Archive for the ‘safe harbor / §230’ Category

20/20 Interview with Nik Richie

Wednesday, September 7th, 2011

Nik Richie on 20/20A student of mine pointed out to me that ABC’s 20/20 news magazine did a piece on Sarah Jones, the Cincinnati Bengal cheerleader and Kentucky high school teacher who was wildly defamed on TheDirty.com and sued. That case is still unresolved. But the 20/20 piece is worth watching for no other reason than to be able to see Nik Richie answering questions.

If you are already happily ignorant of TheDirty.com, you should know that it’s a blog that posts photos of random people – often unknown, average people – and then attributes to them various sexual acts, sexually transmitted diseases, and crimes. It also commonly includes withering exegeses on these persons’ physical traits laced with profane invective.

The following, posted under a snapshot of a smiling college-aged girl, who was hugging a friend, is typical:

Nik, this fat waste of space is _____ ______. We went to high school together. She has always been thick… not in a good way. Her mom is nice but f*cking ugly. You can tell _____ will be just like her mom when she grows up… lol poor _____. She just posted on fb that some girls are so sad… yet she is the sad one to me. She is the BIGGEST SL*T I KNOW. When i say Big I mean physically BIG lol.

(“fb” means “Facebook” and “lol” means “laughing out loud.” The omissions indicated by underscores are mine.)

Nik Richie is the guy who makes all this possible. In the 20/20 interview, you can see that Richie is not only devoid of of conscience, but he is also megalomaniacal. In the interview Richie compares himself to – wait, are you sitting down? – Mark Zuckerberg.

You could sell Starbucks, and it’s the same, it’s the same thing. If it’s so terrible, why am I so demanded? Why am I a blogstar, as I call it? I’m pretty much a rockstar of the internet generation. … Look at Mark Zuckerberg. It’s the new wave of cool, hip, new celebrities. Internet celebrity. I’m in that realm with the Perez Hiltons, the Mark Zuckerbergs. You don’t have to be a computer nerd to be cool.

Whoa. First of all, Perez Hilton built up his following by constructing a personality people found compelling. And Mark Zuckerberg? Mark Zuckerberg not a “computer nerd”? I’ve made fun of Facebook, but let’s face it, Mark Zuckerberg is a serious geek. Zuckerberg has real geek chops – mathmatics, algorithms, coding, stuff like that. I take it, however, from his comments, that Richie doesn’t. That means that the only thing Richie has really brought to the table, that gives him his salient entrepreneurial advantage, is sociopathy.

In other words, Richie’s success in getting visitors to his site comes not from what Richie has – like far-sightedness, business acumen, or facility with technology (which Richie does not appear to have), it’s what Richie lacks – conscience.

To be proud of yourself under such circumstances is bizarre.

Hmmm. This reminds me of someone else who thinks they are an innovator. And I know you know who I’m talking about: Steve Gibson, founder of Righthaven. It’s the same fallacy I tried to explain in a post titled “Righthaven’s Innovation? Stooping Lower“:

Righthaven’s business plan is based around taking advantage of the law to do something the law itself never contemplated. I’ll give them this: Righthaven’s entrepreneurial angle is unique. But there’s nothing clever about it. Righthaven and its associated newspapers are on the cutting edge because they have stooped lower than anyone else in the news business has been willing to go. That’s nothing to be proud of.

That fits Nik Richie to T, except that TheDirty.com is not unique in the same way Righthaven is. And Steve Gibson is actually a smart guy. I see no indication of that with Richie.

UK Soccer Star Ryan Giggs Sues Twitter and Tweeters Over Super-Injunction

Monday, May 23rd, 2011
Ryan Griggs, soccer player, standing on field

UK soccer star and super-injunction taker-outer, Ryan Griggs (Photo: Allison Pasciuto, CC-BY 2.0)

A soccer player who is famous in the United Kingdom, Ryan Giggs, apparently obtained a “super-injunction” to force the press to not reveal his name in connection with ongoing litigation involving an extra-marital affair he allegedly had with UK reality-television star Imogen Thomas. He has now apparently sued Twitter and Twitter users for revealing his identity.

The so-called super-injunction is one that not only gags the press and others with regard to the sensitive subject matter (such as allegations of an extra-marital affair), but also prohibits the press from even reporting about the injunction itself, thus shielding the identity of the person who took out the super-injunciton.

As your author of Blog Law Blog, based in the United States, I am confident that the First Amendment to the U.S. Constitution protects my ability to identify the person. And regardless, free-speech sufficient to discuss the use and potential over-use of judicial power ought to be considered a universal human right.

I actually looked through several news stories looking for the athlete’s name. All the sites I read, all of which were UK-based, were very cheeky, refusing to name Griggs, but dropping lots of hints, implying that the reader must then know who it was.

I’m sorry, but for me, on this side of the pond, if it’s not David Beckham, then I’m not going to know who it is unless you give me a name.

I eventually was able to get Griggs’s name through Google’s auto-complete feature, by typing in “superinjunction footballer …”

And now Griggs is suing Twitter, which was apparently where his identity broke.

Good luck with that, buddy. You’ll need it.

