Privacy

Scott v. WorldStarHipHop, Inc.

Date: 

12/16/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

WorldStarHipHop, Inc., Berkeley College

Type of Party: 

Individual

Type of Party: 

Organization
School

Court Type: 

Federal

Court Name: 

Southern District of New York

Case Number: 

No. 1:10-cv-09538-PKC-RLE

Legal Counsel: 

Jennifer Stisa Granick, Scott Zarin (for Plaintiff WorldStarHipHop, Inc.); David Forbes Bayne, Joseph Louis Francoeur, Steven Mark Corder, Sr. (for Plaintiff Berkeley College)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

On December 16, 2010, Robert Scott filed a pro se complaint in the Southern District of New York against Berkeley College and WorldStarHipHop, Inc. (hereafter "WorldStar"). Berkeley College is private college in New York; WorldStar, a Nevada corporation, operates and maintains a video website.

According to Scott's complaint, a fight broke out in a Berkeley College class between Scott's current and former girlfriend in November 2010. During the classroom altercation, Scott got involved and repeatedly hit one of the girls. A classmate (Mr. Seymour) recorded the fight on his cell phone and sent it to WorldStar's website where it was posted as "Disgraceful: College Fight In NYC Breaks Out Between A Guy, His Girl & Another Girl In Class! (Man Strong Arm's(sic) The Student. Hitting Her With Body Shots)."

Shortly thereafter in December 2010, the classmate assigned his copyright in the video recording to Scott. Scott then sent take-down notices under 17 U.S.C. § 512(c)(3) to WorldStar, claiming the website was displaying the video without his [now copyright-owner's] written consent. WorldStar did not take down the video; this suit followed.

In his complaint, Scott alleged copyright infringement under the Copyright Act of 1976 and the Digital Millennium Copyright Act. He sought a temporary and permanent injunction, and $28,000 in statutory damages.

On April 18, 2011, Berkeley filed a Motion to Dismiss pursuant to Rule 12(b)(6) for failure to state a claim. In the motion, Berkeley alleged that Scott did not own a valid copyright, and furthermore that Berkeley was unrelated to co-defendant WorldStar and that Scott failed to show how Berkeley College was responsible for uploading the video. Berkeley argued that it was not accountable for copyright infringement because a "member" of its college posted the video. Berkeley also asked the court to take judicial notice that Scott was involved in two related proceedings with them at the time, both involving a gender discrimination claim filed by Scott with the New York State Human Rights Division against Berkeley due to the disparate discipline that Scott and the two girls involved received as a result of the fight (Scott was expelled, but the girls were allowed to return to school).

Scott filed a much longer amended complaint on May 24, 2011, with five claims. In it, he included claims against Berkeley College for sex discrimination and retaliation for filing a sex discrimination complaint, both in violation of 20 U.S.C. § 1681. He also included a claim of negligent infliction of emotional distress against Berkeley College. The copyright infringement claim returned, along with allegations of right to privacy violations pursuant to New York's Civil Rights Law.

Scott alleged that Seymour assigned him the exclusive rights of the copyrighted video for $1 on December 3, 2010. The next day Scott registered the work with the United States Copyright Office (Registration No. PA 1-727-922). He then claimed he contacted WorldStar and Berkeley College and demanded that they both "cease and desist further infringement" of the video. He further alleged that WorldStar "disregarded the statutory requirement of the Digital Millennium Copyright Act" and continued to publish the work. With respect to Berkeley College, he claims that the school infringed his copyright when it submitted the video as evidence in defense of the gender discrimination claim, and  downloaded a copy of the video from WorldStar and distributed it through the school's blackboard network and to its law firm. Scott sought a temporary and permanent injunction, $30,000 in statutory damages and $400,000 damages against Berkeley College for the gender discrimination claims.

On June 29, 2011, Berkeley filed a Motion to Dismiss Scott's Amended Complaint claiming that Scott's new claims were "patently meritless under well establish[ed] law." Berkeley argued that Scott could not use his alleged copyright to suppress evidence of his own wrongdoing, and that itssubmission of the video into evidence was fair use. Berkeley also discussed the public policy issues of copyright laws being used to "shield primary evidence of wrongful conduct in a judicial or administrative proceeding," and alleged that Scott had bad motives in purchasing the copyright of the video.

