Technology & Marketing Law Blog

February 02, 2012

Comments on Twitter's Country-by-Country Tweet Removal Announcement

By Venkat Balasubramani, with comments from Eric.

Twitter recently announced its decision to censor tweets on a country-by-country basis. People were up in arms and planned a #twitterblackout. It was a big story last week. (Needless to say, I didn't participate in the blackout.)

As an initial note, Twitter's decision is entirely defensible, and I thought Twitter (and its General Counsel Alex Macgillivray) handled it with poise. I also don't know that its decision can easily be placed in the 'censorship' category since it's implemented by a private entity, which has tremendous discretion in blocking content. (Some of this depends on the actual policy, which we don't know the contours of.) Anyway, this is neither here nor there.

What was striking about this story was how it played out in the media--in particular, the muddled nature of the media narrative that followed this story.

What Types of Takedown Requests Will Twitter Honor?: I would have thought the key question here would be the contours of Twitter's policy--did it remove content in response to a court order? An administrative request? A takedown from a private party? Did it matter whether the request was premised on IP infringements? (no) Could it make certain topics totally off-limits in response to a government request? Would it block accounts? (yes) Hashtags? Would it make Twitter totally unavailable in a country? Here's a blurb from a NYT article titled "Censoring of Tweets Sets Off #Outrage" (italics added):

Twitter, like other Internet companies, has always had to remove content that is illegal in one country or another, whether it is a copyright violation, child pornography or something else. What is different about Twitter’s announcement is that it plans to redact messages only in those countries where they are illegal, and only if the authorities there make a valid request.

Huh? What's a "valid request"? An Associated Press story ("Twitter's new censorship plan rouses global furor") was similarly vague about what types of takedown requests Twitter would respond to:

Twitter said it has no plans to remove tweets unless it receives a request from government officials, companies or another outside party that believes the message is illegal. No message will be removed until an internal review determines there is a legal problem, according to Macgilliviray.

There's a big distinction between a takedown notice from a government, one from an individual (including one sent under a takedown regime such as the DMCA) or a corporation. Another story from the Times of India adds some detail and hints at this specific question ("Twitter's censor move with eye on China?"):

some experts wonder if Twitter's position was really different from that of Google or Facebook. "Google and Facebook have said that they would remove content if ordered by the courts, and Twitter too is saying that it can block tweets if required by the law," said an expert. "Where laws are codified, as in Germany and France about pro-Nazi propaganda, Twitter can block pro-Nazi tweets proactively. But in countries like India, where the laws are not that specific, this will be done reactively on the basis of court orders. That's all Twitter is saying."

(??) It's strange that the stories all described the key standards for what type of request will trigger a takedown in totally vague terms. Obviously it wouldn't make sense for the stories to describe in painful detail the innumerable types of requests an entity such as Twitter receives and how it deals with each of these types of requests, but it was clear after reading these stories that the media didn't have a firm grasp on the contours of Twitter's 'policy'. This was somewhat strange because this was the crux of the story, right? There's one larger aspect of the story which was clear which is that Twitter decided that whatever its policy is regarding takedowns, its response can be limited by country or region--i.e., if one particular country or region decides to send a takedown this may not affect all Twitter users. (The content will be available elsewhere. Also, as others quickly pointed out, as a user who is trying to access content on Twitter, there are probably ways to get around Twitter's country-specific block of content.)

Not surprisingly, many press reports cited to EFF's statement regarding Twitter's policy but even EFF's statement was fairly vague on the particular point of what takedown requests Twitter will honor ("What Does Twitter’s Country-by-Country Takedown System Mean for Freedom of Expression?"):

Twitter already takes down some tweets and has done so for years. All of the other commercial platforms that we're aware of remove content, at a minimum, in response to valid court orders. Twitter removes some tweets because they are deemed to be abuse or spam, while others are removed in compliance with court orders or DMCA notifications. Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk--which is illegal under Turkish law--the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else. Right now, we can expect Twitter to comply with court orders from countries where they have offices and employees, a list that includes the United Kingdom, Ireland, Japan, and soon Germany.

From what I gather, Twitter's blocking policy will be implemented on a case-by-case basis and it didn't announce any sort of policy for what types of takedown requests Twitter will automatically honor. But to me this is a key point that none of the stories really dug into.

Will Twitter Implement its Policy Only Where it has People and Offices?: This is another question that I was curious about. Will Twitter honor requests from countries where it doesn't have offices or does this work on a case-by-case basis also? If Twitter's assets, offices, or people are at stake then this obviously changes the calculus, but what about far-flung jurisdictions where Twitter has no presence and no expected or future relationships? EFF's post also hints at this but doesn't really offer specifics:

Twitter's increasing need to remove content comes as a byproduct of its growth into new countries, with different laws that they must follow or risk that their local employees will be arrested or held in contempt, or similar sanctions. By opening offices and moving employees into other countries, Twitter increases the risks to its commitment to freedom of expression. Like all companies (and all people) Twitter is bound by the laws of the countries in which it operates, which results both in more laws to comply with and also laws that inevitably contradict one another. Twitter could have reduced its need to be the instrument of government censorship by keeping its assets and personnel within the borders of the United States, where legal protections exist like CDA 230 and the DMCA safe harbors (which do require takedowns but also give a path, albeit a lousy one, for republication).

For what it's worth, the tradeoff between keeping a local presence and complying with a foreign court order is not anything new. Google has dealt with it, among other countries in Italy. (For all I know @amac could have been one of the lawyers who dealt with this while at Google.) Yahoo! dealt with it in France when it was ordered to take down Nazi memorabilia. In evaluating Twitter's policy, I would guess what people would want to know most (apart from what types of takedowns Twitter intends to honor) would be what types of jurisdictions Twitter intends on screening content in.

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Maybe Twitter's decision isn't really a policy decision to screen content at the request of governments or entities but to make available the capability to screen content by geographic regions. There's a fundamental difference between the two. I certainly got a clear sense that there was a policy change afoot from the stories announcing Twitter's decision. Either way, none of the stories bothered to get into the details on what I thought were the two core issues. The other tangentially related issue that did not get much attention is how Twitter would respond to requests for user information from governments. We're not much wiser in terms of Twitter policy than we were when we started. On the one hand, this is somewhat strange, given that most reporters live and breathe Twitter, regardless of whether this is their reporting beat. On the other hand, maybe it's an example of how social media can infect journalism? Reporters are friendly with Twitter (as an entity, or a product) so maybe they were reluctant to ask the hard questions? Maybe everyone was in a rush to get their stories out so they didn't dig deep?

I think we'll have to wait and see to see how the policy actually plays out, but Twitter's actions demonstrate a commitment to free speech and openness so it should have gotten the benefit of the doubt. For whatever reason, the story just spiraled and took on a life of its own.

[For my money, one of the best stories on this was from Al Jazeera, which raises the fundamental question of what Twitter's policy is exactly: "Making sense of Twitter's censorship."]

Other posts worth checking out:

* Twitter's initial blog post which wasn't crystal clear on the issue: "Tweets still must flow."
* Lauren Weinstein: "Twitter's censorship muddle."
* Inforrm's Blog: "Legal questions about Twitter ‘censorship’ and country-specific content control – Judith Townend"
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Eric's Addendum

To see if we could get our own answers to these unresolved points, Venkat and I took our questions to Alex Macgillivray, and he generously responded to us. Our exchange:

Our Q: What types of takedown notices will be sufficient to get Twitter to take down a post? Court order? Government demand without a court order? Private demand without a court order? (I believe 512(c)(3) takedown notices already work). Others? Does it vary by country?

Alex's answer: "We do analysis of each complaint. For example, even a 512(c)(3) request does not necessarily lead to a removal."

Comment: I infer this means takedown demands are evaluated on a case-by-case basis. If Twitter does not have hard-and-fast rules about takedown demands that clearly work or clearly don't, that would explain why other media outlets weren't precise on this point.

Our Q: Will Twitter take down posts only in countries where it has a physical presence, or will it remove content from countries even where it doesn't have a physical presence?

Alex's answer: "Again, would depend on the requests. For example, a child pornography complaint, even from a user in China, might result in a global removal even though we are not responding in general to requests from China
and are still blocked there."

Comment: child porn is an extreme "test case" because of its toxicity, so I'm still not clear on what happens with less toxic content. I similarly infer everything is done on a case-by-case basis, which would also explain the muddled media coverage.
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Eric's Comments

It appears Twitter thought its announcement was good news. Instead of having to remove a tweet from its database entirely, Twitter will now remove tweets only from one country's database. This leaves the tweet up for the rest of the world, and it makes it trivially easy for people in the affected country to get the tweet if they care. Furthermore, the tweet won't vanish; instead, it will be a "noisy withdrawal" by leaving a note that says the tweet was removed. Plus, Twitter will turn over the takedown demand to ChillingEffects, allowing interested folks to monitor the activity and find out what happened. In a world filled with irrepressible censorious impulses, Twitter's policies were designed to make the best of a bad situation.

So how did the messaging, and the community response, go so far wrong? Twitter ran into a small but vocal minority that believe that catering to foreign governments' censorious requests is wrong. I discussed this issue in some detail in connection with Google and China. As I wrote in connection with that situation:

what should a US service provider do when trying to expand internationally? It has a few options, none of them particularly attractive:
* It can skip unreasonably censorious markets altogether, like Google proposes to do in China.
* It can comply with local laws, even though that runs counter to US laws and norms.
* It can ignore local laws, which is typically not a successful plan. In extreme cases, it can lead to local company executives going to jail.
* It can try to change the local country’s laws to be more like ours, either through direct advocacy or by asking the US government to pressure the local government. We routinely use trade negotiations to do this; for example, we have successfully exported our copyright laws this way. But countries usually aren’t thrilled to have the US tell them what their laws should be.

Undoubtedly, the purists would prefer it if Twitter just stayed in the US "bubble" and engage in regulatory imperialism by getting foreign governments to see and do things "our way." A lot of self-satisfied hubris underlies that stance; something we saw with Google's situation where many people appeared to think that denying the Chinese people access to Google would bring the Chinese government to its knees (it hasn't yet). Ironically, American regulators have been on a censorious rampage recently (see, e.g., SOPA, Wikileaks, Operation in our Sites, etc., etc., etc.), so we're hardly on any moral high ground.

The reality is that iif Twitter chooses to expand globally, of course it will have to comply with local law, and of course other countries will require Twitter to take down posts. Twitter has built a technical architecture to reduce the collateral damage of such censorial demands. And I, for one, believe that American dot-coms do more to spread free speech by supplying the technology, even if hobbled through censorship, on an international basis than by not offering the technology at all.

In the end, though, Twitter's move--combined with similar moves, like Google's redirection of Blogspot on a country-by-country basis--remind us that geographic borders remain incredibly relevant to the Internet. This is a political reality, not a technical imperative. Technologically, the Internet is a borderless electronic network, but we continue to erect artificial geographic borders anyway. (See my post, Geolocation and A Bordered Cyberspace). Once again, with censorious proposals like SOPA/PIPA (and, for that matter, OPEN) that seek to create a Fortress USA, America is teaching the world how to embrace artificial geographic borders rather than teaching the world how to tear them down.

One thing I don't understand: if Twitter can turn tweets on and off by country, will that mean countries can assert jurisdiction over it even if Twitter doesn't have a physical presence there? Recall how these issues played out in the LICRA v. Yahoo case, where Yahoo's ad geo-targeting was held against it. Because Twitter can customize views of its databases on a country-by-country basis, foreign governments have a good argument that Twitter can "control" what content goes into a country. Recall, for example, the kerfuffle about Britain's "super-injunction" against Twitter. Even if Twitter didn't have a Britain presence, could Britain now have more leverage to force Twitter to honor its super-injunction? Or, could a foreign country assert that Twitter needs to comply with its data privacy laws on the theory that Twitter could simply turn off tweets in that country if it doesn't want to comply? I'm not sure how Twitter will now explain why it's chosen not to comply with a foreign country's laws, irrespective of its physical presence.

I also asked Alex about this issue:

Our Q: How do you think this policy will affect Twitter's compliance with laws in countries where it doesn't have a physical presence? In other words, because Twitter could simply choose to remove all tweets from showing in a country, Twitter might have a more difficult time arguing that it had no choice about whether or not to show tweets in the country. So, for example, a country may assert that Twitter should comply with its data privacy laws for users in its country even though Twitter has no physical presence there.

Alex's response: "This doesn't change our philosophy with respect to freedom of expression and I don't think it changes the pressure we'll get from countries (other than the transparency piece). Companies that have no way of doing local withholding still get plenty of pressure to do removals. Generally 'I don't have a way to just do this for your country' is a positive from the requesting country's perspective, not a negative or a viable excuse."

Comment: I'm glad I don't have Alex's job. It sounds like Twitter gets a lot of heat from government officials who aren't used to having people say no to them.

Some other discussions about this matter that I found interesting:

* Zeynep Tufekci, Why Twitter’s new policy is helpful for free-speech advocates
* Wired's coverage. Check out Cindy Cohn's quotes.
* WSJ's coverage of Alex Macgillivray's comments
* Blogger.com's New Takedown Policy Thwarts Censorship

Posted by Venkat at 01:14 PM | Content Regulation

January 29, 2012

Newspaper Isn't Liable for User Website Comment Per 47 USC 230--Delle v. Worcester T&G

By Eric Goldman

Delle v. Worcester Telegram & Gazette Corp., 2011 WL 7090709 (Mass. Super. Ct. Sept. 14, 2011)

I previously mentioned this ruling in a recent Quick Link, but I can write up a full post now that I've seen the actual opinion.

Robert Delle is a lawyer (of course). A reporter surreptitiously called Delle and asked for his views on Obama's citizenship. The reporter then published a story in the T&G calling Delle a "birther" and opining about the relationship between the birther movement and racism. Seven months later, the T&G published a story covering a lawsuit that Delle was litigating. A user commented to that article that "there was no bigger dope than Delle." Delle claims the comment came from a T&G employee/agent, but his only support for this belief is that he'd heard a rumor that sometimes newspapers comment on their own stories.

Bringing a defamation lawsuit over being called a "dope" doesn't seem very savvy to me, and the court easily dismisses the claim due to 47 USC 230. The court correctly concludes "the T & G cannot be held liable for the statements of a third party on the comments section of its website." It doesn't matter if the T&G prescreened the comments, allowed other users to flag the comment as abusive (which Delle did) and decided not to act after users had flagged the comment as abusive. Delle's unsupported allegation that perhaps the T&G wrote the comment wasn't enough to survive the dismissal motion.

The court also tosses the defamation claim against the T&G for its earlier story. Interestingly, the court doesn't directly address the defamatory implications of calling someone a "birther," even though in my world a that's much worse insult than calling someone a dope. Instead, the court says that any implication that birthers are racist, and therefore Delle may be a racist, was clearly based on the reporter's personal beliefs, plus it constituted an interpretation of facts rather than a fact itself.

Prior blog coverage of newspapers' 47 USC 230 wins for user-posted comments.

Posted by Eric at 05:14 PM | Content Regulation , Derivative Liability | TrackBack

January 26, 2012

Federal Prosecution Over "Threats" on Craigslist – US v. Stock

[Post by Venkat Balasubramani]

US v. Stock, Cr. No. 11-182 (W.D. Pa.; Jan. 23, 2012)

I blogged about a case before where a defendant was charged under a federal threat statute of posting a threatening video to YouTube. (“Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat.”) A couple of recent cases have raised similar issues.

Stock was charged with posting a notice on Craigslist. Here is what the notice said:

I went home loaded in my truck and spend the past 3 hours looking for this douche with the expressed intent of crushing him in that little piece of shit under cover gray impala hooking up my tow chains and draggging his stupid ass down to creek hills and just drowning him in the falls. But alas I can’t fine [sic] that bastard anywhere . . . I really wish he would die, just like the rest of these stupid fucking asshole cops. So J.K.P. if you read this I hope you burn in hell. I only wish I could have been the one to send you there.

Stock said that the statement was not a "threat" under the statute, so regardless of whether a reasonable person would perceive it as a threat, the indictment should be dismissed as a matter of law.

The court says that, although the statute does not define the term "threat," cases construing similar statutes say that a threat is "a serious statement or communication which expresses an intention to inflict injury at once or in the future" (as distinguished from "idle or careless talk . . ."). Under this definition, the court says that it can’t dismiss the indictment because defendant’s statement would not be considered a threat only if different parts of the post were viewed discretely. While some parts of the post express a mere desire that something bad occur, or reference harm in the past tense, when viewed as a whole, whether the post is a threat is a question for the jury.

The court cites to US v. Elonis, another recently decided district court case where the court declined to dismiss a similar indictment. Elonis was charged with making threats via interstate commerce based on statements he made on his Facebook page. He was formerly employed at an amusement park, and he posted a series of threats directed at the amusement park, local authorities, and his wife. Here’s a flavor of some of the posts:

And if worse comes to worse
I’ve got enough explosives
To take care of the State Police and the Sheriff’s Department.
That’s it, Ive had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
To initiate the most heinous school shooting ever imagines
And hell hath no fury like a crazy man in a Kindergarden class
The only question is . . . which one

The defendant in Elonis made a few arguments similar to the ones made by Stock: the statements were hyperbole, venting, and that the statements were "crude, spontaneous and emotional language expressing frustration." The court rejected these arguments, noting that as long as the defendant "knowingly” made the statements, whether they were threats depends on whether an objective recipient would perceive the statements as threats. The court also noted that although the threats were posted to Facebook, the subjects of the alleged threats (the amusement park co-workers and his wife) were Facebook friends with the defendant and saw the threats.
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There were a couple of key differences between Elonis and Stock. For starters, the statements in Elonis were scarier (they talked about blowing up a school). The court also notes that defendant continued to post threatening statements after Elonis’s wife obtained a protective order. Additionally, the statements Elonis made were likely to be viewed by the subjects of the threats, which included Elonis’s former co-workers and his wife (or his wife's friends). The statements in Stock on the other hand were contained in a post to Craigslist. The post did not identify the target of the threat by name, and we don’t have any idea of how that person would even come across it. For all we know, no one even viewed the threat at all. The statements were similar to the YouTube video the defendant posted in Jeffries. (For what it’s worth, Jeffries was appealed and the appeal is currently pending.)

Some of this gets to the issue of defendant’s intent. There’s a mix of authority as to whether the defendant must subjectively intend the threat to be a threat, with many jurisdictions saying that subjective intent is not required. (The Ninth Circuit says yes, the defendant has to subjectively intend to make a threat, not just intend to transmit the communication in question.) However, all of the cases acknowledge that the defendant must knowingly transmit the statement in question. And that’s where Jeffries (the YouTube case) and this case feel like they are on shaky ground. In both cases, the defendants made statements in cyberspace that were not directed at the subjects of the ostensible threats. In Jeffries, I’m skeptical that the defendant knew that the subject was likely to come across the threat, but in this case I’m even more skeptical. The statement was posted to Craigslist!

It's also worth pointing out that last month a district judge in Virginia dismissed an indictment based on thousands of allegedly harrasing tweets and various blog posts. (Here's a post from Ars Technica on that case: "Judge: indictment for Twitter harassment is unconstitutional.") Although the charges in that case were different in that the government proceeded under a different statute and argued that the defendant intended to cause "emotional distress" to the victim, the court relied on the fact that the communications were not made directly to the victim. (Here's a pdf of the court's order in US v. Cassidy. The analysis between this case and Stock and Elonis differs because "true threats" are considered unprotected speech, but it's interesting that the court relied on the fact that the communications were not made directly to the victim.)

I understand why the government may want to track and investigate threatening statements made online, but I'm surprised these statements ended up being the subjects of federal criminal prosecutions.

[I made a few changes to the post to clarify the timing between the protective order and the threats in Elonis. There were multiple statements that were allegedly threatening and the defendant continued to post after his wife obtained a protective order. At some point she presumably unfriended him on Facebook. While she may not have been directly exposed to threats the defendant made after she obtained the protective order, people in their mutual social circle would have seen them.]

Posted by Venkat at 04:04 PM | Content Regulation

January 15, 2012

Attempted Trademark Workaround to 47 USC 230 Immunity Fails Badly—Ascentive v. PissedConsumer [Catch-Up Post]

By Eric Goldman

[This is one of the top dozen or so most important Internet law opinions of 2011, but unfortunately it came out just as I was going into my exam-grading exile and I had to put blogging it on hold. Even over a month later, it's still worth your careful review.]

Ascentive, LLC v. Opinion Corp., 2011 WL 6181452 (E.D.N.Y. Dec. 13, 2011). A prior blog post on a different Ascentive lawsuit, Ascentive v. Google.

In my Regulation of Reputational Information paper, I explain how vendors are misusing intellectual property to control consumer perceptions of their businesses. One example is Medical Justice, which tried to use copyright law to work around 47 USC 230 and suppress unwanted reviews. Fortunately, Medical Justice has abandoned that effort.

Other vendors try to use trademark law to work around 47 USC 230. By definition, consumers must reference a vendor's brand in order to review it, and trademark's doctrinal plasticity means that such references arguably support a prima facie trademark claim. (I explain that issue more in my Online Word of Mouth paper). As a result, we've seen a number of vendors dabble with trademark claims against consumer reviews. For two examples, see Lifestyle Lift v. RealSelf and Eppley v. Iacovelli. (For more on the noteworthy litigiousness of doctors against consumer reviews, see this post).

In this case, the plaintiffs used trademark law to make a no-holds-barred assault on the 47 USC 230 immunity's applicability to consumer reviews. Their arguments go nowhere. I hope this emphatic ruling will discourage other plaintiffs from trying to use trademark law to work around 230.

Likelihood of Consumer Confusion

The court tried to do a straight-laced multi-factor LOCC analysis, but as I've noted before, the LOCC factors don't make sense when comparing apples and oranges like a vendor and a review site of the vendor. On the bad faith factor, the court says:

While it may be true that PissedConsumer has engaged in sharp-elbowed and perhaps unethical SEO tactics meant to make its webpages appear more relevant to search engines such as Google or Yahoo! than they actually are, that fact has no bearing on the inquiry here—whether PissedConsumer has attempted to sow confusion as to the source, origin, or affiliation of its products and services with those of plaintiffs.

The court instead observes: "Indeed, it is clear that PissedConsumer is not using plaintiffs’ marks as source identifiers at all." Well, that's only partially true--PissedConsumer is using the plaintiffs' marks as referents for the plaintiffs. (See Deregulating Relevancy for more on the implications of that). In a footnote, the court said there wasn't a dispute that PissedConsumer was using the marks in commerce, but the court failed to reconcile these seemingly inconsistent statements.

To bolster their unmeritorious trademark claim, the plaintiffs argued that several specific technological features used by PissedConsumer supported trademark infringement. The court rejects the plaintiffs' arguments on each feature:

* using the plaintiff's trademark as a third level domain name, i.e., ascentive.pissedconsumer.com. The court said that the pissedconsumer.com domain name makes it clear to consumers that the site is critical of, and therefore not affiliated with, the mark owner.

* using the plaintiff's trademark in the consumer reviews. The court says there's no consumer confusion here either:

after a brief inspection of the content of PissedConsumer’s website, the user would realize that they were visiting a third-party gripe site for “pissed” consumers.

* metatags. The court rejects initial interest confusion. First, there can't be competitive diversion because PissedConsumer isn't selling anything to consumers. Second, no one searching for the plaintiffs would be "diverted" to the defendants' website. (A point I make in gory detail in my Deregulating Relevancy article). Third, initial interest confusion imposes minimal (if any) harm on consumers because they can hit the back button. Finally, the court recognizes that technology has evolved since the 1999 Brookfield ruling such that metatags don't matter (citing, among other things, Google's 2009 blog post to that effect—thanks, Matt Cutts, for doing that!)

* black hat SEO. The opinion talks in some detail about linking archive posts from Twitter with the hope that Google will treat the posts as fresh content. The court says:

While it may be—and likely is—the case that PissedConsumer’s SEO practices are intended to make its webpages seem more relevant to search engines than they actually are and these methods may indeed violate the search engines’ terms of services, the remedy for this conduct is not trademark law but instead with the search engines themselves.

Amen to getting trademark law out of the way and letting search engines fix the gaming! This is another point I made ad naseum in my Deregulating Relevancy article.

* serving ads (through Chitika) showing the plaintiffs' trademarks, presumably automatically triggered by keywords on PissedConsumer's pages. The court says that, at most, PissedConsumer as the publisher is contributorily liable to any infringement committed by the ad network (Chitika), but the plaintiffs didn't allege contributory infringement. The court seemed to treat Chitika as the direct infringer instead of the advertisers, but in fact I think Chitika should be evaluated under contributory infringement as well, with the advertiser being the direct infringer (if there is one).

Although the court gets to the right place, its doctrinal jujitsu shows what happens when trademark law is stretched to places it doesn't belong. We've lost too many of the limiting principles in trademark law that should help make a case like this an easy one for judges. Among other things, a more robust use in commerce doctrine would have ended much of this case early, and the very lengthy opinion oddly doesn’t mention the seemingly applicable doctrine of nominative use at all.

47 USC 230

Having dispatched the plaintiffs’ trademark assault, the court mops up all of the remaining state law claims using 47 USC 230. The court says "a website such as PissedConsumer constitutes an ‘interactive computer service,’" which makes PissedConsumer's officers "providers" of an ICS. This is an unusual reading of the statute, but it's all good.

The court rejects the plaintiffs’ Roommates.com attack on 230, saying "determining what makes a party responsible for the ‘development’ of content under § 230(f)(3) is unclear, and the CDA does not define the term." Thus, the court says it's appropriate to examine the totality of the circumstances; plus, "one is responsible for the ‘development’ of information when he engages in an act beyond the normal functions of a publisher (such as deciding to publish, withdraw or modify third-party content) that changes the meaning and purpose of the content." The Roommates.com attack fails here because the plaintiffs provided no evidence that PissedConsumer actively created the content; their unsupported general assertions weren't enough. The court rejected the application of the old (and quite outmoded, IMO) Badbusinessbureau opinion, saying PissedConsumer's "actions are not unlike the targeted solicitation of editorial material engaged in by a narrow genre of publishers." (Huh?) Inviting consumers to post reviews and SEOing the pages didn't change the analysis. Accord Asia Economic Institute v. Ripoff Report.

Separately (and not relying on 230), the court tosses the RICO claim because the plaintiffs didn't show that PissedConsumer engaged in commercial bribery or extortion.

On these bases, the court rejects the plaintiffs' request for a preliminary injunction. However, the case is ongoing, and the plaintiffs still get discovery.

Implications

Although not a party to the suit, the real party-at-interest in this case is Google, because both Ascentive and PissedConsumer depend on Google traffic as virtually their entire marketing plan. In Ascentive's case, it said that 99% of its sales are made online, and a majority of that came from Google searches. Indeed, Ascentive had previously sued Google for trademark infringement before abandoning that claim. Meanwhile, PissedConsumer's business is to get favorably indexed in Google for businesses' names and then sell them services that take the edge off any negative user content that gets indexed. As a result, both litigants are competing against each other for favorable placement in Google search results. In my Online Word of Mouth paper, I discuss how brand owners face unusual and effectively unprecedented competition on their own brands for scarce consumer attention—in this case, the scarce resource of top search engine placement—and how that dynamic leads to weird trademark lawsuits like this one.

The legal ruling may be good for PissedConsumer, but this opinion isn't exactly a clean bill of health for its business model. Indeed, "the Court finds some aspects of PissedConsumer’s business practices troubling and perhaps unethical." I continue to believe that all consumer review businesses that seek to get paid by the vendors they review have a major structural conflict-of-interest—especially when the review site’s sales pitch to the vendor is reputation management. I ultimately think Google will need to restructure its algorithm to reflect the inherent untrustworthiness produced by these conflicts of interest.

Paul Levy's comments on the ruling.

Posted by Eric at 01:08 PM | Content Regulation , Derivative Liability , Search Engines , Trademark | TrackBack

January 10, 2012

TheDirty Denied 47 USC 230 Immunity--Jones v. Dirty World

By Eric Goldman

Jones v. Dirty World Entertainment Recordings, LLC, 2012 WL 70426 (E.D. Ky. Jan. 10, 2012). Prior blog post on this case.

A Kentucky federal judge rejected 47 USC 230 immunity for thedirty.com for third-party content. It's entirely clear that if the jury finds the user posts defamatory or a privacy invasion, this judge will let thedirty be liable for third-party content. That's exactly what 47 USC 230 was designed to prevent, making this a troubling and probably lawless ruling. Critics of 47 USC 230 will likely rejoice about this opinion because it represents the biggest incursion to 47 USC 230's immunity we've seen to date. Yet, for that reason, I wonder if this ruling will survive an appeal, which thedirty has already promised.

You may recall thedirty encourages users to submit third party gossip, typically about women, along with a photo of the gossip subject. Nik, thedirty's operator, evaluates the submissions, picks some of them for publication, and then typically adds his own short snarky comment about the user post. In this case, Nik published two user submissions about Sarah Jones, a Cincinnati Bengals cheerleader and a school teacher. The user posts intimated, among other derogatory remarks, that Jones had sex with the entire Bengals football team, had sexually transmitted diseases because her boyfriend cheated on her, and had sex with her boyfriend in public places, including her school classroom. In response to the second post, Nik's snarky comment was "Why are all high school teachers freaks in the sack? – nik."

[Just to state the obvious, this isn't my kind of website. I think the site is targeted at a different demographic than middle-aged suburban dads of two. And if the statements are untrue, then they don't belong online. But unlike this judge, my views about 47 USC 230 don't turn on whether or not I think the website is laudatory or has good editorial practices.]

The court's discussion is short, yet it's surprisingly scattered. Pages 8-10 run through a gamut of gripes about thedirty's practices and statements, but the judge doesn't articulate the relevance of these facts (other than providing evidence of the judge's animus towards thedirty). Because the judge does a poor job connecting the facts to his adopted legal standard, we aren't sure exactly what thedirty did to foreclose the 230 immunity. However, and slightly helpfully, the court summarizes its conclusion at the end:

This Court holds by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site. One could hardly be more encouraging of the posting of such content than by saying to one’s fans (known not coincidentally as “the Dirty Army”): “I love how the Dirty Army has war mentality.”

This goofy legal standard ("specifically encouraged development of what is offensive about the content of the site") comes from the 10th Circuit FTC v. Accusearch opinion. Although a few other courts have cited Accusearch favorably, I believe this is the first time a court has favorably cited this specific standard for evaluating 230's immunity. (The language was also quoted in the Backpage case, although the defendant won that case). By adopting a legal standard that no other court has found useful, this judge was clearly reaching.

I personally wouldn't shed a tear if thedirty was wiped off the face of the Internet. As I said, it's not my kind of site. But Congress told judges that they aren't allowed to wipe UGC sites off the Internet just because they don't like them. For that reason, this is a terrible ruling that needs to be fixed on appeal. In the interim, I'm sure the plaintiff's bar will swarm all over this opinion, just like they have with other 230 exceptions. Yay, something we can look forward to.

Other blog coverage of thedirty cases:

* TheDirty Defeats Publicity Rights Claims--Gauck v. Karamian
* TheDirty Defeats Privacy Invasion Lawsuit--Dyer v. Dirty World
* thedirty.com's 47 USC 230 Defense Rejected on Motion to Dismiss--Jones v. Dirty World Entertainment

Posted by Eric at 02:55 PM | Content Regulation , Derivative Liability | TrackBack

January 02, 2012

Nov.-Dec. 2011 Quick Links, Part 1

By Eric Goldman

47 USC 230

* Wang v. OCZ Technology Group, Inc., 2011 WL 4903190 (N.D. Cal. Oct. 14, 2011). In a false advertising suit, the plaintiff argued that the defendant quoted/linked to third party testimonials on the defendant's website and those contributed to the misrepresentations. The defendant counterargued that the third party content was immunized by 47 USC 230 and therefore shouldn't be attributed to it. The court rejects the defendant's use of 47 USC 230 on a motion to strike material from the complaint, saying that it was too premature. Rebecca's coverage.

* News report that, per 47 USC 230, Worcester Telegram & Gazette wasn't liable for user-posted comments to one of its stories. Naturally, the plaintiff was an attorney. Prior blog coverage of lawsuits against newspapers for user-posted comments.

* Unsurprisingly, the plaintiffs appealed their 230 loss in Levitt v Yelp to the 9th Circuit. Prior blog post.

* Parisi v Sinclair, another 230 case, is being appealed to the DC Circuit. Prior blog post.

* An insurance company sued Google for the high search placement of Scam.com and PissedConsumer reports about it. Hello 47 USC 230!

* Techdirt: Dentist Who 'Invoiced' Patient For Negative Reviews, Getting Slammed On Yelp. Prior blog post.

Content Regulation

* Yoder v. University of Louisville, 2011 WL 5434279 (W.D. Ky. Nov. 8, 2011). Yoder graduated from University of Louisville with her nursing degree, but her lawsuit isn't moot due to her damages claim. Prior blog post.

* Roberts v. McAfee, Inc. (9th Cir. Nov. 7, 2011). Due to the single publication rule, failing to remove a press release on the website does not reset a defamation statute of limitations.

* Mattingly v. Milligan, 2011 WL 5184283 (E.D. Ark. Nov. 1, 2011):

Milligan won a hotly contested race for the position of Saline County Circuit Clerk. Following his election, Milligan sent a letter to four employees informing them that he would not retain them. That evening, Mattingly made two posts on Facebook in quick succession stating that bad things were all around and that her heart went out to those ladies who were told they were no longer needed. The posts could be viewed directly by at least 1,300 people, most of whom were residents of Saline County. As Milligan said in his letter of termination, Mattingly's statements were "in a public domain."...As evinced by their comments in response, some who read the posts understood Mattingly to be speaking about Milligan's decision to terminate some employees in the Circuit Clerk's office. These comments included criticisms of Milligan's termination decisions. According to Milligan, six constituents were motivated by Mattingly's posts to call him at home to complain about the terminations. Television news stations, newspapers, and an internet blogger reported on the Milligan's decision to terminate the employees. Viewing the evidence in Mattingly's favor, her Facebook posts touched on a matter of public concern.

* Obsidian Financial v. Cox, 2011 WL 5999334 (D. Or. Nov. 30, 2011). The court held that an Oregon blogger isn’t a journalist for shield law purposes. I think the case got so much attention in part because the judge said unnecessarily derogatory things about bloggers. However, Kash Hill reports that the defendant doesn't appear to adhere to journalistic standards, either. Eric Robinson explains why the judge got to the right legal result. The EFF also contextualizes the ruling.

* Louisiana Crisis Assistance Center v. Marzano-Lesnevich (E.D. La. Nov. 23, 2011). Interesting anti-SLAPP decision.

* India asks Google and Facebook to prescreen UGC to prevent the publication of disparaging content.

* The Smoking Gun reports on a prosecution for posting revenge porn.

Search Engines

* Not surprisingly, myTriggers appealed its loss in its antitrust claims against Google. (Because the case has nothing to do with its legal merits, I'm sure myTriggers will keep appealing losses until they exhaust all appeals). Prior blog post.

* In an expected move, ShopCity filed an antitrust complaint against Google with the FTC.

* buySafe v. Google complaint: As part of a patent battle, buySafe asserts that Google promises better search placement for participants in its Trusted Stores program.

* More insight into the Google Search Quality Raters. Prior blog post.

* On a related note, Bing is going back to hand-picking some search results. Could you imagine how the Google Haters would respond if Google did the same thing?

* Also related? New Scientist: “Google and Microsoft have won a major victory in the fight against such content farms”

* Google is cracking down on parked domains in its search results. Compare Vulcan Golf v. Google.

* Google Knol is another casualty of Google's project cleanup. Remember some Google Haters thought Google Knol would crush other encyclopedic-style projects due to Google favoritism of its own properties? (See, e.g., this article). What say you now?

* Google, Bing and Yahoo shut down fraudulent mortgage advertisers (WSJ, Search Engine Land).

* Search Engine Land: Google Instant Costs Google $65,000 In France. Given all of its prior losses, I had thought Google already was completely illegal in France.

* MediaPost: “consumers’ failure (or refusal) to differentiate between their search and browser bars shaped search behavior in 2011.” I wrote about this same issue...back in 2005!

* Clive Thompson: Why Kids Can’t Search.

Social Networking Sites

* Zoya Co. v. Julep Nail Parlor Co., 2011 WL 5975054 (N.D. Ohio Nov. 29, 2011). Website wasn't passive for Zippo purposes because, among other things, "It includes links that allow customers to “Connect on Facebook” and “Connect on Twitter” and to subscribe to a monthly newsletter." Compare DFSB Kollective Co. v. Tran.

* U.S. v. Cassidy, 2011 WL 6260872 (D. Md. Dec. 15, 2011). Reversing a harassment conviction based on talking a lot about a person on Twitter and in a blog.

