Issue #27 :: Induce Consumers to Activism

Draft Legislation

* Sen. Orrin Hatch (R-UT) plans to introduce The INDUCE Act ("Inducement Devolves into Unlawful Child Exploitation Act") [pdf] granting copyright owners a cause of action against those who aid, abet or counsel others to infringe copyright. Professor Jessica Litman says that 'that under the Induce Act, products like ReplayTV, peer-to-peer networks and even the VCR could be outlawed because they can potentially be used to infringe copyrights. [c-net] It's also possible that some of the following could be used to violate copyrights and exploit children: iPods, Windows, copiers, computers, cameras and the shift key. (also thanks to Professor Susan Crawford for the legislative links)

* Rep. Rick Boucher (D-VA) is getting the support of some of tech's heavy hitters in his quest to rewrite part of the DMCA that says no one may bypass a copy-protection scheme or distribute any product that is "primarily designed or produced for the purpose of circumventing" copy protection. Boucher's bill, the Digital Media Consumers' Rights Act says that descrambling utilities can be distributed and copy protection can be circumvented as long as no copyright infringement is taking place. [c-net]

Required Reading: George Hotelling on the Poor State of Copyright Activism

Some Recent Caselaw

* The 1st Circuit has awarded attorney's fees and costs to defendants under the Copyright Act even though a majority of the legal work performed in the case had application to the state law claims as well as the copyright claim. see Invessys v. McGraw-Hill.

* Copyfight reports that "The First Circuit has issued an opinion discussing how to calculate statutory damages for copyright infringement. Venegas Hernandez v. Sonolux Records. Nos. 03-2014, 03-2015 (First Circuit June 7, 2004). 17 USC Section 504(c) states that a copyright owner can elect to recover statutory damages "For all infringements involved in the action, with respect to one work, for which any infringer is liable individually." The issue is whether that means you multiply the amount of statutory damages by the number of plaintiff's copyrighted songs involved in the suit (here, two songs) or the number of infringing works for which the defendant is liable (here, sixteen infringing albums which each included at least one of the plaintiffs' songs). Answer- the number of infringed works."

* In Luck's Music Library v. Ashcroft [PDF], the US DC for the District of Columbia upheld the ability of the government to restore copyright for foreign works that had entered the public domain in the US, but were still copyrighted in their home country. At issue was the constitutionality of Section 514 of the Uruguay Round Agreements Act, codified at 17 U.S.C. 104a.

* The single-publication rule applies to defamatory statements, which have a one-year statute of limitations, published on Internet Web sites. Traditional Cat Ass'n, Inc. v. Gilbreath, California Appellate, May 6, 2004.

* Law.com reports that sex e-mails to minors are not shielded by first amendment: "In a victory for child protection advocates and law enforcement, a state appeals court rejected a first-ever constitutional challenge to the Florida Computer Pornography and Child Exploitation Prevention Act of 1986." The unanimous ruling by the 1st District Court of Appeal in Tallahassee holds that the First Amendment to the U.S. Constitution does not protect e-mails intended to lure children into illegal sexual activity.

New Blogs: Chris Rush Cohen has a new blog on IP & cyberlaw issues, tech news, and NYC. Sanford Hausler operates Second Opinion re the 2nd Circuit Court of Appeals and its opinions. Underneath Their Robes, by an Article III Groupie, provides news, gossip, and colorful commentary about the federal judiciary.

slightly ot: Tony Pierce on blogging; MoFo introduces 25 lawyer video game practice

Libel & Blogs: Round-up

So Cal Lawyer really hates morons:

Some moron attorney who represents a moron client wants to bring a moronic lawsuit against Calblog for comments left by a third party at her blog. Read about the threatened lawsuit and then be sure to read the very comments at issue that have the moron and the moron's attorney up in arms. Please, please, please go read about these morons. Fortunately, other blogs have come to Calblog's aid.

The Next Litigation Battleground: Blog Comments by Pejman Yousefzadeh

47 USC 230

Volokh on 47 U.S.C. sec. 230

The Ninth Circuit (CA) has held (more or less) that under 47 U.S.C. sec. 230, discussion group moderators (and bloggers?) are immune from defamation liability for messages posted to their groups, if those messages were originally written by other people (whether group members or not) and then sent to the moderator to be forwarded to the group. This is true even if the moderators manually let those messages go through, or even if they manually posted them; and it's true even if the moderators are quite selective in deciding which messages to post. Under traditional defamation law, the moderators would be legally liable; but 47 U.S.C. sec. 230 limits online defamation liability in certain circumstances, and the Ninth Circuit held that this is one of those circumstances.

