1. DIGITAL MEDIA LAW Legal Issues And Online Publications

2. Overview  Criminal Conduct  Privacy & Data Collection  Intellectual Property Interests  Publisher/Editor Liability Michael S. Overing 2009

3. Criminal Conduct  Online Gambling  Gaming/Lotteries A sweepstake is a contest in which a prize is or may be awarded to the winner Gaming is playing a game for stakes hazarded by the players A lottery is a distribution of prizes by lot or chance in exchange for consideration Michael S. Overing 2009

4. Criminal Conduct Cont’d  Linking to Child Pornography is always illegal. 18 USC 2251. What about “morphed” images? See, Ashcroft v. FSC (2002) 535 US 234.  Linking to DMCA Circumvention 1201(a)2 Technologies. Universal City Studios, Inc. v. Corley (2001) 273 F.3d 429 (Reimerdes). Why is online different than print? Michael S. Overing 2009

5. Criminal Conduct Cont’d  Cyberbullying/Stalking varies by state law  How do you know when a bully/stalker is engaged in this behavior? Generally look at the effect on a reasonable hearer. Planned Parenthood v. ACLA (9 th Cir. 2002) 290 F.3d 1058.  What about violations of terms & conditions? Myspace? Michael S. Overing 2009

6. Privacy & Data Collection  Ask: What are you going to do with the data?  Gramm-Leach-Bliley Act applies to financial privacy  What are you telling users? Is that a contract?  USC 2001 study: Most sites do not inform users of how information is collected or used  Hot topic for state legislators Michael S. Overing 2009

7. Intellectual Property Interests: Right of Publicity  Right to control publicity of one’s name, likeness voice or image.  Generally Governed by a “Naked Eye Test”  Requires Permission when you use person’s name, voice, signature, photo, or likeness  False Depiction. Hoffman v. Capital Cities (9 th Cir. 2001) 255 F.3d 1180 Michael S. Overing 2009

8. Right of Publicity Cont’d  Exceptions exist for newsworthy events. Is there a time limitation? See, Downing v. Abercrombie & Fitch (9 th Cir. 2001) 265 F.3d 994.  First Amendment? No First Amendment Protection if depiction is literal. Comedy III v. Saderup (2001) 25 Cal. 4 th 387. Michael S. Overing 2009

9. Intellectual Property Interests: Trademarks  A trademark consists of words, symbols, colors, and/or designs, which identify and distinguish goods from those of a competitor.  Trademark infringement is established by showing (1) a protectable mark; and, (2) the likelihood of confusion. Michael S. Overing 2009

10. Trademarks Cont’d  Metatags and Initial Interest Confusion. Brookfield Comm., Inc. v. West Coast Entertainment (9 th Cir. 1999) 174 F.3d 1036.  Key Words. Playboy Enterprises, Inc. v. Netscape Communications, Inc. (CD Cal. 1999) 55 F.Supp.2d 1070 affirmed at 202 F.3d 278. Is a “playboy” or a “playmate” the same as “Playboy” or a “Playmate”? Michael S. Overing 2009

11. Trademarks Cont’d  Defenses Lack of Ownership of the mark Fair Use/Nominative Use. New Kids on the Block v. News America Publishing, Inc. (9 th Cir. 1992) 971 F.2d 302. Playboy Ent., Inc. v. Welles (SD Cal. 1998) 7 F. Supp.2d 1098. Aff’d in part (9 th Cir. 2002) 279 F.3d 796. Consumer Criticism: Ballysucks.com Michael S. Overing 2009

12. Copyright  Copyright law protects “expression,” but not underlying ideas  Copyright protection extends to original works of authorship that are “Fixed” in a tangible medium of expression. 17 USC 102(a). Loading data into ram is deemed to be sufficiently “fixed,” even though not stored. MAI Sys. Corp. v. Peak Computer, Inc. (9 th Cir. 1993) 991 F.2d 511. Michael S. Overing 2009

13. Copyright Cont’d  Copyright Gives the Owner a Monopoly to: Reproduce prepare derivative works Distribute copies Perform/Display the work publicly  Anyone who violates any of the exclusive rights of the copyright owner without authorization is liable as an infringer Michael S. Overing 2009

