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.'"

Comments

Wow

[mfh]

This is like Shawshank Redemption, somehow. Except the dummies are tunnelling into prison.

What about the fact they are scanning the stream?

[LiquidCoooled]

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]

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]

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:They don't.

[CorSci81]

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.

[torstenvl]

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
[5] 47 U.S.C. s 230(c)(1)
[6] 47 U.S.C. s 230(e)(2)

Re:They don't.

[mgoren]

yeah, I'm confused. The article suggests that they're considering IP re: CDA 230, but that doesn't make sense, b/c 230 specifically exempts IP, which is generally dealt with by the more restrictive DMCA.

Re:They don't.

[niobium]

DCMA Section 202, Sub-Section 512, Paragraph (a) provides for common carrier status in all but name.

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 and (as you point out) the DMCA. However, ISPs are not subject to mandatory regulation under Title II of the Communications Act. The FCC, Congress, and the courts all agree that ISPs are NOT common carriers.

Re:They don't.

[Curunir_wolf]

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, although some might try go that far, even after Geocities got slapped for it).

Nearly every site that allows users to post their own content or creations have some sort of EULA or acceptable use provisions, but the decent ones allow you to keep control and ownership, and only require you to allow them to move the content around in the normal course of providing services. If they want a artsy model for their banner ads, they pay somebody for that, they don't just mine their users' content and grab whatever they want.

It's that kind of practice that's in danger, and it should be. I can see Publisher's Clearing House asking for such a release if they hand you $10,000,000. But asking you to pay for a service and then using your content (even you "likeness") to generate even more revenue is trying to have it both ways, and should end.

Re:They don't.

[kylehase]

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

[esocid]

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:Yes and no

[esocid]

As a side note, I recall when /. was forced to remove a comment 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:Yes and no

[Anonymous Coward]

After some thought, I've changed my mind. Web sites have no obligation to respond to users creating fake profiles or misusing another user's likeness. When cases like that come up, it should be arbitrated by the courts as a jailable offense. Lawsuits are good and I would like to see more.

-esocid
--
Absolute power corrupts absolutely. indymedia

Re:Yes and no

[value_added]

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 found to be in violation of the federal Fair Housing Act because it asked questions about race and then used that profile information. A related quote:

"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.

Personally, I expect the subject to get even more complicated over time as laws are reinterpreted, written and rewritten to address digital age.

Re:Yes and no

[witherstaff]

Contacting them would be the easy thing. But since friendfinder sold for 400 million I'm going to guess this user was trying for a payday.

Re:Yes and no

[Anonymous Coward]

The profiles were made by other users

And you determined this because the company said so, rather than the profile being used by the company as one of the 10^N fake profiles that such dating sites supposedly use to convince guys that there really are millions of hot sexy women all lusting after them on the site?

Re:Yes and no

[plague3106]

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 when searching for a roommate? What about if that woman doesn't want to live with a lesbian? Yes, the latter might be from an unreasonable fear, but I don't see why someone should be forced into an uncomfortable situtation.

Re:Yes and no

[Anonymous Coward]

I don't know where you got the idea that things posted on the Internet automatically become public domain, but that is emphatically NOT the case.

Re:Yes and no

[computational super]

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:Yes and no

[bar-agent]

"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 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:Yes and no

[bar-agent]

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

Re:Yes and no

[Anonymous Coward]

I defy said law and decry it as unjust and immoral.

Re:Yes and no

[plague3106]

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:Yes and no

[Actually, I do RTFA]

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 operated by organizations and private clubs that limit occupancy to members.

Source: hud.gov

So, I think that first example applies, even though you are not the owner. Again, IANAL.

Re:Yes and no

[z80kid]

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 related to interstate commerce and is therefore out of federal jurisdiction will never come up....)

Re:Yes and no

[Actually, I do RTFA]

Roommates.com isn't offering you housing; its a networking site, no different than putting an ad for a roommate in the paper.

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), you can specify gender. Well, also nondsicriminatory private club housing and retirement homes as well.

Intestingly, sexuality does not seem to be a prohibited manner of discrimination.

IANAL, I cribbed off the internet.

Re:Yes and no

[plague3106]

Hmm, well then the law is stupid. If I'm just looking for a roommate and not a landlord myself, I think I should be able to live with whoever I choose. I can understand restrictions on landlords or those making home loans available, but when just looking for a roommate? Seems to be overstepping. And the law says you can't advertise; so it sounds like you can still discriminate, you just can't put it into print. Unless I'm reading wrong.

