October 15th, 2015

The Media Hit Job on the Evil Aunt

Connecticut PostSo we all know about that super, duper evil aunt who sued her 8-year-old nephew when he jumped into her arms and she fell and broke her arm, right?

And it turned out she wasn’t really super, duper evil, or even a little bit evil, and took the kid Halloween costume shopping recently.

It was just a suit against the homeowner’s policy. So how and why did it go viral?

It’s because of the way that Daniel Tepfer of the Connecticut Post, who I think is the author of the initial piece, wrote the original, slanted article (or the way his editor re-wrote it to bait readers).

Sure, the part about the kid being 8 was mildly interesting, and led to the suit being lost, because kids will be kids. An OK local story I guess. Maybe they’d get a few hundred clicks.

The part about suing a relative is a complete non-issue, because, as I explained yesterday, relatives (and close friends) sue each other all the time since they are the ones most likely to be in the home, or in the crashing car, when the injuries take place. But it doesn’t mean they are going after personal assets.

No, the part that sizzled and engaged the Internet Outrage Machine!!!! were the ways the boy was described and the minimizing of the injuries.

We now know, for example, that the woman had two surgeries and may need another on her busted wrist despite it being four years later. So that sounds to me like a nasty fracture. But that is not what Tepfer & Co. presented. No, this was what he presented the woman’s injuries:

“I live in Manhattan in a third-floor walk-up so it has been very difficult,” she said. “And we all know how crowded it is in Manhattan.”

And then there is the damage the injury has done to Connell’s social life.

“I was at a party recently, and it was difficult to hold my hors d’oeuvre plate,” she said.

There was no mention of surgeries (which included internal hardware, according to the complaint), or the difficulties with activities of daily living that would come with a busted wing. Not the part about trying to dress one-handed, doing buttons, tying laces, showering, cooking, cleaning, typing or simply cutting a piece of food. Try it sometime, dear reader, try it. Go a whole morning one-handed.

But as presented by Tepfer, it was about walking up stairs and holding an hors d’oeuvre plate.

Ahh, the hors d’oeuvre plate! That was the thing that so many commenters seemed to pick up on. Not the pain and incapacity with injury and surgery, no sirree. Nope. Because it was left out of the article.

Tepfler then did the same thing in a follow-up piece after the defense verdict. This was his lede:

The case of the aunt who sued her young nephew over a reckless birthday hug, may have hinged on a plate of hors d’oeuvres.

Now when you think about it, having pain while just trying to hold a small plate of food four years later would be significant to anyone. But only in context, and that context was stripped away by Tepfer and the CT Post.

I can think of only three reasons why Tepfer  decided to write such a slanted article:

1.  He was more interested in mocking the aunt and writing clickbait than doing journalism;

2.  He was sloppy and lazy; or

3.  He ran out of room to write because the web, as everyone knows, sharply limits your ability to describe a broken wrist.

Take your pick.  But since he followed up with a second piece, that led with his diminishing the extent of the injuries, I think #1 is a pretty safe bet.

It trying to evaluate why Tepfer did this to her, you might also consider this little nugget that he wrote about the kid:

In court Friday, the boy, now 12 years old, appeared confused as he sat with his father..

Was the boy actually confused? Was he intrigued? Fascinated by the proceedings? Was there something about the boy, now 12, that led Tepfer to believe he was incapable of understanding that this was a mere claim against an insurance policy?  When my kids were 12, they were certainly able of understand these things. They wanted to go to court with me and see what it was like.

Maybe it just made better reading to have a confused boy and an aunt that sued him because she couldn’t hold a plate of  hors d’oeuvres? Actual truth — as in the fly-on-the-wall, gods-eye-view truth of what actually happened — seems to be missing. Truthiness is good enough, I suppose, for the Internet. As long as it gets clicks.

So congratulations to Tepfer and the CT Post. You got a shitload of eyeballs at your site for your clickbait. You can now charge more for ads.

And you only had to sacrifice your professionalism and dignity in order to do it.

(An email was sent to Tepfer this morning soliciting comment. He has not yet responded.)



December 29th, 2014

The WSJ Rips Me Off — Now What? (An Open Letter)

Turkewitz - Wall Street JournalTo the editor:

This past weekend in the Notable and Quotable area of your editorial section, you copied a long excerpt from a recent posting I made here.  It was about Google Cars eviscerating the personal injury bar due to my expectations of improved safety.

