The Indy Fights Back

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!