Domingo Rivera Cyber Lawyer Blog
Over the past several years, copyright owners across the nation, even those such as Plaintiff, who is yet to receive a copyright registration for its hardcore pornography, have attempted to take advantage of federal joinder rules in order to sue numerous John Doe defendants within a single complaint. These complaints are for copyright infringement via the Internet, and the complaints generally allege the use of peer-to-peer programs such as BitTorrent to download and/or upload copyrighted works. Some of these cases attempt to join defendants by the dozens, but many extend to hundreds and even thousands of unnamed defendants. See infra. Some courts have opined that the rationale for the joinder of multiple defendants in these copyright cases is an attempt by plaintiffs to “identify hundreds of Doe defendants through pre- service discovery and facilitate mass settlement.” See, for example, On the Cheap, LLC v. Does 1-5011, Case No. C10-4472, *11 (Zimmerman, M.J.) (N.D. Cal. Sept 6, 2011) (quoting IO Group, Inc. v. Does 1-435, 2011 U.S. Dist. LEXIS 14123, *9 (N.D. Cal. Feb. 3, 2011)).
Doe Defendant notes that this is not Plaintiff's first mass-defendant copyright infringement lawsuit. For example, a similar copyright infringement suit regarding a different pornographic video was filed by Plaintiff in the Northern District of West Virginia against 281 John Doe defendants. In that case, all John Doe defendants except for John Doe 1 were severed on the basis of misjoinder, and subpoenas for the identities of the severed defendants were quashed. See Patrick Collins, Inc. v. Does 1-281, Case No. 3:10-cv-00091, *3-4 (Bailey, J.) (N.D. W.V. Dec 16, 2010). It appears that after failing in West Virginia, Plaintiff now asserts similar claims before this Court....Under the Federal Rules of Civil Procedure, joinder of defendants is appropriate where two factors are met: 1) “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and 2) “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). If it is clear that misjoinder has occurred, then Fed. R. Civ. P. 21 permits a court, by a party’s motion or sua sponte, to drop parties or to sever claims. “On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.” Fed. R. Civ. P. 21.
The question is, are these reviews copyrightable material. If they are, the author grants a license to publish these materials to the website and can generally revoke this license. What happens if the original author demands removal of the review? Can the website refuse to do so without incurring potential liability for copyright infringement ? The answer depends on whether these reviews are copyrightable in the first place and involves an Internet law question. In my opinion, they are. You do not need to be John Grisham to copyright your writings.
According to the notes of committee on the Judiciary (1976) for 17 U.S.C. § 102, “[t]he phrase 'original works of authorship,' which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts under the present copyright statute. This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.” Additionally, regarding the nature of copyright, the notes further state that “[c]opyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary, musical, graphic, or artistic form in which the author expressed intellectual concepts” (emphasis added).
It is well-established that facts cannot be copyrighted. Rather, the United States Supreme Court has held that “[t]he copyright is limited to those aspects of the work—termed 'expression'—that display the stamp of the author's originality.” Harper Row, Publishers Inc v. Nation Enterprises, 471 U.S. 539, 547, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). However, “[c]reation of a nonfiction work, even a compilation of pure fact, entails originality.” Id.
It has been quite a while since my previous post. I have been extremely busy assisting my clients with Internet legal matters. Internet defamation continues to affect the reputation ofbusinesses and professionals as former customers, patients, and others who knowthat they do not have valid legal claims assert their false and frivolouscomplaints in blogs, forums and smear sites. Even competitors are now posing as unsatisfied consumers in order to post false and defamatory statementswith hopes to gain an unwarranted economic advantage. Everyday we protectthe reputation of businesses and professionals against these unlawfulpractices.With the elections over, it is now time to get back to business as normal. Speakingof the elections and politicians, many do not know that they can thank Congress for thecontinued proliferation of Internet defamation. The name of the culprit law is Section 230 of the Communications Decency Act. The purpose of this law was to allow Internet service providers to be able to alter or remove objectionable content without assuming the liability associated with a traditional publisher of content. Congress sought to allow providers of interactive computer services to perform some editing on user-generated content without becoming liable for all defamatory or otherwise unlawful messages that they didn’t edit or delete. In other words, Congress sought to immunize the removal of user generated content, not the creation of content.
