Important Court Decisions Chip Away At ISP Liability Shield

An anonymous reader writes "News.com is reporting on a pair of court cases that could prove very important to ISPs in coming years. They both subtly chip away at the legal shield service providers have enjoyed against liability for hosted content. Further court cases could result in a 'chilling effect' on social networks and hosting services, as small businesses steer clear of potentially contentious content. '[The judge's ruling] differed from previous opinions in one important area. He refused to dismiss Jane Doe's argument that FriendFinder's republication of her profile invaded her 'intellectual property rights' under New Hampshire law. She claimed to be concerned about violations to her 'right of publicity,' which says an individual generally has the right to control how his name, image, and likeness is used commercially--and the court ruled that Doe's argument fell into the category of intellectual property law.'"

What about the fact they are scanning the stream?

[LiquidCoooled (634315)]

How can they hide behind a shield of common carrier with one hand and then start scanning content with the other?

Its not just liability for hosted content, but downloaded content as well.
If they want to stop us downloading illicit music, they should prevent us from downloading ALL illegal material as well or else face the wrath of the parents.

They don't.

[SanityInAnarchy (655584)]

How can they hide behind a shield of common carrier...

I cannot find evidence of any ISPs being recognized as common carriers. There might be a few, but it's the exception, not the rule.

It would be nice, however, if ISPs strove for common carrier status.

Re:They don't.

[AKAImBatman (238306)]

I cannot find evidence of any ISPs being recognized as common carriers. There might be a few, but it's the exception, not the rule.

DCMA Section 202, Sub-Section 512, Paragraph (a) provides for common carrier status in all but name. Which I'm not really applies to this case. The summary (and article) are both somewhat confusing, but it sounds like the issue is a violation of Intellectual Property Rights by Friendster and Adult Friend Finder. They were using an image of "Jane Doe's" that they didn't have the rights to. The difficulty of the case is that Jane Doe also filed suit that her "rights of publicity" were being violated. Which is a far more nebulous concept than IP Rights.

Where things get really confusing, though, is that the article suggest that Jane Doe's "rights of publicity" arguments were denied. Instead, the judge is treating it as a pure IP violation case. Which seems only right and proper in my mind. Yet the article appears to be suggesting that this would set a rather negative precedent across the industry. Which makes very little sense to me.

Perhaps someone more in the know could shed some light on the exact problem? (Or if one even exists?)

Re:

[CorSci81 (1007499)]

From my reading of the article it seems someone posted a fake profile of Jane Doe and falsely alleged they had permission to use the photos. Many of these online sites explicitly request your permission to use the contents of your profile in their advertising. It seems what has happened is the judge has decided that the website is still potentially liable for using Jane Doe's photos in their advertising because they never had express permission from her, just whoever created the fake profile.

Where this c

Re:They don't.

[torstenvl (769732)]

The difficulty of the case is that Jane Doe also filed suit that her "rights of publicity" were being violated. Which is a far more nebulous concept than IP Rights.

No. Rights of publicity are intellectual property rights. [1][2][3]

Where things get really confusing, though, is that the article suggest that Jane Doe's "rights of publicity" arguments were denied.

No, the article explicitly says they werent. [4]

Instead, the judge is treating it as a pure IP violation case. Which seems only right and proper in my mind.

Yes, because publicity rights are intellectual property rights. [1][2][3]

Yet the article appears to be suggesting that this would set a rather negative precedent across the industry. Which makes very little sense to me. Perhaps someone more in the know could shed some light on the exact problem? (Or if one even exists?)

The author (and the OP) are just being sensationalist. The "immunity shield"[5] is inapplicable to intellectual property claims[6], and has been inapplicable to them since it was passed in 1996.

Nothing to see here, move along.

