Just when you think they couldn’t get any lower, after unfairly attacking James D’Cruz’s interest in movies and books a few days ago in a press release, they are now trying to scare people with James in his halloween costume into donating them money. Yes, that’s right. I actually asked about the picture, and it’s a halloween costume. Of course, the Bradys went right past the picture of James in his JROTC uniform to get to the one that supposedly shows how off balance he is.
In addition, it’s probably worth pointing out that technically, that photograph is © 2010 by a one James D’Cruz, which would mean Bradys use of it for fundraising purposes falls outside of fair use, and therefore is copyright infringement. So not only are they maligning James’ reputation, but they are pirating a photograph from him as well. I think James’ should demand royalties. Granted, given the state of Brady fundraising, that might not be much, but at the least I think Paul Helmke owes James a Starbucks gift certificate or something.
I sent him a link to your post.
Perhaps all of the funding generated by the use of his picture should go directly to him.
They probably couldn’t get away with demonizing a minor. So their campaign to demonize James D’Cruz, whether intentional or not, confirms that he is an adult.
If he is adult enough to attack, he is adult enough to be allowed to carry concealed and to purchase a handgun.
Actually, I could see them going this low and even lower. They know their entire agenda is fraud. They know it hurts people.
Perhaps the Brady Bunch should look up the listing for slander on Wikipedia…Particularly the part about ‘false light’.
Why did nobody vet this Cruz character? Throw him under the bus. He’s not helpful.
Just when you think they are lower than whale shit at the bottom of the sea? Only thing lower than Brady Bunch is a ???
I can’t think of anything lower.
The one lesson to learn here is that if you are going to be in a high profile legal case your Facebook, Myspace, etc. needed to be sanitized.
He’s JROTC, and I’m guessing full ROTC now. He’s also a competitive shooter. I think he was vetted. What wasn’t anticipated, but perhaps should have been, was that the Brady Folks would crib movies and book quotes, and the guy’s halloween picture, out of the context of his Facebook and use it against him.
I’ve seen James Facebook. Taken in context of who else he is, and taken in the context of quotes, nothing in it would set off alarm bells.
Well, as disgusted as I am with the Brady’s tack … it is nice to see them on the defensive … even if their primary defense is venomous.
I am pretty sure that if Alan Gura was his counsel … all that Facebook stuff would have been removed before the complaint was filed. For better or worse, plaintiffs really need to keep a low profile.
Even if the attacks are baseless and vile … they still gain mileage for the other side, and take up the time of our side.
No… do not demand royalties, that lets them off easy.
Copyright infringement. $25,000 per offending unlicenced use. Actually, I beleive that number has gone up in recent years. One also gets Attorney’s fees, so if all you have to do is find a lawyer that has confidence that he can win!
James and his legal team should immediately turn this right around, point and laugh at Paul Helmke and resend the Brady’s solicitation out to gunnies as a fundraising tool to offset their legal costs.
am pretty sure that if Alan Gura was his counsel … all that Facebook stuff would have been removed before the complaint was filed.
Yes. Gura is very thorough in that respect.
Paul:
That’s only if you register the copyright. Maybe we should turn this whole thing over to Righthaven :)
The Bradys may actually have a point. Maybe this kid really can’t understand consequences..
I checked this kid out on facebook right after the suit was filed. The fact that I could even do that is an issue. Privacy settings could have prevented this. Good thing they’re not calling him a hate crime prone bigot yet, because when I first checked his facebook page out, he used the word “Faggot” a number of times.
To put it simply, someone should have done their homework and made him set it so his stuff was only visible to friends. Sure, the Brady bunch are being immature jerks, but they always have been and this would not have happened except for amateur hour by the NRA.
I agree that it was a grave oversight that he wasn’t told to lock down his Facebook ahead of time.
Copyrights no longer have to be registered to sue for infringement. However the automatic inclusion of attorny fees does require it. Without registration, you have to have a sympathic judge and/or Jury
Paul: “Actual damages” is the standard for copyright infringement, as far as I know.
Given that his picture was non-commercial, that’s another stake against both high damages and works *for* the “fair use” defense on the part of the Bradys.
(Fair use has, traditionally under the courts, four factors of analysis.
The “purpose and character” of the use of the work matter; using it for a non-profit or personal use leans towards a “fair use” claim. For profit or commercial use leans the other way.
“Fundraising for a non-profit” seems facially to be more the latter (since it’s still using the image to get money), but a court might think that since the end is non-profit it leans the other way.
I’m way too lazy (and don’t have a Nexis account) to look up case law or bug my IP lawyer friend, so this is just a guess.
Second factor, the nature of the work – and since it’s a snapshot photograph on Facebook, I’d go with “factual and published”, as opposed to fictional or unpublished – again leaning towards “fair use”.
The whole work is used, so the third factor is in favor of not-fair-use.
The market effect factor completely favors fair use, as the photograph was not being used commercially by its owner at all (and had dubious appeal in principle); no market, no market impact.
