Earlier today I spoke on the topic of YouTube and copyright at a conference on intellectual property law at Chicago’s John Marshall Law School. Here are my materials available for download: [handout materials] and [PowerPoint slides]. For convenience, I’ve converted both of the files to PDF.

MySpace has successfully defended itself in a negligence suit arising from the assault of a minor girl by a 19-year-old man she met on the site. Invoking the immunity provisions of the Communications Decency Act at 47 U.S.C. §230, the U.S. District Court for the Western District of Texas held that the suit must be dismissed, as the plaintiffs sought to hold MySpace liable as a publisher of third-party content.

Julie Doe, the anonymous minor plaintiff, lied about her age (saying she was 18 when in fact she was only 13) when she signed up for a MySpace account. Later she met a 19-year-old man on the site, and the two started talking by telephone. They met-up in person, and Doe was assaulted.

Julie and her mother sued MySpace, claiming that it failed to take adequate precautions to protect Julie from the attack. MySpace raised 47 U.S.C. §230 as a defense in its motion to dismiss. That section provides, in relevant part, that “[n]o 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.”

As so many courts have done before, the court in this case adopted the rationale of the watershed Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). Zeran held that “[b]y its plain language, Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”

The plaintiffs had asserted that their case was based not on MySpace’s posting of third-party content, but rather on MySpace’s failure to institute safety measures to protect minors. The court rejected this “disingenuous” argument:

It is quite obvious that the underlying basis of Plaintiffs’ claims is that, through posting on MySpace, [the assailant] and Julie Doe met and exchanged personal information which eventually led to an in-person meeting and the sexual assault of Julie Doe…. No matter how artfully Plaintiffs seek to plead their claims, the Court views Plaintiffs’ claims as directed toward MySpace in its publishing, editorial, and/or screening capacities.

The court found additional grounds to dismiss the negligence claim in that MySpace had no duty to prevent the assault from occurring. Citing to Texas law, the court observed that “[a]s a general rule, a person has no legal duty to protect another from the criminal acts of a third person or control the conduct of another.”

Further, the court rejected the plaintiffs’ argument that it was foreseeable minors could be injured by the criminal acts of adult MySpace users:

To impose a duty under these circumstances for MySpace to confirm or determine the age of each applicant, with liability resulting from negligence in performing or not performing that duty, would of course stop MySpace’s business in its tracks and close this avenue of communication, which Congress in its wisdom has decided to protect.

With this holding, the court declined to accept Plaintiffs’ argument that the duty of a premises owner should extend to a website as a “virtual premises.”

Doe v. MySpace, Inc., No. 06-983 (W.D. Tex. Feb. 13, 2007)

I’m quite excited to have become the Legal Correspondent for the Internet television show Viral which is produced by Veoh Networks. The second season is underway with Episode 9, which is embedded in this post. (You must have Flash installed.) In this episode, I simply introduce myself and talk about what’s to come in the next few episodes law-wise.

I know, I know — there’s plenty of room for improvement. I did the filming myself, so the audio needs some help [but Kris has agreed to help with that] and I’ve got to figure out the lighting. But it’s going to be a lot of fun. Stay tuned.

[Subscribe to the Viral RSS feed.]

On February 23, I’m speaking at a seminar hosted by the John Marshall Law School here in Chicago on the topic of copyright law and online video sharing sites (like YouTube). [More info on this seminar]

There is a lot going on with these kinds of sites lately, and it’s hard to keep up with all the developments. But I’d like to give a presentation that is up-to-date and thorough. And I’m asking for your help with that.

If you’re a del.icio.us user, from now until February 23, if you come across any interesting news story or blog post about YouTube, Revver, Grouper, Veoh, or any other video sharing site, would you kindly tag it with “icyoutube“? (The ic stands for Internet Cases.)

And by the way, if don’t use del.icio.us, why on earth not? For more information, read this classic exposition on the virtues of the king of all social bookmarking sites.

This collaboration thing could be pretty useful. Thanks for your help.