[1] ETW Corp. v. Jireh Publ'g, Inc., 332 F.3d 915, 928 (6th Cir. 2003)
[2] J. Thomas McCarthy, Melville B. Nimmer & the Rights of Publicity: A Tribute, 34 U.C.L.A. L.Rev. 1703, 1712 (1987)
[3] Black's Law Dictionary 368 (3rd pocket ed. 2006)
[4] Anne Broache, Courts chip away at Web sites' decade-old legal shield, C|Net News.com News Blog, April 8, 2008 at paragraph 9, available at http://www.news.com/8301-10784_3-9911501-7.html [news.com]
[5] 47 U.S.C. s 230(c)(1)
[6] 47 U.S.C. s 230(e)(2)

Yes and no

[esocid (946821)]

On one hand I agree that public information can be used, since it is in the public domain, but in a case where some company uses your name and likeness without your knowledge or permission is a real shitty move. However this doesn't look like the case. The profiles were made by other users, and were fake. All she had to do was contact those companies and report it, not take them to court. I have to side with those websites here because this sets a bad precedent that will bog the courts down even more with lawsuits.

Re:

[esocid (946821)]

As a side note, I recall when /. was forced to remove a comment [slashdot.org] that posted some Scientology documents. I thought that was a terrible thing to do, as a DMCA violation request, because it might pave the way for other people to strong arm negative things about them off of forums (kept wanting to type fora) and message boards. Thankfully I haven't witnessed anything like it here on /. since. Maybe this ruling will be appealed and be struck down. Here's hoping at least.

Re:

[value_added (719364)]

Well, the DMCA case is an example, but the article's focus is the increasing number of differnt kinds of court cases arising out of the conflict between the 1996 Telecommunications Act which offers broad immunity for web hosters, and other existing legislation that may have nothing to do with telecommunications but may be relevant, if not applicable.

The clearest example, I think, is one which doesn't center on "anonymous" content on blogs or similar sites, but the roommates.com case. There, the website was

Re:

[plague3106 (71849)]

I disagree with your view on the Roommates.com. They aren't a lender or directly involved in you finding a place to live. If I choose to take on a roommate, why should HAVE to consider on that is gay, if that would make me uncomfortable? Why should I have to consider a woman if that would make me uncomfortable?

Roommates.com isn't offering you housing; its a networking site, no different than putting an ad for a roommate in the paper. Are you saying that a single woman can't rule out living with a man wh

Re:

[computational super (740265)]

why should HAVE to consider on that is gay, if that would make me uncomfortable? Why should I have to consider a woman if that would make me uncomfortable?

Well, that is the law.

Re:

[plague3106 (71849)]

I'm sure that's not what the law intended; it was aimed at landlords and banks, not at someone looking for someone else to share living expenses. Unless you can show the law was specifically crafted to do just that.

Finally, if it was meant to do what you suggest, it's an unjust law, and as good citizens we should wholly ignore it.

Re:

[Actually, I do RTFA (1058596)]

If I choose to take on a roommate, why should HAVE to consider on that is gay, if that would make me uncomfortable?

The answer is, I believe you are allowed to discriminate when finding a roommate ( IANAL, ask one). However, a broker/housing site is not allowed to discriminate on your behalf.

The Fair Housing Act covers most housing. In some circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing

Re:

[z80kid (711852)]

My understanding of the fair housing act (from the Craigslist lawsuit) is that there is no limit to the criteria you can set for a roomate - which is defined as someone who is sharing common living space.

If the renter shares no common living space, then he/she/it is not a roomate and the arrangement is subject to applicable laws.

I'm not sure how roomate.com works though. If you can find renters there, then they may be subject to the law.

(Of course, I'm sure the fact that none of this is even remotely rel

Re:Yes and no

[bar-agent (698856)]

"If such questions are unlawful when posed face-to-face or by telephone, they don't magically become lawful when asked electronically online," Kozinski wrote. "The Communications Decency Act was not meant to create a lawless no man's land on the Internet."

