David Kravets: Court Upholds Conviction in Dead Sea Scrolls E-Mail Impersonation Case
Prof. Volokh: No First Amendment Violation in E-Mail Impersonation Case
WSJ Law Blog: Judges Not Amused by Dead Sea Scrolls 'Prank'

[image credit: Gigra / Shutterstock -- "wooden Pinnochio doll with long nose"]

Posted by Venkat at 09:11 AM | Content Regulation

January 28, 2013

State Laws Restricting Social Media Use by Sex Offenders Are Failing in Court

[Post by Venkat Balasubramani with comments by Eric]

Statutory schemes in three different states intending to regulating the online activities of convicted sex offenders have meet with judicial disapproval.

Doe v. Nebraska, 09CV456 (D. Neb. Oct. 17, 2012):

Nebraska’s statute (1) required registrants to disclose their device identifiers and online profiles; (2) required registrants to consent to searches and the installation of monitoring apparatus and (3) criminalized use of sites that are accessible by minors.

Ban on internet use: Section 28.322.05 banned sex offenders from using any “social networking website, instant messaging, or chat room service” that also allows users who are less than 18 to access those services. Citing to an array of facts and figures regarding the ubiquity of social networks and utilities, the court says that the statute restricts the affected individuals from using “an enormous portion of the internet” to engage in expressive activity. The court notes that the ban is not dependent on any past use of utilities to commit crimes, or any particular online risk posed by the offenders. The ban is overly broad and violates the First Amendment.

The court also picks apart the definitions employed by the statute and says that the statutory definitions render it unconstitutionally vague. The government offered a slew of narrowing constructions to different terms in the statute, but the court says that these suggestions further illustrated the vagueness underlying the statute. For example, the statute banned “instant messaging” services—that were defined as services that enabled instantaneous text transmissions—but the State claimed that this did not include text messaging services. The court was charitable toward the legislature, but at a certain point the snark just broke through:

Without intending to be unkind, the fourth suggested construction is laughable. It states that ‘virtually instantaneous’—for purposes of ‘instant messaging’ services or ‘chat rooms’—means ‘real time.’ What in the world does ‘real time’ mean? Particularly when it comes to ‘text messages’ sent through ‘instant messaging’ services, the substitution of the words ‘real time’ for ‘virtually instantaneous’ is of no help whatever in clarifying the glaring ambiguity in the statute. The proposed construction is very much like a dog chasing its tail—the dog and the tail simply turn in a humorous circle.

The court says that, in addition to being overly broad, the ban does not leave open alternate channels of communication. While the State argued that sex offenders could still obtain information through news media, the court says that not being able to access information via Twitter and Facebook is as good as a ban—it doesn’t matter that you can access the news in the next day’s edition of the newspaper. Similarly, not being able to use Skype means not being able to videoconference with family members. According to the court, there’s no substitute.

The court rules this provision facially unconstitutional.

Disclosure of identifiers: The statute requires offenders to disclose device identifiers as well as “internet communication identifiers”. A related statutory provision also required offenders to consent to a search of his or her devices. With a cite to McIntyre and a nod to the fact that “anonymity is a shield from the tyranny of the majority,” the court says that these provisions also do not pass muster. The court finds particularly troubling the fact that an offender is required to disclose any blogs or sites maintained by the person – i.e., the disclosure provisions effectively eviscerate an offender’s right to engage in anonymous online speech. And the court is clear that even registered sex offenders have this right.

The court also rules this provision facially unconstitutional.

Ex Post Facto Challenge: The court also says that the statute violates the ex post facto clause. The key question is whether the statute has a punitive intent or merely a civil regulatory scheme. Citing to statements from the sponsoring lawmaker (and the fact that the State elected to exercise legislative privilege to block inquiry into the purpose of the bill), the court says the statute is punitive in nature and violates ex post facto with respect to people who had been convicted prior to the effective date.

The court does dismiss as unripe the Fourth Amendment challenge brought against the consent to search provisions by those who were not on probation. (In any event, the court ruled these provisions unconstitutional on other grounds.)

Doe v. Harris, C12-5713 (N.D. Cal. Jan. 11, 2013):

California voters overwhelmingly approved the “Californians Against Sexual Exploitation Act” (Proposition 35). The statute requires sex offenders who fall under California’s sex offender registration program to provide the following:

- a list of all “internet identifiers established or used” by the person
- a list of all “service providers used by the person”

Internet identifier is further defined as:

an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar communication.

The statute also required registrants to provide (in writing) any changes to the above information. The information is to be provided to the agencies that otherwise deal with the registrant, but those agencies would make the information available to the Department of Justice. The court initially entered a TRO, but subsequently issued a preliminary injunction, enjoining enforcement of the statute pending outcome of the litigation.

Level of scrutiny: First, the court says that the statute is not subject to strict scrutiny because it is content neutral, even though it affects a class of speakers.

Construing the statute: Second, the court narrows the statute in accordance with the government’s concessions: (1) the only service providers a registrant needs to report are those with whom the registrant actually has an account (e.g., if you are at the library and Time Warner is the ISP that allows you to access the internet from the library, you need not report this); (2) only identifiers that are actually used to post content or communicate are required to be reported (e.g., your Amazon account information that you use to purchase books is not required to be reported, assuming you also do not use that profile to comment or interact online).

Is the statute “narrowly tailored”?: The court says that it’s conceivable that the registration requirement generally advances the stated government interest of preventing future crimes by registrants. The court notes the hypothetical example of being able to cross-check a person who uses an online identity to recruit against the database of registrants. However, the court says that narrow tailoring in this context also requires restrictions on when law enforcement can access the information and what they can do with it. Here the law says that law enforcement can disclose identify information “when necessary to ensure public safety.” The law was similar to statutes in other states (Georgia and Utah) that have been struck down.

The court is also concerned that the statute will have a chilling effect—failure to report is a criminal violation, punishable by up to three years in prison. The statute also has the effect of depriving registrants of their online anonymity.

The court points to the fact that the state’s own assessment process classified a chunk of the offenders as having a “low to moderate” risk of re-offending. The government could not explain why these offenders should be treated the same as higher risk offenders. There was also no data of how likely offenders are to commit future offenses using the internet. Similarly, the court says that some data is available to the effect that online exploitation is much less likely to occur on sites that involve discussion of political or social issues. It's unclear there's adequate justification for requiring registration for these types of sites or services (even for those whom the data ostensibly says are likely to re-offend online).

In closing the court says:

The Case ACT provisions extend to [websites dedicated to discussion of public, political, and social issues], and registrants are likely to be chilled from engaging in legitimate public, political, and civil communications for fear of losing their anonymity. As a Nebraska district court forcefully stated, a requirement that sex offenders report to the government all communications on blogs and websites puts a stake through the heart of the First Amendment’s protection of anonymity [and] surely deters faint-hearted offenders from expressing themselves on matters of public concern.

Interestingly, the statute was sponsored by Facebook’s ex-Chief Privacy Officer.

Doe v. Indiana, 2013 WL 238735 (7th Cir. Jan. 23, 2013):

The Indiana statute in question prohibited sex offenders from:

knowingly or intentionally using a social networking web site or an instant messaging or chat room program that the offender knows allows a person who is less than eighteen (18) years of age to access of use the web site or program.

Doe sued on his own behalf and on behalf of a putative class of offenders who were required to register but were not on any form of supervised release. The district court found that the statute burdened more speech than necessary, but upheld the statute, finding that Doe didn’t “furnish the court with workable [alternatives].” The Seventh Circuit disagrees, and says the statute does not pass First Amendment muster.

According to the Seventh Circuit, the issue was that the problematic activity was only a subset of the overall expression that the statute regulated (something the Nebraska and California courts focused on also). It was aimed at improper online communications between registered offenders and minors, but this was “a minuscule subset of the universe of social network activity.” Moreover, Indiana already had statutes on the books that were targeted at the particular ills at issue – it’s already a crime in Indiana to solicit minors, or engage in inappropriate communications with children. Penalties are increased when you do so using a computer.

The court does step back and say that it should be careful to not impose too high a standard on state legislatures. Some amount of over-inclusiveness can be justified by “administrabilty concerns,” but the statute as currently crafted can't be justified on this basis.

The State also argued that existing statutes serve a different purpose than the social networking ban at issue in the case. According to the State, existing laws aim to punish those who have committed the crime of solicitation, while the ban aims to “prevent and deter.” The court is not persuaded by this distinction, saying that all laws punish those who have committed conduct that is proscribed by the laws, and this punishment is what deters. The court is also not sold on the argument that the social networking ban would be more effective because it would prevent would-be offenders from being on social networks in the first place. The court says that to the extent someone would break the law and solicit a child, they would be just as likely to break the law banning them from using a social networking site in the first place.

The court closes with a nod to the legislature that it’s not foreclosing a more carefully crafted statute, or even one that may be better supported by legislative facts or studies. To the extent a class of individuals “whose presence on social media impels them to solicit children,” the legislature could presumably enact legislation targeting these individuals.

Finally, the court says that nothing in its opinion should be read to limit the latitude of district courts in fashioning terms of supervised release.
__

These three cases, as well as laws aimed at Backpage from Washington and Tennessee, are more than enough to mark a trend. Legislatures are rightly concerned with online sex offenses, but are taking the blunt instrument approach to regulating the online activities of sex offenders. Courts are consistently saying that the First Amendment requires a more finely crafted approach. As Eric has highlighted before, state legislatures do not seem particularly adept when it comes to regulation online. Definitional terms are a major stumbling block. The Nebraska case in particular highlights this; the court had a field day poking holes in legislative definitions of things like "chat rooms" and "instant messaging".

Though the three statutes differed significantly in their approach, in all three cases the courts found that only a subset of sex offenders were likely to engage in problematic conduct online, and regulation of sex offenders as a whole without reference to whether they were likely to engage in problematic acts online sweeps in too much First Amendment protected expression – i.e., sex offenders use the internet for normal activity just like everyone else. To the extent legislatures try to regulate the online activities of those whose sex offenses included an online component, they would probably have a much easier time doing so. However, even as to these individuals, courts will be concerned with any over-inclusiveness of a ban. On a related note, trying to restrict registrants' access to sites that also allow access by those under 18 is not workable.

[Eric's addendum: There is actually social science on this question that could inform policy-makers if they actually did their homework. For example, I call your attention to Lee, Austin F., et al. Predicting hands-on child sexual offenses among possessors of Internet child pornography, 18 Psychol. Pub. Pol'y & L. 644-672 (2012):

CP [Child pornography] offenders appear to comprise a subgroup of sex offenders characterized by taxonomic heterogeneity. As Seto has pointed out on multiple occasions, those apprehended with CP have a sexual interest, if not a sexual preference, for children, and, given prevailing DSM criteria, are frequently diagnosable as pedophiles. Indeed, this same point was noted in U.S. v. Swarm--Dr. Mills and Dr. Saleh correctly agreed with the Bureau of Prisons' memorandum that states, quote: "Paraphilias, including pedophilia, range in severity from a condition in which the individual experiences deviant sexual fantasies and urges, but did not engage in any victim contact, to individuals who act on their urges and fantasies . .." (p. 21). Paradoxically, this group of pedophiles, as noted, is at low risk to commit hands-on sexual assaults of children. Those CP offenders that do sexually assault children are distinguished by a much higher degree of antisociality compared to those that refrain from such crimes. Moreover, those CP offenders that sexually assault children typically present as lower in educational and vocational achievement than those for refrain from such crimes. We found in the present study, e.g., that 21% of the Internet-only offenders were professionals, compared with only 8% of the "dual" offenders. Witt (2010) commented that "Studies have found that child pornography offenders are generally more educated, more intelligent, and have more stable work and relationship histories than contact sex offenders" (p. 4). Generally, these findings are consistent with the hypothesis that increased social and vocational competence inhibit the expression of antisocial behavior in IO-only offenders. By contrast, one could readily hypothesize that traits associated with Antisocial Personality Disorder (APA, 2000), such as deceitfulness, manipulativeness, impulsivity, aggressiveness, disregard for others, and impaired social emotions (remorse, guilt, and empathy), more likely found among offline offenders, are disinhibitory to committing a battery offense. Babchishin et al. (2011) concluded similarly, noting the presumptive importance of inhibitors and self-control in differentiating between online and offline offenders.]

The cases also highlighted internet anonymity and made clear that just because you are a sex offender does not mean that you lose your First Amendment right to speak anonymously online. As Eric points out below, sex offenders aren't a class of individuals who have the most political clout, so it's nice to see judges acting as a meaningful check on the legislature in this arena.
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Eric's Comments

Efforts to ban sex offenders from social media sites, or require them to report their credentials, are at the intersection of three memes that have consistently undermined rational policy-making:

1) Protect the kids online. "Protect the kids" makes for great political soundbites, but let me ask a serious question: Can you point me to *any* law that was enacted under the conceit of protecting kids online that has actually had that effect? Politicians pontificate greatly on the need to protect kids online, but I'm drawing a blank on when they've succeeded with that effort.
2) Deprive sex offenders of civil liberties. As pariahs in our society, sex offenders have no one fighting for their civil liberties in legislative processes, so policy-makers can reduce their civil liberties to sub-human levels without any pushback. Fortunately, the courts are standing up to these systematic legislative efforts to functionally eliminate convicted sex offenders from our society, but only at significant cost.
3) Social media exceptionalism. When a new and important Internet medium emerges, policy-makers feel like they have to be "cutting-edge" and fix the purported problems in the emerging medium. But as these and other numerous cases have made abundantly clear, it is absolutely impossible to define social media as a subset of the Internet, so the bans on using social media become the functional equivalent of Internet bans and therefore are clearly unconstitutional. Yet, despite the resoundingly clear message from the courts, statute-drafters keep making the same damn drafting mistakes.

I am particularly disgusted with California's Proposition 35 for three reasons:

1) It was a bait-and-switch on the public. The proposition was sold as an anti-human trafficking law, but the online sex offender restrictions went well beyond that topic.
2) I am not aware of any social science linking sex offenders online with human trafficking. As far as I know, the legislation hardwired assumptions about sex offender behavior that had absolutely no grounding in fact. This wasn't even junk science; it's ascientific policy-making.
3) Even though California has a deficit of billions of dollars, we taxpayers spent our money defending this law--despite the fact it was obviously unconstitutional on its face. Yay for wasted government resources!

I believe California's voter initiative process is irreparably broken, and seeing shitty and unconstitutional initiatives like this get 80%+ voter approval provides more evidence of that.

Overall, the fact that states keep making the same systematic errors provides more evidence that states are terrible "laboratories of experimentation." Rather than replicating the best state laws after the laws empirically demonstrate their worth, states embrace and propagate bad memes quickly--and without any evidence of efficacy--when it comes to regulating the Internet, multiplying the costs to judicially remedy the legislative pandering. We desperately need a moratorium on state laws that regulate the Internet until policy-makers can figure out why they keep making the same mistakes and build processes to overcome the forces causing the systematic errors. (Of course, I'd rather just get state legislatures out of the Internet regulation business altogether, but a moratorium would be a good start).
____

Related Posts

* Sex Offender Online Registration Statute Covers New Myspace Account -- State v. White
* Banning Sex Offenders from Social Networking Sites is Unconstitutional--Doe v. Jindal
* New Jersey Authorizes Ban of Sex Offenders' Internet Access
* MySpace Sued for Facilitating Offline Sexual Assaults

Posted by Venkat at 10:57 AM | Content Regulation , Privacy/Security

January 22, 2013

My Talk to High Schoolers About Accountability for Online Content

By Eric Goldman

Earlier this month, I spoke at Los Altos High School as part of their "History Week" (check out that speaker roster!). The topic title is "Internet and Social Media Usage Rights," which I turned into a talk about ways teenagers can get themselves into trouble on social media. I used three case studies: Finkel v. Dauber, D.C. v. R.R., and Moreno v. Hanford Sentinel.

This was my first talk ever to high school students, and they are a challenging audience (especially when it's mandatory attendance). Still, only a few of them fell asleep on me, and I even coaxed few audible chuckles from the audience, so I'll chalk it up as more successful than not.

My talk slides. Recording of my talk (to preserve student privacy, I turned off the recording before taking Qs) [download and streaming].

Posted by Eric at 09:13 AM | Content Regulation , Privacy/Security | TrackBack

January 14, 2013

Tenured Teacher Properly Fired for Facebook Quips About Her Students–In re Tenure Hearing of Jennifer O’Brien

[Post by Venkat Balasubramani with comments by Eric]

In the Matter of the Tenure Hearing of Jennifer O’Brien, State Operated School District of the City of Patterson, Passaic County, 2013 WL 132508 (Jan. 11, 2013) [pdf]

O’Brien taught in New Jersey since 1998. She was initially assigned to teach fifth grade at School No. 29, but was ultimately assigned to teach the first grade. School 29 has a student body that was “almost entirely composed" of minorities. The 23 students in her class were either Latino or African American. She previously taught at a different school and apparently had a tough time adjusting to School No. 29.

O’Brien posted two statements to Facebook:

I’m not a teacher – I’m a warden for future criminals!

They had a scared straight program in school – why couldn’t [I] bring [first] graders.

The principal of O’Brien’s former school apparently forwarded a copy of the message to the principal of School 29, asking if “there is anything we can do about this.” O'Brien's current principal confronted her about the posts and she was suspended without pay, pending a full investigation. Meanwhile, news of the posts “spread quickly . . . .” The media got wind of the posts. Parents also complained about the posts. O’Brien was charged with “conduct unbecoming a teacher.”

An ALJ heard the matter, rejected her First Amendment arguments, and ordered O’Brien removed from her tenured position:

An internet-social networking site such as Facebook is a questionable place to begin an earnest conversation about an important school issue such as classroom discipline. More to the point, a description of first-grade children as criminals with their teacher as their warden is intemperate and vituperative. It becomes impossible for parents to cooperate with or have faith in a teacher who insults their children and trivializes legitimate educational concerns on the internet.

Interestingly, the ALJ was on the fence about whether removal was the appropriate sanction, but was ultimately swayed by O'Brien's apparent lack of contrition. The Commissioner adopted the ALJ’s decision in its entirety.

The court affirms the Commissioner’s decision. Applying the Pickering test for when public employees can be terminated for speech, the court says that O'Brien's statements were not a matter of public concern. Even assuming the speech was on a matter of “public concern,” the court says that the district’s interest in the efficient operation of its schools outweighed O'Brien's right to express those comments. The court also agrees that the posts evince a “disturbing lack of self-restraint [and were] inimical to her role as a professional educator.”

__

Oof. This is a rough result for O'Brien, who at best experienced a momentary lapse of reason in choosing her particular mode of expression. Ten or fifteen years ago, O'Brien's statement would have taken place in the context of a conversation among peers in a coffee shop or over a beer and would have been instantly forgotten. Today, of course, things are different. Because the comments were posted on Facebook, her former boss was aware of them and was able to forward them to her current boss. News media picked up on them. Parents became agitated. None of this would have happened 15 years ago.

The legal rules are not terribly favorable to public employees, and it's tough to fault the ALJ and the court for their application of the doctrinal rules. My own view is that it's an overreaction to fire someone over something like this, especially someone who had a clean track record. You have to wonder whether generational divides and/or attitudes about internet use influence the outcome in these types of cases. The ALJ's comments and her views about O'Brien's lack of contrition make me think they do. [As a side note, you also have to wonder how O'Brien would have fared against a private employer, given the absurdly expansive aggressive stance taken by the NLRB against employers who take action based on social media posts.] Also, I can see O'Brien appealing this one. She would face better than usual chances on an appeal.

I hate to end this post with a cautionary note to employees who also happened to be users of social media (which seems like a big chunk of the world's population), but careful about what you post! As we've detailed in innumerable posts here, it can and will come back to haunt you. And when it does, the legal rules are not particularly favorable and unlikely to be of much help.
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Eric's Comments

It's human nature for employees to joke about common challenges they face in their industry. The teaching profession is no different. Even the most dedicated and passionate teachers will joke about the never-ending and frequent difficulties they face helping students reach their potential. In some cases, this humor will take a dark and edgy turn. I love my job and I care deeply about helping my students, but I'm sure I've made remarks--both online and off--that, if subjected to cold, harsh scrutiny by outsiders, could be misunderstood out-of-context.

This case reminds us that many jobs/industries have taboo humor. In addition to this example in the teaching industry, we've seen special sensitivity to job-related "jokes" in the funeral industry (Tatro), nursing industry (Yoder and Byrnes) and EMT industry (CareFlite).

[Update: for another example of the intolerance of bad jokes in the funeral industry, see Sutton v. Bailey, 2012 WL 5990291 (8th Cir. Dec. 3, 2012), where a university funeral services director was fired for posting to Facebook: "Toby Sutton hopes this teaching gig works out. Guess I shouldn't have cheated through mortuary school and faked people out. Crap!"]

I'm sure other industries have taboos where jokes are not OK. Employees in those industries must recognize those taboos--even if they are unstated and the acceptability line is invisible--especially when posting in social media. Otherwise, they face significant social condemnation if the spotlight shines on their attempts at humor. One of the hazards of the job, I guess.

I'm especially interested that Ms. O'Brien didn't show any contrition for her posts, presumably because she didn't feel any remorse. I respect her conviction and intellectual honesty, but my reading of this opinion suggests she'd still have her job today if she had showed contrition.

____

Related posts:

* Mortuary Student Can Be Disciplined for Facebook Posts--Tatro v. University of Minnesota
* Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board
* Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech--TV v. Smith-Green
* Mortuary Sciences College Student Disciplined for Threatening Facebook Posts--Tatro v. University of Minnesota
* Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation--Doninger v. Niehoff
* Nursing School Can't Expel Students for Posting Photo to Facebook--Byrnes v. Johnson County CC
* Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction -- State v. Drahota
* Private Facebook Group's Conversations Aren't Defamatory--Finkel v. Dauber
* Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
* Private High School Not Liable for Cyberbullying--DC v. Harvard-Westlake
* Nursing Student's Blog Post Doesn't Support Expulsion--Yoder v. University of Louisville
* Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber
* Court Upholds Student Suspension For YouTube Video of Teacher
* Teenager Busted for Creating Fake "News" Story
* Facebook "Likes" Aren't Speech Protected By the First Amendment–Bland v. Roberts

[photo credit: Javier Brosch/Shutterstock -- "dog listening with big ear"]

Posted by Venkat at 06:45 AM | Content Regulation , Evidence/Discovery , Privacy/Security

January 11, 2013

Top Ten Internet Law Developments of 2012 (Forbes Cross-Post)

By Eric Goldman

I'm pleased to share my list of top 10 developments of 2012:

#10: The Push Towards Anti-Class Action Arbitration Clauses.  In 2011, the U.S. Supreme Court ruled in AT&T Mobility v. Concepcion that businesses may be able to adopt mandatory arbitration clauses that ban customer class-action lawsuits.  The ruling was hardly crystal-clear, but in its wake, many websites adopted such clauses.  Nevertheless, as the Zappos decision points out, these clauses must be adopted according to the laws governing contract formation and amendment, or they will fail in court.

#9: General Patraeus/Paula Broadwell Imbroglio.  On the surface, it's just your typical Washington DC sex scandal.  However, it had several interesting cyberlaw angles, including the attempts to hide digital conversations and Ms. Broadwell's alleged cyberharassment of Jill Kelley.  My biggest takeaway: If the CIA Director can't keep the FBI from reading his email, what chance do you or I have?

#8: Do-Not-Track Meltdown.  Everyone hoped that industry would come up with a do-not-track (DNT) standard rather than kicking the issue to Congress or the FTC.  Then, it all went to heck.  Microsoft announced it would turn on DNT by default in its browser, which prompted Internet publishers to threaten to ignore Microsoft's DNT signal.  Meanwhile, Internet publishers and others adopted a narrow definition of "do-not-track," arguing it meant no-tracking for advertising purposes, but tracking for other purposes was still OK.  The effort then devolved into acrimonious recriminations and left open the possibility that government regulators will fill the gap--to everyone's detriment.  (For what it's worth, I take a very dim view of technological do-not-track efforts for reasons I explain here).

#7: Social Media Exceptionalism.  In 2012, regulators eagerly sought to "fix" social media through regulation, but their efforts will fail because no one can precisely define social media as a subset of Internet activity.  For example, California's recent attempt to curb employers' attempts to obtain employees' social media passwords led to the astounding definition that "social media" means all digital data, whether online or off.

#6: Megaupload.  The US government proudly touted its takedown of Megaupload as a victory for Internet copyright enforcement.  Unfortunately, it appears that takedown involved an enforcement action where it appears the US government repeatedly ignored or broke the law.

#5: Software Patents/Smartphone Wars.  The smartphone industry has ushered in a glorious era of innovation, but it's also highlighted how patents can hinder, not spur, innovation.  Smartphone players have spent (wasted?) billions of dollars on patents with the hope that they can operate without restriction from other players' patents, and many tens of millions of dollars have been spent (wasted?) on legal fees as the players sue each other for patent infringement and defend against interlopers with weak/bogus patents hoping for a little taste of the action.  See my essay on software patents:

#4: Europe Hates Silicon Valley.  I'm surprised whenever I read about a new European ruling that's adverse to a Silicon Valley company, because at this point I assume that everything Silicon Valley companies do in Europe is already illegal.  Google, Facebook and other Silicon Valley players are under constant legal attack in Europe on countless fronts.  Everyone might be happier if the Silicon Valley players just got out of Europe altogether.

#3: Google and Antitrust.  The FTC largely dropped its antitrust investigation against Google, and dropped it completely with respect to Google's search engine practices.  (Technically the denouement rolled out on January 3, 2013, but I'm still counting it as a 2012 development).  This is an important development for several reasons.  First, the FTC--which makes its living by bringing enforcement actions--admitted it had no reason to complain about Google's search engine practices.  Second, the scuttlebutt all throughout the investigated suggested that the FTC was committed to busting Google, and Google turned that situation around 180 degrees.  Third, not intervening into the operation of Google's search algorithm is a logical decision, but one still worth celebrating.  This was a great resolution for Google, a complete rejection of the concerns raised by Microsoft and other Google-haters, and due to the FTC's non-involvement, ultimately a big win for Google's users.

#2: ITU/WCIT's Attempted Internet Takeover.  I really didn't understand what happened in Dubai at the ITU/WCIT meeting.  All I know is that nothing good could have happened there, so preserving the status quo is a win, as ironic as that sounds.

However, there has been some teeth-gnashing that the meeting exposed looming fault lines between pro-censorship and anti-censorship governments.  I don't understand that angst for at least two reasons.  First, all governments are pro-censorship, and that certainly includes the United States.  Indeed, the US has exhibited some awkward duality as it rails against foreign attempts to censor the Internet even as both Congress and the Obama Administration exhibit a never-ending pursuit of controlling the Internet themselves.

Second, the Internet has already fractured into multiple "Internets."  The Internet in the United States increasingly bears little resemblance to the Internet in foreign countries, both because local regulators simply block certain websites and because websites localize their services to accommodate local regulation.  Plus, it's been proven that countries can simply "unplug" from the Internet.  Thus, we don't have a single unified Internet; we have many partially-overlapping Internets.  I will say more about this in a future post.

#1: SOPA's Failure.  The failure of SOPA/PIPA is not the watershed event for our republican democracy that we wished it would be.  Citizen-driven rejection of special-interest Internet legislation will not happen very often.  But as a David-and-Goliath story--the uncoordinated and oft-ignored Internet user community rising up against a well-oiled and undefeated copyright lobby--it doesn't get any bigger than SOPA.  Also, we learned something really important: American voters will acquiesce to a lot of bad and self-interested decisions by their elected officials, but voters will grab the torches and pitchforks if they think the Internet is threatened.

Honorable Mentions

Some other developments of note:

* despite the Fourth Circuit's rekindling of the Rosetta Stone case before it settled, the decade-long keyword advertising litigation battles against Google are basically over with a big win for Google and other keyword advertising vendors.  I also think we'll see trademark owner-vs-advertiser lawsuits tapering off too.

* app cloning is a big business, and we're seeing increasing lawsuits in the area, including the EA v. Zynga and TripleTown cases.

* the application of the Computer Fraud & Abuse Act is being dialed back in the employment context (see the Nosal and WEC cases).

* Oracle v. Google gave us one of the cleanest rulings to date that software APIs are not copyrightable.  The case was also interesting for the judge's investigation into the paid advocacy efforts of both Oracle and Google.

* the images of Marilyn Monroe and Albert Einstein are moving closer to the public domain.

* the IB v. Facebook ruling could be a watershed decision in spurring class action lawyers to make a buck in the name of "protecting the kids" in court.

* Web publishers can improve their defamation defenses by hyperlinking to original sources.

Most Interesting Cases

I read a lot of cases in 2012, and some of the most interesting cases I saw this year:

* Erickson v. Blake.  Music composers can create copyrightable compositions by equating the digits of the number "pi" (π) to musical notes, but they can't stop others from creating their own musical compositions based on pi's digits.

* Bland v. Roberts.  Two government employees "liked" their boss' opponent in an upcoming election; after the boss won reelection, the employees allegedly got fired for their divided loyalties.  The court (mistakenly, in my opinion) said that "liking" an item on Facebook isn't constitutionally protected speech.

* Scott v. WorldStarHipHop.  A classmate posted a video of Scott fighting with an ex-girlfriend.  Scott obtained the copyright to the video from his classmate and, as the new copyright owner, sent copyright takedown notices in an effort to scrub the video from the Internet.  This copyright acquisition scheme basically converts copyright law into a "right to forget."  In 2013, expect to see even more plaintiffs acquire copyright ownership as a way to suppress/control unflattering content about them.

* In re Heartland Payment Systems.  This is a settlement of a data security breach class action lawsuit with 130M class members.  The parties spent $1.5M to encourage class members to tender damage claims and another $270k to process the tendered claims.  A total of 290 claims were tendered, of which 11 were valid, with a maximum payout per valid claim of $175.  So the parties incurred $1.75M in transaction costs to award about $2k in damages.  Interesting.

* Augstein v. Leslie.  If you post a YouTube video promising $1M for the return of your laptop, you could actually owe $1M if someone returns your laptop.

* Olson v. LaBrie.  Facebook should bring families closer together, but in one family, photo tagging plus a snarky comment prompted a lawsuit for a restraining order.

Lists from Previous Years

Previous top 10 lists from 2011, 2010, 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.

[Photo Credit: Top Ten Key // ShutterStock]

Posted by Eric at 07:25 AM | Content Regulation , Copyright , Derivative Liability , E-Commerce , Internet History , Licensing/Contracts , Marketing , Patents , Privacy/Security , Publicity/Privacy Rights , Search Engines , Trademark , Trespass to Chattels | TrackBack

January 07, 2013

The FTC Smartly Ends Its Imprudent Google Search Antitrust Investigation (Forbes Cross-Post)

By Eric Goldman

The U.S. Federal Trade Commission (FTC) has ended its nearly two-year-old antitrust investigation of Google's ($GOOG) search engine practices with minimal consequences to Google.  You can see the details from the FTC's announcement.

With any company as large, complicated and fast-moving as Google, antitrust regulators inevitably will find some problems if they look hard enough.  If this is the worst they found, it's the virtual equivalent of a clean antitrust bill-of-health.

Ending the investigation into Google's search behavior is a smart decision by the FTC, but the FTC's initial decision to investigate Google's search practices was terrible.  We've known since the beginning that regulating search results makes no sense.  Still, all along, we've been waiting to see if nevertheless the FTC had enough "smoking gun" evidence of Google's impermissible search behavior to justify its initial decision to investigate, or if the FTC would find smoking gun evidence through its investigation.  It now turns out the FTC never had compelling evidence against Google, and its lengthy and expensive investigation came up essentially dry--despite the determined (and costly) efforts of both the FTC and legions of free-spending and very whiny Google enemies.  Looking back at the FTC's initial decision to investigate, it seems that the FTC got gamed by Google's enemies.

Google's antitrust problems are hardly over.  Its enemies have gotten zero traction in court, but they have been shopping their gripes to other regulatory bodies, including the U.S. Department of Justice, multiple states' attorneys' general and international antitrust regulators, most obviously the E.U.  Fortunately, the FTC's investigation strikeout offers numerous useful lessons for these regulators and any other regulators considering going after Google for its search engine operations--or, for that matter, any Internet company:

Haters Gonna Hate.  Google's enemies lobbied the FTC to launch the investigation, but the FTC should have been more skeptical of their evidence.  Microsoft ($MSFT) self-admitted it wanted to hobble its competitor after getting badly beat in the marketplace.  Most of the other kvetchers just wanted more customers for less money (the typical expectations of advertisers)...or better yet, free favorable indexing in Google's search engine.  Instead of dismissing their self-serving gripes, the FTC entertained them because Google's power and sheer size scares the FTC and because the FTC has been on a half-decade-long trajectory to crack down on Silicon Valley.  But regulators need to watch out for any initial impulses that tremendous marketplace success is bad, and they need to remember that every successful company has accumulated haters on the way to the top.

A further cautionary tale for regulators: the FTC called out the gripers for their hypocrisy.  For example, Microsoft attacked Google's pay-for-play shopping search engine, even though Microsoft does the same thing; and Expedia ($EXPE), a member of the anti-Google organization FairSearch, non-transparently marginalized American Airlines' listings from its search results in apparent violation of FairSearch principles.  If the people complaining to regulators are engaging in duplicitous behavior, regulators probably got gamed (and the gripers' gambit may backfire on them).

Another irony: Microsoft seemed to think it was pretty clever to put Google through the antitrust wringer after Microsoft experienced its own antitrust hell from the 1990s.  However, perhaps Microsoft didn't learn how to play the antitrust game as well as it thought it did.

Antitrust Investigations Take Too Long for Technology Cycles.  It took the FTC 20 months to determine its investigation was largely fruitless.  20 months is nearly a full generation of technology development in the Internet industry.  A few major developments during the past 20 months that  (individually and collectively) undermine the investigation's rationale:

* Siri.  Search is increasingly moving from the web to mobile, and Siri is picking up searches from mobile devices that used to go to Google.
* Pinterest.  Pinterest is the fastest growing website of all time, and about 2 years ago it emerged from nowhere to become a major source of referral links.  Pinterest reminds us that major Internet competitors can develop really quickly--in ways that no one, and certainly not regulators, can anticipate.
* Social Networking.  Increasingly, consumers are using social networking site links (like recommendations from Facebook friends) as substitutes for keyword searches.
* Home-grown Apps.  Websites are getting increasing traffic from their existing users who have installed the website's propriety mobile app.  For example, Yelp ($YELP), a vocal Google critic, recently reported that "45 percent of searches on Yelp come from its apps."

In general, Internet innovation necessarily will outpace antitrust regulatory procedures, such that the marketplace's structure will change meaningful during the investigation's pendency.  We had already learned that lesson from the Microsoft case; the Google case shows that even a 20-month antitrust investigation period is longer than prevailing innovation cycles.

If There Are No Good Remedies, Enforcement Actions Might Not Be Prudent.  The FTC never had a clear path to remedying problems with search results even if it found Google had impermissibly manipulated them.  The FTC can't really tell search engines how to manage search results; they lack the expertise to do so, plus such editorial discretion has constitutional protection.  The best thing the FTC can do is to foster competition between search providers and get them to spur each other to new innovative heights, but it's not clear what the FTC itself can do to enhance competition in the search industry.

As a result, the FTC got itself stuck in this investigation.  The FTC never had a feasible way to achieve any good outcome.  When a satisfactory remedy to any antitrust problem isn't clear at the investigation's outset, the entire journey might be for naught--and probably isn't worth taking.

Antitrust Investigations Are Costly To Everyone.  Almost every little fact matters to an antitrust investigation, meaning that antitrust cases typically involve heavy, and very expensive, fact discovery.  Antitrust law also involves the subjective weighing of the facts (all too often based on intuition, not science), and it's common for players at an antitrust fiesta to spend lots of money trying to spin-doctor the facts.

Putting aside Google's costs to comply with various regulators' disclosure demands (and ignoring any degradation of Google's product development due to the regulators' heightened scrutiny), Google spent millions of dollars trying to sway the FTC.  Google's economic stimulus package included a dozen DC lobbying firms (a DOZEN!), big brand-name paid influencers such as Robert Bork (recently deceased), Eugene Volokh, Marvin Ammori and many others, and multiple conferences designed to educate DC insiders (see, e.g., the 2011 and 2012 George Mason Law School conferences).  Not directly tied to this investigation, Google also has invested substantially in its policy and advocacy work in other ways, as we discovered in Oracle v. Google and we've seen from its work in Germany.

Fortunately for Google, throwing money at the problem seemed to work really well (some of the FTC's announcement sounded like Google's PR flacks wrote it).  But is that really how the system's supposed to work?

Google wasn't the only player spending like a drunken sailor.  The FTC hired an expensive outside lawyer and invested countless staff hours.  And Google's enemies spent plenty of money themselves, both directly and through advocacy groups like FairSearch.  For example, Microsoft has put on its own event (both in DC and in Europe), and see this San Jose Mercury News list of Microsoft-supported influencers (the article also tries to enumerate Google beneficiaries).  With the FTC investigation over, we might project a recession in the legal industry when all of this money stops sloshing around.

In the end, though the FTC reached the right result from its investigation, the money avalanche left me with a queasy stomach.  As the cynical maxim goes, "he who has the gold makes the rules."  When titans clash over antitrust matters, it's a fine line between justice being served and justice being bought.

More Reading.  I've written two academic articles on search engine bias.  The first, from 2006, was part of the first wave of academic discourse about search engine bias.  It explains why search engine bias is both inevitable and desirable.  The second, from 2011, recounts some changes over the prior 5 years and discusses how academic discourse about the subject degrades once the spin doctors take over.

Disclosure Notes.  I have never been a lawyer, expert or consultant for Google or any of the other major players in this fracas.  I am a Google AdSense publisher, but my earnings are meager (typically $30-$40 a month).  I own a small number of Expedia shares.

[Photo Credit: Handgun // ShutterStock]

Posted by Eric at 06:39 AM | Content Regulation , Search Engines | TrackBack

January 02, 2013

Section 230 Still Keeping the Pro Se Plaintiffs at Bay--Klayman v. Facebook, and More

By Eric Goldman

I'm personally committed to blogging every Section 230 case I see, but I fell off the wagon in the second half of 2012. So what better way to usher out 2012 and ring in the new year than to recap some Section 230 wins from the past 6 months? The following four cases all involve pro se litigants whose unmeritorous cases got unceremoniously swept out of court, just like Baby New Year walks Father Time out the door. In 2013, I resolve to give continued thanks to Section 230 for keeping the court system relatively free of junk lawsuits like these:

Klayman v. Zuckerberg, 2012 WL 6725588 (D.D.C. December 28, 2012). Klayman is a lawyer-plaintiff. For reasons that are unclear to me, pro se lawyer-plaintiffs fail in court at about the same rate (or worse) as the typical pro se. I find this hard to comprehend; after all, shouldn't lawyers have a better sense which legal claims are worth pursuing than the average individual litigant? Presumably, the only more knowledgeable litigants are judge-plaintiffs; I don't see many of those cases, but these usually also fail in a pretty embarrassing way. This sounds like a good area for further research.

Larry Klayman is notorious enough to have his own Wikipedia page. I'm not sure how to gauge his accomplishments because the Wikipedia page only highlights his failed lawsuits--the word "unsuccessful" shows up four times on the page, not including this lawsuit.

The case involves a user-created Facebook page titled 'Third Palestinian Intifada.'" It's not clear from the opinion how this page harmed Klayman, but I guess it doesn't take much to provoke a lawyer to sue. While typing the complaint, Klayman's finger apparently got stuck on the "zero" key. He demanded $1,000,000,000.00--that's right, $1 billion--because Facebook didn't take down the page fast enough.

The court runs through the typical three-factor Section 230 analysis:

1) ICS? Facebook provides an interactive computer service because it maintains "a website that gives its users the ability to create, upload, and share various types of information, potentially with hundreds of millions of other users."

2) Publisher/Speaker Claim? Klaynan sued Facebook for assault (!) and negligence. The court says:

the defendants' alleged conduct ascribed to them the status of publishers of information, whether by "using" the website to post certain content (i.e., publishing), id. ¶ 17, "allow[ing]" certain content to be posted to the website (i.e., deciding whether to publish), id. ¶¶ 17, 19, or by "refus[ing] . . . to remove these postings," id. ¶ 19. The defendants' potential liability is thus "derive[d] from [their] status or conduct as a publisher or speaker."

Klayman belatedly attempted the Barnes promise-based workaround to Section 230 and gets mocked:

It begs credulity that the plaintiff, a "highly visible and well known lawyer," Compl. ¶ 11, would not have included a claim for breach of contract if he contemplated such a claim as a viable possibility.

3) Were the defendants the ICPs? [note: normally this is phrased as whether the content came from third party content providers, but I think this restyling is OK in this case.] The court says:

Nowhere in his complaint or in his opposition brief does the plaintiff allege that the defendants contributed to the content of the Facebook page at issue. Rather, as described above, the plaintiff focuses on the role that the defendants played in publishing the Facebook page. [FN3] The plaintiff's own allegations are inconsistent with a finding that the defendants acted as information content providers with respect to the offensive material at issue.

FN3 is interesting. Klayman argued that Facebook collects data about its users and then personalizes their site views based on this data. The court says that even if that's true, it would just represent another form of editorial control immunized by Section 230.

Having satisfied the three elements of a successful Section 230 immunity, the court grants Facebook's motion to dismiss. This is a good outcome for Facebook, but I'm not clear why Facebook didn't make an anti-SLAPP motion under D.C.'s anti-SLAPP law. That way, Klayman would have to write Facebook a tuition check for his Section 230 schooling. Even without anti-SLAPP protection, I hope Facebook seeks Rule 11 sanctions against Klayman. We haven't seen too many courts grant Rule 11 motions in Section 230 cases (I wish they did) but Klayman's lawsuit broke absolutely no new legal ground and was doomed from inception.

A Facebook spokesperson told me: "We are pleased with the court's ruling dismissing all claims with prejudice."

Merritt v. Lexis Nexis, 2012 WL 6725882 (E.D. Mich. October 23, 2012). Merritt claimed Lexis-Nexis published false information about him. The court never explicitly says the information comes from third parties, but that's the logical inference given Lexis-Nexis' business model. The court says that Lexis-Nexis qualifies for Section 230's immunity (citing the memorable Gaston case). The court then says Merritt's claims fall "squarely" in Section 230's immunity.

Nieman v. Versuslaw, Inc., 2012 WL 3201931 (C.D.Ill. August 3, 2012). See also the magistrate's report, 2012 WL 3201935 (C.D.Ill. June 13, 2012). I've held off blogging this case because the University and I have received threats from Nieman (lucky us!). So just the facts on this one.

The court summarizes Nieman's arguments:

Between January 2009 and the date of filing this action, Plaintiff applied for one or more positions of employment. Plaintiff believes that the potential employers have performed Internet browser searches by way of Google.com, Yahoo.com, or Bing.com, and found documents related to litigation against his former employer Nationwide. Plaintiff also believes that the potential employers have used this information to disqualify him from candidacy for the applied position or have shared this information with others who have done so. In other words, Plaintiff alleges he “has been effectively ‘blacklisted’ as to employment opportunities due to the ease at which these references appear pursuant to a simple name search, and due to the unlawful acts of third parties who then use such information to unlawfully disqualify” his candidacy.

He sued Microsoft, Versuslaw, Yahoo!, Google, and Joseph W. Acton for, among other claims:

* violations of Illinois' human rights law. The court rejects the claim, saying the complaint only alleged "Defendants provided access to public information that potential employers used to deny Plaintiff employment," and that doesn't suffice.

* publicity rights. The court says:

First, the exemption from liability for using a person's identity for a non-commercial purpose, including in a news or public affairs account is applicable here. Plaintiff's prior litigation is a matter of public record and public interest. Moreover, Plaintiff's identity is not being used for a “commercial purpose” as defined by the Right of Publicity Act because his name is used only to find documents related to his case, which are part of the public record. His name is not being held out or used to entice anyone to buy a product. Under Plaintiff's theory, every person who is involved in litigation who has public court documents that can be accessed for a fee on the Internet by doing a browser search or found by using Westlaw, Lexis, Versuslaw, or any other legal research site can state a claim under the Right of Publicity Act. This cannot be the case.

* 42 USC 1981. The court says he didn't allege any discrimination on improper bases.

* Lanham Act. Nieman alleged "Defendants Versuslaw and Acton are attempting to associate Plaintiff with their for-profit website. Plaintiff accuses Defendants Google, Yahoo, and Microsoft of actively participating in “these unlawful acts ... by way of their paid search ranking and/or AdWords mechanisms.”"

Citing Stayart v. Yahoo, the court says Nieman doesn't have standing because he lacks the requisite commercial interest in his name.

* Unjust enrichment. "Defendants are not “retaining a benefit” to Plaintiff's detriment just because they are selling electronic access to public information and Plaintiff does not like the information contained in those public documents."

The court also grants Microsoft and Yahoo's First Amendment and 47 USC 230 defenses. Regarding the First Amendment, the court says "all of Plaintiff's allegations rest on the premise that Defendants' websites provide links to information that is in the public record. Plaintiff cannot show he is plausibly entitled to relief." Regarding 47 USC 230, the court says that it agrees with the magistrate report that Section 230 applies, but the judge expresses uncertainty about the immunity for the trademark and publicity rights claims because they are IP claims; and also about the RICO claim as a federal crime (the court doesn't cite the several cases rejecting its line of reasoning on that point).

Getachew v. Google, Inc., 2012 WL 3217611 (10th Cir. August 9, 2012). This case is quite similar to the Nieman case. The court recaps:

Mr. Getachew alleges that when all or part of his name is entered into Google's Internet search engine, the search results yield negative information about him. For example, Mr. Getachew was previously a plaintiff in an employment action, and he alleges that the summary judgment order in that case is available when part of his name is entered into Google's search engine. He also alleges that another Google search result links his name to a "[g]raduate position available in evolutionary systems biology."

