Alleged Copyright Troll’s Day in Court

No matter your opinion on U.S. copyright law, it is the law of the land. Copying a work without consent may be unlawful and subject the copier to damages. On this blog, and others, we’ve seen instances of legitimate and illegitimate copyright claims.

An entirely separate issue is the manner by which copyright claims are enforced. In the U.S. District Court for the Central District of California, there have been concerns raised regarding certain attorneys, their firms, and (as the judge termed it) their “shell” companies. Yesterday, a hearing was held at which certain non-appearing attorneys affiliated with Prenda Law were invited to attend, as well as an attorney formerly associated with that firm. Ken White at Popehat attended and his writeup is here: http://www.popehat.com/2013/03/11/brett-gibbs-gets-his-day-in-court-but-prenda-law-is-the-star/

This is a case in which the Plaintiff even dismissed the case against the Defendant, but the Court is exploring whether there was fraud committed by the Plaintiff or its counsel in consolidated and related matters. Hearings like this generally do not occur, and apparently the non-appearing attorneys affiliated with Prenda appeared by counsel, rather than in person, which may have violated the court’s order (although they made a last-minute filing arguing they could not properly be compelled to attend). What is particularly interesting is that the subject lawyers and Plaintiffs have been intimately involved with the development of how Bittorrent claims are prosecuted, including early discovery orders, mass joinder, etc. Of note, it has become practice for a content provider to sue John Does, because all that is available is the IP address used to access a covered work. A subpoena is issued to the ISP, who may provide the identity of an account holder. Common practice is then to make a demand on the account holder or amend the complaint to identify them by name. Of concern by this court and others is that the account holder may not be the infringer. A content provider may need to engage in further discovery and investigation to find out who may have had access to the internet connection prior to naming the person as defendant. Recent rulings have suggested that just as you cannot simply sue the person who owns a telephone for a call that may have given rise to liability, you must sue the caller, you cannot simply sue the internet account holder. This court has questioned the Plaintiff’s and its attorneys’ efforts in identifying the infringer. Additional procedural concerns are raised in this case over who financially benefits in the litigation and how content has been transferred.

The docket in Ingenuity 13 v Doe, 2:12-cv-08333 is here:

http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.docket.html

Alleged Copyright Troll Sues Critics

By Jay Wolman

In a page out of Rakofsky vs. The Internet, it appears that one of the law firms and attorney groups frequently criticized as representing copyright trolls, Paul Duffy, John Steele, and Prenda Law, has gone on the offense against its critics.

More details here:

http://phillylawblog.wordpress.com/2013/03/03/prenda-law-john-steele-and-paul-duffy-file-suit-against-alan-cooper-his-lawyer-paul-goodfread-and-anonymous-john-does/

Here:

http://fightcopyrighttrolls.com/2013/03/04/copyright-trolls-prenda-law-paul-duffy-and-john-steele-commence-three-lawsuits-v-paul-godfread-alan-cooper-and-our-community/

and here:

http://www.techdirt.com/articles/20130303/23353022182/prenda-law-sues-critics-defamation.shtml

copies of the complaints are linked by Jordan Rushie (1st Link). I have not read the entirety of the complaints, but I believe I saw quite a few protected statements that cannot form the basis of liability. Unclear what motivated the suits, but I have a feeling the Plaintiffs will come to regret them.

Editor’s note, the views in this post are those of Mr. Wolman. No other Satyriconistas have taken a public position on this dispute.

You Have Got to be Kidding

Hunter Moore:  Amateur

Craig Brittain:  Lightweight

Looks like posting compromising photos of unsuspecting victims is not enough.  Someone, who obviously once sat on a copy of the nutshell on copyright and online speech to sit at the grown-ups table, decided that merely posting photos was insufficient.  This vile person decided it was all hunky-dory to simply solicit photographs of so-called prostitutes without any credible evidence (not to be confused with Smoking Gun, which publishes mugshots and such of people actually arrested).

 

For your disgust, I present: PotentialProstitutes.com

Solicits submissions and offers removal for $99.  Thinks Sec. 230 is a safe harbor, when he is choosing to publish.  Libel per se, anyone?

 

h/t Ethics Alarms

Sunshine is the best disinfectant – the Steubenville Rape Case

The mainstream media has noticed that something is amiss in Steubenville, Ohio. (Rape Case Unfolds on Web and Splits City).

And Jezebel gives credit where it is due — to a blogger who refused to let the story die. (We Wouldn’t Know About the Steubenville Rape Case If It Wasn’t for the Blogger Who ‘Complicated’ Things).

I won’t comment beyond my earlier post on the case, because I have been brought in to help defend the blogger.

Anonymous Comes for Hunter Moore – Moore’s Man Card Revoked

Anonymous has now targeted Hunter Moore.

In a release published today, Anon writes:

Greetings citizens of the world, We are Anonymous.

This is a call to all Anonymous worldwide, you have a chance to make a real difference in the lives of hundreds of bullied teenagers and protect them from real harm such as rape or stalking.

Hunter Moore, Founder of previous revenge pornography site http://www.isanyoneup.com is coming back stronger than ever from the shutdown of his previous website. This capitalist makes money off of the misery of others.

People submit pictures of others naked to his website and he posted their social networking profiles along with the pictures.

