July 03, 2006
Griper Gets 47 USC 230 Defense for Reposted Article--D'Alonzo v. Truscello
By Eric Goldman
D'Alonzo v. Truscello, 2006 Phila. Ct. Com. Pl. LEXIS 244 (Phila. Ct. Common Pleas May 31, 2006)
Another 230 case, another defense win. Yawn. However, this case is noteworthy because it addresses (albeit, glibly) a thorny 230 question: can a web operator claim 230 for third party content that the web operator made the affirmative and international decision to grab and post without the author's permission? This court answers yes.
The facts are a little unclear, but here's how I read them. A griper sets up a website (called dumpfumo.com) to bash a State Senator. The local paper (the Philadelphia Daily News) runs an article saying that some of the Senator's staff members, including the plaintiff, were being investigated. I believe the defendant then, on his/her own initiative, reposted the entire article to the gripe site. The Daily News retracted part of the story the next day, saying that in fact the plaintiff wasn't being investigated. This lawsuit ensued against the griper for republishing the erroneous Daily News story.
The judge sees this as a simple 47 USC 230 case. The griper's website was the interactive computer service. The Daily News was the information content provider. The lawsuit tries to hold the griper liable for the Daily News article. Described this way, this claim should be clearly governed by 230.
This issue may not be as simple as this judge treated it. An argument could be made that the defendant's decision to affirmatively grab and repost the content made the defendant into the content provider itself. This was the basic thrust of the Batzel case, which involved a private message sent to a blogger that the blogger reposted. The Ninth Circuit said that the sender's motivations mattered. If the sender submitted the content to the blogger for reposting, 230 applied. However, if the sender sent a private message not intended for public distribution, and the blogger made the independent choice to republish the message, then the blogger’s decisions cost 230 protection. Arguably, the defendant's choices in this case could be characterized the same way--the content was not intended for publication on the defendant's website, and the defendant presumably stretched copyright law to get it there.
Note that this issue is also part of the pending Barrett v. Rosenthal case, which involves a defamation claim against a person who made the autonomous decision to forward a third party's allegedly defamatory email. We're all eagerly waiting to see what the CA Supreme Court does with the Barrett case!
Posted by Eric at July 3, 2006 03:39 PM | Derivative Liability
It seems like this holding defeats the intent of Section 230. Grabbing content and republishing it is not even close to the publication of end user content on a system. The act of choosing to republish someone else's content makes the person the content provider, I would think.
Posted by: Michael Risch at July 3, 2006 04:28 PM
Certainly the analysis would be very different under 17 USC 512! Eric.
Posted by: Eric Goldman at July 31, 2006 09:25 PM