Proposal: Right to Fair Review (RFR) Association

[Mikig]

As many of you I am sure have followed, both Erin and I were hit with legal threats from a company post our reviews. Given the unfairness of the situation, many of you came to our defenses and provided incredible level of support both financially and in many other ways such as legal and business advice. While I have always had this risk in mind and had prepared for it in some ways, it was still major source of pain for me and especially for Erin. While this crisis is not fully over, I think we need to look to the future to see how we could be better prepared for it.

I propose that a new lightweight organization be created that I call Right to Fair Review (RFA) Association (RFAA). The things we need to cover in there are:

1. Education. What are the legal issues involved in writing independent reviews of products? What is the law exactly? What are the best practices for writing/creating video reviews as to lower chances of litigation? What to do when threat of litigation or actual litigation is occurring? Advice regarding incorporation, LLC, etc. You get the idea.

2. Access to a lawyer for initial consultation. I am thinking half hour talking to an attorney with knowledge of the field (audio in our case) would do a world of good. While I have great attorneys, they don't know audio so it would take me a lot to explain things to them while paying $500/hour. And even then, they may not fully understand the situation. We have member attorneys here that could do a far more efficient job in a 30 minute conversation than many hours with a general attorney.

To keep such expenses low, such consultation could be limited to say, 1 per year for ordinary members, with option to go higher levels and get more of this.

3. Insurance. The insurance market has hardly any products to offer for this type of defamation claim. They have policies to insure large newspapers and such but not necessarily for small independent reviewers. I know, I had my broker look for months for such a policy until they found one a few years ago. I paid them nearly $5000/year for the policy, just to have them write me a cold letter a couple of months ago saying they no longer wanted to offer such a product. The search continued and again took a couple of months for my broker to find another policy with similar cost.

The organization could do such a search and create a proper market for such a policy. Even the policy I found needs better customization as their application form had tons and tons of irrelevant questions that I had to fill out in order to be qualified.

4. Referral to legal firms situated to handle the proper defense should the case go to trial, etc.

5. I am thinking reviewers could sign up by paying reasonable yearly fees. I am thinking $100 to $300 per year. Organization would then rely on donations for rest of its operational budget.

6. Staff attorneys could have day jobs and take these calls after hours. They could be compensated per hour or through advertising for their firm.

7. Guidelines for company conduct could be created as far as how they approach reviewers with objections, issues. Then, they could be allowed to become members and have a seal of "fair review supporters" which they could display as being good citizens. So while the number of reviewers is small, this class could be quite large. We have already seen a number of companies speaking out in support of value of fair reviews of audio products.

8. This is a much larger goal but campaigning politically for specific laws to protect fair reviews as opposed to having old laws regarding defamation, etc. be repurposed to go after reviews.

9. Guidelines for reviews. Just as there will be some for manufacturers, there needs to be things that reviewers do to be in good standing with the organization. For example, posting manufacturer responses in reviews. Available contact information.

10. Ability to create arbitration to settle issues early and without much expense.

All of this said, there are down sides to such things as some orgs get the life of their own and wind up servicing themselves than their members, etc.

11. A private forum where like minded reviewers and members can exchange experiences and knowledge about this topic.

But here are my thoughts. What say you?

Hi Amirm,
I've been thinking a lot these days and writing little.
The situation that has arisen is very unpleasant: I never thought I would encounter a similar thread about similar fact.

However, your proposal seems valid to me.

I would add a point: First of all, I don't know if something similar already exists... anyway:

that of creating an objective, shared, universal standard for measurements.
A document that meticulously describes how to take measurements in every detail. This could be the antechamber to your points.
If a working method becomes unique for everyone, there will be no dispute, because no one will ever be able to contradict a method that is certain for everyone.

 

[BDWoody]

Kurt Denke, the president of Blue Jeans, was a lawyer. He also faced a legal threat from Monster Cable and his public letter to them has become an urban legend. I don't know if he is still alive, but if so, perhaps he could provide some advice regarding this proposal.

Blue Jeans Cable Strikes Back - Response to Monster Cable

Not long ago we reported that Monster Cable had issued a cease and desist letter to Blue Jeans Cable about their Tartan cables. Little did the lawyer drones over at Monster know that Kurt Denke, the

www.audioholics.com

To the lawyers out there…how many hours of time would it take to put that letter together? He was in a unique position of not having to write a check for it, but I think people forget that the cost of admission can be eye-wateringly high when these get going. However, discovery is the great equalizer, as the costs ramp way up for both so calling the bluff is often all that is required.