Seems fair enough when put in that light. Unless you're looking for a hot black chick as a roommate, for example, and are prevented from finding one using the services of a website which is subject to a set or rules similar to what a landlord has to abide by.

The Fair Housing Act [usdoj.gov] does not apply to a property owner or renter who isn't in the business of renting out properties. However, if he is in that business, it is illegal for him for print discriminatory criteria in his listing, or to deny a rental on those criteria. But since roommates.com isn't a property owner, that section doesn't apply.

However, there is section 805, which says any property broker can't "discriminate against any person in making available such a transaction." This says to me that if a guy renting out a room has specified certain criteria (like being a hot black chick), the web-site itself can't automatically filter out white dudes, but the guy renting out the room certainly can if he isn't subject to the act.

That seems reasonable and fair. To roommates.com, I suggest dividing hits on a listing into two groups for the guy renting: the group which meets his criteria, and the group which doesn't. This would seem to be within both the spirit and letter of the act.

Re:

[bar-agent (698856)]

...and by "automatically filter out," I mean hide the listing from white dudes.

Cease and Desist Letters

[PhreakOfTime (588141)]

I was the recipient of a nice cease and desist letter that involved publicly available content that was posted on some about to expire domains.

Caton Commercial [willcounty...tcourt.com] was the company involved. The claim in the letter was that by publishing this already public, government information, that I was making knowingly slanderous statements. (Or possibly slanderous, depending on which sentence you read in the ill-formed letter). The cease and desist letter can be read here [demystify.info]

Which IP? Defamation != IP

[corsec67 (627446)]

Copyright? I have a copyright on my name? Can I sue anyone that violates that copyright? I thought you couldn't copyright a fact.

Trademark? I have a trademark on my name? I thought you had to register a trademark, and defend it. How that applies to a persons name, I don't know.

Patent? I have a patent on my name? What is there that could even be patented?

Defamation? That is probably the correct law they are breaking, but that has nothing whatsoever to do with any of the "IP" laws.

Just using "IP" confuses the issue, please stop using it. They are Copyright, Trademark, and Patent, and they vary greatly. Don't squish them together.

Or can I call the case of a computer the "CPU", and talk about the "storage" in my CPU?

Re:

[Delwin (599872)]

Or can I call the case of a computer the "CPU", and talk about the "storage" in my CPU?

As wrong as it is people actually do that.

Re:

[Timothy Brownawell (627747)]

Or can I call the case of a computer the "CPU", and talk about the "storage" in my CPU?

Well... inside that box is where all the processing happens, and it certainly *seems* central in that everything plugs into it and in that nothing works without it.

Re:

[Tenebrousedge (1226584)]

I don't know about you, but I don't have a CPU. I just have a room full of chinese guys that crunch numbers for me. Take that, John Searle!

Re:

[Jason Levine (196982)]

Copyright? I have a copyright on my name? Can I sue anyone that violates that copyright? I thought you couldn't copyright a fact.

Sure you can. Just try publishing baseball statistics without MLB chasing you down. ;-)

Seriously, though, if you can copyright a name, what happens if someone else has the same name? I know for a fact that I'm not the only "Jason Levine" in the USA. I'm not even the only "Jason Levine" in New York state. I might not even be the only "Jason Levine" in the city I live in. If I

Personality Rights

[Valdrax (32670)]

Personality rights fall into a nebulous border zone between privacy and intellectual property rights. Here's a good summary from the Wikipedia: [wikipedia.org]

Personality rights are generally considered to consist of two types of rights: the right to publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not represent one's personality publicly without permission.

Generally, these rules most resemble IP in the context of celebrity likenesses, etc. This segment of law is currently in a huge flux right now. States have wildly varying laws on the concept, and decisions on where the borders of such rights begin and end vary wildly between even states with materially similar laws on the books.

On the gripping hand...

[sconeu (64226)]

Every cloud has a silver lining...

