Why Is It So Difficult To Understand The Difference Between A Platform And A User?

from the head-scratcher dept

In the US, thanks to safe harbor rules in the DMCA and the CDA, courts will often toss out misdirected lawsuits that go after a service provider for the actions of a user. To be honest, I've always questioned why we need such safe harbors in the first place, since it should just be basic common sense that a service provider shouldn't be liable for the actions of a user. But, of course, common sense just isn't that common. This can be seen, first, in all the lawsuits that require incantations of the safe harbors to get them tossed out, but even worse, in foreign countries that have no such safe harbor laws. Take for example, a case in India, where Google India is being blamed for content written by bloggers on Blogger. First, Blogger is run by Google, not Google India, so the lawsuit is doubly misdirected -- but, more importantly, Google itself cannot be responsible for what someone writes using its tool. That's like suggesting that Bic is responsible for what you write with its pens. The case involves a guy who was upset about what some bloggers wrote about him -- so of course, he had to sue Google. What's amazing is that the judge seems to have initially bought this as reasonable. It barred Google from hosting any blog that "defamed" this guy. Google has responded by trying to explain the basics of the internet to the judge and how it's impossible for Google to figure out if someone is defaming someone else using its software.

Filed Under: bloggers, india, libel, platform, safe harbors, user
Companies: google

Congress Looks To Extend Safe Harbors To Service Providers Hit By Foreign Rulings

from the good-news! dept

We've often talked about the importance of service provider "safe harbors" found in the CDA and the DMCA. To be honest, these safe harbor laws shouldn't be necessary at all, since it should be common sense that the user of a service is liable for his or her actions rather than the service provider. In practice, however, we've learned that common sense isn't so common -- and it's not unusual for individuals (and sometimes judges and politicians) to blame service providers. Thus, safe harbors are key to bringing common sense to the law. However, we've definitely seen that such common sense is often totally lacking in foreign countries that have no recognition at all concerning the separation between a service provider and a user. Witness, for example, LVMH's victory over eBay in France, or the fact that Google execs are facing criminal charges in Italy over a video of kids attacking a disabled boy that was uploaded to its site (and quickly removed).

It appears that US politicians have finally realized this is a problem. While it doesn't appear to be a blanket safe harbor, it appears that Congress is currently considering a bill that would allow US companies to ignore foreign rulings in defamation cases against service providers, where the issue is actually the action of a user. While limited to just defamation cases (for now), this is important, especially since so many other countries have more draconian defamation laws that lead to "defamation tourism" as people try to find the most favorable countries in which to file a defamation lawsuit. Making it so that the US won't recognize those rulings will help protect US companies from bogus and misguided defamation suits around the world.

Filed Under: defamation, foreign courts, safe harbors

Public Citizen, EFF, CDT And CMLP Team Up To Question Recent Ruling On Section 230 Safe Harbor

from the this-is-important dept

A few weeks back, we wrote about a court ruling that said that Yahoo was protected against actions by users, thanks to Section 230 safeharbors, but that the company had effectively given up some of that protection by promising to remove some content. While the bigger issues in the case seemed to have been decided reasonably, some noticed that many of the finer points in the ruling were both sloppy and troubling. Eric Goldman ran down the details of the problems with the ruling. Now it appears that Yahoo is appealing not the major point of the case, but those specific troubling points made in the ruling, which could severely limit the effectiveness of using Section 230 to protect against frivolous lawsuits.

The issue may certainly sound like inside baseball, but it's important to anyone who runs an online service of any kind. Traditionally, when receiving a mistargeted lawsuit that tries to pin liability on a service provider, rather than the actual user, it's common to file a motion to dismiss based on section 230 safe harbors. However, in this ruling, the court said that you couldn't raise section 230 in a motion to dismiss, and that it could only be used as an "answer" and thus required a more involved (and potentially much more costly) procedure of asking the court for a ruling in the case, rather than just a dismissal. That would significantly raise the cost to many site owners in trying to dismiss these sorts of mistargeted lawsuits. It's nice to see a long list of defenders of the public and the internet sign on to explain to the court why this dicta is incorrect. Public Citizen, EFF, CDT and the Citizen Media Law Project all joined in with an amicus brief. Hopefully the court realizes the earlier sloppy ruling was a mistake, and the ability to dismiss using Section 230 safe harbors remains.

Filed Under: affirmative defense, barnes, safe harbors, section 230
Companies: cdt, cmlp, eff, public citizen, yahoo

Newt Gingrich's Lawyer Displays Ignorance Of Both Twitter And The Law In Sending C&D

from the wow dept

It really was just a few weeks ago that we were told that lawyers knew better than to send a clueless cease-and-desist letter... and then we get this story. Apparently a group that is in favor of a certain law that Newt Gingrich opposes sent out a Twitter message that included the @newtgingrich username to stir up some interest in a petition they were working on. This is part of how you use Twitter to communicate with others and get attention from certain people. But apparently Gingrich's lawyer was upset that Gingrich's name was being "used" in a message in favor of a law Gingrich opposes, and sent a ridiculously bad cease-and-desist letter that the folks at the Citizen Media Law Project dubbed: "How to Make Your Client Look Bad, in Three Easy Steps."

