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Reader John Dingell III writes:

The real issue in the FireClean lawsuit against Vuurwapen Blog is how blog publishers can protect themselves from legal intimidation. While a political blogger can, uh, ‘trump’ his opponents because politicians and public figures have few legal protections, in the commercial sphere targets enjoy far greater legal protections. This is particularly apparent in the financial sphere, where lawsuits against journalists often succeed. This suggests that . . .

critical reviews should probably be conducted from behind the legal shield of a thinly capitalized nonprofit corporation and be attributed to ‘Small Arms Foundation Testing Staff’ or some other construct.

The FireClean lawsuit has very carefully crafted allegations which appear true, but were constructed with much malice aforethought. The core elements of the Vuurwapen stories are correct, but they then got a little far afield embellishing their thesis at the margins. FireClean’s lawsuit cleverly avoids noting the high degree of variability in oils produce from agricultural products to suggest that there is some difference between their product and deacidified rapeseed oil. There isn’t. Agricultural products are typically contaminated by regrowth from the last year’s crop’s (say, soybeans) inadvertent regrowth, and the fundamental differences between different cultivars of the same genus.

Vuurwapen implied that there is something unsatisfactory about rapeseed (Canola) oil as a lubricant. There isn’t. The Germans lubricated everything during WWII with rapeseed oil due to their shortages of mineral oils. Rapeseed oil even solved the premature transmission failures in the Panzer Mark V tank.

If FireClean prevails, the environment in which bloggers operate will be changed for the worse. It’s something bloggers should consider in order to protect themselves and their gun collections. It’s probably prudent to prepare for the eventuality of a Vuurwapen defeat. Bloggers have entered the realm of big businesses.

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72 COMMENTS

  1. >> Vuurwapen implied that there is something unsatisfactory about rapeseed (Canola) oil as a lubricant. There isn’t.

    Well, except for that whole gumming up if left for long periods of time thing…

    Granted, it’s only really a concern for long storage. But that is something that a lot of people do.

    • Implied vs. stated. Two VERY different things in the legal world. The general public misunderstanding your statements is not a basis for a defamation or libel lawsuit.

      I would be willing to bet donuts that this case will fail, miserably, and two years from now, Fireclean LLC will not exist.

      • That’s a sure bet no matter the outcome of the lawsuit. The fact that fireclean doesn’t understand this reflects at least as much about their business practices as their markup.

      • While this is true that there is a difference between implied vs stated, that isn’t what will actually matter. If they stated it was worse off, then sure, it would be much more damning.

        The standard in these kind of disputes is what would a “reasonable person” conclude upon reading the article? Here it won’t be too tough for someone to show that the article is setting out to see if fireclean is just rapeseed oil, and the implication is that if it is, that’s bad for whatever reason.

        This draws the issue at hand away from whether or not the product at hand is good or bad, and keeps the issue on whether or not the blogger made claims which adversely effected fireclean and caused them real monetary damages.

        The blogger is best off arguing they didn’t imply anything and that a reasonable person would take his statements at face value, and trying to introduce evidence that they said nothing untrue.

  2. You mean you just can’t say any old thing on the interwebz? Wait until the tech advances to the point that anonymous commenters will not be anonymous any longer.

    • Someone with a skill-set like our int19h has a decent chance of actually pulling off truly anonymous ‘net commentary, via ‘onion’ IP routing and other tricks.

      The stark reality is, you need to be really good and never make an error because were someone motivated with the resources, nearly anyone can eventually be tracked down online.

      Just don’t motivate them like Ross Ulbricht did…

      • Honestly, staying anonymous online is not something that requires that much particular training or knowledge. It’s really the chance of making a mistake, forgetting about some “digital footprint” somewhere along the way, that’s the biggest complication here, and why I wouldn’t advise anyone to play Snowden without a very good understanding of how all these things work, and extensive thinking on a plan to ensure no footprints are left anywhere.

        However, it usually doesn’t matter when it comes to cases like these. The only ones with enough resources to conduct a massive investigation necessary are the governments, and they won’t do it for a libel suit. Something like Silk Road, sure. Terrorism, sure. A guy who said that some gun oil sucks? They have way bigger fish to fry.

        So something like Tor Browser would likely present an insurmountable obstacle here. Provided that there’s no initial suspicion that would lead them to you.