14. Copyright Cont’d  Remember: Any right that is not given, is retained by the creator.  Collective Works. New York Times Co., Inc. v. Tasini (2001) 533 U.S. 483. What do your releases say?  Contributory Liability: Knowledge + Material contribution  Vicarious Liability: Rt. To Supervise + $$ Michael S. Overing 2009

15. Copyright Cont’d  Fair Use Section 107 uses 4 factors: The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes The nature of the copyrighted work Amount/substantiality of the portion used in relation to the work as a whole The effect of the use on the market value for the copyrighted work Michael S. Overing 2009

16. Copyright Cont’d  Comments on Fair Use: Factors are interactive Educational, nonprofit use does not create a blanket fair use exemption Commercial use is much more likely to require permission Imaginative, unpublished work is more likely to require permission than factual, published work Using less is better than using more Michael S. Overing 2009

17. Linking Liability  Unfair Competition  Copyright Infringement  Trespass  DMCA Michael S. Overing 2009

18. Linking Liability Cont’d  False Designation of Origin – “passing off”  False Endorsement *#!*!General Motors.com  Defeats Web Revenue  Defeats Navigational Pane Michael S. Overing 2009

19. Linking Liability Cont’d  Framing. Wash. Post v.TotalNews, Inc. Case No. 97-1190 (settled); Shetland Times, Ltd. v. Wills (UK) (settled); Futuredontics v. Applied Anagramics (no harm shown) unpublished 9 th Cir. opn.  Kelly v. Arriba Soft (9 th Cir. 2003) 336 F.3d 811.(visual search engine: thumbs OK because no market for them). Michael S. Overing 2009

20. Publisher Liability & Tort Law  Defamation: A false statement of fact which injures a person’s reputation  Assume users of a web site defame someone, is the site liable?  Old law question: Is it a publisher or simply a distributor? Michael S. Overing 2009

21. Old Law  In dealing with defamation on the web, courts used to use the traditional distinction between publishers (editors) and pure pass-through distributors (like bookstores and newsstands)  Strict liability for publishers, “knew or should have known” liability for distributors Michael S. Overing 2009

22. Cubby v. CompuServe (1991)  On Compuserve’s “Rumorville” forum, they carried defamatory remarks about a competing site created by Cubby called “skuttlebut.” Cubby sued.  Court says, relevant liability standard is whether “CompuServe knew or had reason to know” of the alleged defamatory statements. Since it didn’t police the postings; no knowledge. Michael S. Overing 2009

23. Stratton Oakmont v. Prodigy(1995)  Posting on Prodigy’s “Money Talk” accused S.O. – a securities firm – of criminal and fraudulent acts.  Held: Prodigy held itself out to the public as controlling content on its site; And, used screening software to do it. It therefore made decisions as to content constituting editorial control -- A Publisher. Michael S. Overing 2009

24. CDA Section 230 (1996)  “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U. S. C. 230  No provider … shall be held liable on account of (a) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers obscene, lewd, lascivious, filthy, etc. Michael S. Overing 2009

25. Zeran v. AOL (1997)  After the Oklahoma bombing, an anonymous posting on an America Online bulletin board offered to sell “Oklahoma T-Shirts” bearing offensive slogans  Zeran’s home phone given as the contact  Zeran had no connection with the posting and his life became a nightmare  Under 230, no AOL liability Michael S. Overing 2009

26. Blumenthal v. Drudge (1998)  Drudgereport includes claim that White House aide Sidney Blumenthal had a history of beating his wife.  Drudgereport is distributed on AOL. AOL retains the right to control the content. After receiving notice from Blumenthal’s lawyers, Drudge retracted the story. After being sued, AOL claimed CDA Section 230 immunized them from suit.  Held: AOL and all publishers/distributors are immunized from such suits. Michael S. Overing 2009

27. CDA 230 Open Questions  Distinguishes between print media and web sites. What if a newspaper prints and posts same story?  What if an ISP knowingly and intentionally republishes defamatory material? Michael S. Overing 2009

28. Barrett v. Rosenthal California Supreme Court (2006)  The appellate court had held that CDA 230 “cannot be deemed to abrogate the common law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character.”  Supreme Court Reversed: “by its terms, Section 230 exempts Internet intermediaries from defamation liability for republication. Michael S. Overing 2009