If this ruling holds, start suing everyone who gives your info to marketers, on the grounds that they're violating your "Right to Publicity".

Re:

[corsec67 (627446)]

Hmm, actually that is a slightly different question.

My name, obviously, isn't corsec67. I wasn't born in a '67. I also don't think I am the only person on the internet to use "corsec67" as a handle.

Would I have any kind of standing to sue you for the "Corsec67 Cola"?

If you made a "Bob Cola", could any of the Bobs in the world sue you, and for what? If you made a "Bob Smith Sucks Cola" soda, could any Bob Smith sue you? What if your name is Bob Smith?

If a person had a name more than 150 years ago, is it now

Re:Which IP? Defamation != IP

[RingDev (879105)]

Now the next obvious question would be: would you sue if I made a cola called "/. ID 1235070 Cola" which was found to contain nicotine, bat urine, and was found after a couple of highly publicized trials to have allowed improperly disposed medical wastes into the mix?

If I make a product that can be absolutely linked to you (even falsely) and it's a good product, you probably wouldn't mind too much. But if I make a product linked to you that would drag your face through the mud, you might be a bit upset.

There is no patent or trade mark on your user ID. And I don't imagine the /. copyrights would prevent someone from using such a combination of digits. So this all comes down to publicity rights, not IP rights. Unless of course they used a picture of her, or quoted her words (I didn't RTFA).

Defamation would be harder to argue as she would actually have to prove damages.

-Rick

Re:

[corsec67 (627446)]

Interesting. I didn't know that. Makes sense, though. My point that they should have specified "Copyright" instead of the nebulous "IP" still stands.

But I think this would be slightly different. The assumption with a photo in a profile like that is that the person is the one IN the photograph, not necessarily the maker of the picture. I can take my own picture using a self-timer or a remote control [flickr.com], but I don't think that is a requirement with most sites, just that the person featured in the profile has a l

B(ase) S(tupidity)

[slimjim8094 (941042)]

Facts about somebody, or yourself, isn't intellectual property. Privacy, maybe - but there is too much 'IP' as it is, without making up new stuff to fit under it.

Your likeness isn't intellectual property - you didn't create it in your head. That said, this looks like the court's decision and not her case.

IANAL.

Re:

[plague3106 (71849)]

So any company can come along, splatter your likeness all over, make a ton of money, and not give you a dime? Why exactly is that ok? You can argue that their campaign would not have been as successful if they used someone else, and you could very well be right.

I'm confused...

[San-LC (1104027)]

From TFA:

"Jane Doe accused FriendFinder of causing her various sorts of harm by allowing "bogus" sexually explicit profiles that could be "reasonably identified" as portraying herself to be published without her knowledge by someone else to its Web properties, as well as in snippets in FriendFinder advertisements on search engines and other third-party Web sites."

So, from the wording, it sounds like she is suing because of the possibility of this happening, not the actual occurrence. Or am I just misreadi

Re:

[phalse phace (454635)]

So, from the wording, it sounds like she is suing because of the possibility of this happening, not the actual occurrence. Or am I just misreading the article?.....

You mean you actually read the article?

/. Rule #1: Never, ever, RTFA. That's like blasphemy.

Re:

[esocid (946821)]

I think she was implying that the pictures may not be 100% identical to her likeness, but are an approximate depiction of her likeness which sounds pretty absurd. "Hey, this white woman with brown hair looks reasonably like her."
That's what it sounds like to me, but it may be legal jargon.

Re:

[sYkSh0n3 (722238)]

I actually believe what it is saying is that there was a sexually explicit profile(s) created that included her picture which inferred that they were actually HER profiles when they weren't.

Like if i made a myspace page (god, help me) that talked about what a lunatic i was, and then used a picture of you as the display pic. It could reasonably be believed that you were the one who was nuts.

Re:

[truthsearch (249536)]

Does this entail those stupid IP-grabber ads on websites that show pictures with "Meet 20 year olds from (LOCATION BY IP)" above them?