Scott filed an Opposition to the Motion to Dismiss on July 29, 2011. Berkeley replied on August 12, 2011.

On October 25, 2011, a judge issued an order on Berkeley's Motion to Dismiss, dismissing the case against Berkeley in its entirety with prejudice. The court dismissed the federal claims of copyright infringement, gender discrimination, and retaliation for filing a complaint. In particular, the court held that Berkeley's use of the video in its legal defense was a fair use. The court then declined to exercise jurisdiction over the state claims of invasion of privacy and negligent infliction of emotional distress, in the absence of pending federal claims. Scott has appealed the decision.

In the midst of the above proceedings, WorldStar had not filed an answer or responded to the lawsuit. A default was entered against WorldStar on October 6, 2011. 

On November 19, 2011, WorldStar filed a Motion to Set Aside Default claiming that it did not willfully default and that it was not properly served by Scott. In the motion, WorldStar also argued affirmative defenses against Scott's claims. They argued that there was a nonexclusive license from Seymour when he first posted the video and that "any assignment was subject to the exisiting license."  (Note: This language is from the court's order on May 3, 2012, quoting WorldStar's arguments from this motion. The copy of WorldStar's memorandum of law available through PACER is incomplete.)

The court granted WorldStar's Motion to Set Aside Default on December 12, 2011.

WorldStar then filed a Motion to Dismiss Scott's Amended Complaint on January 13, 2012. WorldStar argued that they are protected from Scott's copyright infringement claim under the "Safe Harbor" provisions of the Digital Millennium Copyright Act (DMCA), and had no actual knowledge that the video was infringing. WorldStar argued that Scott's letter sent on December 4, 2010, could not be used as evidence of actual knowledge of infringement because it did not comply with the requirements of 17 U.S.C. § 512(3)(b)(i). WorldStar also argued that "plaintiff had non-copyright reasons for wanting to suppress the video, specifically the Berkeley College disciplinary actions." WorldStar also claimed that § 230 of the Communications Decency Act (CDA) protected it from Scott's state right of privacy claims.

On February 6, 2012, Scott filed an opposition to WorldStar's Motion to Dismiss. In it, Scott alleged that WorldStar was outside of the scope of the DMCA's safe harbor provisions and the scope of § 230 immunity because it was not "doing business as a internet service provider" at the time the video was posted, because it was then in default as a corporation in Nevada. In addition, Scott asserted that WorldStar did not have a designated agent to receive take down notifications or a place on its website with information on where to send take-down notices, and that it did not provide that information to the U.S. Copyright Office, as required by the DMCA.

WorldStar replied on February 23, 2012, claiming that its corporate parent company's default status is not relevant to the "internet service provider" definition of either the DMCA or the CDA. WorldStar further argued that the DMCA safe habor provisions only allow the copyright owner injunctive relief, and that this is moot because the video has "long since been removed." WorldStar also argued that Scott's amended complaint contained no allegations of a lack of a designated agent.

Scott filed a Motion for Summary Judgment pursuant to Rule 56(a) on March 1, 2012.

The district court judge issued an order on WorldStar's Motion to Dismiss on May 3, 2012. The court dismissed the right of privacy claim, but allowed the copyright infringement claim to proceed. The court held that Scott stated a plausible claim for copyright infringement because he alleged that he became a copyright owner on December 3, 2010, and that WorldStar kept a copy of his video on their website without his authorization after that time. The court further held that WorldStar's two affirmative defenses were insufficient. First, the court found there was no evidence that WorldStar's nonexclusive license was in writing, as required by 17 U.S.C. § 205 for  the alleged license to prevail over a later transfer of rights to Scott. Second, in regards to the DMCA "Safe Harbor" provisions, the court held that even though Scott did not comply with statutory requirements of sending take-down notices according to § 512(c), WorldStar waived any objection by failing to request that Scott resubmit the notice or otherwise to take reasonable steps to obtain proper notification.

The right of publicity claim was dismissed because plaintiff did not allege that WorldStar used the video for advertising purposes, and furthermore it was within the "newsworthiness" exception because it was a recording of actual events that took place in public and was a "matter of valid public interest."

The court denied plaintiff's motion for summary judgment without prejudice because his motion did not comply with court rules. 

