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

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: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.

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.

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)