June 3, 1998
Re: Defamation and Libel by George H. Smith
Dear Wendy:
You have asked for our analysis regarding the recent dispute between you and Mr. George H. Smith. The following sets forth our analysis of your rights and remedies in this regard, based on information you have supplied to us.
Earlier this year, your book, The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998) ("TRW"), was published. Part of TRW was based on ideas you had developed in a previous collaboration with Mr. Smith, which collaboration itself had resulted in a 1989 unpublished manuscript, "Fundamentals of Reasoning" ("FOR"), co-authored by you and Mr. Smith.
On May 17, 1998, you received an email message from Mr. Smith (via the email account of Ms. Laura Kroutil, <vamp97@sj.bigger.net>). You received a second email message from Mr. Smith on May 18, 1998, and a third on May 19, 1998 (copies of these three email messages are attached). In these email messages, Mr. Smith accused you of "plagiarism," on the asserted grounds that portions of TRW were copied from "his" FOR manuscript.
In Mr. Smith's May 17, 1998 email message, he accused you "of extensive and deliberate plagiarism." He also falsely stated that you were not a co-author of FOR, and were instead a mere typist or transcriber. His charges of plagiarism were based on this false claim. In addition, Mr. Smith explicitly threatened to take various actions, including transmitting similar accusations of plagiarism to your publisher, Prometheus Books ("Prometheus"), and instituting a lawsuit against you and/or Prometheus, unless you sent Mr. Smith a certified check for US$10,000 no later than May 26, 1998.
Beginning on May 19, 1998, and continuing virtually until the present, Mr. Smith transmitted, or caused to be transmitted, email messages containing similar allegations and accusations to a large number of third parties. For example, on May 19, 1998, Mr. Smith faxed and emailed to various third parties, including Prometheus, a message entitled "On the Plagiarism of Wendy McElroy," in which he again accused you of plagiarism (copies of exemplary email messages attached hereto). All of Mr. Smith's transmitted or posted email messages regarding this matter, of which you are aware, have been transmitted by Mr. Smith, directly or indirectly, from the same email account <vamp97@sj.bigger.net>.
Some of these email messages were posted by Mr. Smith, or caused to be posted by him with his permission, to various listservs and newsgroups, such as the randian-feminism list and the newsgroups alt.politics.libertarian and talk.politics.libertarian. For example, Ms. Sharon Presley, of Resources for Independent Thinking, posted on the randian-feminism list email messages transmitted to her by Mr. Smith; and Tim Starr posted on his anarchism listserv email messages transmitted to him by Mr. Smith. Therefore, it is clear that Mr. Smith published and disseminated his accusations of plagiarism and other statements to a large number of third parties.
Mr. Smith's actions and allegations in this regard are completely outrageous, inexcusable, and wholly groundless, for the following reasons. You and Mr. Smith worked and lived together for an approximately ten-year period, from 1975 to 1985. During this period, you and Mr. Smith were intellectual partners in developing materials on "reasoning," the subject of which were presented in several eight-week courses, entitled "Fundamentals of Reasoning." The courses were given in Los Angeles from approximately 1975 to 1987, and you participated with Mr. Smith in developing the courses and related course materials from 1975 to 1984.
You two then converted materials and ideas developed jointly by both of you related to the courses, into a co-authored manuscript on "reasoning," to-wit, the FOR manuscript. FOR is therefore a joint work which you and Mr. Smith co-authored. This is evidenced by the "Contract on Reasoning Book/Untitled" executed by both you and Mr. Smith on November 29, 1989 (the "1989 Contract"; attached hereto; also available at <http://www.zetetics.com/reason/contract.gif>). This contract, executed four years after your separation, explicitly provides that you and Mr. Smith had "co-authored a book on reasoning." Despite Mr. Smith's false assertions to the contrary, therefore, you were a full co-author of FOR, and not a mere typist or transcriber of notes or tapes.
