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

April 5, 2012

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

April 1, 2012

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

March 8, 2012

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

March 8, 2012

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

March 6, 2012

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

All Righthaven’s Intellectual Property Are Belong To Us

March 5, 2012

So sayeth the Honorable Philip Pro of the District of Nevada. (source)

World of Warcraft promulgates epic 7th Circuit opinion

February 29, 2012

By J. DeVoy

In an opinion so bizarre it is only fitting to be released on Leap Day (February 29), the Seventh Circuit ruled on the appeal in U.S. v. Lucas today.  The order is available here, and the case originated from my old stomping grounds, the Western District of Wisconsin.

In the appeal, Lucas argues that the district court committed errors that resulted in a too-long sentence.  The Seventh Circuit disagreed.  Like most disputes, the one between Lucas and his victim, a minor known only as “CG,” arose over money:

Lucas became acquainted with CG while playing an online video game, World of Warcraft. While playing the game, Lucas began sending sexual messages to the minor asking CG to send naked pictures of himself. CG refused, and placed Lucas on a World of Warcraft “ignore list.” But Lucas became fixated on CG, and found other means to contact him. He offered CG $5,000 in online “currency” if CG would remove him from the ignore list. CG agreed, but soon after Lucas again began sending him sexual messages. CG again placed Lucas on the ignore list, but this only served to infuriate Lucas. Lucas began sending threatening messages, telling others that he intended to kill CG, and demanding the return of his “gold.” (source at 2)

Since bringing a civil theft suit against a minor who you solicited for n00ds is generally a very bad idea, Lucas was left to take matters into his own hands.  He did so by getting strapped.

Lucas concocted a detailed plan to kidnap CG. He began by building a massive arsenal of weapons rivaling that of a local police department, including rifles, hand- guns, stun guns, canisters of pepper spray, handcuffs, restraints, and other various law enforcement and military equipment. (source at 3)

And, as if proof was needed, Lucas once again demonstrated that you can’t trust kids to keep their stupid mouths shut.

[Lucas] learned CG’s home address by contacting another minor in Madison, whom he had also met while playing video games online. The minor was willing to divulge the address in exchange for $500 (in actual, rather than virtual, currency). (source at 3)

But wait, there’s more!

Finally, Lucas took steps to prepare his vehicle for the kidnapping. Lucas had his car outfitted to resemble a police vehicle, with large antennas in the rear and a pullbar in the front of the vehicle. Lucas then attempted to have an automotive shop remove the emergency release latch from the trunk of his car, presumably so that he could transport CG without fear of his escape. When he examined the car, the shop employee noticed that the inside of the trunk had been lined with a clear plastic cover. (source at 3)

Lucas then drove 20 hours to Madison, Wisconsin to retrieve CG.  He identified himself to CG’s mother as a member of the “National Security Recruiting Department,” which she met with incredulity due to his unkempt appearance and affiliation with an ill-defined law enforcement agency.  Undeterred, Lucas drew a gun on CG’s mother, aiming it at her face.  However, CG’s mother was quick to react and shut the door before Lucas could fire. (source at 4)

Having long crossed the point of no return, did Lucas double-down and invade the house, determined to retrieve CG and get his $5,000 worth?  Surely this plot had already required a greater investment, and Lucas, in CG’s driveway with his handgun drawn, was in too deep to quit – or so it seemed.  No; when confronted by a closed front door, Lucas turned tail and drove the 20 hours right back to Massachusetts. (source at 4)  Two days later, he was arrested there.

Once arrested, Officers found a military-style arms cache, as well as a makeshift outdoors torture basement seemingly inspired by Silence of the Lambs.

Officers recovered two loaded handguns, ammunition, two stun guns, three canisters of pepper spray, seven pairs of handcuffs, twenty-eight flex restraints, three rolls of duct tape, one box of latex gloves, three military style knives, and other miscellaneous items from the trunk of his car. In a wooded area outside of Lucas’s home, officers discovered a cave where Lucas had stockpiled even more weapons. Inside the cave, officers also found two holes Lucas had dug measuring five-feet by ten- feet by two-feet. (source at 4)

Based on these facts and other evidence adduced at trial, District Judge Conley (W.D. Wis.) gave notice of his upward departure from federal sentencing guidelines and imposed a final term of 210 months – 17.5 years, an 18 month upward move from the maximum 192 months provided by the guidelines for all the crimes Lucas was convicted of committing.  The Seventh Circuit found that the district court did not commit any procedural error.  Furthermore, the court of appeals held that the sentence was not substantively unreasonable, and furthered a proper purpose.

Criminal sentences in America are wildly out of line with the harm done by the crimes they punish.  Nowhere is this more evident than in the area of narcotics crimes.  In my experience, however, the Western District of Wisconsin is attuned to this reality and has no desire to be punitive for its own sake (and as a federal judge, why would you – you have job security for life).  But this is one of those cases where the defendant’s conduct makes it hard to impose a lighter sentence, and recidivism appears likely. 210 months is an awfully long time.  In this case, though, it may be long enough to keep Lucas outside of the public during his most destructive years.