I was struck with several different reactions:

1.  It was nice of you to notice the piece. I’m both Notable and Quotable in the WSJ. I wish my family felt that way. Aww shucks, and all that.

2.  My, oh my, you certainly copied a big chunk of my piece, didn’t you?  A word count shows you took 44% of my post. That sure is a lot given our copyright laws, isn’t it?

3.  Didn’t you think it might be worthwhile in the online version to supply a link so that readers would understand that my posting was a celebration of the diminution of my business, and not a complaint?

4.  Most importantly, don’t folks rip off your content all the time? And don’t you complain? What kind of example are you setting for others?

It’s this last point that I want to dwell on — though I think your selective editing on #3 is pretty important —  because it seems that such wanton copying only encourages others to do the same. This is part of that whole moronic “content wants to be free” claptrap that is prattled by those who’ve never created anything.

Now you might think, hey, we can just take your words under the “fair use” doctrine! But 1st Amendment guru Marc Randazza seems to say otherwise, and he isn’t particularly kind to you in doing so. Randazza writes,

As someone who blogs, it bugs me when other people steal my work and re-post it on their own blogs. It bothers me even if they provide a link back. Why? Because fuck you. This is my work. If you want to quote part of it, you’re most welcome. You feel like you need to do a large block quote? Go ahead. You hate it and want to ridicule it? Go ahead. You think I’m awesome? You must be sick.

What I’m getting at is fair use is fine, but just ripping off my shit is douchetastic.

Yeah, he’s colorful. But that lede is also followed by him understanding the gist of the piece, as opposed to your selective edits to take it out of context:

The theme of Eric’s article is that self-driving cars may cut down on accidents, insurance rates, deaths, etc., and he actually states that he cheers the thought that he might be put out of business.

Interestingly enough, the Wall Street Journal cuts off its plagiarism right before Eric makes that point. Instead, the WSJ dishonestly makes it look like Eric is whining that he won’t have as much work.

Ok, being quoted out of context? That’s all part of speaking in public. Some douchebag will always do that.

Like me, Randazza — who was my counsel in Rakofsky v. Internet — understands that quoting out of context isn’t the real problem.  We both write in public and when we do so we put on our big-boy pants and deal with it.

No, the real problem is theft. You weren’t commenting on what I wrote, the way Jacob Gershman did in his WSJ Law Blog post.  You simply cut and pasted my work onto your editorial page without asking.

Randazza goes on to the far more important fair use (or lack thereof) argument, one that should be second nature to you and your lawyers at the WSJ:

But what really bothered me about this is how the WSJ simply stole Eric’s work, and couldn’t be bothered to actually do any of its own — except putting the plagiarized portion next to some ads. They put it in the print version too.

And that is not fair use. It is even more ironic and douchey when you know that Eric’s work is on the WSJ [website], but behind a paywall.

I know that the WSJ must have lawyers on staff. I can’t imagine why they never learned anything about fair use. Because this is not fair use.

If you want the details, and the law of how you screwed this up, because your lawyers may be on vacation this time of year, go read Randazza’s full piece. He’s even kind enough to cite case law for you.  I’ll give you a hint though — and this comes from a guy who defends this stuff all the time –he’s pretty clear you fouled up:

Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it.

So now what do you do?

WSJ-TurkewitzWSJ-TurkewitzWell, here’s my suggestion: You write me a nice note that says, “Oops! I can’t believe we just took so much of your property and reprinted it without asking! We really shouldn’t have done that.”

And you also say that you shouldn’t have made it look, on your index page, as if I submitted it to you in this fashion, as seen in the graphic to the left, since I played no part in its appearance there. And that if you were going to edit my piece to imply something different, then a link should have been provided so that your readers could see full context.

Then you say, “What can we do to make this up to you!?”

And I say, because I’m a nice guy and willing to give you the answer in advance in case you are worried about lawsuits, “You owe me a beer and we’ll call it even.”

Why would I let you off the hook so easily? Because I have bigger concerns than the 12 rupees you might owe me for swiping my stuff without permission, that concern being your implicit endorsement of such practices.

Because that endorsement hurts all writers, both you and me together. (I know, it’s gotta suck for some at the WSJ to be in agreement with a personal injury attorney.)