On June 11, 2012, World Star filed an answer to Scott's Amended Complaint. The complaint raises several affirmative defenses, including lack of personal jurisdiction and Scott's lack of standing due to failure to register the work in question with the Copyright Office pursuant to 17 U.S.C. § 411.

Update: 

On June 12, 2012, Scott filed a motion to strike the affirmative defenses raised in World Star's answer, claiming that the affirmative defenses were either waived for failure to raise at the motion to dismiss stage and for World Star's failure to timely file the answer under Fed. R. Civ. P. 12(a)(4)(A). On October 28, 2012, World Star filed an opposition to the motion to strike, acknowledging the untimeliness of the answer but arguing that the delay was not prejudicial to Scott. On November 14, the court denied Scott's motion to strike as to all affirmative defenses except lack of personal jurisdiction, finding that defense precluded by Fed. R. Civ. P. 12(h).

Jurisdiction: 

Content Type: 

Subject Area: 

Hoang v. Amazon.com, Inc.

Date: 

10/13/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Amazon.com, Inc., IMDb.com, Inc.

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

Western District of Washington at Seattle

Case Number: 

2:11-CV-01709-MJP

Legal Counsel: 

Ashley A. Locke, Breena Michelle Roos, Charles Christian Sipos, Elizabeth L. McDougall-Tural

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Junie Hoang, the stage name of Asian actress Huong Huang, filed an anonymous "Jane Doe" complaint in the Western District of Washington against the Internet Movie Database website, IMDb.com, and its parent company, Amazon.com, on October 13, 2011.

Hoang, who lives in Texas, has been a user of IMDb.com since 2003 and a subscriber to IMDbPro since 2008. She was using the services to help her connect with casting directors and to obtain acting roles. She did not put her age in her profile, but alleges that IMDb.com included it at a later point in time. She alleges that IMDb.com "took the personal information she provided during the subscription process [from her credit card] and added it to her online profile without her authorization." She also alleges that IMDb.com "scour[ed] public records" to discover her date of birth. She asked for her birthdate to be taken down, but IMDb.com has refused.

Hoang alleges that revealing her true name and age on IMDb.com has harmed her career because "in the entertainment industry, youth is king." Hoang was 40 years old at the time of filing. In addition, she alleges a "double-whammy effect" because she cannot get "forty-year-old roles" because she looks younger than she is and cannot portray the role of a forty-year-old woman.

In her complaint, Hoang alleges four causes of action:

  1. Breach of contract (of IMDbPro's Subscriber Agreement and incorporated Privacy Policy);  
  2. Fraud;
  3. Violation of Washington Privacy Act, RCW 9.73.030; and
  4. Violation of Washington Consumer Protection Act, RCW 19.86.

She included Amazon.com in her complaint because she alleges that the company "aided and abetted IMDb's wrongful conduct," and was aware of IMDb's procedures of cross-referencing credit card information with public records to gather as much information as possible about each subscriber. She sought an injunction to remove her personal information from IMDb, as well as $75,000 in comensatory damages, $1 million in punitive damages, and an award of costs and fees.

On November 9, 2011, defendants responded with two Motions to Dismiss: one pursuant to Rule 12(b)(6), failure to state a claim; and another pursuant to Rule 10(a), arguing that "Jane Doe" should not be able to proceed anyonymously. On the Rule 12(b)(6) motion, Amazon and IMDb argued that the display of the birthdate was "an accurate fact," and that Doe's claims about IMDb's practices were "pure speculation." The defendants also noted that even if Doe's claims were true, "plaintiff consented to such use of information when she subscribed to the IMDbPro service." 

On November 28, 2011, plaintiff filed oppositions to defendant's Rule 12 (b)(6) motion and Rule 10(a) motion, and simultaneously filed a cross-motion to proceed anonymously due to the "unique circumstances" in the case. Plaintiff argued that she should be allowed to proceed anonymously because disclosure of her identity would subject her to "severe retaliation, harassment and ridicule," including retaliation by defendants, who she claims "have a reputation of striking back at consumers who complain about their unauthorized publication of personal information." 

