DIGITAL MEDIA LAW Legal Issues And Online Publications

DIGITAL MEDIA LAW Legal Issues And Online Publications

New Worries Over Control Who Controls the Internet?

Government Actors: 1996 White Paper “Hands Off” FCC – Ancillary Control Over Comcast’s Cable

Modem President Obama’s Policy Team FTC Rules for Paid Reviews and New Hearings on

Taxes, Copyrights & Revenue Private Parties

Michael S. Overing 2009

Criminal Issues for Publishers Linking to Child Pornography is always

illegal. 18 USC 2251. What about “morphed” images? See, Ashcroft v. FSC (2002) 535 US 234.

Linking to DMCA Circumvention 1201(a)2 Technologies. Universal City Studios, Inc. v. Corley (2001) 273 F.3d 429 (Reimerdes). Why is online different than print?


Criminal Conduct Cont’d Cyberbullying/Stalking varies by state law How do you know when a bully/stalker is

engaged in this behavior? Generally look at the effect on a reasonable hearer. Planned Parenthood v. ACLA (9th Cir. 2002) 290 F.3d 1058.

What about violations of terms & conditions? Myspace?


Intellectual Property Interests:Right of Publicity Right to control publicity of one’s name,

likeness voice or image. Generally Governed by a “Naked Eye Test” Requires Permission when you use person’s

name, voice, signature, photo, or likeness False Depiction. Hoffman v. Capital Cities

(9th Cir. 2001) 255 F.3d 1180


Right of Publicity Cont’d Exceptions exist for newsworthy events. Is

there a time limitation? See, Downing v. Abercrombie & Fitch (9th Cir. 2001) 265 F.3d 994.

First Amendment? No First Amendment Protection if depiction is literal. Comedy III v. Saderup (2001) 25 Cal. 4th 387.


Intellectual Property Interests:Trademarks A trademark consists of words, symbols,

colors, and/or designs, which identify and distinguish goods from those of a competitor.

Trademark infringement is established by showing (1) a protectable mark; and, (2) the likelihood of confusion.


Trademarks Cont’d Metatags and Initial Interest Confusion.

Brookfield Comm., Inc. v. West Coast Entertainment (9th Cir. 1999) 174 F.3d 1036.

Key Words. Playboy Enterprises, Inc. v. Netscape Communications, Inc. (CD Cal. 1999) 55 F.Supp.2d 1070 affirmed at 202 F.3d 278. Is a “playboy” or a “playmate” the same as “Playboy” or a “Playmate”?


Trademarks Cont’d Defenses

Lack of Ownership of the mark Fair Use/Nominative Use. New Kids on the

Block v. News America Publishing, Inc. (9th Cir. 1992) 971 F.2d 302. Playboy Ent., Inc. v. Welles (SD Cal. 1998) 7 F. Supp.2d 1098. Aff’d in part (9th Cir. 2002) 279 F.3d 796.

Consumer Criticism: Ballysucks.com


Copyright Copyright law protects “expression,” but not

underlying ideas Copyright protection extends to original

works of authorship that are “Fixed” in a tangible medium of expression. 17 USC 102(a). Loading data into ram is deemed to be sufficiently “fixed,” even though not stored. MAI Sys. Corp. v. Peak Computer, Inc. (9th Cir. 1993) 991 F.2d 511.


Copyright Cont’d Copyright Gives the Owner a Monopoly to:

Reproduce prepare derivative works Distribute copies Perform/Display the work publicly

Anyone who violates any of the exclusive rights of the copyright owner without authorization is liable as an infringer


Copyright Cont’d Remember: Any right that is not given, is

retained by the creator. Collective Works. New York Times Co., Inc.

v. Tasini (2001) 533 U.S. 483. What do your releases say?

Contributory Liability: Knowledge + Material contribution

Vicarious Liability: Rt. To Supervise + $$Michael S. Overing 2009

Copyright Cont’d Fair Use Section 107 uses 4 factors:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

The nature of the copyrighted work Amount/substantiality of the portion used in

relation to the work as a whole The effect of the use on the market value for the

copyrighted work


Copyright Cont’d Comments on Fair Use:

Factors are interactive Educational, nonprofit use does not create a

blanket fair use exemption Commercial use is much more likely to require

permission Imaginative, unpublished work is more likely to

require permission than factual, published work Using less is better than using more


Linking/Framing Linking Probably OK Framing Not OK. Wash. Post v.TotalNews,

Inc. Case No. 97-1190 (settled); Shetland Times, Ltd. v. Wills (UK) (settled); Futuredontics v. Applied Anagramics (no harm shown) unpublished 9th Cir. opn.

Aggregation & Technology Changes. Kelly v. Arriba Soft (9th Cir. 2003) 336 F.3d 811.(thumbs OK because no market!!).


