Category Archives: Uncategorized

Off topic: Sometimes I take this train

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Night before last I spent three hours on the train ride home. The video above shows the reason for the delay. The train I took that night was backed up and delayed while they sorted out the mess in Hinsdale. Had I left work a few minutes earlier I would have been on the second train, i.e., the one that caused the minivan to burst into flames. Would have been pretty exciting/scary. Thank goodness no one was hurt.

Franklin Covey sues Lycos for posting of 7 Habits book

FranklinCovey v. Lycos, No. 07-cv-00974 (D. Utah, filed December 17, 2007). [Download the Complaint]

FranklinCovey owns the copyright in the bestselling book The 7 Habits of Highly Effective People. It has sued Lycos, owner of AngelFire, for copyright infringement, claiming direct and/or secondary liability for the posting of an entire copy of the work online.

The allegations are a bit ambiguous as to who FranklinCovey thinks actually posted the work online. In some parts of the complaint it accuses Lycos as having posted it, but at the same time, the allegations describe the multiple DMCA takedown notices that FranklinCovey sent, as if their theory is that Lycos is a provider for third party content.

It’s an allegation as to the DMCA that raised my eyebrows when reading the complaint. Here’s what Paragraph 34 says:

“Based on Defendants’ failure to expeditiously remove or disable access to this infringement, notwithstanding their actual knowledge thereof, Defendants have waived any defense to liability they may otherwise have had pursuant to 17 U.S.C. § 512 or otherwise.”

It’s the word “otherwise” that particularly piqued my interest.  Is this true? By failing to comply with a DMCA takedown notice, has Lycos really waived its defense to infringement liability?

Here’s what 17 USC 512(l) says:

(l) Other defenses not affected.–The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense.

Thoughts, anyone?

Third Circuit affirms Dimeo v. Max — Section 230 immunity applies to forum board operator

DiMeo v. Max, No. 06-3171 2007 WL 2717865 (3rd Cir. September 19, 2007) (Not precedential)

Last year plaintiff DiMeo sued Tucker Max for defamation over some postings to the message board on Max’s site. Max successfully moved to dismiss the case, arguing that the Communications Decency Act at 47 U.S.C. §230 provided immunity against the defamation claim. [Read about the lower court’s decision.] DiMeo appealed the dismissal to the Third Circuit, but the appellate court affirmed.

Section 230 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.” 47 U.S.C. § 230(c)(1). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).

The court found that Max’s website was an interactive computer service because it enabled computer access by multiple users to a computer server. Although DiMeo alleged that Max was a publisher of the comments on the website, he did not allege that Max authored the comments, or that he was an information content provider. So the court determined that the website posts were information furnished by third party information content providers and the requirements of § 230 immunity were satisfied.

The court compared this case to an earlier Third Circuit decision, Green v. America Online, 318 F.3d 465, 471 (3d Cir.2003) in which it used §230 to find America Online immune from tort liability stemming from anonymous messages posted in chat rooms.

And although DiMeo argued on appeal that Max was in fact an information content provider because he solicited and encouraged members of the messageboard community to engage in defamatory conduct or was otherwise partially responsible for the conduct, the court found that the complaint was devoid of any such allegations.

Opinion appears below (or click through if the embedded content is not showing up in the RSS feed).

New source of business for litigators introduced at TechCrunch40

Docstoc is a new “online community and professional network” introduced this week at TechCrunch40 “geared around user generated, professional documents.” The idea is that business people will be able to find documents like nondisclosure agreements online, presumably avoiding lawyers as the middlepeople.

It’s a clever idea. Scribd (which I use from time to time here on Internet Cases) is already doing something similar, but is not geared toward professional documents. So Welcome Docstoc! With more people relying on poorly drafted documents not tailored for their particular situation, there will be more business disputes. That means more work for those whose livelihoods depend on that kind of misunderstanding and discord.

Back to basics on open source

The new version of the GPL (v3) is on its way, and what better time than now to revisit some of the principles underlying open source software. While brushing up on open source concepts, I found this concise yet intelligent rundown of open source issues with an uncommon look at the downside. It’s published by the American Bar Association, so it’s gotta be good. I’m not sure how old it is (how hard would it have been to put a publication date on it?), but it’s clearly still relevant.

