Attorneys for Indy Say Wendy McCaw's Claims Without Merit
"Nope. You must be mistaken. If you actually read the pertinent laws, we did nothing wrong."
That's the layman's translation for the 10 pages of paperwork filed on Monday afternoon, December 11, by the attorneys for The Independent in response to the copyright infringement complaint lodged by the News-Press' parent company Ampersand Publishing, the business front for Wendy McCaw and her litigation-loving crew.
McCaw is claiming that the News-Press should be awarded damages because The Indy engaged in "copyright infringement, misappropriation of trade secrets, unfair business competition, and intentional and negligent interference with prospective economic advantage and contract." Her attempt is to show that because Independent.com published a link to a Scott Hadly story that the N-P had killed, we violated a copyright law. As well, McCaw's hired attack dogs are claiming that Indy editor Nick Welsh also had another document, to which all Welsh and the rest of us can say is, "Uhh, never had it." (And by the way, how do you disprove something that never happened anyway?)
McCaw filed her suit in late October via the law firm of Alschuler Grossman Stein & Kahan, a Santa Monica outfit with a national reputation for "vigorous and creative advocacy in complex business litigation." (The "creative" and "complex" parts seem to be quite true, in that this case caused many attorneys to scratch their heads in amazement.) Her two attorneys of record are Stanton L. Stein and Ann Loeb. Their creative, complex claim is that by publishing something that the powers-that-be wanted hidden — yea, you know, as in "being a newspaper" — The Independent somehow cost the N-P money, readers, or both. We're of the impression, like the overwhelming majority of this community and the world at large, that McCaw's decision to eliminate the wall between opinion and news while simultaneously altering reporting practices to protect her rich friends are the tactics that cost the N-P readers and money. (Though with such a reduced staff producing embarrasingly thin issues every day, maybe McCaw is somehow making more money, which would invalidate her claims entirely. Hey, maybe she even owes us money?!?!?)
McCaw's claims are untrue and without merit, say the lawyers for The Independent. Specifically, our attorneys said "Defendant denies for lack of sufficient knowledge or information" more than 30 times. In the affirmative defense, the attorneys say that the claims of McCaw are preempted by the Copyright Act of 1976, that The Indy's publishing of Hadly's story was protected under the "fair use doctrine," and cite eight other legal defenses known as "innocent intent," "unclean hands," and more.
It's pretty boring and not very insightful reading — and certainly the expected response of The Indy — but what's somewhat exciting are the legal players involved. While McCaw's Ampersand Publishing hired the "creative" firm mentioned above — and the two attorneys of record are certainly heavy hitters — The Indy didn't do what might be expected from a "freebie" weekly and bow down to McCaw's fancy litigators.
Instead, we hired our very own high-powered law firm of Leopold, Petrich & Smith, the same folks who are representing 20th Century Fox in the suits against the movie Borat. (One of the partners also used to be the mayor of Beverly Hills!) Check out some of their other cases and clients.
Specifically, The Indy is getting the services of Louis P. Petrich, who actually wrote a chapter in a 2004 publication all about copyright cases. Petrich, a partner in the firm, has also represented DreamWorks, MGM, Paramount Pictures, Universal Studios, and Sony in the past. Now he gets the pleasure of adding The Santa Barbara Independent to that prestigious list.
The point is that while we've always been a little more fun-loving, free-thinking, and off-the-wall over here at The Indy, when it comes time to get serious, we do so, and do so well. We're not entirely sure what McCaw thought we'd do when confronted with yet another in a string of bogus lawsuits that attempt to put a chill on free speech in our community, but we always stand up and fight. That's why we've been here 20 years (about 15 or so more than McCaw, for those keeping score) and don't plan on leaving anytime soon.
We have never bowed to intimidation, and hope that by fighting McCaw, we are leading by example and showing that this little freebie weekly, like the rest of Santa Barbara, simply aren't going to roll over because she's got a little extra spending cash to bully the town around.
ANOTHER ONE BITES DUST? In related news, Craig Smith is reporting this morning that N-P CFO Randy Alcorn may have been fired. One of the last clear-headed members of the newspaper's top brass, if Alcorn is indeed out the door, then we can only expect more oddity to spill into De la Guerra Plaza anyday now.
Meanwhile, Smith has also obtained and published a link to a memo that Wendy McCaw put out last week to her own employees, threatening that if they were unloyal, she would fire them. It's good reading, and a fresh insight into the sadness and intimidation that's become an everyday affair for the N-P newsroom.
Can't wait till Thursday's party!