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.'"
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?)
Re:I'm confused... (Score:3, Informative)
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 towns along
or near the Connecticut River in Sullivan and Grafton Counties, including
Hanover, the home of Dartmouth College.]1 To create the profile, "
petra03755" entered a variety of information on her sexual proclivities into an on-line form
provided by the website. She also provided biographical data, such as her
birth date, height, build, and hair and eye color, and submitted a nude
photograph, purportedly of herself.
The plaintiff alleges she had nothing to do with creating the profile,
that she does not engage in the "promiscuous sexual lifestyle" or the "
perverse" sexual activities it describes, and that the photograph does not
depict her. Nevertheless, she claims that the biographical information
and photo "reasonably identified" her as "petra03755" to people in her
community. The plaintiff does not know the true identity of the user who
created the profile
So basically, someone created an account. This person is similar to the plaintiff, but not actually her. And she's suing because FriendFinder "allowed" someone to create that account. So if a 6'3", skinny, red-headed guy in the Los Angeles area creates a profile on their site, I can sue for invasion of my "intellectual-property rights" and violations to my "right of publicity,". Even if it's not actually ME???? Cha ching! Gonna go try to find someone on FriendFinder that bears a slight resemblance to myself.
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.
Personality Rights (Score:4, Informative)
Re:They don't. (Score:3, Informative)
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 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.
That's just what I got from the reading, the full article is a little light on details.
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)