Victims Of Car Crash Sue Apple For Not Preventing Distracted Driver From Hitting Their Vehicle

from the asking-the-court-to-help-pass-the-buck dept

A lawsuit has been filed against Apple, alleging that it did nothing to prevent the driver of a car from doing something a driver of a car shouldn't have been doing.

On Christmas Eve 2014, a driver distracted by using FaceTime on his iPhone crashed into another vehicle on I-35 in Texas, killing the 5-year-old girl in the back seat. The child’s parents and her older sister — all also injured in the collision — are now suing Apple, alleging that the company was negligent in not deploying safeguards that would restrict the use of FaceTime while driving.

The filing [PDF] is long, suggesting there's not much to this legal argument that seeks to shift all the responsibility for the accident to Apple. Pages and pages of quoted articles and studies make it clear distracted driving can cause accidents and that people of certain ages are possibly more prone to suffer from "addiction to smartphones." It's all pretty much padding for the central argument, which is that Apple possesses a driving-related patent that it hasn't put to use yet.

Defendant APPLE, INC. has had the technology to prevent these events, and the Modisette's injuries specifically, since at least December 12, 2008, when it filed an application with the U.S Patent Office for a "driver handheld computing device lock-out." Defendant APPLE, 2008 patent application reveals that Apple expressly knew and/or should have known of the risks to human life and safety associated with, and created by, the intended or reasonably foreseeable use and misuse of certain functions available on the iPhone, such as texting, while operating a motor vehicle.

Apple may have recognized the danger, but it's under no legal obligation to protect phone users from their own actions or the actions of others. Patent applications are filed all the time by companies like Apple, but only a small percentage of those ever make their way to market. Apple may institute some sort of driver lockout feature in the future, but not having done so at this point is not a failure on Apple's part. In fact, the patent in question wasn't granted until 2014, so it's not as though Apple's been sitting on it for nearly a decade.

But yet the family's lawyer persists with this argument, which is as flawed as any that seeks to eradicate personal responsibility.

The APPLE, INC. iPhone 6 Plus that was a substantial factor in causing or contributing to cause this accident was defective because, at the time of the collision in question, no universal solution or "built-in" method of disabling the sending or receiving of text messages, emails, video calling services, or other notifications while driving had been implemented by APPLE, INC. for the iPhone. Despite both the technology since 2008 and a patent on that technology so it could exploit its patent without competition for 20 years, Defendant APPLE, INC. has consistently and continuously failed to implement a safer, alternative design that would lock-out and prevent use of "FaceTime" while driving…

Following this logic, the family could sue the manufacturer of the vehicle that hit theirs, claiming it didn't do enough to prevent drivers from operating the vehicle unsafely. After all, it was the high-speed vehicle that caused the damage and death, not the iPhone possessed by the driver.

A patent granted in 2012 details an in-car dock for cell phones that won't allow the vehicle to turn on until the device is docked and in hands-free mode. If the phone is removed past the point of ignition, the vehicle's hazard lights turn on (and the removal is recorded to the vehicle's internal memory) until the phone is replaced. This won't stop distracted driving, and the responsibility still lies with the driver (via the black box recording of the phone's removal from the dock). But it does show vehicle manufacturers could do more to prevent distracted driving -- not that this makes that argument any more credible.

Apple has dealt with this sort of lawsuit before -- one that points to the same unused distracted driving patent. Apple's response to that filing pointed to the sort of lawsuits that would result if the court accepted the plaintff's blame-shifting argument:

Lawsuits against: fast food or any number of drive-thru restaurants for accidents caused when a driver gets distracted with eating while driving; hot beverage providers, or any business offering warm drinks to go, for accidents caused when a driver gets distracted with spillage or drinking while driving; cosmetic manufacturers for accidents caused when a driver gets distracted when applying makeup while driving; and similar liability may apply to providers of maps, books, car stereos — virtually any object in a car that is capable of causing distraction.

As for the legal theory that operating a cell phone while driving is inherently dangerous (and that manufacturers should bear the burden for distracted driving accidents), Apple quoted from an earlier dismissed lawsuit filed against another cell phone manufacturer.

The purchase and use of a cellular phone or cellular service are not inherently dangerous acts, nor is it foreseeable that the sale and subsequent use of such a phone would cause an accident. Even if using a cell phone while driving is foreseeable, it is not necessarily foreseeable that it will cause a collision or unreasonably endanger a particular class of persons . . . [i]t is not reasonable to anticipate injury every time a person uses a cellular phone while driving.

Expect both of these arguments to be copy-pasted into Apple's upcoming motion to dismiss.