Re:Yes and no

[Actually, I do RTFA]

And the law says you can't advertise; so it sounds like you can still discriminate, you just can't put it into print. Unless I'm reading wrong.

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 no advertising of discrimination allowed (except for gender when you share space). I don't know why that's the case, but I can see three arguments:

• You cannot discriminate against people, but you can veto anyone you aren't comfortable with. If you happen to be a racist and never comfortable with any black roommate, the government cannot say boo, but you cannot say you are uncomfortable with a hypothetical black roommate.
• If people see your ad, they might think that such discrimination is okay, leading to inadvertent violations of the law.
• I can see the harms associated with advertising that fact in print. The way it could make certain racial/religious/etc. groups feel ghettoised, or the way it could make lots of people uncomfortable.

Re:Yes and no

[rtb61]

However you have to appreciate that a lot of damage can be done by a fake profile and poorly monitored social networks. Now you can separate between the two basic types of social sites, for profit and not for profit.

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 for their greed. For profit, then use those profits with due regard to the harm those web sites can cause. These types of sites are in reality no different to a newspaper or television show and should be held to the same civil requirements and penalties.

Of course not for profit, social group type web sites are a completely different category, and should not be treated the same, oddly enough, this is less of an issue, as they are usually far better moderated and controlled by a extensive group of volunteers. Perhaps a legislation is required to clarify between the different types of sites for profit and not for profit, how they are controlled, ownership and revenue basis, so that the legal requirements and of course liabilities can be clarified.

Re:Yes and no

[Curunir_wolf]

I don't think it's so much a distinction between profit sites and not-for-profit sites, I think it's more the case of generally respecting your users, something both types of sites should do. Cases like this can motivate the profit-making ones to the consider the loss of revenue if they don't.

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 legalize they present to you when you sign up. Nobody should be agreeing to that, but the site is going beyond reasonable use anyway.

AFF has lots of affiliate sites. You could post your profile on "Adult Friend Finder", delete your account when the month runs out (because you only signed up when you came home drunk, horny, and alone one night), then find a couple of months later in a Google search that your profile is a front-page advertisement on "Bukake and WaterWorks Finder". And you agreed to allow it. How's that for beyond reasonable?

Re:Yes and no

[rtb61]

There is usually a range significant differences between not for profit and for profit web sites. Not profit web sites, are usually made up of people with a direct shared interest, they are also usually monitored and controlled by those people with a shared common interests, the shared common interest is the goal as well as the benefit to the members, not greed and profits.

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 hide the greed based for profit web sites who do not really care about their members but only how much they can make from them behind not for profit web sites where the members sharing common interest is all the site is about.

You should really be ashamed of yourself for trying to propagate that deceit. It is the same a spreading the lie that charities and corporation are basically the same, because both charities and for profit corporations supply goods and service. By that logic charities should be banned because the provide goods and services below cost and as such breach competition laws because for profit corporations cannot compete against them. The same as not for profit web sites do not have the revenue to pay for the cost of monitoring and validated all the data that they store versus for profit sites that often have billions of dollars of revenue that they seek to put into there own pockets rather than spending upon 'due care' responsibilities. So basically screw 'em and sue 'em.

Re:Yes and no

[Curunir_wolf]

Bah! Sites can exist to make a profit and still be responsible and respectful to their users. In fact, sometimes for-profit sites can be better and attracting and maintaining communities than non-profits, simply because they can attract good, full-time talent to dedicate to the site.

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 sites.

Don't think that non-profit means there's nobody putting money in their pocket. And don't think that every for-profit is irresponsible with their spending. That's the real lie.

Re:Yes and no

[plague3106]

Well, the whole point is that roommates.com is matching ROOMMATES, not matching landlords and tenents. So I don't see why the law should allow it.

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.

Which IP? Defamation != IP

[corsec67]

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:Which IP? Defamation != IP

[AioKits]

I hope I don't get sued for releasing my new beverage sensation into the wild: Corsec67 Cola!

It's liquid awesome in a nifty and vibrantly colored can! The energy drink for nerds, by nerds.

Please don't sue me.

Re:Which IP? Defamation != IP

[Delwin]

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:Which IP? Defamation != IP

[corsec67]

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 in the public domain?

Re:Which IP? Defamation != IP

[Anonymous Coward]

Just using "IP" confuses the issue, please stop using it. They are Copyright ...

