O Come, All Ye Drama Llamas

O Come, All Ye Drama Llamas

by Kerry Scott on 10 July 2013

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This post is a bad idea, and will totally run contrary to my drama-avoidance vows. I know this, because I already wrote it once a day or two ago, then deleted it. But this morning, I tackled my backlogged blog reader, and I came across this post by DearMYRTLE. Now I’m all fired up again. So standby while I give some side-eye here.

First, some background info: Last winter-ish, there were all sort of Facebook posts that alluded to the allegation that someone had stolen a big chunk of content from Cyndi’s List. Now, Cyndi herself didn’t say publicly who had stolen this content from her, which makes sense, because the first thing any attorney will tell you is that you need to shut up. If you’re planning to sue someone, you can’t say anything. I don’t blame her a bit. But, oddly enough, nobody ELSE wanted to say the name of the alleged content thief either. You could ask around via email and find out easily, and there were clues and rants on Facebook and elsewhere that made it obvious…but if you weren’t in those places, or were busy with other things, it’s possible you could have missed it.

Then the lawsuit was officially filed and became public, and there were blog posts all over saying that Cyndi Howells of Cyndi’s List was suing Barry Ewell of MyGenShare over these copyright issues. This was pretty widely reported in the genealogical world, so most people who are active enough to have a bunch of content online are active enough that they likely would have seen it.

Last week the news came out that Cyndi’s List and MyGenShare had settled the case out of court. They can’t discuss the terms or the case (and that’s always how this works, so no knock on either of them for remaining mum).

That’s when things got weird.

All of a sudden, I’m reading all over Facebook and blogs about how other people also had content allegedly stolen and put on MyGenShare. All over the place, people are saying that this is a pattern of behavior, not just a one-time thing that allegedly occurred involving Cyndi’s List. I cannot figure out why this news is suddenly coming out now, when we’ve been talking about this for months. Is the issue that a whole bunch of new content theft allegedly occurred right after the news that the original case was settled came out? That’s possible, I guess, but it seems like a remarkably productive holiday week for Barry (allegedly). Is it that people somehow missed the big hue and cry when the news first broke, and the second hue and cry when the lawsuit was filed? I guess that’s possible too…but it seems odd.

Here’s what I suspect is really going on, though: People were waiting to see whether the Cyndi’s List/MyGenShare litigation would solve the (alleged) problem and remove MyGenShare and Barry Ewell from genealogy-land. It didn’t (it rarely does), and I think that’s why people are suddenly saying, “Hey, me too.” If that’s what happening, it really sucks. Here’s why:

