Need Advice

[abt123]

What is the name of your state? Texas

Hello. I wrote a controversial article a couple of years ago and submitted it to two
internet magazines which published the article. Then I received threats about the articles, so I asked the websites to anonymize my name. One of them did, but the other refused, saying that their policy is that once something is published it is permanent. But this policy was not stated in their article submission guideline. In addition, their submission guideline stated that “Anonymous pieces will not be considered except in life-threatening or similar circumstances.” Can I force the website to anonymize my article, since there was no statement in the submission agreement stating that anonymization could not be made after an article had been published. I feel the website did not make it clear enough that they could not make changes to author’s name to protect his safety after publication, since no where in their submission agreement did they state that once published it is permanent. Sometimes it is difficult to tell if there is a threatening situation until after it happens. Can the website be forced to anonymize my name?
Another way which I was thinking I may be able to get what I want is to force them to cease publication of the article on the grounds that they had no right to publish the article as they did, because one of the provisions of the submission guideline stated “Submissions may be edited as necessary without prior notice.” I believe necessary means that they can edit such things as spelling errors and obvious grammatical errors without notifying the author. But in this case they completely changed the substance of my title from an 8 words descriptive title to a 3 words title that asked a question, and they did it without prior notice. This change was not necessary, and thus I believe they violated the article submission agreement. Can the website be forced to delete the article based on the claim that their right to publish my article depended on them following the submission policy?
Also, how long is the statute of limitations for such a case? The website is an LLC from California. I live in Texas. Where should I file suite? Can I sue for attorney’s fees?

 

[Aria]

Once published on the web, anyone with a bit of net-know-how can still find your name. It's almost pointless at this point to anonymize it.

 

[abt123]

Once published on the web, anyone with a bit of net-know-how can still find your name. It's almost pointless at this point to anonymize it.

I'm curious, how can someone find my article after the name is anonymized and the old version is eventually removed from cache and eventually dropped from search results? In the case of the other website which changed my name, the old version lingered in the cache for a while, but it was eventually dropped. So even if there is a way to get that old information now, which I'm curious to know, I doubt most people will find it.

So even if you are right, I think I still could use legal advice about this case.

 

[empsystem]

I am not an expert, but at least I can share some thoughts for your first question.

I'm curious, how can someone find my article after the name is anonymized and the old version is eventually removed from cache and eventually dropped from search results? In the case of the other website which changed my name, the old version lingered in the cache for a while, but it was eventually dropped. So even if there is a way to get that old information now, which I'm curious to know, I doubt most people will find it.

I am not sure of the cache you referred to in your post. If you meant a search engine's cache, then I am just saying that there are websites that archive other websites besides a search engine. The archiving process also can come down to a user level; there may be someone who has a habit of archiving either of the two publisher's website, along with your article. The possibility is quite open.

 

[abt123]

I am not an expert, but at least I can share some thoughts for your first question.

I am not sure of the cache you referred to in your post. If you meant a search engine's cache, then I am just saying that there are websites that archive other websites besides a search engine. The archiving process also can come down to a user level; there may be someone who has a habit of archiving either of the two publisher's website, along with your article. The possibility is quite open.

Yes. I'm aware of the internet archives and the potential of someone archiving it on their own. I'm not looking for absolute anonymity, but relative anonymity from curious people who may type my name in google.

 

[The Occultist]

Most companies have the policy that any submitted works become their property. Even if they really didn't have posted anywhere that submissions are permanent, then certainly have posted somewhere a policy similar to the one I pointed out. Since that work is now their property, they don't have to change your name.

 

[divgradcurl]

Can I force the website to anonymize my article, since there was no statement in the submission agreement stating that anonymization could not be made after an article had been published. I feel the website did not make it clear enough that they could not make changes to author’s name to protect his safety after publication, since no where in their submission agreement did they state that once published it is permanent. Sometimes it is difficult to tell if there is a threatening situation until after it happens. Can the website be forced to anonymize my name?

On what grounds? You've already apparently agreed to grant them a license to use the work. If you wanted to anonymize your name, that should have been written into the license. Without such a contract in place, you have nothing to enforce, so there isn't any way you can "make" then anonymize your name.

Now, if you were to get a restraining order against someone, and then a some sort of court order, that might force the publisher to "anonymize" your work -- but if they are in California, most likely you would need an order from a California judge. Talk to a local attorney if you are thinking about going this route.

Another way which I was thinking I may be able to get what I want is to force them to cease publication of the article on the grounds that they had no right to publish the article as they did, because one of the provisions of the submission guideline stated “Submissions may be edited as necessary without prior notice.” I believe necessary means that they can edit such things as spelling errors and obvious grammatical errors without notifying the author. But in this case they completely changed the substance of my title from an 8 words descriptive title to a 3 words title that asked a question, and they did it without prior notice. This change was not necessary, and thus I believe they violated the article submission agreement. Can the website be forced to delete the article based on the claim that their right to publish my article depended on them following the submission policy?