        • A clean formated machine used only for your anonymous persona plus one of the tor browsers plus a VPN paid for with a cash purchased prepaid debit card would do it. But I expect the alphabet agencies could track you down if they wanted you. If you borrowed someone else’s wifi as well even they would find it tough. The more anonymous you want to be the more inconvenient it becomes.

          • The problem in your described setup is WiFi. Unless you change the MAC address every time you connect, every connection leaves an identical “print”. In fact, even before you get connected, the broadcast to locate available access points also has the “print”. And some access points log these (and most can be configured to log if desired). So if you e.g. drive around with the device on, you will leave a trail of prints, that can then be cross-referenced with CCTV and such to identify you; or at least narrow down where you are.

            Even when MAC address is changed, there are ways to detect the more subtle “prints” that could identify the device (e.g. http://www.cs.cmu.edu/~srini/thesis/Jeff.pdf; and this is only the tip of the iceberg, as IT forensics has been digging into truly arcane stuff like measuring packet response time for specially crafted packets to identify devices). Pulling that off requires special-purpose software, and, in some cases, hardware, to be installed at access points. But that is something a state actor can do, e.g. by means of NSL in the USA. Basically, if you were to use free McDonald’s WiFi, they could just go and make all fast food places in the state to have the tracking hardware in place.

            The only truly reliable way to conceal your identity is to use one-off everything – i.e. a device is used to connect exactly once, then discarded immediately. And every new device should be different from the old one – hardware, OS etc. If there are multiple devices involved (e.g. a phone paired with a laptop), then both should be discarded. Of course, at that point you veer into the realm of non-digital “prints” – if I were a federal agent chasing terrorists etc, the same guy buying 10 new laptops and/or phones in a month would be pretty high on my list of “hella suspicious”, and would be something I specifically staked the traps out for. And facial matching algorithms for CCTV footage are pretty damn good these days…

      • Go to a McDonald’s, boot up tails, set your MAC address, and you are good to go. Really – almost any boot from cd or USB key Linux distro will achieve this for you. If you want to annoy them further, use some foreign socks proxy.

        Avoid activities such as posting at the same time everyday, or posting from the same location, etc. We want to mix things up – not be predictable.

        • Intelligent types know how to defeat cameras using IR led arrays, jamming, and other techniques. A Guy Fawkes mask works just as well.

          • I bet you a smart guy could figure out a way to identify people by watching the recording of them typing on camera – no face necessary, just the movements of the hands and the fingers.

            And any active countermeasures are a dead giveaway – they would conceal what you did while they were active, but at the same time, they would draw attention to you, and you could still be identified from the footage prior to activation.

            And soon enough, 24/7 public surveillance via automated drones is going to be a thing, so you’ll never to be out of sight of several cameras anywhere in the public. The tech is already there, it just needs a trigger to be phased in on a large scale – like, say, another big terrorist attack, which is inevitable and only a matter of time. Public polls will show massive support for such an idea; politicians will rush to the podiums to declare how they’re the toughest ones on terrorism; pundits will conclude that security trumps freedom; and it’ll pass the Congress in a landslide as “bipartisan common sense bill”, with a few representatives making a stand and casting symbolic votes against it – like Ron Wyden and Rand Paul. Courts will rule it constitutional because of the lack of expectation of privacy in the public.

    • Nobody is truly anonymous on the ‘Net.

      If someone wants to find you badly enough, they can.

  3. “FireClean’s lawsuit cleverly avoids noting the high degree of variability in oils produce from agricultural products to suggest that there is some difference between their product and deacidified rapeseed oil. There isn’t.”

    It doesn’t matter. The Plaintiff will likely prove to a non-professional jury that *there is a difference*.

    And the remedy for *that* is something very tough to swallow…

  4. I was reading TechDirt way back when Masnick and some other readers first came up with the Streisand Effect, geeze I’m old.

    • Uh, wasn’t that only 11 years ago? Miley Cyrus could remember that (if she could read and knew about that thing called news).

  5. This reminds me of the Smith Enterprises vs M14Forum user lawsuit. A company got butthurt over claims about QC issues. Instead of offering proof to counter the claims through quality customer service they sued a forum user. No matter who wins the company looks foolish.