Receiving DMCA protections while remaining anonymous: Having your cake and eating it too

October 19, 2011

By J. DeVoy

A significant portion of the blogosphere – or at least what I read of it – acts under cover of anonymity.  I think this is important, especially given the candid statements these authors make about political matters and issues of public concern – particularly because these sentiments are far outside the mainstream.  In some cases, their voices cannot be heard elsewhere.  Society cannot grapple with the truth.  When this ultimately has career consequences, or some psychotic antagonist gets too close to the writer’s identity, he can pull the plug immediately, and then work to purge his writings from Google’s cache and the internet archive – leaving it as if he never existed.

Part of blogging is borrowing – ideas, links, inspiration – and sometimes copying outright, things like images and large chunks of copyrighted (or copyrightable) works.  While possibly frivolous or fair use, such copying could be infringement – and carry a frightening $150,000.00 price tag.  Wordpress and Moniker might not reveal your personally identifying information to some scrawny basement virgin who is outraged that you advocate cheating on your girlfriend, and provide specific instructions for doing it, that he demands your name so he can send you a very erudite e-mail.  Colorable legal demands with a screen shot and copyright registration or application, though, tend to go a lot farther, and an anonymous author’s cloak of anonymity is looking awfully threadbare.  This even bigger pisser comes if the writer is not even liable for the copying, and a full article or image is left by some unknown third party in the site’s comments.  (By the way, this is an excellent way to torpedo blogs you dislike.)  Another option is to create a special purpose business entity to run the blog, such as a LLC, but this requires money, attention, and a public filing with the secretary of state – things that defeat the purpose of anonymity, and even at just a few hundred dollars a year, are not worth the benefit to most anonymous bloggers.

Having established the value – and fragility – of anonymity, the question turns to how one can preserve it and inoculate against liability for copyright infringement.  Technically, this is impossible, and may carry a substantial penalty.  I do not recommend this, but it warrants consideration from an academic standpoint because copyright trolling is real and unlikely to simply disappear.

The Digital Millennium Copyright Act (“DMCA”) requires online service providers, including blogs, to register a designated agent with the copyright office to receive the statute’s protections. 17 U.S.C. § 512(c)(2).  The process for registering this agent, known as an “interim designation,” is governed by the Code of Federal Regulations, and available here.  While the DMCA was passed in 1998, we are still working off of interim regulations – but proposed final rules are pending, and open for comment under the APA until November 28, 2011.

This raises a few issues.  First, the designated agent must provide his or her full legal name, address, e-mail address and phone number, and for this information to be included on the designator’s website.  The precedent that has grown up around the DMCA requires only substantial compliance with the statute in order to enjoy its protections. See Wolk v. Kodak Imaging Network, Inc., 2011 U.S. Dist. LEXIS 27541 *18-19 (S.D.N.Y 2011) (noting appearance of DMCA agent’s contact information on website and granting safe harbor partly based thereon); Perfect 10, Inc. v. Amazon.com, Inc., 2009 U.S. Dist. LEXIS 42341, *20-21 (C.D. Cal. 2009) (holding that failure to provide email address was insubstantial, but only where the agent’s name, address, and telephone number were published on website); see also H.R. REP. 105-551 (II) (1998), at 55-56 (giving examples of insubstantial departures, such as “misspelling a name, supplying an outdated area code if the phone number is accompanied by an accurate address, supplying an outdated name if accompanied by an e-mail address that remains valid for the successor of the prior designated agent or agent of a copyright owner”).

The question then becomes whether using an assumed name for the DMCA agent allows for substantial compliance.  There are two ways of approaching this: On one hand, so long as the address, phone number and e-mail address reach an actual person who can remove infringing content as required by statute, there’s a colorable argument for substantial compliance.  Moreover, there is a significant First Amendment interest in anonymity that should not necessarily be trammeled if the DMCA’s goals are still being effected, with take-down notices being received and honored by an agent, even if misnamed.  Simultaneously, how can there be substantial compliance when the agent is not who the agent claims to be?  This is not a case of the actual agent leaving, with someone else standing in his place and still reachable by the designation form’s contact information.  To the contrary, a false name for an agent gives rise to the inference that the designator was misrepresenting the agent’s true identity to the copyright office – potentially a felony and criminally false statement under 18 U.S.C. § 1001.

Now, an anonymous site could use an actual person as its DMCA agent, no pseudonyms needed.  This chips away at the author’s anonymity, though, and may bring unnecessary problems onto the DMCA agent.  Those of us who remember what transpired between Roissy and Lady Raine know not to underestimate the psychosis of e-stalkers, nor the damage they can cause.  The relationship between the DMCA agent and his acquaintances/friends, as seen on twitter, facebook or ascertained by other means, would be analyzed and reverse-eningeered until the anonymous blogger’s identity was known. (Or, worse, thought to be known, leading to a false allegation of authorship.)  In a more extreme context, this may arise in litigation – since the DMCA agent’s identity is known, and he or she surely had contact with the blog’s anonymous author, the agent is a subpoena target.