If you’ve been reading this weblog for any time at all, you’ll know that it’s unusual for me to depart too far from topics dealing purely with the law. But the soul of “Internet law,” at least for now, is comprised in large part of the principles underlying Web 2.0. With that notion comes the challenge of how to deal with an Internet that is increasingly collaborative. Denise Howell directed me to the video embedded below, which was created by Michael Wesch, an obviously insightful professor of anthropology at Kansas State University. It’s an entertaining little video that explores the technological underpinnings of the modern Internet and leaves us with some poignant questions about how as a civilized society we need to deal with issues like copyright, governance, privacy, family, and ourselves.

[If you're viewing this post in an RSS reader and the video doesn't show up, click through so that you can see it.]

Wonkette now a defendant in Steinbuch v. Cutler.

Steinbuch v. Cutler, pending in the U.S. District Court for the District of Columbia, has gotten quite a bit of attention since it was filed last year because of its inside-the-Beltway context and the sordid nature of the facts. The case just got a bit weightier, as the court has allowed the well-known blogger Ana Marie Cox, a/k/a Wonkette, to be added as a defendant.

The case could be an example of linker beware.

In May of 2004, defendant Jessica Cutler, who at the time was a staff assistant to U.S. Senator Mike DeWine, posted entries to her personal blog detailing her escapades “with various men, including plaintiff Robert Steinbuch.” Cutler’s blog entries may not have gotten much attention had they not been picked up by Wonkette. When Wonkette linked to Cutler’s blog, it became “circulated to a wide audience.”

Apparently embarrassed by the publicity generated by the blog, Steinbuch sued Cutler, asserting various causes of action. The case has already survived two motions to dismiss.

Steinbuch recently filed a motion for leave to bring in Wonkette as a defendant because of her involvement in allegedly invading Steinbuch’s privacy. With some reservations, the court granted the motion.

The court stated that it was “troubled by plaintiff’s approach to this case,” and noted some possible inconsistencies in Steinbuch’s theory. Steinbuch initially alleged in the proposed amended complaint that Cutler and Wonkette “worked together to invade his privacy,” but in the motion for leave to amend, seemed to blame Cutler alone, accusing her of trying to shift the blame to Wonkette or “someone else.”

So we’ll have to see whether Wonkette remains a defendant. But the practical question to be extracted from this case is, will the specter of being sued just for linking to another site slow down the wheels of the gossip mill?

Steinbuch v. Cutler, (Slip Op.) — F.Supp.2d —-, 2006 WL 3060084 (D.D.C., October 30, 2006).

Eric Goldman has also written on this decision.

In the case of National Federation of the Blind v. Target Corporation, the U.S. District Court for the Northern District of California has held that it will allow in part, and dismiss in part, a lawsuit brought against Target by an advocacy group claiming that Target’s website violates the Americans with Disabilities Act (ADA).

Plaintiffs, national and state advocacy groups for the blind, claimed that defendant’s website (Target.com) is inaccessible to the blind, and therefore violates the ADA and similar California state laws. The plaintiffs have sought declaratory, injunctive, and monetary relief. Because Target.com allows a customer to perform functions related to Target stores, the plaintiffs argued, and because the website is not fully accessible to the blind, those customers are denied full and equal access and enjoyment of Target stores.

Target asked the court to dismiss the lawsuit for failure to state a claim, and presented three arguments in support: First, it argued that the ADA only prohibits discrimination in physical spaces. Second, it argued that any off-site discrimination must still deny access to a physical space. Third, Target argued that the website provides auxiliary aid in conformity with the ADA, and therefore no violation exists.

The court looked first to Title III of the ADA, which prevents discrimination against disabled persons in places of public accommodation. Title III states in part that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, [and] services … of any place of public accommodation…” 42 U.S.C. 12182(a). In rejecting the defendant’s first argument, the court emphasizes that the ADA applies to services of a place of public accommodation, and that the statute’s application is not limited to services offered in a place of public accommodation. This clear language indicates that the ADA applies to more than discrimination in physical spaces only.