This time he is taking it a step further and plans to list physical addresses next to the victims pictures along with a map to their house, self proclaiming that he has singlehandedly enabled the stalking of hundreds.

His servers are up. he already has domains he is secretly testing and will go public soon. He hides behind a loophole of section 230 of the United States online decency act which states he cannot be held legally accountable for third party submitted content.

This is a call to all of anonymous. We Will hold hunter moore accountable for his actions, we will protect anyone who is victimized by abuse of our internet, we will prevent the stalking, rape, and possible murders as byproduct of his sites.

Operation Anti-Bully. Operation Hunt Hunter engaged. We are Anonymous, we are Legion, we do not Forgive, we do not Forget, Hunter Moore, EXPECT US. (source)

I applaud them for it. I do have one issue with the missive — I don’t think that Moore is as protected by Section 230 as he likes to believe.

But, lets set the legal issues aside for this post: Moore is a douchebag, and deserves everything that Anonymous may throw at him. Here’s why:

Once upon a time, girls weren’t all paranoid about being raped, having shit slipped in their drink, or being stalked. Then, douchebags discovered rohypnol, stalking, etc., which ushered in a new era of “Why has this asshole just showed up at my table with a drink in his hand? Does he think I’m an idiot?”

Now, thanks to these clowns, you need to convince the girl that she should have sex with you AND that you’re not going to rape her or cut her into little pieces. Girls who were once approachable are scared to death to even have a conversation with you in a bar. All because of douchebags who need to circumvent rejection with drugs. And stalking. Lots and lots of stalking.

The douchebag’s MO is to shit out a cloud of fear. That cloud of fear supports an ecosystem that only benefits two kinds of people — other douchebags and second-wave feminists who absolutely love women in fear, because it makes their bullshit message resonate with just enough terrified women to keep a few of them signing up for their classes. Never forget the best way to control behavior is through FEAR. Just like the TSA, fear creates a justification for existence. There is the implied message of “If you challenge me, I’ll fucking spank you, so you better choose wisely.” But, if you take away fear, the assholes evaporate.

Involuntary Porn sites (like those run by Hunter Moore, Eric Chanson, Craig Brittain, and Chance Trahan) are the online equivalent of the asshole who goes to a bar with roofies in his pocket, or who stalks a girl who won’t give him the time of day. They punish all women through fear because they got rejected by their high school prom date or some chick in a bar or…whatever. They get off on the smell of fear and the resultant power over a woman and this is the drug that gives them the warm tinglys.

Imagine if no women had to live in fear of a shithead ex-boyfriend or these dickless fucks. Forget the morality of what they do, if you want, and think about from a purely utilitarian / economic perspective. Without these nimrods, a woman would always feel comfortable letting you take naked pictures of her. Women would feel comfortable sending you those pics as a “hey good morning” present. More naked pictures of girls means a better world for everyone, in my humble opinion.

Real men don’t get off on scaring women. Real men get off on trying to take that fear away.

Not because we are nice, or chivalrous. OK, some of us are, but more importantly, it’s because we want more naked pics and Hunter More and Craig Brittain are fucking with that.

So fuck you, Hunter Moore. Fuck you, Eric Chanson. Fuck you, Chance Trahan. And Fuck you, Craig Brittain.

Any man who gets off on putting women in fear loses his man card.

Good hunting, Anonymous.

Sticking up for the big guy: United v. Untied.com

I got this story in my inbox — that United Airlines was trying to bully a website that is dedicated to complaining about United Airlines – Untied.com.

United Continental Holdings has sued a Canadian professor who maintains the 15-year-old complaint website Untied.com, which airs complaints from disgruntled United Airlines passengers and employees.

Two suits filed in Canadian courts allege the complaint site violates the airline’s copyright and trademarks. It also alleges the site violates the privacy of senior airline employees by posting contact information for those employees.

Reading that, I got all ready to write a post about what assholes United and its lawyers must be. Imagine my disappointment when I didn’t really get to do that.

The article continues:

United said it is not trying to prevent the site’s owner, Jeremy Cooperstock, from operating a website where people can express their views about United, but instead is trying to protect its intellectual property, such as its logo, and trying to alleviate confusion by United customers who might think they are filing a complaint with the airline on Untied.com.

“We are not requesting the website be shut down,” said United spokeswoman Megan McCarthy.

It was only after an April redesign of Cooperstock’s site, which made it look more like the new United.com, that the airline asked him to modify his site so customers would not be confused, she said, adding that the move was to protect customers and that the airline tried to resolve the matter without going to court.

It looks like United is not concerned about the content on the site, but how it is delivered. The site does look a lot like United’s. There are disclaimers everywhere, but I still don’t see United’s position being all that unreasonable. Yes, almost any idiot should be able to figure out that they are not really at United’s website. On the other hand, the fact that “untied” is a pretty common typo for “united,” coupled with the similarity in look-and-feel, makes United Airlines’ position a lot more reasonable.

If all they are asking is that the gripe site change some site design elements, this does not raise my hackles.

UPDATE: Since the site untied.com seems to have been taken down, here is a side-by-side comparison of the Untied.com and United.com websites.

