Important Court Decisions Chip Away At ISP Liability Shield 103
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.'"
Wow (Score:1)
This Is Bad. (Score:2)
What about the fact they are scanning the stream? (Score:4, Interesting)
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. (Score:2)
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. (Score:4, Informative)
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?)
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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
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Where this could become troubling for the industry is the need to verify beyond a doubt that every user is really who they say they are before using the contents of their profiles in advertising. It seems while they wouldn't be liable for defamation as a result of the fake profile, they can still get in trouble for using a person's likeness in their advertising if it came from a bogus profile.
Well, it becomes troubling for some of the industry, namely those cheapskates that profit from taking content that their users provided for free and using it to generate profit.
Often, (like FF and AFF), the users are actually paying a fee to the site, and posting content. Buried in the EULA is a provision that basically requires the users to provide a royalty-free, perpetual, worldwide, non-exclusive license to their content for any use whatsoever (at least they don't ask for an exclusive license, altho
Re:They don't. (Score:5, Informative)
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)
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It does nothing of the kind, unless if by "all but name" you really mean "that it limits the liability of copyright infringement for service providers without any of the pesky regulations otherwise imposed on common carriers." ISPs derive their protections against liability of customer content from the CDA [wikipedia.org] and (as you point out) the DMCA. However, ISPs are not subject to mandatory regulation under Title II
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Do you mean the DMCA? If so, I beg to differ...
According to the DMCA, SEC. 403, paragraph (b), item 2, word 1 ... "the".
Yes and no (Score:4, Interesting)
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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
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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
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Well, that is the law.
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Finally, if it was meant to do what you suggest, it's an unjust law, and as good citizens we should wholly ignore it.
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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.
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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
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Exactly. You cannot put an ad in a paper saying "only hot black chicks can be my roommate". You can, legally, only allow hot black chicks to be your roommate (so long as there are 4 or less rental spaces, and you live in one of them). But the advertising cannot state this caveat.
The only exception seems to be if you share part of an apartment (including a kitchen or bathroom), yo
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Yes, you can still discriminate if there are less than four rental units (rooms/beds/whatever) and you are living in one of them. That's precisely to allow the "I should be able to live with whoever I choose" attitude. However, you cannot when acting as a landlord for an apartment complex/as a landlord when you don't live there/making housing loans/etc.
There is
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As for the confusion aspect, it's very simple. If you're a landlord, you can't discriminate. If you're sharing rent and expenses, you can.
Re:Yes and no (Score:4, Informative)
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.
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Cease and Desist Letters (Score:2)
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]
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Now the for profit ones are using the end users to create a profit and when they fail to take due care to ensure the validity of the information because it costs to much and will limit profit margins and prevent billion dollar returns, then they should basically have to pay the full penalty fo
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Sites like AFF tend to think in terms of "our content is protected by copyright, but your content is ours". These guys will do anything they want with the stuff posted to their site, based on that nice wordy bit of
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It is a perverse and extreme lie when you try to lump not for profit sites with for profit sites, and the only reason to do so is to h
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We're on a for-profit site right now, and I wouldn't equate the behavior of the site operators here with that of the AFF folks. I can think of a lot of non-profits that treat their users a lot worse than some for-profit sit
Which IP? Defamation != IP (Score:5, Insightful)
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?
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It's liquid awesome in a nifty and vibrantly colored can! The energy drink for nerds, by nerds.
Please don't sue me.
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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
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Re:Which IP? Defamation != IP (Score:4, Insightful)
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
Defamation would be harder to argue as she would actually have to prove damages.
-Rick
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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
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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 license to use the picture.
You're right - "IP" needs to disappear from the lexicon - it's confusing the issue.
But I think the deal with using another person's name and likeness for profit falls more under the trademark rules. There's no explicit right that protects your likeness from being used for publicity, but there is a lot of case law surrounding it, and I believe there are some states (no doubt California is one) that protect the "publicity" rights of individuals.
It's strictly related to profit, though. If I post a pictu
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Your wasting your time on this. The "IP" nonsense came along with WIPO and appeals to those who gain from equating civil infringement with criminal theft. Laymen who use the term are just demonstrating their malleability.
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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 (Score:4, Informative)
On the gripping hand... (Score:2)
If this ruling holds, start suing everyone who gives your info to marketers, on the grounds that they're violating your "Right to Publicity".
