File Names Can Help Predict File Content in Child Porn Prosecution–US v. Beatty

18 01 2010

By Eric Goldman

United States v. Beatty, 2009 WL 5220643 (W.D. Pa. Dec. 31, 2009)

This is a child porn prosecution. Using Phex P2P software, an undercover investigator accessed the Gnutella network and conducted searches using search terms known to be used by child pornographers. The investigator identified IP address 76.188.64.82 with 11 files with troubling titles such as:

* r@ygold-pedo-13yo brother fucks 11yo sister and sperm inside 61943812.mpg
* (Pthc) 14yo Isabel-(Rape and Fuck) (R@ygold).mpg
* Little young girl hardfucked by me-7 yrs R@ygold illegal pedo sex.mpg
* (Hussyfan) (pthc) (r@ygold ) (babyshivid) Jessica 11y o get fucktgood.mpg

The investigator then matched hash tag fingerprints of the 11 files with child porn files in a database maintained by the Wyoming Internet Crimes Against Children (ICAC) Task Force. Subsequently, the investigator connected Beatty to the IP address. Based on this information, the government got a search warrant for Beatty’s home, found hundreds of incriminating files on his home computer, and got incriminating statements in an interview.

Beatty challenged the government’s right to search his home computer. The judge and the litigants agree that the government can legally conduct remote warrantless searches of P2P share directories, but the government apparently argued that they were free by extension to look through Beatty’s entire computer. The judge rejected such a broad position, saying:

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Federal Rule Bars Post-Judgment Injunctive Relief against Web Site for Third-Party Defamatory Posts

6 01 2010

We have previously described as “robust,” the protection afforded interactive service providers from liability for defamatory contents posted by third parties by Section 230 of the Communications Decency Act.  But in Blockowitz v. Williams, 1:09-cv-03955 (N.D. Ill. Dec. 21, 2009), involving post-judgment efforts to have defamatory postings removed from a consumer complaint Web site ,  the protection comes, not from CDA Section 230, but from Fed. R. Civ. P. 65, which governs the enforcement of injunctions.

Perhaps predictably, for followers of CDA Section 230 jurisprudence, the consumer complaint Web site involved is the Ripoff Report, operated by perennial defendant Xcentric Ventures, Inc.

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512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici

31 12 2009

By Eric Goldman

Project DOD, Inc. v. Federici, 2009 WL 4910320 (D. Me. Dec. 13, 2009)

17 USC 512(f) creates a cause of action for sending bogus copyright takedown notices. In a regulatory environment where service providers have itchy trigger fingers, it is crucial to suppress bogus takedown notices or the entire notice-and-takedown scheme becomes easily corrupted. Unfortunately, 512(f) cases have not fared well in the courts, and this one fails (at least temporarily) on procedural grounds. Nevertheless, the case illustrates the challenges faced by service providers dealing with copyright owners who freak out.

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Consumer Review Website Wins 230 Dismissal in Fourth Circuit–Nemet Chevrolet v. ConsumerAffairs.com

29 12 2009

By Eric Goldman

Nemet Chevrolet Ltd. v. ConsumerAffairs.com, Inc., No. 08-2097 (4th Cir. Dec. 29, 2009)

Introduction

Citing 47 USC 230, today the Fourth Circuit upheld a 12(b)(6) dismissal of defamation and related claims against a consumer review website. This case is noteworthy because the court rejected some common allegations that plaintiffs make to evade 230, so this case may help defendants get 12(b)(6) motions to dismiss more easily.

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Justice elusive for Chicago family defamed online

23 12 2009


What if the first Google hit for your last name called you a prostitute, an incestuous creep, a danger to children, or a diseased lesbian? And what if, despite a federal court injunction, you couldn’t get the postings removed?

Welcome to one Chicago family’s Internet nightmare. Is it “safe harbor” run amok, or just an unfortunate and rare side effect of an otherwise well-crafted statute?

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Website Initially Denied 230 Dismissal But Gets It on Appeal–Shiamili v. Real Estate Group

21 12 2009

By Eric Goldman

Shiamili v. Real Estate Group of New York, Inc., 2009 WL 4842470 (N.Y. App. Div. Dec. 17, 2009)

Unfortunately, I am only working from a short and opaque appellate memo. It appears that the defendant operated a website that “administered and chose” to publish user comments. A third party posted an allegedly defamatory comment about the plaintiff, an NYC real estate broker, to the website. On this basis, we know that the website isn’t liable for the post per 47 USC 230. I don’t think I could do a comprehensive census of message board/user comment cases, but similar defense wins in the past 5 years include Finkel v. Facebook, Cornelius v. DeLuca, Joyner v. Lazzareschi, Raggi v. Las Vegas Police, Higher Balance v. Quantum, Best Western v. Furber, Gregerson v. Vilana, Universal Communications System v. Lycos, Eckert v. Microsoft, DiMeo v. Max, Hammer v. Amazon and Faegre & Benson v. Purdy (wow, this list is a blast from the past!). I’m not including the pure web hosting cases or any of the Ripoff Report cases, yet I’m sure there are other cases I’m forgetting. Indeed, given the airtight nature of the precedent, I personally think plaintiffs should be sanctioned for bringing such meritless cases.

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Barnes v. Yahoo! Opinion on Remand a Caution to Web Site Operators: Don’t Let Employees Make Promises That They Can’t Keep

17 12 2009

To the great frustration of plaintiffs and their attorneys, and even some judges, courts have construed Section 230 of the Communications Decency Act in such a way as to make it virtually impossible to hold a Web site operator liable for defamatory material that is posted on the site by a third party, even if the operator has knowledge of the defamatory nature of the material and refuses to remove it. Many plaintiffs have tried to plead around the robust protection provided by Section 230, but only a very few have succeeded. One of them is Cecilia Barnes, who alleged that she was defamed by false dating profiles posted by an ex-boyfriend on Yahoo!’s dating Web site. Any claim that Yahoo! was liable for the posting of the profiles by the ex-boyfriend is precisely the sort of claim that is barred by Section 230. But Barnes claimed that a separate promise by a Yahoo! employee to remove the profiles was not precluded.

Earlier this year, in Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009), the Ninth Circuit agreed with Barnes.

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MySpace Quietly Won Goofy 230 Ruling in September–Riggs v. MySpace

30 11 2009

By Eric Goldman

Riggs v. MySpace, Inc., 2:09-cv-03073-GHK-CT (C.D. Cal. Sept. 17, 2009)

This case has received some modest attention throughout its history (including a quick mention here when the court upheld MySpace’s user agreement), but the district court’s dismissal of the case appears to have been completely overlooked.

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Court case shows limits of anonymous blogging

25 10 2009

US courts have historically looked on anonymous bloggers and commenters with a sympathetic eye, but there are exceptions. A Tennessee judge denied a blogger’s motion to quash a subpoena to reveal his identity last week, and he also denied a motion to dismiss the case. With few other options available to him (or her), the blogger in Swartz v. Does looks likely to be revealed.

Even on the Internet, anonymity is never absolute… especially when you’re accusing someone else of arson and tax evasion.

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Defamation Issues for Blogs

25 10 2009

This post continues a series dealing with the legal issues that bloggers should be thinking about. This post covers defamation issues, and will explore your options when somebody has posted something false and damaging about you, including some common defenses.

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