Sections 230(c)(1) and 230(e)(3) provide that "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," and that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Noble intentions behind this Congressional law, but not-so good intention behind "Internet street law" which could be read as saying "service provider, you can stand by while your services are used to ruin the reputation of good businesses and people, don't worry, we will not hold you liable."
This has given rise to many consumer complaints websites. While some of these are well-intentioned and responsible, the majority are not. The lawlessness has now sparked many websites charging fees for "investigating" consumer complaints. Some of these websites have their employees call their targets and offer to help with the defamatory postings... for a membership fee, of course. Some of these websites have been known to have their employees actually create the postings in an "anonymous" manner.
Cease and Desist Letters: Balancing the Punishment for Bad Faith Against the Punishment for Bad Letters
Internet Bloggers Beware: Ohio Court Lands Another Blow Against Those Engaging in Internet Defamation
I recently commented on the impact of the U.S. Court of Appeals for the Ninth Circuit Court of Appeals’ decision limiting the protections afforded to service providers under the Communications Decency Act. In that case, the court refused to provide immunity to website owners who encourage unlawful or defamatory statements. Less than a month later, the Ohio Court of Appeals also refused to protect the “interests” of bloggers and others who engage in online defamatory statements. The Ninth Circuit’s message was that if you encourage unlawful conduct, the CDA will not provide you with unwarranted solace. The Ohio Court of Appeals message is that if you post defamatory statements online, you may be sued in a State where the other party’s reputation is damaged.
In Kauffman Racing Equipment v. Roberts, a Virginia resident, Mr. Roberts, purchased an engine block on the Internet. Mr. Roberts was dissatisfied with his purchase and decided to express his dissatisfaction by posting a number of statements on various Internet websites. Kauffman Racing, a company with its main place of business in Ohio, filed a lawsuit in Ohio. Mr. Roberts moved to dismiss alleging that Ohio did not have personal jurisdiction over him. The Ohio Court of Appeals disagreed.
In applying Ohio’s long-arm statute as well as Constitutional principles, the Court held that Ohio’s long arm statute applied and that, as a result of the postings, exercising jurisdiction over Roberts established the necessary “minimum contacts” under the jurisdiction. The implications of this ruling are far reaching.
Let’s say, for example, that a blogger posts defamatory comments about an individual. An implication that the individual has engaged in misconduct, such as perjury (even if the statement is qualified by the word “allegedly”) would qualify. Let’s further assume that the defamed individual is applying for a position with a college in Virginia. Under the Kauffman Court’s reasoning, the defamed individual may sue the blogger in Virginia. This applies even if the blogger lives in the West Coast and has no intentions of ever visiting Virginia. The blogger is now exposed to liability in the Federal District Court for the Eastern District of Virginia, aka the “rocket docket,” where litigation is intense, bloggers are not particularly appreciated, and jury awards can be devastating. So go ahead, blog and defame others… at your own risk.
Internet Defamation Law - Website owners and bloggers beware - The latest interpretation of Section 230 of the Communications Decency Act
Under U.S. copyright laws, the developer of a website owns the intellectual property and copyrightable elements of the website. The copyrightable elements of a website include the text, graphics, scripts, code, and the “look and feel.” Unless there is a contract to the contrary, the website developer’s client only obtains a non-exclusive license to utilize the intellectual property that it paid to develop. Even the copyright notice on the client’s website applies only to the contents that were developed by the client and not to the contents that were created by the developer.
This means that under the default scenario, your business’ website developer can create a very similar website for your competitors. Furthermore, at the end of your business’ relationship with the website developer, the website developer can also demand that you stop using its intellectual property and copyrightable contents. If you refuse, you may find yourself as the defendant in a copyright infringement lawsuit. Even worse, your website developer may refuse to facilitate your business’ transition to a new developer. If your business depends on its website, it may never recover from this website hijacking scheme commonly applied by some unscrupulous website developers.
You should be aware of the risks associated with the absence of a carefully drafted website development agreement and should consult with an Internet Attorney before hiring others to develop your website.Cyber Lawyer, Domingo J. Rivera, is an attorney specialized in Internet Law, handling cases throughout the United States.