Some out there, who don’t really understand trademark law, seem to believe that disclaimers on the Untied.com site mean that nobody would be confused by the mock United site. Others say that only a “moron in a hurry” could be confused by the two. I think that such opinions are ill-informed, and the product of the same instincts that I have — a knee-jerk reaction to start off on the side of the little guy against the big corporation; to immediately (without analysis) think that any attack on a critic’s site is an attack on free speech.

I look at these kinds of cases with a rebuttable presumption that the big bad corporation is the bad guy. That presumption, in this case, seems to be rebutted.

The first rebuttal comes from the information that United let the site go for 15 years, and only complained when the gripe site changed its site design. Historical screen captures show that the site didn’t used to look like that.

The second rebuttal comes from this: “Cooperstock offered to work for United as a paid consultant advising the airline on how to improve customer service. United declined.” If that is true, it is not entirely dispositive. Nevertheless, it does skew the optics of the situation a little. I would be interested to see Cooperstock’s response to that.

The third one comes from Canadian trademark law. Cooperstock is Canadian, and the case was filed in Canada. Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 SCR 772 gives us some instruction. In that case, the Canadian Supreme Court held that a court should measure the “likelihood of a mistaken inference” from the perspective of the “ordinary hurried purchaser.” The court considered the “ordinary hurried purchaser” to lie somewhere between the “moron in a hurry,” and the “careful and diligent purchaser.” The court relied upon Delisle Foods Ltd. v. Anna Beth Holdings Ltd. reflex, (1992), 45 C.P.R. (3d) 535 (T.M.O.B.), whic stated at pp. 538-39:

When assessing the issue of confusion, the trade marks at issue must be considered from the point of view of the average hurried consumer having an imperfect recollection of the opponent’s mark who might encounter the trade mark of the applicant in association with the applicant’s wares in the market-place.

As Cattanach J. explained in Canadian Schenley Distilleries, at p. 5:

That does not mean a rash, careless or unobservant purchaser on the one hand, nor on the other does it mean a person of higher education, one possessed of expert qualifications. It is the probability of the average person endowed with average intelligence acting with ordinary caution being deceived that is the criterion and to measure that probability of confusion the Registrar of Trade Marks or the Judge must assess the normal attitudes and reactions of such persons.

When we consider the issue of “initial interest confusion,” I think that Mr. Cooperstock has some problems. In fact, it seems to be a testament to United’s patience that they did not go after the Untied.com domain name a long time ago.

When looking at this, it is important to understand that there are two types of people who will be dissuaded from doing business with United: The first group are people who read the message on Untied.com, which boils down to “United sucks.” If Cooperstock convinces you of that fact, then that is the marketplace of ideas in action. That is Mr. Cooperstock providing a valuable service, and properly exercising his right to free expression.

On the other hand, there is a second group — a group that comes to the website through mistake, who lingers just a little bit, and by the numbers, a portion of them move on to other websites.

You see, the issue of consumer confusion is not resolved with the simpleton analysis of “nobody would buy a plane ticket from untied.com.” The issue is that more than a few consumers will type “untied” instead of “united” every day — just through the likelihood of that common typographical error occurring. If you are an “ordinary hurried purchaser,” you may get to that site, even with a popup disclaimer, and spend a few minutes there before you realize that you are not, in fact, at United.com.

What do you do then?

Most people would then do what they could to find the right website. But, it wouldn’t take a genius to realize that a certain percentage of people, who might otherwise have bought a ticket, will put it off, or not buy at all, just because the impulse passes. Another percentage may have sought out United.com, just for information, who then lose interest. Remember, a business’ website is not merely a place to purchase tickets. It is a valuable segment in its branding strategy. The pop-up and disclaimers are of little value, given that the average consumer isn’t likely to read the pop up or the disclaimers. When it comes to initial interest confusion on the Internet, even a few seconds’ long detour will cause some harm to the mark owner.

The fact is, a certain number of United’s consumers suffer inconvenience due to the site, and independent of the message on the site, they are driven away from doing business with the airline.

Were I judging this case, I’d say that Cooperstock has every right to say every last thing he says on his website. But, I think his choice of domain, and his attempt to make the site look and feel like United.com, both crossed the line. I think it went even further if United asked him, pre-suit, to simply make some design changes, and he refused. It goes over the cliff if United’s claim that Cooperstock offered to provide his “customer relations services” for a fee.

Sorry guys, I love the little guy as much as anyone else. I never fly United either, mostly because their website is a nightmare to navigate, and I haven’t thought too highly of their customer service either. But, sometimes the little guy is out of bounds.

Primer On the Law of User-Generated Content

By J. DeVoy

This blog often features articles on developments in § 230 of the Communications Decency Act, or the Digital Millennium Copyright Act, but the significance – and nuance – of such rulings may not be immediately appreciable to many readers.  Hopefully such posts are helpful to lawyers.  However, they are important to non-lawyers and even only casual users of the Internet.  In order to provide retroactive context to those articles and background for future ones, we provide this brief history of Internet-related laws.

…

In the two decades since the Internet reached large-scale consumer adoption, its role in business, recreation and every facet of life has been largely taken for granted.  However, it interacts with the law in a number of ways that some might not expect.  With services such as Google, Facebook and YouTube thoroughly integrated with every facet of life – with established brands as banal as Tide laundry detergent vying to be “liked” by you on facebook, to political campaigns posting videos directly to the user-generated video site – that it is easy to overlook the patchwork of federal law that allows the internet to operate.