Actually, falsely attaching a name to a work does fall under federal copyright law in certain circumstances, per 17 USC Sec. 106A:

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create; though "visual art" would not include a profile, unless that profile included photos (for exhibition, which would be the purpose of a public profile) or drawings/paintings/etc.

Not sure what kind of law New Hampshire has on it, though.

Re:Which IP? Defamation != IP

[AioKits]

I think the more frightening thing is that my real name actually is Bob.

Re:Which IP? Defamation != IP

[Timothy Brownawell]

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:Which IP? Defamation != IP

[corsec67]

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, 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.

Re:Which IP? Defamation != IP

[Anonymous Coward]

> Just using "IP" confuses the issue, please stop using it.

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.

The basic tool for the manipulation of reality is the manipulation of words. If you can control the meaning of words, you can control the people who must use the words. -- Philip K. Dick, How To Build A Universe That Doesn't Fall Apart Two Days Later (1978)

If we're to stop it in it's tracks, we need to get the world non-intellectual non-property organization to change its name.

Re:Which IP? Defamation != IP

[RingDev]

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:Which IP? Defamation != IP

[Tenebrousedge]

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:Which IP? Defamation != IP

[Jason Levine]

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 registered on a forum with my name, city, and state, could the other Jason Levine that lived there sue me for copyright infringement? Could he only sue if he was older than me (and thus had the name before me)? Are parents going to have to do a copyright search before naming their children now? What if you own the copyright to your name in City A but then move to City B where someone else owns the copyright to your name? Do they sue you? Do you take possession of the copyright if you are older? Do you have a duel at high noon? ("This town ain't big enough for the both of us Jason Levines!")

The very idea that you can copyright your name should make any reasonable person burst out in laughter. That a judge actually deemed that Jane Doe's bogus profiles infringed on her "intellectual property rights" is scary. Just how much information do you need to add to a profile before you infringe on someone's "intellectual property rights?" I run a website where people sign up and can give their names, cities, and states. If someone signed up using as "John Doe from Somewhere, NY", and began acting like an idiot, could I be sued by the real "John Doe from Somewhere, NY"? If the information was really the poster's correct information, but there was another "John Doe" in "Somewhere, NY", could the other "John Doe" sue me?

Re:Which IP? Defamation != IP

[Anonymous Coward]

Preface your comment with IAMNACL, or IAMNAIPL. Whatever.

There is in fact a right of publicity see http://en.wikipedia.org/wiki/Personality_rights.

It underpins the ability of models and actors to make a living. It covers both their names and their picture. There are a lot of other "IP" rights (for want of a better word) there are even "moral rights" not covered in your three pillars simplification... sorry your three pillars fiction. Please read up somewhere beyond good old slashdot.

Great open source and free software advocates like Stallman and Parens know this stuff why don't you?

Re:Which IP? Defamation != IP

[Curunir_wolf]

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, 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 picture of my car on the Internet "Check out my new car", and you're sitting on your ass in front of it, that's pretty much incidental and you probably have no recourse. But ... If I set up a gay brothel in Las Vegas and advertise with a picture of you holding my penis that says "Hey - corsec67 *Really Likes* my hefty pleasure stick!", then you can for infringement.

B(ase) S(tupidity)

[slimjim8094]

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:B(ase) S(tupidity)

[plague3106]

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.

Re:B(ase) S(tupidity)

[slimjim8094]

That's not what I was saying. A pic you take of yourself is copyrighted, and using it without your consent is illegal - that's why photo releases exist.

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.

Re:B(ase) S(tupidity)

[plague3106]

Well a photo is a copyrightable thing. Also, photo releases exist to cover a picture SOMEONE ELSE took of you. If you took the picture, there's merely a license agreement. A photo release is something different; IIRC, you can't use someone else's likeness for commerical purposes, even if you took their picture. Given that a photo is something that can be copywritten, I would say its use falls under IP.

I'm confused...

[San-LC]

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

Re:I'm confused...

[phalse phace]

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:I'm confused...

[esocid]

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:I'm confused...

[truthsearch]

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:I'm confused...

[Anonymous Coward]

Nope, why pay for pros when a website filled with photographs of real people, so what if they don't want their photograph attached to the name 'cumslurper' and presented as being from whatever town the viewer lives, for the next 10 to 15 years.

Re:I'm confused...

[jtroutman]

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 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:I'm confused...

