Twitter Isn’t Liable for Impersonation Account–Dehen v. Doe

26 09 2018

Technology & Marketing Law Blog

Eric Goldman

Sept. 24, 2018

Tiffany Dehen is a 2016 alumna of University of San Diego’s law school. Her website declares that she is “a true American and Patriotic Trump Supporter,” and her photo album includes a photo of her smiling with Dinesh D’Souza. She claims that an unidentified person created a “parody” Twitter account that used her photo and posted objectionable content. She reported the account to Twitter and, after a few days, the account was disabled. You can read more about her motivations for filing this lawsuit in an Above the Law interview. Dehen sued several defendants; I’ll focus on Twitter’s liability.

 

Case citation: Dehen v. Doe, 2018 WL 4502336 (S.D. Cal. Sept. 18, 2018). Dehen’s website has an archive of case filings.

more

The content in this post was found at https://blog.ericgoldman.org/archives/2018/09/twitter-isnt-liable-for-impersonation-account-dehen-v-doe.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Powered by WPeMatico



Google’s servers housed by a third-party ISP qualify as a regular and established place of business to establish proper venue in the Eastern District of Texas

17 08 2018
Lex Blog
AUGUST 15, 2018
In our continued post-TC Heartland coverage, Judge Gilstrap in the Eastern District of Texas recently held that venue was proper because Google exercises exclusive control over physical servers implicated by the litigation, as well as the physical space within which the server is located and maintained. The court emphasized that the place where the server is located occupies a physical space, which is more than merely a virtual space or electronic communications from one person…

more

The content in this post was found at https://www.lexblog.com/2018/08/15/googles-servers-housed-by-a-third-party-isp-qualify-as-a-regular-and-established-place-of-business-to-establish-proper-venue-in-the-eastern-district-of-texas/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Powered by WPeMatico



Image Rights: Valuable Intellectual Property

7 08 2018

IP Watchdog

Kelvin King & Raymond Weisner
May 4, 2018

The cult of celebrity keeps creating more and more wealth. And concurrent with protecting that, ‘Image Rights”’have been receiving a lot of publicity – as well as the attention of tax authorities. Even James Bond, Sir Sean Connery, has just discreetly protected his brand and trademarked his name. Documents filed in both the EU and the US show the veteran star is ensuring that he and he alone can profit from his name.

more

The content in this post was found at https://www.ipwatchdog.com/2018/05/04/image-rights-valuable-intellectual-property/id=96506/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Powered by WPeMatico



Court Awards $12,500 For ‘Emotional Harm’ From Bogus Copyright Lawsuit

6 08 2018

Tech Dirt

Mike Masnick

Almost a year ago, we wrote about a somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. Paula White did not take kindly to this criticism and sued Johnson… for copyright infringement (though, the details suggest that the decision to sue actually came from White’s son, Brad Knight, and White agreed to it at Knight’s suggestion). This was because Johnson used video clips and images in her own videos. This seemed like a pretty clear copyright abuse case as it was obviously filed to stop criticism that involved fair use, and not for any legitimate purpose. The case was dismissed, but Johnson countersued for “malicious prosecution.” As we noted in our article from last September, Johnson then also filed a separate lawsuit for a DMCA 512(f) abuse claim. If you don’t recall, 512(f) is the (mostly toothless) part of the DMCA that bars “misrepresentations” in DMCA claims. So, there are two parallel cases going on, brought by Johnson (representing herself, without a lawyer), against Paula White and her various entities, for filing a bogus copyright claim against Johnson.

That case around 512(f) is still going as far as I can see. However, the malicious prosecution case has now concluded with the court awarding Johnson $12,500 for the “emotional harm” from the bogus copyright claim. Of course, before this happened, as the court itself says (and I’m not joking): “all hell broke loose.” That is directly from the court’s ruling back in January, which details a convoluted mess of discovery fights and bad behavior.

more

The content in this post was found at https://www.techdirt.com/articles/20180801/12075040348/court-awards-12500-emotional-harm-bogus-copyright-lawsuit.shtml  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Powered by WPeMatico



A Presentation on Legal Issues for Podcasters – Who Owns What?