Federal law embraced the internet with some of its existing measures, such as the Cable Privacy Act of 1984, 47 U.S.C. § 551 (requiring cable companies – which have today become internet service providers including Time Warner and Comcast – to provide notice to subscribers before turning over personally identifying information pursuant to a lawful subpoena).  This law remains particularly significant in protecting anonymous activity and speech online, ranging from blog comments to the use of BitTorrent – all of which can be done without behind an IP address until the user’s internet service provider is subpoenaed and provides notice to its customer that his or her personally identifying information will be produced unless the subpoena is quashed.

Criminal law has also been instructive in shaping the law of the internet.  The Stored Communications Act, 18 U.S.C. §§ 2701-2712, prohibits service providers such as Google and Facebook from turning over users’ passwords and internal messages (such as messages and chat logs from one Facebook user to another) without a court order.  Additionally, hacking – a topic given great attention in the 1990s, but still persisting today – was made punishable with both criminal and civil penalties by 18 U.S.C. § 1030.

Perhaps the greatest tool of all for the internet, though, has been Section 230 of the Communications Decency Act, 47 U.S.C. § 230.  Section 230 immunizes service providers like Yahoo and Google for the acts of its users.  When someone opens a blogspot blog that allegedly defames someone, it is not Google’s fault – rather, liability falls on the shoulders of the blog’s author.  Similarly, message board operators are not liable for the torts of their users who may post tortious material to the website.  If they were, services such as Yahoo’s finance message boards and (unintentionally hilarious) Yahoo Questions would have never taken off.  This protection is not vitiated if a web service edits or deletes a user’s submission. 47 U.S.C. § 230(c)(2).

While courts have consistently upheld § 230’s protections for online service providers, the law has not been an absolute shield.  Where a site creates its own content that is tortious, then the service can be held liable.  Similarly, if the site requires a user to post tortious material as a condition of using its service, then the site is not afforded § 230 protections. Fair Housing Counsel v. Roommates.com LLC, 521 F.3d 1157, 1166 (9th Cir. 2008)  (“By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information” and thus not entitled to § 230’s immunity).  For pure social media sites, § 230 provides valuable immunity against litigation from angry parents and the thin-skinned.  In states with strong anti-SLAPP statutes, § 230 has worked in tandem with these laws to create a fortress around internet companies, protecting them from common law claims and requiring parties with attorneys foolish enough to bring these claims to pay the companies attorney’s fees in most cases. (California and Seattle, where numerous social media companies are based, allow defendants to recover attorneys’ fees incurred in successful anti-SLAPP motions).

There is, however, one hole in § 230 – it expressly does not apply to intellectual property claims. 47 U.S.C. § 230(e)(2).  Thus, online service operators were potentially liable for hundreds of thousands of dollars in damages if their users copied and distributed copyrighted content on their sites.  In 1998, however, Congress enacted the Digital Millennium Copyright Act (“DMCA”) to combat this problem. 17 U.S.C. § 512.  Within this legislation, Congress granted certain entities, such as internet service providers, immunity from infringement as transitory networks where the infringing data does not reside – but it imposed burdens onto both web hosts, web sites and even right holders.

For most self-hosting bloggers and other internet users, the DMCA is fairly straightforward.  The service provider must register an agent to receive DMCA notices with the U.S. Copyright Office for $105, which is listed in an online registry of DMCA agents.  When receiving a proper DMCA take-down notice under 17 U.S.C. § 512(c)(3)(A), the service operator must remove the infringing content within a reasonable period of time, or risk being held liable for infringement.  The DMCA take-down process requires rights holders to seek out instances of infringement and send notices to infringers, but unlike a lawsuit for infringement, does not require the right holder to obtain a copyright registration certificate (or, in some circuits, merely an application).

While many small website operators do not comply with the DMCA, rights holders often send DMCA-compliant take-down notices, which are honored with the removal of allegedly infringing content.  For large services that stake their entire existence on user-submitted content, however, complying with the DMCA becomes remarkably more complicated.  For a service such as YouTube (or, more in your author’s practice area, a “tube site” containing pornography) the DMCA takes no complex new dimensions that are still unsettled despite the DMCA being more than a decade old, and the user-generated segment of web entertainment not being significantly younger.

For instance, the Second Circuit’s recent decision in Viacom v. YouTube, vacating many of the Southern District of New York’s 2010 conclusions about how the DMCA operates,  has created significant uncertainty about the meaning of 17 U.S.C. § 512(c)(1).  For a service such as a large “tube” site, particularly one that monitors its submissions to avoid unlawful or inappropriate content, there is a question as to what is required in addition to a DMCA take-down notice to constitute “actual notice” of infringement, or “facts or circumstances from which infringing activity is apparent.” Id.  The Second Circuit’s decision also re-opens the question of what constitutes the “right and ability” to control infringing material: Namely, whether this standard is contiguous with the same standard articulated in the doctrine of vicarious copyright infringement, or subject to a different, DMCA-specific standard as previously found by the Southern District of New York (requiring “specific knowledge” of infringement in order to have the right and ability to control it).