That said, some personalities don’t see options that involve taking their foot off the gas, so you can’t always expect rational decisions when someone comes at you with lawyers.

 

[Shadrach]

The internet is full of reviewers. There are those who do it professionally all the way to the buyer adding a review to an Amazon purchase; as an example one reviewer saying a particular well thought of single malt tasted like paint stripper. He, I assume, would have to have had some experience of drinking paint stripper if his review was to be considered reasonable. Most distributors and manufacturers roll with the bad press, smooth out the bumps so to speak.
In the current dispute the manufacturer believes an ASR and Erin's review carries some weight. I would take that as a compliment.

An association for audio equipment reviewers (?) It would need a standard at least to be taken seriously. Who's going to set and test that standard?
I think while a nobel cause in some ways it's a life sucker; back to work and then some. Is it really worth it?
Amirm's done a lot of reviews and put a lot of work into ASR. For me, the strength of the site is in the measurements. People are beginiing to understand enough about the measurements and graphs to make at least reasonable judgements of the perfomance of the equipment they are considering buying.
It's the other part that I see as the problem; the review. If Amirm was to just publish the measurements and say nothing about his subjective views, then this kind of traincrash might be less problomatic. Quite difficult to argue with measurements; they can be repeated and proven, comment is something different.
As long as amirm is thorough with the measuring and the conditions in which the measuring took place I can't see a problem. He's been using the Klipple system for quite a while now, it would be difficult to question his competence.

In some ways I'm a bit dissapointed this didn't go to court. I understand it's an expensive and complicated process but once over, assuming the plaintive lost, which seems highly likely in the current case, a precedent would have been set I believe and the industry would consider more carefully threats of legal action.

So my concern is such a project would detract from the site in time spent by amirm and lose some of it's apolitical standing.

 

[CleanSound]

I'm not convinced by how big a problem this is.

It's for a peace of mind, to know that you can go out and do a honest review without worrying about mortgaging your house to pay for legal fees, then liquidating your 401k to pay for damages because you don't have sufficient legal representation.

Knowing Amir was a former tech giant exec, I knew he had insurance, I knew he had access to lawyers, which is why he was this calm, and meanwhile Erin talked about the level of stress this episode has caused him mentally and physically (he talked about his medical condition that was exacerbated by this).

I strongly believe this is needed.

 

[Timcognito]

To be clear, I am definitely NOT intending to run anything like this myself. Not only do I not have the time, I also lack the patience to do it. I am hoping someone volunteers even at this stage to take the discussion to the next level. I agree this is at least a part-time job for someone if not full-time. I can make up for some of their work with audio gear I can send them. I am also happy to put my $10K donation pledge for Erin toward this cause.

Also, you are among the very few who does this stuff without remuneration. The model of others is to make money or break even for their effort. The motivations and business models for each reviewer is different and problems that may cause could place such an organization under a strain in situations where the behavior of one member is not respected by another. You have control over ASR, so whatever you do, do it inside ASR as your work product or involve others that have their own sites and you are only a founding member. It was noble what you were willing to do for EAC given the history and you will always have that option with clearly the support of many ASR members like me. I say this thought experiment needs more thought, before committing to non technical organization that doesn't have outside co-founders. Again IMO

 

[KenLP]

Yes, I agree, as a lawyer with over 47 years of civil litigation experience, I am here to say that much of reviewers' fear and intimidation can be avoided with a bit of education and preparation. Most bullies need to be reminded of their own exposure to damages and for attorney fees in "ANTI SLAPP" jurisdictions.

 

[amirm]

Knowing Amir was a former tech giant exec, I knew he had insurance, I knew he had access to lawyers, which is why he was this calm, and meanwhile Erin talked about the level of stress this episode has caused him mentally and physically (he talked about his medical condition that was exacerbated by this).

Even with all of that, it was very painful to read the original email threat from Eric Alexander. And continued threatening emails every day or two. Time spent answering him was considerable as well. For good or bad, I kept a lot of this to myself and not even told my wife or the mods here until way later. Every good day would be ruined by clicking the ASR Outlook email account and seeing Eric's name in there.

 

[Mr. Widget]

As many of you I am sure have followed, both Erin and I were hit with legal threats from a company post our reviews.

But here are my thoughts. What say you?

Threats or actual court filings? Of course even though anyone can sue anyone for any matter, it is one thing to rant or even pay an attorney to send a letter and a far different thing to file a Complaint with a court.

I assume the speaker manufacturer in question is simply ranting.