[This is why taking a photo from a stock photo company or a professional photographer gets you in big copyright trouble; the market effect there is enormous, since their entire livelihood is the value of their photographs.
This guy’s facebook snapshots? Not so much.
Remember that the legal point of copyright law is to encourage artistic creation, not as an adjunct privacy law.]
Looking at it like that, I could see a court going either way on a fair-use defense.
Combine that with the fact that actual damages will be pretty low, and you can see why he’s not bothering to sue. He’d be lucky to make back court fees, though it’s more likely that he could keep them from using the image ever again without permission.)
You can still sue, but the higher penalties don’t kick in, I think, unless you’ve registered it as a copyrighted work.
I think many of you are making a mistake here. You are upset that James is not as pure as the driven snow, and therefore might get attacked by the powers that be. Your mistake is believing that if you just “behave” properly, the media and our anti-gun opposition will like us. Worse, you imagine that they would treat us fairly. They will not. They will do anything in their power to deny us our rights, fair or foul.
Stop thinking that there is any reason that the Bradys could fairly demonize a guy for his Halloween costume. After all the scumbags and lowlifes that the Left has championed, where do they get off pissing and moaning that James likes Patton and Sherman? Am I to refuse to dress up as Captain Hook because I’m afraid that one day the Brady Campaign might label me a child abuser because I hate Peter Pan? If I dress up as Lucius Malfoy, will I get branded an “evil dark wizard with a gun?”
James is 18, and has nothing in his background that would make it illegal for him to possess a gun. The law infringes on the right of an adult to purchase a pistol and to carry that pistol. Whining that there are pictures on his facebook page that might be taken out of context is playing the Brady game of fear and smear. A better response is to sue for slander. If they are already $250,000 in the red, let’s put them down another $250,000.
Sebastian, next time you go to another “lost & stolen” hearing, take this along with you. That way when some idiot says that Brady will cover the costs of litigation, you can show them how broke Brady really is.
I think some of the opposition isn’t necessarily against James as a plaintiff, but just criticism that this potential issue wasn’t foreseen and addressed.
I don’t think the opposition to James as a plaintiff is warranted. The Bradys are going to do what the Bradys are going to do. It’s worth noting that so far, the media has largely ignored this smear campaign.
I do think the criticism that James and his attorneys should have foreseen he’d come under scrutiny, and taken appropriate action, is a valid criticism.
His Facebook postings sure do make him seem pretty immature. And they certainly don’t make me sympathetic to his cause – in fact quite the opposite. Instead of hiding his Facebook postings, maybe he could just grow up a little. 2-3 years should do it :)
Sean D Sorrentino Said,
December 1st, 2010 at 4:11 pm
I think many of you are making a mistake here. You are upset that James is not as pure as the driven snow, and therefore might get attacked by the powers that be. Your mistake is believing that if you just “behave†properly, the media and our anti-gun opposition will like us.
Your points are well-taken, but OTOH, you may be putting words in our mouths. In courts of law, those things should not matter. Yet in the court of public opinion, they do. Court opinions may ideally be made by a blind lady justice, but they are consumed by a quite biased public. This is where principle meets practicality, and there are probably few thoughtful people who would argue that the two shall never meet.
Let me use some extreme examples … let’s imagine a scenario in which it was public knowledge that Dick Heller or Otis McDonald had been best buddies with Timothy McVeigh, or were serious machine-gun enthusiasts, or owned hundreds of firearms and had a few thousand rounds of ammo in their basements. If that had been the case … the court decision might not have been any different, but the public would have viewed them in an entirely different light. Dismiss this “public face of gun rights” issue as politics, or political correctness, or whatever … but sometimes, discretion is the better part of valor.
To clarify, the point is that being friends with McVeigh or owning machine guns and a hundred thousand rounds are all perfectly legal. But there are many otherwise reasonable people who would consider those things extreme (not to mention the hay the antis would try to make with that information). Those fact would cast the case in a different light vis a vis public opinion.
This is why wise litigators bring clean plaintiffs. I suspect DCruz is a fine plaintiff, and honestly, I think the conclusion is a slam-dunk (of course adults 18 and up are subject to enumerated constitutional protections). But had I been counsel, I probably would have done a little house-cleaning with Mr. DCruz.
“Dismiss this “public face of gun rights†issue as politics, or political correctness, or whatever … but sometimes, discretion is the better part of valor.”
This is political trench warfare. You have two choices, get the crap kicked out of you with whatever lies and innuendo they choose, or push back. Instead of playing defense and wringing our hands that he’s not “perfect in every way” like some 2A Prince Charming, we should be naming and shaming. We should be shouting about their bad faith, disgusting behavior, and all around poor hygiene. Then we should be digging up dirt on them and making sure to air it publicly.
For far too long we have tried to play nice while we get slapped around. Maybe we should slap back a bit. Apparently the court of public opinion doesn’t mind dirty pool. If they did, they’d have objected to all the ways that the left has done it to us. I’m all for treating an honorable opponent honorably. Opponents who act in bad faith should suffer.