* Dimas-Martinez v. State, 2011 Ark. 515 (Ark. Dec. 8, 2011). “Because of the very nature of Twitter as an on online social media site, Juror 2's tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion….Thus, this court has recognized the importance that jurors not be allowed to post musings, thoughts, or any other information about trials on any online forums. The possibility for prejudice is simply too high. Such a fact is underscored in this case, as Appellant points out, because one of the juror's Twitter followers was a reporter. Thus, the media had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court. This is simply unacceptable, and the circuit court's failure to acknowledge this juror's inability to follow the court's directions was an abuse of discretion.”

* U.S. v. Juror Number One, 2011 WL 6412039 (E.D. Pa. Dec. 21, 2011). A juror was fined $1,000 for criminal contempt for using email to discuss the case with other jurors during the trial after being dismissed from the jury.

* State v. Gordon, 2011 WL 5354265 (Ohio App. Ct. Nov. 7, 2011):

if Gordon's use of the computer for personal purposes during work time constitutes theft in office, it would mean that every public official or government employee who sends a personal email, reads a text message, or checks Facebook during working hours would be guilty of committing a felony. We do not believe that is the intended purpose of R.C. 2921.41. Therefore, we find that there was insufficient evidence that Gordon's use of the Village's computers for personal purposes constituted Theft in Office pursuant to R.C. 2921.41

* Woodward v. State, 2011 WL 6278294 (Ala. Crim. App. Ct. Dec. 16, 2011). Inflammatory online comments about a defendant (who allegedly killed a police officer) don’t necessitate a change in venue: “the unsolicited, unreviewed, largely anonymous online comments did not rise to the level of saturated, prejudicial media coverage. Moreover, we believe that any readers of the comments would value those comments at their true worth and not as “news coverage” at all.”

* Facebook “accidentally” blocked Snopes.com as a spammy link. Prior blog post.

* Kash Hill: How Not To Use Facebook To Get Custody Of Your Kids. Horrifying story!

* Gizmodo: Facebook Is Making Us Miserable [and not for the reason you think!]

* The truth about students using Facebook and their grades.

* A quarter of the blogs listed on the inaugural ABA Journal Blawg 100 from 5 years ago are now gone. This blog didn't make the first list, but next month we'll be celebrating our SEVENTH anniversary!!!

* K-12 schools are adopting social media policies restricting teacher-student interaction on social networking sites.

Posted by Eric at 07:49 PM | Content Regulation , Derivative Liability , Search Engines | TrackBack

December 23, 2011

Academic Literature Recap, Q4 2011

By Eric Goldman

I'm mired in grading heck, slogging my way through 146 exams. As a result, blogging has taken a back seat. I have several key items to blog, including the UMG v. Shelter Capital and Ascentive v. Opinion Corp. rulings. I'll get to these and other topics soon.

In the interim, just in time for the holidays, let me call your attention to some recent academic articles that caught my eye this quarter. They may be worth checking out during your holidays. Happy reading!
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Bevin Ashenmiller and Catherine Shelley Norman, Measuring the Impact of Anti-SLAPP Legislation on Monitoring and Enforcement, The B.E. Journal of Economic Analysis & Policy: Vol. 11: Iss. 1 (Topics), Article 67 (2011). The abstract:

We examine changes in environmental monitoring and enforcement activity in the presence of state legislation prohibiting Strategic Lawsuits Against Public Participation (anti-SLAPP laws). Using data on the Clean Air Act from the Environmental Protection Agency’s ECHO database, we find evidence that state inspections increase by almost 50% after a state passes anti-SLAPP legislation. In addition, we find strong evidence that the ratio of findings of noncompliance to inspections more than doubles in the presence of anti-SLAPP legislation.

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danah boyd, Eszter Hargittai, Jason Schultz & John Palfrey, Why parents help their children lie to Facebook about age: Unintended consequences of the ‘Children’s Online Privacy Protection Act’, First Monday, Volume 16, Number 11 - 7 November 2011. The abstract:

Facebook, like many communication services and social media sites, uses its Terms of Service (ToS) to forbid children under the age of 13 from creating an account. Such prohibitions are not uncommon in response to the Children’s Online Privacy Protection Act (COPPA), which seeks to empower parents by requiring commercial Web site operators to obtain parental consent before collecting data from children under 13. Given economic costs, social concerns, and technical issues, most general–purpose sites opt to restrict underage access through their ToS. Yet in spite of such restrictions, research suggests that millions of underage users circumvent this rule and sign up for accounts on Facebook. Given strong evidence of parental concern about children’s online activity, this raises questions of whether or not parents understand ToS restrictions for children, how they view children’s practices of circumventing age restrictions, and how they feel about children’s access being regulated. In this paper, we provide survey data that show that many parents know that their underage children are on Facebook in violation of the site’s restrictions and that they are often complicit in helping their children join the site. Our data suggest that, by creating a context in which companies choose to restrict access to children, COPPA inadvertently undermines parents’ ability to make choices and protect their children’s data. Our data have significant implications for policy–makers, particularly in light of ongoing discussions surrounding COPPA and other age–based privacy laws.

This article stirred up a fair amount of discussion. See, e.g., the CNET coverage.

Some notes about this article:

* no one looks good here: not the kids, parents, Facebook or Congress.
- Parents teach children how to lie to get what they want online
- Gilmore’s law that the Internet interprets censorship as damage and routes around it. COPPA has been a success at getting websites to shun kids 12 and under, but it’s been a complete failure at protecting kids online.
- all of the lying kids are presumptively engaged in criminal activity

* when kids are asked to represent themselves as older than they actually are, do they inadvertently put themselves in more adult situations than they can handle? See my post on mistake of age defenses.

* the policy implications of this report cut in both directions. Pro-regulation: the only way to keep kids off Facebook is to do mandatory age authentication that parents can’t game; or do comprehensive privacy regulation. Anti-regulation: COPPA was a bust, so we should repeal it or structurally modify it.
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Felix T. Wu, Collateral Censorship and the Limits of Intermediary Immunity, 87 Notre Dame L. Rev. 101 (2011). We don't have too many law professor papers really grokking 47 USC 230, which makes this paper instantly noteworthy. Felix presented this paper at our 47 USC 230 fiesta earlier this year. His conclusion:

Intermediary immunity can and should play an important role in protecting speech on the Internet. Immunity prevents the application of laws targeted at original speakers to intermediaries that lack the incentives of original speakers to speak. Immunity can thus be used to avoid the collateral censorship of lawful, socially desirable speech that poses a real or perceived risk of liability to intermediaries. At the same time, immunity can and should be limited. When intermediaries are actually original speakers, and have the incentives of original speakers, immunity is no longer appropriate. Similarly, immunity as to causes of action that are specifically targeted at intermediaries inappropriately prejudges the reasonableness of such liability.

Even ardent supporters of intermediary immunity would be well-served to recognize its limits. When immunity becomes unbounded, it begins to seem increasingly unfair, stimulating calls to cut back on the immunity, or even eliminate it entirely. The framework developed here demonstrates how, without any need to amend current law, we can limit the immunity, while still serving its core purposes.

James Grimmelmann's comments about the paper.
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Sandra L. Rierson, The Myth and Reality of Dilution, 2012 Duke Law & Tech. Rev. ___ (forthcoming 2012). From the introduction:

This Article advances three claims. First, statutory dilution erroneously assumes that the source-identifying function of a trademark is a rivalrous good and one that is dissipated by use. This assumption lacks empirical support, and is assuredly not categorically true despite the contrary principle that underlies the federal dilution statute. If marks are nonrivalrous, as they often are, no cause of action for dilution should exist.

Second, even were particular marks indeed rivalrous, the social and transaction costs imposed by the federal dilution statute would still outweigh the supposed harm to trademark holders. Dilution claims inflict profound anticompetitive burdens, preclude beneficial comparative advertising, and entrench dominant (often oligopolist) firms at the expense of market entrants. Dilution has serious non-economic costs as well and prohibits protected First Amendment speech without justification. For these reasons and others, the federal dilution statute imposes substantially more harm than it (allegedly) prevents.

Finally, the true foundation for the federal dilution statute lies not in alleged economic harms, but rather results from an entirely misplaced fiction of corporate personality. We do not require trademark holders to prove actual economic injury in the context of a dilution claim because, in truth, there is none. Instead, we have granted the holders of famous trademarks the equivalent of a “moral” right to these marks: an extension of the rights granted to a creator of an expressive work in the copyright context. Trademark owners feel vested in their brands, many of which are deliberately anthropomorphized, and the dilution statute reifies and protects these rights as a matter of federal law.

Stacey Dogan's cogent critique of the article. You may recall that in 2007, SCU convened a major academic conference on trademark dilution.
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Lydia Pallas Loren, Deterring Abuse of the Copyright Takedown Regime by Taking Misrepresentation Claims Seriously, 46 Wake Forest L. Rev. ___ (forthcoming 2011). A nice in-depth look into one of my favorite topics, 17 USC 512(f), by one of my favorite authors. The conclusion:

The takedown provisions of the Copyright Act are a powerful tool that copyright owners may use to obtain prompt removal of infringing material from the Internet without judicial assessment of the assertion of infringement. Congress provided a mechanism to deter abuse of this extrajudicial enforcement mechanism in the form of a new cause of action for material misrepresentation. Courts should interpret the requirements for prevailing on a claim of misrepresentation with an eye toward fulfilling Congressional intent. This means using a standard that would hold copyright owners liable not only when they had actual knowledge that the material targeted for takedown was not infringing, but also when the copyright owner should have known if it acted with reasonable care or diligence that the material was lawful. It also means interpreting the injury requirement broadly and awarding attorney’s fees to prevailing plaintiffs. Taking the claims of misrepresentation seriously will shape the behavior of copyright owners who seek removal of material through takedown notices.

Posted by Eric at 07:55 AM | Content Regulation , Copyright , Derivative Liability , Privacy/Security , Trademark | TrackBack

December 01, 2011

Medical Justice Capitulates by "Retiring" Its Anti-Patient Review Contracts

By Eric Goldman

It's been a rough week for Medical Justice, the company that tries to help doctors suppress patient reviews. First, the Center for Democracy and Technology filed an FTC complaint alleging three main points: (1) Medical Justice deceives doctors by selling them contracts that don't work as promised, (2) the effort to suppress patient reviews is unfair under Sec. 5 of the FTC Act, and (3) Medical Justice violates the endorsement/testimonial guidelines through efforts that appear to create fake reviews for doctors. See the CDT announcement.

Second, Public Citizen filed a declaratory judgment action against a dentist who tried to use Medical Justice's contract to suppress a patient's review. The dentist didn't actually sue the patient, but she did send over a draft complaint. The DJ complaint touches on a number of interesting issues, including contract unconscionability and dentist ethics, but the copyright angles are perhaps the most interesting. See the Public Citizen announcement.

Both CDT and Public Citizen acknowledge the DoctoredReviews website, which Jason Schultz, two Berkeley students and I launched a half-year ago as a way of calling attention to the problems being created by Medical Justice's contracts. Although I'm delighted that the website was helpful to them, I'm even more grateful that they took the website's advocacy and turned it into action.

While the FTC complaint and lawsuit work their way through the system, they have already been effective: after going through multiple iterations of its review-suppression contracts, Medical Justice apparently threw in the towel and admitted it is dropping the contracts altogether. Timothy B. Lee at Ars Technica reports:

"While we believe these agreements are honest, ethical, and legal, we are going to use this situation as an opportunity to retire these written agreements used since 2007," MJ CEO Jeffrey Segal told Ars on Wednesday. He claims that MJ will recommend to doctors that they stop using the agreements, and that patients will not be asked to sign any such agreements in the future.

As usual from Medical Justice, there is enough lawyer-mumblespeak in those words to leave open the possibility that they are not completely exiting the contract-distribution business. On Twitter, Timothy reiterated:

They claimed they're retiring all versions of the agreement, and that patients won't be asked to sign anything.

We get stronger words from this MSNBC article:

“We retired the form,” said Dr. Jeffrey Segal, a neurosurgeon and founder of Medical Justice Services Inc., a North Carolina firm that claims to battle medical defamation for a fee. “We probably should have retired the agreement earlier, but today’s the day we did it.” He added that he’s telling his 3,500 members to stop using the contract in the future.

Hooray? This is exactly the outcome we sought with DoctoredReviews, but I don't exactly feel like celebrating. First, in my mind, this result was inevitable; it was only a matter of time until Medical Justice dropped the product line. Their legal position was incoherent and ultimately untenable. Second, given their track record, I'm nervous they are just cooking up something even more diabolical and anti-patient, which might make this victory hollow.

Third, and most importantly, knocking Medical Justice out of the market doesn't solve the underlying problem of vendors improperly using copyright law to control what's said about them publicly. Like moths drawn to light, inevitably other businesses will continue to explore copyright-as-a-reputation-control-mechanism. So we're going to have to keep fighting this issue until some structural change--a clear judicial precedent or legislation--makes it clear that efforts to suppress consumer reviews are unacceptable. Perhaps the results of an FTC investigation or the declaratory judgment action will provide us more certainty.

More on this topic:

* Request for Help: Doctor v. Patient Lawsuits Over Online Reviews
* Updates on DoctoredReviews.com and Medical Justice
* Dentist Pays Sizable Penalty for Not Knowing 47 USC 230--Wong v. Jing
* Announcing DoctoredReviews.com, a Website Against Doctors' Efforts to Squelch Online Patient Reviews
* "Consumer Reviews of Doctors and Copyright Law" Talk Notes
* The Regulation of Reputational Information

Posted by Eric at 08:50 AM | Content Regulation | TrackBack

November 06, 2011

October 2011 Quick Links

By Eric Goldman

Copyright

* MUST READ from Techdirt: MPAA Helped Police Seize 'Pirated' DVDs That Were Actually Fully Authorized. On the topic of errors in determining copyright infringement, the incident a powerful reminder both that even those "in the know" overclaim copyright infringement, and that the targets of such overclaiming can suffer catastrophic losses. That makes the incident an important reminder of the value of procedural safeguards in the copyright setting.

* An amended Capitol v MP3Tunes opinion explains why 17 USC 512 applies to state copyright claims (see pages 14-17). Prior blog coverage.

* Megaupload settles with Perfect 10, and the judge vacated her opinion. Prior blog coverage.

* Permanent injunction issued against Zediva. Prior blog coverage.

* Supplemental briefing requested in Viacom v. YouTube:

The parties are hereby ordered to submit letter briefs, not exceeding ten pages doublespaced, on the following questions: (1) whether and how the red-flag knowledge provision would apply under the Defendants’ “specific” knowledge construction of § 512(c)(1)(A); and (2) whether YouTube’s “syndication” of videos to third parties falls outside the scope of safe harbor protection for activities that occur “by reason of . . . storage at the direction of a user” under § 512(c)(1).

Mark Lemley on Viacom v. YouTube.

* Mick Haig Productions, e.K. v. Does, 2011 WL 5104095 (N.D. Tex. Sept. 9, 2011). In a mass copyright lawsuit, the plaintiff's lawyer issues subpoenas without authorization to identify the defendants and gets sanctioned $10k for it.

* Righthaven LLC v. Newman, 2011 WL 4762322 (D. Nev. 2011):

the restated SAAs are not a simple attempt to clarify or supplement the facts pleaded in the complaint with additional facts that were present at the time of filing. Rather, the restated SAAs present a new set of facts with respect to the alleged copyright ownership, which is impermissible because Righthaven may not amend the defects in the jurisdictional facts themselves. See Newman–Green, 490 U.S. at 830. Next, the restated SAAs' terms substantially contradict the original SAA. Again, defects of allegations may be amended, but not defects in the facts themselves.

* Righthaven LLC v. Inform Technologies, Inc., 2011 WL 4904431(D. Nev. Oct 14, 2011). Upholding personal jurisdiction in Nevada but issuing an order to show cause why the suit shouldn't be dismissed for lack of standing.

* Righthaven v. Newsblaze (D. Nev. Nov. 4, 2011). Another Nevada judge, this time Judge Jones, dismisses a Righthaven case for lack of standing.

* Sam Francis Foundation v eBay complaint: Class action suit against eBay under CA's "resale royalty" statute.

* Google got a good copyright win in a German case over its image search service.

* Wired: U.S. Copyright Czar Cozied Up to Content Industry, E-Mails Show

Search Engines

* Google implements SSL on its search results pages and knocks out search terms from the referrer URL. This may sound like a privacy win, but it also means that Google will increase the gap between its database and the databases of indexed websites. So this is a backdoor way for Google to hoard data for itself...and perhaps increase incentives for advertisers to pay. More on this point from Danny Sullivan: "if Google thinks this needs to be done for privacy reasons, then it needs to block referrers for everyone and not still allow them to work for advertisers. That move is one of the most disturbing, hypocritical things I’ve ever seen Google do."

* Google Buzz is dead, but Google has a 20 year hangover with the FTC, which approved the settlement. Prior blog post. Francoise Gilbert offers some lessons.

* Search Engine Land: Organic Click-Thru Rates Tumbling; Only 52% Click On Page One, Study Suggests

* News.com: Google's whimsical Easter eggs.

Content Regulation

* Darm v. Craig, the Oregon Twitter libel lawsuit, settled.

* Language Line Services, Inc. v. Language Services Associates, LLC, 2011 WL 5024281(N.D. Cal. Oct 13, 2011). Complicated dispute between two competitors. Many claims based on one competitor's blog post were stricken under CA's anti-SLAPP law. Rebecca’s coverage.

* Crookes v Newton, 2011 SCC 47 (Can Sup Ct): Linking to defamatory content on 3rd party site isn't "publication" of linked content.

* Hollywood Reporter: Misappropriation of personality claim in Hurt Locker case gets anti-SLAPPed.

Miscellaneous

* Ninth Circuit will rehear the Nosal case en banc. Prior blog post. Tom O’Toole’s reset.

* Zing Brothers LLC v. Bevstar LLC (D. Utah Oct. 14, 2011: “This specific inclusion of Utah in the drop down list of states, and the website statements that orders are solicited anywhere "inside the USA" is sufficient to establish that this site is "something more" than a non-targeted transaction site.”

* Ferris & Salter P.C. v. Thomson Reuters Corp. (E.D. Mich. Oct. 19, 2011): “There is no basis under Michigan law or, for that matter, in the vast majority of those states whose courts have considered the issue, to deem computer consultants and service providers professionals…. Thus, the Court concludes that—under Minnesota or Michigan law—no professional negligence action will lie against computer engineers and technicians.”

* From the Chronicle of Higher Ed: What Wikipedia Deletes, and Why.

* A new article tries to answer the question, "Why did Wikipedia succeed while other encyclopedias failed?" My Wikipedia article touched on this issue.

* Actors' unions ask IMDb not to publish the age of actors. NY Times coverage.

* Tom O’Toole: ICANN's .xxx sunrise period was a success--for ICANN.

* A behind-the-scenes look at the creation of the Paris Hilton brand:

* I was on TWiL 134 with Denise Howell, Evan Brown and Ernie Svenson. Listen in.

Posted by Eric at 03:35 PM | Content Regulation , Copyright , Derivative Liability , Search Engines | TrackBack

October 21, 2011

Did California Unintentionally (?) Impose New Statutory Duties on Every Blogger? A Post on the Newly Enacted California Reader Privacy Act

By Eric Goldman

California recently enacted the Reader Privacy Act, SB 602. See the EFF announcement.

This new California law seeks to protect online book reader privacy to the same extent reader privacy is protected by libraries, by requiring heightened process before the government or private litigants can get certain types of information about book readers/buyers. As a restriction on government action, I support the concept enthusiastically. Indeed, I count many supporters of this bill as friends (well, maybe not after they read this post). At minimum, I know the effort was well-intentioned. However, I continue to believe this law was misarchitected for the reasons I expressed in my prior blog post on the proposed legislation.

My concerns from my prior post still apply, but this post will walk you through a specific reason why this law could be bad news for people who don't realize their conduct is now regulated. Let's look closely at who is required to comply with the law--recognizing that the statute has a private cause of action that will be enforced by a rapacious privacy plaintiffs' bar. The law's requirements applies to "any commercial entity offering a book service to the public." A "book service" means "a service that, as its primary purpose, provides the rental, purchase, borrowing, browsing, or viewing of books."

OK, clearly this covers Amazon and other online book retailers. But in this day and age, what is a "book" and, more importantly, what isn’t? The statute defines a book as:

paginated or similarly organized content in printed, audio, electronic, or other format, including fiction, nonfiction, academic, or other works of the type normally published in a volume or finite number of volumes, excluding serial publications such as a magazine or newspaper

So, let's play a game and try to spot some book services in the field. Is YouTube a book service? It definitely has "electronic" books, but maybe that's not its "primary" purpose. Scribd? It has lots of books too and plenty of other long-form "book-like" content. iTunes? It has lots of audiobooks. Wikipedia? It markets itself as an online encyclopedia, but maybe it isn't commercial enough? Hmmm....this is a tough game.

But what about blogs? Are they "book services"? Before you discount the latter, consider that many blogs are, in fact, paginated (at least in the URL--see Blog Law Blog as an example). Perhaps mere pagination alone isn't enough; maybe the pagination needs to be essential to the content's organization. Perhaps many bloggers aren't "commercial entities," although I'm sure plaintiff lawyers will argue that a blog with AdSense and some Amazon affiliate links would satisfy that standard. Or perhaps bloggers will be excluded as "serial publications," although the statute could have--and should have--made clear that blogs fit into that exception. In fact, cases like the old It’s in the Cards v. Fuschetto suggest that courts might read the statutory exclusion narrowly on the theory that the legislature knew what blogs were but didn't mention them.

The ambiguity of blogs as "book services" means it’s possible California has imposed a new statutory obligation on bloggers (at least those based in California, but who knows if it will be so limited), and this obligation effectively puts bloggers' houses on the line if they don’t hire lawyers to properly navigate through the statute when the government or private litigants ask for information. Gee, thanks.

Indeed, this law could do more than just sweep in bloggers; it might cover *every* website because of the ambiguity of the term "book" and the concept of pagination. I don't know what "pagination" means in the online environment, but the concept may become more problematic in the near future. See News.com, "Opera proposal brings a book look to the Web." Thus, it seems like the law's attempt to carve out books from the universe of online content could fail, in which case large swaths of web operators become unexpectedly governed by the law--with a swarming privacy plaintiffs’ bar as the reward for the uninformed.

I have long believed that states categorically should not try to regulate the Internet. A law like this, as laudatory as its goals are, helps confirm my beliefs.

UPDATE: Paul Levy doesn't agree with my analysis.

On his point about commercial entities, I'm not sure I agree with Paul that courts will exclude individual operators. After all, we call those folks "sole proprietors." But if it definitely includes "partnerships," does that mean it will include co-bloggers? See my article on co-blogging. UPDATE: Eric Johnson parses the statutory language on this point with some care.

My broader point is that this statute is riddled with ambiguities that raise questions about its coverage. If you think my statutory reading is tendentious, it's my position that a typical Internet privacy lawsuit involves a far more tendentious reading of the applicable statute than anything I could ever imagine.

UPDATE 2: In another example of a possible ambiguity, Eugene Volokh asks if the statute makes it illegal for bookstore owners to tell the police about patron-on-patron crime.

UPDATE: Eric Johnson explains why the statute is "crazy."

Posted by Eric at 09:57 AM | Content Regulation , Privacy/Security | TrackBack

October 14, 2011

Q3 2011 Quick Links, Part 4

By Eric Goldman

Content Regulation

* Lawmakers are putting the squeeze on advertisers to be content police. Meanwhile, VeriSign begged for the right to act as content police before changing its mind.

* Kowalski v. Koster, 2011 WL 4349365 (W.D. Mo. Sept. 15, 2011): “the CDA immunizes Internet service providers and does not create any cause of action under 42 U.S.C. § 1983.”

* SC v Dirty World, 4:11-cv-00392-DW (ED Mo. Sept. 22, 2011). Defendant posting a complaint filed against him & saying "game on" doesn't create an intentional infliction of emotional distress claim.

* Obsidian Finance Group, LLC v. Cox, 2011 WL 2745849 (D. Or. July 7, 2011). Allegedly defamatory statements at obsidianfinancesucks.com are "expressions of opinion protected by the First Amendment"

* Calibra Pictures LLC v Variety, 2011 WL 3612209 (Cal. App. Ct. Aug. 17, 2011). A negative newspaper review is protected by anti-SLAPP laws, even when the newspaper had enticed the plaintiff to spend substantial amounts of money to advertise with it. The allegations in this lawsuit were quite troubling about Variety’s peddling its insider influence and selling movie producers on results it could deliver. Rebecca's coverage.

* BCG Attorney Search v. Kinney, 2011 WL 2936773 (Cal. App. Ct. July 21, 2011). Lawsuit over a Ripoff Report post leads to a successful anti-SLAPP defense.

* US poker players turned into refugees by online gaming ban. Partially related: was Full Tilt Poker a Ponzi scheme?

* Carleton Hotel v Gladstone (complaint filed June 15, 2011). Hotel sues author of TripAdvisor review (for accusing the hotel of a bedbug infestation).

* Parisi v Sinclair appealed. Prior blog post. In addition, in Parisi v. Sinclair, 2011 WL 3705141(D.D.C. Aug 23, 2011) (NO. CIV. 10-897 RJL), one of the book authors was dismissed from the case for lack of personal jurisdiction.

* Useful primer on how to identify John Doe defendants.

* Hollywood, Esq.: Hot New Hollywood Trend: Crazy Defamation Lawsuits.

* Aaron Swartz is being prosecuted for a mass download from the JSTOR database.

* American Booksellers Foundation for Free Expression v. Sullivan, No. 10-193 (D. Alaska June 30, 2011). Alaska's baby-COPA law unconstitutional.

Social Networking Sites

* Bemis v. Bemis, 2011 WL 3335202 (Conn. Super. Ct. July 12, 2011). In a custody dispute involving 13 year old Alyssa, the court order imposed the following requirement: "Each parent shall view Alyssa's Facebook page once per week. If Alyssa is unwilling to share 100% access, she shall be denied computer and smart phone access except for use of a computer for schoolwork which shall be supervised."

* Held v. Ferrellgas, Inc., 2011 WL 3896513 (D. Kan. Aug. 31, 2011): “Plaintiff testified at his deposition that his coworker began subjecting him to a hostile environment prior to his termination in April 2009. At his deposition, Plaintiff could not recall whether he posted anything on Facebook that may be relevant to this case. Defendant claims that information from Plaintiff's Facebook page during Plaintiff's tenure at Ferrellgas is relevant. This court agrees. Further, it appears that Defendant is attempting to mitigate Plaintiff's privacy concerns by allowing Plaintiff to download and produce the information himself, rather than providing login information. Indeed, Defendant itself notes that it is not seeking unfettered or unlimited access to Plaintiff's Facebook, but rather limited access during the relevant time frame. As such, Defendant's motion to compel regarding the Facebook information is granted.”

* U.S. v. Fumo, 2011 WL 3672774 (3rd Cir. Aug. 23, 2011):

Not unlike a juror who speaks with friends or family members about a trial before the verdict is returned, a juror who comments about a case on the internet or social media may engender responses that include extraneous information about the case, or attempts to exercise persuasion and influence. If anything, the risk of such prejudicial communication may be greater when a juror comments on a blog or social media website than when she has a discussion about the case in person, given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger.

Yet while prohibiting and admonishing jurors from commenting—even obliquely—about a trial on social networking websites and other internet mediums is the preferred and highly recommended practice, it does not follow that every failure of a juror to abide by that prohibition will result in a new trial. Rather, as with other claims of juror partiality and exposure to extraneous information, courts must look to determine if the defendant was substantially prejudiced.

* Missouri State Teachers Association v. Missouri (Mo. Cir. Ct. Aug. 26, 2011). Enjoining part of Missouri's Amy Hestir Student Protection Act. Prior blog post.

* D.J.M. v. Hannibal Public School District #60 (8th Cir. Aug. 1, 2011). A student's IM messages threatening to harm other students supported school discipline of the student, even if the messages were exchanged off school property.

* Kowalski v. Berkeley County Schools, 2011 WL 3132523 (4th Cir. July 27, 2011):

school administrators suspended [Kowalski] from school for five days for creating and posting to a MySpace.com webpage called "S.A.S.H.," which Kowalski claims stood for "Students Against Sluts Herpes" and which was largely dedicated to ridiculing a fellow student....we conclude that in the circumstances of this case, the School District’s imposition of sanctions was permissible. Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which "materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others."

* Oddee: 9 Most Bizarre Facebook Related Crimes

* NYPD puts cops on the Facebook beat.

Wikipedia

* Wikimedia released its 2011-12 annual plan. One of its seven big goals: "The declining participation of seasoned Wikipedia editors must be reversed." As the the detailed report explained: "Declining participation is by far the most serious problem facing the Wikimedia projects: the success of the projects is entirely dependent upon a thriving, healthy editing community." To explain why that's such a challenge, see my article, Wikipedia’s Labor Squeeze and its Consequences. The plan also notes: "Recently we have seen a general decline online in the growth of unique visitors and in page views in the United States."

* In partially related news, Wikipedia is doing a broader rollout of its AbuseFilter tool.

* The Wikipedia Editor Survey from April 2011 provides more evidence of the challenges to replenishing the ranks of active editors.

Posted by Eric at 07:00 AM | Content Regulation , Evidence/Discovery , Privacy/Security | TrackBack

October 04, 2011

Article on Bypassing Geographic Content Restrictions Using Borrowed IP Addresses

By Eric Goldman

Marketa Trimble (UNLV Law) has posted a full copy of her article, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation. I've highlighted this article before, such as in my coverage of the Internet Law Works-in-Progress where I heard her present it.

The paper relates to problems created by efforts to reinstantiate geographic borders on the Internet. In particular, where content owners have sought to restrict distribution of their copyrighted works online to only people located to specified geographies (as measured by the users' IP addresses), third party service providers in those countries offer to rent out "local" IP addresses to let non-local users bypass the geographic restrictions. I hate the name "cybertravel" to describe this phenomenon (a point I have stressed to Marketa), but the topic is crucial to cyberlaw. It implicates a wide swath of cyberlaw doctrines, including national efforts to restrict objectionable content; Lori Drew-style server misuse based on false registration information; and the efficacy of efforts (like the Protect IP Act) to suppress rogue foreign websites. Marketa does a super job engaging this complex topic, so this is an article worth checking out.
______

The abstract:

The internet is valued as a medium that both defies and defeats physical borders. However, cyberspace is now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by internet users based on their geographical location – a territorial partitioning of the internet. A number of authors have discussed the advantages and disadvantages attached to raising borders in cyberspace; however, as opposed to the earlier literature, this article focuses on an internet activity that is designed to bypass the partitioning of cyberspace and render any partitioning attempts ineffective. The activity – cybertravel – permits users to access content on the internet that is normally not available when they connect to the internet from their geographical location. By utilizing an internet protocol address that does not correspond to their physical location, but to a location from which access to the content is permitted, users may view or use content that is otherwise unavailable to them. Although cybertravel is not novel (some cybertravel tools have been available for a number of years), recently the tools allowing it have proliferated and become sufficiently user-friendly to allow even average internet users to utilize them. Indeed, there is an increasing interest in cybertravel among the general internet public as more and more website operators employ geolocation tools to limit access to content on their websites from certain countries or regions.

This paper analyzes the current legal status of cybertravel and explores how the law may treat cybertravel in the future. The analysis of the current legal framework covers copyright as well as other legal doctrines and the laws of multiple countries, with a special emphasis on U.S. law. The future of the legal status of cybertravel will be strongly affected by three current developments: the desire of countries and many actors on the internet to erect borders on the internet to facilitate compliance with territorially-defined regulation, the need for attribution of acts on the internet to particular actors, and the ongoing transition from the IPv4 to IPv6 protocol that is promising permanently assigned or embedded internet protocol addresses. This paper makes an attempt to identify arguments for making or keeping certain types of cybertravel legal, and suggests legal, technical and business solutions for any cybertravel that may be permitted.

Posted by Eric at 09:29 AM | Content Regulation , Copyright , Trespass to Chattels | TrackBack

September 26, 2011

Stock Trading Message Board Protected by 47 USC 230--Deer Consumer Products v. Little

By Eric Goldman

Deer Consumer Products v. Little, Index No. 650823/11 (NY Sup. Ct. Aug. 31, 2011)

SeekingAlpha is a message board for stock traders. This is their second appearance on the blog. In Desai v. Clark, a SeekingAlpha author brought a defamation suit against the author of disparaging comments to his post. That lawsuit ended quickly with a motion to dismiss.

This case involves several third party-authored reports on SeekingAlpha discussing the business practices of Deer Consumer Products, a Chinese manufacturer of small home appliances. Deer sued both an author and SeekingAlpha, alleging defamation. Because the claims relate to third party-authored posts, SeekingAlpha is obviously not liable under 47 USC 230.

Deer mounted a lackluster attempt to work around 230's immunity. The court discussed allegations that SeekingAlpha pre-reviews and "handpicks" third party posts for publication, but those facts push towards the immunity, not away from it. The court continues that "plaintiff failed to submit any evidence or allegation indicating that SAL is anything other than a publisher of third party content on its website. Plaintiff's own submissions show that SAL selects, edits, and organizes the articles written by others....There is simply no allegation that SAL created or developed the alleged defamatory statements and ideas contained in the defamatory report." Further, the court says there's no need for discovery to figure out the relationships between SeekingAlpha and its authors, and thus the court dismisses without leave to amend.

Other New York state court rulings that have interpreted 47 USC 230 broadly include Shiamili v. Real Estate Group, Reit v. Yelp and Finkel v. Facebook.

Posted by Eric at 08:32 AM | Content Regulation , Derivative Liability | TrackBack

September 25, 2011

Failure to Delete Third Party Comments Supports a Malice Finding in Defamation Case--Tanner v. Ebbole

By Eric Goldman

Tanner v. Ebbole, 2011 WL 4425540 (Ala. Civ. App. Ct. Sept. 23, 2011)

Competitive animosity can be found in every industry, but it sometimes amazes me just how sharp it can. Today's case involves competing tattoo shops located across the street from each other in Mobile, Alabama. The newcomer apparently wanted to knock off Ebbole, the incumbent, and therefore allegedly went on a campaign to smear its rival, including orally telling folks that the rival had communicable diseases. Also, Tanner, a business associate of the newcomer (an employee? an independent contractor? the case doesn't resolve this characterization), allegedly made a MySpace posting questioning her skills. Ebbole sued for slander, libel and invasion of privacy. She alleged that the defendants' campaign had hurt her bottom line, causing her income to drop from no less than $28k/year to $20k that year. (The defendants' economics don't look much better--the company claims a net worth of -$28k, its proprietor claims a net worth of $12k, and Tanner claims a net worth of -$3k. Aren't they effectively judgment-proof???) It's clear the tattoo business isn't the most lucrative.

The jury found in favor of the plaintiff, but this is where things get especially weird. The jury awarded zero compensatory damages plus $200k in punitive damages against the company, $100k in punitive damages against the company's owner and $10k in punitive damages against Tanner, the business associate. This is a rare jury finding of defamation. However, the award of punitive damages when there are zero compensatory damages poses some doctrinal problems, so the court ordered the jury to try again. Not surprisingly (especially given the updated detailed jury instructions on how to award nominal compensatory damages), the jury came back with $1 compensatory damages against each of the three defendants plus the same punitive damages awards.

Also odd was the court's discussion of malice. The court ruled the plaintiff was a public figure, so the plaintiff had to show defendants' malice to support the defamation claim. I am especially interested in its application to Tanner's MySpace posting. The court quotes the posting and it looks pretty timid:

You have taken what I love and sh-t all over it ... allegedly.

Current mood: disgusted

Category: blogging

I came across this video during my recent health inspection of all [things]. I was certified to do microdermal anchoring in October of 2008.... [Ebbole's method] is disrespectful to what I do and what I love ... allegedly. I ask you, people of the interweb ... what should I do about it?

FYI: [Ebbole's method] is NOT the method I use or would suggest to be used for any implant procedure.

I'm failing to see anything defamatory in this statement at all. Tanner says that Ebbole's method is "disrespectful" and isn't the method Tanner would use or recommend. The former seems like a straight-up opinion, and the latter appears to be a truthful statement of Tanner's beliefs. What am I missing? The appeals court rejected Tanner's arguments claiming protection as opinion because she didn't provide any citations...hmmm. It's unclear who posted the referenced video, but even if Tanner posted it, if the video truthfully depicts Ebbole at work then I'm not sure what's the problem with it either.

In response to Tanner's posting, some users made negative comments. For example, one comment said "I'll be happy to kill [Ebbole]." A terrible comment, but not defamatory. However, other comments are arguably defamatory, such allegations that Ebbole didn't properly do age authentication and had communicable diseases.