29. Defamation: Motive for CDA 230  The motive for CDA 230 was to shield ISPs from liability that would inhibit the development of the web  The cost of CDA 230 is no meaningful recovery for those harmed by defamation  ISP record-keeping is a problem here  Similar treatment now for copyright infringement in DMCA  Note: CDA 230 does not immunize intellectual property infringement Michael S. Overing 2009

30. Quick Comparison with Copyright  Suppose A BBS contains material that infringes copyright  Old law used the doctrine of contributory infringement or vicarious liability: Where a defendant has knowledge of the primary infringer's activities, it is liable if it materially contributes to the infringing conduct. Michael S. Overing 2009

31. Digital Millennium Copyright Act (17 USC 512(k)(1) )  The DMC shields an ISP from liability for contributory infringement if it: accommodates copyright protection devices terminates repeat offenders  No need to monitor to catch infringement  The motive for 512 is similar to the motive for CDA 230. 512 responds to the fact that it is virtually impossible for a busy ISP to monitor for copyright infringement Michael S. Overing 2009

32. Playboy v. Frena (1993)  Frena ran a BBS. Users uploaded 170 Playboy pictures  Held, even though Frena had nothing to do with it, intent to infringe is not part of the copyright statute. Thus, an innocent infringer is still liable for infringement. Michael S. Overing 2009

33. Craigslist (2008)  Craigslist is sued in Chicago for posting ads that include: “NO MINORITIES,” “Requirements: Clean Godly Christian Male,” “Only Muslims apply,” Non-women of color NEED NOT APPLY,” etc.  Held: Craigslist is only an intermediary and is protected under CDA 230  But what about the Civil Rights Act? Michael S. Overing 2009

34. Fair Housing Act  Prohibits any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. 42 USC 3604(c). Michael S. Overing 2009

35. Roommates.com (2008)  Website designed to match people on criteria such as name, location, gender, sexual orientation, children, etc.  Held: Section 230 immunity does not extend to the information content provider. By creating the filtering system and asking the illegal questions they are not shielded from liability. Michael S. Overing 2009

36. Barnes v. Yahoo! (9 th Cir.2009)  Barnes’ former boyfriend posts nude pictures of her on Yahoo!  Barnes contacts Yahoo! demanding they take down the offending content. Yahoo! agrees, but takes no action.  Held: To the extent that the actions of Yahoo! are akin to speaker/publisher liability, CDA 230 will protect that; It may not protect a claim premised on a contract, including a contract to remove offending material. Removing (or failing to remove) offending content is what publishers do. Michael S. Overing 2009

37. Keys to Safe Harbor Protection  Reasonable Policy implemented that will result in termination of ISP services  ISP cannot have interfered with copyright protection  Transitory communications exception  Information location tools exception – no linking liability  Information placed at the direction of others; but only if: a) no actual or constructive knowledge of infringement; b) disables access upon learning of infringement; c) does not receive financial benefit directly related to the activity Michael S. Overing 2009

38. Jurisdictional Issues  Sliding scale Applies No Jdx for mere passive sites. Cybersell v. Cybersell Interactive site that advertises in forum site is sufficient. Park Inns, Int’l, Inc. v. Pacific Plaza Hotels, Inc. () 5 F.Supp. 762. Email Exchanges Might be Enough.  No Jurisdiction. Mink v. AAAA Development LLC (5th Cir. 1999) 190 F.3d 414.  Possible Jurisdiction. Hall v. LaRonde (1997) 56 Cal.App.4th 1342 (e-mail & telephone calls)  Jurisdiction Where Contract Involved Compuserve v. Patterson (6th Cir. 1996) 89 F.3d 1257. Michael S. Overing 2009

39. Jurisdiction & Defamation  Where did the defamation occur?  Where it was read?  Where it was hosted?  Where it harmed the reputation?  All of the above. Michael S. Overing 2009

40. Terms & Conditions/Forum Selection  Forum Selection Clause Enforceable. Graham Technology Solutions, Inc. v. Thinking Pictures, Inc. (N.D. Cal. 1997) 949 F.Supp. 1427.  Forum Selection Clause Unenforceable. Comb v. Paypal (2002) Clause requiring arbitration in Santa Clara for small dollar purchases unconscionable. Michael S. Overing 2009

41. Concluding Remarks  Many Rules Seem Unsettled  Online Content Never Goes Away  Use Terms & Conditions Provisions to Limit Liability  Purchase Insurance Michael S. Overing 2009