All of this, he alleges, hurt his employment prospects. The district court said that his discrimination and Title VII claims were "frivolous" and his state law claims against Google were immunized by 47 USC 230. The appeals court upholds these conclusions. With respect to 47 USC 230, the court says "Google is immune from Mr. Getachew's state-law claims under 47 U.S.C. § 230(c)(1). Under that provision, Google cannot be held liable for search results that yield content created by a third party."

[Photo Credit: Dust Bunny // ShutterStock]

Posted by Eric at 07:38 AM | Content Regulation , Derivative Liability , Privacy/Security , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack

December 31, 2012

Anti-Scraping Lawsuits Are Going Crazy in the Real Estate Industry (Catch-Up Post)

By Jake McGowan with comments from Eric

[Eric's preliminary note: it's taken me weeks to review this blog post, so I've been keeping poor Jake in a holding pattern. Still, I hope the wait is worth it.]

The real estate listings industry has become increasingly concerned with competitive “scraping” by multiple listing service websites. After all, MLS owners make money by exploiting an information asymmetry--they charge participating brokers and agents for access to the database listings. If a website legally scrapes and distributes the MLS’s data, it destroys the valuable information asymmetry and thus hurts the listing services’ revenues.

For these reasons, some MLS sites have tried to squash this type of competition by taking the scrapers to court for copyright infringement. But the listings in question often consist largely of photographs and generic descriptions. Does copyright even apply in the first place?

First, courts tend to enforce copyright protection for photographs in this context. Earlier this year in Pacific Stock, Inc. v. MacArthur & Company, Inc., Pacific Stock went after the owners of a website that scraped real estate listing photographs and used them on the site without a license. The court entered default judgment against the website and its operators.

While photographs often satisfy the originality requirement, questions linger as to whether courts should protect seemingly generic listing information.

In recent cases like Allure Jewelers v. Mustafa Ulu, we have seen defendants make similar arguments (i.e., that copyright does not protect the information in question). Allure involved a dispute between competitors over whether descriptors for jewelry are protectable. Unfortunately, the court did not go into depth about the originality argument; it dismissed Allure's claim for failure to obtain registration before filing suit.

But a district court in Minnesota recently considered this question more directly in Regional Multiple Listing Service v. American Home Realty Network, 0:12-cv-00965-JRT-FLN (D. Minn. Sept. 27, 2012).

Background

The controversy centered around three types of content allegedly scraped from Regional MLS’s “NorthStarMLS” website: (1) photographs; (2) narrative “public”/“agent” remarks; and (3) “field descriptors.”

The narrative public/agent remarks describe the property, but also contain a bit of puffing and tailoring toward a target audience.

Example:

Agent Remarks: Agents this is a must see for your lakehome buyers. Main flr living, gradual slope to lake, sandy lakeshore, finished lower level, ceramic tile & infloor heat, 2 decks & much more. Agent/Seller, questions call listing office. Provide as much notice for show

Public Remarks: Lakefront living at it’s [sic] finest! Southern views from either of your 2 decks or patio, Full finished basement w ceramic tile & infloor heat, & many more upgrades. Sandy lakeshore, yard w minimal maintenance, perfect for that getaway you’ve been looking for.

The “field descriptors,” on the other hand, are usually bare factual statements that describe the property in generic terms.

Example:

Exterior Features: Balcony, Deck, Dock, Patio

Interior Features: Kitchen Window, Security System, Tiled Floors, Vaulted Ceiling(s), Walk-in Closet, Washer/Dryer Hookup, Main Floor Full Bath, [illegible], 3⁄4 Basement, All Living Facilities on [illegible].

RMLS alleged that AHRN infringed its copyrights for all of this content by scraping the data (either from NorthStar or its licensees) and reproducing it on NeighborCity.com. Although the court did not enter a full discussion of the copyright interest in the textual elements of a MLS database, it still shed some light on whether those elements were sufficiently original to warrant protection in any event.

“Narrative” Descriptions of Houses Likely Qualify for Copyright Protection

The court held that the narrative “agent remarks” and “public remarks” were likely copyrightable:

As with other types of copyrights, creativity must exist to protect a compilation . . . These remarks are uniquely-phrased descriptions of property, highlighting those parts of a property that might be most attractive to agents and the public[.]

The court also held that RMLS was likely to succeed in showing “irreparable harm” because NeighborCity detracts value from NorthStarMLS. In addition, RMLS contracted with the brokers under the expectation that it would not distribute any of the listing content without permission from the brokers. Thus, if RMLS didn’t go after NeighborCity, their reputation and goodwill may have suffered.

As for the scope of the injunction, the court refused to grant protection to the field descriptors:

The descriptors do not seem sufficiently creative to warrant protection, especially one-word descriptors such as “deck” and “patio” . . . There are limited ways of expressing the basic facts included in these field descriptors, suggesting these expressions by RMLS are not copyrightable.

Since then, AHRN filed its answer and asserted counterclaims under federal and Minnesota antitrust law:

The concerted effort to suppress competition from companies like AHRN depends in large part on the ability of RMLS and other MLS's to . . . intimidate potential competitors with threats of copyright enforcement litigation – despite knowing that much of the information over which they claim copyright privilege is not copyrightable, not properly registered in compliance with the Copyright Act, or not owned by them.

Same Writ, Different Plaintiff: Metropolitan Regional Information Systems v. AHRN

Metropolitan Regional Information Systems v. American Home Realty Network, 12-cv-00954-AW (D. Md. Nov. 13, 2012)

AHRN just can’t catch a break. The company is also currently a defendant in another copyright case extremely similar to the one discussed above—this time brought by Metropolitan Regional Information Systems (MRIS).

MRIS moved for a preliminary injunction, which the district court ultimately granted. After AHRN filed a motion to clarify the scope of the injunction, the court cited factual disputes about the underlying textual elements and thus specified that the injunction applied only to the photographs in the database.

The Court had originally enjoined AHRN from:

unauthorized copying, reproduction, public display, or public distribution of copyrighted content from the MRIS Database, and from preparing derivative works based upon the copyrighted content from the MRIS Database.

The court concluded that the language in the order was not sufficiently specific under FRCP 65, especially since the court based its order on the copyrighted photographs.

MRIS disagreed to the request to modify the order, pointing out that the Court had previously found that the database is entitled to copyright protection as a compilation. As part of that holding, the Court found that the database (including the textual elements) had exhibited the requisite originality for copyright protection.

But although the textual elements were part of a compilation that had the requisite level of originality, MRIS had not shown that AHRN copied such textual elements. There was still a factual dispute as to whether AHRN copies the database wholesale as part of its operation. For this reason, the court declined to expand the scope of the injunction beyond MRIS's copyrighted photographs.

The revised order now reads as follows:

AHRN and all persons acting under its direction, control or authority are hereby preliminarily enjoined from unauthorized copying, reproduction, public display, or public distribution of MRIS’s copyrighted photographs and from preparing derivative works based upon MRIS’s copyrighted photographs.

Although the court refused to include the textual elements in the preliminary injunction, it noted that the revised order does not mean that MRIS has no copyright interest in the textual elements.

To the contrary, MRIS has demonstrated a likelihood of success on the merits that the MRIS Database exhibits the requisite originality for copyright protection.

But the court did also mention that copyright interests in factual compilations are "thin."

Like in the RMLS case, AHRN subsequently filed antitrust counterclaims.

__________

Initially, it’s worth noting that photographs receive unique treatment in the infringement analysis. The court has no trouble concluding that a competitor potentially infringes when it copies the photos.

These cases both seem to stand for the idea that the textual elements are sufficiently original to qualify for copyright protection—albeit “thin.” Drawing the line in the sand at the "field descriptors," the RMLS court recognizes the psychological difference between lists and narratives from the perspective of the reader. Although these "narratives" might be broken sentences with generous amounts of typos, they evoke certain emotions that bare facts cannot and require some original thought. They might even be useful to an agent who is pondering their best sales pitch. For these reasons, they clear the originality bar (though not by much). [Eric's note: re copyrighting language that's the most effective sales language, see Webloyalty.com, Inc. v. Consumer Innovations LLC.]

By setting the bar relatively low for originality, this decision may lead to more copyright-based attacks on these MLS competitors as a way of suppressing competition. This prompts a bigger question: how much value does the "narrative" aspect of these sections add to these sites?

If customers don't care about the "narrative" aspect of the sites, then this decision may not pose as much of a threat to these listing scraper sites--it seems that as long as they don't use the photographs or copy any original narratives, they are less vulnerable to a copyright infringement suit. This prompts yet another question for these plaintiffs—given the “thin” nature of protection, is a lawsuit really worth it? We’ll have to wait and see.
_____

Eric's Comments

Scraping always raises interesting policy and theory issues, so from that standpoint I'm disappointed we don't see more scraping lawsuits or rulings. These two NeighborCity rulings are among the cleanest to date addressing the copyright implications of scraping, and they show just how hard it is to run a legally permissible scraping-based business. Here, the real gotchas are photos--always a liability trap--and the kicker is that the MLSs are taking copyright ownership in the photos enough to have standing.

In the Northstar case, the court is fairly clear that the MLS doesn't always take 100% ownership and NeighborCity is free to approach the co-owner for the license. Recognizing the logistical difficulties of doing so, so long as the MLS can engage in legal shenanigans like taking a meaningless ownership stake in photos, the MLS can use that ownership stake as an impressively effective anti-competition tool. I was disappointed in the Northstar case how tone-deaf the judge was to the competitive issues at stake. It seemed like once the MLS established its status as a copyright owner, all competition-related issues got turned off. That's troubling from a policy standpoint.

Stitch together the following four copyright ownership data points and you'll see a disturbing trend:

1) As discussed in this post, MLSs, as database aggregators, taking copyright ownership interests in broker-supplied photos/"product shots" to suppress competition from other aggregators
2) Righthaven taking ownership interests in newspaper articles so it could sue mom-and-pop republishers
3) Scott v. WorldStarHipHop and related cases (such as Katz v. Chevaldina) where the subjects of photos/video who are unhappy with their depiction buy the copyrights to the photo/video and then send copyright takedown notices in a synthetic right-to-forget campaign.
4) Medical Justice encouraging doctors and other healthcare providers to take copyrights in written patient reviews of them to have the power to veto those reviews.

To me, the trend is clear. People are monkeying with copyright ownership to achieve purposes that copyright law was never designed to accomplish. I haven't yet figured out a fix for this, but if we aren't careful, this copyright ownership hack will moot many other important social and policy balances we've tried to strike elsewhere in the law.

Two other interesting things from these rulings:

1) NeighborCity appears to have avoided scraping the MLS sites directly, thereby presumably avoiding the risk of trespass to chattels/CFAA and contract breach claims. Still, as these cases indicate, scraping a third party licensee's site doesn't bypass the copyright problem.
2) The Maryland case upheld the validity of an electronic copyright (204(a)) ownership assignment per E-SIGN, favorably citing Hermosilla case. (The court says that, using an online clickthrough agreement "satisfied the signature requirement of E-SIGN and Section 204(a)"). I think this is the right result, but it shows just how easy to accomplish the copyright ownership hack.

[Photo Credit: Olivier Le Queinec / Shutterstock.com]

Posted by JakeMcGowan at 11:40 AM | Content Regulation , Copyright , Licensing/Contracts , Trespass to Chattels | TrackBack

December 27, 2012

Court Dismisses Class Action Against Apple Over Its App Developers’ Information Collection Practices – Pirozzi v. Apple

[Post by Venkat Balasubramani with comments from Eric]

Pirozzi v. Apple, 2012 WL 6652453 (N.D. Cal.; Dec. 20, 2012)

This is one of several putative class actions over the information collection practices of apps. I previously covered how the lawsuit against Path survived: “Class Action Against Path Over Cellphone Address Book Access Keeps Going”. Judge Koh also whittled down the lawsuit against Apple over its iPhone app privacy practices: “Judge Koh Whittles Down iPhone App Privacy Lawsuit.” This lawsuit seems to overlap with both and is dismissed, albeit with leave to amend.

Plaintiff brought claims under California’s unfair competition law, for false advertising, for violations of the Consumer Legal Remedies Act, for negligence and unjust enrichment. Although it's unclear what apps she is complaining about, the following apps are mentioned in the complaint: Path, Angry Birds, Cut-the-Rope, Twitter, Facebook, LinkedIn, Gowalla,Foodspotting, Instagram, Foursquare, Beluga, Yelp!, Hipster and Kik Messenger.

Standing: The court dismisses on the basis of standing, but there were two interesting aspects to the standing discussion.

First, plaintiff cited to a bunch of somewhat persuasive marketing copy about how Apple had adequate restrictions in place regarding the collection of information by app developers. However, it was unclear as to how exactly plaintiff was induced to make a purchase in reliance of these alleged promises. The court finds that the pleadings are unduly vague about what plaintiff was induced to purchase (or download) and what statements induced the purchases or downloads.

Second, the court also notes that the pleading suffers from deficiencies regarding harm. If information was improperly collected by app developers, so what? Citing to Hernandez v. Path and Krottner v. Starbucks, the court says that future risk of identity theft is insufficient to allege harm. This leaves economic harm, and here plaintiff’s allegations were again unduly vague. In a short sentence, the court notes that the “personal information as inherently valuable” argument will be unlikely to carry the day. Still, the court grants leave to amend.

Sidenote: WSJ recently published a story about merchants offering varying prices to individuals based on targeting. I wonder if this will surface in a future standing argument. I'm guessing it will.

Section 230: I am sure Prof. Goldman will have more to say about the Section 230 issue, but here’s my take. To the extent plaintiff tries to hold Apple liable for any harm effected via apps, this will run squarely into Section 230. Apple’s only role in making the apps available is a publisher or distributor. (See for example, Green v. AOL, where claims based on transmission of a virus via chatroom was held to be immunized by Section 230.) There is, of course, the promissory estoppel (contractual) carveout to Section 230 as recognized in Barnes v. Yahoo!. The claims allowed by the 9th Circuit in Barnes were fairly narrow, and it’s unclear as to whether any alleged contractual representations by Apple should open the door to things like CLRA claims. At least some of plaintiff’s claims should have been dismissed under Section 230 (the negligence and negligent misrepresentation claims). As to the statutory claims centered around misrepresentation, I suspect they are a bit trickier. Although the misrepresentation claims may have problems on the merits on their own, the applicability of Section 230 to those claims is a bit tougher in my estimation.

Issues on the Merits: The court also points out a few other issues with the pleadings:

1. Any claims alleging misrepresentation (unfair competition; false advertising; consumer legal remedies act) sound in fraud and therefore have to be pled with particularity. Plaintiff fails to do so.
2. Her CLRA claims are unclear as to whether they are directed at the services (the apps or the app store) or the goods (the devices). The court dismisses but with leave to amend. Applicability of the CLRA to the app store is less than clear, and the plaintiff has obvious problems alleging CLRA claims with respect to the devices (which on their own, functioned as promised).
3. The negligence claims fails. As articulated in Judge Koh’s ruling: there is no duty to protect someone’s information vis a vis third parties, absent a special relationship. (Again, this would have been a good candidate to nuke on Section 230 grounds.)
4. The court also says that the unjust enrichment claim fails because plaintiff does not identify how exactly Apple has been enriched by the information collection practices of the app developers.
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In theory, plaintiff should have a hard time holding Apple liable for the information collection practices of its developers. The fact that the apps in question are free should make it particularly difficult. Because the apps are free, it's difficult to demonstrate economic harm based on download of the apps, and plaintiff is left to argue informational harm, which hasn't gained much traction in courts (absent misuse of the data that results in economic harm). With respect to misrepresentations that induced plaintiff to purchase any devices, plaintiff's qualm isn't really with the devices--it's with the app store. I don't know that the law permits you to argue you are entitled to a refund of the price of your device just because a rogue app or two happened to be out there.

On the other hand, there's some troubling marketing copy that ended up out there. It may have been wise for Apple to issue disclaimers regarding its inability to control the conduct of app developers who use its platform. As to whether it could stretch the case out, it's tough to tell, but the absence of that language would certainly have made the lawsuit an easier battle for Apple.

Related posts:

Class Action Against Path Over Cellphone Address Book Access Keeps Going
Judge Koh Whittles Down iPhone App Privacy Lawsuit
Data Breach Claim Survives Based on Allegation of Misuse of Personal Information -- Burrows v. Purchasing Power
Sony Network Data Breach Class Action Suffers Setback -- In re Sony Gaming Network
Starbucks Data Breach Plaintiffs Rebuffed by Ninth Circuit -- Krottner v. Starbucks
9th Circuit Affirms Rejection of Data Breach Claims Against Gap -- Ruiz v. Gap
LinkedIn Beats Referrer URL Privacy Class Action on Article III Standing Grounds--Low v. LinkedIn
Third Circuit Says Data Breach Plaintiffs Lack Standing Absent Misuse of Data -- Reilly v. Ceridian
First Circuit Rejects Data Insecurity Claims on the Basis of Article III Standing--Katz v Pershing
New Essay: The Irony of Privacy Class Action Lawsuits
Another Data Loss Case Tossed on Article III Grounds--Whitaker v. Health Net
Reidentification Theory Doesn't Save Privacy Lawsuit--Steinberg v. CVS Caremark
Men's Journal Beats Lawsuit Alleging Violation of California’s “Shine the Light” Privacy Statute -- Boorstein v. Men’s Journal
The Cookie Crumbles for Amazon Privacy Plaintiffs – Del Vecchio v. Amazon
A Look at the Commercial Privacy Bill of Rights Act of 2011
Flash Cookies Lawsuit Tossed for Lack of Harm--La Court v. Specific Media
Judge Recognizes Loss of Value to PII as Basis of Standing for Data Breach Plaintiff -- Claridge v. RockYou
Another Lawsuit over Flash Cookies Fails -- Bose v. Interclick
Facebook and Zynga Privacy Litigation Dismissed With Prejudice [Catch up Post]
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Eric's Comments

The plaintiffs allege that Apple offers a certification program for apps in its app store, so I understand in concept how Apple might be responsible for failed certifications. Still, I get nervous every time I see plaintiffs use a defendant's marketing representations or site disclosures as a way of getting around what should fundamentally be a 47 USC 230 immunity. The doctrinal interplays between first-party marketing representations and liability for third-party conduct under 47 USC 230 remains a legally chaotic one, and I hope the judge understands the problems with Section 230 workarounds and is appropriately sensitive to that issue.

The opinion only references 47 USC 230(c)(1), even though this seems more like a 230(c)(2) case. The plaintiffs are suing Apple for doing a poor job of filtering apps out of its app store, and that's exactly what 230(c)(2) covers.

Posted by Venkat at 11:56 AM | Content Regulation , Derivative Liability , E-Commerce , Privacy/Security

December 14, 2012

Calling Someone a "Terrorist" Online Is Non-Actionable Opinion--LeBlanc v. Skinner

By Eric Goldman

LeBlanc v. Skinner, 2012 WL 6176900 (N.Y.A.D. Dec. 12, 2012)

I've never heard of Wawayanda, New York before now, but I won't quickly forget it. The court succinctly summarizes the underlying incident:

[Town Board member] Soro discovered a severed horse head in her swimming pool. It was never determined who was responsible for the incident.

Say what??? Talk about life imitating art. Who does something like this? Do Corleones live in the neighborhood? The judge understood the cinematic import of the incident, noting "The [movie] scene, probably one of the most iconic in cinematic history, has come to exemplify an act of intimidation through violence, a reminder of power, and a warning that a request or "offer" from a Godfather or leader of an organized crime family should not be "refused.""

Believe it or not, this opinion is worth noting even if there wasn't a decapitated equine. After this traumatic experience, community members started pointing fingers at each other over whodunit. The plaintiff accuses the defendants of posting the following statements at blogs and newspaper websites:

* "We all know who was behind the Horse Head . . . there is only one man around town dumb enough, violent enough and with a vendetta to do that . . . Dave LeBlanc . . . I hope all this negative publicity on him destroys his business."
* "Dave LeBlanc is a terrorist"
* "Who was the one who threw the horse head in Gail's pool . . . check it out: . . . wawayandafirstblogspot.com."

There is even more intrigue as the co-defendants are pointing fingers at each other. Aunt and uncle accuse their nephew of making the posts; the nephew claims he was the aunt/uncle's agent and they directed him to make the posts. This implicates some potentially interesting 47 USC 230 issues that aren't explored (compare this 2008 case where a wife typed her husband's comments).

The court says the "terrorist" epithet was "rhetorical hyperbole." The court continues:

This conclusion is especially apt in the digital age, where it has been commented that readers give less credence to allegedly defamatory Internet communications than they would to statements made in other milieus.

Of course, in the modern post-9/11 era where we have sacrificed our liberty for the (usually false) perception of security, calling someone a "terrorist" is among the worst things you can do. Definitely don't joke about it in airport security lines. Here, the court--without reservation--says the online reference doesn't have the obvious serious implications that normally attach to being a "terrorist." Why not, especially given that the horsehead-target was an elected government official? I wonder if ethnicity might have something to do with how we interpret the accusation?

Either way, there is now an impressive body of precedent holding that people don't interpret online name-calling literally. See, e.g., Seldon v. Compass Restaurant, Chaker v. Mateo, Sandals v. Google (cited here), DiMeo v. Max, Finkel v. Dauber and others. I wish this meant that plaintiffs will think twice about suing over online name-calling, but I doubt it.

Still, the news isn't all good for the defendants. The court says it's defamatory per se to assert that someone put a severed horse head in someone's pool, so it reserves dismissal of that claim.

[Photo credit: horse isolated on a white background // ShutterStock]

Posted by Eric at 08:49 AM | Content Regulation | TrackBack

December 13, 2012

Two More Cases Hold That Anti-SLAPP Laws Protect Consumer Reviews

By Eric Goldman

Every anti-SLAPP law is worded differently, but some statutes protect statements on "matters of public interest," "issues of public concern" or something similar. This language usually doesn't explicitly reference consumer reviews of marketplace offerings, but my position is that consumer reviews should categorically qualify as matters of public interest because they help consumers make better marketplace choices, and society benefits from more efficient marketplaces. Typically-- but not always--courts have reached this result, but sometime with more drama than necessary. Thus, it's nice to see two clean rulings finding that consumer reviews qualify for anti-SLAPP protection.

Colocation America, Inc. v. Archie Garga-Richardson, 2012 WL 6098545 (Cal. App. Ct. December 10, 2012)

Garga-Richardson was the plaintiff's customer until they had a falling-out (over Colocation America's termination of Garga-Richardson's colocation account after he allegedly launched a DoS attack). He posted negative reviews all over the Internet (see, e.g., the Yelp review), including at his personal website ScamFraudAlert.com, containing the following assessment:

When dealing or conducting business with Mr. Albert Ahdoot dba Colocation America, Inc ... and his related businesses or data centers, please exercise CAUTION AND CARE as Mr. Ahdoot is not a man of his word.

The parties dispute whether this posting involves an "issue of public interest." Citing Chaker v. Mateo, the court says yes:

Consumer information is generally viewed as a matter of public interest. (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898.) The server hosting provided by Colocation America potentially attracted a large number of possible customers, since many if not most businesses now rely on servers for storing data and facilitating Internet connectivity. A comment (whether fair or not) on the business practices and honesty of a server hosting provider is indisputably a form of consumer information, and it therefore concerns a matter of public interest. (emphasis added)

AR Pillow Inc. v. Maxwell Payton, LLC, 2:11-cv-01962-RAJ (W..D. Wash. Dec. 4, 2012) [warning: 6MB file]

I previously blogged this dispute. The plaintiff makes foam wedge pillows to combat infant reflux. The defendant isn't a typical consumer; instead, she resold the pillow until she decided it wasn't advisable for her audience, so she dropped the pillow from her product line and wrote a negative review of the pillow.

The court says the review "provides a general warning to consumers visiting her website regarding her concerns with the performance of another company's product," and thus it qualifies as a matter of public concern. The court doesn't expressly base this conclusion on the underlying childrens' health issue, though that certainly didn't hurt. Because the review qualified for anti-SLAPP protection, the court dismisses the defamation and tortious interference claims and awards the defendants their attorneys' fees plus Washington's statutory anti-SLAPP bonus of $10,000 per defendant (a total of $30,000).

More Reading

* Ripoff Report and Topix Postings Protected by California's Anti-SLAPP Law--Chaker v. Mateo
* We Need Federal Anti-SLAPP Legislation, But Sen. Kyl's "Free Press Act of 2012" Isn't the Answer (Yet)
* Texas Ruling Shows the Benefits We'd Get From a Federal Anti-SLAPP Law--American Heritage Capital v. Gonzalez
* Ninth Circuit Upholds Anti-SLAPP Ruling for Blogger/Griper--Sedgwick v. Delsman
* CA Anti-SLAPP Cases Involving Consumer Reviews as Matters of Public Concern
* Dentist Review on Yelp Gets Partial Anti-SLAPP Protection--Wong v. Jing
* Recent Anti-SLAPP Developments
* Why I Support HR 4364, the Proposed Federal Anti-SLAPP Bill

[Photo credit: Thumbs up and down buttons // ShutterStock]

Posted by Eric at 09:46 AM | Content Regulation | TrackBack

December 10, 2012

Facebook Doesn't Violate Antitrust Law When It Controls Its Users' Experience--Sambreel v. Facebook (Forbes Cross-Post)

By Eric Goldman

Sambreel Holdings LLC v. Facebook, Inc., 2012 WL 5995240 (S.D. Cal. Nov. 29, 2012)

As successful Internet companies evolve from shoestring start-ups into marketplace incumbents, inevitably their reward will include antitrust challenges to their conduct.  The flagship example is the FTC's investigation of Google's ($GOOG) practices, which has been dragging on for nearly two years--mostly because the FTC didn't have (and probably still doesn't have) any smoking gun evidence of Google's bad behavior.

While the FTC investigation might get the headlines, there has been a steady stream of lower-profile antitrust challenges against Google as well (KinderStart, Person and myTriggers are three cases that come immediately to mind).  These civil challenges rarely go anywhere because they have zero merit.  It's easy to plead an antitrust violation, but it's much, much harder to prove.

Now that Facebook ($FB) has developed into an Internet incumbent, antitrust claims are beginning to follow it too. Just like Google's experiences,  most claims against Facebook are probably spurious, as evidenced by a recent ruling.

PageRage's Lawsuit

PageRage is a user-installed browser plug-in that customizes the display of Facebook's pages.  Facebook denigrates PageRage as adware, but PageRage claims that Facebook didn't initially object to PageRage's operation as a plug-in.  PageRage says it grew to 4 million users/day and over $1M in monthly ad revenue before Facebook changed its mind and dropped the hammer on it.  PageRage claims that Facebook became concerned that advertisers were using PageRage as a cheaper way to reach Facebook users, so Facebook thwarted use of its plug-in in two ways: (1) Facebook organized an advertiser boycott, and (2) Facebook required its users to remove all plug-ins from PageRage's parent company if users wanted to access Facebook.  PageRage then says Facebook's technological block cost it a million users/day, and Facebook reenabled PageRage use only when PageRage agreed not to display its own advertising, leading PageRage to cut "more than half its workforce, cease developing new products, and suffer significant financial losses."

PageRage objected to several of Facebook's practices, such as Facebook's requirement that app developers display only Facebook-approved advertisers in their apps.  The court responded that Facebook may have legitimate business reasons for restricting the ads its users see (the court cited "Facebook's ability to maintain the quality of its product"), and the court noted Facebook didn't restrict PageRage's activities outside of the Facebook network (cites to LiveUniverse v. MySpace and Facebook v. Power Ventures).  As a result, the court dismissed PageRage's complaint, although it did give PageRage a chance to try again.  I expect PageRage will file an amended complaint, but I doubt it will fare any better in court given the over low merit of their arguments.

Implications

Although this was an easy case, the judge had some strong and interesting views about how antitrust law cannot interfere with Facebook's rights to manage its user experience.  For example, the court says:

Facebook has a right to control its own product, and to establish the terms with which its users, application developers, and advertisers must comply in order to utilize this product....Facebook has a right to protect the infrastructure it has developed, and the manner in which its website will be viewed.

Elsewhere, the court says:

There is no fundamental right to use Facebook; users may only obtain a Facebook account upon agreement that they will comply with Facebook's terms, which is unquestionably permissible under the antitrust laws. It follows, therefore, that Facebook is within its rights to require that its users disable certain products before using its website.

These statements are quite helpful for both Facebook and other online services.  In effect, antitrust law often involves aggrieved businesses trying to second-guess the business decisions of other profit-seeking enterprises, and we ought to support the efforts of online services to support their customers' needs.  For more on this, see my discussion of 47 U.S.C. 230(c)(2) as an enabler of service provider discretion.

Facebook sent me this terse comment about the ruling, attributed to Craig Clark, Lead Counsel, Facebook: “We are pleased with the decision."   As well they should be, in light of the judge's powerful endorsement of their discretionary managerial powers!

Despite this favorable ruling, Facebook will be encountering antitrust challenges with increasing frequency for at least four reasons.  For more on this, see Robert Hof's post, Facebook's Looming Post-IPO Challenge: Antitrust.

First, Facebook is big, and as the FTC-Google investigation illustrates, big increasingly triggers antitrust scrutiny even without any evidence of bad conduct.  Second, Facebook benefits substantially from network effects that effectively lock-in its users--even if they no longer love the site.   This lock-in effect gives Facebook some leverage to control ancillary economic activities both on and off Facebook, as well as make poor anti-user product choices and avoid punishment in the marketplace.  Third, as more entrepreneurs invest in Facebook-specific applications whose value can be instantly reduced or destroyed by Facebook's self-interested business decisions, we can expect these entrepreneurs will reach for any tool to preserve their investments.  Fourth, I've seen a small uptick in the discussions of Facebook as "infrastructure" or "a utility," and either characterization leads towards further regulatory control over Facebook's product decisions.  Thus, Facebook may have won this easy court challenge, but the looming battles will become increasingly dangerous to Facebook's autonomy--and profits.

[Photo credit: "Website access denied" // ShutterStock]

Posted by Eric at 10:50 AM | Content Regulation , Marketing | TrackBack

Sex Offender Online Registration Statute Covers New Myspace Account -- State v. White

[Post by Venkat Balasubramani, with comments from Eric]

New Hampshire v. White, 2012 WL 6062701 (N.H., Dec. 7, 2012)

New Hampshire requires registered sex offenders to notify law enforcement when they create new “online identifiers.” The defendant, a registered sex offender, was charged with failing to register prior to using a Myspace account. The trial court dismissed the indictment because the Myspace account used the defendant’s own name along with a previously reported email address, and therefore registration of the Myspace account was not required. The N.H. Supreme Court disagrees.

The statute defines “online identifier” as including:

Electronic mail address, instant message, screen name, user identification, user profile information, and chat or other Internet communication name or identity information.

The New Hampshire Supreme Court looks to the dictionary definitions of the words “user” and “profile,” and also (citing to Griffin, a MySpace evidence case) notes that Myspace is a “social networking” website where people create “profiles” and interact with other members. The court says that just accessing Myspace doesn't require a profile, but posting information requires “membership,” including a profile. With this in mind, the court says it is “apparent that MySpace membership requires the creation of a personal ‘profile’ or ‘biographical account’ . . . triggering an obligation to report its creation to law enforcement.”

The court rejects defendant’s argument that, because he previously reported his email address, he shouldn’t have to report the Myspace account, saying that the statute separately references user profiles and email addresses. The court also says that its interpretation gives effect to legislative intent, which would define online profile broadly to allow for robust investigation and monitoring of registered sex offenders. Finally, the court rejects the vagueness challenge to the statute.
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Myspace returns from the ashes?!

On a more serious note, legislatures always struggle with definitions of online activities; I think to a certain extent this is just inevitable. (See Eric’s posts: “The Proposed "Cloud Computing Act of 2012," and How Internet Regulation Can Go Awry/”; and “Big Problems in California's New Law Restricting Employers' Access to Employees' Online Accounts.”) The line between new accounts vs profiles versus services that are merely add-ons to existing accounts is grey. For example, consider Twitter and third party photo sharing sites or services. Are these new "online identifiers"?

What’s troubling here is that the defendant will suffer penal consequences for violating a statute that the trial court and appellate court couldn’t agree on the contours of. There is of course the larger question of whether it’s appropriate to restrict online networking for registered sex offenders. My read is that the cases have been pretty mixed—some courts have upheld challenges to these laws while others have allowed the restrictions.
______

Eric's comments:

1) If you're a sex offender, the rules of using the Internet are just different than for everyone else. So if you're a sex offender and want to use a social networking site, it's fair at this point to assume doing so is a heavily regulated activity.

2) Still, New Hampshire statutory definition is ambiguous--fatally, in my opinion. As Venkat indicates, the statute requires sex offenders to report the creation or changes to any "electronic mail address, instant message screen name, user identification, user profile information, and chat or other Internet communication name or identity information." Some situations are clearly covered by this language, like a sex offender creating a new email address or social networking site account, but there are countless border cases. For example, what does it mean to change an "Internet communication...identity information"? I have absolutely no idea, and attaching criminal sanctions to a statute with impossible-to-decipher language like this is not OK.

3) As much as I object to the statute on constitutional grounds, I object to it even more on empirical grounds. I have yet to see any empirical evidence that statutes requiring sex offenders to report their user credentials actually solves any social problems. It relies on a series of inferences that seem dubious to me, starting with the empirically unproven inference that social networking sites are a critical path towards sex offender recidivism. (I imagine that's true for a minority of sex offenders, but even then I'd like to see the data). Until we prove that assumption, it's also possible that these statutes don't help one bit. Meanwhile, the statutes create easy ways for sex offenders to commit technical violations--and, in fact, it's possible the statutes are even socially harmful by hindering sex offender rehabilitation and mainstreaming.

Related posts:

Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads (Forbes Cross-Post & More)
Banning Sex Offenders from Social Networking Sites is Unconstitutional--Doe v. Jindal
Posting Family Photos to Facebook With Snarky Comments Isn't Harassment of Family Member -- Olson v. LaBrie
Federal Prosecution Over "Threats" on Craigslist – US v. Stock
A Close Look at Missouri's "Amy Hestir Student Protection Act" (Guest Blog Post)
Virginia Appeals Court Affirms Conviction for Posting Threatening Rap Lyrics on MySpace -- Holcomb v. Virginia
Lori Drew Criminal Case Ends With a Whimper
Online Kevorkian’s First Amendment Challenge to Assisted Suicide Convictions Unsuccessful -– State v. Melchert-Dinkel

Posted by Venkat at 08:29 AM | Content Regulation

November 28, 2012

Employee Terminated for Facebook Message Fails to State Public Policy Claim -- Barnett v. Aultman

Barnett v. Aultman Hosp., 11-CV-399 (N.D. Oh. Oct. 31, 2012)

Barnett was a nurse at Aultman Hospital. She didn’t particularly get along with her supervisor, Lisa Summer. While Barnett was on vacation, she received word that Summer had been fired.
Although this wasn’t true, she sent off an exuberant message to 14 of her Facebook friends:

Lisa got officially ax (sic) today! I am signing DING DON’T THE WITCH IS DEAD THE WICKED WITCH, DING DONG THE WICKED WITCH IS DEAD.

How poetic this comes the same day Sexton died, I would much rather get f..cked up the ass with hot pepper than endure what that souless (sic) bitch put me through for 4 years..including turning me into the board..God does grind a fine mill when revenge is taken on by him..back when I was off due to drug accusations and praying, and praying, never would I have imagined she lose (sic) her job, marriage, and family, friends all at the same time! Karma Now I should tell you how I really feel!
Love and fuzzies

The email was forwarded to Ms. Summer (duh), who forwarded the message on to the supervisor in charge of investigation and misconduct. When initially asked whether she authoried the email, Barnett predictably denied it, and started “talking about people hacking into her account.” When given a chance to explain, Barnett stuck to her story, going as far as to deliver a letter to the hospital explaining that Barnett’s account was subject to phishing and that she intended to turn over certain information to authorities to get to the bottom of everything. In the letter, she continued:

it was very offensive as well as defaming to my character to even imply that I wrote [those words]. The people who hacked in my personal account, are the people who wrote it.

Unfortunately, the employee who originally provided Summer a copy of the message also confirmed that Barnett admitted to authoring the celebratory email. Another co-worker also confirmed that Summer sent a text message along the lines of “[t]he witch is dead..Lisa got fired.”

The investigator decided that Barnett should be terminated. Separately, Barnett had requested a copy of the FMLA form, but the investigator testified that she was unaware of this. The first time the investigator found out about Barnett’s alleged medical issue is when she called Barnett to arrange a meeting at which Barnett would be fired.

The investigator told Barnett that rather than being terminated, Barnett would be given an opportunity to resign, and would even be given a neutral evaluation. Barnett nevertheless stuck to her story and stated that she resigned due to hostile working conditions and defamation of her character.

Ultimately, after she filed suit but prior to her deposition, Barnett came clean and admitted everything. For reasons the court doesn’t explain, she didn’t just drop her lawsuit (alleging that she was terminated in violation of public policy and in derogation of her FMLA rights).

Termination in violation of public policy: As to her claim that her termination was in violation of public policy, the court says that it "founders" on the first element:

[t]here is no clear public policy forbidding private actors from restricting speech.

The court says that the result is the same under either the First Amendment or Ohio law—neither form the basis for any sort of public policy exception to the at-will rule. The court, surprisingly, spends several pages coming to a conclusion that I had thought was glaringly obvious: when it comes to free speech, “the restrictions appropriately placed upon the state are not appropriately placed on private actors.”

No interference with FMLA rights: The court also grants summary judgment against her FMLA claims. She can’t show that the employer interfered with her exercise of FMLA rights because she lost any such rights when she was terminated. She argued that she was injured by the employer’s failure to provide her with notice of her FMLA rights, but it wouldn’t have mattered anyway. She also fails to make out a claim for retaliation. The decisionmakers in question were not aware that she had requested FMLA leave, and in any event, offered a non-pretextual reason for terminating her: she lied about the Facebook message and this was a violation of the employer’s handbook policies.

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Moral of the story? If you don’t have anything nice to say, don’t say anything at all!

Seriously, we’re reminded time and time again that you should be careful of what you say in email, online, on Facebook etc. When confronted with a statement you’ve made, it’s probably a bad idea to deny it and then claim you’ve been hacked. It’s a modern iteration of the “dog ate my homework” that will almost always ring a little untrue.

As to the court's underlying conclusion that there's no public policy exception for a termination in this type of a case, with the disclaimer that I'm no employment law expert, that sounds eminently reasonable to me (if not obvious). NLRB overzealousness aside, it would make sense that you should be able to terminate your employees for mouthing off and bashing their supervisor, whether this takes place in a Facebook post or a private message.

Related posts:

The "I Didn't Understand Facebook's Privacy Settings" Argument Isn't Persuasive to Judges--Sumien v. CareFlite
Accessing an Employee's Facebook Posts by "Shoulder Surfing" a Coworker's Page States Privacy Claim -- Ehling v. Monmouth Ocean Hosp.
Facebook "Likes" Aren't Speech Protected By the First Amendment–Bland v. Roberts
Facebook Posts Complaining About Supervisor Conduct do Not Support Retaliation Claim – DeBord v. Mercy Health System
Employee Wins Harassment Claim Based in Part on Co-Workers' Offsite Blog Posts
Overreactive Guidance for Social Networking Du Jour -- NLRB Edition
Private Employers and Employee Facebook Gaffes [Revisited] and the prior post Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?
School District Didn't Violate First Amendment for Reassigning Teacher Who Blogged--Richerson v. Beckon
Employee Blogging Risks

[image credit: Shutterstock/Complot "man with flames leaving his mouth"]

Posted by Venkat at 08:56 AM | Content Regulation , Publicity/Privacy Rights

November 25, 2012

Online Data Broker Need not Comply With Licensing Requirements for Private Investigators – Brown v. Intelius

[Post by Venkat Balasubramani with a comment by Eric]

Brown v. Intelius, 4:12cv00852 AGF (E.D. Miss. Nov. 21, 2012)

Intelius brokers data about individuals. The information comes from a variety of sources, including public sources. Plaintiff paid a fee and obtained from Intelius the following information regarding certain individuals:

their current whereabouts, criminal history, property ownership, social networking history, and relatives.

Plaintiff sued Intelius, including an allegation that Intelius was an unlicensed “private investigator” in violation of Missouri law (section 324.1104). The law in question (section 1000) defined the PI business as follows:

the furnishing of, making of, or agreeing to make, any investigation for the purpose of obtaining information pertaining to . . . the identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person.

Intelius raised several defenses, including its user agreement and Section 230, but ultimately the court interprets the plain meaning of the word "investigate" such that Intelius' services don't fit the bill (“to observe or study closely”; “detailed examination . . . study . . . research . . . official probe”). Plaintiff did not pay Intelius to study or research specific individuals—Intelius merely made information accessible to Plaintiff that was available in the databases of Intelius or its third party partners.

The court also says that plaintiff's claim has serious problems with his damages allegations. There’s no allegation that the information provided by Intelius was incorrect, and there is no authority for the proposition that plaintiff should recover (or be able to rescind the agreement) merely because Intelius hasn’t complied with local licensing laws.

In passing, the court says that Section 230 likely doesn’t apply because the claims may not relate to third party content. The court also irresolutely mentions that the statute may not provide for a cause of action. (The order does not mention First Amendment or Dormant Commerce Clause defenses, but these seemed like possibilities as well.)

__

I’m not sure what to say about this one. The least the plaintiff could have done was to be able to allege that the information provided was materially incorrect and this somehow led plaintiff astray on his investigation and resulted in a parade of horribles. Leaving aside the damages issue, it was a stretch to think that the licensure statute applied to an entity such as Intelius. Interestingly, the statute excludes a whole host of activities that would otherwise encompass investigatory functions. Perhaps a more interesting hypothetical would be if the investigation involved the use of drones or something.

I didn't initially see this lawsuit as part of the overall privacy war that is going on in courts, but Eric's probably right (see his comment below). And from that standpoint it's tough to take too seriously.

[image credit: huhu/Shutterstock / "the symbol of Sherlock Holmes"]

_____

Eric's Comment. This ruling nicely encapsulates the sad and desperate state of privacy litigation today. In their zeal to fight back on privacy, plaintiff's lawyers are grasping at straws to find some claim--any claim--that will advance their cause, no matter how farcical the result might be. (It reminded me a little of the illogical implications of the overwritten Illinois identity theft statute, which got struck down as unconstitutional). Perhaps anything is possible, but for now I'm putting this attempt in the "mockable" pile.

Posted by Venkat at 12:47 PM | Content Regulation , E-Commerce , Privacy/Security

November 11, 2012

Court Reduces Damages Award if Defendant Honors Injunction – North American Recycling v. Texamet Recycling

[Post by Venkat Balasubramani]

North American Recycling, LLC, et al. v. Texamet Recycling, LLC, et al., 08-cv-579 (S.D. Ohio) (Order; Aug. 10, 2012) (Report and Recommendation; Nov. 17, 2010)

North American Recycling sued Texamet and its principals for defamation. The two parties were involved in a transaction, and Texamet apparently had some gripes as to how things ended. Texamet allegedly went on a posting spree, posting about the transaction, calling North American “scammers” and trying to warn others that were part of a recycling message board community to watch themselves in their dealings with North American. Texamet unfortunately did not appear to defend itself, and the magistrate judge recommends granting North American’s motion for summary judgment. North American alleged it had suffered damages in the amount of $100,000 and incurred fees in the amount of $4,500. Although the judge recommends granting the motion, the judge conditionally remits the bulk of the damage award (all except for $4,500), as long as defendants meet the following two conditions:

Defendants shall cease and desist in perpetuity from making or publishing statements regarding the business practices, dealings, or contracts of any Plaintiff, that are the same, or significantly similar, in nature to the statements this Court has found to be defamatory in this case.

To the fullest extent possible, Defendants shall forthwith remove and/or cause to be removed from all websites and publications, all statements Defendants have made that this Court has found to be defamatory, and any statements similar in nature published during or before the current proceedings, regarding the business practices, dealings, or contracts of any Plaintiff.

The district judge (almost 21 months after the issuance of the report and recommendation) adopts the recommendation and enters judgement. [I'm one to talk about the timeliness of the court's adoption of the R&R; this post sat in the queue for a couple of months for some inexplicable reason.] Although both the magistrate and district judge mention the issue that the judgment may operate as a prior restraint, they both say that enjoining future defamatory speech is OK in order to prevent the defendant from continuing to make defamatory statements.

__

Both judges note one obvious objection to the injunction: the fact that it's not limited to statements that have been found to be defamatory--it covers "significantly similar" statements. Another oddity with the injunction is that the court awards damages, but then takes these damages away from the plaintiffs. Either the plaintiffs have been damaged or they haven't. It doesn't make a ton of sense to wipe these damages away if the defendants agree to not post anything further. I guess you could analogize to the contempt scenario, where courts sanction litigants but wipe away monetary sanctions if the litigant complies. I don't think it's a perfect fit, but it's a possible analogy.

I suspect the driving force behind getting an injunction is to take the injunction to third parties (the message boards, and maybe search engines) and try to get content taken down on this basis. Many of the third parties would probably comply, but what happens when someone refuses to take down the content. Blockowicz says that third parties are not bound, and the plaintiffs may end up at square one. A final point worth noting is that all of this took place without defendants' participation. Their failure to appear and defend makes it difficult to be sympathetic towards them, but courts should take care in these situations to make sure their rulings aren't problematic.

