Wednesday, May 6, 2009

Text-bullying

Here's a headline you won't read in today's Herald (and I know, because I've read it):
"Herald threatens legal action against blog artist"
Yes; APN, the company that runs (into the ground) the Herald, not to mention half the other newspapers in the country, has decided that Editing the Herald is a considerable threat to its media empire. Now, before I get too carried away, it's not directly to do with anything I've written - I don't believe we're in quite that sort of police state yet, although the Herald is doing all it can to bring that about. It's just to do with the banner that was, until today, at the top of my site, which ILLEGALLY used the Herald's masthead, a valuable piece of APN's intellectual property, made up of the following elements:
  • the word 'The'
  • the name of the country in which said newspaper is published
  • the word 'Herald' a name by which no other newspaper has ever gone, not even the Sydney Morning Herald or the International Herald Tribune
  • the quasi-Gothic script in which the title is written, and in which it has been written for many decades - that is, many decades before APN bought it
  • the blue colour of the font, which I imagine was decided on at great cost by a hotshot team of consultants, and which I am certain multiplied sales manifold.
I know that this must have been confusing for many of you, who turned up at the website, tried to grab the screen and turn it like a page, tried looking for a crossword, spilled coffee on it, etc. And to you, I apologise. Also, the wealth that I have made from exploiting APN's trademark has bought me a flash house and a car with electric windows.*

But my favourite part about Mastheadgate is the courteous and polite way in which APN's legal team dealt with the issue. I've been told that the emails' threats about email confidentiality and 'NOT FOR PUBLICATION' are just a smokescreen that bullies people who don't know the law (98% of people), so here goes:
NOT FOR PUBLICATION [oops!]

Dear James,

I am legal counsel for APN New Zealand Ltd, publisher of The New Zealand Herald. APN New Zealand Ltd is one of the APN News & Media Ltd group of companies ("APN").

It has come to my attention that your website http://editingthe herald.blogspot.com features the stylised logo of the The New Zealand Herald (page shot below) as appears in my email signature below and which is an APN registered trademark. Your use of the trademark is trademark infringement.

You are required to remove the trademark immediately and to desist from any such infringement in the future.

Unless the trademark is removed from the website by 5pm tomorrow 6 May 2009 then APN will commence legal proceedings against you for trademark infringement and damages will be sought. All of APN's legal rights are reserved accordingly.

I would appreciate your acknowledgement of receipt of this email and confirmation that the requested actions will be undertaken.

Yours sincerely
James Elliott
Legal Counsel
To which I replied:
Dear James (and Lauri [someone at the Herald who doesn't exist on Google, was CCed into the original email and, in the fantasy situation in my head, is the one who told Mr Elliott what to do]),

I hereby acknowledge receipt of your legal threat. I will submit it immediately to my legal counsel to evaluate its merit. [They probably thought I was bluffing. It turned out I wasn't.]

Could you please point out exactly how my use is infringing the copyright, and why this has only become an issue now?

Kind regards,
James
http://editingtheherald.blogspot.com
I then received the following:
James,

Thank you for your email.

Attached is a copy of APN's trademark registration, Wilson & Horton Finance Pty Ltd being a company within the APN New & Media Ltd group of companies. Your use of the trademark in the same form that is registered is simply trademark infringement. I will leave it to your legal counsel to explain to you the difference between trademarks and copyright and the consequences of trademark infringement. [Thanks James! He did, and it was both entertaining and informative.]

Your infringing behaviour was only drawn to my attention this morning hence the action we have taken. Your acknowledgement that the APN trademark has been infringed for a period of time will be relevant to a damages claim if made. [Hang on - where did I say I acknowledged infringing the trademark for any length of time? Oh wait, I didn't. Nice bullying attempt though.]

You should be under no illusion as to the importance of this matter. Protection of its intellectual property in general and the trademarks that relate to its mastheads in particular is a serious and non-negotiable matter for APN. If the offending material is not removed by 5pm tomorrow then legal proceedings will be commenced without further notice to you.

Yours sincerely


James Elliott
Legal Counsel
(All emphasis my own.)