As you explicitly acknowledged in TRW's text, TRW was based, in part, on ideas developed by you in collaboration with Mr. Smith, which ideas were also the subject of FOR. (For example, in the "Acknowledgments" section on page 9 of TRW, you explicitly state: "The philosopher George Smith created the intellectual therapy groups discussed in TRW and, over the ten years of our close association, we discussed many of the ideas expanded upon within." And on page 142 of TRW, you state: "The next two chapters are devoted to examining a unique intellectual therapy group created by the philosopher George Smith, in which I was fortunate enough to participate.") Thus, selected portions of TRW of course may bear a similarity to some ideas expressed in FOR (it is difficult to verify this since Mr. Smith has refused to produce the original FOR manuscript, which you have not had in your possession since 1991). Indeed, because of the copyright doctrine of merger of ideas and expression, it is only natural that the expression of ideas in TRW similar to those in FOR would find similar expression (as you noted, how many ways are there to say "Put it in Writing" (TRW, p. 93)?).
However, despite this historical connection between the origin of some of the ideas expresed in TRW and in FOR, you did not copy any portion of FOR in the preparation of TRW and, indeed, had disposed of all of your copies of FOR, in 1991, three years before beginning writing TRW in 1994 (even though you would have had a right to directly copy portions of FOR in preparing TRW, as discussed below, had you wanted to). As you know, there are various perfectly legitimate reasons why there may be similarity in wording between the two works, given your co-authorship of FOR and your intimate familiarity with the course material, having participated in the course five times to help improve and develop the course material, and having drawn in TRW from some of the same primary sources as used in preparing material for FOR and for the associated courses (e.g. Thinking As A Science, by Henry Hazlitt) (this is explained in further detail by you at <http://www.zetetics.com/reason/similar.htm>; and <http://www.zetetics.com/reason/libel.htm>).
In sum, you authored a new work, TRW, based in limited part on previous ideas co-developed by you and Mr. Smith and which were also the subject of your very own co-authored work, FOR. You clearly did not plagiarize Mr. Smith's work--i.e., you did not publish "his" writings as if they were your own. Therefore, Mr. Smith's accusations of plagiarism are completely groundless and libelous.
Moreover, even if you had copied portions of FOR in writing TRW, Mr. Smith's claims would be equally groundless and libelous. As noted, the 1989 Contract provides solid proof that you were a co-author of FOR. You were and are thus also a co-owner of the copyright thereto, and are therefore entitled to use this material in any way you see fit, without Mr. Smith's permission or approval. Similarly, Mr. Smith has used these co-authored materials, without your permission (or objection). For example, some of these materials were apparently used by Mr. Smith in his book Atheism, Ayn Rand, and Other Heresies (Prometheus, 1991), and apparently continue to be used in courses conducted by him and held under the auspices of Resources for Independent Thinking in Oakland, California.
Furthermore, if the co-authored, joint work FOR drew on or incorporated some previous work solely authored by Mr. Smith (such as his 1974 handout), then, since the entire, joint manuscript FOR was co-authored and co-owned by you and Mr. Smith, it would be irrelevant if portions of TRW express ideas similar to those found in Mr. Smith's previous work, since you and Mr. Smith were co-authors and joint co-owners of everything in FOR, including particular portions drawing on either of your previous works. Thus, even if Mr. Smith could somehow show that you copied portions of FOR verbatim in TRW which portions were contributed by Mr. Smith based on his previous work, his claims would still be groundless, since you and he were co-authors of the entire FOR manuscript.
Similarly, if some of Mr. Smith's subsequent works express ideas similar to those in FOR because he drew on FOR in creating the subsequent work, it would be irrelevant that these subsequent works also express ideas similar to those expressed in portions of TRW. All this would mean is that both you and Mr. Smith each drew on your previous, co-authored work FOR in authoring new works. Thus, Mr. Smith's comparison of TRW to either his pre-FOR or post-FOR writings is irrelevant. The only relevant comparison would be between TRW and an independent work of Mr. Smith's that did not itself have any similarity to FOR. Of course, Mr. Smith can make no such comparison, because you did not even copy from FOR, much less from solely-authored works of Mr. Smith. It is also unclear how he would prove that his independent work did not draw from FOR, since the authenticity of any purported "FOR" manuscript produced by Mr. Smith will be in doubt, as discussed below.
Therefore, even assuming arguendo that you had directly incorporated portions of FOR into TRW (which you did not), you were entitled to do this; you were entitled to create a new, derivative work, using your own co-authored work FOR.