However, due to 47 USC 230, none of the user comments should be attributed back to Tanner, and unless Tanner made the video, any defamatory material in the video shouldn't be attributed back either (if all she did was embed a third party video). Sadly, 47 USC 230 isn't mentioned at all in the opinion, and I fear it was never raised in the lawsuit at all.

On the question of Tanner's malice, the court continues:

The trial court was apparently of the view that malice could be inferred from Tanner's failure, after receiving a demand letter from Ebbole's counsel, to retract her statements or to delete the third-party comments that were posted on her Web page. That view has some support.

Ugh. Inferring malice from a site operator's failure to remove third party comments should be preempted by 47 USC 230 because it treats the operator as a publisher/speaker of those comments. It's disappointing the opinion doesn't acknowledge the issue at all.

The court does remand the case back to the trial court to reconsider the defendants' remittitur requests and whether the punitive damage awards are excessive in light of the nominal compensatory damages.

Blog coverage of other tats-related legal issues:

* Copyright and Tattoos: Hangover II Injunction Denied, But the Copyright Owner Got Some Good News Too--Whitmill v. Warner Bros. (Guest Blog Post)
* Tattoo Advertising/Human Billboards
* Copyright in Tattoos

Plus check out my 2005 contracts exam.

Posted by Eric at 10:16 AM | Content Regulation , Derivative Liability | TrackBack

September 20, 2011

Web Vendor Dispute Gets Ugly--Ground Zero Museum v. Wilson

By Eric Goldman

Ground Zero Museum Workshop v. Wilson, 2011 WL 3758582 (D. Md. Aug. 24, 2011)

Disputes like these make me wonder if we can't find some way to get along. Suson runs a non-profit museum focused on the September 11 tragedy. Wilson runs an Internet shopping cart service. Wilson offered to help Suson with the museum website by adding shopping functionality. Wilson also helped Suson get free web hosting from a third party vendor, A-1 Hosting. Then, over what seemed to be a minor thing, the relationship soured in 2009. Wilson turned off the shopping cart functionality and reverted the website back to a prior version; Suson claims Wilson also took down the museum website. Wilson subsequently complained that the museum website continued to use his IP, and he sent an ineffectual takedown notice to A-1 Hosting. Wilson also allegedly badmouthed the museum to A-1 Hosting, allegedly causing them to stop providing free hosting. Wilson also set up a quasi-gripe site, cam-scam.com (now down), and allegedly a fake MySpace page, that said or implied unflattering things about Suson.

From a relatively simple commercial dispute involving a non-profit enterprise comes a cascade of litigation, including complaints and countersuits. I could seriously write my entire Internet Law exam from this situation. It touches on almost every topic I cover in class. This isn't the worst breakup I've seen, but it appears that the parties are using litigation as a sledgehammer, especially given the low dollars and stakes at issue.

1201 Circumvention. Suson claims Wilson committed a 1201 circumvention by administratively logging into the museum website and making changes in excess of his authorization. The court rejects this claim, saying "using a password or security code to access a copyrighted work, even without authorization, does not constitute 'circumvention' under the DMCA" and citing to several other cases (including the IMS and Egilman cases). The court also says that even though Wilson resigned his technical role, his continued login to the website was authorized until Suson changed the password. Finally, disabling the shopping cart wasn't a circumvention because the functionality lived on Wilson's site, not Suson's.

Computer Fraud & Abuse Act. The CFAA claim fails on summary judgment because "Plaintiffs have produced no evidence to back up their assertion that Wilson damaged the website or that his actions caused at least $5,000 in economic damages in one year." The only allegation of harm is that Wilson "stripped the metatags" (whatever that means) when he reverted the website back to the prior version, and the court can't make heads or tails of that. Suson also hired an SEO to redo the metatags for $8k, but the court can't consider this evidence either because it wasn't properly authenticated and the payments took place over more than one year (and thus perhaps didn't trigger the $5k/year CFAA threshold).

Trespass to Chattels. This was a very confused discussion. The court says the "chattel identified in Plaintiffs' trespass claim is the GZM website, or alternatively specific webpages within the site. Plaintiffs contend that Wilson deprived GZM of possession of its website and damaged the chattel by inserting a redirect command." This seems to conflate access to a virtual asset (the web page) and use of a tangible asset, the computer server. The court focuses on the virtual asset, but that should be impossible to "trespass," or any trespass claim should be preempted by copyright law. Reinforcing the court doesn't understand what it's talking about by lumping together three very disparate items, the court continues:

Although websites are not tangible property in the traditional sense, courts in Maryland, New York, and elsewhere have been willing to recognize claims for conversion or trespass to chattels involving certain digital things, such as websites and domain names and computer networks.

The court then cites cases finding conversion of domain names and a "website," plus the Cyber Promotions case where the court was clearly talking about trespass of the physical server. On this basis, the court says that copyright law doesn't preempt the trespass to chattels claim. Too bad the court couldn't make a more fine-grained distinction between tangible and intangible assets, because the trespass of an intangible asset claim should be preempted by copyright law.

The court then further finds a prima facie trespass to chattel because Wilson dispossessed Suson of the "current" website when he reverted to the older website version. However, whether Wilson acted with the requisite scienter has to go to the jury. Wilson's response that he co-owed the copyright in pieces of the website isn't availing; even if true, he can't dispossess his co-owners of their rights.

Note the unexpected result here: the CFAA claim failed and the common law trespass to chattels claim survived. How often do you see that? But this result occurs only because the court mixes its metaphors and treats the website owner's lack of virtual access to administrate the website as a physical dispossession.

Defamation. Because of the nature of the virtual interactions, the court struggles with deciding which law applies to the defamation claim. The court says:

Applying lex locus delicti is inconclusive because the websites Wilson created were accessible on the Internet from any location and the record on summary judgment does not identify the location of A1-Hosting or the unidentified third parties when they received the emails with alleged defamatory statements, so the exact place of publication for these statements is unknown.

The court finally decides that New York law applies because "Suson lives in New York, the museum is located there, and the bulk of Plaintiffs' business activities take place there. In addition, the alleged defamatory statements relate to Plaintiffs' business operations in New York. Accordingly, the brunt of the damage to Plaintiffs' reputation or business interests will be experienced in New York, and New York has the most significant relationship to the alleged defamation."

The court rejects defamation against all of the allegedly defamatory statements. If you're an Internet defamation junkie, it's worth reading the opinion.

Tortious Interference. This claim, based on Wilson's communications to A-1 Hosting, fails because Wilson didn't do anything improper.

512(f) Bogus Takedown Claim. Wilson didn't violate 512(f) because his takedown notice to A-1 Hosting was ineffectual. The court doesn't cite the Amaretto v. Ozimals opinion which reached an identical conclusion.

Copyright Co-Owner Counterclaim. The court lets Wilson plead that he made such contributions to the museum website that he became a co-owner, and therefore he is entitled to an accounting of profits. This is why you never let anyone modify your website code without a written agreement spelling out their rights.

Related Disputes. This is just the latest blog post on website co-ventures gone horribly awry. Other posts in the series:

* Holding on to a Domain Name to Gain Leverage in a Business Dispute Can Constitute Cybersquatting -- DSPT Int'l v. Nahum
* Web Developer Didn't "Convert" Website--Conwell v. Gray Loon
* Taking Intangible Electronic Files is Criminal Fraud--NM v. Kirby
* Cautionary Tale of Website Co-Ownership--Mikhlyn v. Bove
* Another Cautionary Tale of Joint Website Ownership--TEG v. Phelps

Hey people, when you have vendors help run your website, PLEASE dot your i's and cross your t's. When the shit hits the fan and the contract isn't in place or clear enough, the resulting litigation fusillade can destroy your life.

Posted by Eric at 06:19 AM | Content Regulation , Copyright , Licensing/Contracts , Trespass to Chattels | TrackBack

September 14, 2011

Request for Help: Doctor v. Patient Lawsuits Over Online Reviews

By Eric Goldman

I'm doing some research, and I'm hoping you can help. I'm trying to comprehensively catalog doctor vs. patient lawsuits over online reviews of the doctor. I'm equally interested in suits by other health care professionals; I've noticed dentists are surprisingly litigious. I've included lawsuits against intermediate publishers where the underlying litigation involves a patient review. I've also included suits where the review author was a family member of the patient, but I'm excluding other posts by non-patients.

Here's the list I've developed so far:

* Nevyas v. Morgan, 309 F. Supp. 2d 673 (E.D. Pa. 2004)
* Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 672 (9th Cir. 2005)
* Barrett v. Rosenthal, 146 P.3d 510 (Cal. Sup. Ct. 2006)
* Gilbert v. Sykes, 53 Cal. Rptr. 3d 752 (Cal. App. Ct. 2007)
* Alvi Armani Medical, Inc. v. Hennessey, 629 F. Supp. 2d 1302 (S.D. Fla. 2008)
* Biegel v. Norberg, San Francisco Superior Ct. case # CGC-08-472522 (filed Feb. 25, 2008)
* Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal. App. Ct. 2008)
* Reit v. Yelp, Inc., 29 Misc.3d 713 (N.Y. Sup. Ct. 2010)
* Wong v. Jing, 189 Cal. App. 4th 1354 (Cal. App. Ct. 2010)
* Rahbar v. Batoon, San Francisco Superior Ct., case # CGC-09-492145 (filed Sept. 2, 2009) and case # CGC-10-502884 (filed August 20, 2010)
* McKee v. Laurion Case # 69-DU-CV-10-1706 (Minn. Dist. Ct. Apr. 28, 2011)
* Lynch v. Christie, Slip Copy, 2011 WL 3920154 (D. Me. Sept. 7, 2011)
* Pensler v. Hostetler, 10 CH 35876 (filed 8/19/10); Pensler v. Cuevas, 10 CH 35238 (filed 8/16/10); and Pensler v. Bender, 09 CH 18628 (filed 6/10/09) (all in Cook County Court)
* Henry v. Does 1-100, CIV095020; plus the apparently related Henry v. Carson, CIV1002670, and Henry v. Tamara M., CIV1003042 (all in Marin Superior Court)

Three other cases that are close but factually distinguishable:

* Townson v. Liming, 2010 WL 2767984 (Tex. App. Ct. 2010)
* Lifestyle Lift Holding Co. Inc. v. Prendiville, 768 F. Supp. 2d 929 (E.D. Mich. 2011)
* Darm v. Craig, Case 1107-08823, Oregon Circuit Court

Please email me if you have any suggestions of other cases I should check out.

Posted by Eric at 08:38 AM | Content Regulation , Derivative Liability | TrackBack

September 08, 2011

Blogger Can Display County Seal in Blog Posts--Rothamel v. Fluvanna County

By Eric Goldman

Rothamel v. Fluvanna County, Va., 2011 WL 3878313 (W.D. Va. Sept. 2, 2011)

I don't use images on this blog, but many bloggers include images to help illustrate their posts. It's not uncommon, then, for bloggers to include government seals or other insignia in posts discussing the government. I've never seen an empirical study of readers' perceptions when presented with such displays, but I find it hard to believe that readers are confused in the slightest.

In Fluvanna County, Virginia (part of the Charlottesville metro area), Bryan Rothamel (a blogger at http://flucoblog.com) included the county seal when blogging about county stories. The county Board of Supervisors deserve mad props for apparently having solved all of the major problems facing them, because Rothamel's seal usage quickly emerged on their priority list ahead of other, obviously more trivial, issues. In response, the county passed an ordinance with the following restriction:

Sec. 2–7–2. Seal Deemed Property of the County; Unauthorized Use Prohibited.

The seal of Fluvanna County shall be deemed the property of the County; and no person shall exhibit, display, or in any manner utilize the seal or any facsimile or representation of the seal of Fluvanna County for non-governmental purposes unless such use is specifically authorized by law. (Ord. 9–15–10; Ord. 2–16–11)

Violations were punishable by up to 30 days in jail, a $100 fine or both.

Rothamel brought a First Amendment challenge to the statute, which the court grants. The court notes that the statute restricts speech and can't survive even intermediate scrutiny because it's not narrowly tailored. The court notes: "This sweeping prohibition encompasses a substantial number of uses of the seal that would not suggest government endorsement, such as the display on a website of an exact copy of an official County news release that contains the image of the seal next to the text, or the publication in a newspaper of a photograph of a County official delivering a speech from a podium upon which the County seal is attached and visible."

The court compares this regulation with the regulations governing federal seals and related logos, noting that they restrict uses that might communicate sponsorship or endorsement. This statute wasn't so targeted, and I don't think anyone truly believes that readers will think a blog post was sponsored or endorsed by the county because the post displays the seal. The state of Virginia intervened in this lawsuit because its seal restriction is similar to the county's; it appears Virginia's seal restrictions would not survive a challenge either. Similarly, this case brought to mind the FBI's ridiculous position that Wikipedia couldn't display the FBI seal. The Wikipedia entry recaps the situation, including then-Wikimedia GC Mike Godwin's withering response. This case suggests that the FBI's position indeed wasn't defensible.

The court also rejects the county's self-serving designation of the seal as "county property." I'm not sure exactly what that's supposed to mean. Perhaps such designations matter when dealing with tangible assets. When applied to intangible assets, it is just another way of restricting speech.

The net effect is that, under the First Amendment, bloggers should be free to display government seals or insignia in their blog posts about the government agency. With my newly confirmed freedom, I'm now displaying the seal of Fluvanna County, Va., which, as county seals go, is actually quite pretty (those are persimmons at the top):

God bless America!

Posted by Eric at 09:51 AM | Content Regulation , Trademark | TrackBack

September 07, 2011

Reflections on the DOJ-Google Half-Billion Deal over Illegal Pharma Ads (July-August 2011 Quick Links, Part 2)

By Eric Goldman

I haven't previously written on the DOJ's bust of Google over illegal pharmaceutical ads, partially because I couldn't reconcile my views about this enforcement action. From my vantage point, this action equally fits into two dichotomous stories, and these stories may not be mutually exclusive.

Story #1: Google's massive revenues and profits are significantly inflated by illegitimate ads. Here, we learn that Google was raking in millions of dollars from ads for illegal pharmaceuticals. We also know Google has struggled with gambling ads (1, 2), ads for bogus ringtones, ads that trademark owners consider infringing, and other problematic ads.

The sources of Google's revenues may be like the log that no one wants to turn over to see what's under it. I bet that if we could get a detailed line-item breakdown of where Google's revenues come from, more than a few folks would be queasy about some key revenue categories.

Over the years, Google has taken some baby steps to screen out bogus advertisers from its network, but I wonder if Google's "Must. Be. Scalable!" mantra--and the concomitant profits that come from willful blindness--has inhibited Google from undertaking some needed, but necessarily manual, steps to police its ad network more aggressively.

Story #2: The incumbent DC regulators view Google's emerging power as unwanted competition to their regulatory power, and like typical incumbents, the DC regulators are closing ranks on the start-up--meaning they have become hellbent on busting Google, legitimately or not. To me, the Google Buzz settlement is a clear example of how DC regulators are unnecessarily flexing their muscles against Google.

Some details made me wonder if the DOJ misused its power in this enforcement action:

* the Rhode Island's US Attorney's post-announcement attack on Larry Page, declaring that he knew of the illegal ad sales. Given the DOJ's subsequent rhetoric, it makes me wonder if the DOJ threatened Page with criminal prosecution. If nothing else, the personal prosecution threat would have a powerful in terroram effect to goad Google to take a deal, warranted or not.

To be clear, the non-prosecution agreement doesn't explicitly protect Larry Page, but I think a personal prosecution is super-unlikely at this point. The agreement might insulate his acts on the company's behalf, and I can't imagine the DOJ will want to spend further prosecution resources after getting such a big score already. So the net effect is that this deal should end the matter.

* the deal was structured as a civil forfeiture. Note the DOJ (or any other federal agency) would have encountered significant problems bringing a civil action against Google over the third party ads. 47 USC 230 would have preempted the action, and with a half-billion dollars at issue, Google surely would have litigated any statutory ambiguities rather than roll over. Therefore, as Peter Henning explains, the government avoided pursuing a doctrinally questionable criminal prosecution and simultaneously bypassed a likely 47 USC 230 immunity of any civil action. Pretty tricky navigation by the DOJ.

* finally, Google disgorged both its revenues AND ITS ADVERTISERS' REVENUES from the illegal ads. I can't think of any comparably sweeping remedy in any other advertising lawsuit (am I forgetting something?). I simply can't believe the DOJ could have gotten a judge to order a similarly expansive disgorgement. Thus, it appears the DOJ asked for way more cash than the law actually allows--and yet a pliable target forked it over.

If Story #2 is true, the deal could be an unholy pact: Google bought the freedom of its CEO for a check that is a pinprick compared to its cash on hand; and the DOJ got a huge taste of Silicon Valley's wealth and publicly blare that justice was served--even if the DOJ vastly exceeded current law to get there.

One more reason that story #2 could be plausible. The DOJ portrays this as a case about illegal pharmaceuticals, but it imprecisely lumps together a variety of factually different situations into that category, including:

* pharmaceuticals that are never legal in the United States
* fraudulent pharmaceuticals, i.e., sugar pills sold as brand X
* counterfeit pharmaceuticals, i.e., bioequivalent pharmaceuticals sold as brand X but made by someone else
* prescription pharmaceuticals that aren't fraudulent or counterfeit but are being sold without a prescription
* prescription pharmaceuticals that aren't fraudulent or counterfeit that being sold with a prescription, just not one recognized by US law

Note that the consumer harm in the last 3 circumstances is unclear. It's possible that some consumers win in each of those cases by getting the desired pharmaceutical at a cheaper cost than US drugs. Such consumer wins don't make the pharmaceutical sales legal; but it raises the question of whether the US government was pursuing the best interests of its citizens

One final point: the DOJ press release describes the illegal pharmaceutical advertisers as "rogue" websites. That's an interesting characterization. It seems to tie into the DHS ICE's domain name seizures and the proposed PROTECT IP Act. At minimum, the DOJ enforcement action reinforces how desperately DC regulators want Internet companies to do more of their policing work. Also, perhaps the deal's template shows how the DOJ thinks it can achieve PROTECT IP irrespective of whether Congress enacts the law.

More links to check out:

* the non-prosecution agreement
* the DOJ's announcement
* the general NY Times article announcing the deal
* Also in the NY Times, Peter Henning parses some of the deal's legal oddities
* Techdirt's skeptical coverage
* Plaintiffs' lawyers will be partying with the non-prosecution agreement. The first wave: stockholders' lawsuits.

Posted by Eric at 02:10 PM | Content Regulation , E-Commerce , Marketing | TrackBack

September 05, 2011

Overreactive Guidance for Social Networking Du Jour -- NLRB Edition

[Post by Venkat Balasubramani]

NLRB Memo - Memorandum OM 11-74 (Aug. 18, 2011) ("Report of the Acting General Counsel Concerning Social Media Cases")

There has been a steady drumbeat from employment lawyers warning about the increasingly watchful eye of the National Labor Relations Board over so-called "social media terminations"--where a company fires an employee for making a statement about the company on Facebook or Twitter. The NLRB recently issued a report regarding the cases it was involved in. I took a look at the report and was surprised at the types of things the NLRB says that private employers cannot fire employees for. (The report is a quasi-advocacy document. Courts have some room to reject the NLRB's position, but it will obviously be accorded some deference as the agency in charge. Correction: it does not reflect the views of the NLRB, but those of its General Counsel, who is responsible for prosecuting cases before the NLRB.)

Protected activity: Here are a few statements that the NLRB said was "protected activity" and therefore could not justify a firing:

- salespeople who complained about the quality of snacks furnished by a car dealership-employer at a client event;
- employees who complained about the employer's tax withholding practices (and the fact that they owed money);
- social services non-profit's employee who posted that her coworkers did not do enough to help clients;
- hospital employee who complained about a co-worker's absences;
- employee who posted a negative remark about a supervisor in response to the supervisor's request for an incident report.

Unprotected activity: Here are a few that the NLRB said were not protected activity:

- posting that a Wal-Mart assistant manager was being a "super mega puta";
- Tweets by a journalist that criticized other media outlets and some with sexual content (after being warned);
- bartender who posted about an employer's tipping policy (in response to a non-employee question);
- employee who posted on her Senator's wall about government contracts her employer had secured;
- employee who posted about mentally disabled clients.

Overly broad social media policies: The NLRB also offered guidance on when employer social media policies were overly broad:

- prohibition on communications that constitute "embarrassment, harassment or defamation" of the employers and staff members and a similar prohibition "against statements that lack truthfulness or that might damage the reputation or goodwill of the [employer], its staff, or employees";
- prohibition on employee use of microblogging tools on their own time "to talk about company business on their personal accounts; from posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy . . . [and] from posting any pictures or comments involving the company or its employees that could be construed as inappropriate";
- prohibition on employees posting pictures of themselves "which depict the company in any way, including a company inform, corporate logo . . . .";
- prohibition on "disparaging" remarks when discussing the employer or supervisors, coworkers and/or competitors.
__

The NLRB's 24 page document purports to provide guidance and promises to be "of assistance to practitioners and human resource professionals," but it left me scratching my head. The report should come with a strong disclaimer that anyone who reads it may find themselves more confused about social media terminations.

I get that employees have a right to organize, and employers are prohibited from interfering with the activities of employees which fall into this category, but the report reflects a hyper-nuanced view of what constitutes a complaint about the conditions of someone's employment and what constitutes concerted activity. In the case involving the salesman that was fired for complaining about the quality of snacks the dealership furnished for a customer event, the NLRB reasoned that since the salespeople work on a commission basis and since customers may be influenced to buy cars depending on the quality of snacks that are provided, complaining about the quality of snacks can actually be considered a complaint about a condition of employment. Say what??

In the case where employees complained about their employer's tax withholding practices (a legitimate gripe, obviously), the NLRB says that the employees engaged in a conversation that "embodied 'truly group complaints' but also contemplated future group activity":

a former employee posted on her Facebook page a statement, including a short-hand expletive, that expressed dissatisfaction with the fact that she now owed money. She also asserted that the Employer's owners could not even do paperwork correctly. One employee . . . responded to this posting by clicking "Like."

Wow! Someone clicked on a "like" button on a stray Facebook comment. Such an amazing, hearfelt show of solidarity! Interestingly, enough, the bulk of the activity that the NLRB is concerned about seems to take place on Facebook, which we all know is a veritable bastion of serious discussions about life issues. Kashmir Hill makes a similar point about the extreme nuance underlying the NLRB's positions in her post ("When You Can and Can't Fire Employees for Social Media Misbehavior"):

If you decided above to fire the BMW worker [the car dealership case], wrong answer. In that case, the employee was "vocalizing the sentiments of his coworkers" and expressing concerns that had already been raised by sales people at a staff meeting. That’s concerted activity. If you decided to fire the Wal-Mart employee [the "super mega puta" case], right answer. Even though other co-workers chimed in with words of emotional support, the employee was expressing his or her own gripe. It was not concerted.

The NLRB comments on the permissible bounds of social media policies was equally confusing. The NLRB takes issue with allegedly vague language in policies which prohibit "inappropriate," "disparaging," "embarrassing" comments about a company or its brand, because of the chilling effect it would have on employee communications. One would think that these are all legitimate concerns companies may have about employee communications that would affect how the companies are perceived in the public. But the NLRB's view seems to be that prohibiting your employees from airing your dirty laundry in public may run afoul of labor laws. The NLRB goes so far as to say that an employee policy that prohibits the use of "the company name, address, or other information on their personal profiles" is "unlawful." On the other hand, the NLRB alludes to the fact that a simple limitation in a policy that advises employees that a policy should not be construed to "apply to Section 7 activity" would be sufficient to save a policy. This would not seem to result in much clarity for either the employer or the employee.

There could be a couple of possible employer reactions to the NLRB's stance.

Employers may react strongly and start limiting social media access from the workplace or from workplace equipment or networks for personal use. We all know that the bulk of social networking activity occurs from the workplace, and employers may well conclude that if they are going to be held to strict standards in their employment decisions, they may as well make it hard for employees to participate at all. (I don't know the answer to whether the NLRB would crack down on a blanket prohibition on the basis it somehow restricts concerted activity. This would be ironic.) Concerned employers may also decrease their social media participation. In some of the cases, the discussions between employees also involved customers or clients. It puts the employer in a pretty awkward position to have to tolerate employee comments about workplace issues if they are taking place in front of customers or clients. The issue of customer or client perception did not seem like it was of any significant concern to the NLRB.

In reading through the memo, I had the nagging thought that someone at the NLRB is taking Facebook way too seriously. As with most social media regulatory efforts by the government my reaction is: "don't they have something better to do with their time?"

This concludes this week's edition of overreactive guidance to social networking. Next up, we'll discuss the Financial Industry Regulatory Authority Regulatory Notice 11-39, which gives the NLRB memo a run for its money.

[I hope everyone is having a safe and relaxing Labor Day.]

Other coverage:

When You Can and Can't Fire Employees For Social Media Misbehavior (Kash Hill)

Posted by Venkat at 08:32 AM | Content Regulation

August 24, 2011

Court Affirms Robust ISP Protection For Blocking Bulk Emails -- Holomaxx v. Microsoft/Yahoo

[Post by Venkat Balasubramani]

Holomaxx v. Microsoft, 2011 WL 3740813 (N.D. Cal. Aug, 23, 2011) [pdf]
Holomaxx v. Yahoo, 2011 WL 3740827 (N.D. Cal. Aug, 23, 2011) [pdf]

Eric and I both previously posted on the Holomaxx cases, where Holomaxx sued Yahoo and Microsoft for blocking or filtering bulk emails transmitted by Holomaxx. The court granted motions to dismiss filed against Holomaxx with leave to amend. ("Bulk Emailers (Mostly) Lose Three 47 USC 230(c)(2) Rulings--Holomaxx v. Microsoft/Yahoo & Smith v. TRUSTe.") Holomaxx filed an amended complaint, but it produced no better results. The second time around, the court permanently shuts the door on Holomaxx's claims, finding again that Section 230(c)(2)(A) insulates the ISP's filtering decisions and dismissing without leave to amend.

The result was not terribly surprising, given that the court was initially skeptical of Holomaxx's vague allegations that the ISPs harbored some sort of bad faith when they blocked Holomaxx's bulk emails. As Laura Wise notes in her recap of the oral argument, Judge Fogel asked Holomaxx for its "absolute best argument" that Microsoft and Yahoo harbored some sort of bad faith intent, and he was not swayed by what Holomaxx had to offer. Judge Fogel concludes that the Messaging Anti-Abuse Working Group guidelines which Microsoft and Yahoo allegedly deviated from are not an "industry standard," so Microsoft or Yahoo could be faulted for not following them. He also concludes that the fact that the filtering efforts stopped and re-started is not in any way indicative of bad faith. While he acknowledged some tension between Section 230's robust grant of immunity and Judge Fisher's concern (in Zango v. Kaspersky) that a service provider may abuse filtering immunity by blocking content for "anticompetitive purposes or merely at its malicious whim," the court says that allowing Holomaxx to proceed with only its vague allegation of bad faith would undermine Section 230:

To permit Holomaxx to proceed solely on the basis of a conclusory allegation that [the ISP] acted in bad faith would essentially rewrite the CDA.

The court also dismisses Holomaxx's claims under the Wiretap Act and the Stored Communications Act based in part on Holomaxx's failure to articulate how exactly Microsoft and Yahoo violated these statutes in the course of their filtering efforts. (These statutes are excluded from Section 230 so the court deals with them separately.)

__

As with blocking or filtering decisions targeted at malware or spyware, complaining that the ISP was improperly filtering bulk email (spam) is likely to fall on unsympathetic ears. It would take a lot for a court to allow a bulk emailer to conduct discovery on the filtering processes and metrics employed by an ISP. (Hence the rulings on a 12b motion, rather than on summary judgment.) Here the court reiterates the "good faith" standard for 230(c)(2) is measured subjectively, not objectively. That puts a heavy burden on plaintiffs to show subjective bad faith. Eric's reaction to the Zango case--where the Ninth Circuit held that anti-spyware company Kaspersky's decision to classify Zango as adware was protected--largely alludes to this result:

this opinion is terrific news for vendors of anti-spam/anti-spyware/anti-virus services. Although we have long suspected that they would be protected under 230(c)(2), this opinion codifies their immunization as Ninth Circuit law. As a result, these vendors should continue to have a high degree of freedom to make judgments about how to best serve their customers. On the flip side, this opinion confirms that anyone blacklisted by these software vendors can’t use judicial proceedings to change the classification. Fortunately, most reputable vendors offer an extra-judicial mechanism to correct their misclassification errors.

The only difference is that Microsoft and Yahoo are ISPs, and they could use unfettered filtering discretion to block competitive content, links, or maybe even throttle users (or skew search results). Holomaxx's complaint did not credibly raise any such concerns, so the judge dismisses them.

Previous posts and other coverage:

* Bulk Emailers (Mostly) Lose Three 47 USC 230(c)(2) Rulings--Holomaxx v. Microsoft/Yahoo & Smith v. TRUSTe
* Amendment was futile (Laura Wise)

Posted by Venkat at 11:13 AM | Content Regulation , Derivative Liability , Spam

August 23, 2011

Consumer Reviews at "Local" Review Sites Don't Support Jurisdiction--Wilkerson v. RSL

By Eric Goldman

Wilkerson v. RSL Funding, LLC, 2011 WL 3516147 (Tex. App. Ct. Aug. 11, 2011)

It doesn't bring me a lot of joy to blog another Internet jurisdiction case, but the dispute's substantive issues are important enough to blog this case.

Wilkerson's daughter won the California lottery. RSL approached her to buy the future payouts for a lump sum. The daughter took RSL's deal, but things didn't go well. In response, her dad posted negative reviews of RSL at Yahoo Local and Yelp. In both cases, the review pages allegedly indicated RSL's location, and Wilkerson's reviews indicated he knew the company was located in Houston. He also tried to drum up interest in a class action suit. RSL sued in Texas state court, and Wilkerson interposed a jurisdictional defense.

The majority starts by wisely bypassing the Zippo test. For the number of times it's cited, the Zippo test is often unhelpful and unenlightening. Citing several cases, the majority says the Zippo test would apply to the review site operator but not an individual reviewer:

to the extent that the interactive features of Yahoo! and Yelp are the creations of the owners and operators of those websites, the interactive nature of a large-scale ubiquitous internet presence cannot be fully imputed to an individual user such as Wilkerson for the purpose of determining whether he established minimum contacts with Texas sufficient to justify exercising jurisdiction over him....Thus for purposes of analyzing personal jurisdiction over an individual in a case arising from his internet activity, we decline to reflexively apply the sliding-scale analysis of the interactivity of a commercial internet website to determine jurisdiction over the individual website user.

Amen. This year I added the Illinois v. Hemi 7th Circuit jurisdictional ruling, where the court expressly rejected the Zippo test. Perhaps we're seeing the leading edge of anti-Zippo trend. Personally, I wouldn't shed a tear if the Zippo test were retired--permanently.

The majority instead turns to the "purposeful availment" test. The majority cites the Calder v. Jones case and notes that it looked at the "effects" of the defendant's action, but it doesn't call its test the "Effects test," and I think that affects the result. A consumer reviewer doesn't avail itself of the laws of the state its target is located in, but it might intentionally cause tortious effects in the state. I think the majority mucked this distinction. For example, the majority says:

The evidence merely shows that he performed an internet search for RSL, and that he posted reviews and comments on two different websites where he found an opportunity to do so. Wilkerson made only one express reference to RSL's presence in Texas, stating in his Yahoo! review that phone calls made to offices other than RSL's Houston office are transferred to Houston.

For many courts, this would be enough to satisfy the Effects Test; but it's useless to a purposeful availment test. The dissent points out the problems with the majority's (non-)test.

The majority says that it can't impute the review sites' or review readers' actions against Wilkerson. So even if the review sites aggregate local content that's likely to be read by local readers, the court says it can ignore that. The majority also rejects a lot of RSL's evidence showing geographic intent, saying it wasn't properly authenticated. On that point, the majority says:

The present-day reality of the ever-evolving internet is that the content seen by any particular user is often customized by the website based on the geographic location of the person viewing the website, or the geographic location of the same person's computer servers, or other characteristics associated with the person visiting the webpage. Jurisdiction therefore may not be exercised over a nonresident user based on his use of a website based upon the mere evidence that the website incorporated Texas-related content of an unknown origin, particularly when that evidence only shows the website's content as viewed by a different user at a later time in a presumably different location.

I love this sentiment! Content views may be customized, and it is the responsibility of the plaintiff to address that possibility. I'm glad the majority is asking these kinds of questions. However, under the Effects Test, properly applied, none of this matters. If the plaintiff can show what readers in its local trading area saw, it can show what effect the content may have on those readers. As the dissent says:

Wilkerson's posts were made on websites that distribute reviews of local Houston businesses, specifically referred to RSL's Houston office and to specific employees in the Houston office, made factual statements that complained of RSL's Texas activities as a provider of financial services, and were directed to a medium that would be more likely to reach Texas readers than readers in other states, specifically including actual and potential customers of RSL and of other financial services providers in the Houston area. Furthermore, Texas was the focal point of Wilkerson's posts and of any harm suffered.

Although the majority's analysis is clearly off, it's hardly unprecedented that courts are denying jurisdiction over allegedly defamatory reviews. See the list below. I just wish we had a reliable jurisdictional test that reached that result so we could get there without doctrinal hashes.

I'm not sure where this ruling leaves RSL. Texas just enacted a new anti-SLAPP law with some teeth, so RSL may not want to be in Texas courts anyway. On the other hand, if RSL moves the lawsuit to California, it will run into California's strong anti-SLAPP law. RSL's business is risky enough; perhaps RSL shouldn't gamble any more with potential SLAPPs!

For an example of a more traditional ruling involving a more engaged campaign by the defendant, see Chambers v. Chambers, 2011 WL 3512140 (D. Md. Aug. 8, 2011):

Under the facts alleged, Defendants intentionally directed electronic activity into Maryland with the purpose of causing injury to a Maryland resident. See Silver v. Brown, 382 F. App'x 723, 729–730 (10th Cir. 2010) (holding that defendant's blog, set up in direct response to a business deal and accusing plaintiff of wrongdoing, constitutes an intentional act expressly aimed at the forum state with knowledge that the injury would be felt in that forum). They posted on websites, sent emails to Maryland residents, and created blogs that all contain information regarding a Maryland estate proceeding. Dennis Chambers intentionally sought out Maryland residents when making the alleged defamatory statements about Plaintiff in an effort to harm her reputation. Bonnie Chambers created “HonestChief?” to publicize the Orphans Court case and her disagreement with Plaintiff's handling of it, as evidenced by the blog's content and by the consistent posting of its URL on websites with notably large audiences. These activities go beyond merely “placing information on the Internet.” ALS Scan, 293 F.3d at 712. The manifested intent of Defendants' alleged conduct is to reach Maryland citizens—including Plaintiff--creating a cognizable cause of action in Maryland. See ALS Scan, 293 F.3d at 712. Under the alleged facts, Defendants must “reasonably anticipate being haled into court [here] to answer for the truth of [their] statements.” See Calder, 465 U.S. at 790. Accordingly, Defendants' motion to dismiss for lack of personal jurisdiction will be denied.

Related posts:

* Two Recent Social Media Defendants Avoid Personal Jurisdiction
* Web Host Gets Easy 47 USC 230 Win in Catfight--Johnson v. Arden
* Three Gripers Get Disadvantageous Jurisdictional Appellate Rulings in Defamation Cases
* Ripoff Report Sues Blogger, Loses on Jurisdictional Grounds--Xcentric Ventures v. Bird
* Defamation Lawsuit Against Blogger Dismissed on Jurisdictional Grounds--Fahmy v. Hogge
* Connecticut Blogger Not Subject to Texas Jurisdiction--Healix Infusion v. Helix Health
* Blog Defamation Lawsuit Lacks Jurisdiction--TrafficPower.com v. Seobook.com

Posted by Eric at 01:56 PM | Content Regulation , Evidence/Discovery | TrackBack

August 16, 2011

A Close Look at Missouri's "Amy Hestir Student Protection Act" (Guest Blog Post)

By guest blogger Sydney Muray, Certified Paralegal and editor of http://www.paralegal.net/

In the 1980s, a 12-year-old girl named Amy Hestir was manipulated by her seven-grade music teacher into an abusive sexual relationship that lasted over a year. While Amy suffered severe emotional trauma as a result of her experiences, the teacher simply transferred from district to district until he retired. The relocation of sexually predatory teachers around the state to avoid accountability was a practice so common that the Missouri Department of Education termed it “passing the trash.” At the age of 40, Amy Hestir gave her story in testimony to the Missouri legislature in support of legislation sponsored by Sen. Jane Cunningham that sought to impose stricter limitations on contact between teachers and students. Cunningham fought for the legislation for five years before it was passed unanimously as SB54 and named the “Amy Hestir Student Protection Act.”

The bill, signed into law by Gov. Jay Nixon on July 14, 2011 and effective Aug. 28, 2011, contains provisions that are intended to prevent future incidents of "passing the trash" in four main ways.