The same issues present themselves if one tries to designate an agent as a representative of the blog, whether anonymously or through a separate party under his or her true name.  Designating an agent under a false name calls into question whether the designation of a DMCA agent substantially complies with the statute, and is another avenue for the designator to risk felony conviction under 18 U.S.C. § 1001.  Having a third party act as the blog’s representative raises the same issues above, potentially jeopardizing anonymity and giving opponents a good target for harassment and discovery, in the event of litigation – or applying enough pressure that he or she crumbles.  Using someone else as a representative of an anonymous blog can create other headaches.  If the relationship is unclear, the third person’s representations as an authorized actor for the blog (an informal, unorganized entity as it may be) can be used to cloud any claims the author has to the blog’s copyrighted material, trademarks and associated goodwill, and other assets.  Even if the representative for the blog served no other purpose but to authentically designate a DMCA agent, the question of what relationship that person had with the blog should come to an inquisitive litigant.

There are narcissistic reasons not to use an outsider as a designator, too.  Namely, he or she will be accused of writing the blog.  All credit could be given to someone who may not be able to string a sentence together, but stepped in to serve a ministerial function.  Where’s the justice and glory in that?  Depending on the blog, too, one must wonder about the person who would volunteer to be the designator and to have his or her name publicly attached to controversial, politically incorrect content.  It works well for some people – but not the majority.

There are definite risks and problems associated with running an anonymous blog and trying to achieve safe harbor protections under the DMCA.  These risks, however, must be weighed against the sheer volume of service providers with registered agents.  Final rules for agent designation may close the loopholes that could make an anonymous registration with the copyright office feasible (even if legally improper), and possibly even substantially compliant with the DMCA.  The risks being an ineffective DMCA registration, though, and running up through criminal liability, likely do not warrant the effort required to attempt outwitting the DMCA.

Nevada’s Anti-SLAPP Statute Kind of Sucks

October 1, 2011

UPDATE: It used to suck. However, Governor Sandoval signed SB 286 into law, and therefore, now Nevada’s anti-SLAPP statute is awesome. See post here.

By J. DeVoy

Nevada is something of a curiosity in terms of litigation and its laws.  It has nearly comprehensive regulations for brothel operation, yet very little binding precedent.  I recently did some broad research on receivership of a Nevada company for a public filing, and netted fewer than a half-dozen cases – in both federal and state courts – in the state’s entire history.  This has been common among most legal issues in Nevada.  Compared to other states, Nevada does not have much precedent going for it.  Consequently, legislative history in Nevada is heavily emphasized in the courts and especially on matters of first impression – which arise far more often than one would believe.

Another twist on law practice in Nevada is that the state desperately tries to differentiate itself from California – despite adopting many California tests with respect to spousal asset division.  So it is not surprising that Nevada’s anti-SLAPP statute is a pathetic shadow of California’s.

Nevada’s anti-SLAPP laws are found in NRS 41.635-70.  They aren’t all bad, either: The attorney general may intervene on behalf of a SLAPPee and file a special motion to dismiss under the anti-SLAPP law. NRS 41.660.  The special motion is treated as a motion for summary judgment – operating as an adjudication on the merits – and discovery is stayed while it is pending. Id.  The statutes requires the court to award reasonable attorney’s fees to the prevailing anti-SLAPP movant, and creates a separate cause of action for the prevailing movant, allowing him or her to bring an action for recovery of compensatory and punitive damages, and attorney’s fees in that action, against the SLAPPer. NRS 41.670.

Here’s the rub: The statute can only be used against cases designed to silence “good faith communication in furtherance of the right to petition.” NRS 41.660(1).  Good for Nevada to protect political speech and all, after its been established in everything from Connick v. Myers and Boos v. Barry to the “God Hates Fags” case (Snyder v. Phelps) to be the most important type of speech one can make, but there are a lot of qualifications in that sentence.  What is a  “good faith communication in furtherance of the right to petition”?  NRS 41.637 has the answer:

“Good faith communication in furtherance of the right to petition” defined.  “Good faith communication in furtherance of the right to petition” means any:

  1. Communication that is aimed at procuring any governmental or electoral action, result or outcome;
  2. Communication of information or a complaint to a Legislator, officer or employee of the Federal Government, this state or a political subdivision of this state, regarding a matter reasonably of concern to the respective governmental entity; or
  3. Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law

which is truthful or is made without knowledge of its falsehood.

While this is important speech to protect, finding a case where it can be used is like threading a very small needle.  It is also a bit discouraging that Nevada had to make it clear to its citizens – and mostly its political operatives and public officials – that such conduct is disallowed.

Broadening the scope of Nevada’s statute would still encompass these types of speech.  But it would make the anti-SLAPP useful for actually preventing SLAPP suits.  Nevada did introduce its anti-SLAPP statute in 1993 and last amended it in 1997, before the dawn of mass internet access era (where every petty asshole with $500, delicate sensibilities and a desperate or unethical lawyer is a defamation plaintiff), which explains the limited view of “public participation.”