It sounds like it wouldn't unless they contained pictures of you in a bikini. My guess is those girls are paid, so as contractors they're not individuals being misrepresented.

Re:

[plague3106 (71849)]

Well, if they are paid, and they are not members, wouldn't you say there's a case for false advertising? Especially if they give the name of the profile, which they do, IIRC.

Re:

[truthsearch (249536)]

Oh it's definitely false advertising. I've never seen those women in my small neighborhood!

But it's not an IP issue if they're legally considered "models".

Re:

[plague3106 (71849)]

Right.. but the plantiff in this case isn't a model, so I think her argument that they used her likeness (looks & demo information) to their commericial advantage invokes IP issues.

Re:

[jtroutman (121577)]

That's exactly what this is about. The actual court doc was linked in the article, here's a clip from it:

In June 2005, a profile of a female member under the screen name "
petra03755" was created on the AdultFriendFinder site. The profile
identified the member as a recently separated 40-year old woman in the
Upper Valley region of New Hampshire who was seeking "Men or Women for
Erotic Chat/E-mail/Phone Fantasies and Discreet Relationship."[ 1 The
Upper Valley region of New Hampshire encompasses a number of town

Re:

[plague3106 (71849)]

You're not from New England are you? It sounds to me like the details were specific enough that people in her community DID think it was her. It also sounds like the photo, while not her, is pretty damn close. Given the photo, and the fact that the demo details DO match, I can see her point.

Sites should not be allowed to allow others to create profiles for them. It is damaging. Further, it sounds like FF took that fake profile and used it as advertising. Have you ever seen those adverts, they list the

Re:

[jtroutman (121577)]

There's nothing in the article to indicate that this is a "fake profile". This doesn't sound like a case of "hey, let's screw with Doris, it'll be a gas." but rather like some woman out there, who bears a passing (or even strong) resemblance to to the plaintiff, created a profile on FriendFinder. That person didn't claim to be "Doris", she merely has some similar characteristics. If people in her community think it's "Doris Doe", rather than the person who created it, I don't see how that's FriendFinder'

This is actually good for privacy..

[Dr_Marvin_Monroe (550052)]

I don't think this is as bad for ISP's as it's portrayed. These rulings strengthen the individual's ability to control their information, I applaud this! There are simply too many folks trading in my personal information without my consent. While it may seem chilling to shrink the ISP's shield immunity, it's really about leveling the playing field as far as Copyright and IP goes. I don't think the ISP's really had that big a shield to hide behind anyway, the only reason they're not getting sued by the RIAA/MPAA is because they're really the same company. In addition, they've shown that they'll roll-over for just about any junior lawyer wannabe that sends them a writ on some toilet-paper. Want a search warrent? No problem... You're sending over a "take-down" notice? Sure, we'll do that without even investigating....

With such a ruling, an individual could sue to stop all of the "information scrapers" that collect and associate telephone numbers with credit card and demographic information. Wanna see what I mean? Try http://www.intelius.com/ [intelius.com] These folks assemble information about you and publish these results by collecting bits from your credit card transactions, legal documents, renter's records, any place they can get their hands on. By upholding your right to control this information, through the "publicity" angle, they're giving you economic control over your information! This is good, anything that allows you to control how your private, copyrighted personal information is spread is good for you.

If anyone's going to trade information about me (i.e. what shows I watch, what books I read, what demographic group I belong to, etc.) I want to make money off it too. I demand my cut, just like the RIAA/MPAA demands their cut.

She is suing the web site not her ISP!

[denis-The-menace (471988)]

Both the Article and post have it wrong.
She is suing the web site operators not her/their ISP!

If these cases do affect ISPs then:
-You can sue AT&T/Verison when you get scammed over the phone.
-You can sue the state who provided the road that you had an accident on, even if it was the another car's fault.