Related posts:

Ripoff Report Isn't Bound By Injunction Against User Post--Blockowicz v. Williams

Posted by Venkat at 05:48 PM | Content Regulation

November 05, 2012

Confirmatory Opt-out Text Message Not Actionable Under the TCPA -- Ryabyshchuck v. Citibank

[Post by Venkat Balasubramani]

Ryabyshchuck v. Citibank, 11-CV-1236 – IEG (WVG) (S.D. Ca. Oct. 30, 2012)

Ryabyshchuck filled out an online credit card application. A pop-up message displayed when he entered his information alerted him to the fact that by providing his number, he:

agree[d] to receive calls and messages, such as text messages, to service [his] account.

A couple of days later, he received a text from Citibank to the number he provided:

Free Text Msg.: Citi Cards needs to talk with you regarding your recent application. Please call 866 365-8692. To Opt-Out reply STOP.

He replied “STOP,” and promptly received confirmation that Citi opted him out from receiving additional messages:

Free Text Msg.: Per your request you will no longer receive text messages from Citi Cards Credit Dept. If you have any questions call 866 365 8962.

He sued, alleging that the text messages violated the Telephone Consumer Protection Act. The court initially denied Citibank’s motion to dismiss. (Here’s our previous blog post on this ruling: “Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent -- Ryabyshchuk v. Citibank.“) However, the court recently granted Citibank's motion for summary judgment.

Plaintiff abandoned his argument as to the initial message so the only message at issue was the confirmatory opt-out message. At least one court has held that a confirmatory opt-out message does not violate the TCPA (Ibey v. Taco Bell), and this court follows suit as well. Agreeing with the conclusion that imposing liability for a single confirmatory text message would “contravene public policy and the spirit of the statute,” the court grants Citibank’s motion for summary judgment.

Nice to have that cleared up.

[NB: Ryabyshchuck has a name that even I found difficult to spell (and that’s saying something). I thought I misspelled his name in the previous blog post about the case, but it turns out I followed the court’s spelling—that ended up changing from the previous order to this order.]

Related posts:

Group Text Services Grapple with TCPA Class Actions
Ninth Circuit Revives TCPA Claim--Satterfield v. Simon & Schuster
Cellphone Spam Violates TCPA--Joffe v. Acacia Mortgage
Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent -- Ryabyshchuk v. Citibank
Court Rejects Constitutional Challenge to TCPA Based on Vagueness in "Prior Express Consent" Exception -- Kramer v. Autobytel, Inc.
Another Court Finds that TCPA Applies to Text Messages -- Lozano v. Twentieth Century Fox Film Corp.
Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense -- Abbas v. Selling Source, LLC
Confirmatory Opt-Out Text Message Doesn't Violate TCPA – Ibey v. Taco Bell
Franchisor Isn't Liable Under the TCPA for Franchisees' Text Message Campaign – Thomas v. Taco Bell

[image credit: "old fashioned phone over white" earshot/shutterstock]

Posted by Venkat at 03:24 PM | Content Regulation , Marketing , Privacy/Security , Spam

November 01, 2012

Another Court Finds Online Statements With Links Are Not Defamatory – Seldon v. Compass Restaurant

[Post by Venkat Balasubramani with comments from Eric]

Seldon v. Compass Restaurant, 2012 NY Slip Op 32673(U) (NY Sup Ct. Oct. 21, 2012)

Eric posted about Redmond v. Gawker Media, a California case where the court found that use of links by a Gawker author helped defeat a claim for defamation. This case reaches a similar result.

Seldon, proceeding pro se, sued Compass Restaurant and several Jane Does (including an email address) for disseminating an email that allegedly contained multiple defamatory statements about him. You can click through to the decision to see the statements, but among other things the email calls him a “serial suer, scammer, spammer, embezzler, and revenge artist.” The email offered a few “supporting links,” including an LA Times Article, a few links from Justia, one from Pacer, and one from WIPO.

The court says that in determining whether a statement is actionable or a mere statement of opinion, the court looks to the statement overall, in context. An opinion can still be actionable if it implies a basis on undisclosed facts. On the other hand, a statement of opinion that discloses background facts is not actionable. In fact, these statements are more likely to be understood by the audience as mere conjecture. The court concludes (citing to Sandals Resort v. Google) that the statement in this case falls in the latter category. It is accompanied by articles in the form of links, and the email expressly says that it contains “supporting links”.
__

Like the Gawker ruling Eric blogged about, this is a great result for bloggers, and anyone who traffics in links and commentary online. It’s also good illustration of how the context rule plays out online. (See also "A Twitter Exception for Defamation?")

Compass had a section 230 defense lurking in the background. (See Mitan v. A. Neumann and the cases cited there.) The one tweak could be the existence of an ownership interest or employment relationship. (See Lansing v. Southwest Airlines.) Either way, the court does not need to reach this issue, having concluded that the email is not actionable in the first instance.

___

Eric's Comments: This is a really terrific ruling. My enthusiasm about it is slightly diluted by the fact that Redmond v. Gawker got to the same place first; and that, like the Gawker opinion, this opinion is also unpublished.

Combined with the Redmond v. Gawker opinion and others, like Finkel v. Dauber, I think we're seeing burgeoning precedents suggesting two principles:

1) The Internet has a variety of contexts to evaluate the veracity of fact-like statements, and some Internet contexts reduce the likelihood that readers will assume the statements were intended to be facts...or truthful.
2) An online statement that distills facts, and then links to sources, is more likely to be insulated from defamation liability.

I think both trends are highly positive. However, we need to couple these developments with anti-SLAPP laws to quickly and cheaply screen out lawsuits over these statements and to financially discourage plaintiffs from bringing their socially wasteful lawsuits.

[image credit: Shutterstock / complot ("man with flames leaving his mouth")]

Posted by Venkat at 11:28 AM | Content Regulation

October 25, 2012

Twitter’s Country-Specific Content Blocking Raises Questions about the Efficacy of Geolocation (Guest Blog Post)

By Guest Blogger Marketa Trimble

Twitter's General Counsel announced last week that the company, for the first time, “withheld” content from users from a certain jurisdiction. As Twitter explains on its website, its “goal is to respect [its] users’ expression, while also taking into consideration applicable local laws.” This blog's prior post about Twitter's policy.

The first implementation of the policy announced earlier this year reinforces the need to answer two key questions: Will geolocation be sufficient for websites to comply with territorially-defined laws, and if so, what will the legal status of the evasion of geolocation be? The need for the answers is pressing, particularly if Twitter’s action is indeed a “precedent-setting move” – as Adam Holland of Harvard University’s Berkman Center for Internet and Society suggests in his commentary at Chilling Effects.

Twitter’s compliance on the internet with territorially-defined laws relies on geolocation tools, but whether geolocation will be accepted by jurisdictions as a reliable method of territorially limiting access to content has been disputed because the barrier that geolocation tools raise is not impermeable and its tools can be evaded. In Germany – the jurisdiction for which Twitter is “withholding” content – courts have accepted geolocation as a means of achieving legal compliance, as a case concerning online gambling illustrates. A German court in Nordrhein-Westfalen, when ordering website operators to use geolocation tools to limit access to certain online gambling content from the state of Nordrhein-Westfalen, did not question the proposition that existing geolocation tools were sufficient to safeguard territorial limitations on the internet. The court described geolocation as “a viable and technically feasible method of determining website visitors’ locations” (Oberverwaltungsgericht Nordrhein-Westfalen, 13 B 646/10, July 2, 2010, par. 34; see the German text of the decision), notwithstanding the fact that the tools at issue in the case employed only a user’s IP address to determine the user’s location, and also the fact that the user could evade the tools if the user wished to do so (Twitter apparently also uses a geolocation tool that employs a user’s IP address to identify the user’s location).

If jurisdictions do accept geolocation as an acceptable method to achieve compliance with their territorially-defined laws, two issues need to be addressed: the proper minimum standard for sufficient geolocation and the proper legal support for geolocation tools. Defining the minimum standard for geolocation presents the same problems as the determination of any other standard: the geolocation standard should not be so low as to make geolocation unreliable (e.g., asking users to select their location from a drop-down menu is unlikely to be sufficiently reliable for purposes of legal compliance), but the standard should also not be so high as to impose an unacceptable burden on business or lock in patented technologies without concomitant and workable licensing options. Whether geolocation based solely on IP addresses is sufficiently robust might be questioned, and companies offering enhanced solutions that go beyond IP addresses will certainly lobby for a higher standard. The area of online gambling might provide a useful insight into the process of geolocation standard setting, as U.S. state gambling authorities search for standards that they deem adequate for licensing online gambling operators and their geolocation suppliers.

The legal standards for geolocation tools must also address the possible evasion of geolocation. If technological solutions are subject to shortcomings – as geolocation tools certainly are – the law may provide support by penalizing those who circumvent the solutions and those who provide tools to circumvent the solutions. Current laws do not address evasion of geolocation directly, but some existing legal doctrines could apply to users who evade geolocation and those who provide evasion tools (see my recent article on legal implications of the evasion of geolocation). The discussions of the Stop Online Piracy Act, which was apparently the first bill to include a provision explicitly targeting evasion of geolocation (see §102(c)(4)(A)(ii) of H.R. 3261 (2011)), exposed the difficulty of penalizing providers of tools that enable evasion of geolocation, particularly if some of those same providers have been heralded for their role in supporting free speech worldwide.

Both the minimum standard and the legal support for geolocation might be most effectively addressed through international cooperation. I have recently proposed such cooperation in the area of online gambling (see my recent chapter), but the features of the proposed cooperation might be applicable generally. It is unlikely, however, that the online gambling proposal could garner support at present because of the strong public resistance generated by the Anti-Counterfeiting Trade Agreement negotiations, which made the public wary of any international cooperation affecting the internet. In the United States, the resistance to enforcement measures affecting the internet was exacerbated by reactions to the discussions of the Stop Online Piracy Act, which made the public aware of the difficulties associated with any national legislation limiting access to content on the internet.

Posted by Eric at 09:50 AM | Content Regulation | TrackBack

October 24, 2012

Q3 2012 Quick Links, Part 5 (E-Commerce, Miscellaneous)

By Eric Goldman and Jake McGowan

E-Commerce

* Noll v. eBay, 2012 WL 1413442 (N.D. Cal. April 23, 2012). The Complaint. eBay's "Good 'Til Canceled" fees survive a legal challenge.

* Porras v. StubHub: StubHub not liable for tickets that are not “authentic” and “valid.”

* NY Times: How shopping malls are fighting back against e-commerce: by shifting to retailers who provide services instead of selling goods.

* NY Times on Craigslist’s ongoing campaign to shut down third party apps built on its site.

Miscellaneous

* Las Vegas Sun profile of Marc Randazza

* “38% of adults sometimes think it would be easier to solve world peace than attempt to remember all their passwords.”

* Ira Steven Nathenson, Best practices for the law of the horse: teaching cyberlaw and illuminating law through online simulations, 28 Santa Clara Computer & High Tech. L.J. 657-741 (2012). Related: Teaching Cyberlaw.

* New version of James Grimmelmann’s Internet Law reader is available.

* Jay Brown, Essay: Law Faculty Blogs and Disruptive Innovation

* Nick Bilton on the Silicon Valley Bubble (socially, not economically)

* Bing Has Human Search Quality Raters. Prior blog post.

* Breaking down Google’s 2011 Revenues.

* Wired: Signing Forms at the Top Makes People More Honest.

* CNET News.com: “AngelList is now helping startups with their legal docs."

* Wired’s retrospective on SABRE--one of the first and most important electronic networks.

* VentureBeat: Sh*t Judge Lucy Koh says: Our top 5 favorites

Posted by JakeMcGowan at 03:21 PM | Content Regulation , E-Commerce | TrackBack

October 22, 2012

Q3 2012 Quick Links, Part 4 (Facebook, Content Regulation)

By Eric Goldman and Jake McGowan

Facebook

* Facebook settles “Friend Finder” lawsuit. Prior blog post.

* Two girls, ages 12 and 13, face felony for creating a fake Facebook account.

* Facebook says ‘Likes’ are Free Speech in Sheriff Case. The ACLU has filed a brief in support of the deputy fired for Liking his boss’s rival on Facebook. Prior blog post.

* Jackson v. Murray State University, 2012 WL 3644839 (W.D. Ky. Aug. 24, 2012):

Because the party was closed to the public, the Gamma Chapter's house was not a place of public accommodation. The invitation for the party was only available to those who maintained Facebook accounts and expressly limited participation to those possessing MSU student IDs.

* Facebook v. Power Ventures, Inc., 2012 U.S. Dist. LEXIS 111568 (N.D. Cal. Aug. 8, 2012). Power Ventures is running out of money. Prior blog post.

* J.H. v. Indiana Dept. of Child Services, 2012 WL 3041346 (Ind. App., Ct. July 26, 2012).  Department of Child Services isn't obligated to try to contact parents through Facebook.

Content Regulation

* China is censoring efforts to organize groups, pornography, and criticisms of its censorship--but, surprisingly, not all criticisms of the government.

* Reuters: Google obeys Brazilian court order, blocks YouTube political video.

* Reuters: "Centuries-old theological disputes have broken out in cyberspace as religions aim to influence the future presentation of faith on the Internet."

* Big settlement in online gambling prosecution. Reuters. NY Times.

* In re Philadelphia Newspapers LLC, No. 11-3257 (3d Cir. July 26, 2012)(cites omitted):

"The single publication rule advances the statute of limitations‘ policy of ensuring that defamation suits are brought within a specific time after the initial publication. Websites are constantly linked and updated. If each link or technical change were an act of republication, the statute of limitations would be retriggered endlessly and its effectiveness essentially eliminated. A publisher would remain subject to suit for statements made many years prior, and ultimately could be sued repeatedly for a single tortious act the prohibition of which was the genesis of the single publication rule. Additionally, under traditional principles of republication, a mere reference to an article, regardless how favorable it is as long as it does not restate the defamatory material, does not republish the material. These traditional principles are as applicable to Internet publication as traditional publication, if not more so. Publishing a favorable reference with a link on the Internet is significantly easier. Taken together, though a link and reference may bring readers‘ attention to the existence of an article, they do not republish the article."

* Fee award in Shrader v. Biddinger, 2012 WL 2411969 (D.Colo. 2012), the case applying 47 USC 230 to emailed links. Prior blog post.

* North Carolina bans students “cyberbullying” school employees. A good example of a law that will not age well.

* Doe v. Hofstetter, 2012 U.S. Dist. LEXIS 82320 (D. Colo. June 13, 2012). Defendant created attack blogs and Twitter accounts towards a married couple, including posting intimate photos. The court finds the defendant's actions constituted intentional infliction of emotional distress and public disclosure of private facts.

* Sarah Jones pled guilty to sleeping with her student but is still suing thedirty.com for defamation for allegedly being called "a freak in the sack." Prior blog post.

* Seldon v. Magedson, 2012 WL 4475020 (S.D.N.Y. Sept. 28, 2012). Ripoff Report wins another lawsuit, this time on jurisdictional grounds. The magistrate report, also addressing 47 USC 230. Seldon v. Magedson, 2012 WL 4475274 (S.D.N.Y. July 10, 2012).

* Eric Robinson’s coverage of Johns-Byrne v. TechnoBuffalo, holding that a blog qualifies for Illinois' reporter shield law. Eric Johnson's coverage.

* Appeal in Seaton v. TripAdvisor. Prior blog post.

* Ann Marie Marciarille, "How's My Doctoring?" Patient Feedback's Role in Assessing Physical Quality, 14 DePaul J. Health Care L. 361 (2012).

* State v. McIntyre, 2012 WL 3727319 (Or. Ct. App. Aug. 29, 2012): Oregon appeals court says in a case where defendant was charged with prostitution that YouTube rap videos in which defendant extolled the virtues of prostitution generally were not admissible due to the lack of factual similarity to the offense with which defendant was charged. The state did not show, as required under the Oregon rules of evidence, that the victims were the same or similar, or the physical elements of the prior acts were similar to the charged acts.

* Wikipedia offers to pay the legal defense costs incurred by its contributors.

* Village Voice and Backpage.com are separating. Will Backpage.com have enough standalone muscle to weather the legal attacks? Prior blog post.

Posted by JakeMcGowan at 03:37 PM | Content Regulation , Evidence/Discovery | TrackBack

Ninth Circuit Says Yellow Pages are Entitled to Full First Amendment Protection--Dex v. Seattle

[Post by Venkat Balasubramani, with comments from Eric]

Dex Media West v. Seattle, Nos. 11-35399 & 35787 (9th Cir. Oct. 15, 2012) [pdf]

The City of Seattle thought that Yellow Pages were not particularly useful and created unnecessary waste, so it required Yellow Pages distributors obtain a license, publish a notice regarding a new City-created opt-out registry, and pay fees for each book distributed. The ordinance exempted certain publications, including “membership organization” directories and residential telephone directories that did not contain any “yellow pages” advertising.

Some Yellow Pages publishers challenged the ordinance on First Amendment, commerce clause, and state law grounds. The trial court denied their request for an injunction, and later granted summary judgment to the City. (Here’s our blog post on the injunctive relief ruling: “Judge Refuses to Block Seattle's Yellow Pages Opt-out Law -- Dex Media v. Seattle.”)

The Ninth Circuit reversed, in a ruling that focuses almost exclusively on the level of protection accorded to Yellow Pages directories. The trial court said that the Yellow Pages were commercial speech. The Ninth Circuit disagrees and says that Yellow Pages are entitled to full First Amendment protection. The fact that phone book companies depend on advertising revenue isn’t dispositive:

Ultimately, we do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, radio shows, and similar media that does not turn on an evaluation of their contents. A profit motive and the inclusion or creation of noncommercial content in order to reach a broader audience and attract more advertising is present across all of them.

The court goes on to say that the district court's attempt to distinguish Yellow Pages from media such as newspapers based on the role the latter plays in our democracy does not work: "[t]he First Amendment does not make protection contingent on the perceived value of certain speech."

A good and obviously First Amendment-friendly ruling that has the effect of undermining a well-intentioned but poorly crafted piece of legislation. I didn't think this statute had a very good chance of surviving, but I thought the court would focus more on the fit, the licensing, and the exceptions. Eric--in his typically entertaining and on-point way--tees off on the distinction between advertising content and editorial content and the test used for determine the level of protection for expression that contains both (instant classic: "[t]he Ninth Circuit's opinion was fine . . . but it still made me want to cry . . . ."). I wonder what types of other mixed editorial/advertising content could benefit from this rule?

Unsolicited advice to the City of Seattle: how would I tackle this issue? I would regulate the delivery of any unsolicited pamphlets or books that are over a certain weight. This would be a content neutral basis for regulation and would put the kibosh on phone books (and anything else that fit the bill). (But see WAC 480-120-251 that mandates the publication and distribution of business and residential listings. This regulation should be revised to require the publication of listings online.)

___

Eric's Comments

Who cares about printed Yellow Pages any more? In a Google era of keyword searches for local businesses, Yellow Pages are an anachronism. They are not as current as search databases (i.e., many Yellow Pages publish only once a year); their keyword indexes are often not helpful; many businesses aren't listed in the Yellow Pages; and Yellow Pages lack easy ways to evaluate an advertiser's integrity (in contrast to online consumer reviews that show up in a keyword search for the business), meaning that consumers instead decide who to contact based on unreliable intrinsic ad factors like the ad's size and the hype of the claims. If you don't have access to a search engine, the Yellow Pages are way better than nothing; but if you could use a search engine, Yellow Pages are clearly inferior for almost all local business searches. [UPDATE: This photo makes the point concisely.]

Still, the Yellow Pages industry generates billions of dollars a year--as recently as 2008, nearly $14B/year. See this article by Chris Silver Smith. So I guess some folks, like Seattle, still feel like they are worth worrying about. Personally, I would let the marketplace drive Yellow Pages into the ground without any regulatory intervention.

The Ninth Circuit's opinion was fine (especially by Ninth Circuit standards), but it still made me want to cry. The entire artifice of trying to classify content into "ads" and "editorial content" is completely, irretrievably, 100% doomed. The distinction never worked, and it sure doesn't work now. There are simply too many border cases. As a result, I would favor giving up the distinctions altogether. If that means we treat all commercial content as equally Constitutionally protected as editorial content, I would be fine with that.

Parsing advertising and editorial content in phonebooks breaks down into three familiar categories:

* phonebooks that have no content other than advertising (i.e., pure Yellow Pages). The Ninth Circuit opinion says those would be subject to lower First Amendment protection because they are commercial speech.
* phonebooks that have no advertising at all. Seattle excluded those, and only those, from its onerous obligations. The Ninth Circuit says that exclusion is insufficient protection for the First Amendment.
* phonebooks that are a mixture of advertising and editorial content. The court treats these phonebooks (which it incorrectly refers to only as "Yellow Pages," when I think it meant phonebooks generically) as fully protected under the First Amendment because it couldn't distinguish them from other editorial media.

I'm fine with this conclusion, but does anyone really care about the editorial content in the phonebooks? Nowadays with people not publishing their phone numbers and cellphones storing the phone numbers of loved ones (and the ability to send emails instead of calling strangers), the white pages information is useless for most folks; and I'm sure most folks have no idea that phonebooks may contain other editorial content. The marketplace's low value placed on phonebooks' non-advertising content brought to mind the seminal (and surprisingly uncited) case Valentine v. Chrestensen, 316 U.S. 52 (1942), which also involved an advertisement where the disseminator grafted some editorial content onto an advertising leaflet to avoid an advertising regulation. 70 years after that case, we're still wrestling with the same classification problems and not really handling them any smarter--or with any more predictability. Sigh.

Other coverage:

Techdirt: "Court Rules Yellow Pages are Protected Speech"
SF Examiner: "Yellow Pages victory in Seattle might threaten San Francisco’s ban"
Seattle PI: "Court: Seattle Yellow Pages restrictions violate Constitution"
Seattle Times: "Appeals court rules against Seattle's curbs on yellow pages"

[image credit: Tarczas / Shutterstock]

Posted by Venkat at 07:35 AM | Content Regulation , Marketing

October 21, 2012

Employee's Twitter Rant Means He Doesn't Get Unemployment Benefits--Burns v. UCBR

[Post by Venkat Balasubramani]

Burns v. Unemployment Compensation Board of Review, No. 1268 C.D. 2011 (Commonwealth Ct. Pa. Oct. 16, 2012)

It’s almost become cliché to cite to examples of people fired due to their social media posts, but here is yet another example. (It actually involved unemployment benefits but the claimant was terminated due to his Twitter rant.)

Burns was a comptroller for AO North America. He posted disparaging remarks about his co-workers, work environment, and staff (using colorful descriptors like “toxic,” “morons” “dysfunctional,” “psychotic” and “schizophrenic”). AO had a code of conduct that required employees to “treat each other with respect” and prohibited harassment of any kind. A human resource partner testified that another employee complained about Burns’ posts to Twitter.

The question was whether he was terminated for misconduct (i.e., a violation of the employer's policy). There was no dispute that Burns was aware of the policy. He did not argue that it was unreasonable.* He tried to say that the posts were not about his work environment or co-workers, but this argument failed.

It's tough to distill a more sophisticated bit of teaching from this case, other than the obvious: watch what you say on social media . . . because those that control your pursestrings will certainly be watching.

[* I’m not sure whether this policy would be problematic under the NLRB’s most recent ruling, but this reminds me that we’ve been meaning to take a closer look at the NLRB’s guidance. This has unfortunately languished in the queue. Forthcoming!]

Related posts:

If You're a Prisioner Trying to Hide Your Unauthorized Phone, Don’t Brag About the Phone on Facebook! -- Lloyd v. Shartle
Plaintiff's Claims to Be "Bedridden" and "Vegetative" Rebutted by Facebook Evidence--Cajamarca v. Regal Entertainment
Facebook Jokes About "Naked Twister" Could Undermine Sex Discrimination Claim--Targonski v. Oak Ridge
Protip: Kegstands and Vertigo Are Inconsistent With Each Other--Johnson v. Ingalls
Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party--In re DLW
Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
Facebook Entries Negate Car Crash Victims' Physical Injury Claims
Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
MySpace Postings Foil Another Litigant--Sedie v. U.S.
Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

[image credit: Shutterstock / yayayoyo]

Posted by Venkat at 10:25 AM | Content Regulation , Evidence/Discovery

October 20, 2012

9th Circuit Zings Best Buy Over Robocalls – Chesbro v. Best Buy

[Post by Venkat Balasubramani, with a comment from Eric]

Chesbro v. Best Buy Stores, L.P., No. 11-35784 (9th Cir. Oct. 17, 2012) [pdf]

The Ninth Circuit has issued a few consumer-favorable rulings in the unsolicited text and phone call realm. Here is a another one.

Chesbro bought a computer at Best Buy and provided his telephone number. Best Buy says that he also signed up for Best Buy's “Rewards Zone Program.” Chesbro says he knows nothing about the program, and if he signed up to enroll, he did so unwittingly.

Then, the robocalls started. Chesbro says he received “more than five, less than a dozen” calls from Best Buy following his computer purchase. Chesbro complained to the Washington AG’s office after receiving one particular call. He also called Best Buy and told them to put him on their internal “do not call” list. (He was also signed up on the national “do not call” registry, but that doesn’t seem to have been very effective.) Finally, the straw that broke the proverbial camel’s back:

This is a very important message regarding the Best Buy Reward Zone program. We’re making some changes to increase the security of the program and be more environmentally friendly. Please listen to the entire message and then go to MyReward-Zone.com for details and to update your membership.

The following changes take effect October 31st, 2009 …

For full details and to make sure you’re ready for these changes, go to MyRewardZone.com.

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Chesbro sued, asserting claims under the TCPA and Washington’s do not call statute. The TCPA allows the FCC to exempt certain commercial calls that do not adversely affect the privacy interests protected by the TCPA and do not contain unsolicited advertisements. The FCC promulgated rules but said that “dual purpose” calls—calls where a company may inquire about the customer’s satisfaction or otherwise provide customer-service information but also offer to sell additional goods or services--are advertisements and subject to the prohibitions of the TCPA.

Best Buy says that the calls were purely courtesy calls or informational calls. The court disagrees:

The robot-calls urged the listener to “redeem” his Reward Zone points, directed him to a website where he could further engage with the RZP, and thanked him for “shopping at Best Buy.” Redeeming Reward Zone points required going to a Best Buy store and making further purchases of Best Buy’s goods. There was no other use for the Reward Zone points.

The court says that the absence of any reference to products or services is not determinative. The court also allows Chesbro’s claims under the Washington version of the TCPA to move forward.

__

Ouch. The court’s conclusion that the calls are advertisements only leaves room for Best Buy to argue consent, and that doesn’t seem like a particularly easy argument to make. (See Citibank; Thrasher-Lyon v. CCS Commercial.)

As a consumer, I applaud the court’s privacy-friendly approach. I (like everyone) can’t stand robocalls. But the court's interpretation doesn't leave much room for "informational calls" that are not advertisements. Maybe this is the right approach, as a "purely informational" or customer service call from a corporation is about as real as a unicorn. Perhaps what ultimately swayed the court is Best Buy’s mule-like refusal to honor Chesbro’s numerous opt-out requests. It’s a given in today’s day that the right hand of the corporation will never talk to the left, but that is very likely what could have tipped the scales here.

I've long advocated leaving text message-based marketing out of the marketing toolbox (due to the risk of liability). Perhaps it's time to add robocalls to the list.

Added: I thought it was worth mentioning Stern v. Bluestone, a 2009 decision from New York's highest court tackling this issue in the context of unsolicited faxes sent by attorneys: "N.Y. High Court Finds Attorney's Unsolicited Faxes Did Not Violate Communications Act."

Of interest: “The Federal Trade Commission (FTC) is challenging innovators to create solutions that will block illegal robocalls.” $50,000 bounty!
___

Eric's Comment: Following the Dex v. Seattle case we'll be blogging about soon, this is a second Ninth Circuit case this week attempting to make legal distinctions between editorial content and advertising. As I indicate in the upcoming Dex post, there are simply too many border cases for that distinction to remain coherent. Consider this: this week, the Ninth Circuit held that Yellow Pages are editorial content and a reminder about expiring loyalty points is advertising. Good luck rationalizing those conclusions!

Related posts:

"Court Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App -- Hickey v. Voxernet"
"Confirmatory Opt-Out Text Message Doesn't Violate TCPA – Ibey v. Taco Bell"
"Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation"
"Group Text Services Grapple with TCPA Class Actions"
"Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent -- Ryabyshchuk v. Citibank"
"Court Rejects Constitutional Challenge to TCPA Based on Vagueness in "Prior Express Consent" Exception -- Kramer v. Autobytel, Inc."
"Another Court Finds that TCPA Applies to Text Messages -- Lozano v. Twentieth Century Fox Film Corp."
"Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense -- Abbas v. Selling Source, LLC"
"Ninth Circuit Revives TCPA Claim--Satterfield v. Simon & Schuster"
"Cellphone Spam Violates TCPA--Joffe v. Acacia Mortgage"
Telephone Numbers as Identity Authenticators--Abrams v. Facebook

[image credit: John T. Takai / Shutterstock]

Posted by Venkat at 09:38 AM | Content Regulation , E-Commerce , Marketing , Privacy/Security , Spam

October 16, 2012

Court Rejects Challenge to Indictment Over Facebook Threats -- US v. Michael

[Post by Venkat Balasubramani]

US v. Michael, 2:12 cr 1 WTL CMM (S.D. Ind.; Oct. 9, 2012)

Another case involving threats made via Facebook. Here the defendant was indicted for the following Facebook posts:

These guys will get whats coming to them … My master assures me that the DEA will be exterminated and humiliated before the end is over … WE R COMING FOR YOUR PIG ASS. The only thing the DEA knows how to do is lie and deceive … Its time we answered there crimes with bloodshed and torture.

War is near..anarchy and justice will be sought … I’ll kill whoever I deem to be in the way of harmony to the human reace … Policeman all deserve to be tortured to death and videos made n sent to their families … BE WARNED IF U PULL LE OVER!! IM LIKE JASON VOORHEES WITH A BLOODLUST FOR PIG BLOOD.

If these weren’t enough, defendant created an “event” page for the following event:

‘attack on govt protected agencies’ on Friday, November 11, 2011, at 11:00am, ‘statewide possible nation.’

Michael moved to dismiss the indictment. The court says that true threats are not protected speech and whether a statement constitutes a true threat is a question of fact (that involves evaluation of context, background, etc.). It’s only appropriate to dismiss an indictment in this context where there are no set of facts that would render the posts “unprotected,” and Michael's posts did not satisfy this test. The court didn't delve into the issue of whether a reasonable person in the viewer's circumstances would view the statements as threats.

Michael made another argument that his threats were not directed at anyone in particular—his threats could not be understood to be aimed at any “person,” since they were directed at the “government,” and law enforcement generally. The court summarily rejects this argument.

__

There have been a disturbing number of cases that involve criminal liability for these types of statements posted online. The federal threat statutes seem to be getting a good workout due to online speech, particularly on sites such as Facebook and YouTube.

The conventional analysis in these cases asks whether the defendant threatened anyone--the threat can be conveyed to a third person and doesn't have to be directed at the person to whom the statement is made. But here, when the statement is made to a generic group of people and just posted online (rather than sent to a particular person or group), you have to wonder who will realistically view it as a threat. Or whether it was even intended as a threat.

The statements here are similar to those made by the person who was charged for threatening President Obama and whose conviction for threatening a presidential candidate was reversed by the Ninth Circuit ("Urging Obama’s Assassination Is Lawful Online Speech, Divided Appeals Court Says"). They seem conditional. The event page is exhortatory and not a threat in the typical sense. Courts may eventually come down on the side of speech (as in Badgasarian), but the fact that people are being prosecuted for posting this stuff is itself worrisome. (See also US v. Cassidy, where the court dismissed a harassment charge that was premised on tweets and blog posts.)

[As a sidenote, the statements here seem similar to those made by Barrett Brown, self-proclaimed Anonymous spokesperson who was raided in the midst of an online video rant. Brown was charged under the same statute. (Here’s a copy of his indictment on Scribd.)]

Added: Prof. Eric Johnson comments at Blog Law Blog here: "U.S. v. Michael Upholds Indictment for Facebook Threat to Police."

Related posts:

Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat" -- US v. Jeffries
Federal Prosecution Over "Threats" on Craigslist – US v. Stock
Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages -- In re Alex C.
Former Employee's 'Email Barrage' Does Not Support CAN-SPAM or Computer Fraud and Abuse Act Claims -- Nyack Hosp. v. Moran
Web-based Email Bombardment Campaign Does Not Amount to a Violation of the Computer Fraud and Abuse Act -- Pulte Homes, Inc. v. LiUNA

[image credit: Shutterstock / Natalia Lukiyanova]

Posted by Venkat at 11:01 AM | Content Regulation

October 11, 2012

The Proposed "Cloud Computing Act of 2012," and How Internet Regulation Can Go Awry (Forbes Cross-Post)

By Eric Goldman

Sen. Amy Klobuchar has introduced a new bill, the "Cloud Computing Act of 2012" (S.3569), that purports to "improve the enforcement of criminal and civil law with respect to cloud computing."  Given its introduction so close to the election, it's doubtful this bill will go anywhere.  Still, it provides an excellent case study of how even well-meaning legislators can botch Internet regulation.

What the Bill Does

From its 1980s origins as a law restricting hacking into government computers, the Computer Fraud and Abuse Act (CFAA) has morphed into a general-purpose federal law against trespassing on anyone else's computers.  With that breadth, the CFAA extends to a wide variety of activities, ranging from data scraping (see, e.g., EF Cultural Travel v. Explorica) to fake profiles (see, e.g., the Lori Drew prosecution related to Megan Meier's death) to ex-employees walking out the door with competitively sensitive information (see, e.g., US v. Nosal and WEC v. Miller).

The proposed bill's main substantive provisions attempt to give "cloud computing services" extra protections under the CFAA.  First, the bill says that each unauthorized access of a cloud computing account counts as a separate CFAA offense.  Second, the bill specifies a formula for computing losses in CFAA violations involving cloud computing services, setting a minimum floor of $500 loss per affected cloud computing account.

Problems with the Bill 

The CFAA is Already a Mess.  Good luck trying to read the CFAA's text.  Constant amendments over the years have created spaghetti code.  This bill adds only slightly to the CFAA's overall lack-of-tidiness, but every incremental amendment makes the CFAA more unwieldy.

The Definition of "Cloud Computing Service" is Incoherent.  The bill seeks to protect cloud computing services, but what are those? Check out the bill's definition:

the term "cloud computing service" means a service that enables convenient, on-demand network access to a shared pool of configurable computing resources (including networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or interaction by the provider of the service.

What???  This sounds more like a vendor's sales pitch than a basis for criminal prosecution.  We can reinforce the definition's weakness by trying to determine what isn't a cloud computing service.  Every user-generated content website seems to qualify; but so should every online bank.   In fact, this definition of cloud computing service probably becomes co-extensive with the Internet generally.

To be fair, the failed definition isn't totally the drafter's fault.  I don't think it's possible to define "cloud computing service" precisely.  Tip to legislators: if you can't clearly define your subject matter of your legislation, you're probably doing something wrong.

What's the Problem That Needs to Be Solved?  I can't figure out how the proposed amendments address any problem we're seeing in the field.  It's possible I've missed some relevant case, but I can't think of a single case I've seen where the CFAA underprotected a cloud computing service or this legislation would have changed the outcome.  Seeking some clarity, I submitted a press inquiry to Sen. Klobuchar's office last week and got no response.  So I have no idea what problem this bill purports to solve.

Implications

This bill exemplifies several ongoing problems with efforts to legislate the Internet:

1) Legislative grandstanding.  It's flashy for legislators to tell their constituents that they are fighting hard to protect emerging technologies like "cloud computing."  But legislators rarely understand cutting-edge technologies, and usually rapidly evolving technologies are poor candidates for legislative intervention.  So legislators' efforts to push buzzword-laden legislation are often more for show than substance.

2) Regulatory exceptionalism.  As I explain here, legislators keep creating new "exceptionalist" rules for subsets of the Internet ecosystem--online dating sites, social networks, cloud computing services, etc.  We saw how well that worked in California's effort to ban employers from asking employees for social media login credentials.  California so utterly failed at defining "social media" that it simply covered the entire Internet...and all non-networked electronic data too!  Yet, legislators seemingly haven't learned from their colleagues' repeated failed efforts to precisely define the contours of some Internet subcommunity.  The proposed CFAA amendment, and its gibberish definition of "cloud computing service," exemplifies this.

3) Code proliferation.   For every problem, real or perceived, legislators think they can fix the problem with more regulatory code.  But the manufacturing of new legal code exacts a toll of its own.  This bill increases the CFAA's complexity with minimal or zero commensurate benefit.  If Sen. Klobuchar or anyone else really wants to "fix" the CFAA, a good start would be to reduce the law's length, organize it better, and reduce its implications for users' ordinary Internet activity.

Posted by Eric at 10:58 AM | Content Regulation , Internet History , Privacy/Security | TrackBack

October 08, 2012

Ripoff Report and Topix Postings Protected by California's Anti-SLAPP Law--Chaker v. Mateo

By Eric Goldman

Chaker v. Mateo, 2012 WL 4711885 (Cal. App. Ct. Oct. 4, 2012)

Chaker and Nicole Mateo had a baby together. After the messy breakup, Nicole and Nicole's mom Wendy allegedly posted derogatory statements about Chaker and his business online to Ripoff Report and Topix. The court has little problem rejecting Chaker's defamation lawsuit under California's anti-SLAPP statute.

The court sets the context by recognizing the Internet's broad public reach:

we view the Internet as an electronic bulletin board open to literally billions of people all over the world. The Internet is a classic public forum which permits an exchange of views in public about everything from the great issues of war, peace, and economic development to the relative quality of the chicken pot pies served at competing family restaurants in a single small neighborhood.

The court then notes the public interest in information that helps consumers make decisions about goods and services in our economy:

The statements posted to the "Ripoff Report" Web site about Chaker's character and business practices plainly fall within in the rubric of consumer information about Chaker's "Counterforensics" business and were intended to serve as a warning to consumers about his trustworthiness.

This reinforces my perspective that consumer reviews categorically should qualify as addressing "issues of public interest" for anti-SLAPP purposes. However, as I documented earlier, the California caselaw doesn't completely support this bright-line characterization. Instead, the cases make a distinction between consumer reviews that address broader issues and ones that are merely focused on personal issues. In this case, Chaker runs a forensics business, and his trustworthiness unquestionably should be a matter of public interest to the extent the judicial system relies on his work. At minimum, I would make a similar argument for just about every professional service provider--the trustworthiness of our lawyers, accountants, doctors and so on is equally critical.

The court then treats Chaker like a pseudo-public figure on Topix because of his participation there:

The remaining statements were posted to the "topix" Web site, which identified itself as a social networking site ("Join the Topix Community") and permitted users to create their own profile and post information on its forum. These statements also fall within the broad parameters of public interest within the meaning of section 425.16. Of particular significance is the fact that it appears from the record Chaker became the subject of statements on the "topix" Web site only after he posted a profile on the Web site and it generated responses from other members of the community, including apparently statements from Wendy. Having elected to join the topix Web site, Chaker clearly must have recognized that other participants in the Web site would have a legitimate interest in knowing about his character before engaging him on the Web site. Thus, here Chaker himself made his character a matter of public interest as the term has been interpreted. (emphasis added)

I'm not sure about the court's approach. Although I like the wide berth given to the anti-SLAPP law, I don't know if signing up for an account at a user-generated content site means that all subsequent discussions about that person on the site qualifies as public interest. Applying the same argument to, say, Facebook would be illogical--people don't become public figures on Facebook simply because they have an account there.

The court further reinforces that hyperbolic statements should be recognized as such:

the statements about Chaker were made in the context of the paternity and child support litigation going on between Chaker and Wendy's daughter and all were made on Internet Web sites which plainly invited the sort of exaggerated and insulting criticisms of businesses and individuals which occurred here. The overall thrust of the comments attributed is that Chaker is a dishonest and scary person. This overall appraisal of Chaker is on its face nothing more than a negative, but nonactionable opinion.

In this context it is difficult to conclude Mateo's alleged embellishments, to the effect Chaker picks up street walkers and homeless drug addicts and is a dead beat dad, would be interpreted by the average Internet reader as anything more than the insulting name calling-in the vein of "she hires worthless relatives," "he roughed up patients" or "he's a crook"-which one would expect from someone who had an unpleasant personal or business experience with Chaker and was angry with him rather than as any provable statement of fact. In this regard, we note the insults are generalized in that they lack any specificity as to the time or place of Chaker's supposed behavior; the absence of such specificity is a yet a further signal to the reader there is no factual basis for the accusations. Thus, we are unable to distinguish these insults from the nonactionable ones posted in Summit Bank and Krinsky, and like the courts in those cases, we conclude these statements are nonactionable opinions.

I like how the court acknowledges that online readers can parse over-the-top hyperbolic fact-like statements. Not all courts would be so generous, but more judges should be receptive to this argument. For other examples of how we can discount hyperbolic assertions online, see Venkat's post on Twitter defamation and the cases discussed therein.

Overall, this decision is quite speech-protective--and even better, the panel actually designated the opinion for publication, so it's citable. But before we celebrate too much, don't forget we only get such a broad decision because of California's broad anti-SLAPP law. This is why I continue to favor passage of a federal anti-SLAPP law to provide this type of protection to defendants nation-wide--but why I don't favor the Free Press Act of 2012, as I'm skeptical the defendants in this case would have met the bill's requirement of being "representatives of the news media."

Posted by Eric at 09:11 AM | Content Regulation | TrackBack

September 30, 2012

Business School Professors May Be Liable for Defamatory Blog Post--ZAGG v. Catanach

By Eric Goldman

ZAGG, Inc. v. Catanach, 2012 WL 4462813 (E.D. Pa. Sept. 27, 2012)

Anthony H. Catanach Jr. and J. Edward Ketz are business school professors, Canatach at Villanova's business school and Ketz at Penn State's business school. Together, they co-blog at the "Grumpy Old Accountants" blog. With a curmudgeonly name like that, it seems almost inevitable that they'll have to rename the blog "Grumpy Old Defendants."

The lawsuit involves a blog post entitled "Don't Gag on Zagg." They appear to have removed the post, but it was fairly widely distributed and discussed, and you can see the intro here. The court uses the passive voice in characterizing the post's author, so I couldn't tell if it was co-authored or only one of the co-bloggers wrote the post. As I explain in my Co-Blogging Law article, if only one of the co-bloggers wrote it, the other should be able to claim a 47 USC 230 defense for the other blogger's post.

The post in question has harsh words for Zagg, implying or outright asserting various types of managerial misconduct, particularly misstated financial statements. The allegedly tortious statements include:

a. "The numbers are giving off so much smoke that we think management may have blinded both the auditors and investors."
b. "At worst, management may be 'cooking the books.'"
c. "ZAGG's balance sheet is littered with items prompting valuation and disclosure concerns."
d. "The company includes accounts receivables from credit card processors in its reported cash balances. You know how we feel about this right? ... Instead of the Company reporting positive cash flow for 2011, it really 'burned' cash."
e. "[I]t is ironic and worrying that the ifrogz business segment is losing money right out of the gate."
f. "Still not convinced that ZAGG management is massaging the numbers? Maybe the following will make the hairs on the back of your neck stand up."
g. "This is a financial reporting debacle in the making."
h. "It makes us grumpy when a firm overstates its cash by adding in some receivables, as note 1 explains. And why did ZAGG do this? In an attempt to fool investors about its cash flows!"

The defendants tried a motion to dismiss, applying Utah state law. Utah has a narrow anti-SLAPP law of no help here, but even a broader anti-SLAPP law like California's or Kyl's proposed federal anti-SLAPP law might not have helped the defendants. Many of the statements quoted above read like opinions or hypotheses, but the statements may give the overall impression that ZAGG is "cooking the books"--a serious allegation, as doing so probably violates state and federal criminal laws--and that impression may be enough to survive an anti-SLAPP challenge even if the broader laws applied.

The court further nudges the statements into the "fact" category of the fact/opinion divide because the author(s) supported the arguments by cross-referencing ZAGG's 10-K. In fact, if the post's arguments were supported by that document, a case like Redmond v. Gawker suggests that the readers' ability to verify the facts by consulting the 10-K should have pushed the blog post's statements back over to the opinion side of the fact/opinion divide. The court turns this argument on its head.

The defendants only lost a motion to dismiss. They could still win on a number of grounds, including of course that their statements were true. Nevertheless, this case is a potent reminder that we as bloggers are betting our house with each blog post we make--and where we disseminate "negative" information that gores someone's ox, the wounded ox just might gore us back. It's one of the reasons why, after 2,000+ blog posts over nearly 8 years, my fingers still tremble a bit when I hit "publish" on a blog post that trashes a real live company or person. You as the readers tend to enjoy the bloodsport, but it's only fun and games until someone gets sued.

Posted by Eric at 01:24 PM | Content Regulation | TrackBack

September 27, 2012

We Need Federal Anti-SLAPP Legislation, But Sen. Kyl's "Free Press Act of 2012″ Isn't the Answer (Yet) (Forbes Cross-Post)

By Eric Goldman

It's a sad but all-too-common story nowadays.  A consumer posts a negative online review about a business.  Angered by the negative feedback, and fearful of the lost business, the business threatens the consumer with a lawsuit. Recognizing the overwhelming cost of defending a lawsuit (plus the risk of a financially ruinous adverse judgment), the consumer backs down and removes the review.  This unfortunate interaction, played out many times every day all across America, deprives society of truthful negative speech--among the most socially valuable, yet most imperiled, type of speech.

Anti-SLAPP Laws as a Solution

"SLAPP" is an acronym for "Strategic Lawsuits Against Public Participation."  Initially conceived as lawsuits against citizens who were legitimately petitioning the government, over the years many folks have recognized that any lawsuit seeking to suppress discussions about socially important topics could, and should, be considered SLAPPs.  For example, lawsuits against consumer reviews typically should qualify as SLAPPs because of the importance of consumer reviews to the marketplace's invisible hand.