The DMCA contains additional twists and turns for both service operators and rights holders.  If a service provider has users who consistently engage in copyright infringement, it must ban them in accordance with an established, publicized policy to terminate these repeat infringers. 17 U.S.C. § 512(i).  Additionally, there is a question as to what constitutes an effective termination – while banning by e-mail address may satisfy the procedural requirements of this provision, the ease of creating new e-mail addresses ensures that this action would fall short of substantively fulfilling it.  Service operators must also act as an ombudsman for counter-notifications seeking the reinstatement of non-infringing content under § 512(g)(3).

For right holders, fair use of the copyrighted work must be considered before sending a takedown notice. § 512(c)(3)(A) (requiring “good faith belief” of infringement and signing of notice under penalty of perjury).  Failing to satisfy this requirement, or sending a DMCA take-down notice that is otherwise improper – such as to remove critical, non-infringing material, or to assert the rights of a third party who the notice-sender does not represent – makes the misrepresenting notifier liable for the uploader’s damages, costs and attorneys’ fees under § 512(f). (Similarly, a misrepresentation in a § 512(g) counter-notification also triggers the penalties of § 512(f)).  Counterbalancing this restriction, though, is the right holder’s power to issue a federal subpoena under § 512(h) – again, without even a copyright registration – in order to identify an infringer.  While this provision of the DMCA is infrequently used, the jurisprudence of § 512(h) is a fascinating sub-topic for another time.

However, the DMCA provides no protection for trademark infringement committed by a third party.  While proposed laws like PIPA and SOPA addressed the full theater of potential intellectual property infringement, the DMCA protects only against copyright infringement liability.  Thus, a novel theory from plaintiff’s attorneys is that a third party’s use of a trademarked name in an internet posting constitutes trademark infringement and unfair competition under 15 U.S.C. §§ 1114 and 1125.  While this is a frivolous claim to bring against a service provider, it can be pled to avoid a motion to dismiss in jurisdictions without robust anti-SLAPP statutes that allow for the inclusion of evidence in anti-SLAPP motions.  This leads to summary judgment and, in many cases, settlement – a detriment to the companies falling prey to these questionable suits.

Acting in conjunction, federal criminal, telecommunications and copyright law has created an ecosystem ripe for enormous online commerce.  Without these laws, the multi-billion dollar companies that dominate the internet likely would not exist.  While the ecosystem is still in flux, and will be as both technology and IP laws change, services such as Facebook, YouTube, Pinterest and Tumblr are here to stay.

ACLU sues after middle school girls expelled over Facebook comments

The ACLU filed a complaint in the Northern District of Indiana against the Griffith Public School district after it expelled three middle school girls for a lengthy conversation they had on Facebook outside of school hours.  According to the complaint, the conversation “spanned numerous subjects,” beginning with one girl complaining on her Facebook wall about cutting her legs while shaving (#FirstWorldProblems), before turning to which classmates they would kill if given the chance. The comments were littered with the typical cutesy teenage girl sprinklings of emoticons, OMGs, and LOLs, and most of the comments were directed toward the “ugly” girls, a la Mean Girls fashion. The comments were contained to Facebook, and subject and post were not discussed on campus.

Two days later, after another person presented a screen shot to school administrators, the girls were expelled from school for violating student handbook policies on bullying, harassment, and intimidation.  Griffith Public School later informed the girls they were expelled for the remainder of the school year, but would be able to continue to the ninth grade the following year.

The ACLU contends that this action was a violation of the students’ First Amendment Rights, as the comments were “clearly made in jest” and did not constitute a “clear threat.”  The ACLU also states in the complaint that the comments did not disrupt school activities.

Students notoriously have very few rights, and schools generally have had wide latitude to punish activity outside of school.  It will be interesting to see how the case proceeds.

ABA Journal Magazine Tackles Righthaven in May 2012 Issue

By J. DeVoy

Remember Righthaven?  While it has been stripped of its intellectual property and claims against it keep piling up, the fat lady has not yet sung – and the ABA has noticed.

The May 2012 ABA Journal’s cover story is the aftermath of Righthaven.  Eriq Gardner, who Righthaven once sued for posting an image of an exhibit from one of its court pleadings, examined both sides of the copyright enforcement equation.  Marc Randazza and Ron Coleman are quoted in the lengthy piece, which centers on Righthaven but touches on the RIAA’s litigation campaign, the mass-joinder suits brought by porn studios, and the realities of plaintiff-side copyright enforcement.

Righthaven’s CEO, Steven Gibson, is quoted with the following observation:

“One of the questions for the article is why is it so difficult for copyright owners to hire competent copyright litigation counsel?” he said. “There’s not a lot across the country. Definitely not like personal injury lawyers. You can’t go into the phone book and find a listing. Why is it this difficult? Why isn’t there more copyright litigation?”

Yet, even with Righthaven.com no longer belonging to Nevada’s Righthaven LLC, he is optimistic about the venture’s future.

“Righthaven remains the vehicle for dealing with infringements on the Internet,” Gibson told me recently.

A motion by the EFF seeking personal sanctions against Gibson at a rate of $500 per day is still pending as of this writing.

The problems of online copyright infringement and enforcement are real, and few would argue that there is not some useful role of copyright in society.  These controls, however, cannot and should not completely gobble up protected speech – especially since the 1976 Copyright Act codified fair use in 17 U.S.C. § 107.  Even allowing breathing space for hilarious derivative works, much work needs to be done with respect to fighting infringement, even as the law for doing so remains in flux.