1) Mandatory reporting requirements and elevating investigations to the Children’s Division from the local district.

2) The creation of a special task force (“Erin’s Law”).

3) Stronger background checks and penalties for teachers with recorded sexual abuse.

4) Mandated creation of new district-level communication policies and a state-level restriction on website use:

S162.069. By January 1, 2012, every school district must develop a written policy concerning teacher-student communication and employee-student communications. Each policy must include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child's legal custodian, physical custodian, or legal guardian. Teachers also cannot have a non work-related website that allows exclusive access with a current or former student.

The portion in bold has received national attention as a “Facebook ban,” although Facebook is neither the target of the legislation nor the only site covered by the law. “Exclusive access” is defined by the bill as any website that requires mutual consent by both the teacher and student in order to access information, making the range of the bill extremely broad. Work-related websites can still be used if both the school’s administrators and the parents or guardians of the child have access to all the information being exchanged, but schools and teachers will be walking a fine line by trying to use any site which falls under the new law.

The ultimate scope of the law will depend on the way in which it is enforced, but the language of the bill could easily be extended to all social networking sites, and even educational services like Blackboard. The issue is that even if a site is work-related, its content and the exchanges between teachers and students need to be available to administrators and parents or guardians, and many of these services have built-in features for private messaging and sharing restrictions which might run afoul of the new law. This establishes one more barrier for educators who want to incorporate modern applications with communication components into their classes. Even if enforcement is not so severe, educators and administrators will be trying to make decisions about how new technologies fit into the vague parameters of the bill at their own risk.

As such, there is an understandable concern that this may have the unintended consequence of stifling attempts to innovate and modernize primary and secondary education by effectively banning many popular services and placing others in uncertain territory. The American Civil Liberties Union has also voiced concerns that the bill’s language may be so broad as to ban teachers simply having an account on a social networking site also used by students, although Sen. Cunningham has said that the law is only intended to regulate direct communication and is not supposed to stop teachers from just having accounts or communicating with students publicly.

The response by teachers to the bill has been mixed. Many object to what they see as a presumption of guilt and a sign of mistrust. Additionally, some teachers have expressed concern that this bill will deny students the opportunity to communicate with them about sensitive matters through mediums that they feel comfortable using. The students in the Missouri school system today grew up with social networking sites, and they are in many ways reliant on them. However, the most extreme concern is that the lack of privacy in correspondence could deter students from telling a teacher they trust about the very kind of abuse that the bill is trying to address.

On the other hand, some teachers have expressed support for the new requirement imposed by the law on districts to create unambiguous guidelines for contact of any kind between teachers and students. Besides the concern about improper contact, there is a broader issue about the changing relationship between students and teachers. The increased use of social networking has placed many educators in a difficult gray area where it is unclear where the boundaries should lie. The policies and guidelines of local districts simply have not kept pace with technological advancement, making the mandate to create new and clear policies a reasonable requirement.

The disconnect in the bill is that it handles private communication between teachers and students in radically different ways depending on the medium. S162.069 categorically prohibits private correspondence through websites, but in the first two sentences, it only mandates that districts draft policies to deal with all other venues of communication. There is no evidence that social networking and other websites are uniquely risky or prone to abuse in comparison to any other form of communication, but they are treated in a completely different way. The most obvious explanation is that the decision was not based in risk assessment, but in a generation gap in how people communicate. The adoption of new communication technology is highly uneven between different age groups, and the average parent or legislator is less likely to see redeeming qualities in a technology that they do not use. The specific restriction of website use does not show a distrust of teachers, but distrust in a venue of communication that has been the subject of a recent wave of sensationalist news and with few passionate advocates in the Missouri legislature.

This is not the first time Missouri wrestled with the issue of trying to update old laws and regulations to reflect modern communication technology, nor is the Missouri General Assembly alone in taking bold moves. In 2006, a 13 year-old Missourian girl named Megan Meier committed suicide after being the victim of a cruel hoax and harassment through MySpace by Lori Drew, the mother of one of her peers. The response to the tragedy was nationwide and especially visceral because Missouri’s harassment laws at the time did not cover the online bullying directed at Megan. The inability to get a conviction under state law was infuriating to many, and prompted a campaign of harassment and retaliation. Many jurisdictions also reacted strongly, passing laws seeking to prevent a similar tragedy. The most questionable and dangerous response did not come from the Missouri General Assembly itself, but from the federal effort to prosecute Mrs. Drew under 18 U.S.C. § 1030, also known as the “Computer Fraud and Abuse Act.” While the attempt ultimately failed, many legal experts warned that the logic the prosecution used in applying the CFAA would have effectively criminalized the violation of terms of service (ToS) agreements, adding criminal penalties to what has been an exclusively civil matter. Had that set a precedent, users could have faced federal charges for not following the lengthy and rarely-read agreements that are a part of nearly every online service.

In the cases of both Hestir and Meier, young Missourian students were preyed upon by adults in gross betrayals of common trust. Both cases were invoked to justify either the introduction of new legislation or the reapplication of older legislation in order to address potential misuse of the Internet. They are reminders that both the federal and state governments often fail to account for changing conditions or new technologies until after a tragedy occurs, and responses to tragedies are less likely to be carefully evaluated for unintended consequences or be narrowly tailored. The new law in Missouri displays this by packaging long overdue reforms with an unfortunately vague and inconsistent restriction on the use of modern communication tools by educators and students.

Posted by Eric at 04:11 PM | Content Regulation | TrackBack

Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech--TV v. Smith-Green

By Eric Goldman

T.V. v. Smith-Green Community School Corp., 2011 U.S. Dist. LEXIS 88403 (N.D. Ind. Aug. 10, 2011).

It appears we will get a steady stream of legal rulings about teens being teens while playing around with Facebook accounts. The last time we blogged on this topic, In re Rolando S., the court whiffed by holding that joyriding someone else's Facebook account was felonious identity theft. In this case, involving school discipline for racy Facebook photos, the court reaches a more sensible result.

The court summarizes the background:

During a summer sleepover, plaintiffs -- 16 year old T.V. and 15 year old M.K. -- posed for some raunchy photos which they later posted online [to Facebook, MySpace or Photobucket]. When school officials caught wind of the saucy online display, they suspended both girls from extracurricular activities for a portion of the upcoming school year.

The court describes the photos:

Prior to the first sleepover, the girls bought phallic-shaped rainbow colored lollipops. During the first sleepover, the girls took a number of photographs of themselves sucking on the lollipops. In one, three girls are pictured and M.K. added the caption "Wanna suck on my cock." In another photograph, a fully-clothed M.K. is sucking on one lollipop while another lollipop is positioned between her legs and a fully-clothed T.V. is pretending to suck on it.

During another sleepover, T.V. took a picture of M.K. and another girl pretending to kiss each other. At a final slumber party, more pictures were taken with M.K. wearing lingerie and the other girls in pajamas. One of these pictures shows M.K. standing talking on the phone while another girl holds one of her legs up in the air, with T.V. holding a toy trident as if protruding from her crotch and pointing between M.K.'s legs. In another, T.V. is shown bent over with M.K. poking the trident between her buttocks. A third picture shows T.V. positioned behind another kneeling girl as if engaging in anal sex. In another picture, M.K. poses with money stuck into her lingerie -- stripper-style.

I haven't seen the actual photos, but I can draw four conclusions from this court's description:

1) This isn't really my kind of humor, so I totally missed the joke. But then again, I wasn't part of the intended audience.

2) As a parent, I probably would be disappointed if my daughter posted photos like this when she becomes a teen.

3) Members of Generation X and older believe photos like this could be debilitating to the teens in later life. It's less clear that photos like this actually will debilitate Gen Y/millennials (I believe these girls just make that group, although there's some debate about the cutoff for Generation Y) and subsequent generations. After all, a non-trivial percentage of Gen Y will have posted similar photos, so what seems odd to Gen X may seem natural to Gen Y.

4) These photos depict teenage girls testing their limits and exploring sexual topics. As the girls themselves explained, "the photos were taken and were shared on the internet because the girls thought what they had done was funny and 'wanted to share with [their] friends how funny it was.'" We might wish they did so in a different fashion, and we certainly would advise them not to post the photos to a social networking site, but the girls are engaged in the kind of trial-and-error behavior we expect from teenagers.

Overall, while taking and posting the photos was probably an ill-advised choice, I can excuse those judgments as teens being teens. However, I cannot excuse the immature response of the school administrators, who disciplined the girls for the photos even though they had nothing to do with the school. The girls were active in school extracurricular activities (perhaps not surprisingly, one of them was a cheerleader), but these photos had no connection to those activities; and the photos caused some unwanted nattering in the halls--as would any off-campus development subject to the heightened drama of high school. As the court says edgily, "at most, this case involved two complaints from parents and some petty sniping among a group of 15 and 16 year olds." In all other respects, the slumber parties and resulting photos were off-campus activities in every sense of the word.

So why did the administrators feel like they had to do something about them? As we've seen too many times before, school administrators (probably Gen Xers or baby boomers) apparently overreacted by applying their rules to a new generation developing its own--and different--set of rules. I remain hopeful that we'll see fewer of these lawsuits as school administrators stop freaking out about the Internet. Reminder to other educators: the girls' conduct presented a serendipitous teaching opportunity for all students, including the girls. Seize it, don't squelch it!

The remaining question is whether the administrator overreaction violated any constitutional rights. The court answers yes because the photos were Constitutionally protected, and therefore disciplining the students for the photos violated the students' First Amendment rights. The court virtually gnashes his teeth in reaching this conclusion:

I wish the case involved more important and worthwhile speech on the part of the students, but then of course a school's well-intentioned but unconstitutional punishment of that speech would be all the more regrettable.

Still, the judge correctly notes:

The provocative context of these young girls horsing around with objects representing sex organs was intended to contribute to the humorous effect in the minds of the intended teenage audience.

Kudos to the judge for recognizing that these photos have significant speech implications, however questionable their wisdom or taste. Teens are going to misuse their social networking accounts, but the type of limit-testing they engage in is exactly what we need the First Amendment to protect.

On the other hand, I agree with the court that a lengthy federal court battle over the photos and the resulting discipline overdramatizes the situation. The school administration should have quickly backed off. Because they didn't, the resulting costs of this litigation were a bummer for everyone. We may need more tailored adjudicative processes to cost-effectively resolve overreactions to social networking site posts.

Eugene Volokh's take on the case:

I think this ruling is correct, given Tinker and Fraser. What children did as home is subject to discipline by those with authority of the home — the parents — if those authorities think that the behavior is improper. But government-run schools don’t have, and shouldn’t have, authority to control students’ speech 24/7, even when the students are outside school. And while it’s possible that they may discipline students for such speech when it truly substantially disrupts behavior inside the school, there has to be a pretty high bar for that, a bar that the school’s arguments didn’t clear.

A few related blog posts (a list that amply demonstrates the legal system currently isn't effective at dealing with teens being teens online):

* Logging Into Someone Else's Facebook Account and Posting Messages on Their Friends' Walls Could Be Identity Theft -- In re Rolando S.
* Cyberbullying and Restorative Justice [a Long-Delayed Post on DC v. RR]
* Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation--Doninger v. Niehoff (Guest Blog Post)
* Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages -- In re Alex C.
* Private Facebook Group's Conversations Aren't Defamatory--Finkel v. Dauber
* Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
* Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber
* Teenager Busted for Creating Fake "News" Story

Posted by Eric at 08:40 AM | Content Regulation | TrackBack

August 10, 2011

Defamation Claim Over Stock Board Discussion Easily Dismissed--Desai v. Clark

By Eric Goldman

Desai v. Clark, 2011 WL 3359971 (N.D.Cal. August 2, 2011)

I've been seeing a steady stream of defamation and related claims over discussions in stock message boards. This case is representative of what I'm seeing.

Ketan Desai is a consultant in the biotech space and a contributor on the financial news site SeekingAlpha. In 2008, he wrote two posts predicting bad business developments for a publicly traded company, Myriad Genetics. (Post 1; Post 2). His first post disclosed that he shorted the stock at $55, and his second post says he covered the put (apparently profitably).

Christopher Clark, who works as "an analyst in the RS Growth Team" for investment bank RS Investments, posted the following comment under the pseudonym "Seadog":

Being right or making money. On May 13th (when you told us so) the stock closed at $41.25. After the negative news it never broke below $45. How exactly did you make money on this put trade again? And you doubt the rationale that they will be profitable in FY09? They are roughly break even right now and have substantial net outstanding losses. The diagnostics business is hugely profitable (45% operating margins when not spending on their DTC campaign, 40% when they are) and growing rapidly. When you have sustainable revenue, cut spending on dead programs and pay no taxes, that falls to the bottom line. $60mm/45mm shares = $1.33 from cutting that program alone. Nothing in their pipeline warrants a trial near the scale that they undertook with Flurizan—that spend level is not coming back. Stick with collecting degrees, Doc. May try English next—one datum leads but many data lead.

Desai objected to several aspects of this post (including the snarky personal attack--there's a grammar nazi in every crowd), but the allegedly false factual assertions by Clark/Seadog were (1) the implied price of his put (he put at $55, not at $41.25) and (2) implying that Desai was skeptical about the company's profitability when Desai had expressed skepticism about the company's burn rate. Desai also complained about an internal email circulated by RS Investment's general counsel calling him a "delusional egomaniac."

The judge only needed 1 paragraph to explain why they statements weren't actionable opinions, and she dismisses without leave to amend. The opinion doesn't say it expressly, but the judge seems to understand the nature of stock discussion boards and the sometimes overheated discussion that takes place there. By those standards, this exchange was unusually erudite. The opinion doesn't acknowledge that another reader pointed out Seadog's alleged mistake on the put pricing in a subsequent comment, so perhaps any errors were sufficiently corrected by the community on the spot.

The judge ruled on the defendant's motion to dismiss, not an anti-SLAPP motion. This perplexed me because this case looked like a SLAPP and the easy dismissal suggests that an anti-SLAPP motion also would have easily prevailed--with the benefit that Desai would be on the hook for defense counsel fees. It looks like an implicit failing of anti-SLAPP doctrine that defense counsel apparently bypassed an anti-SLAPP motion even when facing what looked to me like a SLAPP.

Interestingly, the court sidesteps the possibility that one or both of the litigants had conflicts of interests in their discussion about Myriad Genetics. SeekingAlpha had a field for conflicts disclosures on main posts, and Desai looks like he appropriately disclosed his put. I don't know if Clark or RS Investment had any interests in Myriad Genetics, but "Seadog" didn't provide any identifying information on the site or disclose any conflicts in the comment. A defamation lawsuit isn't the right vehicle to hammer conflicts of interest, and the FTC and SEC have been remarkably laissez-faire about that as well--especially interesting in the FTC's case given its overall push against inauthetic content online.

Posted by Eric at 07:24 AM | Content Regulation | TrackBack

August 03, 2011

Newspaper's Discussion About Trademark Owner Protected as Nominative Use--1 800 GET THIN v. Hiltzik

By Eric Goldman

1 800 GET THIN v. Hiltzik, 2:11-cv-00505-ODW -E (C.D. Cal. July 25, 2011)

I'm sure any trademark experts reading this post are scratching their heads at the blog post title. Newspapers discussing a trademarked product qualify for the nominative use defense. Well, duh. Why is that even a question that needs to be answered?

Well, because sometimes trademark owners bring asinine lawsuits. In particular, this case may be part of an emerging trend in the surgical procedure industry to misuse trademark law as a weapon against unwanted criticism. See, e.g., the Lifestyle Lift cases (1, 2).

This case involves the Lap Band surgical procedure. 1 800 GET THIN is a marketing agent for the procedure. The LA Times has repeatedly criticized the Lap Band. In one passage, it arguably implied that 1 800 GET THIN provided the procedure rather than just marketed it. Even against a pushover defendant, this is a weak point to gripe about. But against a well-regarded journalistic institution like the LA Times, there's simply no point in tangling in court.

Yet, 1 800 GET THIN still cranked up the machinery of justice. Predictably, the court expends few words in tossing the false designation of origin claim on nominative use grounds. The court also tosses the Lanham Act false advertising claim because the news article was editorial content, not advertising. Rebecca digs into the doctrinal details.

This outcome was so predictable that most trademark litigators probably would have advised 1 800 GET THIN that it had no chance of winning and it should not even try. In fact, the LA Times may very well extract some cash out of 1 800 GET THIN for bringing such a weak case. The case doesn't mention an anti-SLAPP motion, but this case seems tailor-made for anti-SLAPP protection. Otherwise, it's a strong candidate for a Lanham Act fee shift and perhaps Rule 11 sanctions.

Despite the "sun rising in the East" nature of this case's legal outcome, I still wanted to highlight it because it reminds us that trademark law's overexpansive sweep creates several problem. (I discuss these concerns in more detail in my paper, Online Word of Mouth and its Implications for Trademark Law). First, to the extent such a thing exists, this was an example of trademark bullying. The LA Times isn't an easy target for bullying, but smaller defendants will just capitulate in the face of 1 800 GET THIN's trademark threats.

Second, the LA Times didn't make a trademark "use" at all. We should have never reached the nominative use defense because there was no trademark use in the first place. The fact that courts aren't gatekeeping at that level lets weak trademark cases get further than they should. In this situation, relying on the nominative use defense works fine in the Ninth Circuit but is dicey in other circuits that don't cleanly recognize a nominative use defense.

Third, if the LA Times doesn't get 100% compensation from 1 800 GET THIN, then a travesty still occurred even though the LA Times prevailed in court.

A final thought. Having seen so many such lawsuits, I must admit that I become more suspicious of any trademark owner who resorts to completely meritless trademark litigation. It makes me wonder what they are trying to hide. In this case, the fact that the Lap Band and 1 800 GET THIN desperately grasped at legal straws makes me more skeptical of the legitimacy of their offerings.

Posted by Eric at 09:37 AM | Content Regulation , Marketing , Trademark | TrackBack

July 15, 2011

17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices--Amaretto v. Ozimals

By Eric Goldman

Amaretto Ranch Breedables, LLC v. Ozimals, Inc., 2011 WL 2690437 (N.D. Cal. July 8, 2011).

I generally like furry critters, but I'm beginning to hate the virtual horses and virtual bunnies for their deleterious effect on Internet law. A prior ruling in this case held that Amaretto (the horses) couldn't claim 17 USC 512(f) when Ozimals (the bunnies) sent takedown notices to Second Life that Second Life didn't act upon. Now, in this ruling, the court says that 17 USC 512(f) preempts all state law claims based on the takedown notices, agreeing with language in the Diebold and Lenz 512(f) cases.

I must confess that copyright preemption baffles me generally. Consistent with that, I couldn't tell if this ruling is relying on statutory preemption (17 USC 301), conflict preemption or field preemption. It might just be my shaky reading skills, but the opinion seemed to imply it was all three simultaneously.

There is a key difference between this case and the Diebold/Lenz cases, however. In those cases, the court said 512(f) was a viable claim. Here, the court has already said 512(f) isn't viable for Amaretto. So Amaretto rightly pointed out that this ruling would leave Amaretto remediless. The court expressly acknowledges this result, saying: yup, that's exactly what federal preemption means.

Amaretto also cited to the recent Rock River ruling, which indicated that 512(f) didn't preempt a tortious interference case. The court distinguishes the Rock River case by saying that case did not involve a 512(c)(3) takedown notice, so the notice never fell within 512(f)'s ambit in the first place and thus 512(f)'s preemption wasn't triggered. The court unfortunately doesn't reference or distinguish Smith v. Summit Entertainment, which survived various state law claims in addition to a 512(f) claim. I don't remember a preemption challenge in that case, but that's perhaps because the case was really about trademarks, not copyrights.

All this leaves me more confused than before. If you're looking for a good but challenging paper topic, the preemptive effect of 17 USC 512(f) looks worth exploring. It also reinforces that 512(f) is a limited solution that may be miscalibrated for its supposed purposes of helping to suppress bogus copyright takedown notices.

Prior blog posts on this case:

* Copyright Takedown Notice Isn't Actionable Unless There's an Actual Takedown--Amaretto v. Ozimals (April 2011)
* Second Life Gets Out of Dispute Between Virtual Bunnies & Virtual Horses (Jan. 2011)
* Second Life Ordered to Stop Honoring a Copyright Owner's Takedown Notices--Amaretto Ranch Breedables v. Ozimals (Jan. 2011)

Posted by Eric at 07:22 AM | Content Regulation , Copyright , Derivative Liability | TrackBack

July 12, 2011

Mortuary Sciences College Student Disciplined for Threatening Facebook Posts--Tatro v. University of Minnesota

By Eric Goldman

Tatro v. University of Minnesota, 2011 WL 2672220 (Minn. App. Ct. July 11, 2011)

This sounds like it could have been an episode of Six Feet Under! Tatro is a student in University of Minnesota's mortuary sciences department, a step towards working in a funeral home or as a mortician. She made a series of Facebook posts suggesting she would take violent actions towards her cadaver and perhaps against still-living people, including a post ("I still want to stab a certain someone in the throat with a trocar") that she admitted she intended for her ex-boyfriend to read. After being alerted to the posts, the university began disciplinary proceedings against her, resulting in the following discipline:

giving Tatro a failing grade in her anatomy-laboratory class and requiring her to enroll in a clinical ethics course; write a letter to mortuary-science department faculty addressing the issue of respect within the department and profession; and complete a psychiatric evaluation. The CCSB also placed Tatro on academic probation for the remainder of her undergraduate career

Tatro claimed she was being improperly disciplined for off-campus behavior. The appellate court disagreed:

Tatro's posts referenced, albeit anonymously, an anatomy-bequest program donor, spoke of taking out "aggression" in a university class, and mentioned wanting to "stab" an unidentified individual with a trocar....the realities of our time require that our schools and universities be vigilant in watching for and responding to student behavior that indicates a potential for violence.

This takes us back to the unresolved question about when online activity is on-campus or off-campus. This question is bedeviling courts in the K-12 context, as we recently saw in the messy en banc opinions from the Third Circuit (see my original post on the Third Circuit rulings). The question doesn't get any easier when it arises in the university context. Regarding Tatro's First Amendment challenge, Eugene Volokh notes the rarity that this opinion applied Tinker to the university context (an expansion from its roots in K-12 education). Applying Tinker, the court found adequate grounds to conclude that Tatro's posts disrupted the university, referencing both her potential for future on-campus violence as well as the problems her posts caused for future cadaver donations.

She then claimed the university rules didn't prohibit her behavior. The university claimed she engaged in "threatening" conduct. As Venkat recently noted, courts are treating threats communicated in social media posts very seriously, even if the threats are fairly unspecific--and even though social media posts are often gratuitously hyperbolic and readers know it. There's a fine line between ill-advised social media rants and truly threatening posts, but there's a mini-trend in court to collapse those two categories. Unquestionably, Tatro's posts were ill-advised; and unquestionably, they made other members of the university community nervous. Presented in the cold type of an appellate opinion and divorced from any other context other than knowing they were written by a college student who has chosen a career in death, I'm having a hard time seeing them as truly threatening.

She also violated a university rule that "Conversational language of cadaver dissection outside the laboratory should be respectful and discreet. Blogging about the anatomy lab or the cadaver dissection is not allowable." Irrespective of the legality of this gag order, it seems like a common-sense restriction given the nature of the subject matter. Tatro tried to argue that blogging and Facebooking are two different things. The court sidestepped the argument but that seemed pretty weak.

This case reminded me a lot of the Yoder v. University of Louisville and Byrnes v. Johnson County CC cases. In Yoder, a nursing student called her patients' newborn babies "creeps" on her blog, and in Byrnes, nursing students posted a photo of a patient's placenta to Facebook. In both of those cases, the schools overreacted by expelling the students; and the courts rejected such extreme remedies. In this case, the university's sanctions were far short of expulsion, so perhaps the more measured response made it easier for the court to accept. In all three cases, the students demonstrated poor professional judgment--a not uncommon thing among college students, but it still disappoints educators who are trying to inculcate students with higher professional standards. The University of Minnesota apparently had taken several steps to educate the mortuary science students about the need to respect their profession, an effort that's clearly needed.

Posted by Eric at 04:59 PM | Content Regulation | TrackBack

July 10, 2011

Virginia Appeals Court Affirms Conviction for Posting Threatening Rap Lyrics on MySpace -- Holcomb v. Virginia

[Post by Venkat Balasubramani]

Holcomb v. Virginia, 0546-10-1 (Va. Ct. App. June 7, 2011)

Defendant was involved in a romantic relationship with the victim and fathered their child. The Defendant and the victim had a contentious custody dispute. Defendant posted several blog entries to his MySpace page. The title to one entry was "Unfinished Biznezz God, I give you the 'woodroll' family ... Tell them to 'F the F OFF' and "GET OFF ME" with the following content:

Poof? Make ya daughter disappear like 2pac!
He knew now what he do like 2 cops
With no vest, off'd with 2 shots
Thru the chest from 2 blocks
....
Custody battles, restraining orders
Bitch made me go mad I just had to stab her
Blind now I see her true colors
On the front cover of The World's Most Murdered Mothers
By Americas Most Wanted Fathers
....
Ain't nobody playing bitch, slit your neck into a fountain drink
This is your pre-accident announcing
Fuck your fliers, I already put the word out for the crowd 2 see
No one hearing your screams from the knife cut sounds

The Defendant testified that he did not direct the entries to the victim. In fact, the victim did not read the entries until a member of her family alerted her to the entries and she accessed the defendant's MySpace page with her mother's computer (she did not have a computer of her own). Based on the references to "Woodroll," her maiden name, and references in the entries to specific incidents of their custody battles, the victim testified that she had a reasonable fear of harm.

Were the threats directed to the victim?: The first question was whether the threats were directed to the victim. It turns out that this does not matter. The court holds that even though the statute requires a threat to be "communicated," this does not mean that the threat has to be specifically communicated to the victim--it can be generally disseminated:

it is sufficient [defendant] made numerous references to his history with Rollman that allowed her to identify herself as the subject of violent fantasies once she [viewed] the profile . . . [f]urther, [defendant] knew that [the victim] had access to his MySpace page and had viewed it in the past.

Were the lyrics 'true threats'?: Defendant argued that he had used MySpace as a medium for posting other music and lyrics, and that he had an "established history of involvement" with 'Juggalo-style' music. The court rejects these arguments, focusing on prior incidents between the victim and the defendant, the specificity of the posts, and the "graphic and violent" imagery in the posts. The court also finds that the victim's reaction was reasonable--she moved out of her house and back in with her parents in order to take advantage of the security system that her parents had in place.
__

It's hard to say whether this has risen to the level of a trend, but courts seem to find that posting a threat on the internet that references another person can fall under statutes prohibiting threatening communications (even where the threat is not directed to the person in question). The Jeffries case was one I blogged about where the court similarly relied on the specific references in the defendant's post to find that the threat constituted a 'true threat.' ("Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat.") That case also involved a disgruntled participant in the family court system as a defendant, although the threats in question where ostensibly directed to a family court commissioner.

There are obvious First Amendment issues lurking in the background of these cases, and courts should be worried about developing a body of precedent that prevents people from venting about their trials and tribulations in life. Although the court does not give much credence to them, these issues were at the forefront in this case since the defendant previously posted lyrics to his site and had a credible argument that these particular lyrics were just a manifestation of his ongoing frustrations in life. Interestingly, the courts don't seem to take the contexts of the postings into account much in these cases. Is a post to a MySpace page more likely to fall into the "rant" category and not meant to be taken seriously? Several courts have said as much in the defamation context (see DiMeo v Max, Finkel v Dauber, and more recently, Sandals Resorts v. Google), but courts have not embraced this view when it comes to threats online.

Posted by Venkat at 04:14 PM | Content Regulation

July 04, 2011

June 2011 Quick Links, Part 2

By Eric Goldman

Social Media

* The Third Circuit issued its en banc rulings in Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, both involving school discipline against kids who created fake MySpace profiles of school administrators. Prior blog post on both cases. The good news is that the kids won in both cases; the courts held that the administrators overreacted. However, the decisions don't resolve any of the fundamental issues about the legitimacy of school discipline for kids discussing school-related issues online.

* Too Much Media, LLC v. Hale, 2011 WL 2305620 (N.J. June 7, 2011). A blog commenter doesn’t qualify for the NJ reporter shield law.

* Dr. T.S. v. Plain Dealer, No. 96201 (Ohio App. Ct. June 16, 2011). Uploading a 20 year old version of a newspaper doesn’t reset the single publication rule, even if the article becomes newly indexable in Google.

*Back in September 2010, Xcentric v. Bird settled in a no money deal. The settlement agreement. Ripoff Report's appended response to the original blog post. Prior blog post.

* Scott P. v. Craigslist dismissed. It appears Scott P. gave up against Craigslist. Prior blog post.

* News.com: Is the FTC going after Twitter...again?

* Another PR agency loses a client account over an ill-advised tweet.

* NY Times tries to deconstruct the Twitter hashtag convention.

* Art of Living Foundation v. Does, 2011 WL 2441898 (N.D. Cal. June 15, 2011). Griping bloggers about Ravi Shankar and his organization avoid defamation and trade secret liability for now.

* Jakobot v. American Airlines, 2011 U.S. Dist. LEXIS 64824 (S.D. Fla. June 20, 2011). In a battle over whether the plaintiff lives in Florida or Texas, the court says: “The internet is often filled with old, out-of-date, unsubstantiated, self-aggrandizing and misleading information. It is not enough to submit a selective chunk of Plaintiff's 'Google footprint' and note every time that a tie to Florida appears -- Defendant must do more to connect the dots.”

* State v. Hanson, 2011 WL 2301801(Minn. App. June 13, 2011). Statutory rape conviction reversed based on a mistake of age defense when the victim misreported her age to MySpace. Prior blog post.

* The Duluth doctor is appealing his defamation lawsuit loss against a patient's family member who criticized him online.

* Marin IJ: "A Greenbrae cosmetic surgeon who filed a defamation suit against an online reviewer was ordered to pay nearly $20,000 in attorney's fees after a judge dismissed the case."

* IT World: Is Facebook really 'hated' more than Bank of America?

* Job opening: Executive Director, Public Participation Project, to work towards a federal anti-SLAPP law. Spread the word!

Google

* Reuters on how the FTC's investigation of Google could chill innovation regardless of its outcome. Google's blog post about the investigation.

* In June, I participated in a TechFreedom panel on search engine bias on Capitol Hill. Declan McCullagh moderated. His writeup: "On Capitol Hill, it's all about beating down Google". The video.

* News.com: Google's Enemies: a Primer.

* Google hires TWELVE lobbying firms to fight the FTC (on top of the 6 they already had).

* Neeley is appealing his loss to Google. Prior blog coverage.

Spam

* Spam filters have taken a huge bite out of spam. See my 2003 article expressing confidence that technology would do a much better job fighting spam than legislation.

* Amazon's Kindle hit by spammed e-books. Another example that service providers have to exercise editorial control to curb spam.

Miscellaneous

* The FTC approved the final order in the Chitika case.

* CA enacts an Amazon tax and Amazon instantly tosses its affiliates overboard--including me! More evidence that the taxman will effectively kill the affiliate industry.

* Weinstein v. eBay Inc., 2011 WL 2555861 (S.D.N.Y. June 27, 2011). As a secondary market, StubHub does not need to comply with NY state law requiring printing the face value on tickets.

* Ni v. Slocum, A128721 (Cal. App. Ct. June 30, 2011). Rejecting electronic signatures in support of a ballot petition. Contrast Anderson v Bell in Utah about the application of UETA to election petition signatures.

* Zamora Radio, LLC v. Last.fm LTD., 2011 WL 2580401 (S.D. Fla. June 28, 2011). A defense-favorable Internet personal jurisdiction ruling: "the AccuRadio website reflects a low quality of commercial activity; visitors cannot purchase products or download music and are primarily limited to live streaming audio. Moreover, Plaintiff has not established that (1) Florida constitutes a principal consumer base for AccuRadio's service; (2) AccuRadio.com makes any reference to Florida, or directs visitors to any Florida establishments; (3) AccuRadio has engaged in any print, radio, television, or Internet advertising targeting Florida residents; or (4) AccuRadio has in any way specifically encouraged Florida residents to visit AccuRadio.com." The court distinguishes co-defendant Last.fm: "AccuRadio users do not have to download a program to access and listen to AccuRadio's programming and AccuRadio users do not download music from AccuRadio's website....Further, AccuRadio's website is not specifically directed at Florida consumers and local information about concert events is not provided on AccuRadio's website."

* Take James Grimmelmann's Internet Law exam.

Posted by Eric at 08:43 AM | Content Regulation , E-Commerce , Search Engines , Spam | TrackBack

June 28, 2011

"Hot Topics in UGC Liability" Talk Slides

By Eric Goldman

Earlier this month, Internet law superstar Ian Ballon and I spoke for about 90 minutes on hot topics in Internet law. Watch the video by downloading or streaming (item #47) it.

I spoke about recent legal developments related to user-generated content. My talk slides.

In particular, the fourth slide is completely new. It's my initial attempt to catalog some of the abusive takedown practices I'm seeing. If you have thoughts about abuses I should add to the list, please let me know. I think it's important to start cataloging these practices for two reasons. First, should anyone propose mucking with the 230/512 allocation of responsibilities, it may be helpful to plop on the table some proposed defense-oriented statutory fixes to these bad practices rather than just respond to the maximalists' wish list. Second, with so much focus on whether or not there are abusive lawsuits (see, e.g., the farcical DOC report on trademark bullying), it seems useful to catalog some of the bad dispositions we're seeing without the dispute getting into court so that policy-makers can understand the true scope of the issues.

I'm also aggregating lawsuits where affected content publishers have sued the senders of abusive takedown practices. I feel like there's been an uptick of this litigation in the past year or so. If you've seen any lawsuits on that front I haven't covered, please let me know.

Posted by Eric at 05:42 PM | Content Regulation , Derivative Liability | TrackBack

June 27, 2011

Another Ripoff Report Win--A-1 Technology v. Magedson

By Eric Goldman

[Note: I have a thick blogging queue of cases to tackle, so if I haven't gotten to your recent favorites yet, a post may still be coming.]

A-1 Technology, Inc. v. Magedson, 150033/10 (N.Y. Sup. Ct. June 22, 2011)

After a while, the Ripoff Report cases all start blurring together. The plaintiffs try the same tired arguments, the courts reject them as they should, and we all experience a little deja vu. This case involves 2 postings to Ripoff Report (from 2006 and 2009) that were allegedly defamatory of a New York company. The Ripoff Report defended on several grounds, including lack of personal jurisdiction, the statute of limitations (1 year for defamation cases in NY) and 47 USC 230.

The 230 discussion is appropriately efficient. The court cites the recent Shiamili ruling (in my queue to blog) for the proposition that 47 USC 230 bars defamation actions "even when the website provider exercises traditional editorial control, including the reposting of the comments of third-parties and providing headings, subheadings and illustrations." The court also rejects the 47 USC 230 immunity would change if Ripoff Report allegedly charged for removing posts.

The court also dismisses the case for lack of personal jurisdiction, following the general rule that simply publishing defamatory material online doesn't automatically confer jurisdiction in the plaintiff's home court. Finally, the court also dismisses any claim for the 2006 post based on the statute of limitations plus the single publication rule as articulated in Firth v. State, an early New York case interpreting the single-publication rule online.

Posted by Eric at 04:59 PM | Content Regulation , Derivative Liability | TrackBack

June 16, 2011

Injured Pedestrian Can't Sue Google for Providing Faulty Map Information -- Rosenberg v. Harwood

[Post by Venkat Balasubramani]

Rosenberg v. Harwood, No. 100916536 (Utah District Court; May 27, 2011) [pdf]

Lauren Rosenberg was struck by an automobile while walking along a rural highway "with heavy traffic and no sidewalks." She sued the driver of the car but she also sued Google, alleging that Google negligently provided directions and failed to warn that the highway was not suitable for pedestrians. The court grants Google's motion to dismiss. Although Google argued that it was entitled to First Amendment protection for its publication of information, the court does not reach the First Amendment question, and dismisses the claims under traditional negligence standards.

Google did not owe Rosenberg a duty: In order to assert a claim for negligence against Google Rosenberg had to show that Google owed her a duty. The court applies a four factor test to determine whether Google owes Rosenberg a duty and concludes that Google does not owe a duty. Rosenberg did not have a special relationship with Google. Rosenberg argued that in other cases courts have held service providers liable for negligently providing services to customers, but the court says that this duty is minimal or non-existent when a publisher or other information provider "publishes information to the general public."

The court also notes that the fact that an injury is unlikely to occur counsels against finding a duty. Although Rosenberg alleged that an accident is more likely to occur along a rural highway such as the one she was on, the court says that an accident involving a pedestrian likely involves the pedestrian's own breach of their duty to yield to cars on the road:

it is clear that Google was not required to anticipate that a user of the Google Maps service would cross the road without looking for cars . . . and that, absent negligence on the user's part, an injury while crossing the road would be unlikely.