That said, I agree it is a good idea to have a plan in place to protect one's first amendment rights.

 

[Mr. Widget]

Even with all of that, it was very painful to read the original email threat from Eric Alexander. And continued threatening emails every day or two. Time spent answering him was considerable as well. For good or bad, I kept a lot of this to myself and not even told my wife or the mods here until way later. Every good day would be ruined by clicking the ASR Outlook email account and seeing Eric's name in there.

Very sorry to hear this... no one needs this!

 

[CleanSound]

Even with all of that, it was very painful to read the original email threat from Eric Alexander. And continued threatening emails every day or two. Time spent answering him was considerable as well. For good or bad, I kept a lot of this to myself and not even told my wife or the mods here until way later. Every good day would be ruined by clicking the ASR Outlook email account and seeing Eric's name in there.

I'm sorry to hear that. I'm glad this is behind you (at least I don't think EA would pull any last minute desperate kamikaze move). You handled this entire situation with perfection, most importantly, you had the wisdom and business experience to know about CYA.

Lastly, I encourage you to lean on the people around you more, don't think it's a burden for them, because you won't think it's a burden if they needed to lean on you. Everyone needs support, no matter how "battle proven" they are.

Rock on brotha!

 

[pablolie]

Unfortunately, the laws in each country are very different. I will therefore describe some aspects of my understanding of the law. Of course, this may be different in the countries and legal systems of the other participants.

I am not an expert here, but I think it's the litigious (and often frivolous) US system you need to worry about. You can sue for emotional distress over crap... you can claim to be misled against public evidence to the contrary and what not. It's a multibillion dollar biz in the US. You can claim you didn't know your coffee was that hot and sue for millions when you idiotically spill it on yourself. Etcetera. Internationally, I have never heard about the ridiculous cases that make it into the system into the USA. Which is also why any sort of insurance against those will be expensive.

I do work in large high tech silicon valley companies, and cease and desist stuff is everyday stuff, and it always gets settled out of court 99% of the time.

 

[ruinevil]

So a more focused Electronic Freedom Foundation?

 

[CedarX]

How much legal obligation falls on the equipment provider (Klippel / AP) to demonstrate the efficacy of their gear?

It should be no different from any other piece of equipment or audio gear manufacturer: what do they say (or brag)? What are the specs?

It should be perfectly acceptable to review the reviewing equipment (if one knows how to do it objectively!) and misuse of the measuring equipment is the same as misuse of the gear such as… using a Tekton speaker as PA, outside in the blizzard (well………that’s an idea! )

 

[EERecordist]

As many of you I am sure have followed, both Erin and I were hit with legal threats from a company post our reviews. Given the unfairness of the situation, many of you came to our defenses and provided incredible level of support both financially and in many other ways such as legal and business advice. While I have always had this risk in mind and had prepared for it in some ways, it was still major source of pain for me and especially for Erin. While this crisis is not fully over, I think we need to look to the future to see how we could be better prepared for it.

I propose that a new lightweight organization be created that I call Right to Fair Review (RFA) Association (RFAA). The things we need to cover in there are:

1. Education. What are the legal issues involved in writing independent reviews of products? What is the law exactly? What are the best practices for writing/creating video reviews as to lower chances of litigation? What to do when threat of litigation or actual litigation is occurring? Advice regarding incorporation, LLC, etc. You get the idea.

2. Access to a lawyer for initial consultation. I am thinking half hour talking to an attorney with knowledge of the field (audio in our case) would do a world of good. While I have great attorneys, they don't know audio so it would take me a lot to explain things to them while paying $500/hour. And even then, they may not fully understand the situation. We have member attorneys here that could do a far more efficient job in a 30 minute conversation than many hours with a general attorney.

To keep such expenses low, such consultation could be limited to say, 1 per year for ordinary members, with option to go higher levels and get more of this.

3. Insurance. The insurance market has hardly any products to offer for this type of defamation claim. They have policies to insure large newspapers and such but not necessarily for small independent reviewers. I know, I had my broker look for months for such a policy until they found one a few years ago. I paid them nearly $5000/year for the policy, just to have them write me a cold letter a couple of months ago saying they no longer wanted to offer such a product. The search continued and again took a couple of months for my broker to find another policy with similar cost.

The organization could do such a search and create a proper market for such a policy. Even the policy I found needs better customization as their application form had tons and tons of irrelevant questions that I had to fill out in order to be qualified.