  • It’s not fair to Cyndi Howells. Suing someone is an awful experience. You have to put out a wad of cash. You spend tons of time in lawyer’s offices, which significantly cuts into your income-earning time. You have to watch people talk about and speculate about your case all over the place, and you can’t say a word. You’re basically fighting the (allegedly) good fight alone. It’s not cool to expect one person to shoulder that burden and solve the problem for everyone else. Note: Cyndi’s List has been going through a huge server upgrade while all of this was going on. Server upgrades are expensive, and so are lawsuits where you take on one person on behalf of (allegedly) a whole bunch of other people. You can donate to Cyndi’s List here
  • It doesn’t provide a complete picture. Back in my HR days, I routinely had to investigate claims of harassment and other types of wrongdoing. Sometimes one person would accuse, the accused would deny the wrongdoing, and I’d have to decide who was telling the truth based only on the word of the two people involved. Then, after I’d done that, I’d find out that oh, by the way, that guy has done the same thing to 17 other women, and none of them wanted to say because they figured #18 would get him fired. If I’d known about the other 17, he would have been fired…but I didn’t. I don’t know whether every one of the people blogging, Facebook posting, and emailing DearMYRTLE also provided that same information to Cyndi Howells, so that she could ensure that the judge, the attorneys, and everyone else involved could factor in the fact that (allegedly) this has been going on all over the place. I hope so, because in my experience, it probably would have affected the outcome.
  • It’s not fair to the onlookers. Genealogy-land is a relatively small community. Everyone’s mostly interconnected, and that’s made for some uncomfortableness over the past few months. I’ve seen some of Barry Ewell’s well-meaning friends defending him over the course of this whole thing (as loyal friends do). Now that far more information is coming to light, they’re in an awkward spot, because they were operating on the very limited information that was out there at the time. In addition, some of the people whose content was (allegedly) stolen might have discovered this sooner if everyone had said straight out who and what they were talking about. All this hush-hushery we seem to insist on in this community doesn’t do anyone any good. We vaguebook, we refer to “that individual” or “this person” instead of saying who we mean…it’s ridiculous. If we aren’t comfortable saying who and what we’re talking about, we shouldn’t be talking. Period.
  • It doesn’t solve the problem. Here’s the thing about lawsuits: The accused is always going to deny wrongdoing. He’s never going to say, “I’m sorry. I shouldn’t have done that. Let me fix it.” I’ve long said that that’s what I thought Barry should have done, but in fairness to him, once you’ve hired a lawyer, that’s not an option. They don’t let you do that. That’s why your car insurance company sends you instructions that tell you not to apologize when you hit someone; because admitting to and apologizing for what you did wrong screws up the subsequent lawsuits. I’ve said for some time now that I think sunlight is way better than lawyers when your stuff is stolen, and I continue to believe that. It’s much faster, much cheaper, and it allows everyone to form an intelligent opinion right from the beginning. This post by Michael Hait is a perfect example of what I think is the best way to handle these sorts of issues. If everyone who (allegedly) had content stolen had done this when this issue first came to light last winter, I believe it could have been resolved much sooner. Emailing DearMYRTLE, on the other hand, does absolutely nothing (unless you’re hoping she posts about it for you, which seems really unfair to her). It’s this culture of hush-hushery that allows these things to fester. It’s worth noting that Barry Ewell’s Facebook and Twitter accounts disappeared within a day or so of Michael Hait’s post; that didn’t happen when the lawsuit was filed, when it was settled, or when folks emailed DearMYRTLE. That’s the power of sunlight.

DISCLAIMERS: I don’t know Cyndi Howells or Barry Ewell at all. I do know some of the other alleged victims, but only via Facebook. I have no idea who emailed DearMYRTLE, but I’m sure those people are super delighted with me right now. Don’t bother to email me, because that horse has left the barn. Also, I’m allergic to horses, and I’m working on emails from May, so I don’t really need more. I’m not a lawyer, nothing here is legal advice, and if you take legal advice from random blogs, you’re an idiot. If you want to sue me, please make sure you spell my name right.

Photo by Astolath

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{ 11 comments… read them below or add one }

Debbie Mascot July 10, 2013 at 3:57 pm

Exactly.

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Carol July 10, 2013 at 5:26 pm

I absolutely agree with every point you’ve made. I also agree with Michael Hait that when this type of (alleged) thievery happens, the (alleged) perp should be reported to any and all professional organizations he (or she) (allegedly) belongs to. It doesn’t involve lawyers, and the news would probably travel much faster without attorneys in the middle.

Thank you for your post.

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Clare Turncliff Gunning July 12, 2013 at 6:12 pm

I love your blog for it’s straight talk. You always get to the point no crap. I so agree that all this walzing around the facts allowed this guy to get away with so much more.

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Jade July 14, 2013 at 2:13 pm

Kerry, your post is spot-on on all counts. This includes “If you’re planning to sue someone, you can’t say anything.” So only if the victims of this thief had decided *not* to sue could they pull back the curtain. It is surely a dilemma I hope not to face personally. This particular perp is, unfortunately, only one of many.

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Sam July 15, 2013 at 12:46 pm

I really don’t blame anyone for not naming names. Without a court finding of copyright infringement, bandying about of names can be defamation or libel. Even Michael Hait’s “evidence” is inconclusive, as we have no way of knowing how or when either Michael or Barry put together their creations. It’s a lot more legally complicated than it appears on the surface, and anyone who wants to simply name names is stepping into a legal minefield.