Actual Malice on Ninth Circuit Rules on CDA Immunity

The U.S. Court of Appeals for the Ninth Circuit has held, in a 2-1 vote, that the posting of an allegedly defamatory email message (written by a third party) by the moderator of a listerv and operator of a website may be covered by the federal immunity for liability by providers and users of interactive computer services for "information provided by another", as specified in the Communications Decency Act, 47 U.S.C. § 230. Batzel v. Smith, No. 01-56556 (9th Cir. June 24, 2003) [opinion here]

The case arose out of an e-mail message sent by "sometime-handyman" Robert Smith to the Museum Security Network, a nonprofit organization that maintains both a website and an electronic e-mailed newsletter about museum security and stolen art. Smith's e-mail related his experiences while working in the North Carolina home of attorney Ellen Batzel. In the e-mail Smith stated that Batzel had bragged that she was granddaughter of one of Hitler's right-hand men and he believed that she had stated she was a descendant of Heinrich Himmler. Smith called attention to the "hundreds of older European paintings on [Batzel's] walls, all with heavy carved wooden frames," which Batzel has allegedly told Smith she had inherited. Smith then stated, "I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people," and provided her address.

Smith's e-mail was received by Ton Cremers, "then-Director of Security at Amsterdam's famous Rijksmuseumand (in his spare time) sole operator of the Museum Security Network." Cremers, after making some minor changes to Smith's e-mail, then posted the message to the Museum Security Newtwork's listserv and on the Network's website. According to the Court's opinion, "the Network's website and listserv mailings are read by hundreds of museum security officials, insurance investigators, and law enforcement personnel around the world, who use the information in the Network posting to track down stolen art."

After discovering the message, Batzel brought suit against Smith, Cremers, the Netherlands Museum Association and Mosler, Inc., an advertiser on the Network's listserv and website.

Cremers filed two motions -- a motion to dismiss for lack of personal jurisdiction, which was denied, and a motion to dismiss based on California's Anti-SLAPP statute, which was also denied. The Ninth Circuit after deciding that it had jurisdiction to review the district court's denial of Cremers' anti-SLAPP motion addressed the issue of whether Cremers' actions were protected by the provisions of § 230 of the CDA.

The Court ultimately found that "a service provider or user is immune from liability under § 230(c)(1) when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other 'interactive computer service.'"

The "reasonable person" qualification arose out of the evidence that Smith claimed that he had no idea that his e-mail would be published by Cremers on the listserv and website. Thus, creating the issue of whether Smith's e-mail qualified as "information provided by another" under the statute.

The Court vacated the district court's order denying Cremers' anti-SLAPP motion and remanded the case to the district court "to develop the facts under this newly announced standard and to evaluate what Cremers should have reasonably concluded at the time he received Smith's e-mail." The Court continued:

If Cremers should have reasonably concluded, for example, that because Smith's e-mail arrived via a different e-mail address it was not provided to him for possible posting on the listserv, then Cremers cannot take advantage of the § 230(c) immunities. Under that circumstance, the posted information was not 'provided' by another 'information content provider' within the meaning of § 230. After making such an inquiry, the district court must then evaluate whether Batzel adequately has demonstrated a probability that she will prevail on the merits of her complaint under California's anti-SLAPP statute.

Dissenting from the test set out by the majority for the application of § 230 in this case, Judge Ronald M. Gould wrote:

The majority rule licenses professional rumor-mongers and gossip-hounds to spread false and hurtful information with impunity. So long as the defamatory information was written by a person who wanted the information to be spread on the Internet (in other words, a person with an axe to grind), the rumormonger's injurious conduct is beyond legal redress. Nothing in the CDA's text or legislative history suggests that Congress intended CDA immunity to extend so far. Nothing in the text, legislative history, or human experience would lead me to accept the notion that Congress in § 230 intended to immunize users or providers of interactive computer services who, by their discretionary decisions to spread particular communications, cause trickles of defamation to swell into rivers of harm.

The problems caused by the majority's rule all would vanish if we focused our inquiry not on the author's intent, but on the defendant's acts, as I believe Congress intended. We should hold that the CDA immunizes a defendant only when the defendant took no active role in selecting the questionable information for publication. If the defendant took an active role in selecting information for publication, the information is no longer "information provided by another" within the meaning of § 230. We should draw this conclusion from the statute's text and purposes.