Publisher Liability & Tort Law Defamation: A false statement of fact which injures

a person’s reputation Assume users of a web site defame someone, is the

site liable? Old law question: Is it a publisher or simply a

distributor? Special Problems with User-Generated Content


Old Law In dealing with defamation on the web, courts

used to use the traditional distinction between publishers (editors) and pure pass-through distributors (like bookstores and newsstands)

Strict liability for publishers, “knew or should have known” liability for distributors


Cubby v. CompuServe (1991) On Compuserve’s “Rumorville” forum, they

carried defamatory remarks about a competing site created by Cubby called “skuttlebut.” Cubby sued.

Court says, relevant liability standard is whether “CompuServe knew or had reason to know” of the alleged defamatory statements. Since it didn’t police the postings; no knowledge.


Stratton Oakmont v. Prodigy(1995) Posting on Prodigy’s “Money Talk” accused

S.O. – a securities firm – of criminal and fraudulent acts.

Held: Prodigy held itself out to the public as controlling content on its site; And, used screening software to do it. It therefore made decisions as to content constituting editorial control -- A Publisher.


CDA Section 230 (1996)

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U. S. C. 230

No provider … shall be held liable on account of (a) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers obscene, lewd, lascivious, filthy, etc.


Zeran v. AOL (1997) After the Oklahoma bombing, an anonymous

posting on an America Online bulletin board offered to sell “Oklahoma T-Shirts” bearing offensive slogans

Zeran’s home phone given as the contact Zeran had no connection with the posting and

his life became a nightmare Under 230, no AOL liability


Blumenthal v. Drudge (1998) Drudgereport includes claim that White House aide

Sidney Blumenthal had a history of beating his wife. Drudgereport is distributed on AOL. AOL retains

the right to control the content. After receiving notice from Blumenthal’s lawyers, Drudge retracted the story. After being sued, AOL claimed CDA Section 230 immunized them from suit.

Held: AOL and all publishers/distributors are immunized from such suits.


CDA 230 Open Questions Distinguishes between print media and web

sites. What if a newspaper prints and posts same story?

What if an ISP knowingly and intentionally republishes defamatory material?


Barrett v. Rosenthal California Supreme Court (2006) The appellate court had held that CDA 230 “cannot

be deemed to abrogate the common law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character.”

Supreme Court Reversed: “by its terms, Section 230 exempts Internet intermediaries from defamation liability for republication.


Defamation: Motive for CDA 230 The motive for CDA 230 was to shield ISPs from

liability that would inhibit the development of the web

The cost of CDA 230 is no meaningful recovery for those harmed by defamation

ISP record-keeping is a problem here Similar treatment now for copyright infringement

in DMCA Note: CDA 230 does not immunize intellectual

property infringement


Quick Comparison with Copyright Suppose A BBS contains material that

infringes copyright Old law used the doctrine of contributory

infringement or vicarious liability: Where a defendant has knowledge of the primary infringer's activities, it is liable if it materially contributes to the infringing conduct.


Digital Millennium Copyright Act (17 USC 512(k)(1))

The DMC shields an ISP from liability for contributory infringement if it: accommodates copyright protection devices terminates repeat offenders

No need to monitor to catch infringement The motive for 512 is similar to the motive

for CDA 230. 512 responds to the fact that it is virtually impossible for a busy ISP to monitor for copyright infringement


Playboy v. Frena (1993) Frena ran a BBS. Users uploaded 170

Playboy pictures Held, even though Frena had nothing to do

with it, intent to infringe is not part of the copyright statute. Thus, an innocent infringer is still liable for infringement.


Craigslist (2008) Craigslist is sued in Chicago for posting ads

that include: “NO MINORITIES,” “Requirements: Clean Godly Christian Male,” “Only Muslims apply,” Non-women of color NEED NOT APPLY,” etc.

Held: Craigslist is only an intermediary and is protected under CDA 230

But what about the Civil Rights Act?


Barnes v. Yahoo! (9th Cir.2009) Barnes’ former boyfriend posts nude pictures of her on

Yahoo! Barnes contacts Yahoo! demanding they take down the

offending content. Yahoo! agrees, but takes no action. Held: To the extent that the actions of Yahoo! are akin

to speaker/publisher liability, CDA 230 will protect that; It may not protect a claim premised on a contract, including a contract to remove offending material. Removing (or failing to remove) offending content is what publishers do.


Keys to Safe Harbor Protection Reasonable Policy implemented that will result in

termination of ISP services ISP cannot have interfered with copyright protection Transitory communications exception Information location tools exception – no linking

liability Information placed at the direction of others; but

only if: a) no actual or constructive knowledge of infringement; b) disables access upon learning of infringement; c) does not receive financial benefit directly related to the activity


Terms & Conditions/Forum Selection Forum Selection Clause Enforceable.

Graham Technology Solutions, Inc. v. Thinking Pictures, Inc. (N.D. Cal. 1997) 949 F.Supp. 1427.

Forum Selection Clause Unenforceable. Comb v. Paypal (2002) Clause requiring arbitration in Santa Clara for small dollar purchases unconscionable.


Concluding Remarks Many Rules Seem Unsettled Concerns with User-submitted/User-generated

content Online Content Never Goes Away Use Terms & Conditions Provisions to Limit

Liability Purchase Insurance


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DIGITAL MEDIA LAW Legal Issues And Online Publications