Wonkette in, now out, of Steinbuch v. Cutler

Steinbuch v. Cutler, No. 05-970 (D.D.C. May 16, 2007)

Back in late October 2006, the court in the case of Steinbuch v. Cutler allowed the infamous blogger Ana Marie Cox a/k/a Wonkette to be added as a defendant. [Read about that here.] The case raised the question of whether simply linking to another site could subject a blogger to tort liability. We’re now learning that Wonkette has been dismissed.

The court’s order granting the motion to dismiss hasn’t been loaded onto PACER yet, but here is a copy of the motion and brief Wonkette filed back in January. In that motion, she argued a number of reasons why the case against her should be dismissed, including immunity under the Communications Decency Act [at 47 U.S.C. 230]. It isn’t clear yet what the exact basis for dismissing the case was, but, according to this article the court agreed that the claims were time-barred.

The day after Wonkette was added to the suit, Eric Goldman suggested that Section 230 immunity would apply. And Wonkette’s brief is a nice walk down Section 230 lane.

eBay not a “consumer reporting agency”

Plaintiff McCready was a seller on eBay who had some dissatisfied customers. They voiced that dissatisfaction by leaving negative feedback about McCready in eBay’s Feedback Forum. Instead of working to “make good on his sales,” McCready embarked on “retaliatory litigation” against a number of individuals and entities, including eBay.

McCready filed lawsuits in different fora around the Midwest, including one in the U.S. District Court for the Central District of Illinois. He alleged, among other things, that eBay violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §1681 et seq., by providing false and misleading information in the Feedback Forum. The district court dismissed the claim, and McCready sought review. On appeal, the Seventh Circuit affirmed.

To succeed on the FCRA claim, McCready would have had to show that eBay is a “consumer reporting agency” as provided by the statute. He failed to do so, however, because he could not show that the Feedback Forum is a “consumer report.” By definition, a “consumer reporting agency” provides “consumer reports,” and without showing that the Feedback Forum is a “consumer report,” eBay could not be considered a “consumer reporting agency.”

The court held that “given the broad statutory purpose of preserving individuals’ privacy,” a “consumer” under the FCRA must be an identifiable person. The Feedback Forum, however, is arranged by usernames, so anonymity – to the extent eBay sellers so desire – remains intact. Any information about the person behind an eBay username would not be about an “identifiable person” as required by the FCRA.

Citing to the case of Ippolito v. WNS, Inc., 864 F.2d 440 (7th Cir. 1988), the court further held that the FCRA applies only to information that is to be used for consumer purposes, not commercial, business or professional purposes. The Feedback Forum assists eBay shoppers in deciding whether to purchase goods from a particular seller, and that is an “inherently commercial” activity. Without the required consumer purpose, the Feedback Forum could not rise to the level of a “consumer report.”

McCready v. eBay, Inc., — F.3d. —, (7th Cir. July 10, 2006).

So now we all know this guy’s ex-girlfriends don’t like him

In Pittsburgh, attorney Todd J. Hollis has filed a defamation suit against the funny little website called Apparently one or more of Hollis’s ex-girlfriends posted some nasty stuff about him on that website. [Fox News has reported on this as well as Techdirt.]

Mr. Hollis should have spent at least a few minutes researching well-established federal law before filing this lawsuit against the operator of the website. Section 230 of the Communications Decency Act, 47 U.S.C. 230, 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.”

The complained-of comments were provided by ex-girlfriends, not the website owner. Ergo, the website owner is not the publisher and cannot be liable for defamation here.

The Fox News account of the story states that Hollis claims that “the site does not have safeguards in place to ensure the truthfulness of items posted on it.”

Too bad. The site doesn’t have to. It’s been almost ten years since Ken Zeran made that same argument in the case of Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997). In that watershed case, the court, in finding AOL immune from liability for defamatory postings by a user of a forum board, observed that “[i]t would be impossible for service providers to screen each of their millions of postings for possible problems.”

And thus the wisdom of immunity under Section 230.