Court Spoils “Banana Lady’s” Appeal Over Online Recordings of Her Act

3 12 2014

 

Catherine Conrad is the “Banana Lady” (see her Facebook photos) who delivers singing birthday telegrams. I didn’t know such things still exist, but perhaps they do in the Midwest (she’s based in the Madison, Wisconsin area). For reasons the court didn’t explain, she was invited to perform at the 2011 CUNA Management School, an annual conference of the Credit Union National Association. I don’t know what’s considered “entertaining” at trade conferences in the financial industry, but it blows my mind that a conference organizer apparently thought it would be fun to bring in the local Banana Lady to entertain this presumably-national audience.

To her credit, the Banana Lady was clear with the conference organizers about her expectations. She told her handler that her character was protected by federal copyright and trademark law, so she didn’t want conference attendees posting photos or videos to the Internet without paying a license fee. Everyone reading this post knows what should have happened next: the conference handler should have told her to split. Whether they are laughing with her or at her, conference attendees will not be able to resist memorializing their encounter with the Banana Lady and sharing it with each other and their friends. Thus, thinking the Banana Lady could perform before a presumably large trade conference audience and not have photos/videos show up on the Internet is so nutty that I wouldn’t hire anyone who made such an unreasonable request.

Instead, the conference handler promised to tell the conference attendees of the Banana Lady’s expectations before the performance. You know how well that worked. Conference attendees ignored the request and posted photos and videos of the Banana Lady’s performance to the Internet. Apparently bruised by their disrespect, the Banana Lady contacted her conference handler and asked the handler to email all conference attendees a C&D, which the handler did.

Case citation: Rigsby v. AM Community Credit Union, 2014 WL 1059048 (Wis. Ct App. March 20, 2014)

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Section 230 Applies to Amazon Book Reviews–Joseph v. Amazon

1 12 2014

 

As I’ve recently mentioned, many recent Section 230 rulings involve pro se plaintiffs because most lawyers have wizened up to Section 230?s immunity. In this case, Dr. Joseph, a pro se plaintiff, brings a long list of gripes about Amazon to court. I’ll focus just on the part where he “alleges that Amazon unlawfully published defamatory anonymous reviews of Plaintiff’s books (and Plaintiff) on its website.”

The court quickly runs through Amazon’s eligibility for Section 230. Other cases have held that Amazon is a provider of interactive computer services (Corbis, Schneider), Dr. Joseph expressly alleges that Amazon “published” the reviews, and the reviews came from third parties (but see below). Thus, Amazon established its prima facie Section 230 immunity.

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Blogspot Gets Section 230 Win In 11th Circuit–Dowbenko v. Google

1 12 2014

 

Another Section 230 case with a pro se plaintiff. Dowbenko claimed that that the “Encyclopedia of American Loons” website, located at http://americanloons.blogspot.com, contained a copyrighted photo of him and defamed him. The court says:

Mr. Dowbenko’s defamation claim is preempted under § 230(c)(1). It is uncontested that Google is an interactive computer service provider, and the article in question indicates that it was authored and posted by an “information content provider”: two anonymous bloggers. Nor does the allegation that Google manipulated its search results to prominently feature the article at issue change this result.

The copyright claim fails because Dowbenko didn’t have a copyright registration. The RICO claim failed because it lacked the requisite specificity.

The 2006 Almeida case is the only published opinion in the 11th Circuit, so it’s nice to see a clean Section 230 ruling, even if it’s unpublished.

Case citation: Dowbenko v. Google Inc., 2014 WL 4378742 (11th Cir. Sept. 5, 2014). The complaint.

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Website Marketing Statements: The Achilles’Heel to CDA Protection?

30 11 2014

[ed, précis]: CDA 230 protects websites from tort claims; but not from mistakes THEY make in their advertising/marketing claims. If/When they remove content (probably in a way that is favorable to them), but then claim that their reviews are solid, they may be participating in false advertising, and 230 doesn’t give immunity for that.

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New California Law Bans Companies from Punishing Negative Online Reviewers

30 11 2014

Companies could be slapped with thousands of dollars in fines for trying to punish a consumer for writing a negative online review under a new Yelper-friendly law enacted in California.

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US law would safeguard free-speech rights to criticize business online

30 11 2014

A member of the House of Representatives is offering legislation that would make it illegal for businesses to take action against consumers who write “honest” negative reviews online about products and services.