Defendants filed replies in support of their motions on December 2, 2011. They argued in regards to the 12(b)(6) motion that the plaintiff had failed to meet her burden of specific factual allegations sufficent to state a claim, and that each of her causes of action fail independently. In their reply pursuant to the 10(a) motion, defendants argued that plaintiff's arguments did not justify anonymity in this case, while also denying that they had ever "retaliated against [p]laintiff (or anyone else) for complaining regarding its practices." Amazon also claimed that "embarrassment does not meet the strict standards for anonymity." 

On December 23, 2011, the Washington district court judge in Seattle granted the defendant's motion to dismiss on Rule 10(a) grounds.  The court said "the injury [plaintiff] fears is not severe enough to justify permitting her to proceed anonymously. " The judge granted leave to "Jane Doe" to amend her complaint by adding her real name within 14 days of the order. 

On January 6, 2012, "Jane Doe" filed an amended complaint using her real name, Huong Huang.

On March 30, 2012, a federal district court judge ruled on the Rule 12(b)(6) Motion to Dismiss. Taking plaintiff's factual allegations as true, the court granted in part and denied in part defendants' motion.

  1. Breach of Contract. The court held that Huang's breach of contract claim was sufficient to survive the motion to dismiss stage. Plaintiff alleged an existence of a contractual duty and a breach of that duty. The court said the "plain language of the contract does not permit defendants unfettered use of the personal information that Plaintiff provided for the purposes of processing payment."
  2. Fraud. In regards to the fraud claim, the court held that Huang's claim failed because it did not meet the high standard of specificity requirements of Rule 9(b). This claim was dismissed with leave to amend with "the requisite standard of particularity."
  3. Washington's Privacy Act. Plaintiff's privacy claim also failed because it misapplied the Washington statute. The information was not "private" and was not "intercepted" or "recorded" by defendants, as required by the statute.  This claim was dismissed with prejudice.
  4. Washington's Consumer Protection Act. The Consumer Protection Act claim was also allowed to survive at the motion to dismiss stage. The court found that "defendants' alleged practices" could affect millions of people if plaintiff's allegations of IMDb.com's unfair and deceptive practices are true. 

On April 25, 2012, Huang filed a Second Amended Complaint (SAC), addressing the specificity in her fraud claim. In her SAC, Huang argues that defendants were engaged in data-mining, and that they "materially misrepresent...the safety, security and purposes for which they gather and use the personal and credit card information of consumers who subscribe to IMDbPro." She claims she would not have shared her credit card information if she knew the defendants would use "such information for other purposes." (The plaintiff and defendants disagree as to which documents represent the operative agreements in this matter.) Huang also adds a new claim about Amazon.com. She alleges that she purchased products from Amazon.com prior to subscribing to IMDbPro and  that "Amazon.com misrepresented in the Privacy agreement available on its website the terms on which Amazon.com would share her user information with IMDb.com."

After Huang filed her second amended complaint, defendants filed another Motion to Dismiss pursuant to Rules 12(b)(6) and 9(b) on May 9, 2012. In it, defendants argue that plaintiff's new claim about Amazon.com's Privacy Notice is a "thinly veiled attempt to keep Amazon.com in this lawsuit." Defendants also argue that plaintiff's SAC "comingles" defendants and fails to distinguish between Amazon.com and IMDb.com, as required for a state claim for fraud. They claim that plaintiff still does not specify "which statements are false, which statements IMDB.com knew were false and intended plaintiff to rely on, and which statements she had a right to rely on."  

Huang filed an opposition to the Motion on May 21, 2012, and defendants replied to the opposition on May 25, 2012.

On June 1, 2012, Huang filed a Motion for Relief from Trial Deadlines and to Continue Trial Dealines alleging defendants did not file substantial answers to her complaint and/or raise substantial defenses. The plaintiff also claims both parties have been "embroiled" in discovery disputes because Amazon claims to be exempt from full discovery. Defendants filed an Opposition to that motion on June 13, 2012, alleging that plaintiff was delaying her own responses to discovery and had failed to respond to efforts to negotiate a "mutally acceptable protective order." On June 15, 2012, Huang filed a Reply in support of her Motion for Relief from Trial Deadlines and to Continue Trial Date.  

The plaintiff and defendants asked the Court to enter a Stipulated Protective Order regarding discovery on June 28, 2012. 

 

Jurisdiction: 

Content Type: 

Subject Area: 

The 'Mugshot Racket' II: A Commercial Purpose Exemption?

When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct.

