Thursday, 7 September 2017

Techdirt's Ayyadurai Defamation Suit Dismissed But Shiva Will Appeal

Stand with Techdirt cartoon with Techdirt logo t-shirt
"Inventor of EMAIL" Shiva Ayyadurai's $15M lawsuit against tech blog Techdirt, my go-to source for tech news, has been tossed. This is not merely a vexatious litigant being shown the door, it's about the right to speak as you find whether the subject finds it upsetting or not. Let's take a closer look at the implications of the case.

This case is not just about Mike Masnick and his embattled blog, it's about the freedom of speech itself. I'm not exaggerating: Shiva either did or didn't invent email as we know it today. When Mike said, "Oh, no you didn't," Shiva went ballistic even though Mike was right — and tried to shut him up by driving him out of business. He even hired Gawker killer lawyer Charles Harder to fight his case — which Shiva intends to appeal.

The case


Mike's troubles began when he posted this article, How The Guy Who Didn't Invent Email Got Memorialized In The Press & The Smithsonian As The Inventor Of Email, in 2012. He said,

As is nicely summarized on Wikipedia's talk page about Ayyadurai, he was responsible for "merely inventing an email management system that he named EMAIL," which came long after email itself. The Washington Post eventually offered the following "clarification":
Clarification: A number of readers have accurately pointed out that electronic messaging predates V. A. Shiva Ayyadurai’s work in 1978. However, Ayyadurai holds the copyright to the computer program called "email," establishing him as the creator of the “computer program for [an] electronic mail system” with that name, according to the U.S. Copyright Office.
Except... that "clarification" seems to confuse copyright with patents. Copyright is only over the specific copyrightable work created -- which would be the specific code he used. It does not, in any way, establish him as "the creator" of "the" electronic mail system -- merely an electronic mail system -- and hardly the first one. I could write some sort of email management software tomorrow and copyright that... and it would no more make me an "inventor" of email than Ayyadurai.

There's a detailed history of email over at the NetHistory site, and you'll note that Ayyadurai doesn't warrant a mention -- which isn't surprising since his work comes way after most of the important stuff was done.

 Shiva Ayyadurai DID NOT invent email as we know it


Had Shiva actually invented email as we know it today, he'd have got a patent, for a start. Copyright covers the code, not the implementation. Email itself had been around for a long time before. In fact, had Shiva never been born at all we'd still have email as we know it today because he had nothing at all to do with creating it. He wasn't on the team that helped to create it. Mike wrote several more posts about Shiva, explaining to his readers that if they believed Shiva's claims, they were being duped. The Huffington Post certainly was, the Smithsonian was, as was noted political activist Noam Chomsky. It actually took HuffPo a week to wake up to the mess it had gotten itself into, at which point Shiva threatened to sue his critics. He also managed to get the mainstream media on board. If that wasn't bad enough he actually slagged off one of the people who actually did invent email as we know it after reading his obituaries in the press. Then he went after Gawker — and accepted a settlement to drop the case. After reporting on the case, Mike had a bit of a rant about it the following day because that thing about repeating a lie often enough convinces people that it's true is actually true: a lot of people were still falling for the lie despite the huge pile of evidence against it. On 5th January 2017 the story of Shiva's lawsuit against Techdirt broke. Mike's post about the case outlined his reasons for fighting back instead of settling: basically, it's about telling the truth and not giving in to bullies.

Shiva's assertions and complaints


Lawyer Charles Harder, representing Shiva, complained against other publications, too, as reported by Techdirt:

The falsity of the Posts [sic] significantly damages Dr. Ayyadurai's persona and public imagae. Moreover, through the Posts [sic], Mr. Schestowitz seeks to incite a wave of harassment against Dr. Ayyadurai on the Internet [sic], as well as to inspire additional false and berating commentary against Dr. Ayyadurai. Mr. Schestowitz has used Diaspora as a platfor to wrongfully and unlawfully harm Dr. Ayyadurai's personal and professional reputation, which he has worked so hard, for decades, to achieve.

The Posts [sic] also constitute intentional infliction of emotional distress, and qualify under the law to establish liability... - Legal Threats By Charles Harder & Shiva Ayyadurai Targeting More Speech, by Mike Masnick for Techdirt

Given that Schestowitz was actually telling the truth, that's a bit rich. Shiva has either been exaggerating the impact of his clever program, which never got beyond the walls of his school, or he hasn't. Shiva's main complaint, then, isn't that Techdirt (or TD, as I sometime call it) lied about him, but that writing about him made him look bad. Mike has embedded the legal filings in TD's defence in three posts on the subject so you can see for yourselves how ridiculous the case against it was.