We’re going to war with the army we have. It’s not a bad army, assuming the rest of us don’t stand on the sidelines and complain that someone didn’t force him to pretend to be someone he isn’t.
I checked this kid out on facebook right after the suit was filed. The fact that I could even do that is an issue. Privacy settings could have prevented this. Good thing they’re not calling him a hate crime prone bigot yet, because when I first checked his facebook page out, he used the word “Faggot†a number of times.
Maybe we should hook him up with Willow Palin :)
I hear you, Sean, and again, your points are well take.
Yes, it’s analogous to warfare. But I might also submit that a winning strategy in warfare usually include simultaneously employing offense AND defensive maneuvers.
His Facebook postings sure do make him seem pretty immature. And they certainly don’t make me sympathetic to his cause – in fact quite the opposite. Instead of hiding his Facebook postings, maybe he could just grow up a little. 2-3 years should do it :)
Maybe so, but the question is what kind of immaturity. I think when I was 18, I probably didn’t have the maturity to know how to deal with suddenly becoming a high profile figure in a controversial public matter. But at 18, I knew well enough to know firearms were something to be treated with respect, and used in self-defense only as a last resort. I also don’t think I was any more or less impulsive.
There are definitely some 18-20 year olds that I think are too immature to carry firearms. But there are also some 28-30 year olds I think are too immature to carry firearms. I’m not sure that when it comes to a fundamental constitutional right, the state ought to be able to draw the line as high as 21.
I had unsupervised access to rifles when I was 8 years old, and unsupervised access to pistols when I was 12 years old.
Was I “mature?” No. Was I responsible? Yes. But it wasn’t so much my age, as the serious guidance I received from my parents.
At ages 8 and 12, I didn’t possess guns because it was my right to do so. I possessed guns because my parents allowed me to. At that age, they were legally responsible for my actions.
I guess for me, this isn’t an argument about whether 18 year olds are mature, or whether 21 year olds are mature, or whether 30 year olds who live with their mothers are mature. To me, this is a legal matter, and 18 is the point of adulthood. An 18 year old is responsible for her actions. At what age are we subject to being “tried as an adult?” Gun rights, like other enumerated rights, apply to 18 year olds.
Sebastian, I was speaking in jest. Well, half-jest anyway. If this kid is quoting stuff like that, I really would have some questions about whether he (as an individual) is mature enough to carry a gun.
@Sean:
“For far too long we have tried to play nice while we get slapped around. Maybe we should slap back a bit.”
It sounds like you think “slapping back” is posting really damaging quotes and comments on your Facebook profile. I get what you’re saying, but can you just admit that it would have been better for everyone if he just didn’t do that? It’s not striking back at anyone – it’s shooting himself in the foot. When he grows up some, maybe he’ll see that :)
To be clear, I’m not saying that 18 year olds shouldn’t have gun rights. I just question this 18 year old’s maturity based on the incredibly stupid things he posted on Facebook. Who doesn’t know that those postings could be used against him? An immature, naive 18 year old, perhaps.
I can just see it now, Mike … NICS checks being expanded to also running searches of applicant’s Facebook page. He he …
I know it’s fun to blame the Brady Center for this, but it is exactly trench politics, and it was totally predictable.
We, the gun rights “movement,” left the door open to this kind of attack.
Some here have suggested that we should slouch to the same level and fight back with frivolous lawsuits or dirty media attacks. I think we should just accept that we messed up, learn from the lesson and not let it happen again. Make his profile private (which it looks like he has done recently) and ignore their childish drama.
If the gun rights blogs weren’t talking about this, no one would even know about D’Cruz’s potential shortcomings because Brady has a very small audience. We are giving them a louder voice by getting so worked up about it.
How much do you think it costs them to process a donation?
For example, if I donated $0.01 to them, they’d presumably have costs for:
– Paying someone to open the mail
– Paying someone to endorse checks and get them to the bank
– Possibly some sort of fee charged by their check-cashing service?
– Mailing me stupid propaganda in the mail begging for more money
On the downside, it allows them to tack on +1 to their mailing list number.
I actually tried to donate $.01 on their website (I figured it costs more than that to process it). The minimum is $5. I wonder if they take spent brass.
As I told my son re his facebook page, “Remember that anything you post there will come up during a Senate confirmation hearing, a security screening for a high paying job, or a girl checking you out before a first date.”
His page remains fairly restrained.
Regarding his use of the term “faggot”, I am friends with my kids and a lot of their friends on Facebook. I don’t think there’s one that doesn’t at least occasionally use the word as a general term of friendly abuse. The girls are all “sluts” and “hos” even though it’s likely most are still virgins, and the boys are all “faggots” even when they are obviously obsessed with girls.
And there is also a lot of the “wassup my niggaz” stuff picked up from the hip hop culture, that seems to pass without comment despite it being a racially mixed crowd. (My son has been VEHEMENTLY warned about not participating in this.)
We are seeing a shift in the language. A lot of these words are apparently losing their sting. If not, there are going to be some interesting Senate confirmation hearings a few decades from now.