Anyway, I don't know if it has ever happened to any of my readers, but it's not particularly nice to be threatened with legal action, especially when a polite request would have worked. I lied before: I haven't actually made any money off the site. Threatening legal action against a not-for-profit blogger (although, as I understand, APN has been a not-for-profit organisation for a while as well - ouch!) who spends half his bloody time doing pro bono work for the Herald is the reason everyone loves corporations so much.

I realise it's not the world's biggest deal. I probably did violate their precious trademark, which I will soon reconstruct in a similar but non-identical font. And sure, apparently most, if not all, newspapers jealously protect their mastheads, although I am unsure of what the loss to the Herald in this case might have been. I've changed the title banner, and I'll pretty much go on as usual, although my legal advice says that I should probably remove my pretty photo banner in case I 'stole' any of them from APN. So the Herald has succeeded in making quite a few people's lives ever-so-slightly worse, while making a bunch of people significantly more bitter/less sentimental about it. Good job.

So yes. I'm sure there's some 'APN bullies blogger' angle on this story if anyone reading this works for, say, Fairfax, TVNZ or 3 News (or just another blog, I'm that starstruck). I will offer you the story free of charge! That's just the kind of person I am.

Finally, thanks to Scott Yorke, an intellectual property lawyer (!) from A J Park and EtH acolyte - not to mention author of the well-worth-reading Imperator Fish - for his legal advice. Hey look, I did have legal counsel after all! Thanks also to, erm, Mr F, a friend from a large law firm that occasionally does work for APN so probably shouldn't be named. No thanks to Mr James Elliott, who may just be doing his job but, like Roger Douglas, doesn't have to make it look like he's having so much fun while he's doing it.


*That is, windows made of electricity.

147 comments:

  1. I hope that this somehow manages to draw way more people to your blog, not only so that it opens more peoples eyes to the shoddy lazy reporting that so often graces the Heralds pages, but so that a bunch of execs at APN feel like idiots. This result, otherwise known as the Streisand Effect (http://www.techdirt.com/articles/20070511/133311.shtml) would be a total win and something that EtH could feel well proud of.

    Imagine if it actually resulted in better reporting!!!

    ...how Pirate Bay-esque :-)

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  2. Does this threat of litigation now make you legit?

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  3. Shameless bullying! NOT FOR PUBLICATION in f**king CAPS LOCK and everything... oooh. I hope the other media outlets catch on quick... this is quite a scoop.

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  4. I thought trademark infringement only counted for commercial purposes? Sure your lawyers will figure out some way to get around it.

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  5. For the record (because records matter in these things) I would like to note that, as a member of the public, the use of the masthead on this blog in no way misled me (ie. I didn't think this was a Herald blog or even a Herald approved blog) nor did it encourage me to come to this page rather than visit the Herald website nor did I think this blog was trying to 'pass itself off' as being related to the Herald in any way. Given all this I would find any action for damages by the Herald utterly baseless.

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  6. Well you know what this means - they hate you, they really really hate you! (à la Sally Field...) Surely no better satisfaction than knowing you've gotten under their skins. Can't you go on CloseUp & expose the perfidies of the Herald to the world? You and Sainsbury could bond over your bordering-on-ginge facial hair.

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  7. flip 'em the bird.

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  8. They must feel very insecure to take such action - if their journalists and editors were any good at their jobs then your blog wouldn't be true and I'm sure they wouldn't bother.

    The funniest part of this whole situation, I think, is that I only found your blog after being directed to it by a link from the Spare Room blog, which I was directed to by Sideswipe in.....the New Zealand Herald!

    Sideswipe is "By Ana Samways" and Spare room is "Edited by Ana Samways and Steven Shaw". Most days Sideswipe (in the online Herald anyway) has a link to Spare Room.

    http://www.spareroom.co.nz/2009/03/02/lisa-lewis-and-other-choice-links/

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  9. This comment has been removed by the author.

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  10. I wonder what they'd have done if you hadn't used your real name?

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  11. James - I think you might be in with Sophie.

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  12. Hi Hadyn here from One News. Could be interested in this. Could you contact me at hadyn.jones@tvnz.co.nz or 9166808.

    Cheers

    Hadyn

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  13. what little respect i had for you james, has just doubled. Well played, sir. Well played.

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  14. Hi James. You don't have much choice but to back down on the trademark issue, but you correctly ignored the NOT FOR PUBLICATION flag. That's nonsense in this context, as I'm sure any Herald journalist would tell you.

