Picking a Fight with a Barrel of Ink

[Note: the following facts are true. They can be verified through the various court filings and decisions on file here and here at Citizens Media Law Center.]

Early in my short political career, I learned an old adage known to politicians around the world and attributed to many: never pick a fight with someone who buys ink by the barrel. The meaning is plain enough, and the advice is indelibly sound: do not start a fight with the press.

I must confess that I did not heed that advice, although not out of courage as much as a lack of fear in the consequences. I was only going to serve for a few years anyway, so how much damage could they do? It was a liberating thing, knowing I could speak frankly to reporters and editors. And boy, did I.

This strategy cannot easily be translated to an author who wishes to take issue with a reviewer, or worst of all, with the Big Ugly Goon standing right behind him. I offer as Exhibit A the unfortunate case of Jeffrey Hammer.

Hammer is a self-published author of several books, including Mind Reading in Written Form!: The Magic, Power, and Secrets of Handwriting Revealed! and An Advanced Guide to “Basic Hypnosis”.

Mr. Trendl, the Evil Reviewer (and Top 500 Reviewer, a fact of some note), didn’t think much of Mr. Hammer’s books, and said so in numerous book reviews posted on Hammer’s Amazon book pages. In the reviews, titled “Shallow Look at Hypnosis” and a “Disappointing Look at Graphology,” Mr. Trendl compared Hammer’s book on hypnosis to “the dust under my couch,” and questioned Hammer’s “spelling, grammar and teaching on the subject” of hypnosis. Needless to say, Trendl did not recommend Hammer’s books.

It is at this point that Mr. Hammer would have been well advised to ignore Mr. Trendl’s criticism and gone about his business. Unfortunately, he did not. Hammer sent a letter to Trendl, threatening future litigation if Trendl “did not stop libeling him on Amazon.com.” Trendl ignored the threat, and the next month, April, 2002, Hammer sued him in federal court, alleging that Trendl’s nasty reviews amounted to both copyright infringement and defamation. And no, he did not do so through a lawyer. He proceeded as the notorious “pro se” party.

Mr. Hammer’s (handwritten) Complaint, which can be read here [WARNING: TRAIN WRECK AHEAD], appears to put to rest any lingering doubt as to the fairness of Mr. Trendl’s criticism of Hammer’s writing abilities. Among other claims, he asserted that Trendl’s reviews illegally referred to competing works, resulted in a decrease in sales of his books, ruined his reputation and subjected him to public humiliation. He accused Trendl of targeting him and his books to prevent him from selling them, and claimed that Trendl was being paid by competitors to do this.

Well, predictably, Amazon did not take kindly to all this bad karma. In July of 2002, Amazon’s Vice President of Litigation (wow, what a corporate title!) notified him that: (1) it would not take Trendl’s comments down; (2) his lawsuit against Trendl was meritless; (3) Amazon would provide Trendl with counsel; and (4) if Plaintiff did not agree to dismiss the Trendl Action with prejudice, Amazon would remove Plaintiff’s books from their website.

“Plaintiff” did not accede to Amazon’s requests.

And Amazon removed all evidence of Mr. Hammer from their website.

Undeterred, Mr. Hammer doubled down. After he had filed more than 50 motions in the Trendl action, in January of 2003, the federal district court dismissed his complaint, and took the extraordinary step of entering the following orders:

ORDERED, that, as a result of the more than 50 motions made in this case some of which were repetitive and frivolous, Jeffrey Hammer shall not file any papers in connection with this case unless prior to any such submission: (1) he files a one-page written application to the Court for permission to file papers in this case; (2) in that one-page written application, he explains why the case should be reopened and why he seeks permission to file papers; (3) the Court grants his application in a written order; and (4) Hammer submits a copy of the Court’s order granting him permission to file papers with the papers he has been allowed to file; and it is further

ORDERED, that the Court will not accept any papers filed by Hammer in this case unless he complies with the procedures set forth in the preceding paragraph; and it is further

ORDERED, that Hammer’s failure to comply with the foregoing procedures may result in monetary sanctions including, but not limited to, the defendant’s attorney’s fees; and it is further

ORDERED, that Clerk of the Court is directed to close this case.

You can say one thing about Mr. Hammer. He is persistent. He sued Amazon in the same federal court, six months later. And what a Complaint it was, containing such provocative claims as theif [sic] of personal property, cyberjacking of his website, robbery, violation of his copyright, deprivation of his right to freedom of speech, discrimination, violation of normal business practices, and anti-competitive conduct/violation of consumer’s rights.

He shared his deep suspicion that, had Amazon not provided Trendl with legal counsel, he would have recovered a default judgment of $ 5 million, and speculated that “if the matter . . . would have been allowed to go to trial, the plaintiff would have won and Mr. Trendl would have lost! (Big time!).”

He insisted that Amazon was aware of Trendl’s unfavorable reviews and “should have removed [Trendl] from their system[,] but they refused and uped [sic] his ranking as a top book reviewer.” Because the “reviews” of parties become the property of Amazon.com upon submission, he asserted, “Amazon.com clearly becomes a party to these attack essays by allowing [Trendl] to alter [sic] attack essays.” In short, Plaintiff accused Amazon.com of colluding with Trendl.

Unfortunately for Mr. Hammer, Judge Seibert did not share his suspicion. She dismissed his case against Amazon.

And Mr. Hammer’s books? Well, there is dust under the couch.

One might think this is a wild exaggeration, an outlier. But there have been others who’ve claimed contacts with the FBI over reviews as nasty as Trendl’s. These bogus claims have been accepted as gospel by members of a shadowy website claiming to be supporters of authors “bullied” by nasty reviewers, who have recommended to their readers that contacting the FBI is a good idea.

YES! The NEW PARADIGM!

We are dealing in the Wild Wild West again, where the crusty old laws of tort and contract are not quite attuned to the internet behavior of authors and reviewers. Where the DMCA takedown provisions are used as weapons and swords by battling contingents.

There is one lesson to be learned about all this – besides “a man who represents himself has a fool for a client.”

It is this:

Do not respond to negative reviews (unless it was a particularly excellent negative review, and you can pull off “boy, you got me on that one!”