And you say to me, “Wow, we’ve never received such a nice lawyer letter before! And your suggestion that we admit an error sounds perfectly reasonable, because if we don’t admit it was an error, others that copy our stuff might possibly throw this little theft back at us one day as a defense, ‘Hey, if youse guys at da Journal can steal 44% of that idiot-lawyer-blogger’s content, why can’t we just take 44% from youse, huh?’ ”

You’ve probably never been offered such a good deal, that being the actual, real-world benefits of saying “oops.”

Now I know that you probably get pitched a bazillion times a day from kings and queens, presidents and prime ministers and all manner of CEOs and genuflecting flacks trying to use your paper as a forum for their brilliant thoughts and ideas. You might simply have thought I’d be grateful to have my words appear in your august periodical in its widely read editorial area, even if  you didn’t ask me and you selectively neutered out the main point.

But what you did was wrong from a much broader and fundamental point than a simple copyright violation of my little blog. You violated the ancient Golden Rule: If you steal from others then you can’t complain when others steal from you.

I await your oops letter. And my cold beer. It’s for your own good.

Your new bestest, BFF and beer drinking buddy,

/s/ E.T.

Updated P.S. – I should have also noted, when writing this story, that you are in good company. Both the Daily News and the New York Times have likewise ripped me off, with the details at those links.


January 15th, 2014

False and Misleading Headlines (Youth Baseball Edition) – Updated

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

Headlines make a difference, as headlines can skew the viewpoint of the reader before the facts are even read in the article. That is, if the article is even read. Many folks, of course, just skim.

And so it is with KCRA in Sacramento, CA.

The headline reads:

14-year-old Little Leaguer sued by coach for celebrating win

The problem? That isn’t really why anyone was sued. An actual reading of the article reveals that the defendant, a 14-year-old, threw off his helmet as he raced home with a winning run. But the helmet hit the coach and caused a torn Achilles tendon.

The kid, in other words, wasn’t sued because for celebrating, but for causing an injury to his coach.

As per the article’s actual text:

In legal papers filed in court, the teen’s former coach, Alan Beck, contends the boy “carelessly threw a helmet, striking Plaintiff’s Achilles tendon and tearing it.”

Whether the underlying facts support the suit or not, I have no way of knowing. All we have now is a legal pleading and a short news story.

Will it be tossed out on assumption of risk grounds? Perhaps. Throwing helmets isn’t exactly part of the game, but as you can see from the graphic above of Brett Lawrie throwing his helmet in 2013, it does happen on occasion.

But one thing is clear. The headline writer didn’t accurately tell you what the story was about.

Does this matter? You bet. Because headlines like this help to shape public opinion, and that public opinion affects how potential jurors will feel about cases before a trial even starts.

(hat tip, Conrad Saam)

Update (1/16/14):  CNN now has the story, with interviews with the parents of the kid being sued, bemoaning the suit, and the coach who brought the suit discussing his Achilles injury from a 6-foot tall, 180 pound kid, and the lack of apology. CNN harps on the amount sued for: $500,000. And that makes this a good time to remember that ad damnum clauses such as this are a very bad idea. They have, thankfully, been outlawed in New York.

The coach that sued says “it’s not about the money,” but the fact that there is a number in the complaint for the media to focus on takes that issue out of his hands.

While I don’t know if this suit will survive due to assumption of risk issues — and if California law is the same as New York law I think it will get tossed — it’s clear that the CNN focus is on money instead of safety. I wrote about that recently when Red Bull was sued for $85M — where I noted that it was a very poor move to put a number in the complaint, not only because it isn’t allowed but because it shifted the focus away from product safety.



December 6th, 2012

The Subway Pusher and Media Hypocrisy

Photo by Janis Krums, used without permission under doctrine of Fair Use.

In January 2009 when Chesley “Sully” Sullenberger splash landed a plane in the Hudson, the first picture to emerge was placed on Twitter. The photo was shot by Janis Krums, who was on a ferry that was first to reach the downed plane. At the time it was taken, neither he, nor anyone else, knew what kind of tragedy might await the passengers. Passengers stood on the wing with the icy waters beneath them.

Krums tweeted at the time:

“There’s a plane in the Hudson. I’m on the ferry going to pick up the people. Crazy.”

The WSJ wrote of the photographer, “Notch another win for citizen journalism,” and the Daily News called his 15 seconds of fame “well-deserved.”

Fast forward to this past week and another photo taken amidst a potential tragedy. Ki Suk Han was pushed onto the subway tracks as a train approached.  R. Umar Abbasi snapped a picture of Han before he was hit by the train and killed, which the NY Post put on the front page. Because that is what the Post does.