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Content Type: 

Subject Area: 

The Score in Illinois: First Amendment 2, Eavesdropping Law 1

Once again, the CMLP is pleased to report that the First Amendment has scored an important victory in a case involving the recording of police officers in public. Last summer saw the strong pro-First Amendment decision from the U.S. Court of Appeals for the First Circuit in Glik v.

Jurisdiction: 

Content Type: 

Subject Area: 

Privacy v. Public Access in the Emerald City

For the past few years here in Seattle, a fascinating debate has been brewing about the balance between government transparency and citizens' privacy, particularly at the intersection of the state Public Records Act and the state Privacy Act.

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Content Type: 

Subject Area: 

R.S. v. Minnewaska Area School District No. 2149

Date: 

03/06/2012

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

R.S., a minor

Type of Party: 

School

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Minnesota

Case Number: 

0:12-cv-00588-MJD-LIB

Legal Counsel: 

ACLU of Minnesota; Lindquist & Vennum PLLP

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

On March 6, 2012, R.S., a minor, and R.S.'s mother S.S., filed suit in federal court in Minnesota against Minnewaska Area Middle School, the school district, the county, and a number of school and county employees (including the county Sheriff). All of the individuals were sued in both their individual and official capacities, except for the Chair of the County Board (who was sued only in his official capacity). The complaint alleges a series of incidents involving R.S.'s out-of-school Facebook use.

The first set of events alleged in the complaint involve Facebook posts R.S. wrote about one of the school's adult hall monitors. R.S. allegedly complained on Facebook about the hall monitor, and the post was brought to the attention of the school. The post was, according to the complaint, "purely off-campus speech," having been written off hours, involving no use of school equipment. R.S. was given detention, and required to write an apology to the hall monitor. R.S. then posted again on Facebook, wanting to know "who the f%$# told on [her]." This second post earned R.S. one day of in-school suspension.

A subsequent Facebook-related incident began when another student's mother called the school, concerned that "her son was communicating via his computer with R.S. about sex." Eventually, R.S. was called into a room with two school employees and a Deputy Sheriff, who "demanded" R.S.'s email and Facebook login information. R.S. "eventually" gave the information "involuntarily," and the school employees proceeded to search R.S.'s Facebook account on the Deputy's computer. Again, the complaint alleges that all of R.S.'s communications were made off-campus, without using school equipment.

R.S.'s lawsuit alleges a number of federal and state law claims:

  • 42 U.S.C. § 1983 claims, alleging violations of R.S.'s First and Fourth Amendment rights under the Federal Constitution;
  • 42 U.S.C. §§ 1985 and 1986 claims, for conspiracy to violate R.S.'s constitutional rights, and failure to prevent the violation of her rights;
  • Violations of R.S.'s Minnesota state constitutional free-speech and freedom-from-unreasonable-search rights; and
  • State common-law claims of invasion of privacy and intentional infliction of emotional distress.

The complaint also seeks a declaratory judgment that R.S.'s constitutional rights were violated. For relief, the complaint seeks a mixture of injunctions, damages, changes to school policy and training, an apology, and costs/fees.

Jurisdiction: 

CMLP Notes: 

3/9/12: JS creating

Content Type: 

Subject Area: 

Jones v. Dirty World, LLC

Date: 

12/23/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dirty World Entertainment Recordings, LLC; Hooman Karamian; Dirty World, LLC; Dirty World Entertainment, LLC

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

U.S. District Court, Eastern District of Kentucky

Case Number: 

2:09-cv-00219-WOB

Verdict or Settlement Amount: 

$338,000.00

Legal Counsel: 

Alexander C. Ward and Alexis B. Mattingly (Huddleston Bolen LLP) and David Gingras (Gingras Law Office, PLLC) (for defendants Hooman Karamian and Dirty World, LLC)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On December 23, 2009, a Jane Doe filed a lawsuit in federal court. The plaintiff intended to sue TheDirty.com, alleging that a number of posts on the blog (self-described as a "reality blogger . . . all about gossip and satire") defamed her.

According to court documents, TheDirty operates through user-submitted posts. Readers of the site submit posts, and TheDirty's editor, Nik Richie, selects some of the submissions for publication on the site. Richie also adds one or two sentences of comment to each post.