The impact


The chilling effect of the threat of a catastrophic lawsuit is real; Gizmodo ended their coverage of the story for fear of it because, whether or not you have truth on your side, litigation is a rich man's game. Gawker and its sister publications not only pulled their stories about Shiva, they paid him off. Dr. Roy Schestowitz was bullied into pulling his stories on the subject as well; it doesn't do to have an opinion a litigious complainant disapproves of. As Mike has often said, we need a strong anti-SLAPP law to kick this kind of thing out of court before it can have that kind of impact.

Reputation


Yes, negative reporting can and does hurt personal and professional reputations but as I've said any number of times the individual does more harm to their own reputation by their own self-chosen conduct than any blog, newspaper, or even gang of determined trolls. I know, I've been on the receiving end. And as I've said, people writing about you makes other people check you out. Be sure to have something positive waiting for them. And don't whinge. The best reputation management you can possibly achieve is to successfully present yourself as a calm, reasonable person who is not prone to self-piteous complaining or getting involved in drama and the best way to do so is via your own personal conduct. The better you behave, the harder it is for any negative claims about you to be taken seriously. My own story is proof of this.

Freedom of speech


I struggle with freedom of speech issues since people can be shut down by speech as well as enabled. Like it or not, there are consequences for speech whether positive or negative; if you say things people don't like expect them to lash out at you for it. Your speech may either help or harm other people; if you say negative things about people on a public forum, horrible people may decide to make the subject of the story's life a misery, as Dr. Janice Duffy attests in her response to one of my comments on a Techdirt post. This can be argued two ways: if the post didn't exist in the first place, the trolls would not have come after her. On t'other side, why hold TD responsible for the behaviour of the trolls that infest its comments sections? Trolls will be trolls — they might have come after her anyway even if Mike had never written a word about her.

How free should speech be?


Okay, let's take a closer look at that: should you take the likely behaviour of horrible people into account and be careful not to write the kind of thing that might "justify" an attack on an individual? Remember that time a man tried to set an internet mob on me for arguing against basic income? He fell on his face, and this was a deliberate attempt to get me mobbed. The truth is, it's hard to know how people will respond to what they read online and individuals alone are responsible for their own behaviour. If that's not true, the nanny state needs to nanny moar. As I said, human beings are unpredictable, they don't always dance to the the music we play and don't always come when they're called. For this reason I can't blame anyone for anyone else's actions. Even if they tell people to go after others, it's the individuals who make the decisions to do so or not. The ones most likely to behave badly would behave badly anyway, is what I'm saying. Don't blame the platform for it.

Techdirt has not really won


The Techdirt defence team lost its bid to have the case heard according to California law, in which the loser pays the winner's legal fees. The case has been dismissed rather than settled with a winner and a loser because District Judge F. Dennis Saylor found that because it is impossible to define precisely and specifically what e-mail is, Ayyadurai's "claim is incapable of being proved true or false." As a result, Shiva intends to appeal the case. His lawyer Charles Harder said,

"False speech is not protected by the Constitution, and TechDirt’s false and malicious speech about Dr. Ayyadurai should receive no legal protection," Ayyadurai said in the statement. "False speech does harm to readers, who are misled by it; it does harm to journalism, which is weakened by it; and it does harm to the subjects of the speech, whose reputations and careers are damaged by it." - Judge dismisses Shiva “I Invented EMAIL” Ayyadurai’s libel lawsuit against Techdirt, by Cyrus Farivar for Ars Technica

Basically, per Judge Saylor's remarks on dismissing the case, whether or not Shiva invented email as we know it today is a matter of opinion. That's a cop-out, in my opinion. He either invented email as we know it or he didn't. To say that it's a matter of opinion is to allow Shiva to continue to crap all over Ray Tomlinson, who implemented the first email program on the ARPANET system, the precursor to the Internet, in 1971. Shiva's claim to be the inventor of email is based on the software he wrote as a 14-year-old student at Livingston High School (New Jersey). In 1979—some sources say 1978—he wrote an implementation of an interoffice email system, which he called EMAIL, then registered the copyright for the code.

This is dangerous


It's obvious from the historical, checkable record that Shiva didn't invent email as we know it today. He didn't invent email at all, he just wrote a program that his school used for a while and it never even left the building. I actually tweeted him about it and he would not reply as to whether or not anyone outside of his high school adopted his EMAIL program. The answer is no. Nobody did. And the school eventually stopped using it. The fact that the judge wouldn't make a stand on the facts means Mike and the team will be dragged back into court for the appeal, during which they will have to face Shiva over and over again. If they finally do give in to save themselves from bankruptcy, they will have to pull the factually true stories and pay out a liar who slanders the dead to enhance his own fake reputation.

Support Techdirt


For this reason it is imperative to support Techdirt, and if you have already donated, please do so again. The idea of letting any blog or website be shuttered just because it tells truths certain people don't like is unconscionable. Anyone thinking of gloating at the thought of its demise would do well to remember that they too might well fall foul of such people themselves if they are prone to expressing opinions. Be careful what you wish for, is what I'm saying.

Good luck, Mike. I stand with you.

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