    And you might as well take advantage of this excellent opportunity for cross-media publicity ...

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  15. Totally agreed, TheDancingCookie.

    It seems perfectly clear that the image in use by EtH contains a modified version of the Herald logo and that it was obviously modified for the purposes of satire. There is absolutely no confusion as to whether or not one is reading something from EtH or the NZ Herald (the reason for trademarks is to distinguish products or services from those of other entities). It does not compete in any way with the NZ Herald and, in fact, provides links to the Herald articles that are the topic for the day, thus directing traffic in the direction of the original website.

    The Herald (APN) are creating nothing more than a petty and wankerish public image of themselves and don't appear to properly understand why trademarks exist. 10 points. Dumbasses.

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  16. Score, James! You could mention to interviewers that our local IP law does not properly allow for satire, and it needs to. I know trademark is different than copyright but it is a similar weakness that ties to the recent blackout campaign about section 92. Ask Scott or someone lawyerly to comment. Offers libary footage to pad your story, Hadyn.

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  17. You could follow the Boyle style of legal response and print out coupons for one free infringement of one of YOUR trademarks and hand them out to APN and their lawyers.

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  18. James, you legend! Obviously they take you as a threat to their "reputation", but gee wizz if that wasn't a load of BS on their part - perhaps if they bothered to start some journalistic quality control they wouldn't have to worry about blogs such as this existing.

    Take for example this little gem about 'pre-Maori' "evidence" in Silverdale:

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10570580

    As an actual archaeologist (as opposed to the kind Martin Doutre labels himself) i'm all too familiar with this shit so I promtly responded to the editor:

    "I was disturbed to find such a misinformed and misleading article about Martin Doutre's supposed discovery of "pre-Maori boulder artefacts" on a Silverdale hilltop in what is supposed to be New Zealand's leading newspaper. The Celtic NZ thesis which Doutre et al. argue is well known amongst scholars as an example of pseudo-science at its worst. The thesis is underlain by a racial philosophy of undermining Maori indigenous claims, a vast conspiracy involving academia and the government to hide the “truth”, and ideas of white cultural supremacy. Add to this a complete lack of understanding of archaeological method and theory and scientific methodology in general.
    It was thus disappointing that the NZ Herald deemed such racial and paranoia fuelled pseudo-science as worthy of publication in something other than the alternative conspiracy magazines in which it belongs, especially when one considers that actual archaeological investigations are seldom reported upon in New Zealand media. Indeed, this example of journalism seems more fitting for a tabloid than a serious newspaper, and has done a disservice to the public. The one-eyed reporting on of such claims as put forward by Doutre also undermine continuing efforts in areas such as the public education and dissemination of scientific knowledge."

    There's also an open letter over at the 'Reading the Maps' blog:

    http://readingthemaps.blogspot.com/


    Anyway, again you're a legend.

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  19. Ooh, they clearly don't like it up 'em, Captain Mainwaring. How nice to see that instead of simply accepting that their cost-cutting measures (ie chopping journos and subs rather than culling the non-productive nobodies on Mahogany Row) has led to a poorer product, they decide to wheel out the artillery. What a bunch of complete cock-knockers. Even Fairfax wouldn't stoop so low.

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  20. Take me for instance - until one hour ago I didn't even know about this fine blog.

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  21. This is serious stuff man, I wouldn't mess around... I heard that if you post the Herald logo illegally three times Garth George will jump out of your computer and rant you to death!

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  22. @Giovanni (and anyone else new), become a follower of the blog and a facebook fan ;) Links above!

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  23. Gaz, that's just an evil rumour generated by the Herald. Don't believe their lies!

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  24. You've rattled them ... and they have probably done you a huge favour by a. directing loads more readers to your blog (myself included - I didn't know about it until now, and what a lovely surprise it was. Thanks NZ Herald for telling me about it...)
    And b. Exposing, yet again, what a load of tossers they are!

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  25. Thank goodness you didn't take my legal advice ;) What a bunch of wanks. To quote your good self: "boo hoo."

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  26. Well James, you've got one more fan on Facebook, and one more NZer who'd never seen your blog before today subscribing to it.