Nevada: want in on the tech bubble 2.0? Get a better anti-SLAPP statute.

By J. DeVoy

Earlier this week, Facebook announced its $1B acquisition of hipster staple Instagram.  Everywhere you look, social media companies based on seemingly fragile social momentum are receiving gigantic valuations and making initial public offerings.  Zynga has $8.8 billion in market capitalization – it’s best known for FarmVille, brogrammers and abusing trademark law.  Groupon has lost more money than many firms will ever see, yet IPO’ed, reifying billions of dollars of wealth for shareholders.

Yet California does not have a monopoly on tech.  In fact, California is absurdly expensive.  Nevada, in contrast, is dirt cheap.  And, based on the success of firms like SirsiDynix and Adobe in Utah – seriously, Utah – it’s clear that Silicon Valley does not have a stranglehold on programming and tech manpower.  For all but the most elite developers, young workers will go where the work is – and even then, they will pursue the most challenging opportunities.

But this raises the question of why, exactly all of these wildly successful social media companies started in California.  What is it about California?  What is so profoundly different about the state that gives it a monopoly over these companies?

Maybe it’s one of the country’s best, oldest and most litigated anti-SLAPP statutes?

I know how much we like to wax poetic about the importance of 47 U.S.C. § 230 on this blog, and write about how liberating compliance with the DMCA is.  But the reality is that if some unethical shithead wants to try to grab some cash from your pocket, he/she can and will sue you on utterly frivolous grounds – and if it happens in a state without a good anti-SLAPP statute, and especially a hellhole like Florida or New York, you’re going to just have to grin and eat the costs of proving, for the eightieth time, that the Roommates.com case and its § 230-vitiating FHA violations are in fact an extreme outlier.

That is, unless you live in a state like California with a kick-ass anti-SLAPP statute.  Among others, I would include Washington, Oregon and Texas on the list of states with a good anti-SLAPP statute.  I think, too, that Nevada can and  should be one of these states.

There’s some really good stuff in Nevada’s anti-SLAPP statute.  In October 2011, I wrote about the following provision, which gives a slight testosterone injection to California’s fee-shifting regime:

 Reasonable attorneys’ fees are awarded independent of the Court’s discretion, and the prevailing anti-SLAPP movant has his own cause of action for compensatory damages, punitive damages, and attorney’s fees.  (source)

However, this is all meaningless if it applies only to expression made to a governmental entity.  If this statute is going to have teeth and apply to social networking services that are wrongly sued for third parties’ postings on them, the range of protected expression must be drawn more broadly.  California and Texas provide some good examples of how to define this.

While Zynga, Groupon, Facebook, Google and many others that have yet to publicly reveal their wealth are Delaware Corporations, they all do business in California – and are protected by Cal. Code of Civil Procedure 425.16.  Broad First Amendment protections.  Mandatory fee shifting for a successful motion.  Washington and Seattle-based Avvo Inc. are shaping up to be a similar success story, and a longer post about their recent anti-SLAPP victory is forthcoming.

An anti-SLAPP statute is not the cure-all for Nevada’s drive to diversify its economy, attract new businesses and encourage diversification.  California’s (and specifically the bay area’s) success in social media is attributable to numerous covariants including an entrenched, educated and highly skilled workforce, fed by CalTech, Stanford and UC Berkeley.  Silicon Valley is also host to a surfeit of venture capital and private equity firms; needless to say Las Vegas is not.  However, flying from Las Vegas to SFO is at most a proposition of $200 and… 90 minutes?  possibly less?  This is hardly a barrier to innovation and financing.

The cynic in anyone who understands markets is that the latest tech bubble (perhaps more accurately, the social bubble) is exactly that – an inflated payout for the investors in these services.  But good for them – they got paid, and you’re reading this blog.  Who’s the idiot now?  Regardless of how absurdly overvalued some of these services seem and doubtless are, billions of dollars in paper wealth are being created – and Nevada can capture some of it by making a small but important change to an existing law.  Making Nevada a hospitable place for social media ventures will create or attract jobs to Nevada, especially economically battered and casino-reliant Southern Nevada, and enrich those companies’ employees.  Like the Canadians in the South Park episode “Canada on Strike,” Nevadans must stand up and scream at their representatives: Give us Internet money!

As a tourism mecca, Las Vegas knows a lot about getting the world’s ultra-wealthy to leave a lot of their money here.  By providing sufficient protections to new media businesses, the same dynamic can play out with the rich investing in new businesses, rather than a blackjack table.

(I have nothing against blackjack.)

Potential DMCA Game Change in 2d Circuit Ruling on Viacom v. YouTube

By J. DeVoy

The Second Circuit released its opinion in Viacom v. YouTube today, partially vacating  the Southern District of New York’s order granting summary judgment in favor of the online video service.  Ultimately, the case is to be remanded to the district court for fact-finding on whether YouTube had knowledge of infringement, had the right and ability to control infringing content, and YouTube’s willful blindness.