First, the lawyer clearly didn't understand Twitter and how it works since using @newtgingrich is the equivalent of sending a public letter "Dear Newt Gingrich" -- which certainly wouldn't be an abuse of his name. Second, the lawyer not only didn't understand Section 230, but insisted that Tucows, the registrar behind the site that hosted the petition (and also republished the tweet) was somehow responsible for the content of the Twitter message: "continued display of the offending tweet 'can expose any and all involved parties (including Twitter, ContactPrivacy.com and/or TuCows) to substantial ongoing, and even personal liability.'" Of course, that's not even close to true. Then, on top of that, the lawyer basically tried to throw in claims on every law he could think up:

trademark infringement, violation of Gingrich's and Anuzis' publicity rights, false advertising, false designation of origin, tortious interference with prospective economic advantage and contractual relations, common law and computer trespass (could Twitter trespass upon its own computer?), conversion, traditional fraud and wire fraud, breach of contract (i.e., Twitter's terms of service), violation of the Computer Fraud and Abuse Act, and even RICO violations.

All for a Twitter message. Seriously. So, what was that about lawyers knowing better than to send bogus cease-and-desist letters?

Filed Under: cease and desist, newt gingrich, safe harbors, twitter

Perfect 10 Shot Down Again; Will It Finally Realize That Search Engines Aren't Liable For Photos?

from the it's-time-to-give-it-up dept

Porn magazine publisher Perfect 10 has spent tons of money on a long series of fruitless lawsuits against the operators of search engines. The issue is that people with access to Perfect 10 photos had put them online, and (of course) search engines indexed these and included them in their image search features. Perfect 10 insisted that, since these search engines showed thumbnails of the images, the search engines were liable for the infringement. Except that courts keep throwing these cases out. But, that hasn't stopped Perfect 10. However, all it has to show for it is another loss. In its lawsuit against Amazon, for Amazon's A9 search subsidiary, the court has tossed out the lawsuit, pointing out that the DMCA safe harbors clearly protect Amazon, while also highlighting a bunch of pretty basic mistakes that Perfect 10 made in filing the lawsuit (you would think, having filed so many similar lawsuits, that it would get the specifics right). At some point, the company needs to realize that these lawsuits aren't getting it very far.

Filed Under: copyright, dmca, safe harbors, thumbnails
Companies: amazon, perfect 10

Inducement Standard For Section 230 Could Put A Significant Chill On Innovation

from the uh-oh... dept

We've talked in the past about the importance of various "safe harbor" rules that help maintain that liability for any sort of lawbreaking is actually placed on the lawbreaker, rather than any tool provider/middleman used to break the law. In an ideal world, we wouldn't need such safe harbors, because it should be obvious: the person who breaks the law is guilty, while the person who makes tools that are used to break the law is not guilty. That's just common sense... but apparently not common enough. We were already quite troubled by the Supreme Court's surprising and disturbing decision to create a new "inducement" standard that chips away at the DMCA's safe harbors, but no such "inducement" standard has been applied to Section 230's safe harbors, which protects service providers from most non-copyright law-breaking by users.

Until now, that is.

Eric Goldman points out that in a recent ruling in a lawsuit between the New England Patriots and Stubhub, it appears that a court has suddenly come up with an "inducement" standard for section 230 as well, despite most other court rulings (with one major exception) giving pretty broad protections to any service provider. In this case, which we've discussed before, the New England Patriots were furious that season ticket holders might resell some of their tickets on StubHub, and even had a court force StubHub to hand over the names of its users (despite this being a massive privacy violation that also violates StubHub's own terms of service). While an earlier ruling indicated StubHub was protected by the section 230 safe harbors, this latest ruling says it's not, in part because StubHub knows about, helps and profits from ticket scalping on the site.

This is troubling for a variety of reasons. It still involves putting liability on a party who doesn't actually break the law. Furthermore, when using a standard that involves looking at whether or not the company profits from the law breaking, you effectively kill all safe harbors. Any commercial service provider, almost by default, will profit in some way from the law breaking, but that shouldn't make them liable for it. Also, as we've see quite clearly with the inducement standard encroaching on DMCA safe harbors, those on the other side of lawsuits will continue to try to stretch and twist the contours of what counts as "inducement." If this stands, it will create massive potential liabilities for online service providers, and there will be lots of expensive lawsuits. The end result will be a greatly chilled market for innovation.

Filed Under: inducement, safe harbors, section 230
Companies: stubhub

Taser Sues Second Life For Having Virtual Tasers

from the no,-seriously dept

Stun gun maker Taser is notoriously overprotective of its brand, even pushing judges and medical examiners never to list a Taser as a cause of death. However, this latest, as pointed out by Dave Title has the company going "virtual." Taser is suing Second Life because of virtual Tasers found in the game. Specifically, Taser seems upset that these virtual stun guns are being sold next to pornographic material, which (the company claims) will harm its brand. I'd argue that going around suing everyone probably does a lot more harm.