[plague3106]

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:I'm confused...

[plague3106]

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 profile name and show the photo? So they were directly profiting from a fake profile, which may have been created to harm the woman.

Remember, NE is small, and it's easy to run into people there.

Re:I'm confused...

[sYkSh0n3]

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:I'm confused...

[truthsearch]

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:I'm confused...

[plague3106]

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:I'm confused...

[jtroutman]

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's fault or responsibility. And if their terms of service, which the person who actually created the profile agreed to, stipulate that they have the right to use submitted profiles in advertising, then I, again, don't see how there's a case.

We've all seen people that look like someone we know. It happens. But just because person A looks like person B, doesn't give person B the right to keep person A from using their own likeness however they see fit. If that was the case, then celebrity impersonators would all be out of business.

Re:I'm confused...

[plague3106]

I think you should re-read the article. It does in fact state she didn't create the profile. I've seen people that look alike initially, but if you get more than a glance, you can tell the differences. The liklihood of 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 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 celeberties is irrelevent; they already have different standards applied to them because they are famous. They are already "in the public eye." Doris is not.

Re:I'm confused...

[jtroutman]

I understand that she didn't create the profile, I did not say that she did. I will grant you the celebrity point was, well, pointless. However, the actual case is linked in the article and in it she states that the picture is not a picture of her, it just looks like her.

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" - 5'6", brown hair and medium build Caucasian, I'd say it's pretty likely. Without a pic of her and the profile in question, it's really just a guessing game. That being said, as I stated before, I'm 6'3", have red hair and a bone structure that takes elements from a very varied heritage, yet I still get, every once in a while, someone telling me "Hey, I saw a guy who looked just like you the other day."

Again, this is from the actual case file:

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, someone who looks similar to this woman, who lives in the same area, who has similar biographical information (which isn't surprising considering that they are both from the same area) made a profile. People who have seen it have, supposedly, mistaken it for this woman. So I still fail to see where she has a case. She doesn't have any right over this other person's likeness or biographical information, however similar it is to her own.

Re:I'm confused...

[plague3106]

The problem is you're focusing SOLEY on the picture. All the other details in the profile do seem to match her. Given all of that put together, I think she does have a case here. You assume that someone that looks very similar to hear, down to her height, weight, eye color, etc. also lives near here. I haven't really seen that yet, and anyone who I've paid more than a passing glance at is easily distingishable from other people I have seen.

It's interesting that FF hasn't said "no, that ad is real and belongs to this person at this address." The fact that they haven't asserted anything like that is pretty telling.

p3n!s p1775 4 $473

[Anonymous Coward]

I, as corsec67, would like to recant what I just said and offer myself as a sex slave to the highest bidder. Trust me, I really am corsec67.

This is actually good for privacy..

[Dr_Marvin_Monroe]

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/ 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.

Re:This is actually good for privacy..

[monxrtr]

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 machines and/or tracking profiles.

I'm looking to open the copyright troll floodgates that has media companies begging for the elimination of all copyright laws. And at a minimum, we should be able to generate support for passage of a Do Not Track Registry similar to the Do Not Call list, and add $150,000 per infringement fines to these laws.

And if these companies think EULAs are legally binding (and they are wholesale ripping off and exploiting the work of others with even worse compensation than RIAA artists receive -- and some of these individuals are minor children) it's time to start putting in EULA watermarks on every file declaring any legal notification regarding the transmission of said files waves all legal liability and ownership claims to the referenced property claims for all parties in the transmission of said files. And wala ... consent is deemed given in exactly the same manner as any EULA.

Slop it, mash it, screw it, divide and conquer by turning the bogus laws they pass upon each other.

Re:This is actually good for privacy..

[jroysdon]

I'm guessing most of the information they have they obtained either through public record (birth records, marriage records, property deeds) or purchased through the big 3 credit bureaus, which collected this information from you via you giving it to places you do business with.

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 you cosign on something, you can't even get anything related to that removed, like the owners address (which may have never been yours), until it's paid in full.

I think any place like Intelius should have to follow the same rules that credit bureaus have to follow: give you full access to their records about you so that you can demand they remove things that you say are inaccurate - of course, since they're getting it from all sorts of 3rd parties, who knows how they'll ever verify things, but at least in the meantime they should have to remove it.

Especially harmful would be mis-information that Intelius may obtain which may come from Identity Fraud - or even someone with the same name as you, which somehow Intelius merges into the same identity.