Nevada’s anti-SLAPP statutes have some very good provisions.  The SLAPP defendant can move on his or her own, or the AG can intervene (largely because the cases are explicitly political under the current 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.  While that’s not quite as iron-clad as California’s bond requirement, that’s pretty impressive.  But the scope of application is just pathetic.  California’s anti-SLAPP statute covers  any “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” which includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or

(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Would it kill Nevada to integrate C.C.P. § 425.16(e)(3) and (4) into NRS 41.637?  Mindful of California’s creeping influence in Nevada, there is not a reason to borrow strictly from that state when plenty of others have good anti-SLAPP statutes.  Oregon and Washington have them as well.  More analogous to Nevada in character is Texas, which recently unleashed its own anti-SLAPP statute protecting:

1. the right of free speech
2. the right to petition; or
3. the right of association

Tex. Civ. Prac. and Remedies Code § 27.005(b).  Expansive and detailed definitions of what these terms embrace can be found in Tex. Civ. Prac. and Remedies Code § 27.001.  An overview of the new Texas law is available at the Citizen Media Law Project.

There are good models for Nevada to draw from in enhancing its anti-SLAPP statute without blindly deferring to California.  I will readily admit that Nevada is not a first-teir state like California, New York or Massachusetts (the latter two of which have mediocre-to-abysmal anti-SLAPP statutes), but it is a global and national tourism destination.  Why should the state compete only to be the best in hotels and gambling, especially when Macau’s rise threatens that position?  Nevada can compete in other areas as well, including the laws it enacts.  Nevada already has a business-favorable legal climate – why not a speech-favorable one as well?

It is not seriously disputed that SLAPP suits arise from all sorts of things other than speech about pending government issues.  Website owners or administrators covered by 47 U.S.C. § 230 get sued for third parties’ statements and must pay the cost of defense.  Whiny, entitled olds constantly sue people for commenting – often accurately – on their own disgusting or unlawful public deeds.  Yet, the victims of those suits must bear the cost of defense because their speech did not relate to some pending agriculture bill.

While copyright infringement is of a different genus than defamation, one must wonder whether the 200+ Righthaven lawsuits filed in Nevada would have been resolved differently if the state had a stronger anti-SLAPP statute.  Many of the defendants used the news articles in question to discuss political events, or public interest items; in fact, the District of Nevada has never denied a properly raised argument that the defendant’s use of the content was non-infringing fair use.  Combined with Righthaven’s problems with standing, as Courts have repeatedly held that it did not have sufficient rights to sue, what other purpose could its lawsuits serve?  If the statute were more broadly constructed, it could have challenged these sham copyright lawsuits – requiring Righthaven to pay the victorious defendant’s attorneys’ fees and giving the successful movant a new cause of action against Righthaven, allowing the plaintiffs’ bar to jump in the fray. (Query whether Righthaven would pay any such judgments.)

To broaden the scope of the anti-SLAPP statute, some compromises may have to be made.  The separate cause of action might have to be scrapped in favor of the SLAPP filer simply having to post a bond for the anti-SLAPP movant’s fees, which would be awarded upon a successful motion.  Perhaps a Texas-style “loser pays” model would be approached.  The provision allowing the Nevada Attorney General likely would have to be scaled back to apply only in political cases (rather than general matters of public interest) so as to avoid issues with the government picking sides.  Perhaps none of these things would have to change.  The scope of protection, however, absolutely must.  As it stands now, Nevada’s courts are begging to be used as an abusive litigation hell-house against those who dared to speak freely.

Give it a rest already – Myths and Facts about mass copyright litigation

September 29, 2011

by Vaughn Greenwalt

The latest criticism of mass-copyright litigation follows the same mantra of previously-pissed patrons: “I know I stole your porn but I’ll be embarrassed if anyone finds out so you can’t sue me!” Cut the crap already, “shame” is not a legal defense.

Lets play fact or fiction with the latest misleading article which was, oddly enough, endorsed by the EFF:

1. FACT: “The lawsuits name ‘Doe’ defendants until they can unearth the true identities of those accused of downloading porn through their Internet providers.”

Naming Doe defendants is the only way to bring suit against thieves who steal Copyright protected works over the Internet. The identities of those thieves is only ascertainable once the personally identifiable information associated with the thieves Internet Protocol address (“IP address”) has been subpoenaed.

The industry isn’t blackmailing thieves with the prospect of naming a Doe defendant, it is the only legal course to obtain requisite discovery.

2. FICTION: “The adult entertainment industry has dubbed [John] Steele the ‘Pirate Slayer.’ Steele calls the lawsuit a simple defense against copyright theft.

Fact: Steele named himself “Pirate Slayer,” and most of the industry mocks him. When he showed up to a conference wearing a badge that said “Pirate Slayer,” he immediately gained the nickname “Buffy.” That’s what the adult entertainment industry calls him — Buffy. And it isn’t a compliment.

Every studio has separate and distinct legal counsel and thus a separate and distinct legal strategy. While I cannot speak to the strategy employed by Mr. Steele, I can speak to the strategy employed by the Editor of this blog – it is anything but simple.