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Kerry Scott July 15, 2013 at 4:53 pm

I agree that you if you want to be absolutely certain to avoid legal issues, you shouldn’t name names. But I don’t believe (and it hasn’t been my experience) that talking about the person at length without actually saying his name offers any protection in that regard. If you’re doing a lengthy blog post or Facebook rant that refers to “this person” that says someone stole from you, it doesn’t matter whether you actually say his name, or just make it abundantly clear who you’re talking about to half your audience. You’re still going to be in the same position. You’re not going to successfully convince anyone that you were actually talking about Santa Claus or something. So either say what you mean, or don’t say anything.

It’s also worth noting that I never saw any blog post, Facebook post, or any other form of communication from Cyndi Howells, public or private, that named Barry Ewell. Clearly that didn’t stop him from countersuing.

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Sam July 15, 2013 at 5:43 pm

Defamation was only one of the bases of Ewell’s countersuit. Some bloggers (not you) should pay attention to one of the other bases of Barry Ewell’s counterclaim:
http://en.wikipedia.org/wiki/Tortious_interference
“This tort may occur when a first party’s conduct intentionally causes a second party not to enter into a business relationship with a third party that otherwise would probably have occurred.”
Sounds to me like anyone who actively and publicly discourages others from using a product or service (e.g., a paid website) could be guilty of this and be held liable for damages.

We live in a litigious society.

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Kerry Scott July 15, 2013 at 7:46 pm

We do. I always find it a little head-scratchy when people want to spend money on lawyers instead of just saying, “Dude, knock that off, you’re way off base and here’s why” and/or saying, “Hey, maybe I should be cleaning up my own act here, so that people don’t feel so compelled to talk smack about me.” But if people think giving money to lawyers is a good idea, it’s a free country.

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Kerry Scott July 15, 2013 at 7:54 pm

I should add: I hear what you’re saying, Sam. I’ve seen some actions on this that were…not sensible. It’s weird how people went from silent to riot-y in a matter of days. I suspect that I missed some sort of catalyst, but I don’t know what it was.

I hope this whole thing resolves itself without the need for more legal drama.

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Dennis Lohr September 9, 2013 at 8:36 pm

I believe the “catalyst” is when the dismissal became widely known.

There was this belief that given the vast amounts of time and money amassed by Cyndi, as well as her excellent reputation in the gen community, that the court would not only shut down MyGenShare but likely draw & quarter Barry as part of 2-hr special episode of “Who Do You Think You Are?” It was a White Hat versus Black Hat fight for Cyndi’s supporters. So when both parties mutually agreed to whatever-it-is-they-did-or-did-not-agree-to and walked away, it was seen as a loss for Cyndi and…a win for Barry.

I honestly don’t have a dog in this fight. If this were prom, I’d cast my vote for Cyndi because I know more about her than Barry, and gosh darn it, she’s pretty darn nice and really hard working. What’s not to like and respect about nice and hard working? She also had to be one of the very first websites I bookmarked back in the early days. I even remember when the web really took off and she quit because she was overwhelmed and simply couldn’t keep up.

But I’m also reminded of when I visited Marquette Law School. Dean Eisenberg began by discussing the difference between what is “legal” and what is “moral”, and how they’re never equivalent. Legal is the lower hurdle to cross, but we must always strive to achieve that which is moral. Personally, it seems like Cyndi was morally in the right but, right or wrong, Barry had enough legal merit to force a draw.

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Kerry Scott September 12, 2013 at 2:43 pm

In my experience, you don’t necessarily need enough legal merit to force a draw. People settle for a variety of reasons They get tired of fighting, they find out this process is time-consuming, they run out of money, they want to move past it…all sorts of things. I’ve settled many cases where I strongly felt that we could have (and should have) won if we’d continued to fight…but that’s expensive, and sometimes the math just doesn’t work.

That said, it does seem like it was seen as a loss for Cyndi and a win for Barry, and I think you’re right in thinking that was the catalyst for all of the hoopla (and for some frustration on the part of others who were allegedly victims, who probably thought this problem was going to be solved by the courts). Whatever happened, I hope it stops happening. Fights in any community are uncomfortable, but they’re especially unpleasant in a group this small.

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