Of course, Second Life parent corp. Linden Lab doesn't actually make or sell these things, but just provides the platform -- so you might think that the company is protected by safe harbors. Except... one of the little loopholes in safe harbor rules is on trademark claims, which mostly aren't covered by either the DMCA's safe harbors or the CDA's. However, it should be covered by common sense (which is not so common, unfortunately).

If the virtual Tasers actually do infringe on Taser's trademark, then it seems that the liable party should be the user who made/sold them in the first place -- not Linden Lab, the platform creator. On top of that, there's the big question of whether or not this is actually trademark infringement at all. You could make an argument that users might believe that virtual Tasers were somehow endorsed by the company itself, but do such products really "harm" the Taser brand? Again, it seems a lot more harm is being done to the brand by silly lawsuits. And, yes, people will point out (they always do!), that the company has an obligation to protect its marks, but there are better ways to do so than suing.

Filed Under: safe harbors, second life, tasers, trademark, virtual tasers
Companies: linden lab, taser

German Composer The Latest To Mistakenly Sue Google Over The Actions Of Others

from the who-knew-assigning-liability-was-so-confusing dept

The one good part of the DMCA are the safe harbors that help people recognize that you should be suing the party that actually did something wrong, rather than the company that made the tools they used. Unfortunately, even with these protections some people still sue the tools/service provider in the middle. Outside the US, it's even more complicated -- without the safe harbor provision, common sense seems to go out the window and you get people suing the service provider for no good reason, except perhaps jealousy. The latest such case involves German composer Frank Peterson, who is suing Google because others uploaded some of his music to YouTube. And, rather than come up with a way to capitalize on it, like so many others, he feels the need to sue. He's claiming millions in "damages" though he wants to force Google to open its books so he can determine the full extent of these imaginary damages. The article also quotes another publisher who makes this odd statement:

Some producers requested to make cover versions of our songs, but refrained to do so after realizing how many videos of the songs already existed for free on YouTube.

Really? It's difficult to believe this is true. The fact that there were videos of a particular song on YouTube would make others not want to cover that song? By what logic?

Filed Under: copyright, frank peterson, germany, infringement, safe harbors
Companies: google, youtube

JuicyCampus Runs Out Of Juice

from the there-go-the-lawsuits dept

If you've been on a college campus in the past couple of years, you're almost certainly aware of the site JuicyCampus -- which was a very open set of forums that encouraged people to gossip about others on campus. As you can imagine, things sometimes got pretty heated, and there were regular discussions in the legal community about the liability that JuicyCampus must face. It was definitely pushing the boundaries of safe harbor provisions concerning the separation of a site and what its users did on the site. However, it looks like we won't get a big test case involving JuicyCampus any time soon, as the site has abruptly shut down, citing the current economic climate. The site's founder claims that the cost of running the servers greatly outweighed any incoming advertising revenue, though plenty of people are guessing that pending lawsuits may have been a much bigger issue in the decision making process. Either way, given the popularity of the site, others will quickly fill the void, and perhaps we'll have new test cases in the near future.

Filed Under: college students, rumors, safe harbors
Companies: juicycampus

Argentinian Celebrities Succeed In Forcing Search Engines To Block Search Results On Their Name

from the internet-stupidity dept

Proving, once again, that common sense isn't so common, News.com is reporting on a series of orders handed down by judges in Argentina that have forced Google and Yahoo to completely block searches on certain Argentinian celebrities. Apparently, some Argentinian models who were upset that their pictures were showing up on some porn sites, sued both Yahoo and Google. For anyone who understands just about anything about how the internet works, it would be easy to recognize that this lawsuit was grossly mistargeted. Yahoo and Google have nothing to do with the content on the various websites they point to, but apparently Argentinian models and judges do not seem to recognize this.

So, the judges issued an injunction, demanding that Google and Yahoo block references to the models. This "win" caused other Argentinian celebrities who were upset with content online about them to seek out the same lawyer, who filed similar lawsuits over and over again. Each time, the court has issued an injunction, forcing Google and Yahoo to block results on those individuals. In some cases, they've tried to block specific results, but in at least one case, Yahoo has blocked all results on a search for Argentinian soccer star Diego Maradona. The blocks only impact the Argentinian sites, but it still seems fairly ridiculous.

Google is appealing the injunctions, saying that this really seems like something of a shakedown. The company is also trying to explain to the Argentinian government why it should put in place safe harbor laws that protect service providers from being liable for the content created by others. Of course, even without such laws in place, common sense should prevail. Apparently, though, common sense remains less common than commonly believed.

Filed Under: argentina, celebrities, liability, safe harbors, search engines
Companies: google, yahoo