In response to abusive anti-speech lawsuits, nearly 30 states have enacted anti-SLAPP laws.  The laws typically provide SLAPP defendants with two main remedies: (1) a way to end the lawsuit at a very early stage, and (2) an award of the defendants' attorneys' fees.  While anti-SLAPP laws do not guarantee that truthful negative consumer reviews will remain online in response to legal threats, the laws make unhappy plaintiffs think twice about heading to court before trying to squelch socially valuable speech; and when abusive anti-speech lawsuits are brought, anti-SLAPP laws provide some meaningful justice for the victimized defendant.  For those reasons and others, the American Bar Association recently adopted the following resolution:

the American Bar Association encourages federal, state and territorial legislatures to enact legislation to protect individuals and organizations who choose to speak on matters of public concern from meritless litigation designed to suppress such speech, commonly known as SLAPPs (Strategic Lawsuits Against Public Participation).

While the proliferation of state anti-SLAPP laws has been promising, much work remains to be done.  First, while a majority of the states have adopted anti-SLAPP laws, many states have not, leaving consumers in those states without a valuable counterweight against bogus legal threats.  Second, the states' adoption of anti-SLAPP laws are quite inconsistent.  Some states, like California, have fairly expansive protection against SLAPPs; but other states have very narrow statutes, such as laws that only protect against anti-petitioning lawsuits.

Thus, a federal anti-SLAPP statute offers two main benefits.  First, it would immediately provide anti-SLAPP protection to the tens of millions of Americans who lack such protection today. Second, it could establish a national "floor" to strengthen anti-SLAPP protection in those states with narrow anti-SLAPP laws.

Sen. Kyl's Proposed Free Press Act of 2012

Some members of Congress have already recognized the value of federal anti-SLAPP protection.  For example, in 2009,  Rep. Steve Cohen introduced HR 4364, the Citizen Participation Act of 2009, which attracted three co-sponsors.

Last month, Sen. Kyl introduced S. 3493, the Free Press Act of 2012, the latest proposal for federal anti-SLAPP legislation.  Read the text.  For his leadership recognizing the importance of anti-SLAPP laws, I commend Sen. Kyl.  However, I can't support the bill in its current form.

I'm going to focus my concerns on one key aspect of the bill.  The only defendants protected by the law are "representatives of the news media," a definition taken from the Freedom of Information Act:

any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term “news” means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation....

Although caselaw has read this definition broadly (see, e.g., this case), the definition has at least three key problems:

1) It's anachronistic.  I'm not sure it ever made sense to distinguish between journalists and non-journalists, but those distinctions don't make sense in the digital era where virtually everyone online produces content.  Continuing to embrace an old-time conception of journalism is anachronistic.

2) It's ambiguous.  The definition is filled with murky terms (what is "news"? what is "information of potential interest to a segment of the public"? and so on).  All of that ambiguity causes litigants to spend a lot of time and money fighting each other.  Further, with so much room for interpretation, judges are likely to reach inconsistent results, further diluting the statute's value.

3) It's regressive.  To the extent the definition protects institutional players, such as consumer review websites and traditional media enterprises, and concomitantly may not protect individual consumers sharing their personal perspectives about the businesses they deal with, the statute is oddly regressive.  It favors defendants who are more likely to be able to afford litigation even without anti-SLAPP protection, while leaving the individuals with the least financial capacity without the extra statutory protection.  If we're going to choose to favor one group of content producers over another (which we shouldn't), I think this is exactly opposite of the choice we should make.

In light of the upcoming election, the Free Press Act of 2012 probably won't make further progress this calendar year.  When Congress does revisit Sen. Kyl's proposal, it should remove the bill's restricted applicability to "representatives of the news media."  That way, the statute would apply to all lawsuits based on "an oral or written statement or other expression that is on a matter of public concern or that relates to a public official or figure," regardless of who says it.  Given the importance of this type of content, the defendants' identity shouldn't matter.

Either way, I hope Congress revisits anti-SLAPP legislation after the elections.  Passing a federal anti-SLAPP law would be one of the quickest and easiest ways for Congress to make a major and lasting improvement to our country.

Other coverage

* Breitbart.com: Stopping Lawsuits Meant to Silence Dissent: The Free Press Act

* EFF: New Federal Anti-SLAPP Legislation Introduced: A Good Start

[Note: I am on the board of directors for the Public Participation Project, a non-profit organization lobbying for a federal anti-SLAPP law.  However, I speak solely for myself, not for the organization or other board members.  The Public Participation Project released its own statement about the Free Press Act of 2012.]

Posted by Eric at 09:07 AM | Content Regulation | TrackBack

September 18, 2012

Court Says No Negligence Claim for Third Party Infringement via Open Wi-Fi Connection – AF Holdings v. Doe

[Post by Venkat Balasubramani]

AF Holdings, LLC v. Doe, C 12 2049 (PJH) (N.D. Cal.; Sept. 4, 2012)

I blogged about a case where a P2P infringement plaintiff argued that a defendant should be held liable for failing to secure their internet connection. (“No Negligence Claim for Infringement via Shared Internet Connection (Preempted by Copyright Act) – Liberty Media v. Tabora.”) A recent case presented the argument of whether you have a duty to secure your Wi-Fi connection (and police infringers) even more squarely. The court held that someone can’t be held liable for contributory infringement based on a negligence theory.

AF Holdings sued Doe and Hatfield. It did not assert any claims of direct infringement against Hatfield. Instead, it argued that Hatfield “had a duty to secure his internet connection,” and his breach of that duty meant that he could be held liable for the infringements of others.

The court rejects this argument, saying that AF is trying to hold Hatfield liable for his nonfeasance and this theory is only available where the parties have a “special relationship.” There’s no special relationship between AF and Hatfield and thus no duty.

The court also says that a negligence claim is preempted. Copyright preemption analysis requires an “extra element” in order for a claim to not be preempted. (The claim must have an extra element that’s not present in a copyright infringement claim.) The court summarily says that there’s no extra element because AF is ultimately seeking to prevent the exercise of one of its rights under the Copyright Act (copying and sharing). Casting this as a negligence claim does not save it from preemption.

The court also discusses Section 230 immunity. Strangely, AF argues that Section 230 shouldn’t apply because the negligence cause of action is not aimed at “offensive material.” The court sidesteps the Section 230 question in light of its other finding that there’s no duty and the claims are preempted.

___

Not particularly exciting, but this case presented the "negligence for failing to secure Wi-Fi" theory more straightforwardly than the prior case I blogged, so I thought the rejection of this argument was worth noting. It would have been nice for the court to have discussed the standards for derivative liability for infringement generally, and how negligence would lower this bar (and potentially open the floodgates), but this only received a passing mention from the court.

Related posts:

“No Negligence Claim for Infringement via Shared Internet Connection (Preempted by Copyright Act) – Liberty Media v. Tabora.”

Posted by Venkat at 09:42 AM | Content Regulation , Copyright , Derivative Liability

September 13, 2012

Pointing Out Possible Hypocrisy by a Self-Claimed Sextortion Expert Protected by Anti-SLAPP Laws--Backlund v. Stone

[Post by Venkat Balasubramani]

Backlund v. Stone, B235173 (Ca. Ct. App.; Sept. 4, 2012)

When is it OK to tweet a threat to expose seminude photographs of a teenage girl? When you’re a law student? When you’re a self-professed expert on “sextortion”? The answer is: in neither case (if you answered “never,” you’d be right as well).

This is a crazy case involving Christopher Stone, “an aspiring lawyer in his 30’s,” and Alyssa Backlund, who in 2010 was a teenager (it also involves Gawker tangentially; we’ve posted about a few cases involving Gawker, most recently Redmond v. Gakwer).

In addition to being an aspiring lawyer, Stone claimed to be an expert on sextortion. Stone ran a website (stickydrama.com – now down) where he posted a lewd image of a minor female masturbating next to an infant. While the photo was not of Backlund, Stone posted Backlund’s contact information with the image. Separately, Backlund allegedly sent repeated messages to one of Stone’s houseguests. Stone did not take kindly to this and sent a tweet stating:

[m]essage him again, and your floppy titties are spammed all over the place. Last warning.

After Stone sent this tweet, Backlund was interviewed by Adrian Chen of Gawker. Chen’s article initially stated that Stone engaged in “sextortion” by threatening to expose a photo of the underage Backlund, but was later corrected to indicate that Backlund was 18 when the photo referenced in the tweet was taken. Chen referenced the tweet in the article, and also quoted a Fox News report featuring Stone, where Stone warned against the dangers of sextortion. [Chutzpah alert!]

Backlund’s complaint against Stone: This is not relevant to the present motion, but Backlund filed a complaint against Stone for defamation and false light. Stone moved to strike Backlund’s complaint as a SLAPP. He argued that he did not disclose any private facts by posting it. He also argued that he corrected the error in his identification of Backlund as soon as he was apprised of it. (Probably not the best choice of words, but his follow up post was titled “Alyssa Marie Buckland [sic] is Not the Most Vile Camwhore Alive.”) Anyway, the court denied Stone’s motion to strike, finding that “posting child pornography is not protected free speech.” Stone did not appeal this ruling.

Stone’s complaint against Backlund: Stone sued Backlund for defamation and intentional infliction of emotional distress. Backlund moved to strike under the anti-SLAPP statute. The trial court denied the motion, finding that the crux of Backlund’s complaint was not the “public-interest topic of ‘sextortion’,” but Backlund's own comments regarding her experience with Stone. The trial court said that Stone’s defamation complaint involves a “private controversy,” and does not implicate the anti-SLAPP statute. Backlund appealed this ruling, and the court of appeals reverses...and bench-slaps Stone in the process.

Does Stone’s complaint come within the Anti-SLAPP Statute? The appeals court looks to the anti-SLAPP statute and the two possible bases for the motion to strike: (1) the statement was made “in a place open to the public or a public forum in connection with an issue of public interest” and (2) the defamation claim is based on conduct in furtherance of Backlund's right to free speech in connection with an issue of public interest.

The court says that Gawker is a public forum, noting that it’s an internet news site and citing to Stone’s own admission that the articles about him were “viewed by thousands of people.” The key question was whether Backlund's statements were a matter of public concern. The court says yes, noting that Stone injected himself into the public consciousness on the topic of sextortion by portraying himself as an expert (by doing this, “he voluntarily subjected [himself] to inevitable public scrutiny and public ridibule by the public and the media.”). The Gawker article contributed to public discussion on the topic of sextortion and Stone’s own role as an expert. In fact:

publicity about Stone’s threats and Backlund’s resulting fear of Stone provide a cautionary lesson to the youthful readers of Gawker, who might read Chen’s article and decide not to upload nude images of themselves, lest the images fall into the wrong hands and pose the risk of public humiliation in front of countless people.

Yikes.

Does Stone demonstrate a probability of prevailing on the merits? Having concluded that Backlund satisfied the first prong of the anti-SLAPP analysis, the court shifts the burden to Stone to show that he is likely to prevail on the merits. And he fumbles. The court says that he forfeits this prong because he failed to “make [any] argument on appeal to establish that he is likely to succeed on the merits.” He submitted a declaration, but the court dings him because the declaration did not state under penalty of perjury of the laws of the State of California that its contents were true. Because he’s a public figure (in the context of the sextortion discussion), he’s required to show actual malice, and neither his unverified complaint nor his deficient declaration get him there. The court also notes that while Gawker published three separate articles about Stone, Stone chose not to sue Gawker and instead “focused on a teenager to whom he admittedly sent a threatening message. . . . Given Stone’s scurrilous and outrageous behavior toward young women, he cannot be heard to complain when confronted by one of his victims.”
__

Yowza. It’s tough to see what Stone's hook for the defamation claim would have been. He claimed that Backlund’s statements were false because (1) the topless photograph of Backlund was taken when she was 18 (and not underage); (2) his tweet did not include a link to the image of Backlund; and (3) he didn’t “continue to threaten Backlund with posting the picture,” or make similar threats against others. It’s unclear whether the age discrepancy came from Backlund or from Chen, but this isn’t really the crux of the Gawker story, which was that Stone wasn’t the credible expert protecting others against sextortion that he claimed to be: “StickyDrama’s Christopher Stone Is a ‘Sextortion’ Expert in More Ways Than One.” There’s no dispute that he tweeted the threat to expose risqué images of Backlund. Res ipsa loquitur dude.

The case is interesting for a couple of reasons.

First, it affirms that discussions taking place on blogs and online forums are public forums for purposes of the SLAPP statute. A related point is that people who inject themselves into the social sphere will have a hard time arguing non-public figure status. Both points could come in handy for defamation defendants.

Second, the bench-slap. The court is not impressed with Stone. It also drops a footnote telling him that his internet activities are “abusive, unethical, demonstrate a manifest lack of maturity, discretion and good judgment, and mandate a thorough investigation into his fitness for state bar membership.” To the extent he seeks to practice law in California, he is required to provide a copy of the opinion to the State Bar.

Finally, Stone’s poor judgment and over-reach came back to haunt him. As a self-professed expert on sextortion, he should steer clear from any activity that’s even in the same universe, much less the same ballpark. His Tweet ran afoul of this. Additionally, the fact that he didn’t go after Gawker or Chen but instead went after a hapless teenager/young adult was something the court picked up on.

Related posts:

Using Links as Citations Helps Gizmodo Defeat a Defamation Claim--Redmond v. Gawker Media
Lawsuit Against Avvo for Lawyer's Profile Dismissed as SLAPP--Davis v. Avvo
Ninth Circuit Upholds Anti-SLAPP Ruling for Blogger/Griper--Sedgwick v. Delsman
Satirical Anti-Birther Blog Post Protected by DC's Anti-SLAPP Law--Farah v. Esquire
CA Anti-SLAPP Cases Involving Consumer Reviews as Matters of Public Concern

Posted by Venkat at 08:02 AM | Content Regulation , Publicity/Privacy Rights

September 12, 2012

Another School Violated a Student's First Amendment Rights by Disciplining Her For Facebook Posts -- R.S. v. Minnewaska Area School Dist. No. 2149

[Post by Venkat Balasubramani]

R.S. ex rel. S.S. v. Minnewaska Area School Dist. No. 2149, 2012 WL 3870868 (D.Minn. September 6, 2012)

R.S. was a twelve year old student at a Minnewaska Area middle school. She posted a message to her Facebook page about an adult hall monitor at her school:

[I hate] a Kathy person at school because [Kathy] was mean to me.

The post was only accessible to her friends. One of her friends brought the post to the attention of the administration. The principal called R.S. into his office and told R.S. “that he considered the message about Kathy to be impermissible bullying.” (???) As a result of the message, R.S. was required to apologize, given detention, and received a disciplinary notation in her records. R.S. was disciplined a second time when she expressed her chagrin that someone had told on her (“I want to know who the f%$# told on me.”) [“f%$#” in original] This time she was disciplined for “insubordination” and “dangerous, harmful, and nuisance substances and articles.” (???)

Separately, school officials received a complaint from a parent that R.S. was allegedly communicating with another student about “sexual topics on the internet.” A school official told R.S.’s mother that, apparently, a boy had initiated an online conversation about sex with R.S. This time, R.S. was pulled out of class and grilled about the conversation. Dissatisfied with the responses R.S. provided, officials asked R.S. for her Facebook password. Although she initially said she forgot it, under the glare of the lights, she provided the password. School officials proceeded to search her Facebook account, including private messages. For good measure, they also searched her private email account.

R.S. was understandably upset by the search and the instances of discipline. She sued, alleging violations of her constitutional rights.

First Amendment claims: The court has no trouble concluding that assuming the facts as alleged as true, school officials violated R.S.’s First Amendment rights. The court says that posts on social networks are protected unless they are “true threats” or are reasonably calculated to reach the school environment and pose a safety risk or a risk of substantial disruption of the school environment. R.S.’s posts were not true threats. Even assuming the statements were reasonably calculated to reach the school audience, there was no possibility of disruption. The court distinguished D.J.M. v. Hannibal Public School District #60, a case where the Eighth Circuit said that a student could be properly disciplined for threatening instant messages (quick linked here) on the basis that that case involved a threat and actually disrupted the school environment. The court also cites to Layshcok, where the Third Circuit said that setting up a mocking profile of a high school principal was not sufficient to warrant discipline. (See also J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.)

Fourth Amendment claims: The court also says that the school officials violated R.S.’s Fourth Amendment rights to the extent they rummaged around in her Facebook page and her private email account. Private emails were like letters of other private conversations, and subject to Fourth Amendment protections. Private Facebook messages are no different. There was no evidence that the officials tailored their search to minimize the intrusion. Even if they had, they had no underlying basis to search in the first place.

Other claims: The court does dismiss the claims for intentional inflection of emotional distress. However, it allows the claims for invasion of privacy. In passing, it also rejects the school’s argument that R.S.’s violation of Facebook terms (by misrepresenting her age when she signed up) does not mean that she is entitled to fewer privacy protections.

__

Not much more to say about this one. Assuming the facts are as they alleged (something the court takes pains to say may not be the case), this looks like a major over-reaction from the school. Disciplining R.S. for her off-campus and relatively innocuous post was bad enough. Searching her Facebook account and email was a gaffe for which the school district will likely end up writing a check.

[Eric's comment: perhaps naively, I keep hoping that, over time, school administrators will stop freaking out about students' social media activities. This is a contrary datapoint; based on the allegations, this looks like a freakout. In particular, it's a good example of how administrators might use the "bullying" label as a pretextual justification for punishment. The term "bullying" has way too much semantic ambiguity, but it should never stretch as far as calling another person "mean."]

Other coverage:

Judge won't dismiss lawsuit accusing Minnesota school of demanding sixth-grader's Facebook password (SPLC)
Student's suit for forced Facebook disclosure survives motion to dismiss; court finds reasonable expectation of privacy in Facebook messages (Cybercrime Review)

Related posts:

Mortuary Student Can Be Disciplined for Facebook Posts--Tatro v. University of Minnesota
Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board
Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech--TV v. Smith-Green
Mortuary Sciences College Student Disciplined for Threatening Facebook Posts--Tatro v. University of Minnesota
Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation--Doninger v. Niehoff
Nursing School Can't Expel Students for Posting Photo to Facebook--Byrnes v. Johnson County CC
Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction -- State v. Drahota
Private Facebook Group's Conversations Aren't Defamatory--Finkel v. Dauber
Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
Private High School Not Liable for Cyberbullying--DC v. Harvard-Westlake
Nursing Student's Blog Post Doesn't Support Expulsion--Yoder v. University of Louisville
Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber
Court Upholds Student Suspension For YouTube Video of Teacher
Teenager Busted for Creating Fake "News" Story

Posted by Venkat at 09:42 AM | Content Regulation , Privacy/Security

September 10, 2012

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App -- Hickey v. Voxernet

[Post by Venkat Balasubramani]

Hickey v. Voxernet, C12-373 MJP (W.D. Wash.; Aug 13, 2012)

Voxer is an app that turns your cell phone into a walkie-talkie. Plaintiff sued on his own behalf and on behalf of a putative class, alleging that he received unsolicited text messages sent “by or on behalf of Voxer.” The precise nature of the text messages is unclear from the court’s order. While the order says that Voxer allegedly used its subscribers’ “phone contact lists,” it’s unclear as to whether users sent out “get on Voxer” texts to all of their contacts as a default, or merely sent these messages when they tried to contact specific individuals on their contacts lists. Plaintiff asserted claims under the Telephone Consumer Protection Act and Washington’s anti-spam statute.

Who is responsible for the messages?: Voxer argued that it wasn’t the one who sent the messages—i.e., the individual users were. The court says that although the relationship between Voxer and the person whose phone sent the messages is unclear, the complaint alleges sufficient facts to get past a motion to dismiss. Citing to In re Jiffy Lube, the court also says:

other courts’ willingness to expand liability under the TCPA despite the involvement of third parties in the transmission of prohibited communications indicates that potential third party involvement in sending the message . . . is not dispositive of defendant’s liability under the TCPA.

Did Voxer use an automatic telephone dialing system?: The court also says that plaintiff adequately pled the use of an ATDS by Voxer. Voxer’s app in this circumstance functions as a “predictive dialier” which according to the TCPA regs is “hardware, when paid with certain software, [which] has the capacity to store or produce numbers and dial those numbers . . . from a database of numbers.” Citing to statements in the FCC regs that automated dialing technology will continue to develop and the difficulty plaintiff faces in knowing precisely what type of dialing system a TCPA defendant uses at the early stage of the case, the court says that plaintiff’s allegations are sufficient to satisfy the requirement that defendant used an ATDS to initiate the call. (See Satterfield.)

Preemption of Washington’s email/text spam statute: Voxer argued that plaintiff’s claims under Washington’s anti-spam statute were preempted, but the court says no. There’s no difficulty in complying with both sets of rules, and no scenario where your compliance with one would put you out of compliance with the other. Voxer also argued that since the Washington statute applies to cross-border messages, it impedes the federal regulatory scheme for interstate communications. The court disagrees, and notes that Congress intended the TCPA to be a floor, to strengthen state regulations around intrusive text messages.

Having said that plaintiff’s claims are not preempted, the court finds that plaintiff does not state a claim under the Washington statute because the Washington statute only applies to texts messages that are sent to promote products or services that are for “sale or lease.” Looking to the dictionary definition of the term sale (“a price in money paid or promised”) the court says that the texts in this case don’t fit because there’s no allegation that consumers pay money for Voxer. The intangibles consumers pay to download or use Voxer are not enough to turn this into a “sale.”

__

Oy. In re Jiffylube strikes again. The key factual question it would have been nice to see fleshed out is whether a text was triggered by the user’s actions or by Voxer. The court says, looking to the seemingly broad notions of liability under the TCPA, that this does not matter (at least at the pleading stage). It’s interesting that there was no discussion of the terms of service and whether users were provided notice that their contacts would be sent texts. Even assuming that Voxer sends a text to every single contact, maybe Voxer could have said that it wasn’t the moving force behind the text (i.e., consumers were apprised that their contacts would be sent texts, and their act of downloading and installing the software after having been apprised of this is what caused the texts to be sent).

The preemption argument is worth noting. The two statutes are slightly different. The TCPA doesn’t speak directly to text messages but has been given this interpretation by the FCC and courts. Washington’s statute, on the other hand, doesn’t require the use of an automatic dialing system but says that you can’t send any “commercial” texts to a number assigned to a Washington resident. You could conceivably comply with the TCPA by not using an auto-dialer, but violate the Washington statute by sending a commercial text. The part of the Washington statute that’s awkward is that it only applies to numbers that are assigned to Washington residents. Are people who send out commercial texts required to consult with a directory to make sure whether the numbers on their list are assigned to Washington residents?

(The TCPA also contains a savings clause that says states are free to impose “more restrictive intrastate requirements or regulations on, or which prohibits . . . the use of . . . facsimile machines or other electronic devices to send unsolicited advertisement.” The court says that intrastate does not modify prohibitions—i.e., any prohibition is OK under the savings clause, but only intrastate regulations are saved. The drafting seems awkward to begin with, but this interpretation is clunky at best.)

As mentioned above, the big question is whether Voxer is sending texts to everyone in a user's contact list (as companies such as Reunion are alleged to have done) or whether a text is merely sent when a user tries to contact someone in his or her contact list. If it's the latter scenario, Voxer should have a viable defense under Section 230. (This brings to mind Abrams v. Facebook, a dispute from several years back, where Facebook was sued for allowing users to send SMS messages. Facebook had a Section 230 defense available, but settled and agreed to make changes around its SMS offering.) If it's the former scenario, Voxer should get out its checkbook and be prepared to write a check.

Previous posts:

"Confirmatory Opt-Out Text Message Doesn't Violate TCPA – Ibey v. Taco Bell"
"Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation"
"Group Text Services Grapple with TCPA Class Actions"
"Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent -- Ryabyshchuk v. Citibank"
"Court Rejects Constitutional Challenge to TCPA Based on Vagueness in "Prior Express Consent" Exception -- Kramer v. Autobytel, Inc."
"Another Court Finds that TCPA Applies to Text Messages -- Lozano v. Twentieth Century Fox Film Corp."
"Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense -- Abbas v. Selling Source, LLC"
"Ninth Circuit Revives TCPA Claim--Satterfield v. Simon & Schuster"
"Cellphone Spam Violates TCPA--Joffe v. Acacia Mortgage"
Telephone Numbers as Identity Authenticators--Abrams v. Facebook

Posted by Venkat at 03:30 PM | Content Regulation , Spam

September 04, 2012

Another Case Says No Liability for Linking to Allegedly Defamatory Content, Plus a Recap (Guest Blog Post)

Vazquez v. Buhl, 2012 WL 3641581 (Conn. Super. July 17, 2012)

[Eric's Note: Sam Bayard is an associate at Davis Wright Tremaine LLP in New York. I got to know him during his stint at the Citizen Media Law Project. A few months ago, we had exchanged emails regarding cases applying Section 230 to linking to defamatory content, and we found that the topic was a little more confusing than either of us expected. As a result, I've asked him to blog about the recent Vazquez v. Buhl decision and to summarize the overall state of play here. The views expressed in this post are his own and do not necessarily reflect those of others at the firm or its clients.]

Eric’s recent post on Directory Assistants, Inc. v. Supermedia, LLC, 2012 WL 3329615 (E.D. Va. May 30, 2012), reminded me that I owe him a guest post on a topic we’ve been discussing on EFF’s Section 230 list: the law on linking to allegedly defamatory content. Then, Eric forwarded me a recent case that addresses the issue head on and comes out the right way.

In Vazquez v. Buhl, the plaintiff sued Teri Buhl, a financial reporter, for posting allegedly defamatory statements on her website. He also sued NBCUniversal for publishing an article on CNBC.com called "The Sex and Money Scandal Rocking Hedge Fund Land." The CNBC.com article referred to Buhl as a "veteran financial reporter" who "knows her way around the Connecticut hedge fund beat" and provided a link to her webiste, adding "I don't want to steal Buhl's thunder, so click on her report for the big reveal." The complaint alleged that NBCUniversal "published, distributed, endorsed and promoted Buhl's defamatory statement by validating Buhl's credibility."

NBCUniversal filed a motion to strike the Complaint based on (Section 230 , and Judge David R. Tobin of the Superior Court of Connecticut granted the motion. The court focused its analysis on whether NBCUniversal was a "content provider" with respect to Buhl's statements, citing Roommates.com for the proposition that a website becomes a content provider "if it contributes materially to the alleged illegality of the content." (N.B. Another defense-side win citing Roommates.com.) The court was not convinced that NBCUniversal did anything of the kind, running through Section 230 case law holding that a defendant does not become a content provider by selecting or making minor alterations to content or by adding headings or other introductory material so long as that content is not itself defamatory (the latter relying on Shiamili v. Real Estate Group of New York, Inc., 17 N.Y.3d 281 (2011)).

In the end, the court easily concluded that merely providing a positive introduction and link did not make NBCUniversal an information content provider with respect to Buhl's content:

In the present matter, NBCUniversal included an introduction to and hyperlink to Buhl's allegedly defamatory statements. The plaintiff has not alleged in his complaint that the [CNBC.com] article or NBCUniversal's statements were defamatory, just that the defamatory statements were made available by hyperlink. Although NBCUniversal added an introduction leading readers to the defamatory statements, [it] did not materially create or develop any of the allegedly defamatory statements. Even though NBC Universal's actions might have increased readership of the defamatory statements, its actions do not amount to either the creation or development of the allegedly defamatory statement which it did not author or even edit.

Vazquez, 2012 WL 3641581, at *4. This is the right conclusion under the plain language of the statute, and it is encouraging to see a court deal squarely with such a ubiquitous practice that is so vital to Internet publishing and communication.

Hopefully, Vazquez and Directory Assistants, though lower court decisions, will help bring much needed to clarity to the law on linking to allegedly defamatory content. As Eric wrote in his post, protection for linking is so “completely obvious and intuitive” that it is hard to believe that there’s not more case law out there on the topic. Unfortunately relatively few decisions directly address the point and several cases treat it in a fairly oblique or terse manner. Nevertheless, the bottom line is that linking to allegedly defamatory content shouldn’t give rise to liability. The two reasons courts commonly cite are (1) Section 230; and (2) linking does not constitute a “publication” or “republication” of the allegedly defamatory content. Below I provide a round-up of the cases, expanding a little on those mentioned at the end of Eric’s post.

Section 230 Cases

Section 230 definitely is the first line of defense for any defamation or other tort claim based on linking. As noted, the plain language of the statute covers linking to third-party content, i.e. “information provided by another information content provider.” One reservation you hear voiced from time-to-time is that the linker has somehow crossed the line by actively choosing the content rather than passively receiving content like most websites that publish user comments. This objection is a non-starter: scores of cases recognize that Section 230 protects the exercise of traditional editorial functions, which include selecting what gets published and what does not. So the “passive” versus “active” distinction is not terribly meaningful. And then there’s Barrett v. Rosenthal, 51 Cal.Rptr.3d 55 (Cal. 2006), a well-respected opinion from the California Supreme Court that specifically rejects this distinction, see id. at 75-77, though the case did not directly address linking.

Another California state case, McVey v. Day, 2008 WL 5395214 (Cal. App. Ct. Dec. 23, 2008) (see specifically Section B(3)(c)), is more on point factually. There, the plaintiff alleged that the defendant sent an email with links to a website containing allegedly defamatory material. Although the court’s reasoning is neither extensive nor particularly clear, it dismissed the claim based on Section 230, citing Barrett. Shrader v. Biddinger, 2012 WL 976032 (D. Colo. February 17, 2012), is also directly on point. (See Eric’s post on Shrader.) In that case, someone named Stewart had a business disagreement with the plaintiff Shrader. Stewart emailed critical comments about Shrader to Biddinger, who posted the email on a forum called Wave59. One of the principals of Wave 59, named Beann, emailed several people directing them (presumably through a link) to Biddinger’s posting. The court granted Beann’s and Wave 59’s motion to dismiss based on Section 230. With respect to Beann’s email, the court wrote:

Plaintiff also asserts that Beann contacted third parties, directing them to the posting on the bulletin board. Beann denies this allegation and asserts that even if this claim had factual support, that sort of conduct, in and of itself, is also protected under the CDA. This court agrees that even if Beann “directed” users of the board to Exhibit H, such conduct does not diminish the protections of the CDA’s immunity.

Slip Op. at 16 (citing Blumenthal v. Drudge, 992 F. Supp. 44, 51-52 (D.D.C. 1998)). The citation to Drudge does not make a whole lot of sense under the circumstances, but the court at least reaches the conclusion that simply directing users to a third-party posting is covered by Section 230.

A couple of other Section 230 cases should be mentioned. In Parker v. Google, 422 F. Supp. 2d 492, 500-01 (E.D. Pa. 2006), aff’d, 242 Fed. Appx. 833 (3d Cir. 2007), the district court held and the Third Circuit agreed that Google could not be held liable for providing links to websites with allegedly defamatory comments about the plaintiff. Also of note is Deer Consumer Products, Inc. v. Little, 2011 NY Slip Op 51691(U) (N.Y. Sup. Ct., N.Y. Cty., Aug. 31, 2011), where the plaintiff, a seller of home appliances, sued Alfred Little and Seeking Alpha, Ltd. (“SAL”) for defamation over allegedly defamatory “reports” written by Little that appeared on SAL’s website, seekingalpha.com. SAL moved to dismiss and the court granted the motion. Most of the decision is plain-vanilla Section 230 fare, relating to reports authored by Little and posted on SAL’s website. But the statement of facts indicates that “[t]he remaining two ‘reports’ in issue were not published on SAL’s website; they were accessible through the website by clicking on a link (to a third-party website) in a reader’s comment . . . .” The court never mentions or analyzes these linked-to “reports” again, but the court’s holding that Section 230 barred the plaintiff’s claims in their entirety surely should encompass the linking allegations.

Republication Cases

If for some reason Section 230 does not provide a defense, whether because of a reluctant judge or uncooperative facts (such as linking to your own content), a defendant has a good chance of prevailing on the argument that simply providing a link is not publication or republication of the underlying content. The best case is, alas, from Canada. In Crookes v. Newton, 2011 SCC 47 (Canadian Sup. Ct. 2011), the Supreme Court of Canada held that providing a hyperlink to allegedly defamatory material is not a “publication” of that material giving rise to defamation liability. Slip Op. at 15, 19, 33-34. The plaintiff, Wayne Crookes, brought a series of lawsuits against several individuals he claimed were responsible for defamatory articles published on a number of websites. Id. at 15. John Newton published an article on his website about these cases called “Free Speech in Canada,” and the article contained hyperlinks to other websites, which in turn contained information about Crookes. Crookes sued Newton claiming that two of the hyperlinks led to defamatory material. Id. After a thorough analysis of the common law relating to publication, the Court determined that a hyperlink should not be deemed a publication of the linked-to material. Id. at 23-24.

The Supreme Court of Canada relied on two old New York cases in reaching this conclusion. One is Klein v. Biben, 296 N.Y. 638 (1946), in which the New York Court of Appeals ruled that an article that stated “For more details about [the plaintiff], see the Washington News Letter in the American Hebrew, May 12, 1944” was not a republication of the May 12 article. The second is McFadden v. Anthony, 117 N.Y.S.2d 520 (N.Y. Sup. Ct., N.Y. Cty. 1952), where a New York trial court held that a radio broadcast did not publish or republish an allegedly defamatory magazine article simply by calling attention to the article when the allegedly defamatory statements were not repeated. In Crookes, The Supreme Court of Canada also relied on policy analysis, doing a great job of encapsulating the problem with holding internet users liable for linking:

The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.

Slip Op. at 29.

Moving back to the United States, the Third Circuit recently ruled in In re Philadelphia Newspapers, LLC, No. 11-3257 (3d Cir. July 26, 2012), that publishing a link and favorable reference to a webpage which in turn linked to allegedly defamatory articles did not constitute a republication of those articles. Slip Op. at 25-27. The court’s reasoning draws heavily on cases applying the single publication rule and holding that linking to an article does not republish the article for purposes of the statute of limitations. See Salyer v. Southern Poverty Law Center, 701 F. Supp. 2d 912 (W.D. Ky. 2009); Churchill v. State of N.J., 876 A.2d 311 (N.J. Super. Ct. 2005); Sundance Image Technology, Inc. v. Cone Editions Press, Ltd., No. 02 CV 2258 JM (AJB), 2007 WL 935703 (S.D.Cal. March 7, 2007).

One final case is worth mentioning, In re Gemtronics, Inc., Docket No. 9330, Initial Decision (F.T.C. A.L.J. Sept. 16, 2009), though it is not a defamation case and linking plays a rather small role in the decision. In that case, an administrative law judge found that the defendant was not liable under Sections 5(a) and 12 of the Federal Trade Commission Act for allegedly false advertising appearing on a website that he did not operate or control, but to which he had provided links to (among other things). See Slip Op. at 26, 53.

* * *

Hopefully having these cases collected together here will prove helpful to the reader. In all likelihood, I’ve missed a case or two—so please get in touch with me if you’ve got some more. And if anyone's got a PDF copy of Vazquez v. Buhl, please send that along too..

Posted by Eric at 09:07 AM | Content Regulation , Derivative Liability | TrackBack

August 30, 2012

We've Filed a Request to Publish Redmond v. Gawker Media

By Eric Goldman

My RA Sruli Yellin and I wrote a letter requesting that the California Appellate Court publish its opinion in Redmond v. Gawker Media, the recent case that said Gizmodo's hyperlinks to its sources helped defeat a defamation claim. Our short letter, filed today. The letter was joined by several additional individuals and organizations, and special thanks to Michael Barclay, who both suggested we make the filing and provided helpful comments, and Mark Goldowitz, who also provided helpful comments.

Until Michael suggested it, I didn't know third parties could request publication of unpublished opinions. Despite the time it took, this seems like a particularly leveraged way to help "make" new law. With a few hours of work, it's theoretically possible to add particularly useful opinions to the corpus of citable precedent. I'll be watching for other opportunities like this. Of course, it's only a good investment of time if the letters actually work, and I'm hoping our letter in this case does the trick.

Posted by Eric at 02:27 PM | Content Regulation | TrackBack

August 29, 2012

Sixth Circuit Affirms Conviction for Threat Posted to YouTube – US v. Jeffries

[Post by Venkat Balasubramani with a comment from Eric]

US v. Jeffries, 2012 WL 3641639 (6th Cir.; Aug. 27, 2012)

We blogged previously about US v. Jeffries, where the district court declined to dismiss an indictment for posting an allegedly threatening video to YouTube (and Facebook). My initial blog post about the case: “Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a 'True Threat'.” The basic facts are that the defendant was involved in a custody dispute and posted a music video to YouTube and Facebook. The video extolled a father’s love for his daughter but also contained statements ostensibly directed at the judge who was set to hear the custody modification hearing for the defendant's daughter:

Let’s get them out of office. Vote ’em out of office.
If fathers don’t have rights or women don’t have their rights or equal visitation,
Get their ass out of office.
’Cause you don’t deserve to be a judge and you don’t deserve to live.
You don’t deserve to live in my book.
And you’re gonna get some crazy guy like me after your ass.
And I hope I encourage other dads to go out there and put bombs in their goddamn cars.
Blow ’em up. Because it’s children we’re, children we’re talkin’ about.
I care about her.
And I’m willing to go to prison, But somebody’s gonna listen to me, Because this is a new war.
This ain’t Iraq or Afghanistan. This is goddamn America. This is my goddamn daughter.
There, I cussed. Don’t tell me I can’t f___in’ cuss.
Stupid f___in’ [Guitar crashes over in the background] BOOM!
There went your f___in’ car. I can shoot you. I can kill you. I can f___ you.
Be my friend. Do something right. Serve my daughter.
Yeah, look at that, that’s the evil. You better keep me on God’s side.
Do the right thing July 14th.

Jeffries was convicted and appealed. The Sixth Circuit rejects his arguments on appeal.

Subjective intent requirement: The focus was whether the statute contained a subjective element. The district court said no, and the Sixth Circuit agrees. In other words, it’s sufficient to convict under the statute for the threat to be reasonably perceived as a threat; it doesn’t matter whether the defendant subjectively intended it to be a threat.

The court notes that the majority of circuits, including the Sixth Circuit, have construed the federal statute to not require subjective intent. Jeffries argued that the Supreme Court’s decision in Virginia v. Black (striking down a state statute that banned cross burning) required a subjective inquiry, but the court disagrees. Judge Sutton says that the Supreme Court’s decision in Black turned on overbreadth and the Court did not directly address the subjective intent question (the statute at issue in that case already contained a subjective element). The problem identified in Virginia v. Black – of separating constitutionally protected speech from proscribable speech – was adequately addressed in the context of the federal threat statute because the cases look to whether something would reasonably be perceived as a threat.

Sufficiency of evidence: The court also addresses Jeffries' argument that there was insufficient evidence to convict. The court says that a reasonable jury could have found the video to constitute a true threat. The video obviously refers to the family law judge who would hear the custody modification, and says to the judge that he should “do the right thing July 14th [the date of the hearing].” This is plenty for a reasonable jury to take the video as a “serious expression of an intention to inflict bodily harm” along with an accompanying goal. The court does note that this is the first time the statute has been applied to a music video, but the statute does not contain anything to preclude this, and a threat can be delivered by any means.

Facebook messages and other videos: Jeffries also argued that the jury should not have been shown the Facebook messages that he sent when he posted the video to Facebook. The court says that these provide the necessary context for the video, and it doesn’t make sense for the jury to have only considered messages that could have made their way to the family law judge. The threat does not need to be communicated to its target and as long as anyone would reasonably perceive it as a threat, that’s sufficient. In contrast, Jeffries actually wanted to show the jury other videos he posted to YouTube, but was prevented by the trial court from doing so. The Sixth Circuit says that this is also not erroneous. These videos were not part of the context for the allegedly threatning video, and the trial court was within its discretion in excluding them.

Interestingly, Judge Sutton, who wrote the Sixth Circuit opinion, wrote separately (“dubitante”) expressing his opinion that although precedent does not require the statute to contain a subjective component, maybe it should. He says that any definition of the term "threat" encompasses an expression of “intent” on the part of the author or speaker. Allowing a conviction based on a purely objective test “reduces culpability on the all-important element of the crime to negligence.” A lot of precedent only looks to the subjective test for whether something is a threat, but according to Judge Sutton, the cases don’t adequately dig in to the definition of “threat” or the history of the statute.

__

The Sixth Circuit panel viewed its hands as tied on the subjective intent question, although Judge Sutton's separate opinion is surely intended to flag this for the parties or other judges as something that hasn't necessarily been correctly decided (despite the appearance of settled precedent on the issue). As mentioned in the initial post, the video was pointed, and it's tough to not conclude that it wasn't made with the intent that it come to the family law judge's attention or have some sort of coercive effect on him. Nevertheless, it's troubling that the district court rejected Jeffries' proposed jury instruction on the issue of subjective intent, given that Sixth Circuit precedent appeared to require an intent to "effect some change" through the threat, and given the fact that the threat was made in the form of a music video. It's possible (although unlikely) that the defendant could have created the video purely as a vehicle for self expression, and the rejection of Jeffries' proposed jury instruction seems to preclude this defense. (This may be addressed elsewhere in the instructions.) [It's also worth noting that although I didn't go back and re-read Virginia v. Black, I recall it being one of the more confusing cases I've read.]

It will be interesting to see if Jeffries seeks rehearing en banc.

(h/t) ABA Journal: “6th Circuit Upholds Conviction for Threat to Judge in YouTube Song.”

Related posts:

Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat" -- US v. Jeffries
Federal Prosecution Over "Threats" on Craigslist – US v. Stock
Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages -- In re Alex C.
Former Employee's 'Email Barrage' Does Not Support CAN-SPAM or Computer Fraud and Abuse Act Claims -- Nyack Hosp. v. Moran
Web-based Email Bombardment Campaign Does Not Amount to a Violation of the Computer Fraud and Abuse Act -- Pulte Homes, Inc. v. LiUNA
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Eric's comment

The standard maxim is that we should never say anything online that we wouldn't say in person. I wonder if that maxim would have helped Jeffries here. Would he have been willing to sing his song to the judge's face? If not, then it wasn't a great idea to post the video online. Overall, I'm seeing an increasing number of cases in this genre--a song recorded in a YouTube video as a means of expressing anger or angst--and I think all of those videos would benefit from being run through the "would you say this in person?" acid test.
_______

Venkat's follow up comment

I have no disagreement with Eric's comment that the video clearly didn't pass the "don't-post-stuff-online-that-you-wouldn't-say-in-person" test. Threats against public officials, including judges, are not something to be taken lightly. That said, I wonder whether criminalizing this activity is optimal. As the ABA article notes, the defendant, who happened to be a veteran, also got into hot water over posting allegedly "suicidal/homicidal" tweets. It's likely that this is part of an overall mental health issue that could benefit from treatment rather than punishment.

[image via ShutterStock]

Posted by Venkat at 12:58 PM | Content Regulation , Evidence/Discovery

Ranking of "Dirtiest Hotels" Based on User Ratings is "Unverifiable Rhetorical Hyperbole"--Seaton v. TripAdvisor (Partial Forbes Cross-Post)

By Eric Goldman

[This is another situation where I'm posting the first draft of this post here and linking to the Forbes version, which reads a little differently. As always, I welcome feedback about which version you liked better.]

Seaton v. TripAdvisor, LLC, 3:11-cv-549 (E.D. Tenn. August 22, 2012)

TripAdvisor compiles its user ratings into an annual ranking of the top 10 "dirtiest hotels." Not surprisingly, hotels making the list don't feel very honored. The 2011 loser, the Grand Resort in Pigeon Forge, Tennessee, sued TripAdvisor for defamation and related claims. Concluding that the "dirtiest hotels" ranking constituted non-actionable opinion, the court dismissed the case on a 12(b)(6) motion to dismiss.

This opinion necessarily gets into the messy distinction between objective facts and subjective opinions. (James Grimmelmann recently explored this ground in some detail, although I wasn't completely satisfied with his treatment). The underlying user ratings clearly are the users' opinions; these ratings may be coupled with objective statements that could be actionable (the court gives an example where a user says the hotel's bathtub was caked with a half-inch of dirt). TripAdvisor then layers its own content onto the user ratings. For example, it said that 87% of its users recommended against staying there, another statement of fact.

But what about just the rankings themselves? I believe TripAdvisor made an objective statement that of its ranked hotels, Grand Resort had the lowest numerical score for cleanliness. Grand Hotel doesn't seem to be contesting TripAdvisor's numerical computations. It seems that Grand Hotel is contesting TripAdvisor's choice of the word "dirtiest," perhaps enhanced by the numerical ranking which lends a veneer of objective precision to the list. The court rejects this line of thinking, saying "neither the fact that Defendant numbers its opinions one through ten, nor that it supports its opinions with data, converts its opinions to objective statements of fact."

The court then says that reasonable consumers would not interpret these types of rankings as facts:

TripAdvisor’s list is of the genre of hyperbole that is omnipresent. From law schools to restaurants, from judges to hospitals, everything is ranked, graded, ordered and critiqued. Undoubtedly, some will accept the array of “Best” and “Worst” rankings as impenetrable maxims. Certainly, some attempt to obfuscate the distinction between fact and opinion as part of their course of business. For those that read “eat here,” “sleep there” or “go to this law school” and are unable to distinguish measured analysis of objective facts from sensational “carnival barking,” compliance will be both steadfast and assured. Nevertheless, the standard, fortunately, is what a “reasonable person” would believe. A reasonable person would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact. It does not appear to the Court that a reasonable person could believe that TripAdvisor’s article reflected anything more than the opinions of TripAdvisor’s millions of online users.

That's not to say that the judge is a fan of consumer reviews:

though TripAdvisor’s method of arriving at its conclusions, unverified online user reviews, is a poor evaluative metric, it is not a system sufficiently erroneous so as to be labeled ‘defamatory” under the legal meaning of the term.