6 08 2018

David Oxenford
August 3, 2018
Broadcast Law Blog

Last week, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast.

 

more

The content in this post was found at https://www.broadcastlawblog.com/2018/08/articles/a-presentation-on-legal-issues-for-podcasters-who-owns-what/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Powered by WPeMatico



In a Divided Opinion, California Supreme Court Squashes End Run around CDA Immunity That Sought to Compel a Non-Party Online Platform to Remove Defamatory Content

2 08 2018

Proskaur

Jeffrey Neuburger
July 31, 2018

In a closely-followed dispute, the California Supreme Court vacated a lower court order, based upon a default judgment in a defamation action, which had directed Yelp, Inc. (“Yelp”), a non-party to the original suit, to take down certain consumer reviews posted on its site. (Hassell v. Bird, No. S235968, 2018 WL 3213933 (Cal. July 2, 2018)).  If the plaintiffs had included Yelp as a defendant in the original suit, such a suit would have likely been barred by Section 230 of the Communications Decency Act (“CDA” or “CDA Section 230”); instead, the plaintiffs adopted a litigation strategy to bypass such legal immunities.  In refusing to allow plaintiff’s “creative pleading” to avoid the CDA, the outcome was a win for online companies and platforms that host user-generated content (“A Case for the Internet,” declared Yelp).

more

The content in this post was found at https://newmedialaw.proskauer.com/2018/07/31/in-a-divided-opinion-california-supreme-court-squashes-end-run-around-cda-immunity-that-sought-to-compel-a-non-party-online-platform-to-remove-defamatory-content/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

 

Powered by WPeMatico



Recapping a Year’s Worth of Section 230 Cases That Got Stuck in My Blogging Queue

2 08 2018

Technology & Marketing Law Blog


April 30, 2018

[Though most of these rulings are defense-favorable, Congress recently eviscerated Section 230 and isn’t done ruining its greatest online policy masterpiece]

Twitter Defeats Defamation Claim

 

Case citation: Frenken v. Hunter, 2018 WL 1964893 (N.D. Cal. April 26, 2018)

__

Section 230 Protects Instagram Link to Defamatory Content

Case citation: Marfione v. Kai USA, 2018 WL 1519042 (W.D. Pa. March 28, 2018)

__

No Liability for Cyber-Harassment Attack, Even if the Service Could Have Been Designed Differently

 

Case citation: Herrick v. Grindr LLC, 2018 WL 566457 (SDNY Jan. 25, 2018)

___

Section 230 Protects Message Board 

Allnurses runs a message board related to nursing. The plaintiff offers Active Test Prep (ATP), a test prep service for nursing exams. Allnurses users allegedly defamed ATP in message board posts. Allnurses defends on Section 230 grounds, which the court largely accepts. ATP claimed the users were Allnurses’ “agents” but didn’t marshal good evidence to support the assertion. Also, the court says Section 230 applies to claims that Allnurses “ratified and adopted” the user comments. In a footnote, the court says: “ATP argues that Allnurses selectively removed content and ultimately closed the thread—but that is precisely the type of action that the CDA was intended to protect.”

The opinion also addresses what it means to “like” an allegedly defamatory post: “to ‘Like’ something online is not to vouch for its veracity, and certainly not in whole.” See Bland v. Roberts.

ATP also claimed breach of contract for Allnurses’ failure to enforce negative behavioral covenants in the TOS (have you noticed how often plaintiffs are trying this attempted workaround to Section 230?). The court says that Allnurses’ contract formation failed because ATP  “does not allege, and the record does not show, that users must check a box accepting the statement ‘Your participation implies full acceptance with our Terms of Service.’” [Protip: you never want to “imply” anything about your contract terms or formation process.] Furthermore, ATP can’t be a third party beneficiary of the Allnurses/user contract because “by this logic, the entire world is an intended beneficiary of the TOS. That cannot be right.” The promissory estoppel workaround fails because the TOS terms are too indefinite.