The court next addressed defendant’s second argument, that off-site discrimination must deny access to a physical space to be considered an ADA violation. The court found this argument unpersuasive because the ADA prohibits non-physical barriers that keep a disabled person from enjoying the defendant’s goods and services. The court noted that because Target.com is integrated heavily with defendant’s stores, and because the website offers services and goods available in defendant’s stores, the website operates as a gateway to the store. Because the website is a gateway to a place of public accommodation, and because blind people cannot enjoy the services of the website, defendant may be violating the ADA.

The court then addressed defendant’s third assertion, that a satisfactory auxiliary aid is being provided. Defendant claims that all goods and services available on the website are also available on the telephone, and this satisfies the ADA’s auxiliary aid exception. The court rejected this argument by noting that this exception is an affirmative defense. Because the lawsuit was at the pre-trial motion phase, this affirmative defense was pleaded prematurely.

The court finished its discussion of defendant’s motion to dismiss by agreeing that the plaintiff failed to state a claim under the ADA inasmuch as the goods and services on Target.com are unconnected to Target’s brick-and-mortar stores. In a footnote, however, the court commented on the future of plaintiff’s ADA claim: “The website is a means to gain access to the store and it is ironic that Target, through its merchandising efforts on the one hand, seeks to reach greater numbers of customers and enlarge its customer-base, while on the other hand it seeks to escape the requirements of the ADA.”

National Federation of the Blind v. Target Corporation, 2006 WL 2578282 (N.D. Cal., September 6, 2006).

There have been a couple of very interesting articles to appear online in the past few days that I recommend.

Ed Felten has put together a very accessible primer on the technological aspects underlying network neutrality (perhaps more aptly described as network discrimination.) After reading the article, one can see that policymaking concerning the issue is much subtler than it appears at first blush.

Eric Goldman pointed me to a terrific article by Ken Myers called Wikimmunity which is slated to be published in this fall’s Harvard Journal of Law and Technology. Myers provides a detailed roadmap to the conclusion that 47 U.S.C. 230 should permit Wikipedia to escape liability for defamatory content posted by the volunteers who add content to it. It’s a brilliant analysis of Wikipedia’s history, the legislative impulse behind Section 230’s enactment, and the important cases that have applied the law.

Techdirt reports that a Texas teenager and her mother have sued MySpace.com, claiming that it failed to protect the teenager from an alleged predator she met online who assaulted her. It will be interesting to see if and how MySpace might try to use Section 230 of the Communicaitons Decency Act, 47 USC §230, in its defense.

The closest precedent we have to look at is a case called Doe v. America Online, Inc., 783 So.2d 1010 (Fla. 2001). In that case, the Supreme Court of Florida held that 47 U.S.C. §230 preempted a mother’s negligence suit against AOL arising from the illegal conduct of an AOL subscriber. The mother alleged that AOL negligently failed to terminate the account of a subscriber who used a chat room to promote the sale of obscene photographs and videos of the mother’s minor son.

Adopting the Fourth Circuit’s reasoning in Zeran v. America Online, Inc., the court held that finding AOL negligent for its failure to police the conduct of chat room participants would be to treat AOL as a publisher of the complained of conduct. Such treatment would be at odds with the provisions of Section 230, and thus the negligence action was preempted.

In the Doe v. AOL case, the alleged illegal conduct took place online. In the MySpace.com case, the alleged illegal conduct arose from an online meeting, but actually took place offline. Will that difference affect the viability of a Section 230 defense?

Pro se plaintiff Walter Viola didn’t care too much for The History Channel’s “Beyond the Da Vinci Code” which aired in December 2005. He disliked it so much that he filed a federal lawsuit against A&E Networks, claiming that it had defamed the Catholic church, and that Internet content promoting the show violated both Section 223 of the Communications Decency Act and the Children’s Online Protection Act, 47 U.S.C. §231.

The court easily dismissed Viola’s suit. Judge McVerry of the U.S. District Court for the Western District of Pennsylvania, in adopting the Report and Recommendation of Magistrate Hay, held that neither the CDA nor COPA provide for a private cause of action. “[T]he authority to enforce the CDA lies with the proper government authorities and not with a private citizen such as plaintiff.”

Viola v. A&E Televison Networks, — F.Supp.2d —-, 2006 WL 1549703 (W.D. Pa., June 7, 2006).