Twitter, based in San Francisco, U.S.A., has not only the First Amendment protecting it, but also the super-safe-harbor of section 230.

And now, here’s my commentary on the law: The super-injunction is a rank abuse of judicial power. It’s especially disappointing, to me, since the United Kingdom is one of the few countries on Earth that places the sort of premium on free speech that the United States does.

Imogen Thomas, Griggs’s ex-squeeze, who has been accused of blackmail in this whole thing, had this to say in the UK’s Daily Mail, which I think shows quite nicely what is wrong with the super-injunction as a legal institution:

“Yet again my name and my reputation are being trashed while the man I had a relationship with is able to hide.

“What’s more, I can’t even defend myself because I have been gagged. Where’s the fairness in that? What about my reputation?

“If this is the way privacy injunctions are supposed to work then there’s something seriously wrong with the law.”

Photobucket is Watertight Against Artist’s Injunction Request

Friday, March 25th, 2011

Photobucket logopaidContent reports that Photobucket and partner Kodak have handily fended off a preliminary injunction request from artist Sheila Wolk (apparently here), who sued over her images being uploaded without her consent.

I’m putting two and two together here, but I’m guessing that the gravamen of Wolk’s complaint is that people are uploading her images of fairies to Photobucket and then using the Kodak partnership to make coffee mugs and whatever with those images on them.

The judge, Robert W. Sweet of the U.S. District Court for the Southern District of New York, wrote in an order that Photobucket was protected under the Digital Millennium Copyright Act’s safe harbor.

Under the DMCA, copyright owners can send takedown notices to such sites, and as long as the sites respond to those notices appropriately, the sites are basically shielded from infringement liability.

Wolk wanted the Photobucket site to check itself for infringing artwork and remove it without waiting for a takedown notice. The court said that wouldn’t work.

Eric Goldman blogs that the case is “a useful boundary-setting for service providers when dealing overzealous copyright owners who want turnkey never-infringe-my-stuff-again services.”

Tinker with §230?

Thursday, March 10th, 2011

§230

So, as we’ve been discussing, §230 can provide immunity for bloggers from lawsuits based on defamatory comments that have been posted by third parties.

Section 230, as it is broadly understood, also can immunize crowdsourced blogs where users post defamatory content – even where defamatory content is invited. And that immunity can even block a court order to remove content that has been adjudicated to be an invasion of privacy or defamatory.

Some people think, in this respect, §230 goes too far. Some people think it should be amended or tinkered with.

But most legal scholars in the cyberlaw area – the kind of people who were at the §230 conference I was at last week, believe §230 should not be messed with. Cyberlaw people point out, with well-supported arguments, that §230 has been an important factor in fostering a lot of internet innovation, such as Twitter, Facebook, MySpace, blogs, Wikipedia, etc.

Section 230 has done far more good than bad, they argue, and they are right about that. Opening it up to re-engineering, they believe, will invite disaster.

Well, maybe.

But it should be borne in mind that §230 itself invites disaster.

There are women and men who are suffering an ongoing embarrassment because of content that has been rendered irremovable by §230. Those people may not be enough to compel the amendment of a law beloved by Silicon Valley. But the number of people left behind by §230 is growing. It won’t be the accumulated number of §230 victims that causes a change in the law, however. It will be one particular victim. One compromising picture of a U.S. senator’s granddaughter on TheDirty.com, for instance, could open the whole statute up for rethinking – whether scholars think that is a good idea or not.

Resources on §230

Tuesday, March 8th, 2011

§230

One of the most important laws affecting blogging, at least in the United States, is 47 U.S.C. §230.

Section 230 is a provision of the 1996 Communications Decency Act that shields online content providers from liability for defamation, invasion of privacy, and other state tort law actions based on the actions of users. So, for instance, §230 can provide immunity for bloggers from lawsuits based on defamatory comments that have been posted by third parties.

To learn more about §230, here are two resources:

Santa Clara University’s § 230 Conference Today

Friday, March 4th, 2011

Seal of Santa Clara UniversityToday I’m at Santa Clara University for a conference, 47 U.S.C. § 230: a 15 Year Retrospective, about the safe harbor that shields online content providers from defamation liability for content posted by users. It’s put on by SCU School of Law’s High Tech Law Institute. I’m tweeting about it from @tweetlawtweets, and so are many others with the hashtag #htli.

Sarah Jones Wins Early Motion Against TheDirty.com

Wednesday, February 2nd, 2011

Sarah Jones (Photo, Cincinnati Bengals)

Eric Goldman on Technology & Marketing Law Blog writes about a recent decision in the case of a school teacher and NFL cheerleader against about the meanest blog ever to sail the cyberseas: Jones v. Dirty World Entertainment, 2:09-cv-00219-WOB (N.D. Ky. Jan. 21, 2011).

Jones defeated The Dirty’s §230 safe-harbor defense at the earliest opportunity The Dirty had to bring it up, a motion to dismiss based on the pleadings. But the defense isn’t dead. Now the parties will go through the discovery process – producing documents, undergoing depositions – and we’ll see whether Jones can defeat the §230 defense on the facts.