Almost as soon as the Court starts writing, it delivers the gut punch:

Although the District Court correctly held that the § 512(c) safe harbor requires knowledge or awareness of specific infringing activity, we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website. We further hold that the District Court erred by interpreting the “right and ability to control” infringing activity to require “item-specific” knowledge. (Opinion at 2)

While the Second Circuit held that YouTube qualified for DMCA protections under § 512(c), the easy work of the opinion ends there.  What follows are a range of questions that the Second Circuit believed needed to be supported by more facts – potentially changing the landscape for user-generated content.

The Second Circuit is not interested in relegating the operators of user-generated content services to constantly policing their sites for infringement, and believe that § 512(c)(1)(A) does not require this conduct:

Under § 512(c)(1)(A), knowledge or awareness alone does not disqualify the service provider; rather, the provider that gains knowledge or awareness of infringing activity retains safe-harbor protection if it “acts expeditiously to remove, or disable access to, the material.” 17 U.S.C. § 512(c)(1)(A)(iii). Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove. Indeed, to require expeditious removal in the absence of specific knowledge or awareness would be to mandate an amorphous obligation to “take commercially reasonable steps” in response to a generalized awareness of infringement. Viacom Br. 33. Such a view cannot be reconciled with the language of the statute, which requires “expeditious[ ]” action to remove or disable “the material” at issue. 17 U.S.C. § 512(c)(1)(A)(iii) (emphasis added). (Opinion at 16)

However, this does not absolve YouTube for potential liability for red flag knowledge.  Since the internet has changed much since the DMCA’s enactment, the examples of red-flag knowledge articulated by Congress are largely inapplicable now.  Those availing themselves of these protections hold up the examples of red-flag knowledge described by the Senate (e.g., domain names with words like “illegal,” “stolen” or “pirate” in them), while copyright enforcers have advocated for a broader standard of red flag knowledge, along the lines of “I know it when I see it.”  Seeing this hole in the law, the Second Circuit tried to reconcile a question a question that has befuddled many a copyright lawyer: What the hell, exactly, is red flag knowledge?

The difference between actual and red flag knowledge is thus not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the § 512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement. (Opinion at 17-18)

Actually proving red flag knowledge is a factual question.  It is also part of the reason the case is remanded to the S.D.N.Y.  Indeed, the Court of Appeals spends pages reviewing and discussing the record evidence it believes creates a question of fact as to whether YouTube had actual knowledge of infringement on its service. (Opinion at 19-22)  The same is true of willful blindness, the equivalent of knowledge in copyright cases. (Opinion at 19-24)

As to the “right and ability” to control user-uploaded content under § 512(c)(1)(B), the Second Circuit also remanded this issue to the District Court for further fact-finding.  The Court of appeals rejected both interpretations of this standard as advanced by the parties – for Viacom, a codification of common law vicarious liability standards; and for YouTube, a requirement that the provider must know of the particular case before it can control the infringement. (Opinion at 19-25)  The court agreed that the right and ability to control under § 512(c)(1)(B) requires more than the mere ability to remove or block access to materials on the defendant’s website – but how much more, or what that “more” might be, is unclear – other than the fact that it does not require specific knowledge.

Another issue remanded to the District Court is the question of YouTube’s syndication of its videos to others:

In or around March 2007, YouTube transcoded a select number of videos into a format compatible with mobile devices and “syndicated” or licensed the videos to Verizon Wireless and other companies. The plaintiffs argue—with some force—that business transactions do not occur at the “direction of a user” within the meaning of § 512(c)(1) when they involve the manual selection of copyrighted material for licensing to a third party. The parties do not dispute, however, that none of the clips-in-suit were among the approximately 2,000 videos provided to Verizon Wireless. In order to avoid rendering an advisory opinion on the outer boundaries of the storage provision, we remand for fact-finding on the question of whether any of the clips-in-suit were in fact syndicated to any other third party. (Opinion at 31-32)

The court rounds out its opinion by considering YouTube’s repeat infringer policy and other software tools used to avoid the posting of infringing content.  Neither are sufficient to exclude YouTube from the safe harbor provisions of § 512(c).  Because more fact-finding is needed, the Court of Appeals declined to determine whether the trial court erred in denying Viacom’s cross-motion for summary judgment.

While not likely to become an Alameda Books, this litigation is far from over.  Even if Youtube had won, Viacom likely would have petitioned the Supreme Court for certiorari.  Based on the Grokster case, there is some likelihood the Supreme Court would have granted it.  But by sending the case down to the S.D.N.Y. yet again, another appeal to the Second Circuit is all but ensured.

Section 230 Amendment strips websites of immunity from anonymous commenters

Connecticut Sen. Joe Lieberman, who is not particularly known for his friendliness toward the First Amendment, is at it again.  As chairman of the Senate homeland security committee, Lieberman urged Twitter to stop hosting pro-Taliban tweets last fall, in addition to persuading Internet companies to remove blog posts that promote terrorism.

It appears he’s now taking the idea one step further by proposing an amendment to section 230 of the Communications Decency Act. (Source.) Section 230 (47 U.S.C. § 230) grants immunity to Internet Service Providers from being held liable for the comments of third parties to their websites. Basically, it’s what shields review sites like TripAdvisor or Yelp from butthurt business owners holding them liable for disgruntled third parties’ reviews.  It is also what allows all of you to say whatever you want in the comments without The Legal Satyricon being taken to task for it (legally).

