Proposal: Right to Fair Review (RFR) Association

[anmpr1]

Look, I know I'm not the one being harassed by Speaker Guy, but given the First Amendment, is this really necessary? I mean, anyone can send bullying letters. But is anyone obligated to respond?

[Pro Tip: If you create an association, make sure the logo doesn't look at all like a Gibson headstock.]

I know this guy is over the top, and annoying. But is it really worth this sort of effort? FYI, below is how the Cleveland Browns handled their goofball, who happened to be an attorney.

 

[shuppatsu]

I like the idea, though I'm a little with @SIY that I'm not convinced by how big a problem this is. Amir, have you gotten a nastygram from an attorney for a review before? Did you get one this time, or was it just the Tekton dude threatening litigation (which he laughably claims never meant a lawsuit!). It's just that there are usually a lot of steps between that and a lawsuit, though of course one could file at any time.

As you probably know if you've talked to an attorney about this, reviewers have very strong 1st Amendment protections against these kinds of lawsuits, assuming no actual malice. The main thing is the hassle and expense of going through discovery and handling the litigation.

But this works both ways. It's a really foolhardy thing for a company to do, because it's an almost sure loser and will cost a lot of money to litigate. You really need a lot of eff you money to do it right.

 

[PaPoMusik]

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?

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

 

[amirm]

There is a reduced version of this plan. We get a group of volunteers to create a static set of pages covering a lot of the educational material and call it done.

On issue of each state being different, that is the work that attorneys could do by gathering data/help from colleagues.

 

[martijn86]

I love this community.

Big "old internet" vibes. <3

 

[BlackTalon]

I think it's a great idea but may be difficult to extend beyond USA borders without an exponential increase in needed effort/ resources. Laws vary a ton from country to country, and many may also vary at more local levels like we do with various State laws.

 

[pablolie]

... But here are my thoughts. What say you?

Fully count on my support, whatever form and shape this takes.

Another option would be to include it in the fees as an ASR supporter, and maybe create an ASR+RTFRA level membership.

To me it is kind of funny Amazon is so far ahead in this - the downside is that any person can file a bad review in Amazon for the weirdest issues... the packaging wasn't great, the delivery was late... and yet you deal with it as a vendor. The upside is that you can tell when a review is from someone that knows what they are talking about. And that holds especially true in ASR. And anyone that can't live with being subjected to well-published, standard testing methodologies should openly state which corner cases they design their products for upfront.

 

[martijn86]

There is a reduced version of this plan. We get a group of volunteers to create a static set of pages covering a lot of the educational material and call it done.

On issue of each state being different, that is the work that attorneys could do by gathering data/help from colleagues.

Would you consider running Wiki.js so users can contribute to your own knowledge base similar to what Hydrogen Audio did in the past using (the now pretty dated) MediaWiki: https://wiki.hydrogenaud.io. I see a lot of forum stickies and signatures linking to posts with valuable information that would fit really well on a wiki.

 

[Billy Budapest]

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

That would actually be unethical under many state bar rules. Instead, your proposed organization would have to engage the lawyers’ firms as a client and the proper conflict checks, etc., would have to occur before a specific matter could be opened. Then it would be billed out through whatever fee arrangement your proposed organization could contract with the firm(s). This could include hourly arrangements, flat fees, various types of retainer agreements, etc., depending on what is permissible in the state.

(FYI, I am a practicing lawyer)

 

[CleanSound]

And this is why you are a bad ass motherfer

What a wonderful idea, I would support in anyway I can.

 

[amirm]

Amir, have you gotten a nastygram from an attorney for a review before?

I have not in the context of entities I run/own. As part of working for big companies, many times. Sadly, the company would settle often if that settlement was less than cost of a jury trial even if we were completely in the right (backed by third-party legal analysis). I have also been dragged into litigation both for small company I once owned and as part of large companies. All experiences were horrible and taxing.

 

[amirm]

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

That would actually be unethical under many state bar rules. Instead, your proposed organization would have to engage the lawyers’ firms as a client and the proper conflict checks, etc., would have to occur before a specific matter could be opened. Then it would be billed out through whatever fee arrangement your proposed organization could contract with the firm(s). This could include hourly arrangements, flat fees, various types of retainer agreements, etc., depending on what is permissible in the state.

(FYI, I am a practicing lawyer)

Thanks good to know. I was thinking of the benefits some companies offer where for a monthly fee, you get access to a lawyer from a network. Is this kind of crowdsourcing of attorneys done differently? I always thought folks were moonlighting this way.

 

[Timcognito]

There is a reduced version of this plan. We get a group of volunteers to create a static set of pages covering a lot of the educational material and call it done.

On issue of each state being different, that is the work that attorneys could do by gathering data/help from colleagues.

Like this idea better. Anything that takes you away from the analyzer and Klippel means fewer reviews. Being responsible for the ethics of others on the internet seems like daunting task. IMO

 

[No one who matters]

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?