Much like the lawsuits seeking to hold social media platforms responsible for acts of terrorism, the lawsuit against Apple makes ridiculous logic leaps in its attempt to find someone other than the perpetrator culpable for the tragedy underlying the case. This lawsuit won't -- or at least shouldn't -- make its way past a motion to dismiss. While the circumstances prompting the lawsuit are unimaginably horrific, the simple fact is that Apple is in no way responsible for a driver's decision to fire up FaceTime while traveling 65 miles per hour in traffic.

Filed Under: car crash, distracted driving, facetime, liability
Companies: apple

Ridiculous German Court Ruling Means Linking Online Is Now A Liability

from the never-link dept

Earlier this year, we wrote about a crazy decision in the EU Court of Justice, that determined mere links could be direct infringement on commercial websites (with "commercial" being not well defined). Now as various courts in the EU try to put this ruling into practice, they're already making a mess of it. In particular, a German case has set an impossible standard for a site, finding a site to have infringed on the copyrights of a photographer for merely linking to a photograph. And the backstory here is even crazier.

The image in question was originally uploaded to Wikimedia Commons by the photographer and put under a Creative Commons license (unfortunately, no one seems to name which CC license). And then this happened:

This picture was then modified by an unknown third person, who added UFOs to the picture that appear to be flying above the building. This new picture was uploaded by the third person on his website.

The defendant operates a website where he publishes and sells educational material that he creates. In the imprint of this website, the defendant posted a sentence that included the word “UFO”, which linked to the modified “UFO-Version” of the claimant’s picture. Clicking on the word “UFO” a new browser window in which the “UFO-Version” of the picture was shown would be opened.

The photographer deemed that this constituted an infringing use of his work and brought the defendant to court.

Now, let's just review this because we're already stretching all sorts of concepts to the point of breaking. The photographer uploaded an image under a CC license to Wikimedia Commons. Someone else modified it. Someone else -- operating a site that sells educational materials -- merely linked to the modified image from the word "UFO" -- and that's who gets sued.

This seems like a classic "Steve Dallas Lawsuit" in which the target is a corporate entity because "that's where the money is" even if it makes no sense at all for the liability to be applied there.

And here's the really nutty part: the German court agreed because of that insane CJEU ruling that says a "commercial site" should be assumed to know the copyright status of everything they link to. So merely linking to this silly modified photograph, the site itself becomes liable for direct infringement. That's insane. Yes, (depending on the CC license in question), it's entirely possible that the modified version was infringing, but that's no reason to make a site that merely links to that image liable for direct infringement over it.

At this point, if you run a "commercial" website in Europe that links off site to anything, you have a tremendous liability hanging over your head due to the insanities of copyright law.

Filed Under: cjeu, commercial use, eu, germany, knowledge, liability, linking

Court Not Impressed By Airbnb's Argument Against The City Of San Francisco

from the well,-that's-a-problem dept

Earlier this year, we noted that a bunch of cities were looking to make Airbnb liable for residents in those cities using the platform without following certain city rules. As we noted at the time, this seemed to pretty clearly violate Section 230 of the CDA, which says that platforms cannot be liable for the actions of their users. San Francisco went ahead with such a law anyway, even though it tried to rework it at the last minute to deal with Airbnb's points on why it was illegal. The case ended up in court either way -- and unfortunately, the initial ruling has sided with San Francisco over Airbnb.

Now, I know that for a variety of reasons, there are people who just flat out hate Airbnb and think that it's somehow bad or problematic for cities or rental prices or whatever. I don't think the data supports this, but either way, you should be concerned about the results here. This isn't about whether or not Airbnb is "good" or "bad" for cities. It's about a fundamental principle on which the internet operates -- which has allowed the internet to grow and to thrive, and which has protected free speech on the internet, by not making platforms magically liable for what users say or do. But the court here basically doesn't care about all of that.

The judge tries to carefully parse things out to argue that under this law, Airbnb isn't liable for its users' actions, but its own:

As the text and plain meaning of the Ordinance demonstrate, it in no way treats plaintiffs as the publishers or speakers of the rental listings provided by hosts. It does not regulate what can or cannot be said or posted in the listings. It creates no obligation on plaintiffs’ part to monitor, edit, withdraw or block the content supplied by hosts. To the contrary, as San Francisco has emphasized in its briefs and at oral argument, plaintiffs are perfectly free to publish any listing they get from a host and to collect fees for doing so -- whether the unit is lawfully registered or not -- without threat of prosecution or penalty under the Ordinance.... The Ordinance holds plaintiffs liable only for their own conduct, namely for providing, and collecting a fee for, Booking Services in connection with an unregistered unit.

But that misunderstands both the nature of the platform and the nature of Section 230. First of all, the law absolutely creates an obligation on Airbnb to monitor, withdraw or block the content supplied by hosts -- because if they do not, then they will face significant liability. The idea that it's only targeting Airbnb's "conduct" of booking an unregistered unit is simply incorrect. The platform allows anyone to put up any unit. Not Airbnb. Not only does this new regulation falsely attribute to Airbnb the actions of its users, this judge does too. That's a problem.