Google's duty does not extend to preventing or warning against harm that is likely to occur through a plaintiff's breach of her own duty.

Policy considerations weigh against finding a duty: Rosenberg argued that since Google provided information on a one-to-one basis, the policy considerations for protecting publishers are not applicable when it comes to Google. The court disagrees with this as well:

[t]o claim that Google provided the information only to one individual, and therefore is not entitled to the protections afforded publishers, ignores the realities of modern society and technology. As Google notes, the Complaint itself states that the information provided on the Google Maps service "is readily available via the internet" . . . and any individual who enters the same starting and ending points will obtain the same walking directions that were provided to Rosenberg. While a user of the service is able to customize the results of his or her search, the exact same information provided to Rosenberg is readily available to any individual who uses the same search terms as Rosenberg, and anyone who obtains those directions is free to disseminate the search terms and directions to others. Given these facts, it is difficult to imagine that information could be disseminated more broadly to the public. Therefore, Google is clearly a publisher because it makes all of the information on the Google Maps service available to the public worldwide, and the fact that a user of the Google Maps service obtains customized search results does not remove the protections afforded to any other publisher of information to the public.

If Google, as a publisher which widely disseminates information, could be held liable for providing faulty information, this could lead to unlimited liability for Google. Rosenberg argued that the burdens to Google could be ameliorated if Google posted "a statement that included a warning of dangers of which Google knows or should know along a potential route," but the court notes that this would dramatically increase the burden on Google. Under Rosenberg's theory, Google would have to investigate and warn about all foreseeable risks, "which might include negligent drivers, drunk drivers, dangerous wildlife, sidewalks or roads in disrepair, lack of lighting, and other risks that might only exist during certain times of day." This burden would be difficult, if not impossible for Google to bear. The court also looks to the social utility of the service provided by Google (under the benefit/burden analysis formulated by Learned Hand) and finds that the service provided by Google has a high social value.

___

This is a nice win for Google as well as an endorsement of the social utility of its services. Plaintiffs have sought to sue Google for torts arising out of Google's services, including street view (Boring v. Google) and directory services (Harris v. Google). To date, these efforts have been largely unsuccessful.

The court recognizes that the practical result of a win for plaintiff in this case would be a flood of similar litigation which could ultimately force Google to include warnings or disclaimers or to offer its service in a different (and potentially less useful) form. Many of the online service provider cases understandably center around Section 230, and this case is a good reminder that even outside the Section 230 universe, it's not always easy to hold an online service provider liable. In addition to the difficulties in showing duty, Rosenberg would have had a serious causation hurdle as well.

While the court lets Google off of the hook in this case, the result may have been different if Rosenberg had asserted claims against a GPS provider. A GPS provider typically offers a paid service and arguably communicates with its customers on a one-to-one basis. It's unclear as to whether this would materially alter a court's analysis, but a GPS provider would not necessarily receive the same treatment as Google did in this case.

Other coverage:

"Judge Bars Woman From Suing Over Faulty Google Map"

Related posts:

"Google Sued for Publishing Home Address--Harris v. Google" (dismissed without prejudice for lack of prosecution)
"Google Street View Lawsuit Revived, But Only on Trespass Grounds--Boring v. Google"

Posted by Venkat at 01:41 PM | Content Regulation

June 08, 2011

April-May 2011 Quick Links, Part 4

By Eric Goldman

Social Media

* The footballer superinjunction (for Ryan Giggs) was much bigger news in Britain than it was here. From my perspective, it was just another effort by a foreign government to squelch a Silicon Valley Internet company. The episode made it clear that superinjunctions (an injunction against discussing the injunction) are farcical in the modern age; the network hates informational asymmetries, and news information is a paradigmatic example of "information that wants to be free." We also learned that superinjunctions run strongly against US free speech norms. It also reminded us that people are still experiencing angst about territorial laws applied to a geographically borderless network. More on this episode from EFF and Adam Thierer.

* Yoder v. University of Louisville, 2011 WL 1345051 (6th Cir. April 8, 2011). The 6th Circuit overturned Yoder v. University of Louisville on procedural grounds and remanded to the district court to try again. My prior blog post.

* Beahm v Adecco complaint. Class action wage-and-hour lawsuit against Findlaw for how it handles its staff bloggers. More.

* In re Marriage of Pierce and Arreola, 2011 WL 1902851 (Cal. App. Ct. May 20, 2011): “Pierce's appeal did correctly point out that Arreola found and presented to the trial court several statements published by Pierce on Internet sites. However, Pierce failed to explain how, under any statute or law, the mere retrieval by Arreola of statements or articles that he had posted on a public website or blog amounted to illegally “stalking” him or why such activity entitled him to a protective order.”

* Facebook using filtering technology to combat child pornography.

* Cardone v. Cardone, 2011 WL 1566992 (Conn. Super. Ct. April 4, 2011). Ex-wife sees her alimony cut after she blogs about her boat trips in the Caribbean with her hitherto-undisclosed new boyfriend.

* McKee v. Laurion. A judge dismissed a lawsuit by a Duluth doctor who claimed he was defamed by a man who publicly criticized his bedside manner. News report. A highlight from the opinion: “Taken as a whole, the statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.”

* A battle is taking place in Israel over Google/Blogger’s liability for a blog that criticizes an Israeli university.

* Twitter and Facebook both don’t like RSS. Is RSS dying?

* Farewell, Friendster.

* The Wikipedia community’s xenophobia strikes again: many initial posts on a new user’s talk page are negative feedback, not compliments.

* A professor was awarded tenure based in part on his Wikipedia contributions.

* Facebook requiring pharmaceutical Facebook fan pages to accept user comments.

* U.S. v. Lindeman, 2011 WL 1869924 (W.D. La. May 13, 2011). Defendant can’t move location of jury trial using only an undetailed assertion that blogs are talking about the case.

* Rakofsky v. the Internet. Many legal blogs criticized a lawyer’s courtroom performance, so he sued several dozen of them. Suing a single legal blogger is rarely a good idea; suing a gaggle of them seems to invite a massive blowback.

* Unmasking lawsuit rejected because no one takes anonymous blogs seriously.

* More bad news for Above the Law: Huon v. Above the Law complaint. Article. It’s dangerous blogging about lawyers. They are not shy about suing.

eBay

* Wired: “Going, Going, Gone: Who Killed the Internet Auction?” Good article on the rise and fall of variable prices on the Internet. “Today online auctions are a niche service, whereas a decade ago it seemed to many as if they were going to transform the way everything was bought and sold.”

* Dismissed again. Burgess v. Ebay, Inc., 2011 WL 1344167 (D. Mass. April 8, 2011)

* Ninth Circuit affirms dismissal of an antitrust challenge to eBay’s fees. In re eBay Seller Antitrust Litigation, 2011 WL 1749206 (9th Cir. 2011).

* Universal Grading Service v. eBay, 2011 WL 846060 (N.D. Cal. March 8, 2011). eBay defeats an antitrust challenge to its “Counterfeit Currency and Stamps Policy.” Related blog post.

Miscellaneous

* Classic Posner opinion: a live online video display of masturbation isn't "sexual activity" for purposes of the applicable statute.

* Ever wonder who writes those term papers advertised on Craigslist? It could be a (suspended) lawyer.

* The FBI did a major crackdown on Internet poker sites. The indictment. The lowdown on defense lawyers.

* Hawaii is considering holding travel guidebooks liable for recommending dangerous attractions. Another law that would be clearly preempted by the First Amendment.

* California Lawyer article on anti-spam litigant Dan Balsam asking if he's a consumer crusader or "spambulance" chaser. In the article, Ken Magill takes a stand, and he doesn’t mince words.

* South Park: HUMANCENTiPAD: Kyle clicks “I agree” to Apple’s iTunes T&Cs he didn’t read, and intensely scatalogical outcomes ensue.

* Brad Stone on the emergence of markets for "private" company stock.

* AT&T Mobility LLC v. Concepcion, 563 U. S. ____ (2011). Will this lead to a revitalization of arbitration clauses as an anti-class action technique?

* The FTC proudly announces that it busted a consumer who provided a bogus testimonial.

Posted by Eric at 03:08 PM | Content Regulation | TrackBack

June 02, 2011

Ripoff Report Gets Another Big 47 USC 230 Win--Asia Economic Institute v. Xcentric

By Eric Goldman

Asia Economic Institute v. Xcentric Ventures LLC, 2:10-cv-01360-SVW -PJW (C.D. Cal. May 4, 2011)

The AEI Ruling

Keeping alive its truly remarkable winning streak, Ripoff Report got yet another decisive 47 USC 230 victory. This challenge came from Asia Economic Institute (AEI), suing over 6 posts to Ripoff Report from former AEI employees complaining about the work environment. The case raised some eyebrows last summer when the judge gave AEI a chance to plead a RICO claim. That ruling got some plaintiffs excited that a conspiracy theory might finally expose Ripoff Report to liability. No matter, as it turns out, because AEI still lost on summary judgment.

General Applicability of Section 230

The court accepted that the 6 posts in question all originated with the users. Ripoff Report gives some "generic and stylistic" writing guidance to users, such as an ALL CAPS instruction not to use ALL CAPS. (Ironic, I know). With respect to these formatting instructions, the court says:

these statements can not amount to encouragement, solicitation, or instruction to say anything in particular that might warrant labeling Defendants as “information content providers.”

Ripoff Report also does some things to enhance the SEO of user posts, and the court treats these visibility-enhancing efforts as irrelevant to a Section 230 analysis:

Plaintiffs fail to cite any authority that increasing the prominence of a page in internet searches amounts to “creation or development of information” that would render Defendants “information content providers” under the CDA. The very purpose of consumer reports such as the Ripoff Report website is to provide accessibility to the public on a grand scale. Increasing the visibility of a statement is not tantamount to altering its message....At best, increasing the visibility of a website in internet searches amounts to “enhancement by implication,” which is insufficient to remove Defendants from the ambit of the CDA.

This is yet another court opinion citing Roommates.com for the defense.

I think the court's key line comes immediately after this:

Absent a changing of the disputed reports’ substantive content that is visible to consumers, liability cannot be found.

This sentence is so simple and elegant, yet the concept frustrates plaintiffs to no end. Simply put, if content originates with a third party and the defendant doesn't substantively change its meaning, Section 230 applies--FULL STOP. All of the plaintiffs' kvetching about endorsing or ratifying third party content is getting plaintiffs nowhere. Once the court accepted that the reports came from third parties and that ROR employees didn't substantively modify the contents, there was nothing left to discuss. Section 230 applies. Case over.

The plaintiffs also tried the now-tired argument that Ripoff Report creates report titles by combining user content and Ripoff Report content. The court doesn't want to hear about this "circumvention" of the immunity either:

Users thus know precisely how the titles of their submissions will appear before posting. Defendants need not present users with a completely blank slate from which to create their reports in order to be protected by the CDA

Having determined that Ripoff Report qualifies for Section 230, the immunity wipes out a long list of claims:

(3) unfair business practices under Cal. Bus. & Prof. Code § 17200 et seq.;(4) defamation; (5) defamation per se; (6) false light; (7) intentional interference with prospective economic relations; (8) negligent interference with prospective economic relations; (9) negligent interference with economic relations; and (10) injunction.

The immunity for the 17200 UCL claim is particularly interesting. This is similar to the Levitt v. Yelp ruling, where the plaintiffs weren't able to bypass Section 230 by arguing that Yelp's UGC management practices mooted 230. This court also rejects the 17200 claim on standing grounds and the fraud/deceit claims for a variety of reasons.

Request for More Discovery

The court also denies the plaintiffs' request for further discovery. Among other things, the plaintiffs wanted to look for evidence that the HTML code/metatags aren't generated automatically. The court says that information wouldn't matter because it would just show that Ripoff Report wanted better search engine indexing, plus "Plaintiffs conceded that the HTML code and meta tags of the reports devoted to them were created automatically."

Anti-SLAPP Motion

The court denied Ripoff Report's anti-SLAPP motion to strike. This is the second time the court did so; the first time was a broader anti-SLAPP motion denied in April 2010. This was a narrower anti-SLAPP attempt, but it still failed.

Response to the Ruling

Lisa Borodkin, AEI's counsel, was kind enough to send me a statement, including this assessment:

Ripoff Report also changed several of its practices during the pendency of this litigation. Ripoff Report began informing telephone callers that their calls would be recorded and corrected the description of the Corporate Advocacy Program. Ripoff Report launched an arbitration program which is upfront about disclosing that Ripoff Report will redact names from Ripoff Reports for parties that prevail in arbitration.

The VIP Arbitration Program

This ruling shows that plaintiffs are running out of creative ways to sue Ripoff Report. They have tried just about every legal trick imaginable, and nothing has worked. Eventually, unhappy vendors will abandon frontal litigation assaults on Ripoff Report and aggressively pursue alternative ways to get the outcomes they desire.

One logical alternative is Ripoff Report's relatively new arbitration process, called the “VIP Arbitration Program.” The process lets unhappy vendors proceed to an arbitration service designated by Ripoff Report. If the complainant wins the arbitration, Ripoff Report will redact the complainant's name from the report. This may not be a perfect solution to a problematic report, but it's more useful than a 47 USC 230-preempted lawsuit against Ripoff Report.

Default Judgments and Google Search Results

Meanwhile, a few months ago, a Texas lawyer, Kenton Hutcherson, wrote at Search Engine Land about another way to redress a problematic report. With the seductive title of "How To Remove Ripoff Reports From Google – Not Just Bury Them," the article tells readers exactly what they desperately want to know--how to flush a bad report out of Google's index.

The answer isn't rocket science, and it takes advantage of Google's apparent pliability when presented with a court order. The article advocates that aggrieved parties sue the person who posted the report. Although the article doesn't say this explicitly, the article implies that defendants may quickly agree a default or stipulated judgment. The plaintiff can then present the court order to Google and anticipate that Google will honor it.

I found this article problematic for several reasons:

1) The author initially failed to mention that he had previously sued Ripoff Report--and lost. Do you think this past litigation experience is relevant to assessing the author's perspectives? I do. One way of reading the article is that the author initially planned to drum up some business suing ROR, failed to show the legal merits of that option, and is now cultivating a replacement business line.

You'll see that the article now contains the following disclosure:

Editors Postscript: For the purposes of full disclosure, Kenton J. Hutcherson has served as lead counsel in three lawsuits against Xcentric Ventures, LLC, the company that manages Ripoff Report.

That postscript was added in response to my inquiries to Search Engine Land over the past month.

2) The author mentions Ripoff Report's arbitration program but doesn't indicate that it may be less expensive than the path he recommends--and more effective too (success in arbitration would redact the problematic content everywhere, not just from Google). Omitting that crucial piece of pricing information (while downplaying the cost of litigation) provides further support for a hypothesis that the article is selling a new business line.

3) The article advocates taking advantage of Google's apparently lax responses to court orders. Perhaps that's a legitimate use of the court system, although it's hard for me to be enthusiastic about such efforts. Meanwhile, this article is a good cautionary tale to Google--and all other service providers--that default and stipulated judgments are a potential source of abusive takedowns requests, especially when they don't result from a proper substantive adjudication by the court. (As we know, for this reason, Ripoff Report sometimes stands up to default judgments; see the Blockowicz case).

I am a longtime regular reader of Search Engine Land, so I raised my concerns about this article directly to Danny Sullivan of Search Engine Land. On the point of Search Engine Land authors making adequate disclosures, Danny responded:

Going forward, we're drafting up a disclosure statement that will be added to our contributor guidelines, and our contributors will get a reminder of this in the next monthly newsletter that goes out to them. We'll be asking that they use common sense in disclosing any relevant relationships or background within their articles, as it makes sense within a story (say if they write about a client, they should disclose that) or provide general disclosure as part of their bio (if they are part of a company that might have bearing on what they've written, for example).

As you can see, this translated into the editor's postscript now in the article. At the same time, Danny pointed out:

The disclosure wouldn't have made you think he was somehow less biased against Ripoff Report (it was pretty obvious he wasn't a fan). The disclosure wouldn't have altered the advice he wrote, in terms of making what he was recommending more or less attractive -- nor would it have impacted the alternatives he wrote.

Perhaps this is true, but I find that litigation counsel tend to become deeply entrenched in the viewpoints they advocated, and so I find that knowing that background often helps me contextualize subsequent remarks from them.

Posted by Eric at 09:33 AM | Content Regulation , Derivative Liability | TrackBack

June 01, 2011

Updates on DoctoredReviews.com and Medical Justice

By Eric Goldman

You may recall our April launch of DoctoredReviews.com, a website explaining why Medical Justice's form agreement, the "Mutual Agreement to Maintain Privacy," was a bad deal for doctors, patients and review websites. See a list of the media coverage on the site's launch.

Since then, there have been three developments of interest.

First, Timothy B. Lee at Ars Technica covered his experiences with a dentist who asked him to sign the Mutual Agreement to Maintain Privacy and what happened when he balked at signing (predictably, there was no negotiation, and he was booted from the office). The entire article is a great read, but this line especially caught my eye: "we began to wonder if Medical Justice was taking advantage of medical professionals' lack of sophistication about the law." Watching the doctor community's response to our site launch, I had been wondering the same thing. Doctors and other healthcare professionals are very scared of the combination of privacy laws and unfettered consumer reviews; and Medical Justice has a several year headstart in (mis?)educating them about the law. It's clear that our advocacy site alone isn't enough to do the necessary counter-education.

Timothy also hammers on how Medical Justice has been backpedaling about the efficacy of the Mutual Agreement to Maintain Privacy. Medical Justice publicly claims that the agreement is principally useful for dealing with reviews from the doctors' competitors or ex-employees or other fraudsters. This is a baffling argument because (as Timothy points out) those folks undoubtedly haven't signed the Mutual Agreement to Maintain Privacy, so doctors can neither assert a breach of the agreement nor the assigned copyrights in those reviews. (And asserting copyright to the review websites could lead to 512(f) claims). There is a massive logic disconnect between the purported goals of the Mutual Agreement to Maintain Privacy and the legal effect of the contracts. For an outfit that was clever enough to develop a way to hack 47 USC 230 through a copyright workaround, the response that the agreement should be used only against people who haven't signed it is so oddly sophomoric that it makes me wonder about the sincerity of the proffered explanation.

Timothy followed up his initial story with a postscript. In it, the dentist who claimed he'd never enforced the Mutual Agreement to Maintain Privacy backpedaled and admitted that he had, in fact, help drive a negative review off the Internet. On the plus side, the dentist publicly acknowledged that the Mutual Agreement to Maintain Privacy wasn't a good deal for him, and he said he wouldn't renew with Medical Justice. Hey doctors and other healthcare professionals, I hope you took note.

Second, John Swapceinski of RateMDs made a post entitled "Medical Justice planting glowing reviews on RateMDs.com." Apparently, John saw some early activity from a new Medical Justice offering called the "Review Builder Program" that Medical Justice claims will help patients leave reviews from doctors' offices. Timothy at Ars Technica has plenty of sharp words about the program and the possibility of Medical Justice duplicity.

Third, we are working on Phase 2 of the DoctoredReviews project, during which we identified another doctrinal oddity: doctors, based on their purported copyright ownership, can obtain and send 512(h) expedited subpoena requests in an effort to unmask the review author--in a process that is outside of public view and without any substantive judicial oversight. Obviously, review websites can (and should) push back on these subpoenas, but I have some reason to believe that the Mutual Agreement to Maintain Privacy's purported copyright assignment is producing unmaskings that would not occur if supervised in a court of law. I'm adding this attack on privacy to the taxonomy of abusive takedown practices I'm developing.

Posted by Eric at 02:18 PM | Content Regulation , Copyright , Derivative Liability , Licensing/Contracts , Privacy/Security | TrackBack

May 27, 2011

Review Website Should Get 47 USC 230 Dismissal But Judge Keeps Case Open in "Abundance of Caution"--Frontier Van Lines v. MoverReviews.com

By Eric Goldman

Frontier Van Line Moving & Storage, Inc. v. Valley Solutions, Inc., 2011 WL 2110825 (W.D. Pa. May 24, 2011)

MoverReviews.com is a review website for moving companies. Frontier Van Lines alleges that a MoverReviews user, Schmidt, made 2 defamatory posts and that MoverReviews "published, authored, created, or acted in concert with Schmidt in authoring, creating, and posting and in failing to remove the alleged defamatory statements."

Pled this way, it should be an easy 47 USC 230 dismissal. Calling MoverReviews the "publisher" seals the deal; and the rest of the verbs are the kind of bald-faced factually unsupported assertions that a plaintiff proffers to get around the obvious 47 USC 230 problem. To bolster this plead-around, Frontier Van Lines makes the typical move of invoking the Roommates.com decision.

The court does a few savvy things in response. First, the court recognizes that MoverReviews is more like the "free text" area in Roommates.com, which the Roommates.com case said qualified for 47 USC 230, because Frontier Van Lines didn't allege that MoverReviews "shaped" the allegedly defamatory reviews. Second, because of Frontier Van Lines' unsupported conclusory allegations, the court says that "Frontier has failed to 'nudge' its claims 'across the line from conceivable to plausible.'" (citing Iqbal).

Yet, like some other courts faced with an obvious 47 USC 230 immunity recently (see, e.g., Smith v. TRUSTe, Kruska v. Perverted Justice Foundation and Robins v. Spokeo), the court just couldn't bring itself to grant a 12(b)(6) motion to dismiss. Instead, the court says:

out of an abundance of caution, the Court will provide Frontier an opportunity to develop the record with respect to this issue; and therefore, will deny the motion to dismiss without prejudice for Valley Solutions to file a prompt motion for summary judgment after the exchange of the Rule 26(a)(1) disclosures, and limited discovery

If the court thinks Frontier Van Lines could replead a plausible claim, it should have dismissed the complaint with a leave to amend. That's what I think Iqbal requires. Instead, the court put the financial burden on the defendant to engage in discovery and file a summary judgment motion. Even if the discovery is "limited," MoverReviews shouldn't have to bear that costs if Frontier Van Line can't make the threshold showing. If the court was going to impose these costs on the defendant, I think it should have said that Frontier Van Lines has a choice: it can tuck its tail between its legs and go away now at no cost, or it can pay for the costs that MoverReviews incurs to fulfill these obligations if MoverReviews wins its summary judgment motion (which seems highly likely).

Notice that this case probably comes out very differently in California under its generous anti-SLAPP protections. So long as the reviews addressed, even tangentially, a matter of public interest, then a CA court almost certainly would have granted MoverReviews' anti-SLAPP motion and made Frontier Van Lines pay MoverReviews' attorneys' fees. So even though this case is mostly a strong defense-side win, it's also a great case study of why we need federal anti-SLAPP legislation.

Posted by Eric at 10:00 AM | Content Regulation , Derivative Liability | TrackBack

May 26, 2011

Cyberbullying and Restorative Justice [a Long-Delayed Post on DC v. RR]

By Eric Goldman

[I've mentioned before that some posts get stuck in my blogging queue. This one got stuck for an incredible FOURTEEN months. Although its discussion about the specific case ruling is almost farcically untimely, I've decided that the post is still worth sharing. I hope you agree.]

DC v. RR, 2010 WL 892204 (Cal. App. Ct. March 15, 2010)

This case has been gnawing at me for some time. The case involves an alleged 2005 cyberbullying incident among students at the tony Harvard-Westlake private high school in the Hollywood Hills. I previously blogged about this case in 2009 when I learned about DC's lawsuit against Harvard-Westlake, which an arbitrator dismissed per 47 USC 230 in 2007 and awarded a half-million in attorneys' fees to the school. While that disposed of DC's lawsuit against the school, DC's lawsuit against the alleged cyberbullies kept going. The March 2010 ruling affirmed a rejection of the alleged cyberbullies' anti-SLAPP motion to strike. The details of why the court rejected the anti-SLAPP motion are interesting but not really the point of this post.

Instead, the March 2010 ruling marked the 5 year anniversary of DC's litigation, and the lawsuit had only reached the anti-SLAPP stage. I emailed Rex Julian Beaber, RR's counsel, for the latest status of the lawsuit, and earlier this week he sent me the following (which I've edited a bit, but not substantively):

After the Supreme Court denied review, the remittur was issued and the case was returned to the Los Angeles Superior Court. Not long after the case was returned, the parent defendants (i.e. the parents of [RR]) and the plaintiff parents (i.e., the parents of the "victim" DC) were dismissed from the case. The dismissals took place for reason unrelated to the first amendment issues.... The net result of this ruling was that it was left as a child versus child case.... After the dismissal, the lone defendant, RR, filed his answer. Accordingly, the case is presently in the pre-trial discovery stage.

Given that the case has basically just finished the pleading stage, it could take another few years to reach a resolution in the trial court. Further appeals could delay a final resolution for years more. Ultimately, this case--involving actions by 15 year old boys--could potentially last until they are into their 30s.

No matter who "wins" in the courtroom, a protracted court battle like this seems like a loss for everyone--including the taxpayers. Let's start with consequences of decade-long litigation for the alleged cyberbullies. Let's assume they did it--that they published harmful content with the intent to bully a classmate. I cannot apologize for this behavior in the least. However, I also can't ignore that they were 15 years old and thus not fully mature in the law's eyes, and their punishment through a decade of litigation might be disproportionate to the crime. The financial drain of litigation is overwhelming, and the time spent fighting in courtrooms is irreplaceable time diverted away from cultivating professional skills and transitioning from teenager to adult.

To weigh the punishment of protracted litigation against the alleged crime, it's helpful to look more closely at the posts at issue. DC was an aspiring entertainer who set up a self-promotional website with a guestbook. The complaint alleges that Harvard-Westlake students flooded the guestbook with hate-filled homophobic and threatening posts, such as:

One post read, "Faggot, I'm going to kill you." Another read, "[You need] a quick and painless death." One student wrote, "Fuck you in your fucking fuck hole." Another commented, "Fucking ass clown. Nigga what?" One post announced, "You are now officially wanted dead or alive." Another threatened, "I will personally unleash my manseed in those golden brown eyes."

Other posts included:

(1) "I hate fags .... diefags@yahoo.com ....gays are evil.com.... Hey fucker.... You are real gay"; (2) "Faggot, I'm going to kill you"; (3) "You are an oversized faggot.... I just want to hit you in the neck-hard.... [G]o to the 405 [freeway] bridge and jump"; (4) "I hate fags.... You need to be stopped"; (5) "I am looking forward to your death"; and (6) "Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive."

With respect to RR's post, the complaint alleges:

R.R. posted the following message on D.C.'s Web site: "Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I've ... wanted to kill you. If I ever see you I'm ... going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell."

Perhaps it goes without saying, but there is no situation where this posting is appropriate. It is violent, sadistic, homophobic and utterly depraved. If my child had posted something like this, I would be unspeakably sad. However, in the context of teenage boys talking to each other, especially given the other vitriol on the guestbook, the post is so over-the-top that it's a little hard to take seriously. Do we really think RR was going to rip out DC's heart or impale his head with an ice pick? I don't. The post isn't funny, but it's clearly not serious either. Instead, it's a profoundly poor choice by a teenage boy given the power of publication without having the associated wisdom of knowing how to use that power appropriately.

Collectively, the posts allegedly took their toll on DC and his family:

On the advice of the police, D.C. withdrew from Harvard-Westlake. He and his family moved to Northern California, where he went to a different educational institution. The Harvard-Westlake student newspaper, The Chronicle, ran at least two articles on the matter. One article disclosed D.C.'s new residential location and the name of the school he was attending. The article also disclosed that posts at the Web site had referred to D.C. as a "faggot."...As a consequence of defendants' conduct, plaintiffs suffered personal and emotional injury, loss of income, the payment of medical expenses, the cost of moving, expenses for traveling back and forth from their new residential location to Los Angeles in order to support D.C.'s professional career commitments, and the related cost of housing while staying in Los Angeles.

As a method of redressing these harms, a decade-long lawsuit really isn't a great option for DC either. Even if DC wins a huge financial payday a decade after the event, the money doesn't really solve the problems he experienced along the way, or the fact that he has spent many years of his life pursuing "justice." If DC doesn't win a huge financial payday, then the unrecouped litigation costs are just an extra punishment--thus perpetuating the victim's harm. And the defense attorneys surely have taken their shots at DC in depositions, filings and oral arguments.

Seeing how no one seems to win from a lengthy court battle, I keep coming back to the idea--the hope?--that there has to be a better way. As I've thought about this case over the past 14 (!) months, I've increasingly wondered if the civil litigation system is categorically the wrong solution for cyberbullying cases. It's just too expensive and time-consuming, and it runs too high a risk of punishing victims further.

I've been wondering if restorative justice might offer a better way. If you're not familiar with the term, it's a category of litigation alternatives that typically try to educate the perpetrators without punishing the victims further. One type of restorative justice is the "conferencing circle." There, the perpetrator gathers with a circle of community members who are impacted by the perpetrator's behavior. For example, in a shoplifting case, the shoplifter might meet with the retailer whose goods were stolen, but the circle could also include employees whose jobs are threatened by the lost revenue and consumers who pay higher prices due to shoplifters. Through this process, the perpetrator learns the far-reaching consequences of poor choices. Meanwhile, all of the victims of wrongful behavior--not just the most immediate victim--get a chance to speak their peace. The result is that the victim(s) have a cathartic experience (without the pain of litigation) and the perpetrator may learn how to make better choices in the future.

Not every wrong is well-addressed by restorative justice, but cyberbullying could be a terrific candidate for restorative justice initiatives. If executed properly, a victim of cyberbullying might feel like justice was served by having the community speak out on his/her behalf, and this resolution can occur in a matter of weeks or months, not decades. Meanwhile, a cyberbullying incident can be used as a teaching moment for the perpetrators to help guide them towards socially desirable behavior. The costs borne by taxpayers are way lower too. Perhaps most importantly, a restorative justice solution avoids subjecting juveniles to the rigors of a civil litigation system designed for adults who have made adult choices.

So I'm left wondering what might have happened if DC had pursued restorative justice instead of civil litigation. Perhaps this situation could have been resolved in 2005, not 2015.

Posted by Eric at 09:42 AM | Content Regulation | TrackBack

May 22, 2011

Dentist Pays Sizable Penalty for Not Knowing 47 USC 230--Wong v. Jing

By Eric Goldman

Wong v. Jing, 1-08-CV-12997I (Cal. Superior Ct. May 13, 2011). Wendy Davis' story on this ruling, plus coverage in DrBicuspid.com.

At DoctoredReviews.com, we discussed that doctors upset with patients' reviews can always bring a lawsuit. However, as we note, doctor-vs.-patients lawsuits should be an extraordinary step for extraordinary circumstances. Otherwise, suing patients can become a big--and costly--mistake.

This lawsuit involves a Yelp review of a dentist. In my previous blog post on this case, I explained how the court issued a split ruling in the case. Several of the dentist's claims were tossed on anti-SLAPP grounds, while the defamation claim against the author survived the anti-SLAPP motion and remains a possible risk to the patient. Because the court granted the anti-SLAPP motion, the defendants were entitled to their attorneys' fees and costs for the anti-SLAPPed claim. In this ruling, the court awards those fees and costs to the tune of $80,000.

The dentist foolishly sued Yelp in the lawsuit but voluntarily dismissed Yelp after the plaintiff's lawyer decided that 47 USC 230 immunized Yelp. The prior ruling was vague about whether Yelp's attorneys' fees were awardable, but this ruling awards those fees as part of the $80k. The court doesn't break out the portion of the attorneys' fees attributable to Yelp as opposed to the other defendants. I contacted the defense attorney, Mark Goldowitz of the California Anti-SLAPP Project, and it appears that at least $8k of the fees could be attributable to Yelp's portion of the defense. Accordingly, the dentist (or almost certainly her attorney) will be writing a decent-sized check to the defense for the attorney's 47 USC 230 error. Another cautionary tale for plaintiff's counsel.

Posted by Eric at 09:39 AM | Content Regulation , Derivative Liability | TrackBack

May 21, 2011

Another Unhappy Facebook User's Lawsuit Tossed--Kamango v. Facebook

By Eric Goldman

Kamango v. Facebook, 2011 WL 1899561 (N.D.N.Y. April 19, 2011). The judge approved the magistrate order on May 19, 2011. See Kamango v. Facebook, 2011 WL 1899277 (N.D.N.Y. May 19, 2011). The initial complaint.

Kamango claims that Facebook blocked (terminated?) his account for spamming friend requests. He claims the account block violated his right to express himself and be free from bias. The magistrate tossed the case as frivolous (using the standard applicable to pro per cases), and the judge upheld the dismissal even after Kamango objected. Because both opinions are appropriately efficient, there isn't much detail to explore, but the judge does note "Plaintiff’s claim under the First Amendment is futile because the First Amendment applies only to governmental action (and he has alleged no facts plausibly suggesting such governmental action)."

No matter how much we might question Facebook's policies, the lesson from Young v. Facebook plus this one is clear: stop suing Facebook for account terminations!

Posted by Eric at 11:12 AM | Content Regulation , Licensing/Contracts | TrackBack

May 20, 2011

Another Ruling that the Americans with Disabilities Act Doesn't Apply to Websites--Ouellette v. Viacom

By Eric Goldman

Ouellette v. Viacom: The magistrate report: 2011 WL 1882780 (D. Mont. March 31, 2011). The judge's approval of the magistrate's report: 2011 WL 1883190 (D. Mont. May 17, 2011). The original complaint (he filed an amended complaint that served as the basis of these rulings).

[Note: this lawsuit is gossip-worthy because the plaintiff named YouTube and Viacom as co-defendants, leading to the possibility that they might work together on a joint defense despite their bitter feud in Viacom v. YouTube.]

Just yesterday, I blogged about Young v. Facebook, in which Judge Fogel held that Facebook wasn't covered by the Americans with Disabilities Act because it wasn't a physical place. In this unrelated ruling (there were no cross-citations between the opinion), YouTube and MySpace get a virtually identical ruling. Perhaps we will see enough precedent develop that websites aren't covered by the ADA to suppress further plaintiffs forays. Today's rulings also have some interesting discussion about the application of 17 USC 512's safe harbors to a user whose content is removed.

Plaintiff filed this lawsuit pro se and in pro per. Trying to summarize, it appears his main allegations are that YouTube and MySpace wrongfully removed his videos in response to allegedly bogus takedown notices from Viacom and other content owners. Because of his pro per status, the court does an initial screen to determine if the claims are frivolous. In February, the court determined that Claim I, the "DMCA" claim, wasn't frivolous--presumably, a 512(f) claim against the content owners for a bogus copyright takedown notice.

The two rulings prompting this post--the magistrate report and judge's approval--dismiss the other claims as frivolous, including the rejection of:

* a claim that the defendants violated his fair use rights. The court says that fair use is a defense, not a cause of action.
* a 512(f) claim against the defendants other than the content owners. Even though 512(f) could apply generally, the plaintiff never alleged any actual misrepresentations made by the specified defendants.
* claims that YouTube's contract had an improper venue clause (even if true, Google let the case proceed in Missoula, so the clause wasn't used) and that the contract let third parties harass him, to which the magistrate says "Under the facts alleged by Ouellette, however, Google and YouTube cannot be liable for the conduct of any third party."

After breezing through those claims, the magistrate takes a little more time with the ADA claim. The plaintiff is dyslexic. The magistrate summarizes his contention: "he alleges those Defendants discriminated against him based on his reading disability, and deprived him of access to their internet services and their “online theater”—a “place of public accommodation” governed by the ADA." Citing the AccessNow v. Southwest Airlines case, the magistrate says "an internet website, by itself, is not an actual place, or a physical, concrete structure that would qualify as a place of public accommodation under the ADA." Similar to the discussion in yesterday's Young v. Facebook ruling, the magistrate responded:

His allegations fail to identify any actual, physical place where Defendants' services are made available, and fail to assert any connection between the internet websites he sought to access, and any actual, physical structure or facility through which Defendants' services could be accessed or provided. To the contrary, Ouellette alleges only that Defendants' conduct has impeded his access to certain internet websites

In approving the magistrate report, the judge rejects the plaintiff's objection that a website's servers are the requisite physical place:

Neither a website nor its servers are “actual, physical places where goods or services are open to the public,” putting them within the ambit of the ADA. Weyer v. Twentieth Cent. Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.2000). The public access production facility might amount to such a place, but there is no nexus between the websites and Ouellette's inability to access that physical place.