However, Lieberman’s proposed amendment would change that. The new language reads:

“No A provider or user of an interactive computer service shall may be treated as the publisher or speaker of any information provided by another information content provider.”

Although Lieberman is touting this amendment as an anti-terrorist effort, this action will have a chilling effect on all forms of Internet speech. Service providers from Comcast to Consumerist may now be treated as publishers to content posted to their websites. This opens up the possibility that review sites and others that rely on third parties for content will be held responsible for those very same deranged, sub-literate contributions. Lieberman’s proposed amendment will have a chilling effect on free speech, as any site that does not want to drown in legal bills likely won’t accept anonymous comments.  If you’re a sissy with paper-thin skin or an obsession with “bullying,” rejoice, I suppose.

Long before the rise of the Internet, anonymous speech has provided an outlet for those who wanted to make their voices heard, but were unable to so for fear of retaliation. The issue of anonymous speech was discussed in great detail in McIntyre v. Ohio Elections Committee, which involved a woman who handed out unsigned political leaflets that opposed a tax levy. The Supreme Court held that such speech was protected:

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.”

Needless to say, inhibiting anonymous speech is an attack on this right in gross.  It will be a grave day if this amendment succeeds.  Although anonymous speech on the Internet is not always the most intelligent, it still has its place in public discourse – for me to poop on.  Civil liberties should not be victims in the attempt to curb terrorism, yet we have already succumbed to the Scylla and Charybdis of the TSA and NSA in entrusting our rights to the benevolent government.  At this point, what’s one more right ceded to the security theater’s alphabet soup?

 

Virgin Group chairman wins battle for .xxx domain

The man known for using sexually suggestive advertising to sell his products and owner of a company dubbed Virgin recently won a legal battle to gain control over richardbranson.xxx. Source.

Virgin Group Chairman Richard Branson filed a UDRP complaint against Sean Truman, who, according to the decision, is not in the adult entertainment industry, but instead says he registered the domain name as a “souvenir” of his “admiration” for Branson. Truman also said he had no intention to host a website at the domain. Indeed, the webpage was blank when the complaint was filed, with the exception of ads placed by GoDaddy.com.

The National Arbitration Forum concluded that the domain was registered in bad faith and transferred the domain name to Branson. Once transferred, the site apparently will no longer display a web page. Looks like the Virgin name will remain, like most other self-proclaimed virgins, outwardly pristine.

UK judge allows service via Facebook

Facebook users in the UK might start thinking twice before accepting friend requests from people they absolutely don’t know. An English High Court judge allowed two lawyers to serve a defendant they had been unable to contact in person or via email through Facebook. Source. Although courts in Canada, Australia, and New Zealand have used the social networking site (as well as Twitter) to serve individuals, the United States has not yet jumped on that legal bandwagon.

In the United States, generally, service of process is not permitted even via e-mail, although it can be done by e-mail with permission under Fed. R. Civ. P. 4.

Facebook isn’t exactly known for its privacy protection. However, it’s also not that hard to make a fake account, either. A few of my Facebook friends have set up accounts for their dogs, and it’s not all that hard to change your name on Facebook. Users just have to click something verifying the name displayed is, in fact, their legal name.

As with all things technological, with the increased ease of use comes a decreased form of security and surety. Although service of process via social media would make some things easier, it is also harder to verify a person’s identity. Also, it’s not always easy to figure out how regularly someone checks a social networking account.

A number of ethical issues arise as well, such as how a person could be served without deception. Presumably, some of us don’t just randomly approve friends, so getting in the position to serve a person via Facebook could be difficult.

Judge rules court has no personal jurisdiction over Faceporn.com

U.S. District Court Judge Nathanael Cousins recently denied Facebook’s motion for default judgment against Faceporn.com, a website operating out of Norway, for trademark infringement. Judge Cousins said the court lacked personal jurisdiction over the defendants and recommended that the case be dismissed.

Facebook originally brought suit against Thomas Pedersen and Retro Invent citing ten causes of action, including trademark dilution, violating the Facebook mark and wall mark, among others. The court concluded that Facebook failed to show that the defendants had purposefully directed their activities at California, pursuant to the three-pronged Calder test. In order to show that a defendant expressly aimed the intentional conduct at a forum state, the Ninth Circuit requires that the plaintiff show “something more.” The court determined that Facebook failed to show “something more” because “they did not establish that “Faceporn’s users in California were an integral component of Faceporn’s business model and profitability.”

Instead, Facebook attempted to argue that jurisdiction was proper because the defendants intended to target Facebook by “offering a pornographic version.” Facebook further claimed that the plaintiff can establish that nonresident defendant aimed its conduct at the forum by showing that the defendant illegally copied elements of a plaintiff’s mark for the purpose of competing with the plaintiff.

The court reasoned that this argument failed because Facebook and Faceporn are not in direct competition with each other, and therefore Facebook could not prove that the defendants’ conduct was directed at California. Additionally, the court said that Facebook failed to show how Faceporn “garnered revenue from their operation of Faceporn at Facebook’s expense or that Faceporn has diverted any of Facebook’s potential customers.”

Had Faceporn more directly targeted Facebook’s audience, Facebook might have been able to establish personal jurisdiction. But Judge Cousins correctly assessed that the audience for pornography is much more narrow than the audience for a general social networking site.

Read the full order below.

Facebook v. Pedersen