We've written a lot about Section 230 over the years, and unfortunately in the last few months a bunch of cases have chipped away at these important protections. In each case, the courts seem to think that the situation in front of them is somehow unique and Section 230 shouldn't apply. Considering how important Section 230 has been to the internet as a whole and the protection of free speech, we should be very, very concerned about so many of these cases picking apart the law and adding serious liability. It won't end well. Hopefully Airbnb appeals this... and the 9th Circuit doesn't muck it up.

Filed Under: cda 230, intermediary liability, liability, san francisco, section 230
Companies: airbnb

Another Bad EU Ruling: WiFi Providers Can Be Forced To Require Passwords If Copyright Holders Demand It

from the really-now? dept

For quite some time now, we've been following an odd case through the German and then EU court system, concerning whether or not the operator of an open WiFi system should be liable for copyright infringement that occurs over that access point. Back in 2010, a German court first said that if you don't secure your WiFi, you can get fined. This was very problematic -- especially for those of us who believe in open WiFi. The EU Court of Justice agreed to hear the case and the Advocate General recommended a good ruling: that WiFi operators are not liable and also that they shouldn't be forced to password protect their access points.

The ruling, unfortunately, says that WiFi operators can be compelled to password protect their networks. It's not all bad, in that the headline story is that WiFi operators, on their own, are not liable for actions done on the network, but that's completely undermined by the requirement to password protect it if a copyright holder asks them to.

In today’s judgment, the Court holds, first of all, that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under the directive.

Next, the Court confirms that, where the above three conditions are satisfied, a service provider such as Mr Mc Fadden, who providers access to a communication network, may not be held liable. Consequently, the copyright holder is not entitled to claim compensation on the ground that the network was used by third parties to infringe its rights. Since such a claim cannot be successful, the copyright holder is also precluded from claiming the reimbursement of the costs of giving formal notice or court costs incurred in relation to that claim.

However, the directive does not preclude the copyright holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers.

Lastly, the Court holds that an injunction ordering the internet connection to be secured by means of a password is capable of ensuring a balance between, on the one hand, the intellectual property rights of rightholders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users. The Court notes, in particular, that such a measure is capable of deterring network users from infringing intellectual property rights.

The details here are especially troubling. As legal experts are noting, this ruling basically says that the times when an injunction can be ordered for password protection, the reason is for the sake of identifying users:

In McFadden the CJEU appears to have decided that password protection would be effective only if the user is required to provide identity details to the service provider so that the user cannot act anonymously.

Now that should raise some very serious concerns about anonymity and privacy -- things that we thought the EU supported. Instead, the CJEU basically seems to be saying you have a right to anonymity in connecting to the internet up until the point a major copyright holder doesn't like it any more, and they can now force WiFi operators to lock up their WiFi and/or demand identification to use it. Yikes.

This also punches a HUGE hole in the previous day's announcement by the EU Commission that there would be open WiFi across Europe. Under this new CJEU ruling, that may no longer be possible. It's fairly incredible how, between the European Court of Justice and the EU Commission, they seem so oddly confused about copyright and related issues that they seem to be messing absolutely everything up in just a few short weeks.

Filed Under: cjeu, copyright, eu court of justice, injunctions, liability, mcfadden, open wifi, passwords, wifi

Deadspin Mocks New Owner Univision By Cleverly Reposting Deleted Mitch Williams Story As New Story About The Lawsuit

from the funny-how-that-works dept

Right, so remember how over the weekend the spineless execs at Univision decided to delete six articles from various Gawker properties? The reasoning made very little sense. The company claimed that since it had only agreed to acquire the assets of Gawker, but none of the liabilities, it felt that it needed to delete the six articles that were part of existing lawsuits (they also changed an image in one that was the subject of a copyright dispute). As we (and basically everyone else) pointed out, this was ridiculous on multiple levels. First, due to the single publication rule, any liability likely would be only for that initial publication. But, more importantly, the lawsuits in question were all pretty obviously bogus.

Univision has been trying to go into damage control mode, including a long interview with JK Trotter at Gizmodo, answering a bunch of questions from angry Gawker reporters. Univision continues to stand by the line that this was solely and 100% about the terms of the transaction, in which they were not acquiring any liabilities, no matter how ridiculous those liabilities might be. They insisted there was no editorial analysis or First Amendment analysis -- it was just about the liabilities. Gawker's reporters are still not happy and have apparently discussed the possibility of a walkout. They've also directly posted their unhappiness about the decision.