Case citationEast Coast Test Prep LLC v. Allnurses.com, Inc., 2018 WL 614732 (D. Minn. Jan. 29, 2018)

___

Section 230 Helps Defeat Product Liability Claim

A retractable leash permanently injured the plaintiff’s eye. She bought the leash from an Amazon Marketplace merchant. She sued Amazon for various products liability claims. The court says no. First, the court says Amazon wasn’t the seller of goods in its marketplace. Sorry this passage is so painful, but don’t shoot the messenger:

Like an auctioneer, Amazon is merely a third-party vendor’s “means of marketing,” since third-party vendors—not Amazon—“cho[o]se the products and expose[ ] them for sale by means of” the Marketplace. Because of the enormous number of third-party vendors (and, presumably, the correspondingly enormous number of goods sold by those vendors) Amazon is similarly “not equipped to pass upon the quality of the myriad of products” available on its Marketplace. And because Amazon has “no role in the selection of the goods to be sold,” it also cannot have any “direct impact upon the manufacture of the products” sold by the third-party vendors.

The Amazon Marketplace serves as a sort of newspaper classified ad section, connecting potential consumers with eager sellers in an efficient, modern, streamlined manner. Because subjecting it to strict liability would not further the purposes of § 402A, as revealed by Musser and other Pennsylvania cases, it cannot be liable to the Oberdorfs under a strict products liability theory.

Calling Amazon Marketplace a “classified ad section” is definitely defense-favorable, but it’s a weak analogy that other courts would reject. See Airbnb v. San Francisco. Regarding Section 230, the court says:

Since the Oberdorfs’ claims for strict products liability, misrepresentation, and breach of warranty have all been disposed of supra, this Court need only consider Amazon’s CDA argument with respect to the Oberdorfs’ negligence and negligent undertaking claims. Although the Complaint frames those claims broadly, it is clear from the Oberdorfs’ papers that they are, in fact, attempting to hold Amazon liable for its role in publishing an advertisement for The Furry Group’s product. In other words, the Oberdorfs are attempting to “treat[ Amazon] as the publisher or speaker of…information provided by” The Furry Group.

Uncited cases in this genre include: Inman v. Technicolor, McDonald v. LG (reaching a different conclusion on Section 230), Hinton v. Amazon, and Englert v. Alibaba.

Case citation: Oberdorf v. Amazon.com, Inc., 2017 WL 6527142 (M.D. Pa. Dec. 21, 2017)

__

Publicity Rights Claim Preempted by Section 230 in a Court Outside the 9th Circuit

 

Case citation: Parker v. PayPal, 2017 WL 3508759 (E.D. Pa. Aug. 16, 2017)

more

The content in this post was found at https://blog.ericgoldman.org/archives/2018/04/recapping-a-years-worth-of-section-230-cases-that-got-stuck-in-my-blogging-queue.htm  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Powered by WPeMatico



The California Supreme Court Didn’t Ruin Section 230 (Today)–Hassell v. Bird

25 07 2018

Technology & Marketing Law Blog


July 2, 2018
I previously described the case facts: “A lawyer was unhappy with a Yelp review about her. The lawyer sued the putative author (with dubious service of process), got a default ruling that the review was defamatory along with a removal injunction, and then delivered the injunction to Yelp and demanded removal. Yelp refused to remove the review.” In a shocking development, in 2016, the Court of Appeals upheld the injunction. Today, the California Supreme Court reversed that ruling, seemingly restoring the status quo. Yelp rightly claims it as a win.

However, the long-term implications of this case aren’t entirely clear because the Supreme Court voted 3-1-3:  . . .

Unfortunately, the fractured opinions raise some doubts about the true holding of this case. If the plurality opinion is the law, Section 230 defendants have a lot to celebrate. The plurality opinion strongly endorses Section 230….

