06 2 / 2013

optimisticynic:

Or, why abstract legal theory and the way things actually work out in the real world sometimes conflict.

The thing is, even if Darcy did all the right things -  a cease and desist letter, an injunction, the civil suit, and criminal charges - there’s still the very real possibility that the tape would be released and/or leaked anyway.

In an ideal world with honorable, law abiding people, that wouldn’t be the case. But we don’t live in an ideal world and George isn’t honorable and I doubt he gives two fucks about a piece of paper written in legal jargon.

But it’s the law!

Yes, but remember - the law is much a shield as it is a sword.

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There’s some good analysis here about what might happen on the witness stand or play out in a court of law.

That being said, I don’t think this analysis has anything to do with the real world. And, specifically, I think it’s a little…naive about the US legal system. The law isn’t just for the good guys. I agree.

The law is reserved for the rich.

Most of the scenarios in the above post are actually a Darcy win. If you force Wickham to go to court, he loses regardless of how the case works out, because he’s not going to make enough money on the tape to offset the massive legal bills he’ll have.

But more importantly, I think this makes the mistake of thinking that having lawyers means jumping directly to the court room. Being a good lawyer is 99.9% saber-rattling. Most cases don’t go to court, and so 99.99% of effective lawyering is out-of-court skills. You need to know whose saber you can rattle, and where to rattle it.

For Wickham, the most important strategy to remember is that if you can flush him out of hiding, you’ve won.

So here’s a non-comprehensive list of ways to rattle sabers that I came up with in a quarter of an hour. Any reasonably savvy internet lawyer with access to Darcy-like resources would think of these things, and could probably go about eighteen steps further:

1. Call the people you know at the DOJ and ask them to consider seizing the domain name on a time-critical basis. Presumably Darcy, in his capacity as wealthy CEO, has more of an entree with politicians, and so he might very well (upon a nudge) call a Senator and get another nudge on this one. (I would eschew that one in this case, because it would draw too much media attention, and it would probably also take too long; I mention it only to give you an inkling about the vast difference in the resource level that Darcy has over Wickham. Wickham wouldn’t know how to find the right lawyer. Darcy’s lawyers have friends at the DOJ. Wickham probably doesn’t know who his congressperson is; Darcy has had dinner with his senators. That’s what his level of wealth means.)

2. File a dispute with ICANN claiming the domain was registered in bad faith—that is, that it implies the endorsement of Lydia Bennett, who has not endorsed the website, and push to expedite it.

3. Call a friend in the legal department at Google. (Yes, if you’re a reasonably savvy internet lawyer, the kind that Darcy would hire, you have friends at Google Legal.) Ask this friend to expedite deletion of the lydiabennettape user on Youtube and the comment on the video, as well as to suppress any search results. There will be a search trail for this, but getting the results out of Google would be a good start.

4. Send the LLC in question a C&D order through their registered agent, one that makes it clear that there are big guns on the line and that any potential profit that could be made from this will be eaten up by the lawsuit. Threaten to not only sue them, but to get an injunction requiring the payment system that they use to put any money earned in an escrow account pending resolution of the lawsuit, so they’ll never see any profits directly. Get ready to file such a lawsuit, but don’t do it yet.

5. Send a DMCA takedown notification to the host of the site. Mary Kate Wiles has stated that the picture on the sex tape site is one that Lydia took (this is not canon, but it seems reasonable), so this is an easy call—Lydia’s the author of that picture. You could also argue that they’re offering for sale a video where the copyright is in part owned by Lydia Bennett. (This is arguable, but we’re rattling sabers, not deciding matters in a court of law—the most important thing is to send the takedown notification so that…)

6. Immediately upon doing (5) above, you go to the courts and get a subpoena to get the host to divulge all the information they have about George Wickham, under section 512(h) of the DMCA.

As a side-note: a lot of the above is just playing Whack-a-mole in a sense. You can have one site taken down, and he can put up another with a minimum of money involved. Still, there’s only one mole, and every time you force him to move servers, you’re bleeding money from him. Even though you’re bleeding money from him in a ratio of 1:100, you have way more than a hundred times more money than he does, so you’re going to win.

7. Every time you file one of the disputes above, you include your contact information, so that when the ISP takes his site down and includes the DMCA notification, he’ll also see the notation, “If Mr. Wickham would like to discuss an amicable resolution, aforementioned counsel would be happy to facilitate a discussion with the aggrieved parties and Mr. Darcy.” You start adding threats, too, as he goes down the line—things like, “If we don’t hear from you by X date, we will have to inquire as to your whereabouts with your former employers.”

8. If he doesn’t respond within 24 hours, you start doing exactly that. You start calling his former and current employers and saying, “Hi, I’m Nice Lawyer with Huge Firm, LLC. I’m calling to inquire about the whereabouts of your former swim coach, George Wickham. He’s implicated in a potential civil lawsuit involving sexual misconduct and abusive behavior with college-age women, all of which has been caught on film.” Would be slander if it was false, but it’s true. And you’re just gathering evidence for a potential suit. Just doing your job, right?

The fact that you are simultaneously telling everyone who could give him a recommendation or a boost in his professional life that they shouldn’t recommend him or renew contracts with him is just gravy.

Let him know who’s bankrolling this. Let him know he can’t win. Make it clear that there is no money to be had in releasing the video, ever. Remove everything he relied on in his past. Force him to make contact because if he doesn’t, he’ll never have anything good in his life again.

Do I have to go on? That’s about fifteen minutes of brainstorming on my part. Take three hours and a full legal team and George Wickham’s life would be full of so much hell he wouldn’t even know what hit him.

That’s what it means to think like a lawyer—to make a list of all Wickham’s resources, and to knock every single one of them out before he can go to them.

I haven’t even gotten into questions like filing suit against him on ancillary matters unrelated to the videotape (I’m sure you can find something) just so that you can get court orders to freeze his assets, or putting pressure on the prosecution to take him down.

Of course, you don’t start out full bore. You give him a chance. You tell him what’s coming. You suggest that he contact you, and you up the stakes every day when he doesn’t. And you make it 100% clear to him in all correspondence that if he releases the sex tape in the wild, he has just lost the only hint of negotiating power that he has, and that at that point it will be a no-holds-barred drag to the finish line. Remind him that if he goes scorched earth, he’s standing there holding a single match, and you have a phalanx of flamethrowers.

So there you are, folks. That’s a short run down of how lawyers can ruin someone’s life without ever filing a lawsuit.

More importantly, this is what it means to be an elite in our world: that if you want to break someone who has close to nothing, it’s as simple as outspending them 100 to 1.

Darcy was right. Social class is a real thing, and nowhere is that more apparent than the law.

If you really think that Wickham has an equal chance in a courtroom against Darcy, you are fooling yourself about our legal system. Wickham cannot afford a lawyer. This is a civil matter, so he won’t be granted one by the courts, and he’s unsympathetic enough that he’s not going to find someone to take him on pro bono. While Wickham is trying to figure out what a cause of action is, Darcy will be burying him on discovery.

Lawyers are great at scorching earth, and when you’re George Wickham, you don’t have a lot of earth of your own. You can’t afford to let any of it burn.

By the way, all of this should trouble you. It troubles me. Someone with money can ruin your life tomorrow, and not even break the law when they do it. And there’s very, very little that you can do in response. Is this a good thing about our legal system? No. It’s awful. It’s legitimately awful. If you have enough money and the right connections, and you don’t mind setting a match to your money, you can burn anyone’s life to the ground, so long as they’re poor and don’t know much of anyone.

It wouldn’t take more than 100k.

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