In contrast to the Twittering Krums, Abbasi said that that he ran as fast as he could toward him, snapping photos with his arm extended,  partly to signal with his flash to the driver and partly because he thought whatever photos he could manage might help police later on. He didn’t bother with the viewfinder.

Two pictures taken at two different events that could have turned tragic at the time the photo was taken. You would think that the photographers would be treated the same, right?

Actually, no, they shouldn’t be treated the same. Krums not only took the picture, but then went to Twitter and knocked out a tweet while a tragedy was potentially unfolding in front of him. At the time, I wrote:

Why, on godsgreenearth anyone would think this is a “well-deserved” “win” of any kind and relevant to any serious issue of news reporting is beyond me. Why would it matter that someone twittered about a loaded airplane going down in full view of thousands of people on the edge of the biggest city in the country — other than to the guy who took the picture and spent his time twittering it to friends? Did Twittering save lives? Of course not. Rescue was already in progress.

While Krums was being lauded as a celebrity, I wanted to know why the hell he was spending time on his iPhone instead of asking the crew what he could do to help, getting life vests ready to toss overboard, looking for survivors in the frigid waters, and looking around to see where, if at all, there might be lifeboats that he might need to assist with. Obsessiveness to technology can also mean the difference between life and death.

But it was Abbasi, not Krums, who was vilified.

Al Roker said on The Today Show:

“I’m sorry, somebody’s on the tracks, that’s not going to help,” he said during the segment. “Try to get them off the tracks,” he added, a hint of disgust in his voice.

From James King in the Village Voice:

The Post just happened to have a photographer at the same subway stop at the exact moment when the man — identified as 58-year-old Ki Suk Han, a Queens father and husband — was pushed to his death.

The photog, Umar Abbasi, opted to help Suk Han escape a certain death in a rather unconventional way: by snapping photos as the train was barreling down on him.

And John Cook From Gawker (re-pub in Slate)

“amazing Post photog R Umar Abbasi took a focused composed pic of man abt to die on subway even tho he says he was just using flash to warn.”

Those are a few I found in 10 minutes of looking; there are more.

But the question that the media, and media critics, need to ask is this: Why are these two photographers treated differently in the public eye? Why was Krums given a free pass when so many jumped to conclusions about Abbati?

There is something very wrong with this picture.




October 26th, 2011

Daily News Rips Me Off (Again) – Updated

This story has a sense of deja vu for me. It was two days ago that I wrote up the settlement of a lawsuit where the State of New York agreed to pay $1.2M for a prison death. Then today, 48 hours later, the Daily News runs the same story and calls it an “Exclusive.” Some Exclusive.

The rip-off writer is Daily News staffer Rich Schapiro (rschapiro@nydailynews.com).

I knew I’d seen this act before, so I went into my archives and, sure enough, it was the Daily News that also ripped me off in June 2010, when I published some documents related to the September 11 litigation. I was a little concerned back then that I would sound petty in my complaint, until I found out it was a recurring problem in the media. (See: How the Mainstream Media Stole Our News Story Without Credit, by Danny Sullivan)

If this happened twice to me in 16 months, for this modest little blog, then the question to ask is: How often is the Daily News ripping off stories from others? Is it just me? Unlikely.

So, while it may sound petty to complain, I think it is the type of conduct that needs to be documented and the writers and media groups held accountable.


Update 10/27 – I received a call from Mr. Schapiro who, as you might guess, wasn’t happy about being called  a “rip-off writer.” He claims that he didn’t put the word “Exclusive” on the headline. Two things worth noting: First, when he did an interview for the story, he’d been told that a lawyer had blogged about it. (He said he hadn’t read it.) Second, while Brandon Jackson is a common name, if you do a Google search confined to the past week my story pops up on the first page. So it was easy to find. Was rip-off too strong an opinion? Hard to say. But there was, at a bare minimum, sloppiness.

He also wanted to give me tips on how to be a better newsman and have a better blog. I withheld comment on that. He also said I should have called him before publishing. (He’s probably right on that part.)

Last thing: I should have also given a link to the piece about the New York Times taking my story on Sonia Sotomayor two years ago, as it also deals with the mainstream media taking items they find on blogs and treating them as their own. The story provoked comment from the White House regarding the ethical issues that I had raised. Here it is:   NYT: “Sotomayor & Associates” Becomes an Issue For Nominee and White House