Chris Mackney, a Virginia father of two, took his own life in December 2013, leaving behind a four-page note blaming his suicide on a “broken” family court system that stripped him of his parental rights. The note is somewhat nasty towards his ex-wife, Dina, and reveals personal information about his kids; it’s also clearly Chris’ side of the story – which is likely not an objective analysis of the bitter divorce between him and Dina. His note became a speaking point for “Men’s Rights” and “Father’s Rights” activists who regularly complain that Family Court too often favors the mother over the father.
Things kept going Dina’s way in court when, despite the animosity between the two parties, a Virginia judge made Dina the administrator of Chris’ estate. Then in March of this year, the court gave Dina permission to essentially remove Chris Mackney from the internet. Chris had not only published his suicide note, but had uploaded numerous documents and articles he wrote about his case to various blogs and websites. The court’s order reads:
ORDERED AND DECREED that Petitioner shall have the legal authority to take any reasonable action necessary to access, remove and destroy any web postings, to require that websites be taken down and/or otherwise dispose of intangible property including but not limited to information that the deceased has posted online on any website or social media account including, but not limited to material located at the following domain names:
After that decree comes a long list of domain names: various blogs that have discussed the Chris Mackney story; Facebook (including the post where he said he intended to commit suicide); Scribd; Reddit; Google Docs; and Google Drive — where Mackney had posted many documents, including news articles that he believed supported his position).
The order basically gives Dina permission to delete all evidence that her ex-husband existed online at all:
... and to wind down and remove any website posts or other online activity by the decedent at such time and in such direction as the Administrator may deem appropriate, it being the intent that this Order shall apply to any online activity by the decedent during his lifetime.
What? How is this possible? Chris -in his lifetime- wrote comments, submitted articles, uploaded documents- and in doing so gave permission – express and implied – to those websites to host those statements and documents. His ex is now using the power given by the court to send cease-and-desist letters alleging copyright infringement (and some privacy claims) to scrub the net of Chris’ existence. Many sites discussing this are blaming the wife. But the fault lies with the court. This sweeping order appears not to understand the nature and purpose of copyright, as well as its limitations. Most of these postings fall under the “fair use” exception in that they are discussing and commenting on the piece of copyrighted material and/or are reporting on a newsworthy aspect of the material and are not using all of the material. But state courts rarely deal with issues of copyright as that is the exclusive domain of Federal courts. Also since Chris was deceased at the time of the orders, it appears that these orders were issued by the court without anyone arguing the other side; very likely Dina’s lawyer(s) crafted the language in the order for the judge to sign, a common practice. For example, I am currently involved in an appeal of Georgia State Court decision that held that a website operator was guilty of harassment for language contained in posts other people put up on his website that discussed Linda Ellis, a poet who is known on the Internet for copyright trolling over the use of her poem “The Dash.” That court signed a sweeping order requiring the operator to take down any mention of Ms. Ellis – even ones that were not allegedly harassing.
Most sites are immediately complying with the cease-and-desist letters; its just easier for big names like GoDaddy and Wikipedia to take down the objectionable content as they have plenty of content and bigger fish to fry. But some Men’s Rights’ sites, like “A Voice for Men,” have taken a stand and refused to take down the material. Noted First Amendment attorney Marc John Randazza is helping them pro bono In an article on the website Raw Story, Randazza argued that Chris Mackney intended for his suicide note to be published, and that this license could not be revoked after the fact – particularly by someone who was not the copyright holder at the time it was first published:
“She is attempting to take the dying words of this man as her own property, despite no intention by him to grant her any such right,” Randazza argued. “Then, she is attempting to use that right in order to erase his expression from any further public existence.”
Kudos to Marc Randazza for taking this on. Let’s see if Dina will actually follow up on her demands and file suit against the sites that are refusing to comply with her demands. Will she put her money where her mouth is or will she just join the list of copyright trolls who send scary letters with questionable demands and then move on? Only time will tell. But what is clear is that State court judges may be confronted with these issues in the future and they need to educate themselves as to the reach of copyright law and the effect of their decisions in this arena may have on a person’s right to express themselves even after death and on the rights of others to continue to publish those expressions.