Mr. Smith's voluminous "parallel passages" between TRW and FOR or works of Mr. Smith are thus completely irrelevant, for several reasons. First, even if Mr. Smith is able to provide a manuscript entitled "Fundamentals of Reasoning," there will be no way to know that this is the original 1989 FOR manuscript co-authored by you and Mr. Smith, since Mr. Smith apparently claims only to have a disk copy of FOR which can easily be altered and thus difficult to verify. Thus, even if Mr. Smith is able to provide a manuscript identical to portions of TRW, it is possible for this to have been reverse-engineered or, at the very least, to have been altered since 1989.
Second, even if he is able to provide the original 1989 FOR manuscript and to prove its authenticity, parallel passages are irrelevant since you did not copy from FOR; rather, such similar passages are due to the copyright doctrine of merger of idea and expression and your mutual collaboration on developing ideas which were the subject of the FOR-related courses. Third, even if you had directly copied passages from FOR and used them in portions of TRW, you were both morally and legally entitled to do this, as the co-author and joint copyright owner of FOR. There can simply be no doubt that, under applicable principles of copyright law, as you were a co-author of FOR, you are therefore the sole author of any new, derivative work authored by you incorporating portions of your own previously co-authored work. Any claims that your are not the sole author of TRW or that you were not a co-author of FOR are, for these reasons, completely false and inaccurate. (Finally, for context, I note that the extent even of the copying alleged by Mr. Smith (passages from 17 pages of a 305-page book) is relatively trivial and does not support his hyperpolic accusations and claims that he is a co-author or author of half or more of TRW. Mr. Smith's very own accusations are thus self-contradictory.)
You are a respected and prolific full-time author and independent scholar. (Mr. Smith has even acknowledged that you have "done excellent work in the past.") Your works include the aforementioned TRW, as well as: XXX: A Woman's Right to Pornography (St. Martin's Press, 1995); Sexual Correctness (McFarland, 1996); 19th Century Individualist Feminists: The Forgotten Roots of American Feminism (McFarland, forthcoming); and Freedom, Feminism and the State (editor) (1st ed., Cato, 1983; 2nd ed., Holmes & Meier, 1991; 3rd ed., Independent Institute, forthcoming). Your have also written on women's and other issues for National Review, Free Inquiry, Penthouse, Liberty, Reason, and other fora, and you were a 1997 nominee for the Mencken Award. (Information on these and other writings appears at your web site at <http://www.zetetics. com/mac>.) You have also worked as a scholar for a number of think tanks, including the Cato Institute. Through your dozens of articles and books published over more than sixteen years, you have developed a valuable and well-deserved reputation as a serious, provocative, and thoughtful writer. Like other writers and scholars, therefore, your career and livelihood rest on your most precious assets: your scholarly and writing abilities and your reputation for integrity and honesty.
In view of the foregoing, it is clear that Mr. Smith's statements in email messages published to third parties in which he falsely accused you of plagiarism are injurious to your reputation, and are thus defamatory. In particular, since these statements were in written form, they are libelous; and any oral statements by Mr. Smith to third parties accusing you of plagiarism are slanderous.
Moreover, in addition to Mr. Smith's libelous accusations of plagiarism, his various email messages published to third parties contain further libelous accusations. For example, he accused you of "stealing seven years of [Smith's] professional labor"; and of intentionally deceiving Prometheus and violating a contract with Prometheus. He also denied your co-authorship of FOR, instead falsely relegating you to the status of a mere typist; and thereby impugned your honesty, integrity, and professional abilities.
In addition, because his statements directly impugn your honesty and integrity, and detrimentally affect your professional reputation, they are libelous per se. In a lawsuit for libel per se, no actual damages need be proven by the plaintiff; instead, damages are presumed.
Further, because Mr. Smith has taken these libelous actions with malice (as a review of his email messages transmitted May 17, 1998 et seq. clearly indicate), punitive damages may be available over and above any actual or presumed damages. Given the foregoing context and the fact that his email messages drip with vitriol, insult, sarcasm, profanity, and cruelty, the malicious nature of his email messages, and his intention to inflict emotional distress, are apparent to any reader.
Mr. Smith's deliberate and malicious acts of libel are therefore inexcusable, impermissible, and intolerable, and have very serious consequences. Also, his actions may have consequences beyond mere liability for defamation. For example, his initial email messages threatening to damage your reputation unless he received $10,000 from you may involve state and/or federal criminal and/or civil liability for blackmail and extortion, as this is an attempt to obtain property by means of a threat to inflict injury to another's reputation.