Without violating my ethical duty of confidentiality and privilege, I have been in many a meeting in which special emphasis was placed on “doing it right.” Efforts to safeguard the privacy of the defendants, fairness to the defendants, an opportunity to defend before being named as a defendant, and forewarning of the suits before suits were filed. In addition, some studios offered amnesty to those who sought to protect their privacy.

3. FICTION: “The intent of these lawsuits is to get peoples’ identifying information and attempt to extort settlements out of them” – Corynne McSherry, EFF’s Intellectual Property Director.

Ms. McSherry’s dogmatic whining borders on mental illness. Perhaps she should look up the definition of “extortion.” Words mean something. This word means to obtain money or property to which one is not entitled by threats or coercion. When a copyright owner seeks redress under the copyright act, the copyright owner is seeking restitution in a manner specifically authorized under the law. McSherry should not use big words without supervision if she doesn’t know what they mean.

Copyright’s purpose is to foster the creation of creative works. The music industry has already been economically gutted thanks to the likes of Napster, Kazaa and Limewire; the porn industry is seeking to avoid that very same fate. If protection is weakened so too is the drive to create and thus all suffer (even those of us who enjoy it late at night while our partner is sleeping). If copyright protected content is freely distributed among torrenters, then studio membership is impacted, which then impacts studio revenue, which then impacts studio quality and quantity, which then in-turn further impacts studio membership, which ultimately impacts the studio’s very existence.

I hope the EFF recognizes the difference between dissent and disloyalty (I really love you guys!). However, I find it odd that the Director of Intellectual Property is tossing grenades at those who would seek to protect their own Intellectual Property.

4. FICTION: “The so-called “mass copyright” cases all follow the same format: an adult film company sues scores of anonymous defendants, alleging a particular movie was pirated using the popular file-sharing technology BitTorrent. The number of defendants can be staggering, dwarfing the scope of the music industry’s lawsuits; there were 2,100 Does named in one recent San Jose case, and 23,000 in the largest thus far in Washington, D.C.

As referenced above, every porn studio has independent legal counsel complete with independent legal strategy, while some attorneys may look for the quickest and most efficient way to make a buck for their clients, others, like my Editor, do not.

Some attorneys, while legally proper to sue 23,000 defendants in a single suit, put their law clerks through WEEKS OF PURE TORTURE to determine the location of the individual IP addresses and group them based on state and federal judicial district. Once determined, suit is brought against them in their home state and district and regularly reduces the number to less than 100 Doe defendants in any single suit.

Again, some attorneys take great pain to make litigation fair for thieves.

5. FACT: Mark Lemley is… eh…. brilliant?

I have been to many symposiums where Mr. Lemley has proposed theoretically brilliant additions to U.S. Intellectual Property Law. I have witnessed, in sheer awe, his ability to dismiss, answer and be condescending all in a single sentence.

However, Mr. Lemley’s brilliant theoretical ideas are not so brilliant when it comes to actual litigation and practice . Incredibly, Lemley provided a brilliant addition to the subject article regarding the porn industry’s torrent suits: “… it made people at the margins nervous about file sharing… people are going to think twice about doing this.” Lemley is absolutely correct in his assessment. THIS is the ultimate goal of the porn industry’s torrent litigation; not to shame the pron-viewing public (honestly, isn’t that all of us?) for their lunch money, but to deter the theft and infringement of their Intellectual Property.

The simple answer to EVERY concern opponents of mass-copyright litigation has is incredibly simple: Theft is theft – no matter the medium. STOP STEALING SHIT AND YOU WON’T HAVE TO WORRY ABOUT IT!!!!

Are all .com and .net domains under U.S. jurisdiction?

July 4, 2011

The U.S. Immigration and Customs Enforcement Agency (ICE) takes the position that if a website is located at a .com or a .net domain, then they have sufficient ties to the USA to make them fair game for U.S. prosecutors. (source)

To understand this position, you need to understand that every domain name has a registrant, a registrar, and a registry. The registrant is the easy part — whoever registered the domain name is the registrant. Registrar is one that most people are familiar with too — this is the company you use to register your domain name. The Registry is the one that sort of flies under the radar. Every top level domain (TLD) is sponsored by a particular registry, and the .com and .net domain name registries are run by Verisign — a U.S. based company.

However, if that logic pans out — anyone who uses a .tv domain name might be well advised to hire a lawyer in Tuvalu.

Jessica Valenti doesn’t understand the Streisand Effect

July 1, 2011

By J. DeVoy

Imagine if there was an online database of killers, child abusers, bigots, rapists and liars – and they were all women.  Now there is!  Register-Her.com, a project started by Paul Elam, a men’s rights activist and contributor to The Spearhead, uses a wiki-style webpage to consolidate locally and nationally reported facts about women whose documented wrongs range from murder to false rape accusations. [Disclaimer: Like Elam, I also contribute to The Spearhead.]  This is SRS BUSINESS.

One of the first additions to the site as a “bigot” is feministing’s own Jessica Valenti.  Merriam-Webster defines a bigot as “a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance.”  Without dignifying Valenti’s oeuvre with my attention, this sounds accurate.