    Thanks APN for raising my awareness of it. I'm sure you'll eventually learn that transparency is becoming less and less optional. If you're going to be dicks, we're going to find out. =)

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  27. No one reads this blog because you had the Herald logo on the page. They read it because of the interesting blog posts.

    All you need to do is stop using the Herald's logo. You can still call the blog "Editing the Herald".

    And then get on with the cool blog posts plz and don't let the man get you down.

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  28. Shame on them. Blog on James.

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  29. If it is any consolation, I have a letter in this week's Listener citing Editing the Herald (and Public Address) as an example of the best kind of blog around.

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  30. Kia kaha James, you're almost making me wish someone would threaten The Hand Mirror with legal action ;-) (I did mean the almost, Nice Lawyers Who Work For Clients With Deep Pockets)

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  31. Do you reckon the Weekend Herald will showcase EtH as "blog of the week" any time soon?

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  32. Honestly I wish someone would point out all the crap the editors at my job publish. They won't listen to me, and chances are that there are people working for The Herald pissed off at the crap quality of the paper too.

    I'm glad I found this through Twitter, your blog seems quite worth subscribing to. Even though the tweet that linked here appeared to be writing in The Herald's favour. Not sure if it was sarcasm.

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  33. Tom Semmens - unfortunately the blogger is bff with my bf, so alas, no ginger-blog-rage for Sophie. Ah, too ironic that APN has brought more attention to a blog pulling them apart. Totally sweet.

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  34. You did well James - what a legend. I loved the comments you made through his letter. I've been reading for ages but not commented before so hopefully this will make you even more famous.

    I am always reading the Herald through your links - they should be paying you!

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  35. Well done. I'm going to claim credit because as a former student all the good you've ever done is obviously all due to me (all the ill stuff I leave to the crap other tutors you had).

    But seriously, what a stupid stunt by APN.

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  36. Actually, I'm intrigued as to how APN would quantify or indeed justify damages arising from your use of their trademark. I also note that the Act specifies that infringment happens "in the course of trade". While I'm not a lawyer and I wouldn't recommend that you waste a lot of money defending a case anyway, this notice strikes me as probably entirely specious.

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  37. Wait a minute, did I read that right? The herald published an article reporting an article supporting the Celtic pre-discover of NZ thesis?

    That isn't just bad journalism - it is bad history. Or, more precisely, it is actual bullshit. Surely the journo interviewed an alternative view from the boring old "archaeological establishment"?

    What a crap paper.

    Blog on James, at least we now know they read your critiques. You are doing a community service.

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  38. Stink Bro!

    Keep fighting the good fight..

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  39. I thought about asking Geoff Lealand (comment above) for a link to his letter, but just went and found it myself. For those interested go here. http://www.listener.co.nz/issue/3600/letters/13243.html%3Bjsessionid=93A670E6A7BD6A954ABC796526F1E314

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  40. Let us know if you're gonna be on TV One?!

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  41. "I was disturbed to find such a misinformed and misleading article about Martin Doutre's supposed discovery of "pre-Maori boulder artefacts" on a Silverdale hilltop in what is supposed to be New Zealand's leading newspaper."

    I think your statement answers your disturbance; it has never been NZ's 'leading' newspaper. It's merely a rag masquerading as one, hence it's completely ok to feature flaky wacky stuff that's from outer space.

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  42. Well done James! Some things to note:

    1) More traffic to your site than ever before.
    2) An amazing amount of vividly descriptive terms for the Herald... I really like "What a bunch of complete cock-knockers", for originality and accuracy.
    3) The intelligence and witticism of your posters compared to "Your Views" is a telling sign of the different demographic commenting on both publications.
    4) You managed to take the piss out of all concerned basically by just publishing their own letter (with the odd James comment). That’s class.

    I would also like to say that your use of a stylised and satirical banner did not lead me to mistake your site for NZH. I never confused your site with the Herald, in the same way I have never confused a bar of chocolate with a dog turd. I’m smart like that.

    BTW (and for legal reasons) in no way did I intended to suggest that the Herald was, in fact, a dog turd – it was merely a metaphorical comparison between two objects that may appear similar from a distance. The fact that they are sometimes full of shit was just a happy bonus.

    On the downside, your new fan base might object to your leisurely publishing deadlines.