Rep. Eric Swalwell (D-CA) told the National Journal that the forthcoming measure would make it illegal for companies to have non-disparagement clauses in their consumer contracts.

“It’s un-American that any consumer would be penalized for writing an honest review,” Swalwell said. “I’m introducing this legislation to put a stop to this egregious behavior so people can share honest reviews without fear of litigation.”

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Weight loss firm demands $1 million from website hosting negative reviews

30 11 2014
A Florida company selling an obesity product is suing a consumer website for hosting negative reviews of its dietary product. Roca Labs wants the US courts to award it in “excess” of $1 million in addition to blocking pissedconsumer.com from continuing the practice.

The lawyer for the New York-based online review site told Ars on Monday that the lawsuit [PDF] was “bunk,” that its demands amount to a prior restraint of speech, and that the site itself is protected from defamation charges under the Communications Decency Act because it hosts the online review forum for others to use.

“Essentially, what they are saying, is my client is defaming them by allowing these negative reviews to be published. And that my client is engaged in tortious interference with their relationships with their customers, and that my client is practicing unfair and trade-deceptive practices,” said attorney Marc Randazza in a telephone interview.

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Congress May Crack Down On Businesses’ Efforts To Ban Consumer Reviews (Forbes Cross-Post)

28 11 2014

 

Imagine a dentist telling her patients that they can’t write online reviews about her. Or a hotel deducting money from a newly married couple’s security deposit if any member of the wedding party blasts the hotel on Yelp. These types of stories might sound fanciful, but they are true–and stories like these are becoming increasingly common as some businesses panic about the growing importance of consumer reviews.

Recently, Reps. Swalwell and Sherman introduced H.R. 5499, the Consumer Review Freedom Act of 2014. The law targets businesses’ efforts to suppress consumer reviews or “performance assessments” of businesses. It says that businesses could not prohibit such reviews, impose a fine for posting a review, or require consumers to provide the business with exclusive rights to such reviews. Any such provision in a form contract automatically would be void and also would constitute an “unlawful” practice. The Federal Trade Commission and state attorneys’ general would have enforcement authority.

This bill proposal addresses the same concerns as the newly enacted California law, AB 2365, which also stops businesses from banning consumer reviews. There are some differences, but they are relatively inconsequential. For example, the California law doesn’t clearly cover the intellectual property trick popularized by Medical Justice, while the federal law doesn’t clearly provide for any consumer recourse or any financial penalties for businesses that violate the restrictions.

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Bookstores, publishers sue to stop law against “revenge porn”

28 11 2014

“Revenge porn” is a term that has developed over the last few years to refer to the posting of nude images without the consent of those in the pictures. After a spate of publicity surrounding some of the bad actors in this business, several states have passed laws outlawing “revenge porn” and applying penalties.

Now, a coalition of businesses and the American Civil Liberties Union have filed a lawsuit (PDF) challenging the anti-revenge-porn laws. They’ve picked Arizona as their battleground. One of the lead lawyers on the case, Michael Bamberger, told the National Law Journal that Arizona’s law is “probably the most egregious,” because it has no requirement that the images even be malicious, and it could include images taken in a “commercial or public setting.”

“This is a supposed revenge-porn statute that does not require revenge,” said Bamberger.

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Hotel charges couple’s credit card $156 for negative Trip Advisor review

24 11 2014

A British hotel added $156 to a couple’s credit card bill for violating its terms of service that says guests can be dinged for leaving bad online reviews.

The Broadway Hotel charged Tony and Jan Jenkinson’s credit card, CNN reported Wednesday, after they left a review on Trip Advisor decrying the Blackpool hotel as a “filthy, dirty rotten stinking hovel.” The BBC described the hotel’s terms of service contained in a booking document as:

Despite the fact that repeat customers and couples love our hotel, your friends and family may not. For every bad review left on any website, the group organiser will be charged a maximum £100 per review. (About $156)

This isn’t the first time we’ve seen fines like this from a hotel. In August, the Union Street Guest House in Hudson, NY included a table-turning clause in its reservation policies: if you book an event at the hotel and a member of your party posts a negative review, the hotel will fine you $500. Amid an Internet firestorm, that hotel changed its policy.

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