If a tree falls in the woods, does anyone hear it?  If Jessica Valenti didn’t shriek like a harpy about “misogyny,” would so many others know about Register-Her.com?  Rather than letting this roll off her back with the cool disposition of an empowered, independent blah blah blah… woman, she posted this YouTube (which, admittedly, I have not watched to completion).

Result: More people know about the site.  Also, male advocates are increasingly stepping out of anonymity, contrary to Valenti’s assertions.  Paul Elam’s real name is… Paul Elam!  My name and identity are well known, and I’m on the record opposing anonymity in advocating men’s issues and any other controversial position  – though I understand and respect why others employ it.  Crime & Federalism offers a counterpoint on the issue here.  I rather enjoy this and, as far as I know, the “basement-dwelling virgin” meme has never been attached to me.  In fact, the biggest critics of women I’ve met are people among the best looking and most successful with women that I know.  In contrast, the basement-confined and virginal types tend to supplicate women and resent men who are successful with women, turning on them for the smallest of reasons (like in the case of Dominique Strauss-Kahn — come on, “forced” oral sex wasn’t a red flag of falsity?).

Just like when Barbara Steisand’s shrill howls – and not even her singing – drew attention to photos of her Pacific mansion online, Jessica Valenti’s plaintive whines drive more eyes to the site.  If she had just shut up, the damage would have been limited mostly to the men who would have found the site anyway – preaching to the choir.  Realizing that the damage was done, Valenti is now trying to scrub the internet of any trace of her existence, seeking the anonymity she criticizes men for using to voice their opinions.  I hope Reputation Defender is still in business!

But enough about a bitter, angry shrew who has to live not only with herself, but also a younger, neckbeard beta husband.  The new site itself, Register-Her.com, is a more worthy topic of discussion.

Is it fair for Register-Her.com to exist?  The Atlantic tells us that it’s the “End of Men.”  Women already kvetch and attack men’s reputations on Don’t Date Him Girl.  There’s no need for free speech to be “fair,” since its mere availability levels the playing field.  This new website fills a void in beating back the myth of intrinsic female virtue, though.  I clicked around to see what the site was about and found that each article is a recitation of sourced, cited and publicly available information.  In some cases, the women profiled in the articles are described in their very own words.  While the site was designed to be provocative, it was not created with the intent to hurt those named within it for the sheer purpose of inflicting pain.  Plus, there are limitations of liability inherent in the site’s design and operation.  Section 230 protects the site’s owner from liability for content posted by others.  To the extent others’ content may wind up on the site, such as a mugshot or screen capture, they tend to be government works – which are not subject to copyright – or tiny snippets of news articles that are almost certain to constitute fair use — assuming the articles’ factual elements can even be copyrighted.

As for litigation that can be pursued against the site… what, exactly?  Where is the disclosure of public facts when all of the site’s information is available from other online sources?  What unreasonable attention has been brought to someone’s private life?  How is aggregation of the news shocking or extreme conduct — especially when Register-Her.com is a republication of what others have written?  I’m confident Elam has the compassion to remove an entry if there’s a good reason to do so, but it is unlikely that reason would be expressed via litigation with even a remote chance of success, even as a SLAPP suit.

I’ve no doubt that this is far from the end of whining and gnashing of teeth over Register-Her.com.  More will come as the site’s contents work their way up Google’s search algorithm.  All they will do, however, is make the site more well-read and well-known. (See also Juicycampus.com (RIP).)

The PROTECT IP act – a new name for COICA with the same uselessness for adult entertainment

May 29, 2011

By J. DeVoy

I’ve previously written about the futility of federal proposals to further regulate the internet for copyright infringement.  Fellow blogger and colleague Ron Coleman – who participated in a really awesome brief with Marc and I – took note of my prior musings about this topic, focused on the failed Combating Online Infringement and Counterfeits Act, or COICA.

I’ve been following the PROTECT IP Act since it was first announced, but write about it now because it has made it out of committee in the Senate.  There’s not much new that I can add to the zeitgeist of discussion and analysis available from numerous sources, such as the EFF and Citizen Media Law Project.  For those interested, the bill’s full text is available here.

Like COICA before it, the PROTECT IP act does nothing substantive to assist the adult entertainment industry.  While the bill could technically assist in taking down sites hosting torrent files, hosted files (file lockers) and even tube sites, the means prescribed in the statute are too cumbersome for the level of wide-scale enforcement needed to combat the tsunami of piracy washing away profits in adult.  Because of the DMCA and ease of piracy, it is ubiquitous, giving rise to automated content-removal services that crawl piracy hotspots and send out DMCA takedown notices en masse - as the task would be insurmountable without automation.

To carry the luxury good thread used in my prior post forward, this kind of strategy may make sense where limiting availability of a Tiffany purse, for example, is an inherent part of the good’s value.  In contrast, content producers want their content to be widely available (evinced by the migration to mobile compatibility, whether on smart phones or tablets), but in a format that must be purchased.  Thus, while this bill is aimed at limiting the availability of infringing/counterfeited content, the market has already provided a cheaper solution for adult, and the PROTECT IP Act misses the mark in that regard.  Indeed, piracy is like a hydra, and by the time a producer has cut off one head using the PROTECT IP Act’s procedures, (at least) three more have emerged in its place.