In addition to his own liability in this regard, Mr. Smith's actions may have unwittingly caused liability to be imposed on others. For example, his use of Ms. Kroutil's email account in taking the foregoing actions may implicate her with responsibility for some or all of the above-referenced liabilities. At the very least, his actions may cause Ms. Kroutil's ISP, @bigger.net, to cancel her email account, as they are in direct violation of the terms of @bigger.net's "Acceptable Usage Policy" (see <http://www.bigger.net/policy.html>). In particular, Section VI of the Acceptable Usage Policy provides that the subscriber agrees to comply with all applicable laws. Section VI.C specifically provides that the subscriber agrees not to transmit any material that is libelous or threatening. Section VIII.E also prohibits continued harassment of other individuals after being asked to stop doing so by those individuals and by @bigger.net. We have demanded that Mr. Smith stop harassing you, pursuant to this Section VIII.E, and we also requested @bigger.net to also ask Mr. Smith (via Ms. Kroutil, the subscriber) to stop doing so.
Note also that Section VI.E of the Acceptable Usage Policy provides that the subscriber will indemnify @bigger.net for expenses, such as liabilities and attorneys' fees, incurred by @bigger.net as a result of the actions of a subscriber in violation of the Acceptable Usage Policies. Thus, if @bigger.net were to become liable or a party to a lawsuit related to Mr. Smith's above-described libelous and other actions, either Mr. Smith and/or Ms. Kroutil could be liable for various of @bigger.net's costs, expenses, and attorneys' fees. (However, we have notified @bigger.net as well as other third parties that you do not intend to institute litigation against @bigger.net or such third parties for any past actions of Mr. Smith.)
In addition, under defamation law, not only is publication of certain false, reputation-harming statements to third parties considered to be defamatory, but each new act of re-publication is also a new act of defamation and thus gives rise to a new and separate cause of action. Thus, for example, Mr. Tim Starr, Ms. Sharon Presley, and others, in re-publishing Mr. Smith's libelous comments, may also be implicated with liability for defamation and libel. We therefore requested that Mr. Starr, Ms. Presley, and any other third parties give careful consideration to this matter before participating in any further re-publication of Mr. Smith's defamatory and libelous statements.
In sum, Mr. Smith transmitted email messages to you in which he knowingly and falsely accused you of plagiarism and of not being a co-author of FOR, despite his explicit acknowledgment of your co-authorship thereof in the 1989 Contract. He also threatened to damage your reputation unless you paid him a sum of cash. He then repeatedly libeled you, by publishing to a large number of third parties similar accusations, in a deliberate and malicious attempt to harm your professional reputation, and he continues to do so as of recent date.
Accordingly, we demanded that Mr. Smith immediately cease transmitting any further email messages or making any other communication, in writing or orally, to any third party alleging or even suggesting that you have plagiarized FOR or any work of Mr. Smith's. We further demanded that Mr. Smith immediately cease transmitting any further email messages or making any other communication to any third party alleging or even suggesting that you did not co-author FOR, or that you have lied, breached contracts, stolen others' work, or engaged in any other unlawful or unethical activity that would adversely affect your career as a writer and professional reputation related thereto. In short, we demanded that Mr. Smith immediately cease engaging in any acts defaming you and injuring your professional reputation.
We further demanded that Mr. Smith immediately cease and desist from directly contacting you in any form whatsoever, and that he also immediately cease threatening, extorting, blackmailing, or harassing you. We insisted that any communication by him should be directed to and conducted through me.
If there is any further action by Mr. Smith in contravention of our demands, it will be apparent that Mr. Smith intends to continue violating your rights, and you may consider instituting litigation to preserve your rights.
The advice set forth in this letter is rendered solely and exclusively for your benefit, and is not to be relied upon by any other party, without the prior written consent of this firm.
Please do not hesitate to contact me if you have any questions and, as we discussed, please contact me at once if you become aware of any further libelous or threatening statements.
Very truly yours,
/s
N. Stephan Kinsella
for DUANE, MORRIS & HECKSCHER LLP
NSK:amh
Encl. as stated (with hard copy only)