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  43. Its about time NZ IP law (copyright *and* trademark) allowed parody and satire. If a full rewrite has now been ruled out (despite the bogus story of another newspaper which tried to say otherwise), then at least lets patch ourselves up so that laughing at each other isn't illegal.

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  44. Having lived outside the country for a while now, it has been nice to be able to keep up to date with the comedic writings of Auckland's number one "news"paper. Cheers James!

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  45. I'm with James Elliot, down with Editing The Herald. Let's storm the Editing The Herald offices, who's with me people?

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  46. Last weeks average number of visitors per day: 358 ± 16

    Highest ever number of daily visitors to EtH before James Elliot wrote to James Coe: 528 (on Tuesday 3rd of March)

    Today's number of visitors at 17:06: 1064

    Thanks Mr. Elliot. We wish you well in your explanations to your superiors.
    Oh, and as Martin mentioned in comment #1, this is a well-documented internet phenomenon called the "Streisand Effect". Look it up on Wikipedia.

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  47. To Hadyn Jones, TVNZ reporter.

    It has come to my attention that your name - "Hadyn Jones" - is incredibly similar to my name Hadyn Green which is trademarked to me. Your use of the trademark is trademark infringement.

    People like myself, and "Gibbs" above may think your comments are actually mine. Which sucks.

    You are required to remove your name from yourself immediately and to desist from any such infringement in the future.

    Unless you stop infringing in the next five minutes then I will be forced to wave a stick menacingly in your direction.

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  48. Wait, so this isn't the New Zealand Herald website?

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  49. Nice work on the blog James! I'd be surprised if it didn't count as "fair use" to use someone's copyrighted or trademarked property for the purposes of satire. I know the NZ laws might not be the same, but think of how often such thinks appear on The Daily Show with Jon Stewart, for example. Keep on fighting the good fight.

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  50. [insert sound of loud, slow clap turning into a standing ovation]

    Unless the Herald has a 'keep your friend close, and your enemies closer' policy, ala the FBI and Frank Abagnale, I think this recent correspondance closes the door on you ever working for them. But who gives a toss, because newspapers are a sinking ship. There is just no room for them in tomorrow's media outlets. Newspapers CAN NOT COMPETE with the immidiacy and accessibility of the internet, however, the internet CAN NOT COMPETE with the revenue generation potential of traditional media sources. In a nutshell, newspapers cant survive as they aren't quick enough, but they can't just turn themselves into an solely online media source because they can't make enough money to create a quality product.

    This part is interactive, so I have to ask you to go to www.alexa.com, and compare the traffic of www.nzherald.co.nz to icanhascheezburger.com (the web's no.1 source of LOLcat related 'humor'). Both sites have similar page hits and page views, so for all intents and purposes, one could assume that their potential to generate advertising revenue is similar. Ye gods.

    The media outlets of tomorrow are going to be almost entirely web and TV based, with minor print outlets just for shits and giggled. Think ESPN, but for news, rather than sport. No room for newspapers in that world.

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  51. Jenn, prepare to be surprised. New Zealand does *not* have fair use like the USA does, just a much less useful concept of "fair dealing" which does not include satire. Jon Stewart could get his ass sued off if for saying the same stuff here. Mr lawgeeknz can probably explain it better.

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  52. Dude, I am so jealous right now. Also, you can't stop, because this blog is like TelevisionWithoutPity: it keeps me (and doubtless many more) up-to-date on all the stupid I can't bear to witness firsthand.

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  53. All The NZ Herald has served to do is have me remove them from my RSS feed haha

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  54. Anyway, I don't know if it has ever happened to any of my readers, but it's not particularly nice to be threatened with legal actionYes it has happened. I was threatened with legal action for defamation last week. It was dropped just two days later.

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  55. There is a bright side to getting rid of the blog masthead: we don't have to scroll down past all those pictures to get to the blog content.

    Otherwise BAHAHA to Streisand Effect.

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  56. This is funny! I'm literally an Earth diameter away from you, James, and have no inkling of the New Zealand Herald, but clearly you're getting on someone's nerves over there. Even without knowing them, I'm willing to bet they deserve it!

    Are they TRYING to kill their newspaper? This is the kind of stuff that pushes supporters (i.e. readers) away from the big guys and has 'em signing up with folks like you! Well done!

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  57. What a great excuse to tell people about your excellent blog!

    Keep up the good work, James.

