Correction: An earlier version of this opinion piece misspelled Hecla on multiple references. This piece has now been updated to reflect that change.
Lawyers like to roar when writing cease and desist letters. But ferocious threats don’t intimidate environmental organizations that have years of civil litigation under their belt. That’s partly why the demand Hecla Mining Co. sent to the Southeast Alaska Conservation Council ended with a whimper.
Hecla’s complaint was about the 20-minute documentary film “Irreparable Harm” which SEACC helped produce. It’s about two studies in Hawk Inlet, the body of water below Hecla’s Greens Creek Mine. They were commissioned by the Friends of Admiralty Island. In a recent opinion published in the Empire, Hecla contends the Alaska Department of Environmental Conservation concluded the data collected by Friends of Admiralty doesn’t accurately depict the environmental health in Hawk Inlet.
But the cease and desist letter wasn’t about the disputed findings. Hecla argued that a half-minute segment of the film was taken from the mining company’s YouTube channel without permission. They claimed that constituted copyright infringement and warned that SEACC could be subjected to “severe penalties” if they continued to show the film.
Instead, SEACC consulted with the Electronic Frontier Foundation (EFF). Their lawyer wrote “our client will not comply, and has no obligation to do so” because Hecla’s “demand has no basis in law.” He then gave a brief dissertation of the four points of “fair use,” the accepted legal principle defining an exception for the use of copyrighted materials without permission. Hecla’s lawyer disagreed but, at least for now, withdrew the complaint.
The “severe penalty” warning had a bit of the bluster we’ve seen President Trump’s attorney direct at Stormy Daniels, an actress who claims she had an affair with Trump. There’s a cease and desist letter in that story too. But I’m referring to the $130,000 non-disclosure agreement (NDA) they used to keep Daniels from telling her story to the news media.
The NDA contained a penalty clause requiring Daniels to pay Trump $1 million per violation. As several experts have stated, that’s not an enforceable term. Even though Daniels signed it, contract law requires such damages reasonably approximate the actual harm caused by any breach.
The test of reasonableness also applies to claims of copyright infringement. The courts can award damages related to revenue the plaintiff lost by defendant’s use of the material, plus profits and any cost savings realized by the defendant. In egregious cases, they could add punitive damages to deter others from committing similar acts.
None of these are significant in Hecla’s case. Their YouTube doesn’t bring in revenue because watching the videos is free. Even if SEACC was chasing profits, the film’s appeal is mostly to local audiences. Whatever they earned from the box office or video sales will be minuscule. And any reasonable accounting would reveal the 30-second segment didn’t save the producers a ton of money.
If there aren’t real damages, then it seems the copyright argument was a just a façade. But based on a parallel environmental dispute in Pennsylvania, Hecla wouldn’t have fared any better issuing a cease and desist demand by arguing the film makes inaccurate or defamatory statements.
In the Pennsylvania case, Epiphany Environmental wants to build a hydraulic fracturing wastewater treatment plant in Pittsburg. It’s designed to discharge up to 42,000 gallons a day into the Allegheny River. This week they sent a cease and desist letter accusing several groups of “spreading lies and falsehoods.” Among them were the Seneca Nation of Indians and the co-producers of a documentary film about the risks fracking poses to local water supplies.
The Seneca Nation “has no intention of ceasing or desisting” the lawyer who responded on their behalf wrote. “Unlike others you may have tried to bully with such a letter,” the Nation is “prepared to aggressively defend their rights to petition the government.”
If Epiphany responds with the lawsuit they threatened, they may not win the long, complicated court battle to prove their opponents are spreading false information. For that matter, getting regulatory approval to build the plant won’t be any easier because the environmental groups will probably file a lawsuit to stop construction.
In both cases, attempting to silence company critics with cease and desist orders was a mistake. It’s not as bad Trump’s attorney paying Daniels to shut up. But like that story, it makes one wonder which side really has command of the facts.
• Rich Moniak is a Juneau resident and retired civil engineer with more than 25 years of experience working in the public sector. He contributes a regular “My Turn” to the Juneau Empire. My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire.