But Timothy Burke at Deadspin (one of the former Gawker properties) took things one step further. Somewhat brilliantly, he's written a brand new article about the latest happenings in a lawsuit involving former Major League Baseball pitcher Mitch Williams. If you don't know, two of the articles that were taken down were about Williams, and he had sued Gawker over them. Of course, the court had already tossed out the claims against Gawker, since the statements made in the earlier Deadspin articles were all either substantially true or protected opinion. But the overall case continues. Williams is suing MLB Network, which fired him after Deadspin's original posts. So, in this new article about the lawsuit against MLB Network, Burke uses the opportunity to effectively repost every bit of content that was taken down by Univision management. And this is why it's clever: he's not just reposting it, but reposting it from the lawsuit. For example:

According to the lawsuit, Deadspin posted a follow-up article five days later titled “Witnesses: Mitch Williams Called Child ‘A Pussy,’ Ordered Beanball.” Here is that article as presented in Williams’s complaint (a transcribed version appears beneath it for readability):

You can go to that article to see the images and the transcription, if you'd like.

Now, normally being too clever on something like this could backfire. Courts, especially, dislike people trying to game the system in this manner. But here, this is a pretty savvy move. After all, the statements in the article have already been declared protected speech and not defamatory. And Univision insists that it would actually defend reporters on any new stories. So, if there was a lawsuit over this new article (which seems unlikely anyway) it would be an opportunity to test Univision management on whether or not they'd really stand up for these kinds of stories.

Now, let's see if the other Gawker properties who had those other stories taken down figure out ways to do something similar...

Filed Under: deadspin, defamation, journalism, liability, mitch williams, single publication
Companies: gawker, univision

As Expected Judge Upholds His Own Problematic Ruling Concerning Cox's Repeat Infringer Policy & The DMCA

from the moving-on-up-to-the-appeals-court dept

For nearly two years now, we've been following an important DMCA-related case between music publisher BMG and the ISP Cox Communications. While the issues are a bit down in the weeds, what it really comes down to is a question of whether or not internet access providers are required to have a "repeat infringer" policy that removes customers who are seen to have been engaged in too much copyright infringement. Most people had assumed that the DMCA's requirements for a repeat infringer policy only applied to hosting providers -- i.e., those who help people host content -- as opposed to transit providers, who are merely providing the connectivity. In this case, though, that important nuance seemed to have gotten lost in the shuffle, mainly because of some stupid behavior on the part of Cox. Amazingly, Cox is basically the only major ISP out there that has a history of actually kicking people off its service for infringement. Most others have historically refused to do so. But Cox's policy is ridiculously complex, and involves something around 13 steps... and, on top of that, Cox admitted that once it's kicked people off they can just sign up for new service. Seeing all that, the court basically decided that Cox was acting in bad faith, and thus jumped right over the question of whether or not the repeat infringer policy even applied to Cox.

The judge in the case, Judge Liam O'Grady (who is also handling the Kim Dotcom case...) is not exactly known for his love of the internet. Earlier in the case, he had mocked the idea that there was any harm in kicking people off the internet. Responding to an attempt by Public Knowledge and the EFF to file an amicus brief, the judge mocked both organizations and the proposed brief itself:

It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it's completely hysterical.

Up against that, it's no surprise that Cox found itself on the losing side. We explained why this ruling was so problematic and it goes way beyond the $25 million Cox was told to pay BMG.

As part of the process of moving on to appeal, Cox asked Judge O'Grady to reconsider his original ruling as a matter of law, and he's now rejected that plea with a fairly long and detailed opinion. Cox raised three specific concerns about the original ruling, saying that BMG failed to show actual direct infringement, that it failed to provide evidence of Cox's liability and that it also failed to show evidence of willfulness. O'Grady is not impressed.

On the question of direct infringement, Cox pointed out all of the problems with Rightscorp's system (which is what BMG was using) in identifying infringement -- and also argued that Rightscorp's own downloads aren't evidence of infringement. BMG responded that they tested Rightscorp's system and it seemed accurate to them. O'Grady says that Rightscorp's downloads are perfectly good evidence and doesn't go much deeper than that.

On the question of Cox's liability is where things really go off the rails. Cox points to the famous (and important) ruling in the Sony Betamax case that said that VCR devices are legal thanks to "substantial non-infringing uses." BMG then tried to use the Grokster ruling on inducement to undermine what the Supreme Court said in Sony. Here, O'Grady decides that the Sony ruling was a narrow one. That's a problem. O'Grady says that because Cox has an ongoing relationship with potential infringers, rather than ending that relationship at the point of sale, the Sony standard doesn't apply.

Such a claim is possible here because, unlike in Sony, Cox maintains an ongoing relationship with users of its service. Sony's last point of contact with users of the VTR was at the point of sale.... An ongoing relationship between a defendant and direct infringers presents a potential for culpability quite beyond distribution or design....