Re:This is actually good for privacy..

[Dr_Marvin_Monroe]

Yeah, that's actually what I was really thinking too, but nothing slows down the wheels of business like needing to get my permission EVERY time they wish to send out a report with any of my information in it or use it for any purpose not previously approved by me. I'm reserving all rights and or descriptions of this broadcast, just like the NFL, any reproduction is unlawful without my expressed written consent.

I'd like to sue all of these folks for infringement, and keep doing this until business interests give up on IP all together. They created this IP-Frankenstien monster, Im interested in having him wreck their lab and kill the creators. Something like the angle outlined in the story would make a great cudgel to smack them around. They've made IP laws so strong, now it's time to use these weapons against them.

They're hypocrits, look how fast the Telecoms ran to congress for immunity over domestic spying.... If they faced lawsuits from 100 Million people, they'd start pushing for weaker IP laws. I would love to see every one of them destroyed. New businesses would grow up in their places and this silly IP stuff would hopefully be gone... As Donald Rumsfeld said "...That's the beauty of capitalism..." funny quote considering, but it's time for real competition.

And then comes EU...

[mi]

Just yesterday, we were informed, 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).

Re:And then comes EU...

[Actually, I do RTFA]

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.

Re:And then comes EU...

[BlueParrot]

I think you misunderstood what is illegal and not. My interpretation of the findings were:

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. As an example, if you operate a mailing list then every time you use it you are providing every mail server it touches with information about who is on your mailing list. Thus if somebody living inside the EU signs up to your mailing list using an account on a server outside the EU, then a very extreme interpretation of the findings could potentially make it illegal for your mailing list to send them e-mails.

I very much doubt the law will end up in such an extreme case, but given how clueless lawmakers are with respect to new technology, there could easily be some not so thought through decisions made here...

Re:And then comes EU...

[mi]

Poor small companies like Google and the parent company of AdultFriendFinder.com

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 — maintain proof of compliance) with yet another regulation.

We need an actual privacy / personal info right

[Thought1]

This just makes the point that we need an actual right to control how information about us is used (with the obvious exceptions — sex offenders, quoting, people running for public office, etc), preferably laid down in an amendment. It would put a sudden and drastic stop to things like "opt-out" mailing lists, and could standardize the way companies would have to require people to opt-in, thus making it easier for the, well, "unwashed masses" (ie, clueless users) to make a coherent choice and actually maintain control over how their information is being used.

Oh the dichotomy...

[Notquitecajun]

But I thought information wanted to be FREE??

Re:Oh the dichotomy...

[monxrtr]

It does.

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 meetings with lobbyists should be illegal anyway and is a direct threat to the national security interests of all voters. (This is necessary Homeland Security Compliance -- put little HSC compliance stickers on the politicians so they are certified like an "Intel Inside" sticker). Judges will also be subject to this.

Some confidential conversations can be filtered by Judges warrants if they pertain to matters of National Security, but they must be meeting during officially sanctioned events, such as a closed door Armed Services Committee meeting, or be in outlined by law cabinet positions and be certified for special closed door time slots).

And any business that collects private data can likewise be targeted by similarly following the children of those businesses owners legally in white surveillance vans. And there are still harassment and stalking laws which can be extended into the electronic realm.

See what you could accomplish if you embrace the methodology and merely universally apply it under Equal Protection Under the Law standards?

Intellectual property law

[iminplaya]

is completely nullifying the 1st amendment. What the government can only dream of doing is being taken up by private entities. Yet another proxy war against the citizenry. Using the same citizens to do it. Cool trick, huh? It will all mean nothing just as soon as we can manufacture our own hardware. Can't happen soon enough.

She is suing the web site not her ISP!

[denis-The-menace]

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.

Not just in ISP.

[jellomizer]

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 different results) Making much more difficult to do business, to have to take the extra work to insure they are legal.

ISP are much like landlords in this case. They are renting their property to others for them to use. And now they are taking legal risks if their customers (whom they may have no personal contact with) decide to do illegal actions.

There is this impression (espectially ammong Democrats... Sorry) that all business are large businesses and they have enough cash on hand to deal with legal recourse and actions, and have enough resources to police all their properties for illegal activity. Most companies Land Lords, ISP... Are relitivly small an ISP May seem big but they may not be making that much money. They may be able to make enough to pay the bills keep the servers up to date, pay the employees competive wages, and the owner a bit more then the employees but that is a far cry from say a Microsoft or a Google who have Millions of dollars sitting there as a roundoff error.