  7. Sometimes I read too many news outlets and blogs. Didn’t I read recently that truth can still be libelous if used maliciously? For instance, if Paula Jones made an accusation that was verifably true, but she said it with intent to do harm to someone’s reputation or political campaign, that would be malicious use of the truth. Wish I could remember the exact case where the idea of truth as libel was at issue. Anybody?

    I got too many mushrooms in the pizza sauce?

    • I am not a lawyer, but it seem preposterous to me that telling the truth about someone or something could possibly be the basis for a libel suit, much less not be an affirmative defense.

      If that were the case then every con game and Ponzi scheme operator could sue anyone who outed the scheme and caused it to fail. Ludicrous.

    • In US, truth is an absolute defense to defamation, but other countries often do things differently. UK especially is notorious for having libel laws that greatly favor the plaintiff.

      There have been some attempts to posit “actual malice” (which SCOTUS has defined very vaguely) as something that does not necessarily involve falsehoods, and that would still override the truth defense, but SCOTUS has never ruled on something like that; and given their past rulings on 1A matters, I doubt they would change the status quo.

    • I vaguely recall a tort action called “false light” which involved putting together statements that, although individually true, collectively by the way they were presented put the plaintiff in a “false light” with attendant damages. But that was long ago, and I never practiced in that area of law, so that’s about all I can say about it.

  8. The IR spectrographs signature shows the two products are virtually identical. A good law dog could teach a jury what a spectrograph is, show common examples between like products and defeat Fire Clean.

    • Considering that’s how they identify gunpowder, paints etc. for matching against evidence left at crimes (which has a higher standard of proof than civil) I think it would be super easy to establish it as a court accepted form of evidence.

      Also noteworthy is that the actual spectrum analysis of Fireclean is absent from their deposition from what I’ve read.

      • This is my biggest problem with the whole mess and I sure hope the defense asks the question over and over again. If Fireclean isn’t mostly vegetable oil, then where are Fireclean’s lab tests to prove it?

    • “A good law dog could teach a jury what a spectrograph is, show common examples between like products and defeat Fire Clean.”

      The problem is, the enemy will have more and/or better law dogs to throw into the fight. The jury will likely be swayed by a long string of witnesses for the Plaintiff. It won’t matter who is right, the jury will see lots of evidence and make assumptions from that.

      In the end, it will be a battle of resources, and right now, FC is winning. VuurwapenBlog Legal Defense’s GoFundMe is only at $7,200 and change.

      FC is on track to bury him alive. It ain’t nice, but it is reality…

      • Possible. I would relay a jury of peers are 12 bullshit detectors. And people know when a company is screwing them.

      • They will get a massive boost once EFF and/or ACLU get hold of the case. EFF specifically has a page on this:

        https://www.eff.org/issues/bloggers/legal/liability/overview

        and while their legal resources are limited, they can massively amplify the case, providing more monetary support. There are many people out there who don’t care about guns or gun oil, but will be pissed at the general notion of a company suing a blogger for a negative review.

    • Best defense: Defense attorneys bring in a hot plate and fry up a couple of eggs using FireClean, then eat them in front of the jury. That ought to prove the point.

      • Exactly what I was thinking, fry 2 eggs one with FC and one with Crisco, ask the jury to taste a difference

  9. “Vuurwapen implied that there is something unsatisfactory about rapeseed (Canola) oil as a lubricant. ”

    He did not.

    • Yeah, he only implied that it’s unsatisfactory to pay $7 an ounce for repackaged rapeseed oil, and that’s no basis for a lawsuit.

  10. I don’t blog but my wife has a highly successful decorating/diy blog. Over 3 million page views in under 5 years. She puts very little effort into it now. Everyone moving to pinterest/FB,Twitter and other crap. Blogging is dying. Honestly one big reason I frequent TTAG is the relative anonymity of this site. I ‘ve never used Fireclean and never will. Not if they pull BS like his. And I appreciate TTAG when they call shite shite( like certain products from Remington). I haven’t bought a gun mag in years and don’t plan on it. Muting the interwebz under threat should result in a huge consumer backlash…HUH??? Praytell why???

  12. Well libel and slander are still law.

    And our court system is still corrupt (surprised? I’m not: human beings aren’t perfect.)