The judge also rejects the "in the alternative" argument presented by Cox that even if Sony doesn't apply, under Grokster the only way to apply liability is if Cox was found to have induced infringement (remember, the Supreme Court in the Grokster case made up -- out of thin air -- an "inducement" standard to explain why Grokster's file sharing system wasn't protected by the Sony ruling). Here, however, O'Grady takes the Grokster ruling to mean not just that there's an inducement standard, but rather as open season to come up with reasons why the Sony standard doesn't apply. Yikes.

Cox also argues that if Sony does not provide immunity, the Grokster Court made clear that BMG's only path to liability was through an inducement claim. The Court again disagrees. It bears noting that adopting Cox's reading of Sony and Grokster would greatly simplify this area of law. Sony would be a complete bar to contributory infringement whenever a defendant's product or service is capable of commercially significant noninfringing uses, and that safe harbor would be removed for only a distinct subset--those that actively induce infringement.

Well... yeah. That's what the courts have said. What's so terrible about that reading of the law? It makes perfect sense. Instead, O'Grady wants the law to be something different -- allowing courts to shut down services with substantial non-infringing uses by pinning liability based on... vague other claims. That's problematic on a number of levels as it almost writes the Sony ruling out of existence. (As an aside, in a footnote, O'Grady notes that if the appeals court disagrees with him on this point, the case is effectively over, as BMG didn't claim that Cox engaged in inducement until after the case was over, which he notes, correctly, "is far too little and far too late."

Finally, on the question of whether or not Cox was "willfully" blind to infringement on its network, O'Grady again takes a very expansive and troubling view of what he believes the law says. While multiple courts have taken the quite reasonable view that "willful" blindness requires actual knowledge of infringing behavior, O'Grady goes with a broader definition, and takes jokey emails from Cox's abuse team as "proof" that it knew of infringement, and then combined that with the fact that Rightscorp bombarded Cox with notices (whose sole purpose was not to stop the infringement, but rather in hopes that Cox would pass them on to subscribers to get those subscribers to cough up money). But Judge O'Grady takes Cox's decision to treat Rightscorp notices more like spam as a sign of willful blindness:

There was a significant amount of evidence of Cox's general knowledge of infringement on its network. Cox received notices from other copyright holders complaining of infringement. Cox knew from its traffic analysis that subscribers were using BitTorrent.... There was evidence from industry reports that the overwhelming majority of traffic on BitTorrent was infringing, and emails among members of the Abuse Group indicated Cox's knowledge of that fact.... ("Bittorrent is used for one thing only... and I would know. ;-)")... ("99% of DMCA violations is from people using P2P on purpose and not Trojan activity.")

While generalized knowledge of infringement occurring on its network is not sufficient standing alone, it did provide the backdrop for Cox's decision to continuously ignore and take no action in response to the 1.8 million notices, weekly letters, and dashboard from Rightscorp. There was also evidence that Cox had configured its graduated response system in such a way as to reduce both the total number of notices that entered the system and the amount of customer-facing action that may be required. Moreover, internal Cox communications, which were admitted over Cox's objections, signaled that Cox's decision not to process Rightscorp's notices may have been due to more than just the presence of the settlement language and instead reflected a general disdain for any enforcement responsibilities.

Again, O'Grady reads this in the worst possible light. But an ISP should have disdain for copyright holders trying to lump all the liability on them. The whole idea that everyone thinks ISPs should be Hollywood's private police force is silly, and it's why the safe harbors of the DMCA are designed to keep most of the liability off of the ISPs.

Not surprisingly, O'Grady also rejects all of Cox's complaints about the jury instructions and the exclusion of certain evidence. This included O'Grady's decision to block evidence of Righscorp's seriously scammy behavior -- such as its phone script telling people who said they hadn't infringed that they needed to hand their computers over to the local police to search the hard drives. O'Grady says he was right to exclude that evidence because it might unfairly prejudice or confuse the jury.

Basically the only thing that goes Cox's way is O'Grady's decision to deny BMG's request for a permanent injunction

At the outset, the Court notes that BMG's brief in support of an injunction relied heavily on a statement of fact that was not true. Specifically, BMG alleged that, following the jury verdict, Cox had continued to ignore Rightscorp's detection of "massive infringement" on its network....

... In fact, Cox provided notice to BMG shortly after trial that Righscorp was no longer blacklisted.

The court goes on to note that BMG's request for an injunction is overly broad and extreme, and would basically allow Rightscorp to kick people off of Cox's service with little oversight. Hilariously, BMG also demands that Cox "hand over the identity, email address, mailing address, and telephone number of every subscriber that BMG identifies...." Which is basically "please let us let Rightscorp play its shakedown game." Thankfully, the court rejects that too and laughs off BMG's claim that this is necessary for "transparency."