Goldman doesn’t seem bullish on Jones’ long-term prospects. “Based on what I saw in this ruling, thedirty.com’s editorial contribution beyond the user-submitted content appears to be minimal and probably legally inconsequential,” Goldman writes.

More from me:

Wendy Seltzer on the DMCA’s Effects on Free Speech

Friday, January 28th, 2011

The Harvard Journal of Law & Technology has published Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment [pdf] by Wendy Seltzer, a fellow with Center for Information Technology Policy at Princeton University.

Here is the abstract, taken from the draft version of the paper posted on SSRN.

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law’s shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech.

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas. Yet under the DMCA’s pressure, the poster’s private incentive to counter-notify and the host’s incentives to support challenged speech are often insufficient to support an optimal communication environment for the public. Instead, this set of incentives produces a blander, but not significantly less copyright infringing, information space.

Copyright claimants assert that the expedited process of the DMCA is critical to suppress infringement in the highly networked digital world. While many instances of infringement are properly targeted for takedown under the DMCA, I argue that the accuracy of some takedowns does not excuse a careful examination of the rate and costs of error. I therefore recommend changes to the law to reduce the error, balancing speech protection and copyright.

Part I surveys the legal, economic, and architectural sources of the DMCA’s chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright’s place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.

Awesome §230 Conference at Santa Clara Law

Thursday, January 27th, 2011

Seal of Santa Clara UniversityThe High Tech Law Institute at Santa Clara University School of Law is hosting a fantastic conference on March 4, 2011 about § 230, the safe harbor that shields online content providers from liability for defamation posted by users. It’s one of the most important legal aspects of blogging, and the Santa Clara event, called 47 U.S.C. § 230: a 15 Year Retrospective, offers a spectacular lineup of speakers. Look at this:

  • Kenneth Zeran, plaintiff in Zeran v. America Online (4th Cir. 1997)
  • Alex Kozinski, Chief Judge, Ninth Circuit Court of Appeals
  • Zoe Lofgren, U.S. House of Representatives, California 16th
  • Alex Macgillivray, General Counsel, Twitter
  • Kai Falkenberg, Editorial Counsel, Forbes
  • Cindy Cohn, Legal Director, Electronic Frontier Foundation
  • David Ardia, Citizen Media Law Project/Harvard Berkman Center
  • Chris Cox, Partner, Bingham McCutchen LLP
  • Patrick Carome, Partner, WilmerHale
  • Mike Rhodes, Partner, Cooley LLP
  • Maria Crimi Speth, Shareholder, Jaburg & Wilk
  • Eric Goldman, Santa Clara University School of Law
  • Susan Crawford, Cardozo School of Law
  • Nancy Kim, Cal Western School of Law
  • Felix Wu, Cardozo School of Law

The event is co-sponsored by Harvard Law School’s Berkman Center, Stanford Law School’s Law, Science & Technology program, the Berkeley Center for Law & Technology, the New York Law School’s Institute for Information Law and Policy, the Congressional Internet Caucus Advisory Committee, the EFF, and the Media Law Resource Center.

I can’t think of better way to earn five hours of CLE credit. And it’s free for law students, full-time law professors, the press, and public-interest attorneys.

Section 230 and Forced Removal of Defamatory Content

Friday, January 14th, 2011

Mike Masnick profiles some Section 230 cases that are important for bloggers:

Laws Bloggers Can Be Thankful For

Thursday, November 25th, 2010

Photo of pumpkin pie by Peggy Greb of the USDA Agricultural Research ServiceHappy Thanksgiving to bloggers everywhere!

Here are some laws and legal concepts bloggers can be thankful for.

Public domain photograph of pumpkin pie by Peggy Greb, USDA Agricultural Research Service.

Rebecca Tushnet on Regulation of Commercial Speech and User-Generated Ads

Wednesday, November 10th, 2010

Professor Rebecca Tushnet of the Georgetown University Law Center has posted to SSRN Attention Must Be Paid: Commercial Speech, User-Generated Ads, and the Challenge of Regulation on SSRN. The paper is being published by the Buffalo Law Review. Cite: 58 Buffalo Law Review 721 (2010)

Here is the abstract:

This Article examines the dynamics that drive advertisers to push into new formats, and the law’s ability to regulate them. I argue that it will remain possible, and constitutional, to identify advertising and subject it to prohibitions on false and misleading claims, even for ads in unconventional formats. The article also addresses the ways in which regulators were caught off-guard by these new formats. In particular, Section 230 of the Communications Decency Act, which frees online service providers and users from liability for content generated by other users, poses some unanticipated barriers to regulating advertising. Yet despite section 230’s provisions, regulators retain flexibility in many situations. The Article considers the Federal Trade Commission’s (“FTC”) recent revisions of its guides on testimonials and endorsements. The guidelines apply to bloggers and others who receive substantial benefits from advertisers in return for their endorsements. After exploring the First Amendment challenges posed by such situations, including questions that go to the heart of the justification for regulating commercial speech, I contend that neither section 230 nor sound policy require the FTC to ignore these new forms of communicating with potential purchasers.