Your "belief" about what the license language "should" have covered is irrelevant; if the language of the license is such that they could make such changes under the clear language of the license -- even if you "believed" that they were limited to minor editorial changes -- then you have no leverage here, they are following the license, and your attempts to stop them from publishing would be a breach on YOUR end of the licensing agreement.

Also, how long is the statute of limitations for such a case? The website is an LLC from California. I live in Texas. Where should I file suite?

What kind of suit? most likely you would want to file in California, because unless the LLC has an office in Texas, the Texas courts likely have no jurisdiction over the LLC.

Can I sue for attorney’s fees?

You can always sue for attorneys fees, but, except in certain limited circumstances, you won't get them -- we don't have a "loser pays" system in the U.S.

 

[abt123]

On what grounds? You've already apparently agreed to grant them a license to use the work. If you wanted to anonymize your name, that should have been written into the license. Without such a contract in place, you have nothing to enforce, so there isn't any way you can "make" then anonymize your name.

The article submission guideline is the contract. One of the provisions of that contract states: “Anonymous pieces will not be considered except in life-threatening or similar circumstances.” It doesn't state that anonymous consideration can only be made before publication. It would be unreasonable and unconscionable to expect an author to foresee all dangerous outcomes of an article before publication. Besides, the submission guideline did not express that unconscionable policy, so much so that a person could reasonably believe that anonymous changes could be made after publication in life threatening or similar circumstances.

Your "belief" about what the license language "should" have covered is irrelevant; if the language of the license is such that they could make such changes under the clear language of the license -- even if you "believed" that they were limited to minor editorial changes -- then you have no leverage here, they are following the license, and your attempts to stop them from publishing would be a breach on YOUR end of the licensing agreement.

I’m not asking about that. I know that at the end it is up to the judge or jury to decide what necessary means in: “Submissions may be edited as necessary without prior notice.” I'm asking how you would decide this argument if you were the decision maker: That necessary means necessary, like spelling errors, grammatical errors, paragraph layout perhaps. Necessary does not mean altering the substance of an article by completely changing the title of it. Secondly, if it is found that they have violated this part of the agreement, then can they be forced to cease publication of that article? What if they say ok, we will not cease publication of the article, but we will change the title to what you originally intended, but that is the only change we will make. We still won’t protect your identity. Can they get away with that?

Also, you did not answer my question about the statute of limitations? The article was published in Feb. 2004. When does my statute of limitations run out?

 

[divgradcurl]

The article submission guideline is the contract. One of the provisions of that contract states: “Anonymous pieces will not be considered except in life-threatening or similar circumstances.” It doesn't state that anonymous consideration can only be made before publication. It would be unreasonable and unconscionable to expect an author to foresee all dangerous outcomes of an article before publication. Besides, the submission guideline did not express that unconscionable policy, so much so that a person could reasonably believe that anonymous changes could be made after publication in life threatening or similar circumstances.

Then take the actual language to an attorney, who can review the actual language, along with the relevant facts in your case, and advise you accordingly. From what you have written, it does not appear that the contract creates a "duty" on the part of the hosting site to consider or reconsider an anonymous posting, only that they "may" do so in certain circumstances. But a complete review of the actual contract language my result in a different conclusion.

I’m not asking about that. I know that at the end it is up to the judge or jury to decide what necessary means in: “Submissions may be edited as necessary without prior notice.” I'm asking how you would decide this argument if you were the decision maker: That necessary means necessary, like spelling errors, grammatical errors, paragraph layout perhaps. Necessary does not mean altering the substance of an article by completely changing the title of it. Secondly, if it is found that they have violated this part of the agreement, then can they be forced to cease publication of that article? What if they say ok, we will not cease publication of the article, but we will change the title to what you originally intended, but that is the only change we will make. We still won’t protect your identity. Can they get away with that?

To the first question, how would I decide, I don't know -- I don't have the actual contract language in front of me, nor do I have access to all of the facts of the situation. "Necessary" could mean what you think -- grammatical and spelling errors -- but could also mean necessary to fit within a format, or look and feel, of the site. Or it could mean something else -- it will depend on the exact contract language and all of the facts of the situation.

To the second question, it will depend first on whether or not the contract language has a "severence" clause in the contract -- many contracts are written to explicitly note that if one part of the contract is voided for whatever reason, the other parts of the contract are still binding. If there is no clause, the contract still may not be voided -- not all contract breaches, if this is in fact a breach, are "material" breaches sufficient to void a contract. Again, it will depend on the contract language and the specific facts of your case.

Also, you did not answer my question about the statute of limitations? The article was published in Feb. 2004. When does my statute of limitations run out?

The SOL for breach of a written contract is 4 years in California.

 

[abt123]

Ok. Thank you.