Quite obviously, if that were the reason, there would be numerous ways to anonymize subscribers and still track Cox's actions. There certainly would never be a need for an email address, mailing address, and telephone numbers. When asked, counsel conceded that the infromation would be given to Rightscorp...

Anyway, all of this is just prelude anyway. It seems highly likely that Cox will appeal this decision (though, it's also possible that it will come to some sort of settlement agreement with BMG). It's the appeal where all of this will become especially interesting.

Filed Under: copyright trolling, dmca, intermediary liability, isps, liability, liam o'grady, willful blindness
Companies: bmg, cox, rightscorp

Appeals Court Rejects Revenge Pornster's Appeal; Another Bad Section 230 Ruling

from the what's-up,-california? dept

We've noted in the last month or so a series of court rulings in California all seem to be chipping away at Section 230. And now we've got another one. As we noted last month, revenge porn extortion creep Kevin Bollaert had appealed his 18-year sentence and that appeal raised some key issues about Section 230. As we noted, it seemed clear that the State of California was misrepresenting a bunch of things in dangerous ways.

Unfortunately, the appeals court has now sided with the state, and that means we've got more chipping away at Section 230. No one disagrees that Bollaert was a creep. He was getting naked pictures of people posted to his site, along with the person's info, and then had set up a separate site (which pretended to be independent) where people could pay to take those pages down. But there are questions about whether or not Bollaert could be held liable for actions of his users in posting content. Section 230 of the Communications Decency Act (CDA 230) is pretty damn clear that he should not be held liable -- but the court has twisted itself in a knot to find otherwise, basically arguing that Bollaert is, in part, responsible for the creation of the content. This is going to set a bad precedent for internet platforms in California and elsewhere.

The court, not surprisingly, relies heavily on the infamous Roommates.com ruling that also said that site didn't qualify for Section 230 immunity, because it asked "illegal" questions (about housing preferences), and since the site itself had asked those questions, it was liable for creating that "illegal" content. That's different than what happened with Bollaert's UGotPosted site, but the court works hard to insist the two are close enough:

Here, the evidence shows that like the Web site in Roommates, Bollaert created UGotPosted.com so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims' personal identifying information and violated their privacy rights. As in Roommates, but unlike Carafano or Zeran, Bollaert's Web site was "designed to solicit" (Roommates, supra, 521 F.3d at p. 1170, italics added) content that was unlawful, demonstrating that Bollaert's actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity.

I can predict that this paragraph is likely to show up in a bunch of other cases. People are going to insist that lots of other platforms that include any form of structure will now be liable if any of the content based on that structure violates the law. That, again, goes directly against the clearly stated purpose of CDA 230. And it's likely to create something of a mess for internet platforms that regularly rely on 230.

The really crazy thing here is that earlier in the ruling, the court noted that it didn't even need to answer the Section 230 question because they already had enough info to support charges of action "with the intent to defraud." But then it answered the CDA 230 issue anyway, and did so badly. No one's going to feel sorry for Bollaert, who is a complete creep. But the wider precedent of this ruling is going to be dangerous and will likely show up in lots and lots of lawsuits against internet platforms going forward.

Filed Under: california, cda 230, kevin bollaert, liability, platforms, revenge porn, section 230
Companies: ugotposted, yougotposted

RIAA: How Dare The Internet Use The DMCA That We Wrote To Build Useful Services!

from the calm-down,-sparky dept

As we've mentioned, today is the day that comments are due to the Copyright Office on the effectiveness (or not) of Section 512 of the DMCA, better known as the "notice and takedown" safe harbor provisions. We'll be posting the details of our own filing at some point (possibly not until Monday as we're still finalizing a few things), but some of the other filings are starting to filter out, including a fairly astounding 97-page document from a bunch of legacy music industry organizations (about half of which is the actual filing, with the rest being appendices), including the RIAA, ASCAP, AFM, NMPA, SoundExchange and more. It's basically every organization that represents the way the industry used to work -- and the document reads like an angry polemic against the internet. It would have been much shorter, if they just wrote "our business used to be much better when we had more control and less competition -- and we never bothered to adapt, so fuck Google and all those internet companies -- and let's change the DMCA to punish them and magically bring back the good old days."

Also, the filing seems to leave out the fairly important point that it was these groups that basically wrote the DMCA that they're now whining about. Actually, let's get even more specific. The comment here was co-written by lawyer Steve Metalitz -- who has a way of showing up whenever some legacy industry is pushing to make copyright laws much, much worse. Metalitz's own bio emphasizes the fact that, as a lobbyist, he was "instrumental in the drafting" of the DMCA: So it seems rather... rich, for the legacy music industry to hire Metalitz, who proudly states that he was "instrumental in the drafting" of the DMCA while lobbying on behalf of these same groups, to now write a jeremiad about how totally awful the DMCA is for these same groups. But that's what's happened. The document literally mentions Google or YouTube more than once per page. But it starts right in with the industry's concerns, which might be summarized as "why hasn't Google stopped the evil piracy!?!?"