    I think instead of just posting “hey it’s Crisco” he should’ve gotten enough people together to file a class action lawsuit or similar. Or simply stop buying the product.

    • I haven’t reread the article since it posted last year. But remembering back I don’t remember any false statements. They ran the “lubricant ” through analysis and it was the same substances, they made a true statement. If true statements are now legal grounds to sue that is a rabbit hole I hope gets back filled very quick. If FC is receiving less business, better check crisco sales to see if they increased, maybe FC can sue Crisco and Hoppes for stealing business too?

  13. Why is it somehow better to pay for repackaged super cheap oil that comes out of the ground instead of repackaged super cheap oil that comes out of a bean?

    I will never buy fireclean now, but at least it was non-toxic and did it’s job.

  14. Interesting discussing but how many of you know that the post’s author is very likely the grandson of the MOC that coined the phrase “Back Booted Stormtroopers” to describe agents of BATFE? 🙂

  15. I really think this is a scare tactic. Could you imagine the depositions for this? “Is your product vegetable oil?” Uhhh…

    • When casting steel billets, we use rapeseed oil to lubricate the mold to keep the liquid steel from sticking to interior walls during the cooling process. If it can keep 3000 degree steel from sticking to to a rotating, oscillating, water cooled mold, then I imagine that it can be used with some success in your firearms.

  17. In the end Firesuck will either drop the suit, settle by paying the defendant’s legal fees & getting a sealed settlement that bars either party from discussing it or loose at trial. Regardless of the exact path this case takes to conclusion the destination for FireSuck is the same, Game over. No one will be buying their Crisco, I mean crap. They are done, like a overfried egg at a disgusting dinner. Probably fried in Fireclean.

  18. No matter the outcome of the legal circus, Fireclean is finished. They’ve signed their own death certificate by being total a–holes and drawing even more attention to the fact that they’re selling Crisco as gun oil for $2/oz. Their lawsuit is going to draw WAAAAY more bad press to their snake oil selling than Vuurwapen blog ever did. I’m a gun owner who didn’t care about Fireclean before. Now I’m a gun owner who disdains Fireclean.

    So long, Fireclean. Don’t let the door hit you…

  19. It has always been amazing to me that the great American dream is to come up with a product that makes millions and millions, but when someone does it, they get blasted for being greedy. If I could sell parking lot rocks at the price of diamonds, I would do it and never look back. I’m just not that clever.

    • Selling rocks as diamonds is fine. What’s not fine is using false or deceptive advertising to do so, and what’s particularly not fine is suing someone when they point out that your diamonds are rocks.

      • Ayn Rand was the epitome of hypocrisy. Don’t quote her if you want anyone to take you seriously. About anything. Ever.

        • Ad hominem. Undeliverable threat. Yeah, you know a lot about being taken seriously.

      • Selling my weakness (I don’t want to work too hard, so selling rocks at diamond prices would be attractive) into man’s stupidity (only the stupid would believe there is a shortage of parking lot rocks to justify the high price). I might make a bunch of money, but rather than cheer my success, Ayn Rand would hold it in contempt.

        Buy low (whatever will sell); sell high (at whatever profit you can get the market to buy).

  20. If the company pursues the case, they will be forced to give up their ingredients as part of the discovery process.

  22. The truth will set you free (Business only), basically the manufacturers of said product just committed Hari Kari by suing this blogger! if it walks like a duck, quacks like a duck DNA says its a duck except when business interests relabel it as not duck! I’ll never buy their product so happy bankruptcy!

  23. Contaminated by last years regrowth. What? Ive planted a little wheat in with the beans because I didnt clean out the seed box . But last years regrowth? You ever farmed? Even if you no till you dont get last years growth. Somebodys trying to feed somebody a line of sht. And the army manuel for lubrication of the 1911 specifies “whale oil”. Ive planted a few fish, never whales, and never had last years recarp sprout up. Yes whales a mamals, but Ive buried armadilos and have never had a regrowth, eeeerrr, maybe they do, they do seam to sprout from the ground. Armadilo oil for all your cooking and lubrication needs. Possum lard

  24. I don’t go in for the latest snake oil magic gun lube/cleaners. Fireclean has just ensured that I will avoid their product with prejudice.

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