Two general observations about this ruling:

1) This is a great ruling for user-generated content (UGC) sites that compile various rankings of user subjective views. So long as they make it clear that user opinions are the source material, it seems like UGC sites can go quite far in packaging user ratings and providing lists of top/bottom performers without fearing defamation liability for that distillation.

2) In particular, this ruling is a great complement to 47 USC 230, which otherwise immunizes websites for user content. In light of terrible language in the initial Ninth Circuit Roommates.com opinion, we feared that websites would shy away from gathering and providing structured data from users. Those fears partially ameliorated after the Ninth Circuit wiped away its initial ruling, but nevertheless, plaintiffs have continued to hammer websites for their characterizations of user content. This ruling bridges the gap: even if Section 230's immunity isn't available for a website's distillation of structured data provided by users, the website should still be able to avoid defamation liability because its compilation isn't a "fact."

Posted by Eric at 09:15 AM | Content Regulation , Derivative Liability | TrackBack

August 12, 2012

Using Links as Citations Helps Gizmodo Defeat a Defamation Claim--Redmond v. Gawker Media

By Eric Goldman

Redmond v. Gawker Media LLC, 2012 WL 3243507 (Cal. App. Ct. August 10, 2012)

Gizmodo.com published an article, Smoke & Mirrors: The Greatest Scam in Tech, about Redmond's venture, Peep Telephony. In addition to using the word "scam" in the title, the article had lots of denigrating things to say about Peep and about Redmond's prior initiatives. (The opinion lays out the beefs, although some of the hot spots are apparent from a quick review of the initial article). Gizmodo subsequently published Redmond's rebuttals. Later, Redmond apparently decided the rebuttal wasn't enough and asked Gizmodo to remove both articles, which Gizmodo declined to do. Redmond then sued Gizmodo's parent Gawker Media for defamation. The court dismisses the case on anti-SLAPP grounds, and that means Redmond will owe a check to Gawker for his lawsuit.

The court has no problem finding that Peep Telephony's activities were a matter of public interest, as Peep Telephony had received some high-profile coverage from technology reporters before Gizmodo's story, and Redmond apparently had been trying to stir up press coverage in advance of the 2011 CES conference. The court summarizes that the "Gizmodo article was a warning to a segment of the public—consumers and investors in the tech community—that Redmond‘s claims about his latest technology were not credible."

The court also says that Redmond's beefs relate to statements of opinion, not fact. The court notes that the word "scam" as not a factual assertion (a dicey outcome), the article was written in a "casual" and "sarcastic" first-person style ("the article‘s general tenor and language would give a reasonable reader the impression the authors were expressing subjective opinions, not reporting facts"), and the article used weasel words, such as "seems," "arguably," "looks like," etc., to qualify key fact-like assertions.

The most interesting part of the opinion is where the court talks about the article's "transparency." The court says (emphasis added):

The sources upon which the authors rely for their conclusions are specified, and the article incorporates active links to many of the original sources—mainly Web sites and promotional material created and maintained by Redmond and his ventures....Having ready access to the same facts as the authors, readers were put in a position to draw their own conclusions about Redmond and his ventures and technologies....Statements are generally considered to be nonactionable opinion when the facts supporting the opinion are disclosed.

This is true, of course, but a point often lost when defamation plaintiffs are breathing fire. A properly-cited article, filled with hyperlinks to original source materials, should be extra-resistant to defamation claims--even if written with typical blogger snark. Readers can easily inspect the source materials themselves and make their own judgments about the article's veracity. Thus, either the citations provide proper factual support for the article's opinion, or the links should eliminate any problems with the author's knowledge (where that matters to the prima facie defamation claim, which would have been the situation here). Either way, the defamation claim should fail, as it did here.

So this decision is a great ruling for bloggers. Unfortunately, it's unpublished (like far too many California appellate court opinions), which limits its precedential effect. To fix this, my RA and I are planning to request that the court publish it. Even if it remains unpublished, perhaps the ultimate takeaway--that defamation claims against well-cited blog posts will be quickly dismissed by anti-SLAPP laws and lead to the plaintiff paying money to the defense--will help dissuade similar lawsuits nonetheless. Especially in a situation like this, where the potential plaintiff already had gotten an on-the-spot rebuttal, suing over a blog post like Gizmodo's rarely makes sense.

Posted by Eric at 08:30 AM | Content Regulation | TrackBack

August 06, 2012

The Newest Olympic Sport: Evasion of Geolocation (Guest Blog Post)

By Guest Blogger Marketa Trimble

The Olympic Games can be credited for spreading awareness about and generating excitement for sports that might otherwise be unknown in various parts of the world. The global promotion of sports is one of the undeniable benefits of the Games, which are watched by millions on television and the internet all over the world. Normally it is the sports that are included in the Olympics that receive the amazing publicity and therefore the attention of viewers. However, this year the Olympic contribution might rise beyond the sports seen in London stadiums.

As an article in the Reuters U.S. edition suggested a few days ago (Olympics Fans Find Ways to Circumvent NBC’s Online Control, July 31, 2012), this year the Olympics coverage by the omnipresent NBC will contribute to the popularization in the U.S. of a sport that has not been included in the program of the Games, has not even been considered as an Olympic sport and, frankly, would probably not be accepted as a “sport” by most: evasion of geolocation.

Evasion of geolocation is primarily an expatriate sport – a sport for those who long for their home television programming and other content on the internet that can be accessed only from inside their home country. By misleading the geolocation tools that website operators have installed, expatriates travel virtually to an internet IP address in their home country to access their home television programs. Not that others don’t engage in the evasion of geolocation as well – political activists, dissidents, and others evade geolocation also; however, just as running and swimming are sports for some but life necessities for others, so too may evasion of geolocation be considered as “sport” only in certain contexts.

With its broadcasting approach to the Olympic Games, as described in the Reuters article, NBC has created unwilling virtual expatriates out of at least some U.S. Olympic fans who now have to travel virtually to appear as if they are located outside the U.S. Whether they want to watch “exotic” sports or sporting events in “real” real time, they have to find stations other than NBC to show it to them, particularly if they don’t subscribe to a cable or satellite television service. Alternative stations will be foreign stations, such as (perhaps) the BBC, and likely ones that also prevent access by internet users located outside the country or countries for which the stations hold licenses. And so U.S. sports fans are learning about ways to access foreign websites by evading geolocation and pretending to be in foreign countries.

Are the acts of users who evade geolocation and the acts of providers who supply evasion tools legal? It depends; I wrote over 90 pages explaining the intricacies of those questions in my article The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22 Fordham Intell. Prop. Media & Ent. L.J. 567 (2012) [prior blog coverage of the article]. As it could be for any questions about legality, these questions might be inconsequential if no one actually cares: unless there is a party who suffers damage, legality or illegality of acts might only be a matter for academic debate. So who cares? The BBC is gaining viewers, and with more viewers it might be able to charge more for advertising. (For a separate problem with pay-per-foreign-view, see my article.) NBC is losing viewers, which might not matter until the practice becomes widespread enough that advertisers begin to demand lower prices for advertising time on NBC. [Eric's note: if anything, NBC has fared better financially with this year's Olympics than it projected.] NBC’s inability to safeguard territorially limited access to third-party programs through sufficiently effective geolocation could lead to NBC’s losing licenses to programs in the future.

Those damaged by the new Olympic sport of geolocation evasion will be copyright holders who have licensed their content in a territorially limited manner. These might be music labels that have licensed music to advertising agencies for use only in the U.K. but now face the fact that U.S. users are enjoying the music in the U.S. without the labels’ consent. And, of course, no copyright holder will be unhappier about the new sport than the International Olympic Committee.

The practice of the evasion of geolocation, though it may not immediately damage IOC revenues, might in the long run necessitate a rethinking of IOC licensing strategies. Unless the legal status or technical aspects of evasion of geolocation change dramatically (meaning that it becomes illegal or technically too difficult), territorially limited licensing will be rendered ineffective, and the IOC – and, in fact, other copyright holders throughout the world – will have to create new licensing models or embark on new business models altogether.

Posted by Eric at 09:23 AM | Content Regulation , Copyright | TrackBack

July 31, 2012

Online Kevorkian’s First Amendment Challenge to Assisted Suicide Convictions Unsuccessful -– State v. Melchert-Dinkel

[Post by Venkat Balasubramani, with comments from Eric]

State v. Melchert-Dinkel, A11-0987 (Minn. Ct. App.; July 17, 2012)

The State of Minnesota prosecuted a Minnesota nurse for engaging in Internet conversations with people who were contemplating suicide. The individuals who committed suicide lived in England (Mark Drybrough, age 31) and Canada (Nadia Kajouji, age 19). (Melchert-Dinkel corresponded with others who allegedly committed suicide, but the prosecution focused on these two.) It’s a sick but interesting case that addresses the First Amendment issue of when the state can criminalize speech that encourages (or causes) others to kill themselves.

Victim 1 - Drybrough: Drybrough spent time on a website where users posted messages about “life, depression, and suicide.” Melchert-Dinkel corresponded with him, posing as “Li Dao, a 25-year-old female nurse in Minnesota.” Drybrough mused about methods of hanging one’s self, and Melchert-Dinkel responded as Li-Dao, offering advice on what would and wouldn't work. He also asked Drybrough about whether he had a timeline for when he would take the final step and purported to share his own suicidal thoughts and plans. The exchanges between Drybrough and Melchert-Dinkel are chilling and reproduced in detail in the court’s opinion. In one response, Drybrough indicated to Melchert-Dinkel that he was “not yet ready to die with ‘Li Dao.” Unfortunately, five days later, he hanged himself.

Victim 2 - Kajouji: Melchert-Dinkel found Kajouji on a message board where “users post messages describing various suicide methods.” In response to one of her posts, Melchert-Dinkel engaged in a long back-and-forth with Kajouji. This time he posted as “cami” and used the “falcon_girl_507@hotmail.com” email address. He portrayed himself as a 31 year old emergency room nurse who, “mirroring Kajouji, suffered from severe depression for many years, had undergone treatment, had not improved despite treatment, had decided to end 'her' life by suicide soon, and had considered the effectiveness of various methods of suicide.” Kajouji talked about a plan to stage a drowning accident, but Melchert-Dinkel advised that hanging was superior to drowning for a variety of reasons. He provided Kajouji with advice on the topic, and went so far as to say that he could counsel Kajouji on completing the task while watching along on a webcam. She ultimately drowned herself.

The two suicides occurred in 2005 and 2008, respectively. Tipped off (among other things) by someone who was concerned that a Minnesota resident was encouraging people to kill themselves, the authorities tracked down the posts and communications to Melchert-Dinkel’s computer. Initially he denied making the posts (blaming them on his daughters), but he eventually admitted he asked some 15-20 people to commit their suicide online so he could watch. He said he entered into some 10 mutual “suicide pacts,” although he never had any intentions of actually killing himself.

He was charged with two counts of “advising and encouraging” suicide in violation of a Minnesota statute. He waived his right to a jury trial. The trial court rejected his First Amendment challenge to the prosecution and found him guilty on both counts. On appeal, Melchert-Dinkel argued both that the statute was vague and overbroad, and also that as applied to him violated his First Amendment rights.

Overbreadth: The court says right out of the gate that Melchert-Dinkel’s speech is outside the bounds of protected speech because it’s speech that is “integral to harmful, proscribable conduct.” While suicide is not illegal under Minnesota law, Minnesota's prohibition on assisting suicide is deeply rooted. Assisted suicide was criminalized in 1886 in Minnesota, and this law has long-remained on the books. Melchert-Dinkel argued that while physically assisting suicide is one thing, actually encouraging someone to commit suicide should be treated differently. The court says that this is similar to the general prohibition against aiding and abetting someone else to commit a crime.

Turning to his overbreadth argument, the court says that the statute only prohibits a narrow category of speech and only restricts someone from “speak[ing] in a manner that purposefully urges or helps another person to kill herself.” It doesn’t touch political or social communication on this topic, such as advocating assisted suicide, promoting suicide acceptance, protesting against laws that oppose suicide, and increasing awareness of the “myriad issues that bear on suicidal ideations, suicide methods, or purported suicide benefits.” Given Melchert-Dinkel’s inability to come up with examples of First Amendment communications that fall under the statute, the court declined to employ the “strong medicine” of overbreadth.

Melchert-Dinkel did raise one overbreadth argument that merited the court’s attention: the proscription on “encouraging” others to commit suicide. The court says “encourage” may capture “supportive or agreeable” communications that the speaker does not necessarily intend to result in a suicide, but the court says that these may fall at the edges of the statute. At its core, the statute prohibits people who actively encourage others to commit suicide, intending for it to occur. Moreover, the statute also prohibits “advising and assisting” someone to kill themselves.

As applied challenge: Melchert-Dinkel’s as applied defense fares no better. The court makes its views clear when it introduces his argument:

[Melchert-Dinkel] contends that the First Amendment, which does not lift a finger to protect a charlatan who falsely advertises, or a slanderer who defames, or a perjurer who lies under oath, should be applied to protect him from mispresenting himself as a nurturing but suffering young nurse and intentionally prodding two suicidal, mentally ill strangers to hang themselves on camera in a phony suicide pact simply so that he could watch or take some sort of pleasure in their deaths.

The court says it is “confident that the Constitution does not immunize [his] morbid, predatory behavior simply because it appears in the form of written words.” Melchert-Dinkel also argued that his words do not satisfy the Brandenburg incitement test because nothing he said caused an “immediate” or imminent harmful response from the listener. The court says that his words did cause an imminent or immediate reaction, and also says that it’s not convinced that the reaction needs to be “immediate” under First Amendment law. Finally, he argued that his speech is protected because nothing he said actually caused the deaths of the individuals in question—they were already suicidal. The court says that the First Amendment does not require this sort of a causal link, but in any event, the evidence raises the inference of such a link.
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The result in the case may seem appropriately driven by the natural revulsion for Melchert-Dinkel's conduct, but this shouldn't necessarily drive the legal analysis. In this respect, the Lori Drew case is an obvious parallel, even though the statute used to prosecute Drew was clearly not intended for her conduct, and interpreting the statute in the manner urged by the government would have easily captured otherwise innocent actors.

Coming back to this case, the court’s First Amendment analysis feels clunky in certain parts. It seems circular to say that the speech is not protected because it’s integral to criminal conduct .. when the crime is the speech itself. The analogy to aiding and abetting also feels out of place, given that suicide is not a crime under Minnesota law. To the extent he aided and assisted the victims, he was not helping them do anything that was criminal under Minnesota law. (This feels like something out of a law school exam question.) A final point is that the Supreme Court has been increasingly protective of speech in many respects. I don’t know if any of the recent decisions bear directly on the First Amendment analysis in this case, but it was interesting to not see any mention of cases like US v. Alvarez (stolen valor, where the Court did lift a finger to protect a charlatan); the video game case (Brown v. Entertainment Merchants Association); and Snyder v. Phelps (Westboro). The court did discuss US v. Stevens (the dogfighting depiction case) but it seemed to ignore the Supreme Court’s rejection of a “free floating First Amendment test” where the value of speech is measured against its societal costs. ("As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.") In fact, this sort of weighing is exactly what the court ended up doing.

The final challenge is that I wasn't sold on the causation side--it's difficult to prove, but you don't get the sense that Melchert-Dinkel's online chats played the requisite causal role in the deaths of the victims. It's not as if he provided the means to take the final act where those means were not widely known or otherwise available (and his victims didn't necessarily seem to utilize his information anyway).

As a judge on this case, I would have struggled. I certainly see Eric's point below about Melchert-Dinkel providing a Kevorkian-like online counseling service, but the fact that he engaged directly with the victims was troubling. The fact that he engaged in subterfuge also makes him a tough First Amendment champion (but see US v. Alvarez). That said, what would have made this case much tougher is if Melchert-Dinkel had just published content that was generally available on methods of committing suicide and even generally encouraging individuals to commit suicide.
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Eric's Comments

It's easy to castigate Melchert-Dinkel. After all, he seemed to get perverse pleasure from steering people towards committing suicide, and his repeated requests that they webcast their deaths signal a sick voyeuristic interest in watching the event. However, after reading the opinion and the conversation transcripts, I also got a sense that Melchert-Dinkel viewed himself as providing a Dr. Kevorkian-like service. He wasn't only trying to maximize his own pleasure derived from other people's deaths, but he was trying to provide helpful information to people who were making literally the most important decision of their life: if and how they wanted to commit suicide. Obviously, as a society, we'd prefer it if Melchert-Dinkel deployed his energies to counsel people away from suicide--but from a free speech perspective, I wouldn't want to excise accurate and comprehensive information about if and how to commit suicide from the information ecosystem.

I can sort of rationalize the court's opinion by drawing the same distinction we make in legal circles about rendering legal advice. Publishing general information on legal topics to a mass audience isn't the practice of law; providing individualized counseling on legal topics in a one-to-one format typically is. The court implicitly drew this distinction, willing to uphold the conviction from a First Amendment challenge because of the one-to-one nature of Melchert-Dinkel's "counseling." Had his advice and guidance been less personalized, the court surely would have been more supportive of the underlying First Amendment interests.

Instead, I fear the court was so swayed by the unsavory aspects of Melchert-Dinkel's conduct (such as using fake personalities, making suicide pacts he never intended to keep, and his repeated requests for webcasting) that the opinion was insufficiently protective of the underlying and real First Amendment problems with Melchert-Dinkel's conviction. From my perspective, the statute is unquestionably too broad on its face, so at minimum the court should have limited the statute's application. Melchert-Dinkel's conduct and the suicides it contributed to are tragedies, but so is an opinion that doesn't respect the First Amendment.

Other coverage:

Volokh: Freedom of Speech No Defense for Urging A Particular Person to Commit Suicide (discussing the lower court opinion)

Related posts:

Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads (Forbes Cross-Post & More)
Banning Sex Offenders from Social Networking Sites is Unconstitutional--Doe v. Jindal
Posting Family Photos to Facebook With Snarky Comments Isn't Harassment of Family Member -- Olson v. LaBrie
Federal Prosecution Over "Threats" on Craigslist – US v. Stock
A Close Look at Missouri's "Amy Hestir Student Protection Act" (Guest Blog Post)
Virginia Appeals Court Affirms Conviction for Posting Threatening Rap Lyrics on MySpace -- Holcomb v. Virginia
Lori Drew Criminal Case Ends With a Whimper

Posted by Venkat at 01:42 PM | Content Regulation

Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads (Forbes Cross-Post & More)

By Eric Goldman

[I've added some bonus content to the end of this Forbes cross-post]

In 1996, Congress enacted a powerful statutory immunity for user-generated content, located at 47 U.S.C. 230 ("Section 230").  Section 230 says that websites aren't liable for third party content except in three specific situations: intellectual property, communications privacy and federal criminal prosecutions.  Over the past 16 years, courts have interpreted Section 230's immunity broadly, giving online providers a robust and predictable way to avoid liability for what their users say and do.  As a result, Section 230 has become the foundation for the entire user-generated content industry--and all of the social welfare that goes along with it.

Despite these enormous social benefits, not everyone loves Section 230.  With unfortunate frequency, state legislators consider enacting laws that conflict with Section 230's immunity.

Recently, the Washington state legislature enacted one such law in an overzealous effort to shut down online child prostitution.  Even worse, the statute indirectly provided a roadmap for other legislatures to enact other laws that could eviscerate Section 230.  Last week, in Backpage and Internet Archive v. McKenna, 2012 WL 3064543 (W.D. Wash. July 27, 2012), a federal judge rejected the Washington legislature's efforts, turning the case into a major victory for Section 230 and user-generated content.

Background 

As part of a nationwide effort to combat "sex trafficking" and online prostitution, various regulators have tried to shut down online classified ads for "escorts" and other adult services.  For many years, Craigslist was the leader for that kind of advertising, and in 2009 the Cook County (Illinois) Sheriff sued Craigslist for facilitating prostitution.  A federal judge quickly rejected that lawsuit based on Section 230 because the sheriff was trying to hold Craigslist liable for third party advertisements.  (Section 230 jurisprudence is clear that third party advertisements are just as protected by the immunity as other types of editorial content from third parties).

Despite that decisive ruling and the strong likelihood that Craigslist's activities were completely legal, attorneys generals from dozens of states kept hounding Craigslist for offering an "adult services" category.  Eventually, despite having won in court, Craigslist gave up and shut down its adult services category.

While that gave the various anti-prostitution regulators a seeming victory, Craigslist's exit from the industry didn't change the underlying marketplace demand or supply for prostitution.  As a result, the "escort" ads simply migrated elsewhere--largely to Backpage.com, affiliated with the Village Voice.  As the ads migrated, so did the regulators' attention, and Backpage soon experienced the same regulatory fire that had been directed at Craigslist.

In 2011, Backpage won a lawsuit brought by a child prostitution victim on Section 230 grounds. Combined with Craigslist's Section 230, it was clear that any regulator seeking to shut down prostitution ads on Backpage--or any other web publication--would have to overcome Section 230 somehow.

The Washington state legislature thought it found such a workaround.  Instead of holding Backpage liable for third party advertisements, SB 6251 imposes an age verification obligation on anyone that publishes online prostitution ads.  Websites are criminally liable if they "know" they are publishing prostitution ads that depict underage models, but the statute says the websites have a criminal level of "knowledge" unless they can provide documentary proof that the depicted model is an adult.  Thus, simply reviewing the ad and making a visual judgment of the model's age wouldn't satisfy the statute.  This way, the statute criminalizes the website's failure to do its verification and record-keeping obligations instead of holding the website liable for the third party advertisements.

The Court's Ruling

In a thorough and thoughtful 39-page ruling, the judge preliminarily enjoins Washington from enforcing the law.  (Previously, the judge had issued a temporary restraining order).

The judge said SB 6251 conflicts with Section 230 because (1) it imposes liability based on third party content, and (2) it gives websites a disincentive to monitor their website (in an effort to avoid the requisite "knowledge" that leads to criminal liability), something Congress was trying to encourage websites to do.  Thus, by basing liability on a website's "knowledge" regarding third party content, the statute easily sets up the conflict with Section 230.

Washington tried to argue that Section 230 doesn't preempt state criminal prosecutions.  While Section 230 expressly excludes federal prosecutions, the judge says it clearly immunizes websites from state criminal prosecutions based on third party content.  See also the uncited Voicenet v. Corbett.

The judge enjoined the law on two other grounds as well.  First, the judge says that the law probably violates the First Amendment, suggesting (among other reasons) that imposing a content pre-screening obligation on online publishers may cause too much self-censorship.  The judge also questions why the legislature couldn't pursue a less restrictive statutory option of holding the advertisers, rather than third party publishers, liable for the advertisements.

Second, the judge says the law probably violates the Dormant Commerce Clause, a Constitutional doctrine that says only Congress, and not the states, can regulate interstate commerce.  Personally, I think every state law purporting to regulate the Internet violates the Dormant Commerce Clause, but courts haven't reached that definitive conclusion yet.  Nevertheless, this judge comes close, saying "the Internet is likely a unique aspect of commerce that demands national treatment."  Thus, he correctly concludes that Washington's attempt to control Internet behavior in Washington would nevertheless cause Internet companies and users interacting wholly outside of Washington to change their behavior, something the Dormant Clause doesn't permit.

Implications

Perhaps we might consider age verification for prostitution ads an acceptable obligation in the abstract, but consider the implications. Other state legislatures could try to impose other types of verification and record-keeping obligations on user-generated content websites.  For example, statutes could obligate websites to verify users' identities or geographic locations before allowing the users to publish content, or a statute could require websites to undertake specific obligations (or impose a general obligation) to verify factual assertions in content submitted by users.  The statutes  could then further impute bad knowledge to the website if they don't satisfy their verification and record-keeping obligations.

Following this basic regulatory structure, statutes like these could undo Section 230's basic immunity structure.  They could make websites undertake costly and unwanted verification and record-keeping efforts, which could make it cost-prohibitive for user-generated content websites--especially new entrants to the market.  The statutes could slow down and chill user contributions to the discourse.  As I was quoted elsewhere in discussing this case, "imagine Twitter without real-time posting."  Finally, the statutes could allow government prosecutors and private plaintiffs to hold websites liable for user content for erroneous verifications, resulting in crippling liability exposure.  This ruling shuts down all of these potential statutory workarounds.

Unfortunately, a single federal district court ruling is hardly the last word on the topic (indeed, the Washington attorney general office's press release makes it clear they aren't finished with the matter).  First, Washington might choose to appeal the ruling, although the opinion is solidly constructed and should fare well in the Ninth Circuit.

Second, state legislators will keep passing laws that conflict with Section 230.  After all, state legislatures routinely and knowingly enact laws that obviously violate U.S. Supreme Court precedent, rationalizing that it's the legislators' job to pass laws and it's the judicial system's job to decide if those laws are constitutional.  However, I don't see an easy way for state legislatures to work around the First Amendment and Dormant Commerce Clause deficiencies identified in this opinion, even if they could somehow work around the Section 230 conflict.

Third, the anti-online prostitution forces could rally to try to amend Section 230.  Over the years, many special interest groups have talked about amending Section 230, but those efforts have rarely gone anywhere.  I'd be surprised if this issue could lead to succeed where the other issues haven't.  Amending Section 230 to address online prostitution would be a spectacularly bad idea for reasons I explained here.

For now, this opinion helps preserve the vitality of Section 230.  That's something to celebrate.

Bonus: In a separate move, three Washington teenagers recently sued Backpage for facilitating child sex trafficking. See the News Tribune story. I'm still looking for a copy of the complaint, but on the surface it sounds just like the M.A. suit against Backpage, and I don't see it being any more successful at getting around the 47 USC 230 immunity.

UPDATE: Here is the complaint. J.S. v. Village Voice Media Holdings, LLC (Wash. Superior Ct. complaint filed July 27, 2012).

Bonus #2: The case library:

* Backpage Reply Supporting Preliminary Injunction
* Internet Archive's Reply Supporting Preliminary Injunction
* Washington's Opposition to Preliminary Injunction
* Attorney General's Opposition to Preliminary Injunction
* Motion granting Internet Archive's intervention
* TRO ruling. Blog post.
* Backpage's TRO motion
* Complaint
* Washington SB 6251 bill page and bill text

Posted by Eric at 09:08 AM | Content Regulation , Derivative Liability , Marketing | TrackBack

July 25, 2012

Franchisor Isn't Liable Under the TCPA for Franchisees' Text Message Campaign – Thomas v. Taco Bell

[Post by Venkat Balasubramani with comments from Eric]

Thomas v. Taco Bell Corp., SACV 09-01097-CJC(ANx) (C.D. Cal.; June 25, 2012)

Thomas allegedly received unauthorized text messages as part of an advertising campaign for Taco Bell's Nachos BellGrande ("[a] large platter of crisp, freshly prepared tortilla chips covered with hearty beans, seasoned ground beef, warm nacho cheese sauce, diced ripe tomatoes, and reduced fat sour cream"--I'm sure they taste as glorious as they sound).

The text messages in question were organized by the “Taco Bell Local Owners Advertising” association, an Illinois entity comprised of 12 owners of Taco Bell stores in the Chicago area. The Association retained ESW Partners, an advertising agency, who then contracted with ipsh!net, who actually sent the messages. Taco Bell Corp., the national franchisor, had some influence over the Association’s activities through a seat on the Association’s Board of Directors, and control of the pursestrings (the funds that were used by the Association for advertising were controlled by a division of the national franchisor). While the Association was free to conduct its own separate advertising, where funds from Taco Bell (the franchisor) were used to pay for a campaign, approval from Taco Bell was required. In this case, a division of Taco Bell ended up paying for the advertising campaign.

She sued several different entities in the chain alleging violations of the TCPA, but amended the complaint to name only two defendants: Taco Bell (the national franchisor) and the Association. The Association was dismissed on jurisdictional grounds. Another defendant was dismissed earlier on jurisdictional grounds as well. The key question was whether Taco Bell (the franchisor) could be on the hook for any alleged TCPA violations.

The court says that the TCPA imposes liability on someone who actually “makes” a call that violates the statute. While Thomas argued that the TCPA also imposes liability on someone on whose behalf the call was made (i.e., any party that “receives benefit from the text message”) but the court says that the language and intent of the TCPA does not envision derivative liability on such a broad standard. In the absence of a specific basis of vicarious liability, traditional (agency) standards govern. A principal-agent relationship, the court says, “means more than passive permission; it involves request, instruction, or command.”

The court says that Thomas’s evidence falls short in this regard. Thomas did not present any evidence that Taco Bell (the franchisor)

directed or supervised the manner and means of the text message campaign conducted by the Association, and its two agents, ESW and ipsh!. She presented no evidence . . . that Taco Bell created or developed the text message. Nor did she present any evidence . . . that Taco Bell played any role in the decision to distribute the message by way of a blast text.

Thomas argued that the existence of a policy under which Taco Bell would pay for the Association’s advertising demonstrated that Taco Bell controlled the advertising, but the court says that approval of the campaign is different from control over “the manner of marketing”. Thomas also argued that the presence of a Taco Bell employee on the Association’s Board of Directors and the fact that the employee cast a vote to approve this campaign also reflected the requisite control. The court says this is insufficient to create the type of agency relationship required for derivative liability under the TCPA. Thomas tried to marshal some other evidence in support of agency liability, but the court says this is all anecdotal and doesn’t reflect Taco Bell’s control over the means of marketing.

__

This could be somewhat of a blockbuster ruling under the TCPA. The big TCPA case out of the Ninth Circuit didn’t rule on derivative liability but made it painfully easy to sue anyone who sent an unsolicited text. (See Satterfield v. Simon & Schuster.) Incidentally, ipsh!, the entity that sent the messages in this case, was also involved in Satterfield and was actually a defendant in that case, but the Ninth Circuit did not delve into the relationship between ipsh! and Simon & Schuster from the standpoint of legal liability.

In the context of unsolicited text messages, Satterfield has been a boon for plaintiffs, and they have taken full advantage of the resulting litigation bonanza. We've blogged a bunch about TCPA cases, but this post from Tom O'Toole talks about a hockey team being sued for sending text messages ... to its fans!

The big question this case raises is whether this is just an instance of a plaintiff not having the right defendant available on the other side of the v., or whether it somehow changes things as far as plaintiffs’ attempts to hold advertisers—rather than their marketing agencies—liable. I would think it’s more of the former. Here, the plaintiffs sued multiple entities and at one point amended the complaint to name only the parent entity and the association. I'm not 100% clear as to why the plaintiff did not name ipsh. (It's possible plaintiffs settled with ipsh or there's some other explanation, other than the obvious issue of personal jurisdiction, for why the franchisor and association ended up being the only defendants.)

Interestingly, plaintiffs have been stymied consistently in trying to smack defendants with affiliate liability in lawsuits under CAN-SPAM. (See the cases mentioned in this post.) Might we see a similar dynamic play out in future TCPA lawsuits? (See also Anderson v. Domino's Pizza, Inc., et al., for a similar result under state law in a text spam case brought in Washington.)

FWIW, I predict this one will be appealed.
_________

Eric's Comments

Even though Ipsh wasn't in the courtroom, the ruling throws Ipsh under the bus, saying that Ipsh pushed the button on the campaign and therefore would be the prime mover behind any TCPA violation. If the campaign violated the TCPA, Ipsh would have been legally liable--perhaps along with other defendants, but possibly as the only defendant left holding the bag. Ipsh can try to put into place an airtight indemnity agreement with its customers (though those are rarer than unicorns), but this ruling can't be a confidence-booster about the vitality of its text-messaging business line. I further wonder if this ruling will spook the marketing services companies providing email campaign outsourcing? They are governed by a different statute, but they too are the ones who "push the button."

Meanwhile, assuming the facts are true, I don't understand how this text-messaging campaign got greenlighted given the obvious legal risks. Sure, it would be great to reach texting young adults who have the munchies via their most precious device, but text-messaging campaigns are always fraught with legal peril. When you add in the Grande legal costs of defending the resulting lawsuits--and the plaintiff lawyers love these kinds of lawsuits--the per-text-message costs of reaching 17,000 consumers never had a chance of being profitable no matter what the conversion rate of such ads. Plus, this isn't Taco Bell's first ride at the text-messaging litigation rodeo.

To me, the message is clear: text-messaging ad campaigns are lawsuit bait. Until the law becomes clearer and more favorable, marketers should permanently retire text-messages from their marketing campaign toolkits.

Related posts:

Group Text Services Grapple with TCPA Class Actions
Ninth Circuit Revives TCPA Claim--Satterfield v. Simon & Schuster
Cellphone Spam Violates TCPA--Joffe v. Acacia Mortgage
Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent -- Ryabyshchuk v. Citibank
Court Rejects Constitutional Challenge to TCPA Based on Vagueness in "Prior Express Consent" Exception -- Kramer v. Autobytel, Inc.
Another Court Finds that TCPA Applies to Text Messages -- Lozano v. Twentieth Century Fox Film Corp.
Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense -- Abbas v. Selling Source, LLC
Confirmatory Opt-Out Text Message Doesn't Violate TCPA – Ibey v. Taco Bell

Posted by Venkat at 09:45 AM | Content Regulation , Derivative Liability , Marketing , Privacy/Security , Spam

July 08, 2012

H1 2012 Quick Links, Part 5 (Consumer Reviews, Content Regulation, Miscellaneous)

By Eric Goldman

[This is the last of the quick links for now. Hope you've enjoyed them!]

Consumer Reviews

* Deeply troubling development: Vacation rental companies are inserting non-disparagement clauses into their contracts to suppress negative online reviews.

* Ascentive, LLC v. Opinion Corp., 2012 WL 1569573 (E.D.N.Y. May 3, 2012). Ascentive voluntarily dismissed its lawsuits against PissedConsumer without prejudice. Prior blog post.

* The FTC busted Spokeo for running an unintentional credit reporting agency and for self-promoting using fake reviews. FTC blog post #1 and #2. NY Times coverage.

* Ruby v. Freedom USA: A business paid money to settle up with a disgruntled customer conditioned on the customer removing his gripes from the Internet. In this motion, the business seeks to force the content takedowns.

* Reddit initially populated its site with content posted by its founders under fake accounts.

* Washington Post: More questions about the integrity of TripAdvisor reviews.

Content Regulation

* State v. Schmitz, 2012 WL 2499948 (Ohio App. Ct. June 29, 2012):

Schmitz argues that his identity fraud conviction is based on insufficient evidence because everyone knew the MySpace page he created actually belonged to him and not Kalb. According to Schmitz, he never intended to hold himself out as Kalb. He only used Kalb's name as his “alter-ego.”… At trial, Schmitz admitted that he created the MySpace page and posted its entries. The MySpace exhibit the State introduced informs the reader on the top of the page that “[S]andy [K]alb has joined MySpace!” Farther down the page, the exhibit reads “sandy b nee elgar kalb's MySpace Blog.” Moreover, every posted message on the page ends with “Posted by sandy b nee elgar kalb,” “Posted by sandy kalb,” or “Posted by Sandy Kalb nee Elgar.” None of the entries identify Schmitz as the author. Although the individuals who testified at trial knew that Kalb was not responsible for the content of the MySpace page, they reached that conclusion because they knew Kalb and were aware of the situation between Kalb and Smith. It would be reasonable for any person reading the page without the benefit of that additional information to assume Kalb authored one or more of the posts on the MySpace page. Viewing the evidence in a light most favorable to the State, a rational trier of fact could have found that the State proved the elements of identity fraud. Schmitz' argument that his identity fraud conviction is based on insufficient evidence lacks merit.

Accord In re Rolando S.

* Summit Bank v. Rogers, 2012 WL 1925535 (Cal. App. Ct. May 29, 2012). Disparaging remarks on Craigslist about a bank are protected by CA’s anti-SLAPP law: “Public forum comment criticizing, or even periodically praising, the performance of public corporations have been found protected by the anti-SLAPP statute.” Along the way, the court invalidates a century-old criminal law against defaming a bank as unconstitutional. The court also indicates that some online venues may be harder to establish defamation:

because Rogers‘s alleged defamatory statements appeared in a section of the Craigslist Web site entitled “Rants and Raves,” the reader of the statements should be predisposed to view them with a certain amount of skepticism, and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts.

Accord: DiMeo v. Max and Finkel v. Dauber.

* Cincinnati Enquirer: Sarah Jones has been indicted for having sex with her underage student. Also, WLWT. The indictment.

Jones’ deposition in her lawsuit against TheDirty. Nevetheless, the appellate court rejected TheDirty's interlocutory appeal. Prior blog post.

* ABA Journal: $900k judgment in Internet defamation case.

* Yoder v. University of Louisville, 2012 WL 1078819 (W.D. Ky. March 30, 2012). The First Amendment doesn’t protect a nursing student who violated a promise not to share patient data by posting about a patient to MySpace. Prior blog post. Accord Tatro v. University of Minnesota.

* Simmons v. Danhauer & Associates LLC, 2012 WL 1237795 (4th Cir. April 13, 2012). Affirming the dismissal of a lawsuit over online auction irregularities, but expressly declining to rely on 47 USC 230. Prior blog post.

* Obsidian Finance Group, LLC v. Cox, 2012 WL 1065484 (D. Or. March 27, 2012): "defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the “media.” In addition, the uncontroverted evidence at trial was that after receiving a demand to stop posting what plaintiffs believed to be false and defamatory material on several websites, including allegations that Padrick had committed tax fraud, defendant offered “PR,” “search engine management,” and online reputation repair services to Obsidian Finance, for a price of $2,500 per month. Ex. 33. The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee. This feature, along with the absence of other media features, led me to conclude that defendant was not media."

* Mehrban v. Daneshrad, 2012 WL 1493875 (Cal. App. Ct. April 30, 2012): “Mehrban's claims relating to Daneshrad's statements on the internet, on her blog, on radio programs and similar public fora, expressing her views on the merits of collaborative law (and how her own dissolution would have benefited from such an approach), are the primary basis for his complaint. Those statements concern a matter of public interest [for anti-SLAPP purposes].”

* I.P. v. State, 2012 Ark. App. 273, (Ark. App. Ct. April 18, 2012). Student disciplined for making the following Facebook post: “F**k shooting up the school, i'm going in there with f**king SHURIKENS: and f**king KATANAS! And NINJA REFLEXES!”

* Nate Anderson of Ars Technica took a deep look at a child porn sting operation.

* Bradburn v. North Cent. Regional Library Dist., 2012 WL 1200448 (E.D. Wash. April 10, 2012): "NCRL's use of FortiGuard to filter its patrons' Internet access and its decision to not disable the filter upon an adult patron's request complies with the First Amendment."

* American Civil Liberties Union of Illinois v. Alvarez, 2012 WL 1592618 (7th Cir. May 8, 2012). Illinois statute restricting the recording of interactions with police is unconstitutional.

* The ACLU and Shurtleff settled litigation over Utah’s baby-CDA law.

* Sino Clean Energy Inc. v. Little, 2012 WL 1849658 (N.Y. Sup. Ct. May 21, 2012). Jurisdictional ruling in a battle over a pseudonymous Internet blogger (AlfredLittle) who allegedly bashed the plaintiffs’ stock while short-selling the stock.

Miscellaneous

* Newsweek, the Ruthless Overlords of Silicon Valley: "Though Silicon Valley’s newest billionaires may anoint themselves the saints of American capitalism, they’re beginning to resemble something else entirely: robber barons. Behind the hoodies and flip-flops lurk businesspeople as rapacious as the black-suited and top-hatted industrialists of the late-19th century. "

* Flint v Strava complaint: Biker's heirs sue UGC site over user-uploaded bike navigation courses. Doesn't 47 USC 230 preempt this claim?

* Direct Marketing Association v. Huber: Colorado's efforts to require online retailers to report sales to Colorado residents for tax collection purposes violates the dormant commerce clause.

* The Atlantic: A Note to Congress: The United Nations Isn't a Serious Threat to Internet Freedom—But You Are

* Larry Downes: Why CISPA Can’t Be Fixed. Prior blog post.

* Is there a difference in information retention when we read material electronically vs. on paper? As reported by Time, some social science suggests that electronic reading is less effective than reading on paper.

* Museum of Endangered Sounds.

* Profile of Mike Masnick.

* Some personal good news: earlier this year, the university promoted me from associate professor (with tenure) to full professor.

Posted by Eric at 10:12 AM | Content Regulation | TrackBack

July 07, 2012

H1 2012 Quick Links, Part 4 (Search Engines, eBay, Social Networking Sites)

By Eric Goldman

[Note: if you click on any of the Scribd links below and get a warning that you're accessing adult content, ignore that. In only the latest of Scribd's f-ups, it has deployed a massively overinclusive adult content classifier that thinks dry legal briefs in business-to-business disputes are adult content. I agree that they aren't material that kids would find interesting, but the big scary warning for (as just one example) an antitrust brief from the Ohio AG is absolutely ridiculous. I've asked Scribd to manually reclassify the documents as kid-safe, but not surprisingly given Scribd's track record, customer support isn't exactly their strong suit. The good news is that I largely moved away from using Scribd a few months ago, but I do have some backlogged legacy links I'm posting through these quick links.]

Search Engines

* Why I left Google: "The Google I was passionate about was a technology company that empowered its employees to innovate. The Google I left was an advertising company with a single corporate-mandated focus....It turns out that there was one place where the Google innovation machine faltered and that one place mattered a lot: competing with Facebook."

* Gizmodo: The Case Against Google.

* From a complaint: "GOOGLE, as the self-appointed curator of all the World’s knowledge, has usurped the 5th Estate."

* Search Engine Land: Rhode Island is getting a disproportionate share of Google's penalty in the illegal pharmaceuticals ads case. Partially related: WSJ: Did the DOJ apologize to Google for post-settlement statements about the illegal pharma ad situation?

* Facebook is cooking up a new search initiative.

* Perfect 10 v. Yandex NV, 2012 U.S. Dist. LEXIS 80661 (N.D. Cal. June 11, 2012). Perfect 10 gets jurisdictional discovery to see if it can establish personal jurisdiction over Yandex.

* Stebbins v. U.S., 2012 WL 1664155 (Fed. Cl. Ct. May 14, 2012). David Stebbins loses again, this time in his suit against the United States for not honoring his purported arbitration award against Google/Yahoo. Prior blog post.

* Getachew v. 7-Eleven, Inc., 2012 WL 872745 (D. Colo. March 14, 2012) and Getachew v. 7-Eleven, Inc., 2012 WL 872755 (D. Colo. January 30, 2012). One of those employment disputes where Google gets dragged in. Fortunately, Google was dismissed for failure of service of process.

* Trkulja v Yahoo, [2012] VSC 88 (Victoria Sup. Ct. March 15, 2012). Yahoo hit with a $225k (AU) damage award for publishing defamatory search results. Some background. The same outcome wouldn’t happen in the US due to 47 USC 230. See, e.g., Parker v. Google, Maughan v Google, and Murawski v Pataki.

* Australian Competition and Consumer Commission (ACCC) wins appeal against Google.

* WSJ: Facebook, Google to Stand Trial in India. The court order.

* Matt Cutts made a video about search quality raters. Prior blog post.

* SF Gate: Google's search anthropologist.

* Google commissioned papers by Eugene Volokh (search results are protected by the First Amendment) and Marvin Ammori (on remedies for search bias). My latest article on this topic.

* Filings in the myTriggers appeal:

- Amended Brief of Defendant and Counterclaim Plaintiff-Appellant My Triggers
- Reply Brief of Defendent and Counterclaim Plaintiff-Appellant My Triggers
- Brief of Plaintiff and Counterclaim Defendant-Appellee Google
- Amicus Brief of Ohio AG Supporting Defendant and Counterclaim Plaintiff-Appellant My Triggers

Prior blog post.

eBay

* Block v. eBay, Inc., 2012 WL 1601471 (N.D. Cal. May 7, 2012). eBay’s proxy bidding does not violate the eBay user agreement’s declarations that eBay isn’t involved in the transaction and isn’t the bidder’s agent. This has been appealed to the Ninth Circuit.

* Smith v. eBay Corp., 2012 WL 1951971 (N.D. Cal. May 29, 2012). Antitrust lawsuit against eBay for linking eBay and Paypal survives motion to strike.

* Custom LED, LLC v. eBay, Inc., 2012 WL 1909333 (N.D. Cal. May 24, 2012). Lawsuit over eBay’s featured item program survives motion to dismiss.

* Faboozi v. Stubhub, Inc. (ND Cal. Feb. 15, 2012). StubHub wins a case over various challenges to its ticket sales.

Social Networking Sites

* AdAge: How Content Is Really Shared: Close Friends, Not 'Influencers':

Our data show that online sharing, even at viral scale, takes place through many small groups, not via the single status post or tweet of a few influencers. While influential people may be able to reach a wide audience, their impact is short-lived. Content goes viral when it spreads beyond a particular sphere of influence and spreads across the social web via ordinarily people sharing with their friends.

At BuzzFeed, we looked at the 50 stories that had received the most Facebook traffic since mid-2007. A handful of these posts had millions of Facebook referrers, and even the smallest had nearly 100,000 Facebook views. But the median ratio of Facebook views to shares was merely 9-to-1.

This means that for every Facebook share, only nine people visited the story. Even the largest stories on Facebook are the product of lots of intimate sharing -- not one person sharing and hundreds of thousands of people clicking.

The median for Twitter was even lower, at 5-to-1. Reddit, which has traffic concentrated on its popular front page, had a median of only 36.

* Just how big of a threat is Pinterest to Twitter and Facebook? Big! AdWeek, MediaPost and Fortune.

* State v. Hall, 2012 WL 988606 (Ariz. App. Ct. March 22, 2012). A probationer is restricted from using "electronic bulletin board systems." He accesses Facebook and MySpace. The court holds that social networking sites are "electronic bulletin board systems" such that the probationer violated the terms of his probation. The consequence: he goes back to jail for 10 YEARS. Kashmir Hill’s coverage.