The Music Community’s list of frustrations with the DMCA is long. A broken “notice-and-takedown” system. Toothless repeat infringer policies. Active services mischaracterized as passive intermediaries. Incentives for services to embrace willful blindness instead of preventing known and widespread infringement. The words “representative list” read out of the statute.

Basically, Metalitz uses the document as a chance to list off how he's sad that the courts have basically ruled against copyright holders trying to chip away at the safe harbors at pretty much every turn:

Courts have also given little meaning to key provisions for content owners in the DMCA bargain. Examples include “red flag” knowledge, repeat infringer policies and representative lists. The result: safe harbor status for services that choose to stick their heads in the sand rather than do their fair share, forcing content owners to divert valuable resources from away creating content to sending minimally effective take down notices, or for content owners with limited resources, to actually refrain from sending takedown notices at all. Content owners, especially those with limited resources, simply cannot take on the entire digital universe alone.

At its worst, the DMCA safe harbors have become a business plan for profiting off of stolen content; at best, the system is a de facto government subsidy enriching some digital services at the expense of creators. This almost 20 year-old, 20th Century law should be updated.

Astoundingly, this comment claims that the results in the YouTube and Veoh lawsuits prove how broken the DMCA is and how much it favors internet companies. Remember, Veoh was a YouTube competitor that won its lawsuit that had been filed by Universal Music... but went out of business due to the legal costs of defending itself under the DMCA. And Metalitz and the RIAA are bitching about the fact that Veoh won... as if that was the travesty in the case, rather than the fact that the recording industry was able to shut down a perfectly legal web service that many people found useful.

The comment goes on to whine that even as more music is available to the public these days, revenue is down for some of those who signed on to the comment (the comment is careful not to mention that ASCAP, BMI, SESAC and SoundExchange revenue keeps going up... but... those inconvenient details must be ignored). What the filing also ignores, of course, is that these very same players fought tooth and nail against any of the innovative services that helped make this revolution in music accessibility possible. They basically now want to tax all the innovative companies who experimented and found the models that work and make consumers better off, while they themselves did none of that and actively sought to block nearly every new innovation. Talk about entitlement.

The comment also ignores the basic fact that if so much more music is being consumed today, that seems to suggest that the law must be working in some manner, seeing as the purpose of copyright law is to incentivize the creation of new works so that the public can benefit. By their own words, that seems to be happening.

Despite music being more popular than ever today, U.S. music industry revenues have been virtually flat since 2010 and are down nearly 50% since the DMCA was enacted in 1998. This has led to what we call the “value grab”, creating market distortions that lead to bizarre statistics like vinyl records generating more revenue for the industry in 2015 than the billions of on-demand ad-supported music streams on YouTube and similar services.

Except, of course, that comparison between vinyl and YouTube is total bullshit. As we were just discussing a week ago, the industry is comparing apples and oranges, using the gross "retail value" on vinyl (ignoring discounts and all the money that goes to everyone in the distribution chain) and only counting the net "wholesale value" on free streams (and ignoring the upsell opportunities or other revenue that comes from ad-supported streams).

The summary so far: we wrote the DMCA, but now we're going to whine about it. The public is benefiting like never before from new music -- so we're going to ignore that the purpose of copyright law appears to be met. We're not making as much money as we used to (ignoring that some of us are making much more than we used to)... but we see big internet companies making lots of money, so we're going to ignore that it's probably because they innovated and built services the public wanted while we sued our own biggest fans.

Compelling!

And, of course, the comment pushes for a "notice and staydown" regime:

Copyright owners should not be required to engage in the endless game of sending repeat takedown notices to protect their works, simply because another or the same infringement of the initially noticed work appears at a marginally different URL than the first time. The current standard of “URL by URL” takedown does not make sense in a world where there is an infinite supply of URLs. As described in the response to Question 15, technologies exist to identify content that is reposted on a digital service after it is removed, services of all sizes have implemented them, and they should be deployed as a standard industry practice.

Again, this ignores the basic fact that copyright is context dependent. And you can't put a total block on content, because you don't actually know if the content is actually infringing each time. Hell, remember in the Viacom case against YouTube (which the comment whines about), Viacom had to admit that the evil pirate uploaders to a bunch of the videos... were actually Viacom employees trying to market Viacom content. This is why we don't do full on content blocks, because just because the content is up, doesn't mean that it's infringing.

