Road Conditions

I know I’ve been jumping up and down on my soapbox for the last couple of days, but one of the (more interesting) things I do in my work life is to spot litigation trends. What do I see?

I see the FEC’s refusal to back off of the possibility of suing bloggers for linking to political websites on their blogs. I don’t believe they will pick on the big boys like Patrick exactly because they are highly visible targets. I believe they will take a page out of the RIAA playbook and carpet-bomb the little guys. Why? Because the little guys simply can’t financially afford to fight back, and they certainly can’t generate the kind of attention a high-profile blogger can. The FEC will get loads of media notice, however. (The better to scare you with, my dear.)

Further, Glenn Reynolds seems to advocate Shanti Mangala’s war on The Times of India. I would temper that enthusiasm, however, with the fact that The Times has already proven that litigation is a mighty effective cudgel.

So you still think you might want to climb on that bandwagon anyway, because your blog is anonymous? Think again. It’s apparently very easy to find us… and find us they will.

No! No! That can’t possibly be right, you say?

Well, look at what happened in the Apple trade secrets lawsuit against Apple Insider, PowerPage and Think Secret. Not only were these bloggers forced to divulge their sources, the court went a step further: “The court also granted Apple powers to root around the blogger's e-mail records in their near-religious quest to track down the culprit.”

Not enough to scare you?

“Meanwhile, Mac was busy flexing its bully boy corporate muscle in the UK, successfully squashing a smaller company holding prior rights on the iTunes.co.uk domain.”

Okay. Does this mean I’m going to back off of shouting my head off about these issues? No. In fact, I’ll take Patrick’s pledge right here:

If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.

I will, however, be fully cognizant that there may be ugly legal ramifications for the exercise of these rights. And I will be fully cognizant that big business has recognized that lawsuits are a highly effective method for shutting down my ability to publicly dissent.

I’m not a conspiracy theorist, and I don’t believe there’s some sinister cabal lurking somewhere out in the ether to pounce on us. I do believe, though, that business and government have simply found an economically inexpensive and technically effective way to control what can and cannot be published. (You've almost got to admire that. Almost.)

I am a practical person, and I’d like to be making these choices with a bit more of a safety net. A few dollars here and there add up quickly. I’ll say it one more time, and then I’ll shut up – bloggers need to give serious discussion to the merits of setting up a legal/legislative defense fund. And we need to start that discussion NOW. The time to think about acquiring anti-aircraft guns is not in the middle of the bombing of Dresden.

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Update: Patrick pointed out this organization to me. That's a start. Good.

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