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

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.

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

[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

[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.

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

[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

[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!

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...

[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...

[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.

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.

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: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?)

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.

[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)