Even more ridiculous, while at one point noting that almost no one files counternotices, so that means that DMCA takedowns are almost all legit (despite a recent study debunking this point), it later whines that there are too many false counternotices:

In our experience, the counter-notification process results in too many false-positive counter-notices. For example, IFPI received counter-notices on 653 infringements, based on a sample of 98,753 infringements noticed to YouTube. After reviewing these counter-notices, it appeared that over 80% of the counter-notices had no good faith basis for claiming “mistake or misidentification,” the only valid statutory grounds for a counter-notification. Yet, based on this sample, the association representing the rights holders would be required to institute over 500 lawsuits in order to enforce their rights. This is an unmanageable burden. These statistics further demonstrate that the deck is unfairly stacked against rights holders.

Filing 500 lawsuits would be an "unmanageable burden?" Funny, the RIAA was able to go after at least 30,000 individuals. And, really, this paragraph acts as if filing a lawsuit is the only possible remedy in such a situation. It's not.

Also, trying to make sure that they're as evil and against the public and fans as much as possible, the comment actually decides to whine about the ruling in the dancing baby case, saying that it's some horrible burden to have to consider fair use before sending a takedown, even though they just need a subjective good faith belief, rather than an objective one:

We take this opportunity to highlight one case in particular, Lenz v. Universal Music Corp. In that case, contrary to Congressional intent and the weight of authority concerning who has the burden of claiming and proving fair use, the court held that a copyright holder must subjectively consider fair use before submitting a DMCA notice. This unique decision, and the fanfare that has followed it, is quite remarkable considering that other courts have expressly rejected that view, and that the Supreme Court has routinely held that the burden of proof for a fair use defense rests on the accused infringer.

They also whine that the newly amended version of that ruling took out the random dicta that an automated takedown system could meet the standard.

Believe it or not, that's just a sampling of all the ridiculousness in the comment. It's simply not a reality-based document. One hopes that the Copyright Office might actually recognize that, though that seems unlikely.

Filed Under: copyright, dmca, dmca 512, liability, notice and staydown, notice and takedown, safe harbors, steve metalitz
Companies: ascap, nmpa, riaa, soundexchange

Facebook Not Legally Liable For 'JerkingMan' Video Posted By One Of Its Users

from the when-I-think-about-you-I-represent-myself dept

Franco Caraccioli, who sued Facebook rather than the party who uploaded a video of him pleasuring himself (under the username "Franco CaraccioliJerkingman"), has lost his lawsuit. This is due to his decision to pursue a party protected under Section 230, rather than the uploader, against whom he might have been able to pursue actual criminal charges.

Caraccioli's original complaint argued that Facebook's refusal to delete the account amounted to defamation (among other things). It wasn't the craziest of pro se filings, but given the subject matter, Caraccioli might have been better served with another reread or two before submitting it. It accused Facebook of "thrusting" Caraccioli's video into the public eye -- including the eyes of children -- and noted that the "sensitivity" of the content was due to the reasonable expectations of any person who "holds their genitalia as a private part."

Eric Goldman, writing for the new Forbes "ad-light" experience (which you too can "enjoy" for 30 days if you just shut off your ad blocker/script blocker!), has more details and analysis.

The applicable federal law, 47 USC 230 (Section 230), has been on the books for over 20 years, and it’s extremely clear: websites aren’t liable for third party content. Caraccioli acknowledged that an unknown third party created the fake Facebook account, so the court easily concluded that Section 230 eliminates Facebook’s liability for it. Caraccioli argued Section 230 didn’t apply because Facebook “reviewed [the fake account] and decided not to remove it,” so this case involved “editorial inaction rather than affirmative editorial action.” Plaintiffs have unsuccessfully tried these arguments many times before, and the arguments didn’t work this time either…

That was just one of Caraccioli's attempts to skirt Section 230. He also (belatedly) argued the posting of the video violated his publicity rights. Not only was this attempt made too far into the process, but Section 230 also protects Facebook, et al. from publicity rights-violating material posted by third parties.

He also tried the "republication" angle, but that, too, was shot down. No matter what cause of action he would have brought, Caraccioli would have had an extremely difficult time getting a court to hold Facebook responsible for a user's postings. (Well, at least no court in the United States…)

As Goldman points out, Caraccioli's chances of success would have greatly increased if he'd chosen to target the actual poster, rather than target the entity easier to locate and serve.

Although we’re sympathetic to how the fake account harmed Caraccioli, he chose the wrong defendant. If Caraccioli could find the perpetrator, he should have much greater success in court. I’m maintaining a roster of over 15 unpublicized non-consensual pornography cases where plaintiffs have won in court (I hope to write up this research later this year), and Caraccioli’s facts are similar to some of these other rulings. Caraccioli just needs to leave Facebook out of it.

Locating and serving a site's user can be incredibly difficult, but going after the service provider pretty much eliminates any chance of success. Going after the actual party behind the post increases the odds of success, even if the initial steps are much harder than tossing a filing fee and a PDF into the nearest federal courtroom.

Filed Under: franco caraccioli, jerkingman, liability, section 230
Companies: facebook