* Cohen v. NJ Parole Bd., 2012 WL 1601159 (D.N.J. May 7, 2012). Regarding restrictions imposed on a sexual offender probationer: “the restriction of access to social networking services on the Internet is limited in scope and appears to be geared to the nature of defendant's sex offender conviction. Thus, it does not appear to be unconstitutionally broad or vague, nor is it violative of plaintiff's First Amendment rights. A complete or total ban on any Internet access has not been imposed.”

* Maryland bans employers asking for Facebook passwords. SB433 and HB964.

* Wired took a deep look at Klout. I’m completely unimpressed with Klout. It seems to reward quantity equally with quality, and it is too dependent on recency.

Posted by Eric at 01:07 PM | Content Regulation , E-Commerce , Search Engines | TrackBack

July 06, 2012

Confirmatory Opt-Out Text Message Doesn't Violate TCPA – Ibey v. Taco Bell

[Post by Venkat Balasubramani]

Ibey v. Taco Bell Corp., 12 CV 0583 (HVG) (S.D. Cal.; June 18, 2012)

Plaintiff responded to an invitation to complete a survey about Taco Bell and “voluntarily sent a text message . . . to the number 93138.” In response to his text, he received instructions on how to complete the survey. He then changed his mind and sent a “STOP” message. In response to the STOP message, he received a confirmatory text message from Taco Bell acknowledging that he would receive no further messages.

He sued, alleging that the confirmatory message violated the TCPA. Taco Bell moved to dismiss or in the alternative for summary judgment. The court grants the motion to dismiss.

The court says that plaintiff “expressly consented” to contact by Taco Bell, and that

[Taco Bell’s] sending a single, confirmatory text message in response to an opt-out request from Plaintiff, who voluntarily provided his phone number by sending the initial text message, does not appear to demonstrate an invasion of privacy contemplated by Congress in enacting the TCPA.

In order to assert a claim under the TCPA, the plaintiff must also allege that the text was sent using equipment that had the capacity to generate random or sequential numbers. (See Satterfield.) The court says that plaintiff failed to make this allegation. In fact, the court says that if the facts are as they had been pled by plaintiff, Taco Bell would be entitled to summary judgment. Although the court grants plaintiff leave to amend, judging from the tone of the court's order, Ibey would be wise to drop his claims. (Ibey moved to reconsider the court's order, you can access his motion here.)

__

There has been at least one case going the other way – i.e., holding that even confirmatory opt-out messages can violate the TCPA. (See Ryabyshchuk v. Citibank.) This case is distinguishable from Ryabyshchuk on the basis that consent was not an issue here. Plaintiff admitted that he voluntarily texted Taco Bell in the first place. In any event, it’s nice to see this court come to the conclusion that should be glaringly obvious: a confirmatory opt-out message shouldn’t violate the TCPA or separately form the basis for liability.

This decision notwithstanding, companies should consider avoiding sending a confirmatory opt-out message to avoid the hassle of litigating these types of claims.

Related posts:

Group Text Services Grapple with TCPA Class Actions
Ninth Circuit Revives TCPA Claim--Satterfield v. Simon & Schuster
Cellphone Spam Violates TCPA--Joffe v. Acacia Mortgage
Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent -- Ryabyshchuk v. Citibank
Court Rejects Constitutional Challenge to TCPA Based on Vagueness in "Prior Express Consent" Exception -- Kramer v. Autobytel, Inc.
Another Court Finds that TCPA Applies to Text Messages -- Lozano v. Twentieth Century Fox Film Corp.
Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense -- Abbas v. Selling Source, LLC

Posted by Venkat at 12:16 PM | Content Regulation , E-Commerce , Marketing , Spam

The "I Didn't Understand Facebook's Privacy Settings" Argument Isn't Persuasive to Judges--Sumien v. CareFlite

By Eric Goldman

Sumien v. CareFlite, 2012 WL 2579525 (Tex. App. Ct. July 5, 2012). Appellate court docket.

Sumien and Roberts were CareFlite EMTs. Roberts posted on a third employee's Facebook wall how she wanted to slap a patient. Responding to pushback on that post, Roberts subsequently posted to her Facebook wall (presumably as a status update, although the court doesn't clarify that):

Yes, I DO get upset on some calls when my patient goes off in the house and I have to have a firefighter ride in with me because I fear for MY own safety. I think that is a valid excuse for wanting to use some sort of restraints. Just saying.

To which Sumien replied in a comment (thus readable to at least Roberts' friends):

"Yeah like a boot to the head.... Seriously yeah restraints or actual HELP from PD instead of the norm."

The opinion doesn't clarify exactly who was Facebook friends with each other, but at minimum Roberts and Haynes were friends, and Haynes was the sister of Calvert, CareFlite's compliance officer. The court says Haynes complained about the post. Haynes read Sumien's comment on Roberts' Facebook wall and then delivered Sumien's contents to Calvert. If Calvert and Roberts were friends (or if Roberts' wall was open to the public), Calvert also could have checked out Sumien's comments directly.

CareFlite subsequently fired both Roberts and Sumien. While Roberts' patient-slapping reference may have been troubling (it wasn't quoted in the court opinion), I don't see anything obviously problematic in Sumien's comment. The grammar makes it clear that the "boot to the head" reference was a joke (maybe not that funny, but I can see how it tried) and complaining about the workplace conditions seems like the kind of thing that the NLRB is hyper-sensitive about. I have to imagine there's a backstory to the employer's issues with Sumien. Otherwise, if this is the worst Sumien did, the employer apparently overreacted.

Sumien sued CareFlite for wrongful termination and privacy invasions. The lower court dismissed all of the claims. This ruling only addresses Sumien's appeal of his intrusion into seclusion claim (which appears to be the only issue Sumien appealed...?). The court efficiently rejected all of Sumien's arguments.

Sumien tried two arguments (his privacy interest in discussing patient issues outweighs public interest in disclosure; he can't be fired for discussing workplace issues online) that the court says are irrelevant to the intrusion into seclusion claim. Then, Sumien tries a last-ditch "I'm clueless about Facebook" argument:

Sumien contends that CareFlite intruded upon his seclusion because he did not realize that Roberts’s Facebook “friends” could view the comment that he posted on Roberts’s “wall.”

The court doesn't care, saying Sumien

did not present any evidence to show that his misunderstanding meant that CareFlite intentionally intruded upon his seclusion

Intrusion into seclusion claims are often weak, and it was a poor fit for this situation. The ruling reminded me a little of the court's rejection of Moreno's privacy claim in Moreno v. Hanford Sentinel, where Moreno posted a screed to her low-visibility MySpace page that had unrestricted public access, to which the court said that she had no privacy interest in that effectively public venue.

There are several lessons to reiterate here:

1) Not all communication platforms are equally appropriate for every discussion. If you don't understand how the communication platform works, don't use it for anything you don't want the world to know! Instead, stick to DMs or email, and recognize that even then "private" messages have a knack of leaking out to the wrong people.

2) In particular, commenting on someone else's Facebook status report is not a private communication to that person. That should be obvious to even casual Facebook users, but apparently Sumien didn't get it.

3) People in the healthcare industry (broadly conceived) should be especially careful about discussing patient-related matters in any online venue. We've seen problems with online discussions by people in the healthcare industry literally from cradle (Yoder, Byrnes) to grave (Tatro).

Related posts:

* Accessing an Employee's Facebook Posts by "Shoulder Surfing" a Coworker's Page States Privacy Claim -- Ehling v. Monmouth Ocean Hosp.
* Facebook "Likes" Aren't Speech Protected By the First Amendment–Bland v. Roberts
* Facebook Posts Complaining About Supervisor Conduct do Not Support Retaliation Claim – DeBord v. Mercy Health System
* Employee Wins Harassment Claim Based in Part on Co-Workers' Offsite Blog Posts
* Overreactive Guidance for Social Networking Du Jour -- NLRB Edition
* Private Employers and Employee Facebook Gaffes [Revisited] and the prior post Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?
* School District Didn't Violate First Amendment for Reassigning Teacher Who Blogged--Richerson v. Beckon
* Employee Blogging Risks

Posted by Eric at 11:03 AM | Content Regulation , Privacy/Security , Publicity/Privacy Rights | TrackBack

June 30, 2012

New Jersey Appeals Court Reverses Anti-Harassment Order Based on Emails – E.L. v. R.L.M

[Post by Venkat Balasubramani]

E.L. v. R.L.M, 2012 N.J. SUPER. UNPUB. LEXIS 1199 (N.J. Ct. App.; May 30, 2012)

E.L. and R.L.M. divorced, but they had children together. E.L. had custody of the children but R.L.M. had liberal visitation. Prior to their divorce, the parties communicated “extensively” via email—in the year prior to the divorce, R.L.M. sent E.L. 812 emails. E.L. did not complain about the content of the emails, but had qualms about the quantity. (The parties actually sought the help of a counselor to impose limits on the number of email communications that could be exchanged between them.) Things came to a head when R.L.M. planned on taking the children to Canada, and E.L. allegedly didn’t take care of getting the kids’ passports in order. This resulted in about 20 phone calls from R.L.M. and three emails.

Based on these emails E.L. obtained an anti-harassment order. E.L. also put forth some evidence of domestic violence, but without in any away minimizing the effect of domestic violence, these incidents seemed relatively tame (throwing a comforter down the stairs, throwing mail in E.L.’s car, closing a garage door on E.L.’s car when she tried to leave). Apart from one allegation that R.L.M. “grabbed E.L.’s arm,” there was nothing in the opinion that described incidents of actual violence or a threat of violence. As expected, there was bad blood all around, and R.L.M. also testified that E.L. had engaged in acts of domestic violence against him.

One subsection of New Jersey’s harassment statute says that harassment can be found if a person

Makes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or inoffensively coarse language, or any other manner likely to cause annoyance of harm.

The statute setting forth when restraining orders are appropriate requires a predicate act, along with the evaluation by the court of various factors ranging from the risk of damage to persons or property, the interests of the victim of the child, and the parenting situation. Although it's unclear, harassment by sending communications can fulfill this predicate act requirement. The trial court found that R.L.M.’s “bombardment” of E.L. with emails was done with the purpose to cause annoyance or harm and therefore constituted harassment (i.e., this was the predicate act).

The appeals court looks at the whether the emails fit the statute and determines that the emails did not contain any “coarse language” (whatever this means). Nor were the communications anonymous. Thus in order to fall within the statute, the emails had to be sent in a manner that is likely to cause annoyance or harm. The court says that since the emails related to the parenting arrangement between the parties, they were not sent with a purpose to cause annoyance or harm. The court finds:

[E.L.’s] stated reaction . . . a subjective one, no doubt arising as a residual effect of the prior marital discord that led to the divorce in the first place.

The court also notes that the fact that although the statute references communications made at inconvenient times, this wouldn’t apply to emails (and presumably other electronic communications) given that opening an email is “optional with the receiver.”

__

We've blogged a bunch about threats allegedly perpetrated online. Those cases all raise the issue of whether the communication was one-to-one, or made to the general public. Email harassment is different in that it's a one-to-one form of communication (it's worth noting that the statute here isn't restricted to these types of communications). Although emails are one-to-one communications, as the opinion notes, phone calls are different from emails. Emails can be accessed at a time and place of the recipient's choosing. Obviously, the recipient can also just hit the delete button. Nevertheless, it's a somewhat open question as to whether repeatedly emailing someone can support a finding of harassment. (See this post from Eugene Volokh and the draft paper linked in the post for a discussion of the issues: "One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyber-Stalking.” For the most part, restrictions on these types of (one-to-one) communications are thought to be OK at some point, but the statutes should be carefully drafted to avoid vagueness and overbreadth problems. For a case dealing with the use of offensive and annoying communications in an instant message conversation check out this post: "Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages -- In re Alex C.")

Assuming statutes can regulate 'email harassment,' the statute here still seems problematic, among other reasons because it covers speech that is "likely to cause annoyance," without any requirement that the sender intend to cause annoyance or the recipient reasonably perceive an annoyance. (As an overall matter, premising liability on "annoyance" also seems problematic.) The statute also seems to say that anonymous communications can somehow be harassing. I'm not sure what the legislature intended when it included language to this effect in the statute, but anonymity alone shouldn't be enough to put a communication into the harassment bucket.

The court here avoids all of these issues, simply finding that the emails in question were not intended to be annoying and would not reasonably be perceived as annoying. But the fact that the lower court issued the restraining order illustrates the possible reach of the statute and how it can be used to clamp down on otherwise inoffensive interpersonal communications.

Related posts:

Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat" -- US v. Jeffries
Federal Prosecution Over "Threats" on Craigslist – US v. Stock
Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages -- In re Alex C.
Former Employee's 'Email Barrage' Does Not Support CAN-SPAM or Computer Fraud and Abuse Act Claims -- Nyack Hosp. v. Moran
Web-based Email Bombardment Campaign Does Not Amount to a Violation of the Computer Fraud and Abuse Act -- Pulte Homes, Inc. v. LiUNA

Posted by Venkat at 02:31 PM | Content Regulation

June 26, 2012

Will the Floodgates Open Up for Americans with Disabilities Act (ADA) Claims Against Websites?--National Association of the Deaf v. Netflix

By Eric Goldman

National Association of the Deaf v. Netflix, Inc., 3:11-cv-30168-MAP (D. Mass. June 19, 2012)

This is a bad ruling. Really terrible. It's the kind of results-oriented judicial activism that undermines the public's trust in the judiciary. The judge made it clear he was going to rule for the plaintiff, no matter what. But in doing so, he has potentially ripped open a huge hole in Internet law. Hey jobless recent law school grads--if this ruling sticks, there may be buckets of money to be made in ADA litigation against Internet companies.

The case involves a Cyberlaw perennial: are websites obligated to comply with the Americans with Disabilities Act (the ADA)? In this case, the desired accommodation is close-captioning for Netflix-streamed video. If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I'm not creative enough to think of all the implications, but I can assure you that ADA plaintiffs' lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.

And then there's linkages with other civil rights statutes, such as Title II of the Civil Rights Act of 1964 (an anti-discrimination law) and state laws, that use similar language as the language interpreted in this ruling. If all of those statutes are back in play too, the range of obligations imposed on websites--and the opportunities for aggressive plaintiffs' lawyers--expand exponentially. Expect lots of consumer claims that a website discriminated against them based on an impermissible criterion. It's safe to say that the legal rules at issue in this case could have billions of dollars of impact between the web coding obligations and the potential litigation frenzies.

The most crucial ruling is where the court says that a website qualifies as a "place of public accommodation." The court deviated from--and, incredibly, didn't cite to--a nearly unbroken line of precedent rejecting that conclusion. I don't have a complete roster of cases in this area, but cases that came to mind include Noah v. AOL (a Title II case), Access Now v. Southwest Airlines (an 11th Circuit case), Stern v. Sony, Young v. Facebook and Ouellette v. Viacom. The only plaintiff win in this area is the offbeat National Federation of the Blind v. Target case (which this court did cite), where the court held that Target's obligations to comply with the ADA in its offline retail stores extended to its website. Because of its fact-specific nature, the Target ruling really hasn't had much of an impact on Internet litigation over the past 6 years.

Bypassing all of this precedent, the judge instead relies almost exclusively on the heavily-criticized First Circuit Carparts decision from 1994. The NAD made a crafty venue move suing in a court bound by Carparts. Even so, I wonder how this ruling would fare on appeal to the First Circuit (if Netflix goes that route), and I wonder if judges in other circuits will be persuaded by this judge's ruling.

Netflix also argued that it lacked the copyright permissions to close-caption the copyrighted works of others. This is no joke; recall, for example, the howls over Amazon's text-to-speech feature in the Kindle. The court says it wants discovery on that issue.

Finally, Netflix argued that the Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA") and associated FCC regulations. preempted the ADA's application to Netflix's service. I don't know anything about the CVAA, but it's clearly topical to the issue of close-captioning online video. The court says that Netflix (and presumably other sites covered by the CVAA) gets the pleasure of complying with both the ADA and the CVAA. Yay for duplicative and overlapping regulations!

It's possible that Netflix will win this case in the end (probably not in front of this judge). Until it does, however, we have a clean (if erroneous) ruling that websites are places of public accommodation that are subject to the ADA. I have to imagine plaintiffs will find that pretty exciting.

More from Overlawyered and Wendy Davis.

UPDATE: I got a LOT of criticism for this post. Part of that is because I didn't try in the post to explain the policy rationales underlying my views. Fortunately, Julian Sanchez has said some of the things I was thinking, so I encourage you to read his post as well.

Posted by Eric at 10:28 AM | Content Regulation | TrackBack

June 24, 2012

Mortuary Student Can Be Disciplined for Facebook Posts--Tatro v. University of Minnesota

By Eric Goldman

Tatro v. University of Minnesota, 2012 WL 2328002 (Minn. June 20, 2012). My prior blog post on the appellate court ruling in this case.

This is one of the many lawsuits over a school disciplining a student for the student's social media posts. The two main twists are (1) the student was attending a university, not a K-12 school, and (2) the student was in the mortuary sciences program, where the subject matter of their studies (i.e., cadavers) means students may be held to higher professional expectations than your average college kid. Another key fact: Tatro already graduated in 2011, so the range of available remedies had shrunk by the time this case reached the Minnesota Supreme Court.

Based partly on both parties' agreement that “a university may regulate student speech on Facebook that violates established professional conduct standards,” the Minnesota Supreme Court held:

the University did not violate the free speech rights of Tatro by imposing sanctions for her Facebook posts that violated academic program rules where the academic program rules were narrowly tailored and directly related to established professional conduct standards.

Later, the court stresses:

Our decision is based on the specific circumstances of this case--a professional program that operates under established professional conduct standards, a program that gives students access to donated human cadavers and requires a high degree of sensitivity, written academic program rules requiring the respectful treatment of human cadavers, and measured discipline that was not arbitrary or a pretext for punishing the student's protected views.

As this narrow fact-specific holding demonstrates, the Supreme Court avoided any broad pronouncements about the legitimacy of schools regulating students’ social media posts. Consider the list of topics the court didn’t address:

* the applicability of the Tinker standard. The court said it didn’t apply because the school wasn't motivated by concerns about Tatro’s posts causing on-campus disruption.
* whether social networking activity is "on" or "off" campus (or if it matters)
* if free speech rules developed in K-12 cases equally apply to the college setting
* if Facebook posts are "public" or "private"? The court apparently assumes Tatro’s posts to her “open” Facebook account were public. The court says "the University is not sanctioning Tatro for a private conversation, but for Facebook posts that could be viewed by thousands of Facebook users and for sharing the Facebook posts with the news media." Compare Moreno v. Hanford Sentinel. It leaves open if the posts would have been “public” or “published” if her posts had been open only to her friends, and how many friends she could have and still treat her posts as private.

It seems the court was about as excited to address these cutting-edge issues as I am to blog such a milquetoast opinion. It might also have had something to do with the fact that FOUR of the Supreme Court judges recused themselves, presumably because they had ties to the University of Minnesota.

At most, this case tells us that students in professional degree programs--the Yoder and Byrnes cases involving nursing also come to mind--may be subject to greater speech restrictions online. This doesn't tell us much we didn’t already know. For example, of course law students exposed to client confidences cannot blog or tweet about those, and those that do should be subject to school discipline (and potentially state bar discipline) for doing so.

In this case, the court says "dignity and respect for the human cadaver constitutes an established professional conduct standard for mortuary science professionals." This reflects the unique context of mortuary studies, where cadaver donations could dry up if donors question the post-mortem respect afforded to the cadavers. Even without reference to that definition, I thought Tatro’s posts went one step too far and the university's discipline, while harsh, didn't overrespond--unlike a lot of the cases involving junior high or high school principals, who seems to regularly mete out punishment clearly disproportionate to the violation.

Other Coverage

* Pioneer Press
* FIRE

Related Posts

* Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board
* Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech--TV v. Smith-Green
* Mortuary Sciences College Student Disciplined for Threatening Facebook Posts--Tatro v. University of Minnesota
* Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation--Doninger v. Niehoff
* Nursing School Can't Expel Students for Posting Photo to Facebook--Byrnes v. Johnson County CC
* Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction -- State v. Drahota
* Private Facebook Group's Conversations Aren't Defamatory--Finkel v. Dauber
* Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
* Private High School Not Liable for Cyberbullying--DC v. Harvard-Westlake
* Nursing Student's Blog Post Doesn't Support Expulsion--Yoder v. University of Louisville
* Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber
* Court Upholds Student Suspension For YouTube Video of Teacher
* Teenager Busted for Creating Fake "News" Story

Posted by Eric at 10:11 AM | Content Regulation , Privacy/Security | TrackBack

June 23, 2012

Another Failed Effort to Remove a Ripoff Report Posting--Karnaby v. Mckenzie

By Eric Goldman

Karnaby v. Mckenzie, 2012 WL 2149457 (Conn. Super. Ct. May 10, 2012)

Fadi Sabastian Karnaby sued Mckenzie, a pseudonym, for allegedly false postings to Ripoff Report and other sites. The Ripoff Report posting in question. For reasons that aren't clear, Karnaby apparently didn't seek discovery for the identity of Mckenzie from the various review websites. Instead, Karnaby got permission to "serve" the complaint against Mckenzie by posting the case details in the Ripoff Report rebuttal box (see comment #2 in the prior URL). When Mckenzie no-showed in response to this so-called "notice" (surprise, surprise), Karnaby sought a default judgment.

Karnaby's request puts the judge in a pickle. If Karnaby hasn't definitively identified Mckenzie, then how will anyone know that the person uniquely associated with "Mckenzie" violated the injunction? To me, this highlights the weakness of "serving" Mckenzie via a Ripoff Report rebuttal; that gives us zero comfort that Mckenzie got actual notice of the suit. Contrast Fortunato v. Chase Bank. For all we know, Mckenzie did a dump-n-run at Ripoff Report and provided a bogus or never-checked email address to Ripoff Report, ensuring that no notification would ever reach him/her. Contrast that with, say, service via Facebook, where it's much more likely that users are checking in regularly, and it may even be possible to check the person's Facebook account to see if they've continued to use the account after notice was sent via Facebook.

Instead of monkeying with the injunction request, the judge really should have blown the whistle on the service issue. That leads to the next curiosity, which is why Karnaby hasn't more aggressively pursued Mckenzie's unmasking? Overall, it looks like Karnaby tried to cut some corners and pushed the system too far.

The judge also expresses concern about Karnaby's specific injunctive requests, saying that the requested injunction was too broad and overly restricts future speech. Finally, the judge refuses Karnaby's request that Mckenzie be required to take down the posted content, saying that the court can't monitor the execution of that request in addition to the other deficiencies.

Of course, even if the court issued the injunction, Karnaby's plan for removing the Ripoff Report posting isn't entirely clear given Ripoff Report's well-known no-takedown policy. Mckenzie doesn't have the legal rights to remove the report him/herself any more, and the court can't force the Ripoff Report as a non-litigant to remove the posts either. See the Blockowicz and Giordano cases. So I'm scratching my head wondering how Karnaby planned to get around Blockowicz/Giordano. Or, if there was no plan, then what was the point of seeking the injunction in the first place?

One possibility is that Karnaby hoped that the search engines would deindex the post based on the default judgment. I discuss that tactic here. Alternatively, Karnaby might have saved some time and money by taking advantage of Ripoff Report's VIP arbitration program. Even though it may be anathema to pay money to Ripoff Report to ameliorate a review in its own database, at least it would have been cheaper than running to court.

Meanwhile, I'm always a little intrigued when a plaintiff can't get its requests in a default judgment. As we've recently noted, judges seem so willing to accommodate plaintiffs in a default judgment (e.g., 1, 2) that it's shocking when a judge seriously pushes back. Sometimes that's a tipoff that, even without any adversarial proceedings, the plaintiff or his/her lawyers found a way to cheese off the judge (see, e.g., Nexon v. Kumar).

Posted by Eric at 08:51 AM | Content Regulation , Evidence/Discovery | TrackBack

June 06, 2012

Backpage Gets TRO Against Washington Law Attempting to Bypass Section 230--Backpage v. McKenna

By Eric Goldman

Backpage.com, LLC v. McKenna, 2:12-cv-00954-RSM (W.D. Wash. June 5, 2012). The complaint. Backpage's TRO motion.

As part of states' ongoing crusade against online prostitution ads, earlier this year Washington enacted SB 6251, captioned "Regulating advertising of commercial sexual abuse of a minor." The bill page. The actual bill.

The law has two main provisions. First, it defines a new crime of "advertising commercial sexual abuse of a minor," which occurs when a person "knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in the state of Washington and that includes the depiction of a minor." Second, the defendant can't claim ignorance of the depicted individual's age as a defense, but it sets up a safe harbor when the defendant "made a reasonable bona fide attempt to ascertain the true age of the minor depicted in the advertisement by requiring, prior to publication, dissemination, or display of the advertisement, production of a driver's license, marriage license, birth certificate, or other governmental or educational identification card or paper of the minor depicted in the advertisement." Thus, the law both targets the publication of prostitution ads and imposes a de facto age verification and record-keeping requirement for publications running such ads.

Although the statutory language doesn't say so explicitly, the law was intended to attack Backpage for not doing enough to screen out prostitution ads. Thus, the law seeks to bypass Backpage's obvious Section 230 immunity for the ads submitted by its users.

In response, Backpage sued the state to prevent enforcement of the law, scheduled to take effect this coming Thursday. It appears the state didn't contest the TRO request. Yesterday, the court granted Backpage's TRO in a short and mostly non-substantive ruling. The court wrote:

Backpage.com has shown a likelihood of success on the merits of its claim, pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, as well irreparable harm, the balance of equities tipping strongly in its favor, and injury to the public interest, justifying injunctive relief.

Getting an uncontested TRO may have been Backpage's easiest step. It will be interesting to see if this criminal statute has enough existing circumscriptions (such as its scienter pseudo-requirement) to survive the constitutional and federal preemption challenges, or if the court imposes some limitations into the statute to exclude intermediaries like Backpage, or if the court will just toss the legislation altogether (as I've argued before regarding all state-level attempts to regulate the Internet). The court scheduled the next hearing for June 15. Obviously this litigation will be worth watching.

Related blog posts:

* Backpage Gets 47 USC 230 Defense for Prostitution Ads--M.A. v. Village Voice
* Craigslist Isn't Liable for Erotic Services Ads--Dart v. Craigslist
* Cook County Sheriff Sues Craigslist for Erotic Services Category
* Craigslist Gets Seventh Circuit 230 Win in Fair Housing Act Case--Chicago Lawyers' Committee v. Craigslist
* Craigslist Wins 230 Defense in Fair Housing Case--Chicago Lawyers' Committee for Civil Rights under the Law v. Craigslist
* Craigslist Sued for Fair Housing Act Violation--Chicago Lawyers Committee v. Craigslist

Posted by Eric at 08:20 AM | Content Regulation , Derivative Liability , Marketing | TrackBack

June 05, 2012

Satirical Anti-Birther Blog Post Protected by DC's Anti-SLAPP Law--Farah v. Esquire

By Eric Goldman

Farah v. Esquire Magazine, Inc., 2012 WL 1970897 (D.D.C. June 4, 2012). TPM coverage.

Joseph Farah is CEO/editor of WorldNetDaily, and Jerome Corsi is a senior staff reporter there. WorldNetDaily has published hundreds of stories on Birther issues. Corsi wrote a book, “Where's the Birth Certificate? The Case That Barack Obama Is Not Eligible To Be President,” published May 17, 2011. The book publication was accompanied by a major publicity push. (Un?)fortunately for Corsi, Pres. Obama released his long-form Hawaiian birth certificate on April 27, 2011, which was supposed to end the Birther controversy. Needless to say, it didn't have that effect. Instead, the hype machine cranked up even higher, and WorldNetDaily published dozens of articles on Birther issues and Corsi's book prior to the book's release. The Birther hype allegedly caused Corsi's book to go to the "#1" position on Amazon.

On May 18, 2011, the day after the release of Corsi's book, Mark Warren posted a blog post to Esquire.com's Politics Blog under the tag "humor." The blog post was entitled "BREAKING: Jerome Corsi's Birther Book Pulled From Shelves!," showed the cover of Corsi's book, and said:

In a stunning development one day after the release of Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to be President, by Dr. Jerome Corsi, World Net Daily Editor and Chief Executive Officer Joseph Farah has announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as announcing an order to refund the purchase price to anyone who has already bought either a hard copy or electronic download of the book.

In an exclusive interview, a reflective Farah, who wrote the book’s forward and also published Corsi’s earlier best-selling work, Unfit for Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, JFK, and the Great “Moon Landing” Cover-Up, said that after much serious reflection, he could not go forward with the project. “I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies,” he said this morning. “I cannot in good conscience publish it and expect anyone to believe it.”

When asked if he had any plans to publish a corrected version of the book, he said cryptically, “There is no book.” Farah declined to comment on his discussions of the matter with Corsi.

A source at WND, who requested that his name be withheld, said that Farah was “rip-shit” when, on April 27, President Obama took the extraordinary step of personally releasing his “long-form” birth certificate, thus resolving the matter of Obama’s legitimacy for “anybody with a brain.”

“He called up Corsi and really tore him a new one,” says the source. “I mean, we’ll do anything to hurt Obama, and erase his memory, but we don’t want to look like f___ing idiots, you know? Look, at the end of the day, bullshit is bullshit.”

Corsi, who graduated from Harvard and is a professional journalist, could not be reached for comment.

A law professor isn't the best expert to parse humor, but I must confess that I find the humor in the post subtle at best. Reading the post cold, I didn't see anything unbelievable about the post until the fourth paragraph and the "rip-shit" reference (I've heard--and occasionally said--phrases that would make a sailor blush, but "rip-shit" was a new one for me). The reference to erasing Obama's memory also seemed a little over-the-top, and it seemed unlikely that the Birther crowd would make self-denigrating comments ("anyone with a brain" and "bullshit is bullshit") given the general lack of self-awareness I've seen from that community. Otherwise, the quotes put into the mouths of real people are plausible, and the overall journalistic style of the post is designed to enhance credibility with readers.

Even the "humor" tag is ambiguous. After all, the post could be laughing at true developments in the Birther Movement. There would be something funny about tearing up a Birther book because the President scooped the book, even if that were 100% true. Part of the problem is that the Birthers are a little self-parodic; their positions are so extreme and not credbile that it's almost impossible to take anything they do seriously. Thus, when the truth is so mockable, parodying it is really, really hard.

More generally, this blog post reminds me why I HATE April Fools Day posts by bloggers. I explain my position here. If anything, over the past 4 years, it has gotten virtually impossible to come up with factual statements that almost believable but nevertheless too outrageous to be true. If you're looking for a paper topic, you should research the April Fools Day blog posts from a few years and see how many of those purported jokes actually have been realized.

At best, then, Warren wrote a poorly executed joke blog post. In less than 90 minutes, realizing that not everyone was getting the joke, Esquire appended the following:

UPDATE, 12:25 p.m., for those who didn’t figure it out yet, and the many on Twitter for whom it took a while: We committed satire this morning to point out the problems with selling and marketing a book that has had its core premise and reason to exist gutted by the news cycle, several weeks in advance of publication. Are its author and publisher chastened? Well, no. They double down, and accuse the President of the United States of perpetrating a fraud on the world by having released a forged birth certificate. Not because this claim is in any way based on reality, but to hold their terribly gullible audience captive to their lies, and to sell books. This is despicable, and deserves only ridicule. That’s why we committed satire in the matter of the Corsi book. Hell, even the president has a sense of humor about it all. Some more serious reporting from us on this whole “birther” phenomenon here, here, and here.

Good satires don't need a post-publication correction, but nevertheless the quick correction should have ended the matter--no harm, no foul. Not so with Farah and Corsi. Off to federal court they went, seeking "more than $100 million in actual and compensatory damages and more than $20 million in punitive damages."

Just like law professors are bad at deconstructing humor, federal judges aren't much better. The court says:

The Blog Post itself bore indicia of its satiric nature. The page was tagged as “humor.” ...The Blog Post started with an exaggerated headline announcing in bold print “Breaking: Jerome Corsi’s Birther Book Pulled From Shelves!” Id. Real news does not usually contain an exclamation point and would not be reported on an opinion page. Further, the headline was accompanied by a logo of a siren, a symbol used by conservative Matt Drudge when commenting on current news to his readers. Id. The text asserted that Messrs. Corsi and Farah announced “plans to recall and pulp the entire 200,000 first printing run of the book” Id. The reference to a first run printing of “200,000 books” is an exaggerated number for a first printing. Also, the Blog Post refers to a fake book, alleged to be authored by Mr. Farah, called “Capricorn One: NASA, JFK, and the Great ‘Moon Landing’ Cover-Up.” Id. The book title alludes to “Capricorn One,” a 1978 movie starring O.J. Simpson and others about a government Mars landing hoax. Finally, the Blog Post includes absurd quotes, such as Mr. Farah’s alleged statement about his own Birther Movement views that “bullshit is bullshit.” Id. These clues reveal that the Blog Post was satire; Mr. Farah immediately recognized that it was.

Notice how weak some of these satiric elements are. I bet 90%+ of Esquire's readers had never heard of Capricorn One and had no idea that book reference was made up. I bet 99% of Esquire's readers would not have recognized the 200k advance printing as an inflated number. The exclamation in the headline isn't much of a tip-off; and the logo siren might (if anything) enhance the perceived credibility. Overall, trying to distill down the humorous elements from this post is quite unsatisfying.

Instead, the court is simply saying that the lawsuit is ridiculous. Fortunately, the DC anti-SLAPP law gives the judge a good tool to end a ridiculous speech-related case quickly. She says that the Warren post relates to an "issue of public interest" (Obama's constitutional authority to be president) and therefore qualifies for anti-SLAPP protection. The court doesn't really give the plaintiffs a chance to demonstrate their prima facie case (the burden shift created by the anti-SLAPP law), but perhaps that's because the court focused on the fact that Farah publicly admitted that he assumed the post was a parody. The court also repeatedly references the fact that the plaintiffs had themselves whipped up a media frenzy. The court sidesteps some controversy over whether federal courts can apply a state procedural law (see FN 10).

The plaintiffs tried to argue that the post fell into the anti-SLAPP law's commercial speech exception because it attacked their commercial interests in selling the book. The court rightly rejects the argument; even if the blog post had commercial effects, it was not commercial speech. The lack of commerciality also disposes of the plaintiff's Lanham Act claim. (Accord the Ron Paul case).

I'm not sure the court's anti-SLAPP analysis is as tight as it should be, but the case illustrates the power and importance of anti-SLAPP laws. Without the anti-SLAPP law, the court would have had to go through even more twisted doctrinal contortions to get rid of this obviously unmeritorious lawsuit. With anti-SLAPP protection, the case gets tossed quickly and the plaintiffs ought to write a check to the defendants. We need more judicial outcomes like this, and federal anti-SLAPP protection would both provide uniform nation-wide coverage and eliminate any questions about whether federal courts can apply state anti-SLAPP protection. Reminder/disclosure: I'm on the board of the Public Participation Project, which is advocating for a federal anti-SLAPP law. If you haven't done so recently, contact your members of Congress to remind them that you support federal anti-SLAPP protection, and you might consider donating to the PPP.

Atlhough I'm glad the court got to the right outcome so easily, I want to reiterate that I condemn blog posts like Warren's. It's our job as bloggers to earn our credibility with our audience, and we should never come anywhere close to the line where readers might miss the satire. Even if Warren's post wasn't tortious, it was deeply irresponsible.

UPDATE: A good WSJ article on just how hard it is to come up with something so outrageous that it's not conceivable.

See a prior blog post on a different Birther-related lawsuit. Other related posts:

* Logging Into Someone Else's Facebook Account and Posting Messages on Their Friends' Walls Could Be Identity Theft -- In re Rolando S.
* Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
* Bloggers' April Fools Jokes
* Teenager Busted for Creating Fake "News" Story

Posted by Eric at 03:37 PM | Content Regulation | TrackBack

June 01, 2012

PissedConsumer Denied Section 230 Immunity and Can’t Shake Extortion Claim—Vo v. Opinion Corp.

By Eric Goldman

Vo Group v. Opinion Corp., 8758/11 (N.Y. Sup. Ct. May 22, 2012)

PissedConsumer is a consumer review site occupying the same market niche as Ripoff Report. It only wants negative consumer reviews of businesses (as signaled by its name), and its basic business model is to rank the negative consumer reviews highly in Google search results and then charge the businesses money to take the edge off that indexing. Vo Group claims it got snared in PissedConsumer’s scheme and allegedly chose not to pony up the requested cash ($5k) to PissedConsumer. Instead it sued PissedConsumer for a potpourri of claims. PissedConsumer moved to dismiss the lawsuit, and the resulting opinion is a mixed bag. Some highlights:

Defamation. Regarding Vo’s defamation claims, PissedConsumer defended on 47 USC 230. In one of the most important cyberlaw rulings of 2011, PissedConsumer won a 230 defense in the analogous Ascentive case, but the court doesn’t reach the same conclusion here:

at this stage of the litigation before any discovery has been conducted there are certainly allegations whether the initial defamatory content posted on the pissedconsumer website was attributed to the defendants themselves….Therefore the motion seeking to dismiss the initial statements is denied.

This adds to a long-simmering split in Section 230 jurisprudence: can a plaintiff defeat a motion to dismiss simply by alleging that the review website wrote the review in question? Some cases have said or implied yes (see, e.g., Children of America v. Magedson; Whitney v. Xcentric; HyCite v Badbusinessbureau; and I'm sure I'm forgetting others), while others have said no (see, e.g., Levitt v. Yelp). And of course, there was the Roommates.com train wreck on this very issue. If the answer is yes, the Section 230 immunity becomes substantially less effective; at minimum, it means the cases run longer, and plaintiffs can take expensive and disruptive discovery, even if the Section 230 immunity ultimately applies. In fact, given some courts’ wishy-washiness about Section 230 motions to dismiss, several experienced Section 230 litigators have told me that they sometimes skip a 230-based motion to dismiss and just push instead for a quick summary judgment.

Because it’s trivially easy for the plaintiff to allege that the review website wrote the review and therefore defeat an otherwise appropriate early Section 230 dismissal, I think courts need to screen the plaintiff’s allegations much more aggressively than this court did. See, e.g., Nemet Chevrolet v ConsumerAffairs, which didn't rely on 47 USC 230 but still rejected the unsupported assertion that the review site fabricated reviews. First, I think Twombly/Iqbal require the plaintiff to allege more than just the bare assertion that the website wrote the review. The plaintiff should have to provide concrete allegations of facts uncovered in its research supporting the claim, and it should not be enough simply to have a hunch. Compare Frontier Van Lines v. Valley Solutions, which said that the bare assertion of review website authorship didn't clear Iqbal, but the court didn't grant the motion to dismiss either. Second, courts should more aggressively police plaintiffs’ Rule 11 investigation obligation. In my opinion, if plaintiffs are just making up facts and defeating motions to dismiss based on these fictions, they should have to pay for the defendants’ resulting expenses.

We’ll find out if Vo has any juice behind its assertion later in the litigation. Perhaps the Section 230 motion will work better on summary judgment.

Bribery/Extortion. The court rejects the plaintiff’s commercial bribery claim, but it survives a RICO claim predicated on alleged extortion. The court says:

if PissedConsumer had the legal right to engage in the activities it was doing, then to request money in return for desisting from such activities cannot be considered extortion. [Eric’s note: the court doesn’t cite Coase, but this is quintessentially Coasean!] Since it has already been determined that some of PissedConsumer’s posts were possibly defamatory and hence fully unlawful, the $5,000 request cannot be viewed as merely nothing more than “hard bargaining” [Eric’s note: the court’s double negative makes that a hard sentence to parse]

In other words, just like the allegation that PissedConsumer authored the defamatory review defeated the Section 230 dismissal, it also helps the extortion-based RICO claim survive. This only reinforces how important is it/was for the court to gatekeep the plaintiff’s allegation that PissedConsumer wrote the review. Extortion charges are often leveled at Ripoff Report as well. Although I doubt Vo’s extortion claim will succeed in the end, I imagine other plaintiffs suing Ripoff Report and PissedConsumer will start sniffing around this RICO ruling for ways to keep their cases in court a little longer.

Trademark On the plus side, just like the Ascentive case, the court dismisses the trademark claims because the name PissedConsumer makes it clear to consumers what they are going to get. This extends the precedent that a trademark workaround to Section 230’s immunity for review websites may not exist.

Posted by Eric at 10:11 AM | Content Regulation , Derivative Liability , Trademark | TrackBack

May 29, 2012

Illinois Supreme Court Says Woman Deceived by Fake Online Relationship Can't Sue for Misrepresentation -– Bonhomme v. St. James

[Post by Venkat Balasubramani]

Bohomme v. St. James, 2012 IL 112393 (May 24, 2012)

Most people take for granted that people aren’t 100% truthful when interacting online. On one end of the spectrum, people make misstatements that are widely acknowledged to be harmless and victimless (for example, someone may tell me that "this was a wonderful blog post"). On the other end of the spectrum, people engage in subterfuge with the intent of gaining a financial benefit. (See this long Verge article for an expose of the seedy underbelly of internet marketing: "Scamworld: 'Get rich quick' schemes mutate into an online monster.")

This situation was somewhat different. The plaintiff, Paula Bonhomme, engaged in a purely online relationship with a fictitious character (“Jesse”) created by the defendant, Jenna St. James.

Background: The details of the relationship provide a window to the spectrum of peoples’ activities online, and the amount of energy that people invest in their subterfuge. Bonhomme and St. James met on the “Deadwood Boards,” a chatroom dedicated to the HBO series by the same name. A couple of months later, St. James created the persona of “Jesse,” who also posted on the boards and began a relationship with Bonhomme:

Plaintiff and Jesse began an online romantic relationship that lasted until July 2006. In addition to exchanging emails, Jesse and plaintiff exchanged personal photos, handwritten letters, and gifts. They also spoke regularly on the telephone, with defendant using a voice-altering device to disguise her female voice. [wow]

During this same period, defendant continued to maintain a relationship under her own name with plaintiff. In addition, defendant created a universe of approximately 20 fictional online characters either related to or involved with Jesse, including an ex-wife, a son, various family members, a therapist, and friends living both in the United States and abroad. These characters communicated with plaintiff from separate and distinct email accounts and even sent photos, handwritten mail, and packages from different states and foreign countries. For her part, plaintiff sent gifts totaling more than $10,000 to defendant, Jesse, and various other characters.

The story gets wackier. Bonhomme made plans to visit Jesse in person. “Jesse” cancelled the rendezvous, and St. James informed Bonhomme that Jesse had attempted suicide. Six months latter, Bonhomme and Jesse made plans to move in together. This too was derailed. This time, St. James informed Bonhomme that Jesse had died of liver cancer. After Jesse’s death, St. James continued to interact with Bonhomme, “communicating with her on a daily basis.” They actually met in person in Colorado “to visit some of Jesse’s favorite places.” Finally, St. James ended up visiting Bonhomme at her home in California. During this trip, the fiction unraveled, and Bonhomme’s friends ended up confronting St. James about “the fictional nature of the universe of people that [St. James] had created.”

Bonhomme sued, asserting claims for defamation, infliction of emotional distress, fraudulent misrepresentation, and false light.

The court’s opinion: Due to a procedural issue that’s not relevant here, the sole issue on appeal was whether Bonhomme could assert a fraudulent misrepresentation claim against St. James. The court answers in the negative, citing to the fact that the relationship between the two is purely personal in nature:

When all is said and done, what lies beneath this case is two private persons engaged in a long-distance personal relationship. To be sure, it was a personal relationship built wholly on one party’s relentless deceit, but it was a purely personal relationship nonetheless. Indeed, all of the hallmarks of ordinary human relationship are present: correspondence, conversation, intimacy, trust, mutual beneficence, emotional support, affection, disappointment, and even grief. And just as importantly, there is absolutely nothing of the commercial, transactional, or regulatory at work. Plaintiff and defendant were not engaged in any kind of business dealings or bargaining, and the veracity of representations made in the context of purely private personal relationships is simply not something the state regulates or in which the state possesses any kind of valid public policy interest.

___

The case generated a ton of media interest. (See coverage here from ABC, the Chicago Tribune, and Jezebel.) The legal question is not a particularly novel one, and as the court notes, “not a difficult question to answer” in the context of this case.

Three quick observations:

1. The court does not address Bonhomme's claims for infliction of emotional distress. She was procedurally barred from asserting them, but that would seem like the obvious route to take for a plaintiff in this scenario.

2. This case is reminiscent of the Lori Drew case in some ways, except that the Drew cases ended in tragedy. Both cases illustrate the difficulties in finding legally recognizable causes of action in these types of scenarios.

3. Most interesting to me was the extent of energy and emotional investment that went into a relationship that was spawned on a TV show message board and that took place mostly online but eventually transitioned off-line.

Other coverage:

Batavia woman can’t be sued for fake online relationship

Related:

Why We Lie (WSJ)

Posted by Venkat at 12:46 PM | Content Regulation , General , Virtual Worlds

May 24, 2012

What Are Appropriate Compensatory Damages for 3 Fake Competitor Reviews? The Surprising Answer--Fireworks Restoration v. Hosto

By Eric Goldman

The Fireworks Restoration Company v. Hosto, ED97181 (Mo. App. Ct. May 9, 2012)

Hosto and Mitchell formed two companies together. Eventually, the relationship soured, and they acrimoniously split their empire. Still grousy, Hosto (pretending to be former customers) posted three fake derogatory Google and Yahoo reviews of the company operated by Mitchell. After a John Doe lawsuit, Yahoo disclosed enough information to identify Hosto as the author, and Hosto confessed to the vendetta. Thus, we have the unusual situation where a pseudonymous review author isn't contesting authorship. After a trial, the jury ruled in favor of Fireworks Restoration's (the plaintiff's) defamation claim.

So far, everything makes sense. But then we get to the remedies, and things get puzzling. The jury awarded $1 in compensatory damages and $150k in punitive damages. On appeal, the court rejects Hosto's attempts to undermine the jury award: that Mitchell's company didn't suffer any reputational harm; that Missouri law doesn't allow nominal damages; and that the punitive damages were unconstitutionally large in light of the compensatory damages award. As a result, the jury verdict stands.