If organized as 501(c) with independent board comprised of members from diverse backgrounds who serve on a voluntary basis, this could work well. Boards could be selected publicly by members of various reviewing organizations, (i.e. Donating members of ASR, etc.) both profit and non-profit, so long as they are members of the reviewing operation who is also a member in good standing. Credit unions around the nation do this very thing, from tiny operations to the largest. There’s even an association and supporting insurance company behind it.

While that is a much different animal in many respects, including the scale, numbers, and regulatory burdens which are vast, the concept is similar.

I’d donate money as someone who cares but doesn’t matter. I’d even volunteer on some level but am no technical expert so there’s that. I do serve on a board on a voluntary basis and am familiar with matters such as Roberts Rules of Order and the like.

In any event I think this is a terrific idea personally. Up until the treats started coming, it was a non-issue. Now it is and others may be emboldened, despite the poor outcome for everyone. Nothing’s ever perfect, and associations tend to become political over time - like any other group of associated people. An independent board with rotating servants can go a long way towards mitigating that.

Oops, got to spitballing again… I’m ready for my beating now.

 

[kemmler3D]

reviewers have very strong 1st Amendment protections against these kinds of lawsuits

Correction: Reviewers have strong 1st amendment protections against LOSING these kinds of lawsuits. They don't have any particular protection against having to go to court, hire lawyers, or any of that other stuff that may not be affordable to a given reviewer.

Given the shift from reviewers being part of established publications, (that would often have lawyers of their own) to being independent people who post online, it makes sense to put together some kind of organization that can stand up against frivolous threats, even if it's just to give advice or write a snappy reply to an idiotic C&D.

Most bullies will go away once you call their bluff... but not all. So having the fund as a backup seems like a good idea to me also.

The problem this solves is not primarily fighting actual legal battles with manufacturers. As we've noted in this thread, those are pretty rare.

The problem is that reviewers don't know what their options are, don't have anyone to advise them when one of these letters comes in, know they would go broke if it came to litigation, and because of all those things, may lack the confidence to actually speak the truth.

So whatever is necessary to instill that confidence (even if it's not strictly necessary) seems good to me.

 

[spigot]

A blacklist of any such garbage people and companies with recommendations to audiences to boycott. Obviously no one here needs informing.

 

[Triliza]

Forming an association of a sort is always a good idea, beside any possible legal/financial protection, the support the members can give to one another by giving widespread publicity to such cases can be substantial, and act as a discouragement to such acts. So no one have to be bullied alone, so to speak.

We should keep in mind always that manufacturers have rights also, responsibility and good faith from both parts is essential.

 

[kemmler3D]

Like this idea better. Anything that takes you away from the analyzer and Klippel means fewer reviews. Being responsible for the ethics of others on the internet seems like daunting task. IMO

I would definitely like to see someone other than Amir running it day-to-day... after all we don't want some random amateur dentist doing speaker reviews in his place.

 

[amirm]

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.

 

[BadSound]

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.

In my view, the RFAA idea presented by Amir could at least achieve the following:
1. reviewing the legal status for possible lawsuits: where are they possible, what precautions can be taken to tie them to a specific jurisdiction, how can lawsuits from other places be averted due to lack of jurisdiction, etc.
2. ensuring that manufacturers can object to measurements that have been taken: Assuming that manufacturers are not just suing for the sake of a dispute but have existential concerns, for example, you would need to be offered an acceptable form of clearly positioning a counterstatement. This could, for example, be a separate part of the forum with a link directly after the test result. This feedback could then be directly visible to everyone without a response from a third party and thus offer every manufacturer the opportunity to openly position their response to the test results without surrounding third-party opinions. This could be seen as a protected space that reflects the interests of the manufacturers.
3. review system: By this I mean the comprehensible and comprehensive presentation of the principles of the reviews carried out. Their subjective parts, essential measurement methods or possible fundamental weaknesses of the work. This would certainly be a lot of work that would also generate a considerable amount of costs. But in my understanding of the law, it would be necessary to explain transparently what the site and its reviews do and do not do.
4. dealing with legal disputes: This means a transparent but also author-protecting procedure which, in the event of legal action or, if necessary, successful legal action by the other side, shows this on the homepage in a legally secure manner.
This could be an area in which, for example, information on withdrawn reviews or reviews pending litigation is stored. For example, if I search for reviews of the manufacturer XXYYZZ in the forum, I find the note that the review of product 112233 has been removed from the site due to a legal dispute or the note that the review of product 112233 is being legally contested by the manufacturer.
This would satisfy the (legitimate?) interest of the manufacturer not to conceal the criticism and the visitor to the site is informed of the position / behavior of the manufacturer.

This would also be developed as legally secure as possible thanks to the idea presented by RFAA.
I could imagine that with such an approach, on the one hand (also as an example for other sites on the Internet with reviews), a somewhat more legally secure basis would be created in order to be able to continue the work with composure and, on the other hand, the transparency that we all value so much would be maintained can.