The opinion is noteworthy for what it didn’t do. There was no analysis at all of the First Amendment. Due process was discussed, but there was no clear resolution on the applicability of Constitutional due process to this case. The opinions did not come anywhere close to resolving when a non-party can be bound to an injunction, an issue that affects cases far beyond the Internet Law realm. . . .

One of the many unusual aspects of this case is that Yelp didn’t remove the review when presented with the court’s judgment.

Case Citation: Hassell v. Bird, S235968 (Cal. Sup. Ct. July 2, 2018)

[ed’s note: Eric’s subsequent analysis is detailed and insightful. Uses this case to address LOADS of 230 issues. Do note, this is a state supreme court (CA) decision.]

more

The content in this post was found at https://blog.ericgoldman.org/archives/2018/07/the-california-supreme-court-didnt-ruin-section-230-today-hassell-v-bird.htm  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Powered by WPeMatico



Right of Publicity Risks For Producers Still Uncertain

25 07 2018

the IP law blog
Scott Hervey
July 5th, 2018

Often writers base characters on complete fiction, drawing from their imagination to build a character’s various facets.  However, on certain occasions a writer may base a character on a living person.  Sometimes such a portrayal is factual and other times it may be a combination of fact and fiction.  Such was the case, claimed legendary actress Olivia de Havilland, in her lawsuit against FX Networks over her portrayal in the FX docudrama Feud: Bette and Joan.

Feud told the tale of the infamous silver screen ongoing battle between Bette Davis and Joan Crawford.  De Havilland claimed that Catherine Zeta-Jones’s portrayal of her in the show (which lasted all of 17 minutes) violated her right of publicity because she did not give the creators of Feud permission to use her name or identity.  Additionally, de Havilland also claimed that FX portrayed her in a false light by taking certain creative liberties with the story (namely, the inclusion of a fictitious interview and the de Havilland character’s reference to her sister as a “bitch” when in fact the term she actually used was “dragon lady”).

At the trial court, FX filed a motion to strike the complaint based on California’s anti-SLAPP statute.  The trial court denied FX’s motion.  The trial court’s ruling presented a Catch-22 for those choosing to portray real persons in creative works.  If the portrayal is done accurately and realistically (and without permission) this is grounds for a right of publicity lawsuit; if the portrayal is more creative or entirely fictitious, this could be grounds for a false light claim if the person portrayed doesn’t like the portrayal.

FX appealed to the California Court of Appeals.  In a lengthy opinion, the court reverses the trial court’s decision and dismissed de Havilland’s case.  By all means, the opinion is a clear endorsement of the First Amendment rights of television producers (and other creatives).

The First Amendment Trumps de Havilland’s Right of Publicity.

more

The content in this post was found at https://www.theiplawblog.com/2018/07/articles/ip/right-of-publicity-risks-for-producers-still-uncertain Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Powered by WPeMatico



Businesses Cannot Contractually Ban “Abusive” Consumer Reviews

24 07 2018

July 17, 2018

Technology & Marketing Law Blog

An article recently posted to SSRN argues that the Consumer Review Fairness Act (CRFA) purportedly lets businesses contractually ban “abusive” reviews. If this is correct, it could affect millions of businesses and hundreds of millions of consumers. However, the article’s argument is clearly wrong, and this error exposes millions of businesses to potentially severe liability. This post explains why and how.

Note: unavoidably, this blog post counterproductively draws greater attention to a bad argument. Because of the stakes, I concluded a public correction was, on balance, necessary. However, to reinforce my view that the article doesn’t merit your independent review, I’ve deliberately not identified the article’s author or title or linked to it (is there a blogging equivalent of subtweeting?). I recommend reading the article as “enthusiastically” as I “recommend” watching The Emoji Movie. . .  .

If you’re a business thinking about banning abusive reviews in your contract, I hope you got these two messages from this blog post: (1) that’s illegal, and (2) we’re coming for you, so see you in court.

more

 

The content in this post was found at https://blog.ericgoldman.org/archives/2018/07/businesses-cannot-contractually-ban-abusive-consumer-reviews.htm  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Powered by WPeMatico