4. Referral to legal firms situated to handle the proper defense should the case go to trial, etc.

5. I am thinking reviewers could sign up by paying reasonable yearly fees. I am thinking $100 to $300 per year. Organization would then rely on donations for rest of its operational budget.

6. Staff attorneys could have day jobs and take these calls after hours. They could be compensated per hour or through advertising for their firm.

7. Guidelines for company conduct could be created as far as how they approach reviewers with objections, issues. Then, they could be allowed to become members and have a seal of "fair review supporters" which they could display as being good citizens. So while the number of reviewers is small, this class could be quite large. We have already seen a number of companies speaking out in support of value of fair reviews of audio products.

8. This is a much larger goal but campaigning politically for specific laws to protect fair reviews as opposed to having old laws regarding defamation, etc. be repurposed to go after reviews.

9. Guidelines for reviews. Just as there will be some for manufacturers, there needs to be things that reviewers do to be in good standing with the organization. For example, posting manufacturer responses in reviews. Available contact information.

10. Ability to create arbitration to settle issues early and without much expense.

All of this said, there are down sides to such things as some orgs get the life of their own and wind up servicing themselves than their members, etc.

11. A private forum where like minded reviewers and members can exchange experiences and knowledge about this topic.

But here are my thoughts. What say you?

I previously mentioned anti-SLAPP law which has been acknowledged, thanks. I'm a strong believer in Yelp, others hate it. Yelp has significant experience in anti-SLAPP cases, so their legal department will have a network, reach out to their chief counsel. Most law school libraries offer free legal case database search, otherwise case databases are often locked up by fees. A case search shows law firms, and entities filing briefs. Those entities may be what you propose or allies.

To the specific proposal, it could be a good non-profit startup business case. The points are well thought out. Consulting with the anti-SLAPP community may uncover an existing organization or one that can be expanded. There is an expanding use case with all the reviewers and YouTube, so Google itself may have an interest.

I would guess actual SLAPP cases are not that common, and are created by small business persons who are not familiar with the diversity of the Internet. It might be useful to poke around the FTC and FCC as well getting help from your local US Senator staff.

In the big picture, I would add that uniform strong federal anti-SLAPP law, or filling in and strengthening the state laws, would be a good objective.

 

[Hart]

Great idea, now I know why the magazines always wrote glowing reports of everything they reviewed, not only to retain advertisers but also to avoid litigation. ASR is the one of the first to actually tell the truth about an audio product. It's a treasure to protect.

 

[kemmler3D]

you can’t always expect rational decisions when someone comes at you with lawyers.

Hence the need for the fund. Most drivers, no matter how upset, are careful to avoid crashes because both cars crash equally. A few ram other drivers because they lose their cool...

 

[amirm]

Great idea, now I know why the magazines always wrote glowing reports of everything they reviewed, not only to retain advertisers but also to avoid litigation. ASR is the one of the first to actually tell the truth about an audio product. It's a treasure to protect.

I think post this incident, even they will look behind their shoulder more, worrying about saying anything remotely negative. If we don't take action, we may be in worse situation than we are now with people being truly afraid of going through my experience and that of Erin.

 

[kemmler3D]

You can claim you didn't know your coffee was that hot and sue for millions when you idiotically spill it on yourself.

Not to derail, but this particular case is unfairly maligned as an example of stupid torts.

The woman got serious burns and was in the hospital for 8 days and never fully recovered. McDonald's knew their coffee was hot enough to cause injury (much hotter than most places held their coffee) but kept it at that temperature anyway.

There are plenty of stupid lawsuits out there, this particular one is just unfairly lumped in with them because it sounds silly at a superficial level.

 

[mglobe]

My first thought: you'd need a LOT of lawyers because there's not telling what state a hypothetical action could be filed. And laws are different state to state.

I'm still thoroughly convinced that this is something blown way out of proportion. Some idiot rants about suing. OK, go ahead, buddy. You'll do that right after your ABX test showing you can hear the difference between silver and copper?

It's a solution to a non-problem, IMO.

I’m hopeful this is true. He who shall not be mentioned is I think an outlier, and has much more bark than bite.

 

[frabor]

The reviewers association is be a good idea, but a twist could be the addition of some kind of review agreement or covenant, given to the manufacturer, stating that the manufacturer will not sue if the review will not be to their liking. If all the members of the reviewers association would refuse to review a product unless the manufacturer agrees to sign such agreement, that would force manufacturers to decide if they want to be reviewed or not. And really, if a manufacturer is only agreeable to a review if they can dictate the results up front ( advertisement ), I do not think it would be a loss to have that product review, or a manufacturer I am willing to support.