This post by Howard Bashman has me questioning whether or not I'm liable if I repost libel on this blog.

The specter of libel suits: Mickey Kaus discusses libel and blogs in a Wonkette article -- "At some point someone's either going to win or lose a big libel suit, and it … will sort of chill the whole area."

The single-publication rule applies to defamatory statements published on Internet Web sites; the rule's one-year statute of limitations bars plaintiffs' defamation cause of action. Traditional Cat Ass'n, Inc. v. Gilbreath, California Appellate, May 6, 2004.

Online Publishing Risks Create Need for Libel Insurance: Whether you're a blogger, an independent magazine or a media giant -- if you're publishing online you should at least consider having coverage. Two media advisors offer this guide to libel insurance for online publishers... and see Law Offers Internet Publishers Scant Guidance on Libel.

Stuart Levine has been discussing defamation and blogging at Tax & Business Law Commentary.

John Maltbie finally gets around to giving his take on the Neutral Report Privilege.

Techdirt: Passing On Third Party Emails Officially Not Defamation

No Politics Are Local

In No Politics Are Local (NYT Mag, Apr. 18), Christopher Caldwell provides a more detailed analysis of the recent announcement that the DOJ will be launching a "prosecutorial assault on America's $10 billion pornography industry."

As readers of Adult Video News and the 2005 federal budget will be aware, Attorney General John Ashcroft is staffing up the Justice Department for a prosecutorial assault on America's $10 billion pornography industry ... While a local community can make its own rules, they say, prosecuting smut at the federal level is Orwellian overkill. But this localist view makes less sense in the Internet age ... One Ashcroft target is a company near Los Angeles whose films show simulated rapes and murders. You would think that would pass muster as obscene in any setting -- at least according to the Supreme Court's ''Miller test,'' which defines as obscenity anything that disgusts ''the average person, applying contemporary community standards.'' But Ashcroft isn't taking any chances. The Justice Department placed an order for the offending videos in Pittsburgh and will prosecute the company before a jury there. Now, suddenly, porn executives are changing their tune on localism. Pittsburgh is not the real community under which the Miller test should be enforced, they argue. The real community is the broader ''community'' of Internet users....

As well as broadening the discussion to local v. national politics and the role of the internet in McLuhan's global village.

update: Randy Dotinga (Wired) on the Legal Threats that Stalk Adult Sites

While Extreme Associates is based in Southern California, the U.S. attorney in Pittsburgh is prosecuting the obscenity case over Forced Entry and several other videos whose names livened up a court filing (PDF) but won't be repeated here. She has jurisdiction because prosecutors were able to order the videos by mail and download them over the Internet. Porn industry attorneys suspect that federal prosecutors decided to pursue the case in Pittsburgh because they think it's more likely to cough up conservative jurors.

see also: Reynolds and Jarvis on Misplaced Priorities | John Ashcroft portrait made up of tiny naked people | Reason article, Xtreme Measures, on Rob Zicari, the man, in Larry Flynt's words, responsible for bringing the heat on the porn industry. | PBS on Zicari | Cambria List

Judge Rules for Eminem in Rap Battle

Judge Lynch ruled that the publisher of The Source, Source Enterprises, had violated his injunction by publishing on its Web site (www.thesource.com) lyrics ascribed to Eminem. The lyrics, which disparage black women, are several years old, written before Eminem acquired his fame. The judge said their publication by The Source carried the potential to impair the credibility of Eminem, who is white. Eminem has acknowledged writing them but described them as a product of adolescent heartbreak.

[…] The magazine cast its publication of the lyrics as a journalistic exposé....

[Court] found that The Source was in civil contempt for publishing the lyrics on its Web site, where a lawyer for Shady Records found them.

NYT [via Furdlog]

Judge OKs 'Source' Excerpt Of Eminem Song (12/24/03) Last week, the same New York federal judge who granted Eminem an injunction against distribution of a previously unreleased recording that includes potentially racially charged lyrics such as 'black girls are dumb', will allow The Source to distribute limited excerpts (up to 20 seconds) of the material in its February issue which hits newsstands on Jan. 12 2004.

The judge stated that limited reproduction of the recording falls within the magazine's right to 'fair use' of copyrighted material for the purpose of criticism.

Eminem has said the recording was "foolishness" that he made as a teenager "out of anger, stupidity and frustration" after breaking up with a black girlfriend. [source: Billboard.com]