The bulk of the companies that support the U.S. Echonomy are small businesses under 100 people. Yet goverment seems to put a Small 5 man operation in the same boat legially as a 100,000 man operation. And have penelties that are ment to punish a company of a large size. Yet for a small company a penality of just a few thousand could kill it.

Re:Not just in ISP.

[Actually, I do RTFA]

. 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 estate tax debates. No family farm has been lost in the past 50 years because of the estate tax.

Re:Not just in ISP.

[jellomizer]

There are some rules and regulaitions that are adjusted for small companies. Disibility and Discrimination and some other HR laws. But most of those are rules about hireing people. Not the companies liability for new laws. Most penaltes are not adjusted to the company size. So Big Coporations can break the law and pay the fine and sometimes just continue paying the fine because the money they make breaking the law is more then the cost of the fine. But... For a small company that fine would just kill them, with no way out. And these small companies normally don't have the reasourced to realize what they are doing is illegal or not. So it is the double wammy.

SO for this case if I was a small ISP vs. Google. A small ISP a single Law Suit could kill me even if I was in the right. vs. Google they can take continous legal suits and class action suits and it barely gets in on the accounting sheets.

That is the problem with the legal system. When they make the fines to punish large companies it ends up whipping out small ones.

Re:Not just in ISP.

[Actually, I do RTFA]

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

[mpapet]

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 judge sided with FriendFinder.com on a number of issues.

The second issue has the service provider clearly in the wrong as well. It would require some re-development to get in compliance which they should have done and then quietly settled out of court as best as possible.

This is hardly the end of Web Service providers as we know it.

Mod parent up

[Animats]

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 put up a bogus ad describing her.

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

[LMacG]

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? (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.

The rulings are unrelated.

[mckinnsb]

One ruling deals mostly with defamation and the right to control images taken of your person, and the plaintiff was an individual and the case involved a specific incident. The other ruling deals mostly with a complaint by the Fair Housing Council and was a complaint against a web companies business model in general. Neither have anything to do with ISP's and their liability shield as pertaining to "Content Providers". The first one involves using "content" posted by the user as advertising material (which I beleive would constitute as a willful action by the company and no longer grants them liability anyway), and the second one involves the way in which that content is mediated, which is another willful act.

The ISP liability shield would have only diminished in the first case if the woman had posted nude photographs of herself online and then issued a complaint *without* AdultFriendFinder advertising its service using her image. In the second case, the liability shield would have only diminished if a particular person posted an advertisement stating in the description that "They would not room with person of X race" (I'm diffusing the issue of race and sexual orientation here purposefully just to show the logical structure of this argument, they are pretty similar for discrimination purposes), and someone of X race or a organization representing X race sued Roommates.com, and roommates.com made NO requirement to the user that this information be included in a posting.

However, since AdultFriendFinder did use Jane Doe's image for advertisement, and Roommates.com *made* the requirement of choosing a preferred sexual/racial orientation (even if the preferance was none), then the ISP liability shield is still intact.

It's still a pretty interesting article, however, because it does show us that this law is being tested and further defined, and people are being held accountable for their business models on the internet. I think thats the real point here, but the article's author doesn't seem to think so.

Solution for ISP's

[strikeleader]

It seems to me that the easy solution to get around all the rules, regulations, and BS is for ISP's to move everything off shore to a country that is friendly to them and wants their business.
Just a thought

Re:Solution for ISP's

[MadAhab]

But the "last mile" can't be offshored.

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.

Cease and Desist Letters

[PhreakOfTime]

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 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

Chills businesses huh?

[hellfire]

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 they don't. Identify theft itself costs a company nothing since it's the consumer getting shafted in the end. I'm sorry Gmail might be banned in the EU and you are concerned about your company spending more money on standards of protection. However, I'm worried about my identity being stolen. You could lose some business, and would then have to upgrade your servers to get that money back. I could have my life ruined and have it take years to recover from that. Logic dictates I come first, because I'm the little guy with more to lose.

This is like whining about laws against telemarketing when the only people who are pro-telemarketing are the telemarketers themselves and those who hire them. Laws against murder hurt the firearms market should we repeal that law?

Re:Chills businesses huh?