The PROTECT IP Act, like COICA, also misses the point in terms of remuneration.  Companies aren’t viewing anti-piracy as a source of revenue, but a means to recoup lost sales that would have – and should have – been made absent rampant piracy. (Obviously not at a one-to-one ratio, as some people will never pay for porn, but the proliferation of “free” porn has led some people to land on the theft side of the fence when they otherwise would have purchased content.)  While the Act allows for plaintiffs and the Attorney General to shut down sites, re-opening them is not particularly hard, as both Encyclopedia Dramatica and the trio of online poker sites recently sued all recommenced operations on foreign domains outside of the US’s jurisdiction within hours – even if it took a few days, or even just hours, for the word to spread and traffic to follow it.

If the Act had allowed for producers and copyright/trademark holders to pursue registrars and payment processors for the resulting damages, which would create significant new risks in those fields of law, I would be more optimistic about the pending bill’s ability to make even a dent in the war on content piracy.  Seeing as this did not happen – and probably never will – I have serious doubts about the efficacy of this proposed law in the adult realm, as opposed to mainstream entities like the RIAA and MPAA, for which fighting piracy is the cost of doing business and no monetary ROI is necessarily expected.

It is hardly surprising that Congress, and all of elected government, is an apparatus for handouts to the elite.  The persistence with which Congress is willing to trammel on free speech and expression in such a limited way that benefits only the chosen few with huge content libraries and even bigger war chests, though, verges on shocking.  While PROTECT IP will give powerful trade organizations a new tool to play whack-a-mole with, producers who don’t eat if their content doesn’t sell won’t be able to do much with this act, and certainly won’t be able to recover anything financially with it.  A twenty-something serial pirate in Eastern Europe won’t mind the hassle of losing a few domain names in the scheme of his ongoing piracy enterprise.  If Visa or GoDaddy were potentially on the hook for facilitating their business, though, the practice would end almost instantaneously and, if it didn’t, content producers would be repaid, likely handsomely, in short order.

New federal web laws will confiscate wealth from adult, other industries

April 6, 2011

By J. DeVoy

Pat Leahy seems to actually know a bit about intellectual property law, if you listen to him speak long enough.  Based on the failed introduction of COICA in the fall, he’s clearly aware of the ravages piracy has caused on the broader recording and entertainment industries, as well as the harm of fraudulent goods being sold over the internet.  Leahy is now renewing his call for tough new internet laws to rein in “rogue websites” that sell counterfeit goods and are at the heart of the piracy epidemic that has sent adult entertainment revenues tumbling.

On the surface, government intervention is a good thing – an entity with tremendous resources and power is stepping in to preserve the market for IP holders’ goods.  If you think the government is doing this for the benefit of the adult market – or that these efforts will in any way aid adult – think again.  As always, the beneficiaries of these policies are the groups that weren’t hurting too badly in the first place.  For example, the RIAA and MPAA spend tons of money pursuing infringers just to preserve the markets for their respective works, as they have the resources to do so, and simply meting out high-profile punishments without regard for what recovery they can actually obtain is sufficient to serve their ends.  For example, the movie industry posted massive profits for 2010.  Then there are brands like Gucci and Louis Vuitton that love government intervention so that the market for their overpriced products is kept free from cut-rate counterfeiters.

The adult entertainment industry lacks this kind of centralized, well-funded activism apparatus.  While the sums at stake for the industry as a whole may rival those sought – and spent – by the RIAA and MPAA, a patchwork approach to litigation, including undisclosed settlements, keeps outsiders from seeing the full scope of piracy’s damages.  In just one case, Evil Angel and Jules Jordan won a $17.5 million award against various defendants for DVD piracy – an activity that seems almost quaint in the current climate of BitTorrent litigation.  While that’s a huge award, too, it still pales in comparison to the amount of money the RIAA will spend to fight pirates in a single year.  Especially after Citizens United, money talks, and its the mainstream recording industries that are spending more of it to influence legislative activity.

So, evidently, this legislative push is not made with the intent of making life easier for adult content producers.  In practice, it will not behoove them either.  Here’s why:

Destruction of evidence

When the government shuts down a site, it doesn’t preserve and disable it – it throws its logos up and tells the world that it has been taken over by the Feds.  For those in the process of building a case, or considering one, the information needed for that prosecution is gone, certainly as far as you’re concerned, if not from the potential defendant’s servers.  Some of these sites will reemerge on alternate domains, but then the facts underlying a producer’s case may have changed.  A view count on a pirated video, which has probative worth with respect to damages, may reset from hundreds of thousands of views to zero.

Confiscation of assets

Shutting down sites like channelsurfing.net isn’t enough.   The government is now pursuing those sites’ operators, such as Bryan McCarthy, for criminal copyright infringement.  “Hang ‘em high!” May be the rallying cry of some producers, but the funds used for criminal legal defense and assets forfeited to the government in a plea deal or upon conviction are all things that copyright holders won’t get in civil damages.  Servers, real property, and anything else used in running a site that the government confiscates under its ill-defined conception of rogue websites all go to the government – and there are a lot of ways the government ensures it receives this property.