The magistrate also rejects the plaintiff's attempts to turn 17 USC 512 into an affirmative cause of action. As I read it, the plaintiff argued that the defendants' failure to follow the notice-and-takedown and counter-notice/putback provisions of 512 creates an affirmative cause of action for a user who posted the affected content. This claim is putatively separate from the 512(f) claim, which I believe is the only affirmative cause of action in 512; in my opinion, the remainder of 512 is all a safe harbor. The magistrate (approved by the judge without substantive comment) rejects the plaintiff's argument:

Ouellette's reliance on the takedown and counter notice safe-harbor procedures in the DMCA is misplaced. The Defendants' alleged compliance, or non-compliance with the procedures does not provide a basis for liability. Defendants' liability to Ouellette, if any, could only be imposed under existing principles of law independent of the DMCA's procedural requirements. Ouellette's allegations, however, do not invoke any independent theory of liability. Therefore, his claims founded upon the DMCA should be dismissed.

I'd be more excited about these rulings if it didn't involve a pro per plaintiff, because then they might be more persuasive to other judges. Nevertheless, these rulings are a useful warning to future plaintiffs that it's frivolous to argue that websites are governed by the ADA and that failure to follow the notice-takedown-counternotice-putback procedures in 512 creates a cause of action.

Posted by Eric at 07:35 AM | Content Regulation , Copyright , Derivative Liability , Licensing/Contracts | TrackBack

May 19, 2011

Facebook User Loses Lawsuit Over Account Termination--Young v. Facebook

By Eric Goldman

Young v. Facebook, Inc., 2011 U.S. Dist. LEXIS 52711 (N.D. Cal. May 17, 2011). My post on Judge Fogel's Nov. 2010 dismissal of this case with leave to amend. Karen's lawsuit-related website.

I respect people of conviction, especially when they persevere in the face of long odds. Karen Young is such a person. After Facebook terminated her account, she drove across the country to try to get answers from Facebook in person--and after a very brief return home, stayed in the Bay Area to get results from Facebook (via litigation or otherwise) over her terminated account. Indeed, she dropped by my office a few months ago (unscheduled) to talk about her case. I told her in person that she should go back home because it didn't make sense to put her life on hold fighting Facebook. A woman of conviction, she has held fast. Nevertheless, after this ruling, perhaps she will decide to end her vigil.

Young has bipolar disorder. She sued Facebook for ADA violations for failing to provide adequate customer support to individuals with mental disabilities. The court rules that the ADA is inapplicable to Facebook because it's a website, not a physical place. The court says:

Despite its frequent use of terms such as "posts" and "walls," Facebook operates only in cyberspace, and is thus is not a "place of public accommodation" as construed by the Ninth Circuit. While Facebook's physical headquarters obviously is a physical space, it is not a place where the online services to which Young claims she was denied access are offered to the public.

To get around this, Young argued that some other circuits have directly or impliedly extended the ADA to virtual places. Judge Fogel rejects this as inapplicable in the Ninth Circuit. Young also invoked Judge Patel's troubling opinion in NFB v. Target, arguing that (like Target) Facebook had the requisite "nexus" to a physical place because it sells gift cards in physical retail stores. This argument fails because Facebook doesn't own or control those physical outlets.

The related state claims also fail. The Disabled Persons' Act claim fails for the same reasons as the ADA claim. The Unruh Act claim fails because Young was griping that Facebook's customer support was too hard for someone in her condition to navigate, but she didn't show that Facebook treated bipolar individuals discimrinatorily or that Facebook's policies targets disabled individuals.

Young's breach of contract claim fails because Young never specifically identified a breach, and her negligence claim fails because he didn't allege any source of a duty. Judge Fogel also shuts down the implied good faith obligation bypass. In his prior ruling, he left open the door, saying "[i]t is at least conceivable that arbitrary or bad faith termination of user accounts, or even termination of user accounts with no explanation at all, could implicate the implied covenant of good faith and fair dealing." Young doesn't clear this threshold because the only evidence she cited--Facebook's termination email--expressly explained Facebook's reasons for the termination. (The opinion doesn't tie this knot, but it seems that those expressed reasons didn't show bad faith). Although this isn't expressly connected to the Smith v. TRUSTe ruling, it's interesting that this is the second judge in a few months interested in whether the website told users why they are getting ousted. This is in conspicuous contrast to the pressures coming from Barnes v. Yahoo for websites to tell users less, not more, to avoid promissory estoppel arguments.

The opinion concludes with a little advice for Facebook:

The Court is not without sympathy for Young's plight. Young was understandably frustrated that she could not discuss the termination of her account with a live person, and both this frustration and the loss of her access to Facebook's social network had a particularly acute impact on Young because of her bipolar condition. As customer service functions increasingly are handed over to automated systems, it is important that service providers, such as Facebook, understand the implications that such practices can have for the less sophisticated and more vulnerable. However, because Young's amended complaint does not state a cognizable legal basis upon which relief may be granted, it must be dismissed. Because the amended complaint fails to address many of the issues identified by the Court in its previous order, and because it appears that there is no realistic possibility that further amendment could cure the deficiencies in Young's pleadings, leave to amend will be denied.

A few observations about this result:

* the opinion doesn't mention 47 USC 230(c)(2), although I think the immunity might very well apply to some or all of Young's claims. I will have more to say about that in an upcoming UC Irvine Law Review article.

* whether or not 47 USC 230(c)(2) applies, it almost never makes sense for a user to sue a website over account termination. Those lawsuits are almost always a huge waste of time and money.

* Even though the ADA and related state statutes do not apply to websites, websites often can and should voluntarily do more to accommodate users with various physical and mental challenges. Not only is that often a smart business decision, it's often the right thing to do.

UPDATE: Facebook emailed me the following statement: "We want Facebook to be available to everyone, including people with unique needs, and have worked hard to create tools and resources to educate people about our service and its rules. While we're pleased with the court's decision, we'll continue to invest in this area."

Posted by Eric at 01:29 PM | Content Regulation , Licensing/Contracts | TrackBack

May 12, 2011

Judge Refuses to Block Seattle's Yellow Pages Opt-out Law -- Dex Media v. Seattle

[Post by Venkat Balasubramani]

Dex Media West, Inc. v. City of Seattle, C10-1857JLR (W.D. Wash.; May 8, 2011)

I blogged a ways back about Seattle's yellow pages opt-out law and a First Amendment challenge brought by yellow pages companies. I thought the law violated the First Amendment in several respects. ("Yellow Pages Companies Challenge Seattle Opt-out Ordinance on First Amendment Grounds.") As of the first round at least, I'll have to eat crow. Judge Robart rejected plaintiffs' First Amendment arguments and denied a request brought by several yellow pages companies to enjoin application of the statute.

First, the court concludes that yellow pages are commercial speech, which is not entitled to "the highest level of First Amendment protection." Plaintiffs argued that even if the directories constitute commercial speech, they are still deserving of a high degree of protection because the commercial and non-commercial speech in the yellow pages are 'intextricably intertwined'. The court rejects this argument.

Using an intermediate level of scrutiny applicable to commercial speech, the court finds that plaintiffs are unlikely to succeed on the merits of their First Amendment claims. The court credits the city's significant interests in reducing waste, protecting the privacy of its residents, and cost recovery. The court notes that the opt-in nature of the system means that the residents (and not the city) make their privacy choices vis-a-vis the yellow pages.

The court finds that the means chosen by the city to regulate the evils in question bear a "reasonable fit" to the ends. The opt-out registry provides "more than ineffective or remote support" for the city's stated interests. [You know when the court holds the government to a "more than ineffective" standard, the First Amendment plaintiff will be out of luck.] The court also rejects plaintiffs' argument that inclusion of the city's required message is compelled speech because it's more of a labeling requirement, which requires disclosure of "purely factual and uncontroversial information."

The court didn't discuss in detail what I thought were the two most problematic aspects of the statute: the fact that the statutory scheme singles out yellow pages and creates exceptions to satisfy local business interests and creates a licensing scheme for yellow pages.

I'm not a fan of yellow pages and promptly recycle any yellow pages that are delivered to me. I suspect many people are in the same boat. But our distaste for particular pieces of content shouldn't necessarily result in tolerance for ill-structured attempts at regulation. Interestingly, the court finds that the city had a valid basis for singling out yellow pages, because it did so "in response to concerns raised by Seattle residents regarding the unwanted delivery of yellow pages directories." If all that is required to single out particular categories of speech is complaints from a few citizens - as opposed to legislative findings - the government will end up having leeway to block all sorts of unpopular speech.

We'll see what the Ninth Circuit says if the yellow pages plaintiffs appeal (no word yet if they plan to do so). Of course, at a certain point, given the travails of the paper phone book industry, this will become a moot issue.

Other coverage:

"Judge's ruling lets Seattle residents opt out of receiving yellow pages" (Seattle Times)

Posted by Venkat at 08:59 AM | Content Regulation , Marketing

May 11, 2011

47 USC 230 and Message Board Cases

By Eric Goldman

[I've been sitting on this blog post since March, so this post is slightly out of date. For example, I believe the recent Kruska ruling would be a new addition to the list. Putting aside any recent developments, I think this post tells a strong story about 47 USC 230's sweet spot.]

In March, I had the opportunity to research cases where 47 USC 230 applied to message board postings. Here's a report on what I learned:

In general, 47 U.S.C. § 230 means that websites are not liable for third party content except for federal criminal prosecutions, intellectual property claims, or claims under the Electronic Communications Privacy Act or state law equivalents. All other claims predicated on third party content are preempted.

As a specific application of the general rule, the statute immunizes websites from defamation claims based on user-submitted content. When websites allow users to post comments and those comments are defamatory, 47 U.S.C. § 230 eliminates the website’s liability for the comments.

The 47 U.S.C. § 230 immunity applies to media publishers who publish their articles online and let readers respond to those articles via defamatory comments. Two recent cases illustrate this point.

In Miles v. Raycom Media, Inc., 2010 WL 3419438 (S.D. Miss. Aug. 26, 2010), the WLOX television station in Southern Mississippi posted an allegedly defamatory article about the plaintiff to its website and allowed reader comments. She sued the television station for defamation based on both the article and reader comments submitted in response to the article. The court dismissed her defamation claim based on reader comments per 47 U.S.C. § 230.

In Collins v. Purdue University, 703 F. Supp. 2d 862 (N.D. Ind. March 24, 2010), the Journal & Courier newspaper in Lafayette, Indiana, published an article allegedly defaming the plaintiff in both the newspaper’s print and online editions. The online edition allowed reader comments. The plaintiff sued the newspaper for defamation based on both the article and reader comments submitted in response to the article. The court dismissed his defamation claim based on reader comments per 47 U.S.C. § 230.

A larger number of cases address a website’s liability for operating online “message boards” or similar functionality that allows third parties to post allegedly defamatory messages. 47 U.S.C. § 230 immunizes the website for the third party defamatory messages. I found over a dozen examples where 47 U.S.C. § 230 applied to such defamation claims since 2005 [current as of March 2011]:

Two Plus Two Publishing LLC v. Jacknames.com, 2010 WL 4281791 (D. Nev. Sept. 30, 2010)
Milo v. Martin, 311 S.W.3d 210 (Tex. App. Ct. April 29, 2010) (note: posts were to “guestbook”)
Shiamili v. Real Estate Group of New York, Inc., 892 N.Y.S.2d 52 (N.Y. App. Div. Dec. 17, 2009)
Finkel v. Facebook, Inc., 2009 N.Y. Slip Op. 32248 (N.Y. Sup. Ct. Sept. 15, 2009) (note: posts were to private user group)
Joyner v. Lazzareschi, 2009 WL 695539 (Cal. App. Ct. March 18, 2009)
Raggi v. Las Vegas Metropolitan Police Dept., 2009 WL 653000 (D. Nev. March 10, 2009)
Higher Balance, LLC v. Quantum Future Group, Inc., 2008 WL 5281487 (D. Or. Dec. 18, 2008)
Best Western International, Inc. v. Furber, 2008 WL 4182827 (D. Ariz. Sept. 5, 2008)
DiMeo v. Max, 248 Fed. Appx. 280 (4th Cir. Sept. 19, 2007)
Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. Feb. 23, 2007)
Eckert v. Microsoft Corp., 2007 WL 496692 (E.D. Mich. Feb. 13, 2007)
Faegre & Benson v. Purdy, 367 F. Supp. 2d 1238 (D. Minn. Apr. 27, 2005)
Donato v. Moldow, 865 A.2d 711 (N.J. App. Div. Jan. 31, 2005)

Many other 47 U.S.C. § 230 cases involve methods of online user-to-user communication beyond article comments or message board posts, such as online classified advertising, consumer review websites, social networking site user profiles and chatrooms. Those cases are equally clear that the website operator is not liable for user-posted defamatory content per 47 U.S.C. § 230.

Posted by Eric at 08:46 AM | Content Regulation , Derivative Liability | TrackBack

May 06, 2011

Two Recent Social Media Defendants Avoid Personal Jurisdiction

By Eric Goldman

As I've said repeatedly, I try to stay away from blogging Internet personal jurisdiction cases. It's hard to get excited about any civil procedure topic (no offense to the litigators and Civ Pro profs reading the blog!), and it's rare that a new case represents a major change in the Internet jurisdiction jurisprudence. Instead, most cases are very much bound up in their specific facts. Nevertheless, I accumulated two more-interesting-than-average personal jurisdiction cases to share with you now.

Lifestyle Lift Holding, Inc. v. Prendiville, 2011 WL 830280 (E.D. Mich. March 9, 2011)

Pugnacious plaintiff Lifestyle Lift is at it again. The background from the opinion:

In February of 2009, Prendiville posted the following message on a question and answer message board at Realself.com: "Lifestyle Lift: Its just a marketing entity. Lifestyle Lift can be equated to an 'Ask Gary' in legal terms or a "1-800 Dentist." In January of 2010, Prendiville posted more messages on the same website: "Many of the results shown appear to have been multi-hour procedures and are not the results that your average Lifestyle Lift journeyman will be able to achieve in 'about an hour.'" "[C]hoose the Surgeon, not some hyped-up quickie procedure performed by journeymen surgeons ." In April of 2010, Prendiville posted on the site again: "Why would any surgeon work for Lifestyle Lift? There are two reasons, because a successful surgeon is very unlikely to choose this career path: a) just out of training and need the business, b) have been in practice for years and never attained any degree of success."

Lifestyle Lift sued Prendiville for a Lanham Act violation and related claims. The court dismissed the suit for lack of personal jurisdiction:

LLH has failed to demonstrate that Prendiville's page on RealSelf is sufficiently interactive to establish purposeful availment in Michigan. LLH has also failed to show that Prendiville purposefully availed itself of acting or producing consequences in Michigan because his actions are not sufficient focused on the state nor would the state feel the brunt of any alleged injury.

Selected prior blog posts on Lifestyle Lift:
- Lifestyle Lift Settles NYAG Claim Over Fake Consumer Reviews
- Lifestyle Lift Tries to Use TM Law to Shut Down User Discussions; Website Countersues for Shilling--Lifestyle Lift v. RealSelf. As you can see, having failed to shut down RealSelf’s discussion of Lifestyle Lift generally, Lifestyle Lift may be going after individual RealSelf contributors.

Shymatta v. Papillon, 2011 WL 1542145 (D. Idaho April 21, 2011)

Shymatta is a retailer operating at celljunkie.com. He brought a trademark infringement suit against Papillion for running a blog that reviews cellphones at cellphonejunkie.com. The court dismissed the lawsuit for lack of personal jurisdiction. The court’s relevant discussion:

Mr. Shymatta's argument that Mr. Papillon maintains a commercially interactive website available to Idaho users that falls at the extreme end of the Zippo sliding scale is unavailing. Mr. Papillon does not manufacture, design, stock, sell, or ship any cell phone related product; when he reviews a cell phone or related product, he provides a link to a retailer that sells the product for the ease of the reader. No profit is received by Mr. Papillon for these links….The fact that Mr. Papillon sells a small number of premium podcast subscriptions advertised on his website does not render it commercially active. To subscribe, an interested party must e-mail Mr. Papillon separately; the transaction is not conducted on the website….The podcasts are also available for free listening on the website. At most, Mr. Papillon's website falls into the middle ground of the Zippo sliding scale because there is some minimal user interactivity. Visitors to the website may post their own personal comments at the end of Mr. Papillon's blog posts. Such minimal interactivity, coupled with the lack of commercial activity, is insufficient to convey general personal jurisdiction subjecting Mr. Papillon to being "haled into court in the forum state to answer for any of its activities anywhere in the world."

This discussion is garbled, of course, because the Zippo test applied to specific jurisdiction, not general jurisdiction, although "high" level of interactivity in the Zippo test is the de facto equivalent of general jurisdiction. This ruling is nice because it denies jurisdiction not only for normal blogging activities but also "enhanced" blogging activities like putting podcasts behind a paywall.

Selected related posts

* Creation of False Blog and LinkedIn Account Targeting Utah Resident Supports Personal Jurisdiction in Utah -- Buckles v. Brides Club, Inc. (August 2010)
* Three Gripers Get Disadvantageous Jurisdictional Appellate Rulings in Defamation Cases (June 2010)
* Ripoff Report Sues Blogger, Loses on Jurisdictional Grounds--Xcentric Ventures v. Bird (February 2010)
* Defamation Lawsuit Against Blogger Dismissed on Jurisdictional Grounds--Fahmy v. Hogge (October 2008)
* Connecticut Blogger Not Subject to Texas Jurisdiction--Healix Infusion v. Helix Health (May 2008)
* Blog Defamation Lawsuit Lacks Jurisdiction--TrafficPower.com v. Seobook.com (February 2006)

Posted by Eric at 09:40 AM | Content Regulation | TrackBack

May 05, 2011

Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation--Doninger v. Niehoff (Guest Blog Post)

By John E. Ottaviani*

*John Ottaviani is a partner in the firm of Edwards Angell Palmer & Dodge, LLP, and is an occasional guest blogger. The opinions expressed are his own, and are not attributable to his Firm, to Eric Goldman or to any other organization.

Doninger v. Niehoff, No.09-1452-cv (L) (2d Cir. Apr. 25, 2011)

Maybe it’s just a sign of the times. Why would anyone spend four years and who knows how much money making a federal case over a high school’s refusal to permit a girl to run for Senior Class Secretary in response to her off-campus blog post in which she called school officials “douchebags”? If the Internet had been around when we were in high school and I did something like that, my parents would have ensured that my consequences would have been swift and immediate, and most likely physically painful.

Background

The basic facts are not too complicated, although there are differing accounts as to some of the facts. In the Spring of 2007, Ms. Doninger (then a junior at Lewis S. Mills High School in Burlington, Connecticut) and other Student Council members were planning an annual battle-of-the-bands concert called “Jamfest.” Several days before the event, the students were told that the concert would either have to be moved to the smaller cafeteria or rescheduled, due to the unavailability of the teacher responsible for operating the school’s sound and lighting equipment in the auditorium.

Acting like typical teenagers with no impulse control, the students (including Ms. Doninger) accessed a personal e-mail account from the school’s computer lab (in violation of a written school policy) and sent a mass e-mail alerting parents, students and others that the concert could not be held in the school auditorium and urging them to contact the administration and ask that the students be allowed to use the auditorium.

Some facts are in dispute about what happened later that day when the school’s principal met with Ms. Doninger. The principal claimed that she told Ms. Doninger that the e-mail was inaccurate, that the student’s could hold the concert in the auditorium at a later date if they did not want to use the smaller cafeteria, and that Ms. Doninger’s conduct was unbecoming of a class officer. Ms. Doninger’s version is that the principal cancelled the concert, with the possibility of rescheduling later “if [the students] play [their] cards right,” and that the principal said nothing about her responsibilities as a class officer.

What is undisputed is that Ms. Doninger went home that night and posted an entry on her LiveJournal blog in which she advised that “jamfest is cancelled due to douchebags in central office …” and urged parents and students to contact the superintendent and principal “to piss her off more.”

A few weeks later, when Ms. Doninger met with her principal to accept her nomination for Senior Class Secretary, the principal asked her to withdraw her candidacy because her behavior violated the principles governing student officers set out in the school’s student handbook. The principal refused to let Ms. Doninger’s name appear on the ballot, to let her speak at a school assembly regarding the election, or to let students wear T-shirts promoting Ms. Doninger’s candidacy. Apparently, Ms. Doninger still won the election with a plurality of the votes cast, but she was not allowed to serve. Ms. Doninger was not otherwise disciplined or suspended from school at any time.

Ms. Doninger’s mother filed a complaint in 2007 in Connecticut state court, alleging violations of Ms. Doninger’s Constitutional rights and state law. The school officials removed the case to federal court. Ms. Doninger then filed a motion for a preliminary injunction asking the court to void the election for Senior Class Secretary and to require a new election. The request for the injunction was denied (514 F. Supp. 2d 199 (D. Conn. 2007)), and the denial was affirmed on appeal (527 F.3d 41). After Ms. Doninger graduated from high school, the request for the injunction was moot, but she amended the complaint to seek damages for the alleged violation of her Constitutional rights. In January 2009, the district court denied Ms. Doninger’s motion for summary judgment and granted the school’s motion in part. (594 F. Supp. 2d 211 (D. Conn. 2009)). [See Eric’s note of the case]. After motions for reconsideration were denied, both parties appealed to the Second Circuit again.

Decision

The Second Circuit decision exonerated the school officials on all counts. In particular, the Second Circuit: (1) affirmed the District Court’s holding that the school officials had qualified immunity for the claim that Ms. Doninger’s First Amendment rights were violated when the principal prohibited her from running for Senior Class Secretary; (2) reversed the District Court’s holding that the school officials were not entitled to qualified immunity for the claim that Ms. Doninger’s First Amendment rights were violated when they prohibited her from displaying a “Team Avery” t-shirt in the election assembly: (3) affirmed the District Court’s dismissal of Ms. Doninger’s Equal Protection claim that other student officers were not similarly punished; and (4) affirmed the District Court’s dismissal of Ms. Doninger’s claims based on the Connecticut Constitution.

The Second Circuit spent a good part of the decision discussing the First Amendment issues and the Tinker-Fraser-Hazelwood trilogy of U.S. Supreme Court cases governing student expression. The Second Circuit expressly refused to adopt a rule (urged by Ms. Doninger) that students are completely insulated from discipline for speech-related activity occurring away from school property, no matter its relation to school affairs or its likelihood of having effects in school. But then the Second Circuit avoided deciding whether Ms. Doninger’s First Amendment rights were violated when she was prevented from running for Senior Class Secretary, by finding that the school officials were entitled to “qualified immunity” from the claims.

Under a qualified immunity analysis, a court conducts a two-part inquiry: (1) whether the facts, when viewed in the light most favorable to the plaintiff, show that the official’s conduct violated a Constitutional right; and (2) whether the right at issue was clearly established at the time of the official’s alleged misconduct. If it is objectively reasonable for an official to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity. The Second Circuit did not reach a conclusion as to whether the school officials violated Ms. Doninger’s Constitutional rights. Rather, the court concluded that any First Amendment right Ms. Doninger may have had “was not clearly established” given the uncertainty in the legal decisions in this area to date, and that the school officials acted reasonably in the circumstances and were thus entitled to qualified immunity from the claims.

Discussion

Overall, the Second Circuit appears to have reached the proper conclusion here. The court emphasized that the discipline was relatively minor, and that Ms. Doninger’s conduct violated several written school policies to which she had agreed. Ms. Doninger did not simply make the comments orally, on in text messages sent to her friends with some expectation that the school officails would not see them. Rather, she posted her comments on a public website and then made sure school officals would see them by inciting readers to contact the school officials. Unlike some other school discipline cases involving off campus postings or communications (see here and here), the principal here did not overreact. Ms. Doninger was not suspended, and the students were given the choice as to whether to hold the concert on the original date but in the cafeteria, or on a new date in the auditorium. Ms. Doninger was sanctioned because her conduct was viewed as inappropriate for a class officer in that school.

Unfortunately, by avoiding any conclusions on the Constitutional issues, the Second Circuit’s decision did not provide any new practical guidance for the difficult issue as to when a student’s off-campus speech so affects or disrupts school activities that the student can be disciplined in school for the speech. (For example, see Eric’s post from last year where Third Circuit panels reached opposite conclusions on similar facts). Hopefully, the court’s emphatic beatdown of Ms. Doninger’s claims will end this particular dispute, although her attorney has stated that he would take an appeal to the U.S. Supreme Court.

I’m a big defender of the First Amendment, but this case appears to be another example of what we were taught in law school that “bad facts make bad law.” There is no significant freedom of speech issue here, just a refusal by a student and her parent to accept consequences for the student’s bad behavior. Ms. Doninger graduated in 2008, and is now attending college. It’s time to move on.

For additional information and other points of view, some other links:

* Citizen’s Media Law Project
* Student Press Law Center press release

Posted by John Ottaviani at 09:19 AM | Content Regulation | TrackBack

April 20, 2011

Blogger Gets 47 USC 230 Dismissal for Third Party Comment--Kruska v. Perverted Justice

By Eric Goldman

Kruska v. Perverted Justice Foundation Inc., 2011 WL 1260224 (D. Ariz. April 5, 2011)

This is my third time blogging this case. The latest ruling involves a blog, run by Brocious, for people fighting pedophiles. Someone (presumably a third party user) allegedly posted a comment to the blog saying that Kruska had "starved a child." In 2008, I blogged how GoDaddy--in its role as a web host--exited the lawsuit per 47 USC 230. Last Fall, I blogged how Kruska's allegation that Brocious "actively contributed" to the website defeated Brocious' 230 immunity on a motion to dismiss.

Five months later, this case came back to the judge as a summary judgment motion based on 47 USC 230, which the judge granted. Like the Smith v. TRUSTe case, this is a situation where the judge might have been too cautious on the 12(b)(6) motion, causing the case to go longer and cost more money only to reach the inevitable result. Bummer.

The court dismisses the defamation claim for both failure of the prima facie case and on 230 grounds. With respect to the latter, the court's application of the law to this case:

Defendant argues that he is immune from suit under s 230 because "Plaintiff plainly cannot show that Defendant was involved in any of the activities that might otherwise give rise to liability for defamation." Plaintiff asserts that Defendant is not immune because "[s ] 230 does not immunize the actual creator of the content, whether he is a blogger, commenter, or anything else." The Court finds that Defendant is immune from suit under s 230 because at most, Plaintiff sets forth the possibility that Defendant, as the alleged publisher of the Blog, "viewed an[d] approved [the comment] before [it was] published." Such alleged passive participation would be akin to the alleged conduct in Batzel, where the Ninth Circuit held that s 230 immunity applied to a website administrator who selected, edited, and published the contents of an allegedly defamatory comment. Even if Plaintiff's assertion that Defendant took active steps to publish the alleged comment on the Blog was true, such steps are not the type of material contribution to the alleged misconduct that the Ninth Circuit found in Fair Housing Council. [cites omitted]

Good result; but it would have been better if it came on the motion to dismiss. Note that this is yet another case where Roommates.com is cited in favor of the defense; and once again, affirmative publication of content is covered by 47 USC 230. Also, this is another rejection of the plaintiffs' general attack that a site's operator is so hands-on with the site's operations that he/she becomes responsible for all of the content.
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BONUS 47 USC 230 COVERAGE (Another hidden track blog post):

Supplementmarket.com, Inc. v. Google, Inc., 2010 WL 6309991, 17 Pa. D. & C. 5th 321 (Penn. Ct. Common Pleas July 26, 2010)

Occasionally Westlaw spits out a case months or years after it was decided with no apparent explanation for the lengthy delay. Sometimes I get email tips about these cases; other times, the cases just fall through the cracks. This is one of those cases.

This case involves an allegedly defamatory posting to the Usenet newsgroup alt.sport.bodybuilding. I don't get to talk about Usenet very often; see Novins v. Cannon for one similar case. The plaintiff sued because Google failed to remove the post from Google Groups after getting a C&D. This is an incredibly easy 47 USC 230 case, and the court dismisses the suit in a brief opinion. For an analogous Google case, see Black v. Google.

Posted by Eric at 02:35 PM | Content Regulation , Derivative Liability | TrackBack

April 19, 2011

FTC Warns Debt Collector About Using Facebook to Contact Debtor

[Post by Venkat Balasubramani]

In the Matter of Gary D. Nitzkin, P.C. (FTC Letter; Mar. 10, 2011)

Debt collectors have gotten into trouble over the use of social media to contact debtors. (See "Judge Orders Creditor to Stay Off Debtor’s Social Networking Pages.") Facebook has also taken a stand against the use of its service by debt collectors. ("Facebook Warns Debt Collectors About Using Its Service.")

The FTC jumped into the fray as well, and recently issued a closing letter to a lawyer who used social media to contact a debtor. Although the FTC declined to take action in that particular case (because the lawyer only did this on one occasion and the debt in question was a commercial debt which does not fall under the Fair Debt Collections Practices Act), the FTC articulated its position that debt collectors may violate the Fair Debt Collections Practices Act and/or the FTC Act by doing any of the following:

(1) requesting to join debtors' social media networks (for example, by sending a "friend request" on Facebook), or making any subsequent communications, for the purpose of collecting a debt, without making the disclosures required by Section 807(11) of the FDCPA; (2) communicating with third parties other than in the limited circumstances permitted by Section 805(b) of the FDCPA; (3) communicating with third parties to obtain location information about debtors in a manner that violates Section 804 of the FDCPA; (4) utilizing social media in a manner that constitutes a publication of a list of debtors who allegedly refuse to pay debts, in violation of Section 806(3) of the FDCPA; and (5) communicating with debtors or third parties in a false, deceptive, or misleading way, in violation of Section 807 of the FDCPA.

I'm no FDCPA expert, but the FTC's interpretation seems fairly expansive. It looks like the FTC is drawing a protective wall around the social networking profiles of debtors. Effectively, the FTC's approach (for better or worse) will preclude a debt collector from joining a debtor's "social network" for information collection purposes. (Nothing in the FTC's letter restricts a debt collector from privately messaging a debtor, as long as the necessary disclosures are made along with the message. Whether or not a debt collector can privately message a debtor on Facebook without being their 'friend' depends on the debtor's privacy settings.)

Posted by Venkat at 02:23 PM | Content Regulation , Privacy/Security | TrackBack

April 09, 2011

Contacting a Person's Facebook Friends Isn't Stalking--People v. Welte

By Eric Goldman

People v. Welte, 2011 WL 1331900 (N.Y. Just. Ct. April 7, 2011).

The defendant was subject to the following order protecting the mother of his two children: “Respondent is to have no contact with Petitioner including personal or through third person.” The defendant allegedly accessed the mother's Facebook friends list and sent messages to her friends accusing the mom of bad acts. The prosecution's theory appears to be that the defendant anticipated that these friends would pass along defendant's accusations to the mom, so the defendant was accomplishing indirectly what he couldn't do directly.

The court states the "questions presented":

Does communication to a person's acquaintances listed as friends on a facebook account violate a no contact order of protection? Does communication to a person's acquaintances listed as friends on a facebook account onstitute stalking in the fourth degree?

The court says no to both questions. With respect to the no-contact restriction, the prior order didn't expressly restrict the defendant's contact to third parties. With respect to the no-stalking restriction, the prosecution didn't show the defendant had an illegitimate purpose, engaged in a bad course of conduct, intended to harm the mom, or was clearly informed not to have such contact.

As a result, the court dismissed the prosecutor's complaint. Even so, the defendant should probably consider himself lucky here. Many courts would be less sympathetic to the defense, especially where an existing no-contact order is on the books. Plus, the defendant might have violated Facebook's user agreement, creating the possibility of a Lori Drew-style server misuse prosecution by an activist prosecutor. Meanwhile, this is yet another reminder that everyone should keep their Facebook social graph private, especially people who have obtained a no-contact protection order.

Related posts:

* State v. Pierce
* Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages -- In re Alex C.
* Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction -- State v. Drahota
* State v. Ellison

Posted by Eric at 09:54 AM | Content Regulation | TrackBack

April 08, 2011

March 2011 Quick Links, Part 3

By Eric Goldman

Search Engines

* Lots of Google antitrust activity:
- Apparently, an EU antitrust investigation IS something that Microsoft would wish on its worst enemy.
- Every legal regulator in the world is considering antitrust investigations into Google, including Ohio and Wisconsin (see my prior blog post about Texas’ investigation) and the FTC.
- The DOJ approved the Google-ITA merger—with conditions. This is superficially a win for Google, but I expect the anti-merger coalition won’t go away quietly.
- I interviewed with the SF Chronicle about Google and search engine bias (with photos!).

* New Google design features:
- Google lets each person individually block websites from their search results.
- Will Google’s +1 become the gold standard for personalized search, or will it be another failed attempt by Google to get social?
- A rundown of Google Autocomplete and its quirky blocking approaches.

* Blekko blocks 1.1M websites from its search index. Does this create 1.1M new plaintiffs who will sue for their "right" to be in Blekko's index?

* More eye-tracking studies showing that searchers mostly ignore the ads on the right side of the page.

* Rebecca notes that the litigation between eBay and Craigslist has a keyword advertising component.

* Expedia and American Airlines have kissed and made up. My prior blog post.

Social Networking Sites

* Facebook is doing real-time ad targeting. Does this mean we'll get Facebook's notoriously poorly targeted ads faster? Something to look forward to.

* U.S. v. Gamory, 2011 WL 832554 (11th Cir. March 11, 2011). YouTube video being shown in court was a harmless error.

* New York Times: "Across the nation, millions of young people are lying about their ages so they can create accounts on popular sites like Facebook and Myspace....Parents regularly go along with the age inflation, giving permission and helping children set up accounts. They often see it as a minor fib that is necessary to let their children participate in the digital world." My related blog post.

* Spooner v. Associated Press: Another lawsuit over an allegedly defamatory tweet.

* NYT on evolving norms about Twitter etiquette.

* Evan Brown on another sad case of online impersonation.

* Ceglia v. Zuckerberg, 2011 WL 1108607 (W.D.N.Y. March 28, 2011). Mark Zuckerberg is domiciled in CA for purposes of jurisdiction.

* I participated in an ABA Journal Podcast entitled “What Are the Ethics of Lawyer Review Sites Like Avvo?”

Content Regulation

* ICANN approved .xxx. India has already announced it will block .xxx. Meanwhile, how long until the .xxx registry vendor, in a rent-seeking fiesta, goes around to various state legislators and asks them to pass laws requiring pornographers to locate only at a .xxx domain?

* French court tosses a criminal libel prosecution over an academic book review--with sanctions.

* Craigslist drops its lawsuit against former South Carolina AG McMaster.

* The oft-cited study that Craigslist contributes to human trafficking may be junk science.

* An entrepreneurial law firm sets up anti-bullying practice. Expect lawsuits galore to ensue.

* Nature reports on lawsuits over rebuttals to scientific research and how a federal anti-SLAPP law might help. My prior blog post.

Miscellaneous

* A blogger takes down a DHS sting site for underage sex tourism.

* Latest iAWFUL list of bad Internet proposed legislation.

* National Federation of the Blind complains about universities that put students on Gmail accounts, saying the accounts don't work well with speech reading software.

* Senators ask various companies to pull apps that identify drunk driving checkpoints.

* Believe it or not, some ban in-bound links. A list.

Posted by Eric at 11:16 AM | Content Regulation , Domain Names , Evidence/Discovery , Search Engines | TrackBack

April 06, 2011

Republisher of Youthful Sexting Photos Avoids Liability (For Now)--Doe v. Peterson

By Eric Goldman

Doe v. Peterson, 2011 WL 1120172 (E.D. Mich. March 24, 2011)

This is an interesting sexting lawsuit. Doe took explicit photos of herself and sent them via MySpace to her then-boyfriend. She did not follow my recommendations for good legal practices when sexting. The parties dispute how old she was when she took the photos. Doe claims she was just under 18; the ex-boyfriend says she was over 18.

The photos subsequently started appearing at various websites. The opinion doesn't say whodunit. Eventually, someone uploads the photos to exgfpics.com, run by Erik Peterson. (Erik's dad got dragged into the lawsuit as well, but we'll just focus on Erik in this post). [Note: the website is strictly NSFW] The website did not conform to various practices that a lawyer might recommend. Erik apparently curated the photos but didn't verify the age of the women in the uploaded photos, he added his own comments about the photos (sort of in a "thedirty.com" way, although perhaps not as mercilessly mean), and he didn't maintain any 2257 records. Thus, the website occupied a weird zone between a "pure" UGC site and an editorially controlled publication; it's much closer to the latter, but it didn't appear to be run with the legal compliance that is expected of such publications.

Doe learned of the photos at exgfpics.com and asked her ex-boyfriend for an explanation. The case omits details of that conversation. In any case, her ex-boyfriend said he sent some takedown notices to exgfpics.com without results. Then, Doe sent her own takedown notices. Erik says he never saw those. Eventually, Doe sued and served Erik's dad. It still took a few more days before the photos came down.

The case first addresses Erik's "in pari delicto" defense--basically, that Doe broke the law by creating and distributing child porn (pictures of herself), and therefore the law shouldn't help her out. The court rejects the defense, concluding that Doe is considered a victim of the child porn statutes and therefore should not be denied the statutory protection.