What to make of this jury verdict? One way to interpret it is that the jury felt that the company suffered no real harm, but Hosto's behavior was so outrageous it needed to be punished anyway. While the jury's first conclusion might seem initially counterintuitive, it's entirely possible that the company suffered no actual harm from the negative fake reviews. Research indicates that a few negative reviews mixed into an otherwise all-positive review set lifts sales conversion because the negative reviews increase the credibility of the positive reviews and help prospective consumers visualize and assess the possible bad outcomes from their wrong choices. Without more detail, for all we know, Hosto could have done his target a favor.

Yet, the judge refuses to put the burden on the plaintiff to find actual lost customers:

We reject Defendant's contention that Plaintiff needed to produce testimony from potential customers who opted to turn elsewhere due to the web reviews. With the internet, consumers are able to compare businesses and their wares with unprecedented speed. Interpersonal contact is characteristically absent, so if a consumer declines to engage a business it encounters on the internet, that consumer continues his or her search and the business has no knowledge it has been passed by. As such, it would be unreasonably burdensome to impose upon a business plaintiff the requirement that it locate potential customers that it never knew in order to successfully demonstrate actual damage to its reputation. The deleterious impact of such a constraint far outweighs any benefits it would have in proving reputational harm.

In the end, the lesson from this case is obvious and hardly novel: fake competitive reviews are a bad idea. The jury verdict here shows that the jury will punish anyone caught red-handed. At the same time, the jury was quite savvy about the compensatory damages from fake negative reviews. I hope future judges will be equally savvy.

I was a little surprised the punitive damages award survived the constitutional analysis. Punitive damages 150,000x the compensatory award sounds extremely dicey in light of recent Supreme Court jurisprudence. Effectively sidestepping the quantitative metrics, the appellate court had no problem condemning Hosto's bad motives:

From the outset, Defendant's conduct evinced a calculated desire to seriously damage Plaintiff's business reputation and, in doing so, deliver, in Defendant's words, “the knock-[out] punch [he] had looked forward to delivering for so long.” Defendant admitted that he was “bitter and wanted revenge.”...Even after having time to consider his actions, Defendant did not cease his conduct. Instead, he testified that he went online to post an additional fictitious review because he “felt something satisfying in” posting the initial derogatory reviews. Not until he received notification of Plaintiff's suit did Defendant demonstrate any contrition, and even then his apologies were couched in a desire to forego litigation.

As Confucius said, "Before you embark on a journey of revenge, dig two graves."

For a similar defamation damages ruling by the New Jersey Supreme Court, see W.J.A. v. D.A., A-77-10 (N.J. May 16, 2012), holding that:

Where a plaintiff does not proffer evidence of actual damage to reputation, the doctrine of presumed damages permits him to survive a motion for summary judgment and to obtain nominal damages, thus vindicating his good name. Compensatory damages, however, will continue to require proof of actual damage to reputation.

Later, the court says:

In today’s world, one’s good name can too easily be harmed through publication of false and defaming statements on the Internet. Indeed, for a private person defamed through the modern means of the Internet, proof of compensatory damages respecting loss of reputation can be difficult if not well-nigh insurmountable. We question why New Jersey’s longstanding common law tradition of presumed damages -- for defamation claims by private citizens on matters that do not involve public concern -– should be altered now to force an average citizen to ferret out proof of loss of reputation from any of the worldwide potential viewers of the defamatory Internet transmission about that otherwise private person.

Posted by Eric at 10:43 AM | Content Regulation | TrackBack

May 22, 2012

Facebook Post and Blog Entry About Judicial Endorsement Held to be Defamatory -- Lewis v. Rapp

[Post by Venkat Balasubramani]

Lewis v. Rapp, COA11-1188 (N.C. Ct. App.; May 1, 2012)

Lewis was a senior judge in North Carolina who was running for re-election. Lewis was also a vocal supporter of William Rabon who was a state senate candidate. Rapp is a blogger who supported Rabon’s opponent and served as the opponent’s unpaid “media strategist.” Rapp published two blog posts about Lewis’s support for Rabon.

The first post, published on April 9, 2010, criticized Lewis’s support of Rabon:

When sitting judges campaign for a candidate, in clear violation of the seventh canon of the NC Code of Judicial conduct[,] [w]e are clearly into dirty politics.

In response to this post, Lewis’s lawyer emailed Rapp and advised that Lewis was a candidate for judicial office and as such was allowed under the Code of Judicial Conduct to endorse other candidates. Lewis’s lawyer also cited to a letter published by a Chief Judge outlining what conduct was appropriate and what was inappropriate as far as support for other candidates by judges (it said that a candidate for judicial office can endorse other candidates).

After receiving the lawyer’s email, Rapp published a follow up post, attempting to correct his initial post. The follow-up post, published three days later read as follows:

I have spent this past weekend in prayer, mediation [sic], and contemplation . . . . First, let me apologize for my comment about the sitting judge being in violation [of] the North Carolina Code of Judicial Conduct. I was wrong. This can be done only by proper disciplinary proceedings and I have neither right nor authority to make that judgment and I have neither right nor authority to make that judgment . . . . I have read, top to bottom, the North Carolina Code of Judicial Conduct and have voiced my opinion based on the pertinent articles provided in appendix 1 at the end of this blog. I also solicited the opinion of a friend of mine who happens to be an attorney. We both agreed that there is probable cause for such action. Read the appendix and make up your own mind.

The court dismisses the claim based on the initial April 9 post but denies defendant’s motion to dismiss the claim based on the April 12 post.

April 9th post: With respect to the April 9th post the court holds that there is no evidence that Rapp had actual knowledge of Lewis’s candidacy. The court also says that there is insufficient evidence to conclude that Rapp acted with actual malice. While Rapp could have undoubtedly have determined that Lewis was a candidate for office, and this may demonstrate that Rapp was negligent in verifying the truth of the statement, there was no evidence in the record that Rapp subjectively harbored any doubts as to the truth of the statement.

April 12th post: The court says that the April 12th post is capable of only one interpretation: “defendant was still attempting to convince the readers that plaintiff was in violation of the Code of Conduct when she supported Rabon’s campaign.” The key question with respect to the April 12th post was whether it was a statement of opinion or fact. (This was relevant to the April 9th post as well, but given the lack of actual malice, the court doesn’t reach this issue with respect to the April 9th post.) The court notes that speech regarding candidates or an election is at the heart of the First Amendment. The court then says that whether something is fact or opinion depends on the language used as well as the surrounding context. While defendant's statement that it was "wrong" for Lewis to campaign is protected opinion, the statement that Lewis was in violation of the Code of Judicial Conduct and could be subject to official disciplinary action is different.

Although defendant prefaced his statement by noting that he was only stating his opinion, the court says that this type of a disclaimer is not sufficient to shield a speaker from liability from an underlying statement that is defamatory. Defendant claimed he read the Code of Conduct from “top to bottom.” He also appended portions of the Code of Conduct to the blog post, but failed to attach the particular Canon that exonerated Lewis from any wrongdoing. His reference to the fact that he supposedly consulted his lawyer friend didn’t help:

Not only did defendant attempt to mislead the readers by afiling to attach Canon 7b(2), he also stated that he had discussed the matter with his friend, an attorney, and they agreed that there was 'probable cause' for disciplinary action . . . . Defendant was clearly trying to bolster the validity of his false accusations . . .

Although the court ultimately leaves this issue for the jury, the court says that plaintiff’s April 9th email was sufficient to put defendant on notice of the underlying facts and defendant cannot show the absence of actual malice.

__

The case is worth noting in terms of its treatment of blog posts and context. (See my post from last week about whether statements made on Twitter should be routinely accorded opinion status: “A Twitter Exception for Defamation?”) Despite the availability of the opinion defense based on a statement being made in the online context, courts seem perfectly willing to scrutinize statements carefully.

Regarding the first statement, it was interesting that the court imposed a relatively low standard on the defendant and did not require the defendant to have done the basic research about the plaintiff’s candidacy. This information would undoubtedly be available on the internet. Nevertheless, the court hews to the First Amendment standard that actual malice requires proof that the speaker harbored doubts regarding the veracity of the statement.

It’s equally interesting that the court dings the defendant for failing to include the link to the exculpatory Canon in question. There’s no evidence in the record as to whether this a result of carelessness or real malfeasance. I would think the former, given the contrite tone of the blog post, but the court considers this along with defendant’s attempts to persuade readers to find that the defendant’s statement is not one of opinion.

The case also illustrates the pitfalls of retractions and follow-up comments.

I guess a final pointer from this case is: beware of casual legal advice from friends who happen to be lawyers.

[Edited: to fix the names of the parties, which I had reversed.]

Posted by Venkat at 09:33 AM | Content Regulation

May 21, 2012

Doctors' Online Reputation Management and Patient Reviews (Talk Notes from ASAPS Annual Meeting)

By Eric Goldman

I recently spoke at the annual meeting of the American Society for Aesthetic Plastic Surgery (ASAPS) in Vancouver, BC. This is not a normal conference venue for me! (And given the number of fashion-conscious people at the conference, I stuck out like a sore thumb for more reasons than one). Last year, I was recruited to participate on a panel Reputation Management--Managing Your Online Image to cross swords with Dr. Jeffrey Segal, Medical Justice's infamous CEO. It would have been an exciting session...except that Medical Justice "retired" its unacceptable approach late last fall, undercutting the main reason for my panel participation.

I nevertheless had the pleasure of meeting Dr. Segal, and no fisticuffs ensued, either physically or metaphorically. Medical Justice has totally reversed gears, and now they love patient reviews after trying to suppress them for four years. Unfortunately, Medical Justice screwed up the medical community with its persistent and mostly unrebutted advocacy for 4 years that patient reviews are evil. This miseducation really harmed the entire profession, and it will probably take years for the community to overcome the damage inflicted on it by Medical Justice and other anti-review naysayers.

As dramatic evidence of that, numerous entrepreneurs (including, I believe, Medical Justice) are helping doctors collect patient reviews through a centralized collection mechanism that, among other things, lets doctors review and spike patients' reviews before posting those reviews on patients' behalf to review sites. [UPDATE: Dr. Segal emailed me to indicate that Medical Justice's system passes through all reviews without giving doctors a veto.] Seriously, guys? The only advantage of this system is that the collection mechanism can authenticate review-submitters as actual patients of the doctor, but every other aspect of a mediated collection mechanism is bad news for patients, prospective patients and society at large. Doctors remain so petrified of organic word-of-mouth that they still feel the need to insert themselves in the middle of the process. Let it go, guys!!!

I made some notes before my talk, appended below. I also posted a reasonably comprehensive chart of doctor v. patient lawsuits over online reviews with the outcomes of those lawsuits to the best I could determine (if I've missed any lawsuits I should be tracking, please email me). I spoke fourth on the panel, so a lot of my remarks were preempted by the time we got to me. So here's what I would have said if I had been first on the panel:
_______

My talk notes:

1) Doctors are often initially skeptical of patient reviews. Why?
• Doctors may take reviews personally (true of most small business owners)
• Most patients aren’t expert evaluators of medical advice (also true of all professional service providers).
- especially in aesthetic plastic surgery, where the outcomes may be inherently subjective
- but many patient reviews don’t critique issues requiring medical expertise
• Patient confidentiality (e.g., HIPAA) may limit doctors’ ability to respond (confidentiality restrictions apply to many professional service providers)
• Historically, doctors’ marketing efforts haven’t tied directly to patient satisfaction. Insurance programs, peer referrals and individual word-of-mouth were much more important. Specialty doctors often had de facto geographic monopolies
• Negative reviews can cost doctors money. This is especially for elective procedures (like aesthetic plastic surgery) where many doctors are building national customer bases—and thus competing with other doctors across the nation

2) Whether doctors like it or not, patient reviews are here to stay
• Review sites are proliferating
• Patients are legally entitled to have their say
- Efforts to suppress patient reviews, such as the scheme advocated by Medical Justice, are probably illegal, probably unethical and almost certainly counter-productive
- Illegality: NY v Network Associates; HHS Office of Civil Rights; contract unconscionability; 512(f); others
- Review websites are legally protected by 47 USC 230

3) Rather than fighting patient reviews, doctors should embrace them
• Patients expect to check reviews before making economic decisions
- Consumer reviews are one of the most important pre-transaction information sources to consumers
- Consumers are skeptical of businesses that don’t have reviews
- If a doctor's competitor has reviews and the doctor don’t, the doctor is probably falling behind
• The vast majority of patient reviews are positive (~90% of doctor reviews). Tom Seery of RealSelf will be publishing empirical stats from his site showing how the vast number of patient reviews are positive. He called it a "J curve" of reviews--small number of negative reviews, even smaller number of mixed reviews, and huge number of positive reviews.
- “Wisdom of the crowds”: any one review is unreliable, but averages across large sets of reviews are quite reliable. Thus, doctors should seek to develop a critical mass of reviews (Dr. Grant Stevens called this "diluting the pathogen"--not sure I like the rhetoric, but the concept is right)
- Given the odds that the reviews will be positive, there’s no need to trick or incent patients to give positive reviews (ex: hotels routinely encourage all of their customers to reviews at TripAdvisor, knowing that most will say positive things)

4) What should a doctor do about a negative patient review?
• Product marketing: try to avoid negative consumer reviews by delivering good value. A doctor's patients can be its evangelists
• Consider if the negative review is right
- Patients provide incredibly useful feedback that can improve the doctor's business. Listen and learn!
- Openly admitting mistakes earns a lot of credibility
• Most of the time, doctors should take no action against a negative consumer review
- Consumers often discount the “high”/“low” reviews and focus on trends in the reviews
- Consumers are skeptical of business that only have positive reviews
- A few negative reviews in a group of largely positive reviews can actually increase sales (it makes the reviews more credible and helps consumers better gauge the potential downsides)
• If a doctor needs to take action, reach out to the unhappy patient. Often, a little positive attention will go a long way
• If necessary (and possible), rebut the review
- It may not be necessary; often, other patients will correct the wrong information without any prompting
- Many criticisms do not involve patient confidentiality at all
- If the negative statements implicate patient privacy, see if the review site has required patients to waive their privacy; contact the patient and ask for permission to respond; if not, you can always say “I can’t respond to the specifics of this situation due to patient privacy, but in X situation, my standard protocol is Y”
• Legal enforcement actions should be a last resort
- Streisand Effect
- Lawsuits may not be cost-justified + risk of paying defendant’s attorneys’ fees (anti-SLAPP laws)
- Doctors often lose in court + risk further antagonism by patient (i.e., malpractice complaints)

5) But what about fake reviews?
• Consumers are more savvy to fakes than we might give them credit for
- Many consumers are rightly wary of anonymous reviews
• Contact the review site. Fake reviews are an attack on their credibility
• If a doctor's competitor is gaming via fake reviews, consider contacting the FTC or state AGs. The FTC hates inauthentic online content!
_________

Prior posts on this topic:

* The Dangerous Meme That Won't Go Away: Using Copyright Assignments to Suppress Unwanted Content--Scott v. WorldStarHipHop
* Medical Justice Capitulates by "Retiring" Its Anti-Patient Review Contracts
* 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
* CA Anti-SLAPP Cases Involving Consumer Reviews as Matters of Public Concern
* Dentist Review on Yelp Gets Partial Anti-SLAPP Protection--Wong v. Jing
* Yelp Wins 47 USC 230 Dismissal of Dentist's Lawsuit--Reit v. Yelp
* Griping Patient Goes Too Far Posting Fake Content in Doctor's Name--Eppley v. Iacovelli
* Republishing Third Party Ratings in Marketing Material Might Be Copyright/Trademark Infringement--Health Grades v. Robert Wood Johnson Univ. Hospital
* Two 47 USC 230 Defense Losses--StubHub and Alvi Armani Medical
* Lifestyle Lift v. RealSelf Settles
* Lifestyle Lift Tries to Use TM Law to Shut Down User Discussions; Website Countersues for Shilling--Lifestyle Lift v. RealSelf

Posted by Eric at 09:38 AM | Content Regulation | TrackBack

May 15, 2012

A Twitter Exception for Defamation?

[Post by Venkat Balasubramani]

William Charron pubished a short piece for the Berkeley Journal of Entertainment and Sports Law that caught my eye (“Twitter: A “Caveat Emptor” Exception to Libel Law” [pdf]). His central point:

Twitter’s characteristics and limitations should negate any expectation of a “reasonable reader” that Twitter is a repository or stand-alone facts and unassailable “truth.” To the contrary, Twitter is a free-for-all marketplace for stream-of-consciousness thoughts and exclamations, and for unguarded and unedited personal observations, discussion, and entertainment.

Charron highlights the difference between fact and opinion in defamation law generally, and notes that courts have historically looked to context in determining whether something is reasonably understood to be “figurative” or “hyperbolic.” According to Charron, courts have taken this approach when reviewing defamation claims based on statements in chat rooms, message boards, and blogs. As one example, Charron cites to Sandals Resorts International Ltd. v. Google, where the court noted that:

Readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made to other similar [and in particular to] posted remarks on message boards in chat rooms [and] blogs.

Charron does account for the possibility that a Twitterer “could find a way in 140 characters . . . to libel someone,” and in these circumstances a “there should be no “automatic immunity from a claim of libel.”

__

It’s a short piece that raises interesting issues.

My read of the situation is that it’s too early to tell whether courts are more apt to view statements online (and on Twitter) as more likely to be opinion than fact. Courtney Love’s lawyers telegraphed that they would rely on a defense along these lines, but the case never went to trial so a court hasn’t squarely addressed the question and addressed some of the surrounding issues. (As reported by Eriq Gardner, the court tentatively dismissed Love's defense: "Judge Rejects Courtney Love's Defamation Theories in Twitter Lawsuit.") For other cases relying on this theory in the context of online posts, in addition to Sandals Resorts, see DiMeo v. Max and Finkel v. Dauber.

One question this raises, is: what perspective does the court use when it evaluates context and makes the determination of whether something is hyperbole or would reasonably be viewed as a statement of fact? A reasonable person who is familiar with and who uses Twitter, or someone who is not familiar with the nuances of Twitter, its shorthand, and culture? I would guess the latter, given that tweets are often publicly disseminated and reported on outside the ecosystem, but if it's the former, litigants may have their work cut out form them in educating judges on the nuances of Twitter.

A big contingent of Twitter uses it to banter and snark, but at the same time, it’s become a go-to source of factual information. While context is undoubtedly important, a tweet should have the capacity to defame in the same way that an email, Facebook post, or an off-hand comment does. I’m not saying that Charron is arguing for the adoption of a default rule of immunity based on opinion, but I can’t see courts going this route anyway. It would be an unwarranted case of "Twitter exceptionalism" to adopt this rule for Twitter but not for other online communications generally.

A few related points.

Defamation by Tweet raises the question of whether linking to something that is defamatory is itself defamation. I’m not aware of a definitive answer to this question, although in the pre-Twitter context, republication of a defamatory statement without sufficient qualification can be defamatory. How about defamation by Retweet? (You know there’s a reason why everyone has that “RTs don’t = endorsements" in their bio!) This is probably getting too far in the weeds, but should it matter whether someone uses the old or the new style Retweet? (It's worth noting that there's a likely Section 230 defense here.)

It’s also worth looking at the online threat cases to see whether courts have treated online threats different from off-line threats. I’ve blogged about a slew of cases involving convictions for online threats, and courts in those cases don’t seem very willing to look at the context of an alleged threat and conclude that a reasonable person familiar with the context would not have viewed the statements as threats. (See, e.g., US v. Jeffries (currently on appeal)); US v. Stock (craigslist threats) and Holcomb v. Virginia; but see US v. Cassidy ("indictment for Twitter harassment is unconstitutional")).

Finally, there's the issue of damages. Jeffrey Hermes has a great post at Citizen Media asking how we "should measure damages for defamation over social media." Pointing to the recent $13.78 million jury verdict based on "an extended campaign of [online] defamation," Jeff notes that the verdict in that case does not allow us to measure what portion was tied to reputational injury and what portion was intended to redress emotional damages. Turning to the reputational injury, he asks some interesting questions about how to evaluate damages when the defendant makes repeated defamatory statements (e.g., is there some loss of credibility to the poster who makes 100 negative posts, as opposed to 10?).

Posted by Venkat at 10:05 AM | Content Regulation

May 14, 2012

The Dangerous Meme That Won't Go Away: Using Copyright Assignments to Suppress Unwanted Content--Scott v. WorldStarHipHop

By Eric Goldman

Scott v. WorldStarHipHop, Inc., 2012 WL 1592229 (S.D.N.Y. May 3, 2012)

Copyright law wasn't designed as a privacy enhancing doctrine, but sometimes plaintiffs try to repurpose copyright law anyway. This case is an interesting illustration of how copyright law might be used to reverse-engineer a right to forget, using legal tactics not dissimilar to those advocated (and later renounced) by Medical Justice. As such, this case provides an early warning sign of an emerging attack on publicly available truthful information using copyright law chicanery.

In November 2010, Scott's girlfriend and ex-girlfriend got into fisticuffs in a classroom. Scott joined in the melee and hit his ex-girlfriend multiple times. A classmate, Seymour, videotaped the altercation. Seymour then sent the video to the WorldStar website, which posted the video as "Disgraceful: College Fight In NYC Breaks Out Between A Guy, His Girl & Another Girl In Class! (Man Strong Arm's The Student. Hitting Her With Body Shots)." Unfortunately, the opinion is cryptic about whether Seymour posted the video directly or submitted the video to WorldStar for their posting--it would make a difference to the copyright analysis. The video appears to be offline now.

Then, things get really interesting. In December 2010, Seymour assigned the video's copyright to Scott. The opinion doesn't say why. It could be that Scott paid Seymour for this assignment as a cheap way to get legal control over the video; or it could be that Scott coerced Seymour into transferring the copyright to settle a lawsuit threat. Once armed with the copyright, Scott sent 512(c)(3) takedown notices to the websites hosting or linking to the video. See, e.g., this one to Twitter. Scott sent a defective takedown notice to WorldStar, which didn't respond in 12 days, at which point Scott sued. WorldStar brought a 12(b)(6) motion to dismiss. The court rejects the dismissal motion for the copyright claim and grants it for the publicity rights claim.

Copyright. WorldStar argued that Seymour granted it a license to the video before Seymour's copyright transfer to Scott, and thus Scott's acquisition of the video was subject to the then-existing license. The court rejects this argument because WorldStar didn't adequately show it had the required written license (required by 17 USC 205(e) necessary to withstand a subsequent acquisition).

This reinforces the importance of the facts around how WorldStar obtained the video. The opinion doesn't indicate if Seymour clicked through a mandatory non-leaky clickthrough agreement. If WorldStar used a mandatory non-leaky clickthrough agreement, then I'd argue (per UETA/E-Sign) that in fact there was a written license agreement in effect before the Seymour-Scott transaction. However, for WorldStar's argument to work, the license would need to be irrevocable. Otherwise, even if the license survived the acquisition, Scott can simply revoke the license post-acquisition. So while I think most UGC websites will have a "written" license sufficient to withstand the 205(e) attack, I think most UGC websites also don't have strong enough EULA provisions about retaining UGC once posted to avoid this attack. Note that users' rights to remove the videos they uploaded might be located in either the EULA or privacy policy, so both documents would need to be reviewed to reach a conclusion.

WorldStar also argued that Scott sent a defective 512(c)(3) takedown notice, and thus it never got the requisite knowledge of infringement. However, WorldStar didn't argue that it requested Scott resubmit a compliant notice as possibly required by 512(c) (given the nature of the alleged notice defects), and thus WorldStar can't get a 12(b)(6) dismissal on this point.

Publicity Rights. Scott's New York state publicity rights claim fails because Scott didn't allege WorldStar used the video for advertising purposes, and WorldStar's other activities were protected under the state law's newsworthiness exception. While dismissal is the right outcome, relying on the newsworthiness exception is a little disquieting. The newsworthiness exception applies often in content lawsuits (see, e.g., Parisi v. Sinclair and the trademark case BidZirk v. Smith) but not always. See Fraley v. Facebook as an example of how the newsworthiness exception has its limits. A much better grounds for dismissal would be the lack of commerciality in the video; Seymour had no obvious commercial interest in the video, and WorldStar had no more commercial interest in the video's "editorial content" than an ad-supported newspaper has a commercial interest in its editorial content.

Implications. This lawsuit provides a protocol for folks trying to suppress truthful negative information--acquire the copyrights to the content containing the unwanted information, and then use the newly created threat of copyright infringement to force that information off the Internet. While this is a disconcerting protocol, it probably won't work in all circumstances. For example, the protocol probably works better for visual/aural content than purely textual content because (a) people need to see/hear some things with their own eyes/ears, and (b) it's much easier for others to extract and repeat textual information without running afoul of copyrights. Nevertheless, the post-publication acquisition protocol works even better than Medical Justice's now-retired pre-publication acquisition approach because it doesn't rely on legally dubious pre-assignments of not-yet-extant works, plus it can be activated only in response to specific problematic content. Thus, we need to vigilantly monitor the ecosystem for potential abuses of this protocol.

UGC sites (and especially review sites) could undercut the protocol by restricting users' ability to take down content in response to legal duress. Ripoff Report famously provides its authors with no power to delete their reviews, an aggressive and sometimes questionable move that does avoid the problems identified here. If a blanket restriction on users' editing/deleting of their own content is too strong, UGC sites could limit this attack by restricting editing/deleting if the author assigns/transfers the copyright in the work, i.e., a kind of springing conditional irrevocability to the user's license to the UGC site if the user transfers the copyright. I doubt many UGC sites will undertake such an effort now, but if we see widespread misuse of the protocol, UGC sites should undertake more drastic measures to preserve their sites' integrity.

For more on the social values that this protocol threatens, see my essay on the Regulation of Reputational Information.

UPDATE: The Katz v. Google lawsuit appears to be in the same genre.

Posted by Eric at 09:15 AM | Content Regulation , Copyright , Derivative Liability , Licensing/Contracts , Publicity/Privacy Rights | TrackBack

May 10, 2012

An Unmasking Effort Gets Gutted Some More – Art of Living Foundation v. Does

[Post by Venkat Balasubramani]

Art of Living Foundation v. Does, 10-cv-05022-LHK (N.D. Cal.; May 1, 2012)

I posted earlier about the Art of Living Foundation’s (AOLF) efforts to unmask online critics (posting psueudonymously as ‘Skywalker’ and ‘Klim’). In early rulings, the court rebuffed AOLF’s efforts. AOLF originally brought defamation and trade secrets claims. The court held that any allegedly defamatory statements were protected opinion, and that AOLF failed to identify trade secrets with particularity. The court also stayed discovery of defendants’ identities, finding that the balance of equities favored the preservation of anonymity. (Here's my prior blog post on the case: "Spiritual Group's Attempt to Unmask Online Critics Goes South.")

AOLF filed an amended complaint, dropping the defamation claims but adding claims for copyright infringement. The amendment also specified the allegedly misappropriated trade secrets. With respect to the copyright claim, AOLF alleged that republication of certain “lesson plans” by the Doe defendants constituted copyright infringement and misappropriation of trade secrets.

In a further development in this lawsuit, the court granted the Does’ request to dismiss the copyright claims. The trade secrets claims largely survive, although the court notes that they aren’t the strongest.

Copyright claims: AOLF did not present any evidence that one of the two defendants was involved in any way in republishing the lesson plans, or related notes, so this defendant (Klim) is awarded summary judgment. Skywalker, the second Doe defendant, admitted to posting the text of the lesson plans on his blog. Although he wasn’t entitled to summary judgment on the same basis as Klim, he challenged AOLF’s ownership of the copyrights at issue.

The court finds that the registration certificate presented by AOLF was not prima facie evidence of ownership (because the registration was obtained more than five years after publication). The court goes on to find that the AOLF entity that brought the copyright claim was not the owner of the copyrighted material. There’s an Indian AOLF entity, and one of the declarations let slip that the lesson plans at issue were created “for the benefit of the Art of Living Foundation in India with the understanding that the Art of Living Foundation in India would own [all of the rights to the lesson plan].”

AOLF (US) also tried to argue that the Indian entity assigned the US entity the copyright, but AOLF (US) failed to produce any written record or an assignment, or even that such a writing existed. Even a confirming email would have been plenty, but for whatever reason AOLF (US) was unable to muster evidence on this point.

Trade secrets claims: Defendants continue to batter away at AOLF’s trade secrets, but the court finds that AOLF made the minimal necessary showing that its teaching methods: (1) have independent economic value and are not generally available; and (2) are the subject of reasonable confidentiality restrictions. In particular, AOLF came forward with evidence that although the teaching methods were drawn on “conventional concepts and terminology of Hindu mysticism,” AOLF “incorporate[d] many additional and novel elements.” With respect to confidentiality, AOLF alleged that it required its teachers to sign confidentiality agreements. Although the court expresses some skepticism about the overall merits of AOLF’s trade secrets claims, those claims are sufficient to move forward at this time. However, the court does include language in its order inviting defendants to move for summary judgment on the issue of whether AOLF’s information is truly a trade secret, or indistinguishable from general knowledge of the public or those skilled in the relevant field. The court also raps AOLF on the knuckles for trying to take a third bite at the designation of trade secrets apple. AOLF already submitted an amended designation of trade secrets and sought to amend this designation again. The court says that although it will allow the amendment, this is the last time (“the court puts [AOLF] on notice that this is its final opportunity to amend its trade secret designation with particularity”).

Finally, the court grants the motion to strike as to Klim, finding that AOLF put forth no evidence that Klim was involved in any way in the alleged dissemination of AOLF trade secrets.

SLAPP fees: Finally, the court grants defendants' request for fees as to the defamation/trade libel claim. Although AOLF amended its complaint and dropped the defamation and trade libel claims, there was no evidence that AOLF achieved its goals with respect to these claims through other means. AOLF’s amendment of its complaint to exclude the defamation and trade libel claims was “tantamount to a voluntary dismissal.” (Defendants brought a motion to dismiss and a motion to strike and the court earlier granted the motion to dismiss but declined to reach the merits of the motion to strike.) End result: defendants can seek fees for dismissal of the defamation and trade libel claims.
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This is another example of how things can go wrong when someone tries to squelch speech online. Granted, in countless other cases, these types of claims would have resulted in default judgments without anyone batting an eye, but the Does were represented by counsel (and both Public Citizen and EFF appeared as amici). As a result, the balance of power changed significantly. (It also helps to have a thoughtful judge—in this case Judge Koh—who takes a close look at the issues and seems mindful of the speech implications of the judge's rulings.)

It’s interesting that AOLF’s efforts to unmask the Does were premised in part on AOLF’s copyright claims. These turned out to be insufficient at the end of the day. Courts routinely grant requests to unmask Doe defendants when copyright claims are involved, but this ruling is a reminder that judges should take a close look at those requests, even when the other side may not be represented by counsel. For another example, see Maximized Living v. Google.

Finally, the court’s order makes a reference to how many times the webpages containing the alleged trade secrets were viewed: 147 and 351 in July and August 2010, respectively (before the pages were removed in response to a takedown request sent to WordPress). Given the cloud around AOLF’s copyrights and the multiple entities involved (the takedown request was sent from Vyakti Vikas Kendra India), one wonders about the propriety of the takedown requests. But setting this aside, these statistics raise the question of whether AOLF’s significant expenditure of fees to squelch criticism of it was even remotely worth it. (I would be shocked if their answer today was “yes”.) Compare Pitale v. Holstine.

Given the court’s ruling on the fees issue, and its hints around the strength of AOLF’s trade secrets claims, this case should quickly head towards a settlement. The big question is whether everyone will just go their separate ways, or if AOLF will be writing a check to the Does (or their counsel).

Posted by Venkat at 01:37 PM | Content Regulation , Copyright , Privacy/Security , Trade Secrets

April 26, 2012

Facebook "Likes" Aren't Speech Protected By the First Amendment–Bland v. Roberts

[Post by Venkat Balasubramani with comments from Eric]

Bland v. Roberts, 2012 US Dist. Lexis 57530, 4:11cv45 (E.D. Va.; Apr. 24, 2012)

Bland and his cohorts worked in the Hampton Sheriff’s Office, under B.J. Roberts. Roberts ran for re-election against Jim Adams, and the plaintiffs were lukewarm in their support of Roberts. In fact, three of the plaintiffs went so far as to “like” Adams' Facebook page. Roberts won the election, and he decided to not retain the plaintiffs. He justified the terminations on cost-cutting and budgeting grounds, but plaintiffs argued that their termination violated their First Amendment rights. The court grants Roberts’ motion for summary judgment.

Plaintiffs alleged they engaged in a variety of protected activities, such as placing a bumper sticker on one of their cars and attending an Adams-sponsored cookout, but the court says there is no evidence that Roberts was aware of these activities. The one activity that Roberts knew about was “the presence” of two of the plaintiffs on his opponent’s Facebook page. However, with respect to this activity, the court says that plaintiffs did not point to any specific statements they made on Adams’ Facebook page. One plaintiff claimed he posted a comment to Adams' page, but he later took it down, and the comment wasn't presented to the court. Plaintiffs “liked” Adams' Facebook page, and there was no dispute that Roberts was aware of this, but the court says this is insufficient:

[Roberts'] knowledge of the posts only becomes relevant if the court finds the activity of liking a Facebook page to be constitutionally protected. It is the court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.

[emphasis added; citing Mattingly v. Milligan, mentioned in Eric’s quick links here] The court declines to “infer the actual content of [plaintiff’s] posts from one click of a button on Adams’s Facebook page.”

The court also says that plaintiffs don’t adequately state a freedom of association claim. The court cites to the standards for when it's permissible to terminate public employees for their political affiliations, but it doesn't engage in any analysis because, in the court's view, plaintiffs have not produced any evidence of association with Adams' campaign that Roberts knew about--and any Facebook association is insufficient:

[a]side from the Sheriff’s admission that he knew [two of the plaintiffs] had been on Adams’s Facebook page, there is little to no evidence that rises to the level of a genuine dispute about whether the Sheriff actually know about the Plaintiffs’ support of Adams.

Even assuming plaintiffs could point to statements or association that the Sheriff knew about and that played a part in his decision to terminate plaintiffs, the court says Roberts is protected by qualified immunity. The Sheriff had not “transgressed [any] bright lines.”
__

Gak!

The court’s conclusion on qualified immunity may or may not be defensible, but the court veered off course in concluding that a Facebook like is not speech. Maybe the court slept through Arab Spring and the many other instances of online activism in the past five years. Maybe the court is unaware of the robust body of First Amendment precedent which says that protection for expression is not limited to just actual words. Hello, Tinker (black arm bands) and Texas v. Johnson (flag burning)! More likely, as Eric notes in his comments below, the practical implications of a "like" threw the court for a loop.

It’s easy to dismiss Facebook "likes" as one of those mindless knee-jerk online activities we all routinely engage in that have little or no societal value. Courts can discount Facebook friendships in other contexts (see, e.g., Quickly v. Karkus, discussed here: “It’s Officially Legal: Facebook Friends Don’t Count”), but it’s well off the mark to say in this case that "likes" were not speech for First Amendment purposes. As menial as a Facebook like may be in the overall scheme of life, it’s an announcement to your Facebook friends that you support something, whether it’s a cause, a candidate, a company, or another person. A like also promotes a particular page or newsfeed to your friends, which sounds like quintessential expressive activity. [See Eric's comments below for various potential implications of a Facebook like.]

While I remain leery of Facebook's "like" ecosystem, I "dislike" this ruling.
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Eric's Comments

Oh man, the technological implications of social media sure does baffle the judicial system. What does it mean to "friend" someone? What does it mean to "like" something? Most judges seem to want to curl up into a ball when posed with such thorny questions. Could you imagine a judge trying to grok what a Facebook "poke" means? [FWIW, a Westlaw ALLCASES search for "facebook /s poke" yields no results...yet.]

From my perspective, the judicial confusion about "likes" partially stems from the fact that the single technological interaction of "liking" something has multiple effects. When John Doe "likes" something on Facebook, it means:

1) When other people visit that content item/page, John Doe publicly appears as someone who "likes" it.
2) In addition, some folks are privately notified that John Doe "likes" the item/page, such as the person who posted the item/page as well as other people who are referenced on the page.
3) Depending on John Doe's privacy settings, John Doe's "like" may be communicated to his friends via his newsfeed.
4) If John Doe likes a business/interest, it may appear on John Doe's info/profile page.
5) If John Doe likes a business or ad, the business or advertiser may be able to buy an ad that redisplays John Doe's "like" to John Doe's friends.
6) John Doe may be subscribed to further content regarding the thing he likes.
7) Under the hood, Facebook treats the "like" as an affinity that modifies Facebook's perception of the relationship between liker and likee (i.e., it changes the social graph).

I'm sure there are other technological implications of "liking" something on Facebook; these are only the implications that occur off the top of my head. Perhaps Facebook's system is too complicated for lay folks to understand. The fact I can't easily enumerate the implications of a "like" is disconcerting. Personally, I think Facebook should disaggregate these implications so that a single action doesn't have so many simultaneous implications. At minimum, I am much less likely to "like" things on Facebook because there is so much import of such a simple action, and I definitely don't "like" any businesses because I think Facebook's Sponsored Stories program is not in either my or my friends' best interests. I explain these points in more detail in my post on Fraley v. Facebook.

I "like" Venkat's assessment above that "liking" on Facebook is First Amendment-protected speech. Looking at the complete list of implications above, collectively there is no question about that. But even if we focus only on implication #1, I don't even see the First Amendment issue as a close question. Listing a person's name as an "endorser" of a political candidate is core First Amendment activity. That's exactly what the "likes" did here. Perhaps, as Venkat indicates, we might otherwise excuse Roberts' firings through qualified immunity, or in fact maybe the budget cutting wasn't pretextual, but the judge's techno-confusion prevented it from reaching those questions squarely. This looks like an excellent case for an appeal.

Related posts:

Is the Florida Bar Taking Facebook Friendship Too Seriously?

UPDATE: On an email list, John Rothchild called our attention to Three D, LLC and Sanzone, Case No. 34-CA-12915 (NLRB ALJ Jan. 3, 2012):

Spinella’s selecting the “Like” option on LaFrance’s Facebook account constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity. Spinella’s selecting the “Like” option, so that the words “Vincent VinnyCenz Spinella…like[s] this” appeared on the account, constituted, in the context of Facebook communications, an assent to the comments being made, and a meaningful contribution to the discussion....I find therefore that Spinella’s selecting the “Like” option, in the context of the Facebook conversation, constituted concerted activity as well.

Posted by Venkat at 12:22 PM | Content Regulation

April 24, 2012

Internet Intermediary Law Slides from Stanford Guest Lecture

By Eric Goldman

I recently guest-lectured at an Internet Law course at Stanford, run by Jennifer Granick and Richard Salgado. My slides.

Jennifer asked me to cover 47 USC 230 and 17 USC 512 in a single session. I know other Internet Law professors combine the topics, but I normally don't in my Internet Law course. When I cover online copyright liability, I discuss Section 512 as a defense to secondary copyright infringement. Later, I talk about publication torts, including defamation, and then talk about Section 230 as an Internet exceptionalist approach to publication torts based on third party content. I do have a wrapup slide at the end of my Section 230 (included in the slides linked up) that contrasts Sections 512 and 230, but I have never taught them together. I thought it worked out nicely, and it gave me a chance to show different ways plaintiffs are attacking UGC websites. Check it out.

Posted by Eric at 03:27 PM | Content Regulation , Copyright , Derivative Liability , Trademark | TrackBack

April 18, 2012

Texas Ruling Shows the Benefits We'd Get From a Federal Anti-SLAPP Law--American Heritage Capital v. Gonzalez

By Eric Goldman

American Heritage Capital, LP v. Dinah Gonzalez and Alan Gonzalez, No. DC-11-13741-C (Texas District Court April 13, 2012). The amended complaint. The defendant's anti-SLAPP motion.

This may be the first application of Texas' new anti-SLAPP law to Internet postings. It's a fine example why Texas enacted the law in the first place. And it's a good preview of the benefits we could get from federal anti-SLAPP protection.

American Heritage Capital is an online lender. Apparently, AHC didn't fund a loan requested by Mrs. Gonzalez, and Mr. Gonzalez posted critical remarks about AHC at multiple websites (including Zillow, CreditKarma and Ripoff Report). Allegedly, AHC's president then sent Mrs. Gonzalez an email threatening her if she didn't remove the posts, including the following passage:

You started this. You can end it. Otherwise I will end it for you, and it won’t be pretty.

AHC then sued the Gonzalezs in October 2011. In January, AHC voluntarily dropped the lawsuit against Mrs. Gonzalez. (I asked AHC's lawyer why it did so, but the lawyer declined comment; the fact that Mr. Gonzalez admitted he made the posts may have had something to do with it). In March, the court dismissed the lawsuit with prejudice and made Mr. Gonzalez eligible for anti-SLAPP fee-shifting. Last week, the court granted the fee-shift, awarding Mr. Gonzalez:

* over $15k in attorneys' fees
* another $15k in sanctions
* additional financial concessions if AHC challenges this ruling on appeal and loses

Sadly, this situation is all too common. The Gonzalezs griped online about their experiences as consumers, AHC allegedly tried to bully the posts off the Internet, then AHC tried to use the court system to bully the posts offline. In states without anti-SLAPP laws (or with inadequate ones), AHC almost certainly gets its desired outcome (the content removed) to the detriment of other prospective consumers. Instead, thanks to Texas' new anti-SLAPP law, the Gonzalezs win quickly and the plaintiff writes a non-trivial check for their troubles (2x the attorneys fees). These are the kinds of outcomes I wish we'd see across the country, not just in Texas and California and a few other states with reasonably strong anti-SLAPP laws. That's another reason why I support federal anti-SLAPP legislation.

See more on anti-SLAPP rulings and consumer reviews.

Posted by Eric at 01:15 PM | Content Regulation | TrackBack

March 30, 2012

What Do Soymilk and Nutella Have to Do With an Online Harassment Case?--Taylor v. Texas

By Eric Goldman

Taylor v. State, 2012 WL 955383 (Tex. App. Ct. March 22, 2012)

In service of you, the reader, I read a lot of cases to find the ones worth blogging. Inevitably, some of those cases are gross. Like this one.

"Sataya," the stage name of Scheri Couch, provides online psychic services at $3 per minute. The opinion says she claims to be a direct descendant of Jesus and Mary Magdalene. Her website now makes different dubious claims about her lineage.

The defendant, Christopher Mark Taylor, claims he wanted to test her psychic abilities before becoming a customer. To do so, Taylor sent her multiple chat messages through her website. First, Taylor sent her rude and abrupt chat messages. Then, Taylor sent some messages falsely claiming to be her hairdresser. In one, he (under the pretense of being her hairdresser) invited Couch to lunch; when she discovered the ruse after showing up at the venue, it frightened her. Taylor claimed that, as a psychic, she should have divined the ruse.

In addition to these online contacts, for reasons that still don't make sense to me, Taylor mailed Couch a "used" condom and "soiled" panties, items that he doctored up using soymilk and Nutella. Presumably, a real psychic would have divined that the items were edible, not scatological. Nevertheless, I'll never think about soymilk or Nutella the same after this. Eww.

Texas prosecuted Taylor for online harassment. The jury convicted him in 20 minutes. The judge sentenced him to 1 year confinement but suspended that and ordered community supervision. His appeal goes nowhere.

He tried to suppress the condom and panties evidence. He argued they were extraneous to the online harassment charge. The court disagrees, saying that the items can provide insight into his intent when he sent the chat messages. The court noted the risk that the evidence would prejudice the jury (it would certainly freak me out as a juror), but it nevertheless says the evidence meets the 403 relevance standards.

Defense counsel also probed Couch's bona fides as a psychic, eliciting this concession from her: "I have not been tested by an authoritative body as to my psychic abilities." Apparently this conflicted with a claim on her website that she had been "tested in the top six percent in 'ESP perception or sensories.'" The trial judge refused to admit printouts of these contradictory claims from her website. The appeals court upholds the refusal, saying that Taylor admitted to all of the key facts supporting the online harassment claim, and therefore undermining Couch's credibility on a collateral matter wouldn't change the jury's decision. The court says:

We cannot conceive how weakening Couch's credibility about the contents of her website would have affected the jury's implicit rejection of appellant's defensive theories relating to his intent in sending the message.

It's a little hard to draw big life lessons from a case like this, but I think picking a psychic is a bit like picking any other professional service provider. The relationship has to be grounded in trust; if you don't trust your service provider, find a different one, because no performance "test" will cure any trust skepticism. And with respect to verifying a psychic's powers in particular, if it turns out that they are telling the truth, it seems foolhardy to antagonize someone who can make "petitions to the universe".

Posted by Eric at 08:56 AM | Content Regulation , Evidence/Discovery | TrackBack

March 29, 2012

Facebook Posts Complaining About Supervisor Conduct do Not Support Retaliation Claim – DeBord v. Mercy Health System

[Post by Venkat Balasubramani]

DeBord v. Mercy Health System of Kansas, Inc., 10-4055-SAC (D. Kan.; Mar. 20, 2012)

DeBord worked in Mercy Health Systems’ radiology department for approximately five years. She had a supervisor (Weaver) who the court describes as having “unusually cold hands.” Apparently the supervisor was in the habit of asking employees to “feel his hands.” He also “touch[ed their] upper arms or the back of their necks.” Not surprisingly, most employees did not react positively to Weaver’s conduct.

One day, Weaver made comments to DeBord about her productivity which upset her. Apparently in an effort to comfort DeBord, Weaver attempted to put his arm around her. DeBord declined the attempted “hug” (as the court describes it). Later that day, she posted comments on Facebook mentioning Weaver’s touchy-feelyness. She also mentioned that she liked it when her boss added extra money to her paycheck for hours which she did not work:

1. Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn’t even work…awesome!!
2. SB is sooo disappointed…can’t believe what a snake my boss is…I know, I know everyone warned me.
3. he adds money on peoples checks if he likes them (I’ve been one of them)…and he needs to keep his creapy (sic) hands to himself…just an all around d-bag!!