In essence, these actions become a hidden tax on adult content producers who are robbed of a means to pursue litigation and the damages to which they may be entitled for copyright infringement.  While keeping one’s business afloat on copyright infringement lawsuits is a poor model, recouping lost sales by going after pirates makes a hell of a lot of sense, and can be pretty damn moral, too.  But if Congress gets its way, any potential gains studios may realize become government property.

This doesn’t even begin to address the free speech concerns of what would constitute a too-infringing website, and where that line would be drawn.  The threats to collaboration and innovation should be obvious.  And while many believe something should be done to aid in the fight against piracy, this probably isn’t the answer, as government intervention is money out of studios’ and producers’ pockets.

Market regulation is something the government should have some hand in, due to its reach and resources.  If all antitrust and market enforcement action were private, no group or groups would have the resources to find and police every instance of market abuse and cure them in an even-handed way free of self-interest.  It’s a good thing that the FTC and DOJ exist to fight antitrust violations (to the extent they can in the wake of Iqbal and Twombly), but for ICE to get involved by unilaterally shuttering websites goes far beyond the market-policing role and delves into something much more sinister.

Yahoo’s spam filter protected by § 230

March 24, 2011

By J. DeVoy

In a decision from the U.S. District Court for the Northern District of California, Yahoo’s spam filtering of its e-mail addresses is a valid exercise of its power as a content provider under 47 U.S.C. § 230, better known as § 230 of the Communications Decency Act, or simply § 230.  The case is Holomaxx Technologies v. Yahoo!, Inc., Case No. CV-10-4929-JF.  The Court’s order, available here, was reached after Yahoo moved to dismiss the claims against it under 12(b)(6), with § 230 serving as an affirmative defense – and basis of the motion – on claims three through six.

The court addressed two main issues:

Whether the court could consider Yahoo’s affirmative defenses – Because Yahoo filed a Rule 12(b)(6) motion to dismiss, Holomaxx challenged the Court’s authority to consider Yahoo’s affirmative defenses, specifically those arising from § 230.  The court agreed with Yahoo that affirmative defenses under the Communications Decency Act can be raised at the 12(b)(6) phase and be used to defeat claims brought against the defendant, so long as they are raised in the Complaint and readily ascertainable from its allegations. Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1200 n. 5 (N.D.Cal.2009); Langdon v. Google, Inc., 474 F .Supp 2d 622, 630-31 (D.Del 2007); see also Jones v. Block, 549 U.S. 199, 215 (2007).  Thus, as the claims against Yahoo naturally invited a defense under § 230 of the Communications Decency Act, the service provider was entitled to raise them as affirmative defenses that negated the plaintiff’s claims in a 12(b)(6) motion to dismiss.

Whether § 230 provides immunity for e-mail spam filters – As there is little question that Yahoo offers an interactive computer service, the court’s inquiry turned to whether Yahoo blocked or filtered material it found “to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,” and did so in “good faith” as required by statute. Holomaxx contended that its e-mails were normal business communications that did not fall within these categories.  Furthermore, because of the association of “harassing” and “objectionable” with the other terms – “obscene, lewd, lascivious, filthy [and] excessively violent,” – Holomaxx contended that its e-mails were not harassing or objectionable merely because they were unwanted.

What constitutes “objectionable” content under § 230 is largely undefined by the courts at this point.  Precedent from the Northern District of Illinois suggests that much deference should be lent to the service provider’s subjective understanding of what is “objectionable” under the statute. e360 Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 608 (N.D. Ill. 2008).  Yahoo produced evidence that approximately 2 million e-mails each year were sent by Holomaxx to invalid e-mail addresses, or resulted in an opt-out by the end-user, even with Yahoo’s filtering in place – a number that would have been higher without spam protection.

The inquiry then turned to whether Yahoo took such measures in good faith.  Holomaxx alleged that Yahoo acted in bad faith, but failed to plead – or produce evidence showing – that Yahoo acted with an absence of good faith.  In failing to produce any evidence on this point, Holomaxx failed to meet its evidentiary burden and could not show Yahoo acted with the absence of good faith that is prohibited by § 230.  Moreover, Holomaxx failed to establish Yahoo’s duty to discuss its reasons for blocking Holomaxx’s mail, or provide a remedy for such blocking, because no such duty exists – its imposition would be a disincentive for the development of blocking and filtering technologies inconsistent with § 230(b)(4).

The court therefore dismissed these claims against Yahoo, though giving Holomaxx the opportunity to amend its Complaint and cure these deficiencies – a task Holomaxx may not be up to, given court’s ruling.  Indeed, the court specifically noted that Holomaxx needs “significantly greater factual detail” to sustain these claims.

The takeaway from this case is the expanded understanding of what content is “objectionable” under § 230, which appears to be almost any kind of communication as long as a meaningful, harmful effect can be shown.  One person’s whine does not establish harm, but 2 million spam e-mails a year, which reach dead addresses or are greeted with an opt-out, crosses the threshold for what is “harassing” or “otherwise objectionable.”


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