    (And, that is interesting and probably useful to know about the "not for publication" text on e-mails. Because a lawyer said it, it's easy to assume it must be law, y'know? It's fascinating to watch how such tactics work, or try to.)

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  58. "....your leisurely publishing deadlines."
    Bahahahahahahahahahahahahahahahahahahahahaha

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  59. Fantastic work, James. Please don't let them bully you into stopping! I'm a Kiwi expat and reading the Herald online makes me doubt my faith in my country; their misjudged piffle craves correctives such as yours.

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  60. If you spend any time in UK and get used to reading the Guardian every day, coming back to the Herald is really painful - it is SO pathetic.

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  61. Way to go. As a former Fairfax manager, I'm stunned that APN would have the time let alone, the inclination to pursue this with you. What's it going to achieve?
    Well, it let me view your "naughty, naughty, naughty" blog! Ha. I'll be back... you're a (book)marked man!

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  62. What a bunch of muntasses.
    Not content with creating mindless, sensationalist and marginally literate content, they then open their other mouths and remove all doubt.
    Thank you good sir. I too have bookmarked EtH.

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  63. It's easy for people to urge you not to be bullied, but I can tell you from bitter experience that even if you get sued and win, you will still be out of pocket. IP law is a game in which only lawyers win. High principle is fine, if you have that much spare cash. So all those advocating ignoring the threat should accompany their messages with a substantial donation to offset the legal costs.

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  64. This story has now made it to Maine, USA

    Cheers!

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  65. As a fellow kiwi, I was unaware of this site until I saw the story on Techdirt, of course it's now bookmarked- thanks APN! (Streisand effect at it's finest). I hope this story gets some mainstream media coverage, I love to see bullies get their comeuppance!

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  66. Sideswipe; a brief rundown:

    Mavis writes in about her troubles with the teenagers:

    "They are always being such a nuisance! I went to the shop to pick up some unneeded groceries the other day, and asked a young gentleman if he would mind giving me his place in the line because my legs get tired you see. He told me that he was in a hurry because he had things to do as well! Needless to say I still purchased my bag of mushrooms and a bottle of wine, but hells teeth I was very surprised at the nerve of some of these young men!"

    ***

    Mr R Donaldson writes in regarding a run in he also had with his power company.

    "My bill came to $197.50 last February, when I knew it should have only been $195! I do everything in the exact same boring routine daily to ensure my budget is kept to. Good on you Mercury Energy, you are the reason for the recession!"

    ***

    Pat tells us of a funny name that a classmate had back in 1920. "Her name was Sandy Beach! Can you imagine the fun we had, my what fun we had.

    ***

    Sam Johnson took this photo of "Ding Dong" mixed nuts. "It is so funny what shopkeepers stock these days! Back in my day we couldn't get any of these asian foods, and by george it should stay that way. This is both offensive and wrong!".

    ***

    PEOPLE NEED TO LEARN THE ROAD CODE.




    And so on and so forth.

    - Uncle Nick

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  67. Here's one from the broken-corporate-mouthpiece-record department: the nz herald just published (presumably as as newsworthy) a two yeard old IPCC puff-piece. More recently the extent of the fraud has become apparent (see links)

    http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=10425613
    http://wattsupwiththat.com/2009/03/20/dr-syun-akasofu-on-ipccs-forecast-accuracy/
    http://epw.senate.gov/public/index.cfm?FuseAction=Minority.Blogs&ContentRecord_id=38d98c0a-802a-23ad-48ac-d9f7facb61a7

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  68. Apparently the APN lawyer is a bit of a comedian too. Read half way down the page.

    http://www.nzlawyermagazine.co.nz/Archives/Issue93/F8/tabid/1195/Default.aspx

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  69. Re the comment about "fair dealing", yes the NZ Copyright Act does have a limited fair dealing right, that does not extend to parody. However the issue here is about trade marks, not copyright. We should certainly have parody rights for copyright material though.

    http://www.burgess.co.nz/law/trade-marks-origin-not-content

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  70. Extreme cold keeps British global warming expedition from reaching North Pole

    "We feel confident predicting that the team’s final report will blame the extremely cold conditions on global warming."

    http://www.ihatethemedia.com/cold-keeps-british-global-warming-expedition-from-rnorth-pole

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