The posts caused a stir, and Weaver brought them up with Mercy’s director of HR, who asked DeBord whether she authored the posts. She initially denied that she had, but she later admitted it. The HR director suspended her without pay as a result of this. Presumably in an effort to investigate any allegations of harassment, the HR director also asked DeBord about her “creapy hands” comment. DeBord replied that “Weaver had made comments about her body and would run his hands up inside the arm of her scrubs and down the inside the back neck of the scrubs.” When asked whether DeBord considered this to be harassment, she shrugged it off, saying that she thought her supervisor was “just a pervert.”

The HR director separately investigated the issue of extra money in DeBord’s paycheck. Although DeBord was instructed to keep the matter confidential, she apparently texted a co-worker about the issue while the investigation was ongoing.

Shortly after the investigation, Mercy terminated DeBord, giving the following reasons: (1) she had been dishonest in denying the Facebook posts; (2) she made unfounded accusations against her supervisor about the extra money in her paycheck; (3) she failed to maintain confidentiality regarding the paycheck investigation; and (4) her discussion of the paycheck investigation with her co-workers was disruptive. DeBord sued, asserting claims for retaliation, harassment, and battery. Weaver counterclaimed for defamation.

Retaliation: The court assumes that DeBord made out a prima facie case of retaliation, but nevertheless dismisses DeBord’s claim, finding that the employer offered a legitimate, non-discriminatory reason for her discharge: “her inappropriate behavior and dishonesty [relating to the Facebook post].” Because the employer articulated a legitimate reason for her discharge, DeBord was required to come up with evidence showing that the justifications were pretextual. The court finds her evidence lacking. At the time of her termination, the HR director believed that DeBord had been overpaid, although this turned out to not be true (she had been overpaid $475 due to a clock-in error). More importantly, the court agrees with the employer that DeBord shouldn’t have texted a co-worker about the investigation after being instructed not to do so and she shouldn’t have lied about making the Facebook posts.

Harassment: The court dismisses the harassment claim, finding that the employer had reasonable measures in place and acted promptly to correct any harassment once it was brought to its attention.

Battery: DeBord’s assault claim based on the “attempted hug” fails. The court finds that the attempted hug does not amount to either an assault or a battery because there was no intent to cause bodily harm, and there was no offensive touching.

Defamation (counterclaim): Weaver’s defamation claim against DeBord was premised on three statements: (1) the Facebook post about extra money in her paycheck; (2) a text message about the overpayment investigation; and (3) two oral statements to co-workers relating to the investigation. The key question on the defamation claim is whether the statements damaged Weaver’s reputation and the court finds that Weaver fails to put forth adequate evidence of damage to his reputation. Ironically, one of the witnesses testified that she had an opinion of Weaver as “creepy” (the testimony quoted by the court is equivocal but that’s a fair reading of it) anyway, but this was based on the witness’s own experience with Weaver. Another witness testified that she avoided Weaver because Weaver’s statements made her “feel uncomfortable.” This witness scoffed at the idea that her opinion of Weaver’s character would be altered by a single post:

No. I find it very funny that – that his character is in question based on a post. I would be more concerned that his character would be in question due to the way he acted and the things he said in the department. That is – I’m laughing. I mean, that is almost comical to me.

The HR manager also testified that although he had some problems with Weaver, these perceived problems were because Weaver had “difficulty leading the department.” The court also addresses the testimony of a few other witnesses but finds that this testimony is insufficient to raise an issue of fact as to damage to Weaver’s character from DeBord's statements.

__

The first thing that jumps out at you about this dispute is the totally nonchalant way in which the court treats Weaver’s conduct. Weaver has cold hands so he has a habit of making employees feel how cold his hands are. This touchy-feeliness was corroborated by several employees in deposition testimony. The court sloughs this off as typical workplace conduct. Is the court caught in a time warp? Is this an episode of Mad Men? Interestingly, in resolving Weaver’s defamation claim, the court says that Weaver’s reputation is not damaged, recounting evidence that other employees did not view Weaver's conduct as always appropriate. While the court accepts evidence that other employees had a less-than-stellar opinion of Weaver (due to Weaver’s conduct) for purposes of the defamation claim, this evidence gets no traction at all in the court’s evaluation of whether Weaver engaged in conduct that’s not appropriate in the workplace. The court also signs off on the employer's less than thorough investigation of DeBord's complaints, which consisted of interviewing DeBord, Weaver, and one other employee. The employer did not appear to have spoken to the several other employees who described Weaver's conduct as inappropriate.

Then there’s the content of DeBord’s Facebook posts. One complained about allegedly inappropriate conduct occurring in the workplace and the other implies that DeBord’s boss favored people he likes by giving them extra money on paychecks. You would think an employee could not be fired for making these types of posts, but the court finds no problem with this. Hello, NLRB! I understand that NLRB’s policy on social media terminations only governs social media posts which raise certain types of issues relating to employment practices, but given the broad interpretation which the NLRB has given these guidelines, I was surprised to see a court say that it was appropriate for the employer to fire DeBord based on these posts. (I continue to think the NLRB policy statements appear overly aggressive in scope, and maybe courts will be inclined to agree. In any event, there’s certainly some tension here.)

At the end of the day, the harassment issue came to the surface due to DeBord’s Facebook posts, but this is exactly what she was terminated for. The employer’s question as to whether DeBord authored the Facebook posts was curious since I thought this would have been obvious from the face of the posts. DeBord’s denial that she made the posts—after the HR director showed her the posts on his laptop—was also interesting, but entirely understandable as a reaction in the heat of the moment.

It’s not surprising to see Weaver’s defamation claim fail. The guy who several employees describe as overly touchy should think twice about bringing a defamation claim based on statements about his workplace conduct, but that’s neither here nor there.

In an age where employees and social media are viewed as toxic mix from a liability standpoint, it’s nice to see a judge who isn’t overly agitated by a social media-based employment decision. On the other hand, the facts of this case probably warranted a closer look, and I’m surprised the employer received a free pass. [Employment lawyers: please enlighten me if I’m missing something.]

[Eric's reminders from 4th grade: 1) Keep your hands to yourself. 2) It's always the cover-up, not the crime.]

Previous posts:

Employee Wins Harassment Claim Based in Part on Co-Workers' Offsite Blog Posts
Company Not Responsible for Harassive Comments by Coworker on Personal Facebook Page -- Amira Jabbar v. Travel Services
Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?

Posted by Venkat at 09:24 AM | Content Regulation

Lawsuit Against Avvo for Lawyer's Profile Dismissed as SLAPP--Davis v. Avvo

By Eric Goldman

Davis v. Avvo, 2:11-cv-01571-RSM (W.D. Wash. March 28, 2012). Avvo's post when the lawsuit was initially filed.

Florida lawyer Larry Joe Davis, Jr. claimed that his Avvo profile misrepresented his practice. He sued Avvo in Florida for false advertising, publicity rights misappropriation and unfair trade practices. Avvo invoked the forum selection clause in its user agreement to successfully transfer the case from Florida to Washington. In this ruling, the court finds the lawsuit is a SLAPP and dismisses the case. Further, per Washington's anti-SLAPP statute, Avvo will get its attorneys' fees plus a $10k bonus. In other words, another lawyer-plaintiff will be writing a large check to the defense for a lawsuit he never should have brought.

The court first finds that a lawsuit over providing information to the public to help them choose professional service providers constitutes "an action involving public participation.” The court treats this as self-evident, but as I've documented before, California courts (for anti-SLAPP purposes) don't automatically treat consumer reviews as matters of public concern even though I think they should. It's good to see this court recognize the social importance of providing information that guides the marketplace's invisible hand.

Once Avvo made that threshold showing, the burden fell on Davis to show his prima facie case, which he failed to do. On the crucial question of whether Avvo's allegedly wrongful activities occurred in "trade or commerce," the court says Avvo's ad-supported listings are not sufficiently commercial, citing Avvo's 2007 win in the similar Browne case.

The key to this ruling is that Washington's anti-SLAPP law is more robust that Florida's mostly toothless anti-SLAPP protection. Had Avvo not been able to transfer the case to Washington and get its choice-of-law provision enforced, it probably still would be litigating the case and burning its cash. This story turned out well for Avvo, but the case nevertheless highlights the potential deficiencies of some states' anti-SLAPP laws. This is another reason why we need federal anti-SLAPP protection.

Posted by Eric at 08:16 AM | Content Regulation , Marketing , Publicity/Privacy Rights | TrackBack

March 20, 2012

Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board

[Post by Venkat Balasubramani]

Bell v. Itawamba County School Board, 11CV00056-NBB-DAS (N.D. Miss.; Mar. 15, 2012) [.pdf]

Bell posted a rap video while he was a senior at Itawamba Agricultural School. The video, which was shared which over 1300 of his Facebook friends, criticized two coaches at the school and included the following phrases:

looking down girls’ shirts / drool running down your mouth / messing with the wrong one / gonna get a pistol down your mouth
middle fingers up if you can’t stand that nigga / middle fingers up if you want to cap that nigga

After the video came to the attention of the school, Bell was pulled out of class and met with the principal. Bell acknowledged making the video, but he said that the allegations of improper contact with female students were true. After a disciplinary hearing (where Bell was represented by counsel), Bell was suspended for seven days and transferred to an “alternative school” for the remaining five weeks of the term. The school district concluded that Bell “threatened, harassed, and intimidated school employees with the publication of his song.” Bell sued, alleging violations of his First Amendment and Due Process rights.

Off-campus conduct versus in-school conduct:

As in many school discipline cases based on social networking posts, the first question was whether the school had the authority to discipline Bell for conduct that ostensibly occurred off-campus. The court acknowledges mixed precedent on this issue, but says that the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District supports discipline for off-campus conduct. I’m not familiar with the precedent in this area, but Tinker involved on-campus speech, and I think it’s a stretch to see Tinker as clearly standing for the proposition that off-campus speech can be regulated under the same First Amendment standards as those articulated in Tinker. (The Supreme Court cases following Tinker have all dealt with on-campus or school sanctioned events.) That said, my instinct is that this may ultimately be a tough battle for students to win, at least where the speech at issue relates to the school, teachers, or administrators. (See Eric's post on Layshock and Blue Mountain for differing results on this issue from a pair of Third Circuit cases: Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles.)

Whether the suspension was appropriate under Tinker:

The court says that high school students do not enjoy the same First Amendment rights as adults or people outside the school setting. According to the court, a school may discipline a student for speech where disruption is “reasonably foreseeable.” The court frames the issue as whether (1) Bell’s song “caused or tended to cause a material and/or substantial disruption” and (2) whether “it was reasonably foreseeable to school officials that the song would cause a material and/or substantial disruption.” Evidence in the record showed that one of the coaches heard of the song through his wife and he had also discussed the song with several students. After listening to the song, he complained to the principal and also testified that the song (and exposure of the song) had affected his teaching style. The other coach also testified as to supposed adverse effects to his teaching. This evidence, along with the fact that the song was published to Bell’s 1300 friends and uploaded to YouTube, where it would be exposed to an “unlimited internet audience,” leads the court to conclude that the school’s forecast of substantial disruption was reasonable. The court also affirms the school district’s conclusion that posting the song constituted “harassment and intimidation of teachers and possible threats against teachers.” Finally, the court says that the individual actors are entitled to qualified immunity.

__

The threat issue seemed like a red herring. Given the incidents of school violence, schools should undoubtedly take any and all threats seriously, but you have to wonder whether the courts (and the school) looked at the video and took it out of context. It’s a rap video…by a high school senior…posted to Facebook. Were the coaches seriously threatened by it? Did the student intend it to be a threat? Unlikely. The First Amendment allows schools to punish students based on speech that does not reach the level of a “true threat,” but it was strange to see the court sign off on the school’s conclusion that Bell threatened (or harassed or intimidated) the coaches based on the video. (Then again, even outside the school context, courts have grown increasingly willing to call YouTube and Facebook videos threats which can support criminal prosecutions. See Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a "True Threat" -- US v. Jeffries; Federal Prosecution Over "Threats" on Craigslist – US v. Stock.)

The court’s conclusion on the disruption issue was also debatable. Tinker has spawned a morass of lower court decisions which struggle with whether Tinker required a “substantial threat of disruption” or a “reasonable forecast” of disruption and what sort of an evidentiary burden the school district bears in this context. Lower court cases go both ways on this, but here there didn’t seem like there was much—apart from the teachers' own testimony that the video had an ‘adverse effect’ on their teaching style—to support the conclusion that there was a credible threat of disruption.

Finally, the qualified immunity decision was a tough hurdle for Allen. I didn’t check the complaint to see whether he brought claims for injunctive relief (clearing his record) and nominal damages, but I wondered whether this strategy could have avoided the harsh effects of qualified immunity.

School administrators should be able to punish students for causing disruption, and criticizing teachers, administrators and other students should warrant discipline in some instances, but I wonder if the court's ruling gives short shrift to the First Amendment rights of students. If all that is required is some self-serving allegation of an "adverse effect" on teaching style, this means that a teacher can shut down student speech any time the student says something critical about the teacher. The court's stamp of approval of the school's conclusion that the video harassed and intimidated the teacher also made me think that the court didn't have a very expansive view of the scope of student speech rights. The final thing that made me pause is that the student said the allegations of inappropriate contact between the coaches and students were truthful, and the court did not comment on this at all. Posting a rap song on Facebook and YouTube isn't exactly the most appropriate way to bring something like this to the attention of school administrators, but if the allegations were true, this should change the First Amendment calculus somewhat.

In the old days, this would have been nothing more than hallway gossip, which many would view as harmless. Maybe Bell would have found a way to convey his message through the school newspaper or in an assembly. The same message can now be broadcast (as the court notes) to an "unlimited internet audience." Indeed, Bell had 1300 friends, and his posting the video is a "publication" in the best and worst senses. It's protected by the First Amendment, but it reaches the bulk of the school community in ways that might be impossible through hallway gossip or even through the school newspaper or a school assembly. We're not used to students having a better ability to reach other students than the administration has. Students also don't need to go through any channels to get their message out there. Maybe this shift in power causes administrators to overreact somewhat?

Eric posted about a pair of Third Circuit cases a couple of years ago. Not much has changed since then, and I think we can expect to see a ton of litigation around this issue, with little predictability. The Supreme Court recently denied cert on a pair of school discipline cases, so we'll have to wait awhile to get clarity from the Court, to the extent the Court can be expected to articulate a bright line rule of any sort.

Added: here's a link to what looks like the video in question: "T-Bizzle - PSK da Truth" (h/t Brad Wassom, who also covers the case).

Related posts:

Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech--TV v. Smith-Green
Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation--Doninger v. Niehoff
Private Facebook Group's Conversations Aren't Defamatory--Finkel v. Dauber

Other coverage:

Ed Week: Judge Denies Speech Protection to Student's Rap Song
Student Press Law Center: Judge upholds punishment of Miss. student who posted rap song on Facebook

Posted by Venkat at 05:44 AM | Content Regulation

March 12, 2012

Another Newspaper Isn't Liable for User Website Comments Per 47 USC 230--Spreadbury v. Bitterroot Library

By Eric Goldman

Spreadbury v. Bitterroot Public Library, 2012 WL 734163 (D. Montana March 6, 2012). Magistrate's Findings and Recommendations from November 2011 (Spreadbury v. Bitterroot Public Library, 2011 WL 7462038 (D.Mont. November 30, 2011). The Justia page.

It's not easy to predict what will set off a pro se litigant. Just recently I blogged about Kanal Gaston's serial litigation triggered, in part, by a missing sex toy. The facts underlying today's litigation started when Michael Spreadbury asked his local library to add an item to its collection, and the library refused. (It's not entirely clear what the item in question is, but I believe it's a letter written by another local resident to President Obama). The situation spiraled downward such that the library banned Spreadbury from its premises, so naturally the next stop was the courthouse. Spreadbury (as a pro se litigant) has sued what seems like half of Montana and, in less than a year, has helped generate a PACER docket of over 250 entries.

The county newspaper, the Ravalli Republic, has covered Spreadbury's situation extensively (see its archives). Spreadbury sued the newspaper publisher Lee Enterprises for defamation based on one of the stories as well as user comments. In this opinion, the court easily dismisses Lee Enterprise's liability for web users' comments to the article per 47 USC 230:

Through its website, Lee Enterprises provides an “interactive computer service,” 47 U.S.C. § 230(e)(3), that “enables computer access by multiple users to a computer server.” Collins, 703 F .Supp.2d at 878 (holding that a newspaper cannot be held liable for postings by third parties on its website) (quoting DiMeo v. Max, 248 Fed. Appx. 280, 282 (3rd Cir.2007)). The website is a “neutral tool” and offers a “simple generic prompt” for subscribers to comment about articles. Fair Housing Council, 521 F.3d at 1162, 1174. Lee Enterprises does not develop or select the comments, require or encourage readers to make defamatory statements, or edit comments to make them defamatory. See Collins, 703 F.Supp.2d at 878; Miles v. Raycom Media, Inc., Slip Copy, 2010 WL 3419438, *2–3 (Aug. 26, 2010 S.D. Miss.)(holding that a newspaper is not liable for comments posted by third parties on its website). Accordingly, I agree with Judge Lynch that Lee Enterprises is entitled to summary judgment on Spreadbury's claims that are predicated on third-party comments.

As I've indicated before, Section 230 would apply even if the newspaper did more than act a "neutral tool." Indeed, you may recall my comprehensive blog post on newspapers' liability for users' comments, which showed that newspapers consistently get Section 230 immunity for users' defamatory web comments. Also see my post on the Delle case, a more recent entry in the genre.

Posted by Eric at 08:48 AM | Content Regulation , Derivative Liability | TrackBack

March 11, 2012

Jan.-Feb. 2012 Quick Links, Part 3 (Defamation/Content Regulation Edition)

By Eric Goldman

Defamation

* McKee v. Laurion, No. A11-1154 (Minn. App. Ct. Jan. 23, 2012) The appeals court revived a doctor's defamation lawsuit over online criticism. Prior blog post on doctors' lawsuits over online criticism.

* Schimmel v. YouTube, Inc., 2012 WL 280703 (N.Y. Sup. Ct. Jan. 30, 2012). In a lawsuit over allegedly defamatory YouTube videos, the plaintiffs (wisely) voluntarily drop YouTube as a defendant.

* Support Group of the Holy Synod of the Ethiopian Orthodox Tewahedo Church v. Automattic, 1:12-cv-00249-BAH (D.C. D.C. complaint filed Feb. 15, 2012). Church group sues Wordpress for allegedly defamatory user blog. Hello 47 USC 230! The blog at issue.

* Penachio v. Benedict, 2012 WL 10971 (2d Cir. Jan. 4, 2012): "New York courts do not interpret “transacting business” to include “defamatory utterances” sent into New York state, unless the conduct also included “something more.”...Here, Penachio and Carr argue that the “something more” was established because Benedict and Van Pelt had been physically present in New York for a guardianship proceeding, had contacted New York residents by email and telephone, and had called upon New Yorkers to respond to their YouTube videos. However, this argument is foreclosed."

Content Regulation

* thedirty appealed its Section 230 loss in Jones v. Dirty World, setting up what may be the most important (and dangerous) Section 230 showdown in a federal appellate court in several years. Prior blog post.

* Meanwhile, the lawsuits against thedirty keep coming, including Hare v. thedirty and Doe v. thedirty.

* Deer Consumer Products, Inc. v. Little, 2012 WL 280698 (N.Y. Sup. Ct. Jan. 27, 2012). Stock trader/griper not automatically subject to NY jurisdiction even though his LinkedIn page references a NY domicile, but court orders jurisdictional discovery. The trader also loses his bid to litigate pseudonymously, but the court specifies a protective order. Prior blog post on this case.

* Lyrissa Lidsky on regulatory overreactions to cyberbullying.

* Barnes v. Zaccari, 2012 WL 373316, (11th Cir. Feb. 7, 2012): "Zaccari says that Barnes engaged in threatening behavior. But Barnes's Facebook collage, emails, and letter—when viewed in the light most favorable to him—reveal a student who is passionate about environmental issues, but do not require an inference that Barnes intended to harm someone. Zaccari claims that his name connected to the word “memorial” in Barnes's Facebook collage suggests that Zaccari would soon be dead. But reasonable minds could differ. Several university officials contemporaneously viewed the collage and concluded it was not threatening. And the Director of the VSU Counseling Center, Dr. Victor Morgan, told Zaccari that the collage was not a threat."

* Brain Research Labs, LLC v. Clarke, 2012 WL 239578 (Cal. App. Ct. Jan. 26, 2012). Lawyer's YouTube video to prospective clients about a dietary supplements lawsuit covered by anti-SLAPP, but the plaintiff established its prima facie case enough to avoid dismissal.

* Lengthy story about the litigation practices of Melaleuca's founder, Frank VanderSloot. EFF coverage. Blog coverage of Melaleuca. Another good reason to support federal anti-SLAPP legislation.

* Facebook's content abuse standards.

* Blogger doesn't qualify for Illinois shield law.

* Rubino v. City of New York, 2012 WL 373101 (N.Y. Sup. Ct. Feb. 1, 2012). A teacher fired for implying on Facebook that she hoped her students would die was reinstated: "with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable."

* California's defense of the violent video games law cost taxpayers nearly $2M. Yay for us!

* Mandatory graphic images on cigarette packages violates the First Amendment.

Posted by Eric at 11:36 AM | Content Regulation | TrackBack

March 09, 2012

Fake Political Attack Video Doesn't Violate Lanham Act--Ron Paul v. Does

By Eric Goldman

Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 3:12-cv-00240-MEJ (N.D. Cal. March 8, 2012)

The Doe Defendants registered the alias “NHLiberty4Paul" at YouTube and Twitter and posted a YouTube video attacking Jon Huntsman. The video ends "American Values and Liberty – Vote Ron Paul." The Does acted without Paul's permission--so much so that Paul sued them for violations of the Lanham Act and defamation. After filing the lawsuit, Paul sought to unmask the Does.

The court denies the unmasking request because Paul's Lanham Act claims weren't valid. (By doing so, the court sidesteps a battle over which of several different legal standard should govern the unmasking request). The federal court then declines to exercise supplemental jurisdiction over the state-law defamation claim.

The lawsuit's subject matter is a fake political video. It's "selling" a candidate (or, more accurately, trying to improve the competitive posture of candidate A by degrading the attractiveness of rival candidate B), but it's not selling anything commercial. Rebecca explained this when the complaint was first filed. Because the Lanham Act governs commercial activity, not political activity, it's clearly inapplicable to this situation.

To try to salvage the situation, Paul tries two mockable arguments. First, he argues that YouTube and Twitter are commercial sites, and that gives the dispute enough commerciality. The court rightly points out that the inquiry is about the defendant's conduct, not the websites where it took place, and notes the argument's illogic would mean non-commercial activity on any commercial website would be governed by the Lanham Act. In a footnote, the court adds that "using another company’s commercial website to post a comment or video is just far 'too attenuated' to result in an individual’s own conduct automatically meeting the Lanham Act’s commercial use requirement."

Second, Paul argues that "the video was intended to frustrate Plaintiff’s fundraising efforts and increase the amount of money contributed to Presidential nominees other than Ron Paul." The court says the Lanham Act is predicated on the defendant trying to improve its competitive status, and these defendants had no competing services; and the video on its face didn't try to solicit any donations.

In this case, it seems likely that the Does would suffer extra-judicial punishment if their identity gets revealed, irrespective of the case's merits. Kudos to the judge for aggressively gatekeeping the unmasking request rather than just rubber-stamping it. (Venkat emailed me: "I wonder if N.D. Cal. Judges are savvier at screening out these types of issues since they must deal with so many request to unmask.").

This case also reinforces that the Lanham Act is not designed to regulate fake content or consumer confusion about the source of content injected into the information ecosystem. But that makes me wonder if other reputation-protective legal doctrines might apply better, including defamation (kicked to the state court) or perhaps California's recent e-personation statute.

Some related posts:

* Reputation Management Lawsuit Is Shot Down--Bernard v. Donat
* Court Smacks Down Koch Industries' Attempt to Shut Down Satirical Website -- Koch Industries v. Does
* Griping Patient Goes Too Far Posting Fake Content in Doctor's Name--Eppley v. Iacovelli

Posted by Eric at 08:20 AM | Content Regulation , Marketing , Trademark | TrackBack

March 05, 2012

Wikipedia Edits Support Defamation Claim--Pitale v. Holestine

By Eric Goldman

Pitale v. Holestine, 2012 WL 638755 (N.D. Ill. Feb. 27, 2012)

Given the size and scale of its database, it's remarkable that we don't see more US defamation lawsuits filed (rather than just threatened) over Wikipedia entries. It's even more remarkable when you consider Wikipedia's unique editorial practices, such as allowing anyone to edit and not having a paid editorial staff, both of which defy the normal offline editorial conventions forged from the courtroom crucible over the centuries. We've seen a few defamation lawsuits over Wikipedia entries, such as celebrity lawsuits (Fuzzy Zoeller, Ron Livingston) and sue-the-world lawsuits (e.g., this one), but most of those don't appear to have gone very far. Indeed, I believe this opinion is the first one in Westlaw's database to discuss the substance of a defamation claim for Wikipedia edits. (The only other similar one I found was Park West Galleries, Inc. v. Hochman, 2009 WL 5151315 (E.D. Mich. December 17, 2009), which allowed the plaintiff to get discovery about who edited the entries in question). Yet, despite its comparative novelty, this opinion reads like a normal defamation opinion. As I'll explain in a moment, perhaps it shouldn't.

Pitale runs some for-profit colleges. For 2 years, Holestine worked with Pitale and reported to him. After Holestine left, he allegedly made false statements about Pitale and the colleges in the "American Career College" and "Eldorado College" Wikipedia entries (made presumably from this account) as well as at a a blog. The court does a very careful job scrutinizing each claim and dismisses several on a motion to dismiss. However, the defamation/false light claims over several statements survive the motion.

Unlike most defamation lawsuits, there is a lot of metadata about this activity that can help us understand the dispute. The court obliquely says that the statements in question have been removed from the entries, but it doesn't say who removed them or how quickly. Ultimately, the court ought to consider Wikipedia's self-correction mechanisms in evaluating the claim's merits. I didn't run through the various versions, but it looks like the allegedly defamatory statements were corrected on the American Career College (by a user "Melissawest") within a month; and on the Eldorado College page, the corrections were also within a month (by a user "Thecorrector2010") and, after a second attempt to restore the material, within 2 days.

I think the judge should acknowledge the relatively short amount of time any allegedly defamatory material was actually displayed in the Wikipedia entries, as well as the low traffic to the pages. According to stats.grok.se, each of the two pages in question had a total of less than 1,000 pageviews in all of June and July 2010--some of which were pageviews to people immune to the defamation, such as Holestine, Pitale or other college officials, and the Wikipedia editors fixing the pages/correcting any defamation. (The relevant time period is mid-June to mid-July; I didn't take the time to count page views during the specific window, but it's even less). Clearly, these are relatively obscure pages, meaning that any reputational impact of the alleged defamation was surely small.

For that reason, this case probably doesn't belong in court at all. Yet, like so many defamation lawsuits, economic rationality probably isn't a main motivator for these combatants.

The court does give a nod to Wikipedia's ethos in concluding that one statement was intended as a fact, not an opinion:

The overall context also suggests that the statement was intended as a statement of fact: Wikipedia is an open-source encyclopedia, primarily serving (or at least intending to serve) as a source of factual information rather than as a forum for expressing opinion. Wikipedia strives to be a repository of facts, not opinions. [with a footnote saying:] One of Wikipedia's "three core content policies" is "neutral point of view." http://en.wikipedia.org/wiki/Wikipedia:Neutral_point_of_ view (Last accessed Feb. 27, 2012)

Yet, the judge doesn't put 2+2 together to realize that the fairly quick reversions might reflect the other editors' judgments that the edits failed to comply with these norms. Some of the comments in the edit history suggest that's indeed the case.

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

March 01, 2012

Facebook, Google and Lexis-Nexis Get 47 USC 230 Immunity in a Bizarre Case Involving a Missing Sex Toy--Gaston v. Facebook

By Eric Goldman

Magistrate ruling: Gaston v. Facebook, Inc., 2012 WL 629868 (D. Or. February 2, 2012)
Judge's approval of the magistrate's ruling: Gaston v. Facebook, Inc., 2012 WL 610005 (D. Or. February 24, 2012)

Kanal V. Gaston went on a bit of a litigation tear recently, filing no less than four highly similar lawsuits (Gaston v. Harris County complaint in Oregon, Gaston v. Harris County complaint in California, Gaston v. Microsoft complaint, Gaston v. Facebook complaint). All of these lawsuits relate to issues he had with Rivas, the mother of his child, and some recriminations over a missing sex toy. If it's important to you to try to understand how that all fits together, read the court's description of his allegations.

With respect to the technology defendants, the court recites the following allegations:

* Facebook "has allowed and/or gave [Rivas] access to its server or internet web communication system or device or social network to spread false or defamatory statements against [him]."

* Lexis-Nexis provides "computer assisted legal research to the public at large and holds the largest electronic database for legal and public records in the world" and has "conspired with other Defendants to retaliate against [Gaston] and has published or republished false and defamatory statements against him."

* Google "reaches more than one billion online users (people) worldwide" and has "conspired with other Defendants to retaliate against [Gaston], and has published or republished false and defamatory statements against him."

The court easily disposes of the claims against these three defendants on 47 USC 230 grounds:

Gaston seeks to hold Google, Facebook, and Lexis Nexis liable for defaming him and/or conspiring to defame him based solely on content created or supplied by Rivas....The CDA defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 USC s 230(f)(2). Google, Facebook and Lexis Nexis clearly fall within that definition. Therefore, Gaston fails to state any viable claim for defamation against those three defendants who should be dismissed with prejudice.

Gaston didn't contest the magistrate report, so the judge adopted the magistrate's opinion verbatim.

The most noteworthy feature about this ruling is that Lexis-Nexis qualified for 230 coverage, which I believe is the first time they've done so. Even though it may be a first, this isn't a surprising result; indeed, to the extent they manage their own electronic network, they may be a better fit for the definition of a provider of an interactive computer service than a typical website.

Posted by Eric at 11:04 AM | Content Regulation , Derivative Liability | TrackBack

February 27, 2012

Reputation Management Lawsuit Is Shot Down--Bernard v. Donat

By Eric Goldman

Bernard v. Donat, 2012 WL 525533 (N.D. Cal. Feb. 16, 2011). The Justia page.

Donald Ray Bernard is an energy consultant, big game hunt tour operator, former lawyer and former law professor. His LinkedIn page. His Google search results look like the kind of search results I see when someone uses a reputation management service; I find SEOed vanity search results are often linked to a litigious hypersensitivity about reputation (see, e.g., the litigation fusillade from Bev Stayart). Unfortunately, like far too many lawyer-plaintiffs/law professor-plaintiffs, the judge has to teach him what the law actually says.

Bernard alleges that Donat went on an online rampage against Bernard's veracity and former legal practice, including an attack blog, posts at Complaintsboard and PissedConsumer, attack emails and postings to Scribd. Bernard sued Donat for Lanham Act false advertising, defamation and tortious interference. In this ruling, Judge Whyte dismisses the Lanham Act false advertising claim as unmeritorious (with leave to amend), which (if Bernard can't successfully replead) will result in the state law claims going to state court.

The opinion doesn't say exactly who Donat is, but it implies that Donat is a rival in the energy and hunting industries. Nevertheless, the opinion says Bernard didn't allege any competitive injury/diversion from Donat's online activities, and in particular, that Donat's posts about Bernard's legal career won't necessarily affect their competition in the hunting business. Judge Whyte goes further to say that Bernard didn't show the online posts were "commercial advertising or promotion" or were even commercial speech at all.

Unfortunately, this opinion doesn't provide a clear statement why Donat did what he did. On the one hand, it seems entirely plausible that Competitor A in a personal services business (such as big game hunting tours, where consumer trust is essential) could hurt Competitor B by casting doubt on the person's general trustworthiness. On the other hand, Donat is free to speak the truth as a concerned citizen, and if that's what's going on here, reputation management/"right to forget"-style lawsuits to cover up truthful facts are a misuse of the court system. We don't know which styling fits these facts yet.

Either way, the Lanham Act false advertising isn't designed to govern activity like negative consumer reviews and gripe sites. To me, that's a feature, not a bug. Unfortunately, the Lanham Act's poor drafting encourages far too many meritless assertions over social discourse.

One oddity: Donat apparently didn't bring an anti-SLAPP motion, even though this lawsuit superficially looks like a SLAPP and even though the lawsuit is in CA and therefore governed by CA's broad anti-SLAPP law. Donat is proceeding pro se, so perhaps that explains the omission.

Posted by Eric at 01:47 PM | Content Regulation , Marketing | TrackBack

February 24, 2012

Banning Sex Offenders from Social Networking Sites is Unconstitutional--Doe v. Jindal

By Eric Goldman

Doe v. Jindal, 2012 WL 540100 (M.D. La. Feb. 16, 2012)

Sex offenders--especially those who victimize children--are pariahs in our society. If it were possible, I bet many folks would favor blasting them off into space rather than "punishing" or "rehabilitating" them. Any legislative proposal to restrict the "rights" of sex offenders--even those who have served their time or otherwise been rehabilitated (whatever that means)--faces a one-sided political economy. No one ever sticks up for sex offenders, so laws targeting them typically pass quickly and non-contentiously.

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act of 2006, which it extended with the Keeping the Internet Devoid of Sexual Predators Act (KIDS Act of 2008). (The names of these laws reflect common legislative tricks to speed passage and suppress opposition). Collectively, these two laws require sex offenders to submit their online aliases into a database which social networking sites can voluntarily access and then block the aliases if they choose.

Apparently unsatisfied with Congress' efforts, Louisiana went a giant step further and prohibited certain sex offenders from accessing social networking sites, chat rooms or peer-to-peer networks. The punishment could be up to 10 years in prison with "hard labor" (this always reminds me of Cool Hand Luke). The law was defective on so many fronts, including:

* overly prophylatic. The law doesn't criminalize misuse of a website; it criminalizes visiting the website due to the possibility that it might be misused. This is ridiculously overinclusive. It's a bit like saying sex offenders can't drive cars because they might drive to victimize children. Further, I'm not aware of any no social science validating the benefits of such a broad prophylactic ban on Internet technologies. Instead, hindering Internet usage by sex offenders deprives them of an essential tool for reintegrating into normal society. It's like the laws that restrict sex offenders from living too close to schools; drawn too broadly, those laws ensure that the sex offenders have to move further away from their jobs, lie about their residence, or become homeless. At some point, eliminating the rights of sex offenders almost guarantees their further criminal behavior because they lack other meaningful choices.

* the law didn't have a scienter requirement. A sex offender violates the law simply by visiting one of the verboten websites, even if the Internet user didn't know that the website violated the law. For example, some websites provide a web interface to a BitTorrent P2P implementation, and the user may not even know. Or many websites have chat functions that are apparent only once you get there. The only sure way a sex offender could comply with the law is to avoid the Internet altogether.

* probation officers could grant permission to visit specific websites, but the law didn't specify any standards for granting that permission. Furthermore, some sex offenders didn't have probation officers (i.e., they had completed the probation), and the state law apparently directed those individuals to the federal court system--without providing funding or standards to the federal courts. You could read this opinion as the judge saying No Thank You!

While these drafting problems are serious, they are symptoms of an underlying root problem: social media exceptionalism. The statute's real mistake is trying to carve out social media from the rest of the Internet and subject it to special treatment. As I've noted before, social media exceptionalism is bad policy, and it's impossible as a matter of statutory drafting. See my 2009 article, The Third Wave of Internet Exceptionalism, and my 2007 summary, Social Networking Sites and the Law. Take a look at the specific statutory definitions here:

“Chat room” means any Internet website through which users have the ability to communicate via text and which allows messages to be visible to all other users or to a designated segment of all other users.

Huh? That describes every message board and tools for users to comment on blog posts and news articles. How about this definition:

“Social networking website” means an Internet website that has any of the following capabilities:
(a) Allows users to create web pages or profiles about themselves that are available to the general public or to any other users.
(b) Offers a mechanism for communication among users, such as a forum, chat room, electronic mail, or instant messaging.

Huh? That sounds like every UGC website, even if we read the connector between (a) and (b) as "and" and not "or." Some examples: Wikipedia--yes. Boing Boing--yes. eBay--yes. Google--probably; it depends on how the statute contemplates a single company's differently branded but integrated services.

The KIDS Act also had a definition of "social networking website":

an Internet website-- (i) that allows users, through the creation of web pages or profiles or by other means, to provide information about themselves that is available to the public or to other users; and (ii) that offers a mechanism for communication with other users where such users are likely to include a substantial number of minors; and (iii) whose primary purpose is to facilitate online social interactions

This is better that Louisiana's definition, but not by much. Which of the sites I evaluated above aren't covered by this definition? The harm that flows from this definition is much less than Louisiana's criminalization with a decade in jail plus hard labor--the KIDS Act definition simply defines who can access the database of sex offenders' online aliases for voluntary blocking purposes--but analytically it's no more precise.

Naturally, it's easy to pick apart the statutory language, but I can't offer alternative language to fix the definitional overinclusiveness problem because I don't think it's fixable. None of these definitions come close to describing only the thing they target and nothing else. In my increasingly frequent talks about social media law, I make the point that social media law and Internet law are largely co-extensive because social media cannot be linguistically differentiated from the Internet ecosystem. This case shows that the overlaps are not only linguistic, but possibly Constitutionally required.

The ruling doesn't require social media sites to allow sex offenders on their sites, and they can still use the Adam Walsh/KIDS Act database to block known sex offender aliases. (Of course sex offenders may not properly report all of their aliases, a general deficiency of the self-reporting database approach). Thus, striking down this law doesn't immediately open up all of the Internet to the sex offenders. Nevertheless, it does mean that they can use the Internet without inadvertently committing a crime.

Posted by Eric at 11:56 AM | Content Regulation | TrackBack

February 14, 2012

Posting Family Photos to Facebook With Snarky Comments Isn't Harassment of Family Member -- Olson v. LaBrie

[Post by Venkat Balasubramani with comments from Eric]

Olson v. LaBrie, 2012 WL 426585 (Minn. App. Ct. Feb. 13, 2012)

This case is what happens when a headline from The Onion comes to life. Aaron Olson sought a harassment restraining order against his uncle Randall LaBrie. Olson argued that Labrie harassed Olson by...get this...posting “innocuous [but surely awkward] family photographs” to Facebook and making mean comments directed toward Olson. The photos included Olson as a child, “posing in front of a Christmas tree.” LaBrie also tagged Olson in the photos. When Olson became aware of the photos, he requested they be removed or “altered to erase” Olson. Labrie demurred, although he untagged Olson. Understandably, LaBrie told Olson that if he did not like the photos, “he should stay off Facebook.”

Olson was not “friends” (in the Facebook sense, or apparently, in any sense) with LaBrie, and accessed the photos via his mother’s Facebook account. The parties had a peripheral argument about how the photos were accessed. LaBrie said that the photos were meant for his inner circle, but Olson said they were accessibble to the general public. At the end of the day, it turns out to not matter. The court says that posting these types of photos to Facebook does not amount to harassment, and the comments offered by Olson as evidence were nothing nore than “mean, disrespectful comments,” which cannot form the basis for liability. The Minnesota anti-harassment statute is directed at:

repeated incidents of unwanted acts, words, or gestures” that have a substantial effect on the “safety, security, or privacy of another."

On appeal, Olson tried to argue that LaBrie conduct had a substantial effect on his privacy, but he did not raise that issue in the trial court and the appeals court says he waived it. Even assuming he had raised it, the court says that Minnesota law recognizes three types of common law privacy violations: intrusion, appropriation, and the publication of private facts. Minnesota law does not recognize “false light publicity.” Olson argued that one of these common law privacy violations could have supported issuance of the anti-harassment order, but the court says that the statute defines harassment, and there’s no need to look to case law for additional definitions.

Olson raised two other issues that are worth noting, and really makes me wonder whether this wasn’t some Onion editor’s attempt to generate a story. First he argued that the trial court erred in not crediting the testimony of his mother, who testified that Labrie’s conduct was offensive. Second, Olson tried to get the record sealed. Hello, Streisand Effect!

The only thing that would have kicked this opinion up a notch would have been a cite to awkwardfamilyphotos.com.

Related posts:

Private Facebook Group's Conversations Aren't Defamatory--Finkel v. Dauber
Revenge Blogger Ordered to Remove Blog--Johnson v. Arlotta (also from Minnesota--is there something in the water there?)
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Eric's Comments

This case demonstrates that the family that Facebooks together doesn't necessarily stay together. I don't understand why Olson was so concerned about the posting of old "innocuous" family photos, although I can understand why Olson might object to "mean, disrespectful comments." At the same time, I also don't understand LaBrie's response that if Olson didn't like it, he should stay off Facebook; nor does it make sense that LaBrie said he didn't intend for Olson to see the photos because they weren't Facebook friends. It seems fair for someone to object to the publication of photos even on a service the person doesn't use or can't see the photos. Obviously there's a backstory to this family squabble that got washed out in the appellate opinion. I guess it goes to show that you can pick your Facebook friends but you can't pick your family. A protip of general applicability: never allow sharp objects at family reunions.

Posted by Venkat at 08:38 PM | Content Regulation , Privacy/Security , Publicity/Privacy Rights

February 13, 2012

Employee Wins Harassment Claim Based in Part on Co-Workers' Offsite Blog Posts--Espinoza v. Orange

By Eric Goldman

Espinoza v. County of Orange, 2012 WL 420149 (Cal. App. Ct. February 9, 2012)

Espinoza was born with an incomplete hand. In 1996, he started working for the county probations department. In 2006, a co-worker started two independent blogs, including one called "Keeping the Peace." Pseudonymous commenters quickly used the blog to launch a cyberattack against Espinoza, with multiple co-workers criticizing and mocking Espinoza's hand, managerial style and other work-related issues. (Espinoza wasn't the only probation employee attacked on the blog). Espinoza also alleged numerous offline incidents of harassment at the workplace, and he repeatedly reported the situation to management. The local managers took some steps to remediate the online harassment, but it appears those steps weren't pursued zealously and weren't effective. Espinoza sued the county for disability harassment (among other things), and a jury awarded him over $800k.

The county appealed on several grounds, including:

* the blog posts were "conduct outside the workplace." In addition to the fact that harassing behavior took place onsite, the court says:

Employees accessed the blog on workplace computers as revealed by defendant's own investigation. The postings referred both directly and indirectly to plaintiff, who was specifically named in at least some of them, and the postings discussed work-related issues. It was reasonable for the jury to infer the derogatory blogs were made by coworkers. Management sent two e-mails to employees directing they discontinue posting the improper comments on the blog. This suggests the administrators believed employees were posting. That none of the individual defendants was found liable for harassment does not overcome the other evidence of employee harassment. And that some of the blog postings were directed against the probation department and its management does not somehow offset the comments made about plaintiff.

This raises the same issue as the cases dealing with schools disciplining students for online behavior. See, e.g., 1, 2, 3, 4, 5, 6. However, I'm not sure I understand the onsite/offsite line being drawn by this court, and it's navigating some tricky issues. Clearly employers can't be automatically liable for online activity between employees, and in particular, government employers can't restrict an employee's speech outside the office. For a discussion about this in the context of private employers, see Venkat's post "Private Employers and Employee Facebook Gaffes [Revisited]."

This case seems a little clearer-cut than that. As the opinion spins it, the employer had a pervasive problem with intra-employee harassments both in and outside the office, and the employer didn't try very hard to fix that pervasive problem. But notice two things: even if the employer had blocked blog log-ins at the office, it couldn't regulate the out-of-office conduct; plus, none of the individual harassers were actually found guilty of harassment, so it's not clear their blogging was "illegal" content. As a result, the employer could not have cracked down on the employees' out-of-office conduct without risking a suit from the targeted employees. I'm not exactly sure what the court wanted the county to do about the offsite blog, and it's too bad the court didn't expressly acknowledge the employer's obvious dilemma.

* blog evidence should have been suppressed. In particular, the county argued that blog posts unrelated to Espinoza should have been excluded because those posts were "vulgar and disgusting." The court disagreed because the corpus of posts was sufficient relevant and not unfairly prejudicial.

* 47 USC 230. The county claimed that 47 USC 230 preempts the workplace disability harassment claim. Although part of the harassment claim was based on blog activity and allowing employees to access the blog from the workplace, the court concludes that "defendant's breach was not based on its employees' use of their work computers but on its own failure to investigate and resolve the problem." The court later reminds us that the "plaintiff does not seek to hold defendant liable for the actual blog postings, either directly or vicariously."

The court discusses the quirky Delfino v. Agilent case, where a prior California appeals court held that 47 USC 230 immunized an employer for providing Internet access to an employee who cyber-threatened third parties. The court distinguishes the case because in Delfino:

the plaintiffs were strangers, never employees of the defendant, and did not sue under FEHA, which imposes additional duties on an employer to protect an employee.. [and] the defendants had not ratified his acts and had no respondeat superior liability

On the plus side, it's good to see that employment lawyers addressing 47 USC 230. On the minus side, 47 USC 230 wasn't designed to address employer-employee lawsuits, so it will often be a stretch in those cases.

UPDATE: Molly DiBianca of the Delaware Employment Blog emailed me to explain that, in some cases, employers can (and perhaps must) discipline or terminate employees for off-duty conduct. This blog post provides some support for that claim.

Posted by Eric at 12:35 PM | Content Regulation , Derivative Liability , Evidence/Discovery | TrackBack

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.

__

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.
___________

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.
__

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.

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

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