At the same time, the court denies Doe's summary judgment motion under 18 U.S.C. 2252A(a)(2), the law that prohibits child porn distribution. The law has a civil remedies component to it, which is at issue here. (The opinion doesn't mention if the feds are considering a prosecution).

The parties still dispute Doe's age when she took the photo, but the court says it would deny Doe's motion even if that wasn't in dispute. The court disregards Erik's failure to maintain 2257 records, saying that only gives rise to criminal liability, and the absence of such records does not satisfy 2252A's "knowing" requirement.

Doe's takedown letters don't confer 2252A knowledge either. The court seems to require that the plaintiff send the republishing website evidence of her real age (such as a driver's license); merely asserting that she was underage aren't enough to create scienter. However, her notices did create inquiry notice, which the court doesn't resolve in this ruling. The court also says that Doe's asserted minority status wasn't apparent from the photos themselves (a fact Doe admitted).

Thus, on the knowledge standard, the court concludes:

At best, Plaintiff's allegations establish that there is a genuine issue of material fact regarding whether Defendants knew she was a minor in the pictures (because they read her emails) or that they were deliberately indifferent to that fact (because they had no verification procedures in place and failed to monitor the website's email accounts). This does not, however, amount to proof that Defendants violated 18 U.S.C. s 2252A as a matter of law.

There are so many oddities about this case, I'm not even sure where to begin. Let's start with the most obvious: why didn't Doe claim a copyright interest in her photos? Either Erik was the original publisher of the photos, in which case he would be strictly liable, or he was storing the photos at the direction of the uploader, in which case a 512(c)(3) takedown should have done the trick. (Although exgfpics.com doesn't have a 512 agent for service of notice, and obviously the site's legal compliance work wasn't the sharpest). I'm still a little confused why Doe didn't bring a copyright claim. Perhaps, like the Moreno v. Hanford Sentinel case, the copyright damages weren't worth the effort. Cf. the Lara Jade Coton case.

Now, a totally different oddity: could Erik claim 47 USC 230 protection here? After all, the photos came from a third party source, and Doe is suing Erik for republishing third party content. 47 USC 230 wouldn't protect Erik from a federal criminal prosecution, but it should apply to Doe's civil claim under federal anti-porn statutes. See, e.g., Doe v. Bates and Voicenet v. Corbett. Perhaps the site's overall structure as a quasi-revenge site might make the site more vulnerable to a Roommates.com attack (it's similar to the harassthem.com analogy in Kozinski's first opinion). Even so, it would have been logical to try the defense, but the opinion didn't mention it at all.

Next, if we're not governed by either 17 USC 512 or 47 USC 230, then exactly what legal standard applies to a web republisher of alleged child porn? The notice-and-takedown approach Doe tried here was potentially less legally effective than it would have been for copyright. That discrepancy seems odd for a civil child porn claim. Even though there is the obvious difficulty ascertaining the depicted individual's age, that information gap is what 2257 tries to fill, and determining age often isn't any more difficult than determining if a photo is free to republish under copyright law.

Finally, it is disquieting to see a commercial web publication publishing nude photos of women without their consent and without any effort to verify their age. (Given the site's premise as a quasi-revenge site, it's not surprising that neither the uploaders nor the site operator attempt to get the depicted individual's consent). Due to child porn's toxicity, this basic architecture seems like bad news. Erik appears to be lucky that this judge was able to maintain a cool head; many other judges would have thrown the book at him. Still, if it turns out that Doe was underage, can a criminal prosecution be avoided?

For another example of sexting gone wrong, you might want to look at this NYT story about what happens when a 13 year old sends a nude picture of herself to her then-boyfriend, who forwards it on to her nemesis, which leads to the photo goes viral, which leads to lots of bad things happening.

Posted by Eric at 09:02 AM | Content Regulation , Derivative Liability | TrackBack

April 05, 2011

Online Booksellers Get 47 USC 230 Immunity for Publisher-Supplied Marketing Collateral--Parisi v. Sinclair

By Eric Goldman

Parisi v. Sinclair, 2011 WL 1206193 (D.C. D.C. March 31, 2011). The complaint. More source documents.

Sinclair self-published a book that Parisi believes defamed him. The book showed up in Books-a-Million, B&N and Amazon. All of the retailers published an allegedly defamatory promotional statement supplied by the "publisher" (in this case, the author). In B&N and Amazon's cases, it appears that Sinclair's self-publication venue, Lightening Source, supplied a data feed that they used to automatically build a display page containing the allegedly defamatory statement.

With respect to the publisher-supplied promotional statement, the online booksellers claimed 47 USC 230 immunity. This proves to be an easy case because the online booksellers simply republished the third party-supplied content. The court explicitly rejected an argument that Books-a-Million "adopted" the publisher's collateral as its own. This is consistent with the uncited Black v. Google opinion. The court also explicitly granted Books-a-Million's 12(b)(6) motion to dismiss, saying that was appropriate when the immunity is apparent on the complaint's face, as it was here. (B&N and Amazon brought summary judgment motions).

Despite this being an easy 230 case, the court delineates two 47 USC 230 boundaries. First, it refuses to embrace the Perfect 10 v. ccBill conclusion that 230 preempts state IP claims, but it doesn't accept the alternative proposition (from the Project Playlist and Friendfinder cases) either. Instead, it dismisses the false light claim (which the court liberally construed as a publicity rights claim) on newsworthiness grounds.

Second, in FN3, the court says that B&N and Amazon can't claim 47 USC 230 immunity for the online sale of physical books delivered in realspace. The court distinguishes the republication of marketing collateral, which are covered by 230, from sale and delivery of the physical books themselves, which are not. This seems like a sensible distinction. Even though 230 immunizes offline conduct when the claim is based on online communications (see, e.g., Doe v. MySpace), offline deliveries of tortious material by the defendant should be outside the scope of 230. For more on this, see the uncited Curran v. Amazon.com case. The court suggests that a Kindle sale--where the online retailer sells third party materials but delivers them electronically--would also drop out of 230's protection. This is consistent with the uncited the Accusearch case, although I personally think 230 can apply in that situation.

Even though 230 isn't availing for the book sales themselves, the booksellers exit the case because they lacked the required actual malice.

Despite the two 230 limits identified by the court, this case is a good 230 win for the defense. Among other things, it reminds us that online retailers are fully eligible for 47 USC 230's immunity if they meet the requisite elements. Also, at our 230 retrospective, Kai Falkenberg of Forbes expressed a worry that this case may require online publishers to clearly demarcate their content from third party content. As it turns out, the consumers' perceived source of the allegedly defamatory content didn't come up in the court's discussion.

Posted by Eric at 10:12 AM | Content Regulation , Derivative Liability , E-Commerce | TrackBack

March 21, 2011

Ninth Circuit Upholds Anti-SLAPP Ruling for Blogger/Griper--Sedgwick v. Delsman

By Eric Goldman

Sedgwick Claims Management Services v. Delsman, 09-16809 (9th Cir. March 21, 2011).

Delsman is a blogging griper about Sedgwick. He made some griping material that included cut-and-pasted headshots of Sedgwick's managers. Sedgwick sued Delsman aggressively. Delsman got a favorable ruling in the district court, including a fair use ruling on the headshots and an anti-SLAPP ruling on the other claims. Shockingly, rather than quietly licking their wounds, Sedgwick appealed the ruling to the Ninth Circuit.

The Ninth Circuit gave Sedgwick a cool reception. In an unpublished 2 page memorandum opinion issued without oral argument, the court breezily told Sedgwick to buzz off. The entire substance of the ruling:

The district court properly dismissed Sedgwick’s defamation and trade libel claims under California’s anti-SLAPP statute because defendant Delsman’s conduct was in furtherance of his free speech rights in connection with an issue of public interest, and Sedgwick did not meet its burden of establishing a probability of prevailing on its claims. See Cal. Civ. Proc. Code § 425.16; Ruiz v. Harbor View Cmty. Ass’n, 37 Cal. Rptr. 3d 133, 140-46 (Ct. App. 2005) (setting forth § 425.16 analysis, and concluding that defendant’s letter containing rhetorical hyperbole was free speech in connection with an issue of public interest and that plaintiff did not establish a probability of prevailing on his libel claim).

The court's final words are: "Sedgwick’s remaining contentions are unpersuasive." It would be hard for the Ninth Circuit to make their lack of interest in Sedgwick's appeal any clearer.

This is a good example of why I think we need a federal anti-SLAPP law. It's not clear the same results would occur in other states with anti-SLAPP laws; undoubtedly, worse results would occur in states with no anti-SLAPP protection.

Posted by Eric at 11:56 AM | Content Regulation | TrackBack

March 16, 2011

FTC Online Endorsement Guidelines Strike Again - FTC Dings Legacy Learning Over Allegedly Misleading Affiliate Reviews

[Post by Venkat Balasubramani with some comments by Eric]

In re Legacy Learning Systems, Inc., FTC File No. 102 3055 [FTC Release] [Complaint (pdf)]

An FTC press release notes that the FTC settled with Legacy Learning over allegations that Legacy improperly utilized affiliates to "promote its courses through endorsements in articles, blog posts, and other online editorial material." Specifically, the FTC complaint alleges:

[Legacy] recruited "Review Ad" affiliates for [Legacy's affiliate program], who promote Legacy’s instructional courses through positive endorsements in articles, blog posts, or other online editorial copy that contain hyperlinks to Legacy’s website in close proximity to the endorsements. [Legacy's] Review Ad affiliates often post such endorsements using statements that give readers the impression the endorsements have been submitted by ordinary consumers.

As noted in the release, the guidelines - which govern endorsements or testimonials - require disclosure of a material connection between a reviewer and a company. Under these guidelines, a positive review from a person connected with the seller or product ("someone who receives cash or in-kind payment to review a product or service" or who gets a cut of the sales) should come with a disclosure. The complaint alleges that twenty-five of Legacy’s "review ad" affiliates were responsible for at least $5 million in sales of Legacy's products.

What did the reviewers do wrong?: Reviewers did not disclose that they were affiliates of Legacy - i.e., received a cut of the sales, and in some cases were paid to review Legacy products . These were not "the independent reviews reflecting the opinions of ordinary consumers." (Examples of the reviews can be found in Exhibit A to the Complaint [pdf].) In some cases, the reviewer websites had disclosures, but the disclosures were anemic at best and were not contained in the posts themselves (e.g., "we are paid by some of the companies who's [sic] products we review" - not exactly a robust disclaimer). [Italics added.]

Where did Legacy go astray: For one thing, Legacy called these affiliates "review ad" affiliates. I would probably avoid this terminology. The complaint did not include a copy of the affiliate terms, so we don't know whether Legacy contractually required the affiliates to comply with the FTC's guidelines or explained how to comply. The complaint also does not specify whether Legacy paid the reviewers for their reviews (it alleges that the affiliates received a cut of the sales), but judging from some of the reviews and the websites of the reviewers, and from Legacy's suggestions to its affiliates, this seems to be the case (at least with some reviewers). Legacy offered suggested disclaimers (to affiliates) on its website but even these were ambiguous ("Affiliate Disclosure Requirements and Examples Legacy Learning Systems"):

[Suggested] Disclosure: We are a professional review site that receives compensation from the companies whose products we review. We test each product thoroughly and give high marks to only the very best. We are independently owned and the opinions expressed here are our own. [emphasis added]

Regardless of what Legacy may have suggested or required of its affiliates, Legacy also did not have any sort of compliance program to make sure that its affiliates made the necessary disclosures.

As part of the (proposed) settlement, Legacy will:

- pay $250,000;
- monitor and submit monthly reports about their top 50 revenue-generating affiliate marketers;
- make sure that affiliates disclose they earn commissions for sales and are not misrepresenting themselves as independent users or ordinary consumers.

Professor Goldman has posted a bunch about possible section 230 issues with the FTC's guidelines ("Do the FTC's New Endorsement/Testimonial Rules Violate 47 USC 230?"; "A Fuller Explanation of Why the FTC Endorsement/Testimonial Guidelines Violate 47 USC 230"). The facts are somewhat similar to those alluded to in his example. Here, Legacy set up an online affiliate program (on its site, using ShareASale). Legacy is the provider of an interactive computer service. Its affiliates are third parties, and Legacy is being sued for content generated by third parties (its affiliates). This looks like Blumenthal v Drudge, where AOL was sued for allegedly defamatory content provided by Drudge and AOL had paid Drudge for the content. The only difference is that here, Legacy was subject to potential liability for content that was placed on the affiliates' websites, whereas AOL was sued for content which Drudge submitted to AOL's website. I don't have a good answer on the Section 230 issue (here's a response to Paul Levy to Professor Goldman's posts on the FTC guidelines and Section 230: "Do the FTC's New Advertising Guidelines Run Afoul of Section 230?"), but it looks like the FTC isn't too worried about Section 230 acting as a bar to enforcing their guidelines against companies whose products are promoted without proper disclosures.

Previously, the FTC went after a company which posted fake reviews on behalf of its client. ("FTC Dings PR Firm for Fake Reviews -- In re Reverb Communications.") The FTC also issued a warning shot to AnnTaylor over gifts to bloggers. ("FTC Drops Investigation of Advertiser Who Gave Gifts to Bloggers.") This time, rather than merely firing the warning shot, the FTC went after Legacy, and extracted a settlement.

_________________

Eric's Comments: I agree with Venkat's post, especially the questions about 47 USC 230's applicability to this situation. I should note that my view on 47 USC 230's applicability is idiosyncratic. In addition to Paul's post, Rebecca Tushnet has also voted that my arguments are bunk. Rebecca Tushnet, Attention Must Be Paid: Commercial Speech, User-Generated Ads, and the Challenge of Regulation, 58 Buff. L. Rev. 721 (2010). Nevertheless, I would love to see someone test the FTC's theory here. I don't see it as a slam dunk that a judge would accept the FTC's theories.

For this post, I'll raise a different issue. I wonder if this case is another step in an ongoing winddown of the online affiliate industry. We're already seeing a big contraction of online affiliate programs due to states' adoptions of the "Amazon tax." As we've seen repeatedly, Amazon and others toss their affiliates overboard when states adopt these laws. (Which ironically makes these laws a type of fool's gold for state legislatures: the laws have failed to generate new sales tax revenues but have reduced income tax bases for the states that have adopted them).

Now, the FTC is taking the position that an affiliate program operator is legally responsible for consumer reviews written by its affiliates that failed to make appropriate disclosures. Furthermore, the program operator's main crime is that it failed to check out these affiliates and find out what they were writing and whether they had made adequate disclosures. The FTC's fix is to require the program operator to monitor 100 affiliates (the top 50 plus another randomly selected 50) each month to see if they are up to no good. What a hassle. The FTC settlement also requires than any non-complying affiliates are supposed to get the axe immediately, without notice or a cure period--a one-strike rule. Nice. At the peril of an FTC investigation, who needs crap like this? For most affiliate program operators, the profit-maximizing response is to just cut loose the long-tail affiliates or shut down the program entirely. Combining this effect with the Amazon tax sweeping the nation, the affiliate industry is on the run.

Another ironic note: I bet many of the program operator's affiliates are, in fact, experts in that market niche and therefore are better positioned than many other consumers to evaluate the product offerings in the niche. So the FTC crackdown may counterproductively reduce the flow of USEFUL consumer reviews about products.

A final irony: courts are less willing to extend liability to affiliate program operators than regulators are. As the most recent example, see the 1-800 Contacts v. Lens.com ruling. We didn't see an affiliate program operator-friendly ruling in the Amazon tax litigation in New York, but I keep hoping that gets reversed on appeal. If it does, and if anyone actually stands up to the FTC juggernaut, perhaps we'll see the courts revitalize the affiliate industry. If not, I say we're at the beginning of the end for affiliate programs as we've known them for the past 15 years.

Posted by Venkat at 02:54 PM | Content Regulation , Derivative Liability , E-Commerce , Marketing

March 03, 2011

Jan.-Feb. 2011 Quick Links, Part 4

By Eric Goldman

Internet Freedom

* The EFF points out the inconsistency between Hillary Clinton's speech championing Internet freedom abroad when our own US government has gone rogue on its own citizens, including unlawful domain name seizures and an obsessive vendetta against Wikileaks.

* Fast Company: Why Twitter stood up for its users against the "secret" Wikileaks subpoena when other sites didn't.

47 USC 230

* Fleming v. Duncan: Yahoo wins 47 USC 230 motion to dismiss in Georgia state court.

* Neeley v. NameMedia, Inc., 2010 WL 5677069 (W.D. Ark. Dec. 16, 2010). 47 USC 230 preempts "outrage" claim over displaying nude photos in search results. A complementary follow-up ruling: Neeley v. NameMedia, Inc., 2011 WL 336174 (W.D. Ark. Jan 31, 2011).

* Several professors contributed essays to a book critical of 47 USC 230. Paul Levy takes them on.

* Jonathan I. Ezor, Busting Blocks: Revisiting 47 U.S.C. § 230 To Address The Lack Of Effective Legal Recourse For Wrongful Inclusion In Spam Filters, Richmond Journal of Law and Technology (Fall, 2010).

Spam

* Facebook, Inc. v. Fisher, 2011 WL 250395 (N.D. Cal. Jan. 26, 2011). Facebook gets $360M default judgment against spammers.

* Goodmail shutting down.

History

* Antone Johnson on the dot-com hangover of 2000-2002.

* 25 Best Startup Failure Post-Mortems of All Time.

Miscellaneous

* You can watch video from Next Digital Decade event. More on that event: 1, 2, 3. If you haven’t looked yet, you should check out the book.

* Unique Products Solutions v. Hy-Grade Valve (N.D. Ohio Feb. 24, 2011). Patent false marking qui tam process is unconstitutional.

* Shrader v. Biddinger, 2011 WL 678386 (10th Cir.(Okla.) Feb 28, 2011). In this Internet jurisdiction case, the Tenth Circuit adopts ALS Scan v. DSC as its test rather than Zippo.

* FairSearch.org has a new partial rival, Faretransparency.org, the web front for the Open Allies for Airfare Transparency, "a coalition representing all of the stakeholders in the travel booking industry, works to promote price transparency and full access to airline pricing and fee information." It's chaos in the online travel booking industry right now!

* Very useful table: State Cyberstalking, Cyberharassment and Cyberbullying Laws

* Evony sues its user for automated mapping of its site.

* ABA Journal: "For Federal Plaintiffs, Twombly and Iqbal Still Present a Catch-22"

* Direct Marketing Association v. Huber, No. 10-cv-01546-REB-CBS (D. Colo. Jan. 26, 2011). Judge strikes down Colorado's attempt to impose an "Amazon" tax as unconstitutional. My previous reference to the law.

* In the Silicon Valley, being the "Craigslist Congressman" might be considered a compliment. Unfortunately, that term will now be pejorative.

* Segal v. Amazon, 2:11-cv-00227 (S.D. Fla. Feb. 4, 2011). Amazon's participation agreement's venue selection clause upheld.

* Rep. Matheson wants to require age authentication to access online porn. Been there/done that 13 years ago with COPA. Lest you forget, it was unconstitutional.

Funny Stuff

* French second-graders are shown items like an old Fisher Price record player and 3.5 and 5 inch floppies and are totally baffled by them. Funny video.

* Great Dilbert strip riffing on the old joke of how you know if a lawyer is lying.

Posted by Eric at 11:53 AM | Content Regulation , Derivative Liability , Internet History , Patents , Spam | TrackBack

March 02, 2011

Unsuccessful 230(c)(2) Defense for Blog Comment--Mealer v. GMAC

By Eric Goldman

Mealer v. GMAC Mortgage LLC, 2011 WL 744895 (D. Ariz. Feb. 24, 2011)

Mealer is an automotive entrepreneur. He posted about General Motors to his company blog. He alleges that Kordella, a GM engineer, disparaged Mealer in a comment to Mealer's blog post. Apparently, this was quite a comment, because "Mr. Mealer believes that those remarks had considerable sway on potential investors such that Mealer Companies lost all potential investment capital to the tune of $200,000,000." He sued (pro se, naturally) a whole host of defendants, all of whom are now out of the case except for GMAC and related companies.

The moment Mealer started claiming $200M losses, he kind of lost any possible credibility he might have had. Indeed, the court makes it pretty clear his claim is going nowhere, later on saying "Mr. Mealer has asserted tenuous and abstract defamation-related claims against GMAC on the doubtful basis that GMAC owned computer equipment or provided internet access that facilitated blog commentary." This particular ruling also doesn't address the obvious question of when Mealer deleted the unwanted comment from his blog.

GMAC asserted a 47 USC 230(c)(2) defense against liability for Kordella's comment. We don't get many 230(c)(2) cases (in comparison to 230(c)(1), which comes up a lot). 230(c)(2) immunizes a website's own filtering decisions, as opposed to 230(c)(1)'s immunity for third party content. The short opinion doesn't explain the relationship between Kordella and GMAC--presumably not an employee-employer relationship if Kordella worked for GM--but apparently GMAC didn't do enough to explain how GMAC did the requisite filtering that 230(c)(2) immunizes. Because the facts aren't adequately connected to the legal defense, the court rejects it. The news isn't all bad for GMAC; even though it didn't get its 230(c)(2) defense, it is still clearly going to win this case.

Although GMAC didn't assert it, the court intimates that a 230(c)(1) defense may have been available. Presumably, if Kordella isn't GMAC's employee, then there's no theory to connect GMAC to Kordella's post that survives 230(c)(1). See, e.g., Novins v. Cannon. This case reminded me a little of the uncited Delfino v. Agilent case, where an employer got a 230(c)(1) defense for an employee's Internet conduct when the employer basically only acted as the Internet access provider to the employee for purposes of the tortious conduct. Where GMAC isn't even the tortfeasor's employer, the 230(c)(1) case seems even stronger.

Posted by Eric at 10:21 AM | Content Regulation , Derivative Liability | TrackBack

February 27, 2011

Jan.-Feb. 2011 Quick Links, Part 2

By Eric Goldman

Search Engines

Google’s search algorithm has been very much in the news the past 2 months!

* Google’s announcements:
- “Google search and search engine spam”
- Matt Cutts explains Google penalties in a video.
- “Microsoft’s Bing uses Google search results—and denies it.” Comments from Search Engine Land and Greg Linden (on privacy)
- Interview with Amit Singhal on content farming

* Google publicly penalized numerous targets, including
- JC Penney, punished for black hat SEO (the 4th time Google had penalized them).
- Overstock, punished for coopting too many .edu domains
- Forbes, punished for passing PageRank to paid links
- Then, Google dropped the hammer on content farms

The running question with all of these changes: should we praise—or regulate—Google for fighting back against the algorithm gamers? My 2006 article on search engine bias answers that question. I recently wrote a short essay updating the 2006 article—more on that soon.

* Speaking of regulators, they are hardly standing on the sidelines:
- EU regulators hate Google. They really hate Google.
- The Italian antitrust authority dropped its investigation into Google News after Google agreed to make it easier for publishers to opt-out.
- More details emerged on the Texas AG’s investigation into Google. WSJ and AllThingsD (including the actual letter). My prior blog post.
- Interestingly, FWIW, it’s not clear consumers are sold on the need for regulatory intervention. 77% of Americans say "there is no need for government regulation of the way that search engines select the recommendations they provide in response to search inquiries." Then again, survey wording is key. I could see an equal percentage say that we should prevent search engine bias.

* Questions about Google’s algorithms:
- Techdirt: "Will Google's New Hamfisted Censorship On Autocomplete Raise Questions Of Human Meddling?"
- News.com: Google's double standard on user-generated content

Privacy

* H.R. 654, "Do Not Track Me Online Act of 2011." The law would require the FTC to promulgate regulations that “establish standards for the required use of an online opt-out mechanism to allow a consumer to effectively and easily prohibit the collection or use of any covered information and to require a covered entity to respect the choice of such consumer to opt-out of such collection or use.”

* Information Law Group's 2010 privacy law recap.

* Jeff Jarvis: "the emergence of Privacy, Inc., as a industry built on scaring people is beginning to scare me."

Remember, every regulation creates winners and losers, and we should always ask what’s in it for the winners. On that score, see James D. Campbell et al, Privacy Regulation and Market Structure, reaching the conclusion: “privacy regulation can benefit incumbents and reduce innovation.”

* Lyall v. City of Los Angeles, Not Reported in F.Supp.2d, 2011 WL 61626 (C.D. Cal. Jan. 6, 2011). Publicizing an event on MySpace made the event space into a public place for purposes of a police search.

* After Pineda v. Williams-Sonoma treating zip codes as private information, a flood of lawsuits. In response to the Supreme Court's ruling, Sacramento urgently needs to make a statutory fix to Song-Beverly to avoid business-sapping and socially wasteful litigation.

* FTC: Data Resellers Liable for Downstream Security Failures

Social Media/Web 2.0

* Reuters: "Companies warily eye new consumer complaint sites"

* Mountain View Voice: Contractor files big claim for bad Yelp review.

* Teacher is suspended for blogging about her "whiny" students. Compare Yoder v. Univ. of Louisville.

* Reuters recaps e-discovery of social networking site content.

* NYT: Is blogging passé?

* Facebook ads have really low clickthrough rates, but the clickthrough rate improves if another user "likes" the ad.

* Unintended consequences of CA's E-personation law are beginning to manifest themselves. Apple goes after the @ceostevejobs parody Twitter account.

* NYT surveys some esoteric niche online dating websites.

* U.S. v. Forde, 2011 WL 63831 (4th Cir. Jan 10, 2011):

In a post-trial motion, Forde informed the district court that while the trial was proceeding, a friend of the husband of the jury foreperson posted on Twitter an explanation of the difference between “assume” and “presume.” Ford contended that, since the posting occurred during trial, it was possible that the jury foreperson had talked to her husband about the case, her husband then talked to his friend about the case, the friend then posted the statement on Twitter, and the foreperson saw the Twitter posting. Forde thus requested that the district court hold a hearing to investigate the potential misconduct. The district court denied the request.

...Forde's string of possibilities about the origin of the Twitter posting—that the foreperson possibly talked to her husband, who possibly talked to his friend, who possibly took to Twitter in response to what the husband possibly told him—is nothing but speculation and thus falls far short of establishing reasonable grounds for investigation. The district court therefore did not err by denying Forde's request for an evidentiary hearing to investigate his claim.

Posted by Eric at 04:22 PM | Content Regulation , Evidence/Discovery , Marketing , Privacy/Security , Search Engines | TrackBack

February 16, 2011

Ripoff Report Gets Another 47 USC 230 Dismissal--Herman v. Xcentric

By Eric Goldman

Herman v. Xcentric Ventures, LLC, 1:10-cv-00398-CAP (N.D. Ga. Feb. 14, 2011)

This is a run-of-the-mill lawsuit against the Ripoff Report by an unhappy vendor. Herman is a lawyer (once again, the dreaded lawyer-as-plaintiff) unhappy with a posted report from a client alleging bad service. The court churns it out in a brief and workmanlike opinion.

Quoting from Ripoff Report's summary judgment motion, the opinion says:

Since the CDA was enacted in 1996, every state and federal court that has considered the merits of a claim against the Ripoff Report has, without exception, agreed that Xcentric and Magedson are entitled to immunity under the CDA for statements posted by third-party users.

I know some plaintiff attorneys will look at that language as a thrilling challenge--NOT YET, they think. However, every Ripoff Report plaintiff should anticipate having this language cited against them.

Continuing to borrow liberally from Ripoff Report's motion, the opinion addresses two common contentions in Ripoff Report 230 litigation:

* the fact that the Ripoff Report added some components to its web page does not make Ripoff Report responsible for user-supplied portions. The court says "Because the defendants only created the generic portions of the Ripoff Report website and did not create or alter any part of the report about the plaintiffs, the CDA applies to bar the plaintiffs’ claims regarding the report and title at issue here."

* the "Ripoff Report" branding does not communicate anything about each individually profiled company. The court says "no reasonable reader would believe that the application of the term “Ripoff Report” implies the existence of any facts beyond those contained in the specific reports appearing on the defendants’ website. The plaintiffs cannot defeat the robust immunity of the CDA by trying to creatively plead around it."

This is a super win for the Ripoff Report and another sign that courts just don't want to hear the plaintiffs' arguments (no matter how creative/desperate) trying to put the Ripoff Report on the hook for user postings. I remain amazed how at many plaintiffs take on the Ripoff Report despite this unfavorable dynamic.

Posted by Eric at 09:22 AM | Content Regulation , Derivative Liability | TrackBack

February 11, 2011

Defamation, False Information & 47 USC 230 Talk Slides

By Eric Goldman

Earlier this week, I spoke at a PLI event, "Social Media 2011: Addressing Corporate Risks," on the topic of "Defamation, False Information and 47 USC 230" (this link takes you to the talk slides). I tried to skew the presentation towards topics that are relatively specific to social media defamation as opposed to generally applicable defamation issues. This also gave me yet another chance to remind folks about our 47 USC 230 conference on March 4, and the last slide (which I didn't reach during the presentation) previews some points I will make in more detail in my forthcoming paper on 47 USC 230.

Posted by Eric at 12:02 PM | Content Regulation , Derivative Liability | TrackBack

February 07, 2011

Court Dismisses Class Action Against Spokeo for Lack of Standing -- Robins v. Spokeo

[Post by Venkat Balasubramani]

Robins v. Spokeo, 10-cv-05306 (C.D. Cal. Jan. 27, 2011)

Spokeo is a website that bills itself as an aggregator of hard-to-find information about people. Robins filed a complaint against Spokeo for violation of the Fair Credit Reporting Act, arguing that the "reports generated by Spokeo.com contain inaccurate consumer information that is marketed to entities performing background checks."

Spokeo argued that it only aggregated information provided by third parties and it was entitled to immunity under Section 230. The court doesn't reach that question, finding that Robins lacked standing - i.e., he "failed to allege that [Spokeo] has caused him any actual or imminent harm." Plaintiff alleged that he had trouble seeking employment and he was "concerned that the inaccuracies in his report will affect his ability to obtain credit, employment, insurance, and the like." The court found that plaintiff's allegations of "possible future injury" failed to satisfy Article III standing requirements and dismissed the complaint without prejudice. Although this case and the Starbucks data breach case deal with the standing issue in different contexts, the court's conclusion on standing can be contrasted with the Ninth Circuit's recent conclusion in the Starbucks data breach case that employees affected by a data breach have standing based on "'generalized anxiety and stress' as a result of [the data breach]." ("Starbucks Data Breach Plaintiffs Rebuffed by Ninth Circuit.")

I'm guessing this complaint will be refiled and the court will have to eventually reach the issue of whether Spokeo is entitled to Section 230 protection. Will we see Roommates.com in action? (See "Roommates.com Infects the Tenth Circuit--FTC v. Accusearch.") Or will Spokeo be treated as a syndicator that is entitled to Section 230 protection? ("Database Publisher Gets 230 Defense--Prickett v. infoUSA.")

On a related note: Spokeo is already dealing with complaints from privacy advocates, but as noted by Kash Hill, the blogger at PogoWasRight recently filed a complaint against Spokeo after profiles of hers that were removed from the site "came back to life." ("Spokeo Draws Ire (and FTC Complaints) from Privacy Advocates for its Zombie Profiles.")

Posted by Venkat at 12:05 PM | Content Regulation , Privacy/Security

February 03, 2011

CA Anti-SLAPP Cases Involving Consumer Reviews as Matters of Public Concern

By Eric Goldman (with research assistance from the HTLI Graduate Fellow Michael Scapin)

As I've indicated previously, I support efforts to enact a federal anti-SLAPP law. While I think it's a good idea for a number of reasons, I especially would like to see federal anti-SLAPP protection for consumer reviews of vendors.

Consumer reviews are a tricky area for anti-SLAPP coverage, however. Historically, anti-SLAPP laws were designed to protect public participation in official government matters. Consumer reviews normally don't fit within that model of anti-SLAPP laws. California has taken a broader approach by providing anti-SLAPP coverage for matters of public concern, but even then, it's not 100% clear that consumer reviews of vendors satisfy this standard.

As part of supporting the ongoing drafting process for the proposed federal anti-SLAPP legislation, Mike and I took a deeper look at the California cases addressing whether or not consumer reviews qualified as matters of public concern for purposes of CA's broad anti-SLAPP law. This research, by definition, had several limits. First, finding the right search keywords is tricky. Second, we deliberately left out some borderline cases, such as the cases involving stock trading message boards (although we included GTX v. Left). Third, so many CA appellate cases are unpublished--we can still find them in our search, but they don't contribute to the jurisprudence. Finally, there's no easy way to search California superior court rulings, so the inclusion of a couple such cases is purely fortuitous.

Looking through the complete group of cases, I reached an overall assessment that wasn't exactly comforting. California's consumer review anti-SLAPP cases appear to make a distinction between a "pure" consumer review solely addressing the vendor's performance, which isn't a matter of public concern, and a review that provides additional commentary on other issues, such as how to choose a vendor in that class, which does qualify as a matter of public concern. This distinction helps explain both the unfavorable cases enumerated below plus a few of the favorable cases (such as the Wong, Gilbert and Wolk cases).

If I'm correct that courts are making this doctrinal distinction, then many consumer reviews on Yelp, TripAdvisor, etc. might not qualify for California anti-SLAPP protection because they only assess the consumer's experience with the reviewed vendor and don't engage any broader themes. From my perspective, this is a clear hole that I think the federal anti-SLAPP law should fill by expressly including consumer reviews within the statutory scope. Even if this distinction does not actually exist, the fact that we found two (admittedly unpublished) unfavorable cases indicates the dangers of an undefined statutory reference to "matters of public concern."

If you are aware of any other relevant cases not listed below, please let me know. The cases we found:

Favorable Cases

* Wong v. Jing, 2010 WL 4457330 (Cal. App. Ct. 2010). "Moreover, the posting went beyond parochial issues concerning a private dispute about particular dental appointments. It implicitly dealt with the more general issues of the use of nitrous oxide and silver amalgam, implied that those substances should not be used in treating children, and informed readers that other dentists do not use them. Thus, the review was not just a highly critical opinion of Wong‟s performance on particular occasions; it was also part of a public discussion and dissemination of information on issues of public interest."

* Navarro v. Cruz, 2010 WL 2183227 (Cal. App. Ct. 2010) (unpublished). Blog covered matters of public interest when "the blog addressed issues ranging beyond the specific wrongs and breaches claimed to have been suffered by its writer, on issues such as immigrant exploitation, fraud, and substandard housing. These issues would affect and would be of interest to many present and future immigrant teachers-including not just those who had allegedly been victimized, and not even just those who had actually contracted with UPI, but also those who might be considering becoming immigrant teachers through UPI or other such agencies. And the blog expressly sought to rally others to support changes in the claimed practices and in the contractual and other requirements that foreign teachers believed they were forced to accept, and encouraging others “to ‘stand up’ to pursue a common goal” involving an ongoing controversy."

* Calibra Pictures, Inc. v. Variety, BC 433 320 (Cal. Superior Ct. 2010). Negative newspaper review of a movie qualified as a matter of public concern.

* MagicJack LP v. Happy Mutants LLC, CV091108 (Cal. Superior Ct. 2009). "THE POSTING ON DEFENDANT'S WEBSITE PROVIDES INFORMATION ABOUT PLAINTIFF'S PRODUCT NOT ONLY TO THE "SUBSTANTIAL" NUMBER OF PEOPLE WHO HAVE ALREADY PURCHASED THE DEVICE, BUT ALSO TO OTHER CONSUMERS WHO MIGHT BE CONSIDERING PURCHASING SUCH A DEVICE."

* Penney v. Isbell, 2008 WL 607594 (Cal. Ct. App. 2008) (unpublished). "While we hesitate to oversimplify, these cases teach that statements encouraging and promoting the public discussion of current issues of broad concern that potentially affect significant numbers of people, as well as statements disseminated as part of what could be described as consumer protection information and advice, are generally considered statements involving issues of public interest within the meaning of the anti-SLAPP statute. In contrast, statements involving purely personal controversies unconnected to any larger discussion of general societal or consumer issues are not statements involving issues of public interest."

* GTX Global Corp. v. Left, 2007 WL 1300065 (Cal. App. Ct. 2007) (unpublished). "Left's statements on Stocklemon.com amounted to the same type consumer interest information found to be protected in Wilbanks. Left suggested reasons why consumers should be wary of investing in GTX. As such, the statements were directly connected to an issue of public concern."

* Gilbert v. Sykes, 147 Cal. App. 4th 13 (Cal. App. Ct. 2007). "Gilbert's Web site contributed toward the public debate about plastic surgery in at least two ways: First, assertions that a prominent and well-respected plastic surgeon produced “nightmare” results that necessitated extensive revision surgery contributes toward public discussion about the benefits and risks of plastic surgery in general, and particularly among persons contemplating plastic surgery as a means of looking younger or improving their appearance....Second, a review of the entire Web site shows that it is not limited to Gilbert's interactions with Sykes. The Web site contains advice, information and a contact page where readers can share their own experiences. At the Selecting a Doctor link, a page on “Useful Information” has tips on choosing a plastic surgeon, including references to other Web sites and resources. A Red Flags link lists “Things to look out for” or warning signs to look for when selecting a doctor to perform the surgery. A Final Thoughts/Contact Me link features Gilbert's ruminations about plastic surgery in general, not all of it negative. Clearly, the Web site was not limited to attacking Sykes, but contributed to the general debate over the pros and cons of undergoing cosmetic surgery."