It would never end.

And then comes EU...

[mi (197448)]

Just yesterday, we were informed [slashdot.org], that it may be illegal for Europeans to even use GMail, because that's exporting data "to a country that does not meet European standards for personal data protection".

What seems like a "big win for consumers" usually chills business — including (or especially) the small business — the kind without on-staff lawyers and lobbyists.

For example, I run my own mail-server — is it illegal for Europeans to contact me, because I can not (and would not) spend any time evaluating my data-protection standards for some bureaucrat?

The bigger point here is that all regulation is a headache, but public opinion, politicians, and "media" (Slashdot editors and users included) portray some regulation (which they approve of) favorably, while decrying the negative effects of the rest (without mentioning its benefits).

Chills businesses huh?

[hellfire (86129)]

What seems like a "big win for consumers" usually chills business

Yes, please, pardon me for not allowing any business to use my private information to make as much money off my name despite what happen to my personal privacy, property, or well being. Broadcast my personal info all over the net because we can't stop companies from making money, now can we?

Businesses need to be regulated, popular opinion isn't always enough. Companies care about security because there are stiff fines and consequences if the

Re:

[Actually, I do RTFA (1058596)]

What seems like a "big win for consumers" usually chills business including (or especially) the small business the kind without on-staff lawyers and lobbyists.

You're absolutely correct. Poor small companies like Google and the parent company of AdultFriendFinder.com cannot defend themselves against the big, mean, government.

Oh the dichotomy...

[Notquitecajun (1073646)]

But I thought information wanted to be FREE??

Not just in ISP.

[jellomizer (103300)]

There are more laws that seem to punish people for trying to makes peoples lives easer. This case seems simular to the fact that some states Punish the Land Lord of a property if they rent housing to an Illegal Imagrant (On a side note there are also laws that prevent land lords from discrimating applicants based on Race, Ethnicy, Religion. There are sting operations where people call with forgen accents and ask if the place is still available, then call again with an american accent and see if there are di

Re:

[Actually, I do RTFA (1058596)]

. Yet goverment seems to put a Small 5 man operation in the same boat legially as a 100,000 man operation.

This statement is false, demonstrably so. It's a straw man. For instance, the cut-off point before you have to worry about discrimination lawsuits in hiring is, I believe, 11 employees. There are numerous governemnt advantages given to companies based on having a small workforce. There are different standards based on revenue and corporation type as well.

This meme is just like the 'family farm' in

Summary Is Alarming & Misguided

[mpapet (761907)]

I know this is slashdot, but the summary and article don't go into enough detail to determine what's going on. (surprised?)

Furthermore, this important fact is buried in the article, "..as well as in snippets in FriendFinder advertisements on search engines and other third-party Web sites"

Which I interpreted as her fake profile was used for FriendFinder ads. That is, in principal, not right and legally puts FriendFinder in the wrong on this one despite a likely drive-by EULA.

The article also states that the

Mod parent up

[Animats (122034)]

Mod parent up.

First, this isn't even a final court decision; it's just some preliminary motion practice, during which the claims are narrowed.

Second, Friendfinder went way beyond being a passive conduit as envisioned by the CDA. They took postings made by their customers (presumably ones of the hotter members) and apparently copied them into paid ads placed elsewhere. That's commercial exploitation.

Incidentally, there's no EULA issue because the plaintiff isn't a Friendfinder customer. Someone else

When I use a word, it means what I want it to mean

[LMacG (118321)]

new.com headline - "Courts chip away at Web sites' decade-old legal shield"

/. headline - "[...]Chips Away at ISP Liability Shield"

When did we start calling any random web site an ISP [wikipedia.org]? (N.B. that's one of the suckier wikipedia articles, but it serves the purpose)

One of the judges quoted in TFA does use the term "Internet service provider" but then goes on to refer to "interactive service providers", so I don't really think she was using ISP like the average /.-er would.