[monxrtr]

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 to ccc rating by credit ratings agencies and cost them billions of dollars in higher interest payments (that's exactly what banks do to consumers!). They are also committing torts when they falsely ruin the credit records of consumers, and they should be held liable for this.

And there is plenty of witnesses to call in the form of extremely negligent cashiers that could care less about even verifying credit card identities. The Banks have just bought blame, have artificially dumped their losses on innocent third parties. And they may also be guilty of evidence tampering by getting rid of in store video evidence that clearly shows the person making the transaction was not the identity theft victim.

Bad Summary

[Anonymous Coward]

I don't think the original poster bothered to read the article linked to. If he/she had, it would be obvious that this article is discussing online CONTENT providers (hosting services, social networks, etc.) and has little or nothing to do with ISP's (internet SERVICE providers).

In any case, this is going to be a long, twisted journey through courts and lawmaking bodies in both the state and federal government.

Stay tuned.

Re:Bad Summary

[Reluctant Wizard]

One of the problems with the general direction of this discussion is that there are many different entities being referred to generically as "ISP". Many of the posters are lumping all of them together, when in fact there are ISPs, ICPs, and IHPs, just for a start. ISP usually means an access provider, responsible only for getting a customer connected to the Internet. IHP, an Internet Hosting Provider does just that -- leases out server space for ICPs, Internet Content Providers, to house their sites.

In some cases, these overlap, and an ISP can, and in some cases does provide both the other services. In these cases, there probably is no common-carrier type of protection, as the provider may perform an editorial function in deciding what information is presented by their ICP function. In the example of an access-only provider, the applicability of common-carrier protection is more clear, unless the ISP is filtering the traffic based on content. (Filtering by traffic type, i.e.- P2P for network stability, is not content filtering, as varied content is transported via P2P, and no content as such is discriminated against.)

Personality Rights

[Valdrax]

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

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.

Former AFF subscriber...

[Anonymous Coward]

These sites (Friend Finder, Adult Friend Finder, and all the others that are affiliated) do shady things.

I was a member of "Adult Friend Finder" (Hey, I was drunk and horny, OK?) and apart from the fact that it sucks, it's also full of fake ads from women.

A few days before my subscription was up, I was contacted by a cute girl on there. Local to my area. She mentioned a favorite bar, so I googled her user name and that bar, and found that she had, with the same username and picture, written a glowing review of it.

We sent a few messages back and forth, until I told her that my subscription to the site would be up in a day, and gave her another email-address that she could contact me on. Never heard from her again.

At the time, I thought she was a real person but maybe paid by AFF to bait guys so they would stay on the site (something felt suspect about the whole thing). Now I'm thinking AFF might just have taken her user-name and pic from Yelp (or somewhere else) and used it as a front on AFF.

From my reading of TFA, something similar happened in this case. A persons profile was used in a place where she didn't put it. If so, that is a really shitty move and they should rightly be punished for it.

The summary of this article is truly amazingly bad.

On the gripping hand...

[sconeu]

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".

Footnote 15 of the Roommates.com decision

[mgoren]

I don't know anything about the other case, but Roommates.com seems like they may be liable b/c they're specifically inducing infringement of the fair housing act. (Unlike craigslist, which pretty much lets people post whatever they want, roommates.com specifically asks and then uses race, religion, and other factors in their matching.) So I'm not sure that's so bad for future section 230 immunity, though it may (for better or worse) make certain business practices (like what roommates.com was using) more difficult.

But here's an interesting part that a friend pointed out to me, from footnote 15 of the Roommates.com decision:

"The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant--perhaps the preeminent--means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability."

Problems with the CDA

[JacobSteelsmith]

I believe the CDA should cover actual service providers such as hosts who may host tens of thousands of websites, but not webmasters who may manage a couple of websites. There are webmasters who run garbage websites like gossipreport.com where users are encouraged to post defamatory material anonymously, who then hide behind Section 230 of the CDA. The user has no recourse to get the information removed and I believe because the website is providing the forum for this behavior and enabling the user to act in this manner anonmously, they are responsible. I believe a user is ultimately responsible for the material posted to a website, but when the website operators purposely mitigate that responsibility, especially for profit or marketing purposes, I believe that responsibility is shifted.

Website is not ISP

[Anonymous Coward]

Duh.

This Is Bad.

[electrictroy]

If ISPs become liable for the content passing over their lines, then they could be open to suing by the RIAA. Which means the ISPs will act to stop my downloads of music or movies or tv shows. :-(