward is for the survey.

Luskin's error was in assuming, apparently(*), that Gail Hoyt adopted the textbook. Since Luskin has already accused profs in general of being influenced by the lottery prizes, I guess this makes her the specific target of this mild slur, but "defamatory?" When did the bar for defamatory get lowered into the very earth itself?

Some of these attorneys have very little pride. (Not that I'm referring to any specific attorneys!)

(*) When Luskin writes, "[o]ne has to hope that Professor Gail Hoyt's students will 'enjoy' Krugman's textbook," who's to say Luskin isn't simply expressing hope that she would adopt it?

[Beldar]

Pardon the crude language, but my mama done told me that only one thing can happen to a fella who volunteers to jump into the middle of this sorta pissin' match. So I'm one lawyer-blogger who'd have to get paid to render an opinion on this one, sorry Tom.

[TM]

this sorta pissin' match...

That's pretty funny. I once worked with a fellow who had the opposite temperment. In fact, one of his colleagues said of him that if there were no wind for him to piss into, he would turn on an electric fan.

For myself, I am just hoping I managed to position myself side-to, as it were.

[Tim Lambert]

Well, John Lott just called me a stalker. Can I sue? Can I?

[TM]

Tim, I am the wrong guy to ask, because in my eyes, you are a Towering Public Figure.

Although you don't seem to have a doll yet.

(Anyway, the comment you link to was left by a "Kevin H". If that is actually John Lott, please leave a link to the relevant evidentiary post at your site, or anywhere. I'd sort of like to stay on the Luskin-Krugman topic.)

[DR]

Pogo said

"Hayek, Mises and Becker have had rather good track records, actually"

You can't compare it. Did Mises give a date when the soviet union would fall? It is too early to judge Krugman vs. that criteria. We'll have to wait 20 years to see if he is right.

[Patrick R. Sullivan]

What's being missed here is; the cheesy method that Worth-Krugman went about getting free editorial help from the economists who were e-mailed.

[Tim Lambert]

Tom, are you saying that I'm a public figure and Luskin is not? Surely if Luskin can sue, so can I?

(As for the question of Kevin H's real name, I'm not presenting the evidence at this time, so you can take it as hypothetical for now.)

[TM]

Tom, are you saying that I'm a public figure and Luskin is not? Surely if Luskin can sue, so can I?

You can do whatever you want, but stop calling me "Shirley".

Obviously, you can contact a lawyer and explore your recourse.

Whether a comment on a web site rises to the same level of defamation as a statement made on national television is a point on which they will no doubt give you guidance, and on which I have no opinion.

But I am sure that somewhere, someone is eager to hear all about it. Somewhere else.