* Carver v. Bonds, 135 Cal. App. 4th 328 (Cal. App. Ct. 2005). "The [newspaper] article warned readers not to rely on doctors' ostensible experience treating professional athletes, and told what it described as “a cautionary tale” of plaintiff exaggerating that experience to market his practice. Since the statements at issue served as a warning against plaintiff's method of self-promotion, and were provided along with other information to assist patients in choosing doctors, the statements involved a matter of public concern."

* Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497 (Cal. App. Ct. 2004). "Consumer information, however, at least when it affects a large number of persons, also generally is viewed as information concerning a matter of public interest....Here, it appears that the viatical industry touches a large number of persons, both those who sell their insurance policies and those who invest in viatical settlements. According to plaintiffs, their own business generated an average monthly income of $58,333 before Wolk's statements about them appeared on her Web site— and plaintiffs are but one of many brokers. It is undisputed that Wolk has studied the industry, has written books on it, and that her Web site provides consumer information about it, including educating consumers about the potential for fraud. As relevant here, Wolk identifies the brokers she believes have engaged in unethical or questionable practices, and provides information for the purpose of aiding viators and investors to choose between brokers. The information provided by Wolk on this topic, including the statements at issue here, was more than a report of some earlier conduct or proceeding; it was consumer protection information....The statements made by Wolk were not simply a report of one broker's business practices, of interest only to that broker and to those who had been affected by those practices. Wolk's statements were a warning not to use plaintiffs' services. In the context of information ostensibly provided to aid consumers choosing among brokers, the statements, therefore, were directly connected to an issue of public concern."

Unfavorable Cases

* Dunne v. Lara, 2009 WL 3808345 (Cal. App. Ct. 2009) (unpublished). "Lara's comments were no more than a report about Dunne's business practices, of interest only to Dunne's customers and potential customers. Lara has not demonstrated the existence of any widespread public debate and his statements are not protected by section 416.26, subdivision (e)(3) or (4)."

* Sandra Caron European Spa, Inc. v. Kerber, 2008 WL 3976463 (Cal. App. Ct. 2008) (unpublished). "The Internet postings which the Kerbers contend are protected speech under the anti-SLAPP statute critiqued a local, family-owned spa, disparaging the dÈcor and attractiveness of the facility, the attitude and service of the person who purportedly helped the reviewers, and the conditions of the steam room and sauna. Caron Spa is not an entity that is in the public eye; nor are its owners....Wolk does not help the Kerbers because, as the trial court pointed out, the reviews were essentially phony customer reviews, drafted not by customers but by former employees of Caron Spa, a status shared by Mrs. Kerber....Moreover, the reports were simply about one spa's purported business practices; there was no wider context to the statements that would aid consumers in choosing among spas. In other words, the reviews did not connect with or encourage any larger discussion or public debate of general societal or consumer issues related to the spa industry."

Other States

We didn't find much in other states. One case worth noting:

Gardner v. Martino, 2005 WL 3465349 (D. Or. 2005) (affirmed on other grounds by the Ninth Circuit). "given the cases holding that issues of consumerism, including complaints about products and services, are issues of public interest, I conclude that the statements made here about plaintiffs and their alleged treatment of Feroglia and the quality of the product, are properly considered statements about a public issue or an issue of public concern within the meaning of Oregon's anti-SLAPP statute."

SEPT. 2011 UPDATE:

A few other cases I've found of possible relevance:

* Kim v. IAC/InterActive Corp., 2008 WL 3906427 (Cal. App. Ct. 2008): dentist's defamation lawsuit against a patient and CitySearch over a CitySearch review tossed per California's anti-SLAPP; defendants awarded attorney's fees.

* Rahbar v. Batoon, case # CGC-09-492145 (San Francisco Superior Ct. filed Sept. 2, 2009): dentist's defamation lawsuit over a Yelp review tossed per California's anti-SLAPP; patient awarded $43k in attorney's fees.

NOV. 2011 UPDATE:

* Hamilton v. Prewett, 860 NE 2d 1234 (Ind. Ct. App. 2007): "While we acknowledge that there may be instances where entertainment is a public issue or an issue of public interest that warrants anti-SLAPP protection, we do not find this to be one of those occasions. Hamilton's suit against Prewett, while unsuccessful on the merits, is not the type of lawsuit that the anti-SLAPP statute was enacted to prevent. Unlike the plaintiffs in the previous Indiana anti-SLAPP cases, Hamilton did not file his suit to stifle Prewett's speech on a public issue or an issue of public interest."

* Berryhill v. Georgia Community Support & Solutions Inc., 281 Ga. 439 (2006). Critical web posting didn't constitute petitioning activity for purposes of Georgia's anti-SLAPP statute.

* Higher Balance, LLC v. Quantum Future Group, Inc., 2008 WL 5281487 (D. Or. Dec. 18, 2008): "There is no doubt that the statements here were made in connection with an issue of public interest, specifically, the quality of HBI's products and services developed by Pepin [HBI's co-founder]."

Posted by Eric at 02:23 PM | Content Regulation | TrackBack

Yellow Pages Companies Challenge Seattle Opt-out Ordinance on First Amendment Grounds

[Post by Venkat Balasubramani]

Dex Media West, Inc., et al. v. City of Seattle, et al., Case No. 10-cv-01857 (W.D. Wash. complaint filed Nov. 15, 2010)

In what many will probably characterize as a dinosaur's last gasp litigation strike, two yellow pages companies sued to invalidate the City of Seattle's scheme to allow its residents to opt-out from yellow pages distribution. They are likely to be successful this time around. In fact, after reviewing plaintiffs' summary judgment motion, I'm surprised the City of Seattle just doesn't go back to the drawing board and rewrite the statute.

Seattle Ordinance 123427 sets up an opt-out scheme for yellow pages which are distributed in the City of Seattle. The ordinance contains a licensing provision, requiring distributors to obtain licenses and pay an annual fee of $100. Yellow pages distributors are required to submit annual reports "describing the quantity of yellow pages phone books . . . distributed within the City during the previous calendar year." The ordinance further empowers the Director of Seattle Public Utilities to set up an Opt-Out Registry which will "serve as a clearinghouse for residents and businesses to register" and opt-out. The opt-out registry will be made available to distributors, who have to provide their contact information and will also forward any opt-out requests received from residents. The scheme also imposes a "recovery fee" designed to recoup recycling costs ($0.14 per book and $148.00 per ton of yellow pages). Finally, the scheme allows the Director to suspend or revoke a license and fine those who do not comply.

Conceptually, yellow pages fall within the category of materials that citizens should be able to opt-out from. Yellow pages are not political speech. They are heavy and cost money to dispose of, and they are delivered somewhat intrusively to your doorstep. Should the government be allowed to restrict delivery of this material to citizens who opt-out?

The answer is likely yes, and the classic case cited in support of the constitutionality of an opt-out is Rowan v. United States Post Office, 39 U.S. 728 (1970). Rowan involved a statute which allowed people to opt-out from mailings which the recipients deemed obscene and which were sent through the postal service. Although not perfectly analogous, it certainly lends some support to the general idea that an opt-out from unwanted intrusive communications should be constitutionally acceptable.

Generally speaking, challenges to government schemes allowing people to opt-out of other unsolicited communications have not been successful. For example, courts have rejected challenges to the junk-fax statute, on the basis that the government has an adequate interest in preventing the intrusion in privacy and increased costs resulting from an unwanted fax. (See, e.g., State of Mo. v. American Blast Fax, Inc., 323 F.3d 649 (8th Cir. 2003).) The do-not-call list has similarly been upheld against a court challenge. (See FTC v. Mainstream Marketing Services, 345 F. 3d 850 (10th Cir. 2003).) Of course, challenges to anti-spam statutes have not fared particularly well either (a few exceptions notwithstanding).

However, the cases resolving challenges to opt-out schemes make clear that the restrictions have to satisfy two First Amendment principles: the restrictions must be narrowly tailored and not be content based (unless the entire category of content is not entitled to First Amendment protection). And this is where the Seattle ordinance runs into trouble. As pointed out in plaintiffs' summary judgment motion, the statute suffers from a number of classic flaws - among other things:

- the statute singles out yellow pages from all other types of unsolicited pamphlets, without reference to the harms sought to be remedied;
- the City made exceptions to satisfy local business interests, such as business associations;
- the ordinance also contains a licensing scheme which is at best highly suspect;
- the statute compels the yellow pages publishers to publish an unwanted message (in the form of opt-out notices and messaging on the cover)
- the statute charges the yellow pages companies to dispose of the books even though the unwanted or discarded books are recycled or disposed of by the recipients;
- yellow pages companies already employ opt-out mechanisms and have no interest in delivering yellow pages to recipients who do not want them (there's no indication that the opt-out system set up by the City will be more effective).

I can see the City being able to penalize distributors who do not comply with constitutionally permissible restrictions, but to think you have to be licensed to distribute yellow pages in the City of Seattle? That just doesn't sound like it will ever fly.

The City of Seattle argued in its filings that yellow pages are categorically harmful and unwanted, and thus the City should be allowed to ban them altogether, but that's a tough argument to make. The City also argues that yellow pages are commercial speech which is entitled to a lesser degree of protection. You can access the City's opposition to plaintiffs' motion here, but I was not persuaded after reading it.

A possible solution is to set some sort of weight limit or page limit, and say that unsolicited pamphlets (of any type) are fine so long as they do not exceed a certain number of pages or a certain weight. This is one way to tackle the problem without reference to the content in question. Another option is to require the distributors to include an opt-out card which recipients can mail in to opt-out, or to referenced a website where recipients can opt-out, and to penalize any distributors or publishers who fail to honor opt-outs.

Plaintiffs' motion for summary judgment contains a few interesting facts around advertising. For example, in one yellow pages book, advertising comprises approximately 35% of the directory, and in another it comprises 15-35%. In comparison, as noted in the motion, advertising makes up 58% of Vogue magazine, 52% of Forbes magazine, and 74% of Bride's magazine.

Underlying this lawsuit is the fact that paper-based yellow pages operations are seeing their end days. Look up services have migrated online, and local advertising is not the greatest source of revenue. (Even Google is struggling to ramp up its local advertising operation, hiring sales people to engage in direct sales.)

In the meantime, we'll see what the court does with the statute, but I'm highly skeptical of its viability.

Related:
"At Last, You Can Send the Yellow Pages to Hell" (Gizmodo, noting the launch of the "National Yellow Pages Consumer Choice & Opt-Out Site") (Feb. 1, 2011)
"Verizon seeking permission to stop delivering white pages in Maryland, Virginia" (Washington Post) (Nov. 16, 2010)
"Banned Books in Seattle: Yellow Pages Cries Foul Over ‘Opt-Out’ Law" (WSJ Law Blog) (Nov. 16, 2010)

Posted by Venkat at 10:50 AM | Content Regulation , Marketing

January 29, 2011

Class Action Brought by "Lonely and Vulnerable" Men Against Online Cupid Site Moves Forward -- Badella v. Deniro Mktg.

[Post by Venkat Balasubramani with some comments by Eric]

Badella v. Deniro Marketing LLC, 10-03908 CRB (N.D. Cal.; Jan 24, 2011)

This is a good one.

A group of plaintiffs brought a putative class action against an online dating website that they alleged contained predominately fake profiles. As Judge Breyer describes it in more colorful language:

This is a putative class action purportedly a vast, fraudulent scheme centered around an internet dating website that lures 'often lonely and vulnerable men' into joining . . . with the false promise that they are communicating with real women in their area who are interested in dating and/or intimate relationships.

Plaintiffs brought claims for fraud, RICO and California's anti-spam statute against multiple defendants. They alleged that they were "drawn" to the website fraudulently (e.g., via "spam, internet pop-up ads, or social networking scams"), induced to sign up for free, and then induced to upgrade to paid memberships.

Fraud: With respect to the fraud claim, defendants argued that the website terms of use undermined plaintiffs' reliance on any purported misstatements. The website terms stated:

This Service is for Amusement Purposes only.
You understand and accept that our site, while built in the form of a personals service, is an entertainment service. . . You are not guaranteed that you will find a date, a companion, or an activity partner, or that you will meet any of our members in person.
Online CupidTM Communications: You understand, acknowledge and agree that some of the user profiles posted on this site may be fictitious, and are associated with . . . our "Online CupidsTM", ("OC"). Our OC's work for the Site in an effort to stimulate conversation with users, in order to encourage further and broader participation in all of our Site's services, including the posting of additional information a.or pictures to the users' profiles.

Judge Breyer found that the terms did not undercut reliance for three reasons: (1) plaintiffs alleged that nearly all (as opposed to some) of the profiles are fictitious; (2) the fake profiles were not always labeled "OC," as promised; and (3) the plaintiffs alleged a "widespread and pervasive effort on Defendants' part to make the website appear to be a legitimate dating service." The disclaimer did not defeat reliance because defendants allegedly used a "wealth of information" to create a false impression, and the disclaimer was not as prominent as the information which created the false impression. In rejecting the claims, the court suggested what an appropriate disclaimer would look like, and contrasted this with the one from the website terms:

THIS WEBSITE USES FICTITIOUS PROFILES - READ THIS DISCLAIMER [or] THE MAJORITY OF PROFILES YOU SEE WILL NOT CORRESPOND TO ACTUAL WOMEN - READ THIS DISCLAIMER.

Disclaimers have achieved mixed results against claims of misleading website practices. (See, e.g., Vistaprint; Easysaver Rewards; Duffy v. The Ticketreserve, Inc.) I found the court's conclusion plausible, although a part of me said that an average person reading this disclaimer would conclude that they weren't visiting a typical dating website. Maybe the court figured - as many people do - that people rarely read or digest website terms?

Defendants also argued that the fraud claims were not pled with particularity. The court held that with respect to initially being drawn to the site, the plaintiffs failed to allege the particulars of how they were fraudulently drawn to the site. With respect to being persuaded to register and upgrade to paid memberships, the court held that these allegations were pled with particularity, since plaintiffs' allegations referenced specific messages sent by fake profiles which were not so labeled. Interestingly, plaintiffs alleged that in order to make the fake profile messages more compelling, defendants did not rely on "canned or automatic messages . . . [they employed] actual individuals who control hundreds of fictitious profiles." [Reasonable minds can disagree about the quality of the copy, but my feeling was that anyone who has ever moderated blog comments or been exposed to blog spam would be able to spot this as the same type of copy from a mile away.]

RICO: For the RICO claim, plaintiffs argued that defendants engaged in a conspiracy to commit wire fraud and access device fraud. The underlying fraud plaintiffs alleged was that defendants set up numerous entities to fraudulently obtain merchant accounts and then used these merchant accounts to process credit card payment for the websites in question.

The court does not give defendants' argument much credit here and declines to dismiss the RICO claims. I didn't check to see whether RICO claims have been successfully brought in the online context, but this seems like a way to attack a bunch of people in the chain of a transaction and drastically expand the scope of liability. A charge of conspiracy was successfully brought by the government in Kilbride, a criminal CAN-SPAM case. "Defendants Convicted in 1st Criminal CAN-SPAM Trial." There, among other things the government alleged that defendants used fictitious entities to register domain names. The court in Kilbride also relied on the use of privacy protection services to register the domain names. The RICO claims will have to be fleshed out and no one knows how they will fare, but plaintiffs' theory sounds pretty expansive.

Spam claims: Plaintiffs brought claims under California's spam statute. The court concludes that these claims are barred by the one year statute of limitations, thus avoiding the preemption question that has been plaguing California courts for some time, including in Reunion.com, another case where plaintiffs alleged they were induced to sign up (and upgrade) using unsolicited messages and allegedly bogus "friend messages." ("Reunion.com Revisited Again: Claims Under CA Spam Law Not Preempted by CAN-SPAM -- Hoang v. Reunion.com.") Interestingly, an appeals court in California recently held that under the California statute claims for actual damages must be brought within three years of the receipt of the emails, while claims for statutory damages can only be brought one year within the receipt of the emails. The court's opinion here does not contain a discussion of whether plaintiffs sought actual or statutory damages, but if they sought actual damages, the dismissal does not jibe with the recent appeals court ruling in Hypertouch. ("CA Appeals Court: Claims Under State Spam Statute Not Preempted by CAN-SPAM - Hypertouch v. Valueclick.")
___

It's hard to not be judgmental about this suit. People - specifically "lonely and vulnerable men" - sign up for these random "dating" websites and then complain because a greater than anticipated number of the profiles are fake (??). I can just picture one of the plaintiffs saying: "I'm playing the odds by going on this site. I don't know what the odds are (no one does), but they were different from what you promised!" It's also hard to fault the court for deferring the underlying issue of whether the users were misled to the factfinder, but unless the plaintiffs are chosen carefully, they are not going to have an easy time credibly explaining how they were misled. In the meantime, we can take comfort that the interests of lonely and vulnerable men trolling internet dating sites for dates can be protected.
___

Comments by Eric: It's interesting how Venkat concludes his post, because in fact I have zero sympathy for the website (treating the allegations as true, as the court was required to do on this motion to dismiss). I'm trying to imagine a world where customers would pay substantial fees to a "dating" site where much/most of the interaction was with automated scripts. (I also couldn't get Austin Power's "fembots" out of my mind reading this case). The silly disclaimers--that the site was for "amusement" and that paying customers should expect automated interactions--clearly weren't likely to be read by anyone who actually paid money to the site. So it seems axiomatic to me that the only people who paid should have been the people who didn't get the message.

Thus, this seems like one of those cases where the fine print ("we're just going to send you canned messages if you pay us a lot of money") is designed to completely contradict the big print ("we're a dating site"). You can't do that.

This case brought to mind the old Anthony v. Yahoo case, where Yahoo allegedly retained profiles of expired/terminated members so that it looked like it had a bigger dating pool. (Yahoo ultimately settled for up to $4M). We talk about how it can be a jungle out there for single people, but oh man, at least their dating services shouldn't be lying to them. Clearly, before you starting "dating" your dating site, you need to diligence it too.
___

Related (coverage of a recently filed class action against Match.com over an alleged excessive number of inactive or fake profiles):

"Lawsuit Claims More Than Half Of Match.com Profiles Are Inactive Or Fake" (Joe Mullin)
"Love’s Labour’s Lost in Cyberspace" (Danielle Citron/Concurring Opinions)

Posted by Venkat at 08:30 AM | Content Regulation , E-Commerce , Marketing , Spam

January 27, 2011

Top 5 Cyberlaw Developments of 2010, Plus a 2010 Year-in-Review

By Eric Goldman

Earlier this Fall, I posted my top 8 trends in Internet law, and that's a good place to start if you want to see how I think things are developing. Because of that post, this year I'm shaking up the format of my year-end recap post a little bit. We'll start with the top 5 Cyberlaw events of 2010, but then we'll move to other topics. (This is a variation of my post to InformIT on Tuesday).

Top 5 Legal Developments

#5: Google pulls out of China. China's native search engines rejoice, but is this really a win for China's long term prospects? Meanwhile, I keep hoping Google will do the same in the EU too given how much the EU regulators hate Google.

#4: COICA and the pre-enactment COICA workaround, ICE's lawless seizure of 82 supposedly pirate-oriented domain names. Showing once again that domain name censorship is irresistible to government regulators.

#3: Righthaven goes on a litigation frenzy on behalf of newspapers. Which do you think will happen first--bloggers stop discussing newspaper articles for fear of being sued, or newspapers go out of business? What's amazing is that newspapers don't realize that the first will accelerate the second.

#2: Oracle gets $1.4B+ from SAP for competitive scraping. Oracle hit a grand slam with the damages in this case, ranking highly on several all-time-largest-awards charts.

And the top cyberlaw story of the year goes to...

#1: Wikileaks. Wikileaks finally forces us to confront many of the cyberspace governance issues we were debating in 1996. I'm sad to say that our government, and many private businesses, failed the test.

Other Key Developments

* Tiffany v. eBay. The Second Circuit thumps Tiffany's pathetic arguments and gives eBay a clean bill of trademark health. However, this ruling just preserved the status quo, so for my money, the much more important secondary trademark rulings involved providing other services to alleged counterfeiters. See Gucci v. Frontline, potentially exposing credit cards and other payment service providers to secondary liability for providing payment services to alleged counterfeiters, and Roger Cleveland Golf v. Price, potentially exposing SEOs/web designers to secondary liability as well.

* Viacom v. YouTube and Arista v. Limewire. These companion cases told us what we already knew: YouTube + 512(c) defense = good, P2P file sharing software vendor - DMCA safe harbor = bad.

* Sony v. Tenenbaum. I'm still waiting to see if this case is a blip or a watershed. It has the potential to make every copyright statutory damages case into a constitutional due process inquiry.

* Legally, it was a good year for Google. Google got a favorable trademark ruling in the ECJ. Google got a decisive win in its Rosetta Stone AdWords trademark case (and, as mentioned before, the YouTube case as well). Most of the other trademark plaintiffs lost or simply gave up.

* Legally, it was a lousy year for Google. Everyone in the world seems to be considering if they can run Google's algorithms better than it can: EU antitrust regulators, French antitrust regulators, the Texas AG, private plaintiffs, the New York Times and so many more. Google got trapped in a dangerous antitrust litigation in the unfavorable venue of Ohio state court. Google Street View has been a legal train wreck world-wide. The DOJ busted up a possible hiring cartel among Silicon Valley companies, and Google almost immediately handed out 10% pay raises for everyone. Buzz was a lousy product with a horrible launch, and it led to a multi-million dollar litigation kicker.

* It was a quiet year for 47 USC 230 litigation. From my perspective, quiet is good! The biggest defense win of the year: Milgram v. Orbitz. The biggest plaintiff win of the year: Swift v. Zynga.

* Perfect 10 v. Google. Google gets yet another win in this case, this time on 512(d)--one of the few cases interpreting the 512(d) safe harbor for linking to infringing content.

Notice I didn't put *any* of the Ninth Circuit Internet law jurisprudence on the list. There were plenty of interesting rulings this year: Krottner v. Starbucks, MDY v. Blizzard, Vernor v. Autodesk, DSPT v. Nahum, the Freecycle naked licensing case, Advertise.com v. AOL, Toyota v. Tabari, Visa v. JSL, CRS Recovery v. Laxton, Office Depot v. Zuccarini. However, I have lost all faith that 3 judge panel decisions by the Ninth Circuit have any binding precedential on other panels, so every case is effectively a one-off.

Less-Heralded But Nevertheless Interesting Disputes of the Year

Some under-the-radar legal disputes that I thought were more interesting than the overhyped stories:

* Barclays v. theflyonthewall. A brokerage house gets an injunction against the republication of its stock recommendations based on a hot news doctrine. The case is now on appeal to the Second Circuit. The case exposes the precarious business model of brokerage houses: they are content publishers trying to monetize via a commodity service, and brokerage house stock recommendations were exactly the kind of information John Perry Barlow explored in his 1994 Economy of Ideas article. Will the hot news doctrine prop up a doomed business model?

* Anderson v. Bell. Electronic signatures count towards the requirements for an election petition. This could launch a new era of citizen petitioning of the government.

* Snap-on v. O'Neil. A company can't scrape its own data from its outsourced vendor, seemingly authorizing the vendor to play hold-up games for companies that don't handle the contract correctly. The Eventbrite v. Cvent case provided some interesting contrast.

* Goforit v. Digimedia. A court upholds domain name wildcarding and says the TM owner/plainitff pursuing those wildcarded domain names may have engaged in reverse domain name hijacking.

* Lara Jade Coton v. TVX. The blog post title said it all: "Tip for Clean Living: Don't Use a 14 Year Old's Self-Portrait in Advertising for Porn."

Most Overhyped Stories

This year, for the first time, I'm separately breaking out a category for most overhyped stories of the year.

* Craigslist shuts down its adult services category. A toxic mix: Craigslist took a legally defensible but nevertheless obstinate position, and state AGs love to show their constituents how much they hate the Internet. When Craigslist finally gave in and shut down its adult services category (with a whining F-U), people went crazy.

* Borings get $1 for their trespassing claim. Google's Street View contractors made a mistake, drove up a private driveway, and captured what they saw. Google posted the photos until it got a complaint, then the homeowners with the odd surname ("Boring") went on a litigation frenzy. Their payoff for several years of litigation? $1. Not even enough for extra foam on a Starbucks mochachino.

* The Supreme Court's tech docket. Several fizzled out non-decisions from SCOTUS this year: Bilski, Quon, Costco. The Supreme Court is taking a steady diet of tech-related cases, but they are gun-shy about actually resolving them.

* Mark Hurd. Mark Hurd, Hewlett Packard's CEO, had an inappropriate relationship with an HP contractor/former B-list softcore porn actress and maybe fudged his expense reports. When he tried to take a job at HP's frenemy Oracle, HP got litigious, but it turns out their fur can be smoothed for a few million.

* Lost iPhone Prototype. Stop me if you've heard this joke before: an engineer walks in a bar and...loses a super-stealthy prototype of one of the most important new consumer technology launches ever...? I realize it's an uber-cool phone, but still, IT'S A PHONE, PEOPLE!

Our Snarkiest Company-Specific Posts

Occasionally, we get snarky about specific companies' practices. It's not our norm, but these posts sure do boost traffic. Companies in our crosshairs this year:

* The Problems With Google House Ads. Google's response to this post was pathetic and embarrassing.

* Scribd Puts My Old Uploads Behind a Paywall and Goes Onto My Shitlist. I still use Scribd, but I have zero loyalty.

* Hypocrisy Alert?! Expedia, a "FairSearch" Member, Marginalizes American Airlines in Its Search Results. If you're going to wave the "Search Neutrality" flag, please keep it hypocrisy-free.

* Facebook pulls a rare hat trick of snark this year: Q2 2010 Quick Links Part 3 (Special Facebook Edition), Facebook's Anti-Spam Filter Blocks Legitimate Conversations about Power.com, Distrust in the Cloud Part #2: Facebook Blocks J.mp Links and Takes Down Lots of Status Updates in the Process. I'm officially no longer in love with Facebook. I post the exact same content to Twitter and Facebook, so please follow me at Twitter instead.

* My RapLeaf Profile is Amusingly Mistaken. This is What the Fuss is All About?. In response to an article in the Wall Street Journal's "What They Know"/privacy plaintiffs lawyers full-employment series of articles.

Most Popular Blog Posts of the Year

1) Scribd Puts My Old Uploads Behind a Paywall and Goes Onto My Shitlist. Nearly 2X the traffic of #2. Putting profanity in the post title still works as a traffic booster.

2) Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase (Topsy 100). I still can't figure out why this post was so popular; it just reminded us of something we already knew. See also the related but overreaching Millen v. Hummingbird Speedway.

3 & 5) #3: Twitter Clarifies Usage Rules, but AFP Still Claims Unbridled Right to Use Content Posted to "Twitter/TwitPic". Venkat also had an end-of-the-year hit with the #5 post, "Court Rejects Agence France-Presse's Attempt to Claim License to Haiti Earthquake Photos Through Twitter/Twitpic Terms of Service -- AFP v. Morel." Both posts were Topsy 100.

4) Viacom v. YouTube Summary Judgment Motions Highlights. Not surprisingly, the gossip about the lawsuit is way more popular than the blog post on the actual ruling.

One other post reached Topsy 100: "Ripoff Report Defeats Extortion Claim, But Plaintiffs Keep Trying--AEI v. Xcentric."

Lists of Yore

Previous top 10 lists from 2009, 2008, 2007 and 2006. Before that, John Ottaviani and I put together a list of top Internet IP cases for 2005, 2004 and 2003.

Posted by Eric at 06:56 AM | Content Regulation , Copyright , Derivative Liability , Domain Names , Evidence/Discovery , Internet History , Licensing/Contracts , Search Engines , Trademark , Trespass to Chattels | TrackBack

January 26, 2011

Nursing School Can't Expel Students for Posting Photo to Facebook--Byrnes v. Johnson County CC

By Eric Goldman

Byrnes v. Johnson County Community College, 2011 WL 166715 (D. Kan. Jan. 19, 2011). The complaint.

You've probably already heard about this case. Four nursing students posted photos of a patient's placenta to Facebook, and the school expelled them in response. The students sued the school for reinstatement, which the court grants in this ruling.

The case turns on two key facts. First, the placenta photographs were not identifiable to the patient, even though the photos had some time-related information that could have narrowed down the possible placenta-birthing patients. This raises re-identification issues we've discussed numerous times on the blog; even if the combined facts of placenta photo + time information don't themselves identify the patient, those two pieces of data plus other datasets could lead to reidentification.

Second, the clinical supervisor knew the students were taking the photos. The students further claim they told the supervisor that they were going to post the placenta photos to Facebook, to which the supervisor allegedly responded "Oh, you girls." The court analyzes these facts by saying:

photos are taken to be viewed. When Delphia granted permission to take the photos, it was unreasonable to assume that they would not be viewed. If the photos were objectionable, to say nothing of objectionable to the point warranting expulsion from the nursing program, then it would not have mattered whether the photos were viewed on Facebook or elsewhere. By giving the students permission to take the photos, which Delphia admitted, it was reasonable to anticipate that the photos would be shown to others.

It's a little hard to parse this statement. The court could be saying that it really believes the supervisor expressly or implicitly approved the Facebook publications by saying "oh, you girls." Or, the court could be saying that even if the supervisor never knew about the students' intent to post on Facebook, the supervisor should have assumed that the photos would be seen by a larger audience at the time the supervisor approved/acquiesced to the taking of the photos. This latter interpretation isn't very comforting. Many photos are never published to the public. For example, the students could have taken the photos for archival purposes or for further self-study. So I'd like to think the court wasn't saying that consent to photo-taking automatically means consent to widespread publication of that photo.

This case reminded me a lot of Yoder v. University of Louisville. That case similarly involved a nursing school's expulsion of a nursing student in response to a social media publication. In the Yoder case, the nursing student's publication was much more troubling in that it said possibly mean things about patients. Nevertheless, both cases involve: (1) nursing students perhaps showing insufficient sensitivity towards patients' interests, and (2) nursing school overreactions to student participation on social media. I wonder if something funky is going on in the nursing school community or if these cases are just coincidences.

Posted by Eric at 05:46 AM | Content Regulation , Privacy/Security | TrackBack

January 14, 2011

My 2005 Prediction of Wikipedia's Failure By 2010 Was Wrong

By Eric Goldman

“Prediction is very difficult, especially about the future.”
-- attributed to Niels Bohr

I’ve written a few notorious posts in my 6 years of blogging, but none more so than my December 2005 prediction that Wikipedia would fail in 5 years. Those 5 years are up, and this post admits that my prediction is wrong. In this post, I’ll also look at how Wikipedia has changed since 2005. Although these changes don’t validate my prediction, Wikipedia circa 2011 differs in important ways from Wikipedia circa 2005.

Why Did Wikipedia Beat the Odds?

My initial prediction focused on the threats posed by spammers and vandals. With Wikipedia’s free editability, spammers and vandals can easily manipulate content to advance their own interests. Standing between them and success are Wikipedia volunteers. With millions of financially motivated spammers and thousands of dedicated volunteers, the volunteers seemed outgunned. How have they been able to vanquish the spammers and vandals to date?

In my opinion, the biggest change was Wikipedia’s (re)adoption of Google’s nofollow tag in 2007. Prior to that, spammers had significant incentives to insert links into Wikipedia pages for the link juice, no matter how many Wikipedia readers clicked on the links. After implementing the nofollow tag, spammers’ payoffs for getting links into Wikipedia decreased substantially. There are still other ways that marketers can manipulate Wikipedia (such as editing their own entries), but these efforts are small potatoes compared to SEO bots.

In addition, the Wikipedia community has done an admirable job developing anti-spam technological tools available to its volunteers. Anti-spam efforts remain principally a manual effort, but improved anti-spam tools has increased the leverage of the remaining volunteers.

Other Ways Wikipedia Has Changed Over 5 Years

While these factors have been pretty effective at keeping the spammers and vandals at bay (so far), other changes to Wikipedia have been less salutary.

* Xenophobia. Over the past 5 years, the Wikipedia community has closed ranks and become somewhat insular. Wikipedia offers technological tools to the public at large to edit the database, but as I explain in my Wikipedia’s Labor Squeeze article, the practical capacity to make edits that stick is limited to a much smaller universe of contributors. Joining that club is relatively easy, in the sense that it merely requires a person to “show up,” contribute and get along with other community members. At the same time, club membership is hard because it must be a concerted effort over time. Drive-by edits by uninvested contributors are unlikely to stick.

Xenophobia poses a serious challenge to the community because it makes it much harder to recruit and absorb new power contributors. Thus, community xenophobia may be one of Wikipedia’s biggest strategic challenges.

As I’ve watched Wikipedia close ranks, I’ve started to wonder if xenophobia is endemic to UGC websites. I’ve seen the phenomenon occur with other UGC sites, so perhaps it’s unavoidable. An interesting question worth a more intensive study.

* Increased Wikipedia staff. This isn’t a negative per se, but it is noteworthy. Wikipedia’s staff has grown substantially over the past few years (I believe it’s approximately doubled in the last two years or so). I don’t believe the new staff members have displaced any key editorial services traditionally performed by the community. However, the headcount growth reflects an implicit decision that Wikipedia cannot expand solely on self-coordinated volunteer efforts. With its growth, Wikipedia’s staff is increasingly looking like the staff of an editorially controlled publication.

As an example, consider the Wikipedia Public Policy Initiative, which I’m participating in. In my Wikipedia’s Labor Squeeze article, I discussed how Wikipedia could source new content, and possibly new contributors, by working with educators who incorporate Wikipedia participation into their courses. (To be clear, many other people made that suggestion too). Without Wikipedia staff coordinating the effort, some educators might independently do this themselves. However, with the Public Policy Initiative, Wikipedia is allocating FTEs to fix the coordination problem. I expect Wikipedia staff intervention will produce more and better contributions, but notice that it becomes much more expensive content to produce given the FTEs’ amortized costs.

* Increased technological barriers to participation. On its home page, Wikipedia still uses the introductory tagline “the free encyclopedia that anyone can edit.” However, the site has struggled with free editability over the years. A variety of (mostly minor) technological restrictions have been implemented over the years to limit contributions from untrusted sources.

From my perspective, the most important technological control is “Flagged Revisions” (rebranded “Pending Changes”), which allows only trusted editors to immediately make public edits. All other contributions sit in a tank until a trusted editor approves them. Flagged Revisions is a substitute to Wikipedia’s traditional full protect/semi protect approach to restricting edits on problematic pages. As a substitute, Flagged Revisions is more flexible than protection because people can still contribute to an affected page (although the contributions aren’t immediately public and may never be approved).

Instead of being used only on problematic pages, Flagged Revisions could restrict editing site-wide. It’s used for that purpose in some Wikipedia versions, but not in the English language version. When Flagged Revisions is used to widely control editing, it undercuts the tagline that Wikipedia is a place anyone can edit. That still may be technically true, but making distinctions between editor trustworthiness means that untrusted contributors may not actually be able to edit.

Thus, if the English language version of Wikipedia had broadly adopted Flagged Revisions before the end of 2010, I was going to declare my prediction as mostly correct. Unfortunately for my prediction, widespread implementation of Flagged Revisions hasn’t happened yet. However, as I initially predicted in my 2005 post:

Wikipedia will have to change its open access nature. Instead, Wikipedia will have to lock down lots of pages from being edited at all. Or Wikipedia will have to install some reputational management system to limit who has the right to post or edit content.

I may not have gotten the timing right, but I wonder if this fate remains inevitable.

* Several measures of editor engagement have peaked. There are several possible explanations for why contributions and contributors are down from historical highs, including:

- the community’s xenophobia, freezing out newcomers
- the “old guard”—the initial cohort of power Wikipedians—may be progressively turning over or burning out
- Wikipedia may have reached a plateau in terms of coverage and quality, so less work still needs to be done

Whatever the reason for these numerical declines, they pose a serious challenge to Wikipedia’s freshness. Wikipedia currently does a very good job keeping highly trafficked articles up-to-date. For example, when a celebrity has a major new development, that celebrity’s page is often updated that same day. However, I routinely find long tail pages that are poorly maintained and conspicuously out-of-date. Stagnancy could seriously undercut Wikipedia’s credibility over time; if the site looks like a ghost town, readers will become less trusting of the site, and that will enhance the attractiveness of competitors.

Looking Ahead

Over the years, it’s become clear to me that searchers want and need an encyclopedic entry in their top search results. In many circumstances, a relatively objective factual source improves the iterative search process. Wikipedia has unquestionably met