B(ase) S(tupidity) (Score:2)
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.
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I'm not saying she should just take it and shut up - not at all. I am saying that the judge was a dumbass for calling it Intellectual Property. A likeness of a physical person isn't thought up, it is. And it's not property.
Law already handles the issue of using a picture without permission. Again, see photo release.
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I'm confused... (Score:2, Interesting)
"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
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You mean you actually read the article?
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That's what it sounds like to me, but it may be legal jargon.
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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.
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But it's not an IP issue if they're legally considered "models".
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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
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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
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It may also be the photo is actually "Doris," but that wouldn't give and ex the right to create a profile for her.
Finally, your discussion on celebertie
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I do not believe, though that "someone that looks very similar to you, and has the same weight, height, hair color, body build and face, in the same zip code, is remote." It would really depend on what "Doris" looks like. If she's a 5'4
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It's interesting that FF hasn't said "no, that ad is real and be
This is actually good for privacy.. (Score:5, Insightful)
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! (Score:2)
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.
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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.
Screw the cut. How about cease and desist and takedown notices to the likes of doubleclick and Google along with $150,000 per infringement fines for using your personal "imaginary property" private data without express permission, notification, or consent. This is nothing less than illegal trafficking, copying, and reselling of the information data of others. And it's possible that collecting is also in violation of the DMCA in so far as it circumvents fire walls and installs programs on the user's machine
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I'd like to sue all of these folks for infringement, and keep doing this until business interest
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I've always been careful to flag my accounts with "don't share with 3rd-party" or even other "business units" (which may be sold off later), but still, you can't control what the big 3 credit bureaus have, unless it is inaccurate.
If y
And then comes EU... (Score:3, Interesting)
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? (Score:2)
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
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Identify theft itself costs a company nothing since it's the consumer getting shafted in the end.
This need to be addressed and changed so that businesses are responsible and liable for committing or being complicit accessories to fraud and extortion against consumers. It's the business who was ripped off, who is trying to artificially hold an uninvolved innocent third party responsible for its lax security standards. You think any bank is going to just say "oh well" if somebody sells a forged deed for their physical building to a duped buyer? Yeah, I'm going to demand their bonds be lowered from aaa t
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You're absolutely correct. Poor small companies like Google and the parent company of AdultFriendFinder.com cannot defend themselves against the big, mean, government.
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Some laws explicitly exclude companies with profits (or number of employees) below a certain level to allow small businesses to avoid some of the burdens.
Most laws, unfortunately, don't distinguish. What is intended to limit Google or AFF, ends up chilling everybody — including most small businesses, who never planned to abuse the customers' data in the first place, but now have to comply (and — worse — mai
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Using GMail to send somebody data about yourself: legal
Using GMail to send somebody somebody ELSES personal data: possibly illegal
Essentially what it means is that if you run a company within Europe which deals with data that can be used to personally identify people, then it may be illegal to send that data through a GMail account. Now I guess this could have much more severe implications than one may first realize. A
We need an actual privacy / personal info right (Score:1)
Oh the dichotomy... (Score:2)
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As soon as we eliminate all imaginary property laws, we eliminate all privacy laws. (It's epistemologically impossible for privacy to exist anyway, just as it's epistemologically impossible for imaginary property to exist). And we strap mandatory 24/7 audio/visual surveillance on all government officials (that should be the price for daring to govern). Now we can directly first hand listen to all the conversations between lobbyists and elected or appointed political officials. Such privacy for meeti
Intellectual property law (Score:1)
Not just in ISP. (Score:2)
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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
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Well, I agree that penalties should adjust automatically for company size (for instance, frame them in percents of gross income.) But I thought, for the most part, the penalities were autoadjusting. If by no other way, then a large factory will get more instances of OSHA violations than small ones, if the violations per sq. ft. are the same.
Summary Is Alarming & Misguided (Score:2)
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 (Score:2)
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 (Score:2)
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
The rulings are unrelated. (Score:1)
Solution for ISP's (Score:1)
Just a thought
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Of course, it's also true that ISPs in the US are undermining their common carrier status every time they chip away at net neutrality.
The end result, by current trends, will be a severe curtailment of speech online, and the USA will be no more free than China. I don't think that will happen, the pendulum should swing back, but it's a real risk.
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In s
Footnote 15 of the Roommates.com decision (Score:1)
Problems with the CDA (Score:1)