The contested posts made a number of crude comments about the sexual affairs of the plaintiff, a Cincinnati Bengals cheerleader and schoolteacher. The posts made claims about the plaintiff's promiscuity, among other topics.

The complaint alleged that the posts made a number of false statements about plaintiff's sexual history, and included four counts: defamation, libel per se, false light, and intentional infliction of emotional distress. The plaintiff later filed an amended complaint, more specifically alleging the purported identity of the website's operator, and adding a second libel per se count (bringing the total to five).

Instead of suing the Arizona-based company that operated TheDirty.com, however, the plaintiff named a California company which operated a website called TheDirt.com. According to news reports, this led to a failure to serve the intended defendants. With the served defendant making no response, the plaintiff eventually moved for a default judgment, which was granted by the district court. The default judgment included an $11 million damage award, $10 million of which was punitive.

When the operator of TheDirty.com announced publicly that it had nothing to do with TheDirt.com, the plaintiff moved for leave to file a second amended complaint seeking to add the Arizona operator of TheDirty.com.  The plaintiff did not voluntarily vacate the $11 million judgment; instead, she indicated that she did not trust TheDirty.com's operator when it disclaimed a relationship with TheDirt.com, but wanted to be sure that all of the appropriate parties were named. The amended complaint included the same five counts as the first amended complaint.

Now identified and served, TheDirty moved to dismiss and made two arguments: that jurisdiction in Kentucky was lacking, and the CDA § 230 protected TheDirty. Since the plaintiff only alleged that TheDirty "published" the disputed material, as opposed to "creating" it, TheDirty argued that § 230's protections applied.

The plaintiff, in response, made a number of § 230 arguments. First, she argued that, by adding comments to the user-submitted posts, the operator of TheDirty became a "creator" of the content. Second, she argued that TheDirty was designed to "encourage" users to post defamatory material. Third, she argued that because TheDirty claimed ownership of user-submitted material, the site and its operators become "publishers."

After TheDirty submitted a reply, the court denied the motion to dismiss. The judge focused mainly on the jurisdiction questions, and only briefly discussed § 230, ruling that discovery was required before the § 230 question could be resolved. Shortly thereafter, TheDirty answered the second amended complaint.

Seven months later, TheDirty moved for summary judgment. The motion focused on two arguments: (1) that the disputed posts were submitted by users of the site, and (2) the comments that Richie added to the user-submitted posts were non-actionable opinion. At this point in the litigation, the plaintiff's real name appeared in the case caption.

The plaintiff responded, arguing that because Richie read each user-submitted post before approving it for publication on TheDirty, and because TheDirty encouraged "the development of defamatory material," § 230's protections did not apply. TheDirty then filed another reply, responding in detail to the idea that TheDirty "created" the posts at issue. TheDirty argued that § 230 caselaw was well-established, and that performing editorial/moderation functions did not suffice to make TheDirty the "creator" of the posts.

On January 10, 2012, the district court judge denied TheDirty's motion for summary judgment. The judge based his § 230 ruling on two cases: Fair Housing Council of San Fernando Valley v. Roommates.com, and Federal Trade Commission v. Accusearch. Taken together, according to the judge, these cases stood for the proposition that if a website "specifically encourage[s] development of what is offensive about the content" of the disputed post, § 230 provides no protection. The judge ruled that TheDirty's name and management style, combined with Richie's added comments to the post, meant that TheDirty encouraged the offensive content.

Updates:

05/09/12: The U.S. Court of Appeals for the Sixth Circuit granted Jones's motion to dismiss the TheDirty's interlocutory appeal of the district court's denial of their summary judgment motion. The Court of Appeals held that the denial of a motion to dismiss is not a final order, and that there were not sufficient interests at stake to hear TheDirty's appeal prior to final adjudication.

01/25/13: The first trial of the matter ends in a hung jury after two days of deliberation; the district court judge declared a mistrial.

07/11/13: After retrial, a jury awarded Jones $338,000 in damages.

08/12/13: The trial court denied the defendants' motion for judgment as a matter of law, again rejecting the application of Section 230 to the facts of the case. Based upon the legislative intent of Section 230 to encourage voluntary censorship of offensive content, the court held that the protection of the statute does not extend to intermediaries who actively encourage the posting of offensive material: "[T]he Act's text indicates that it was intended only to provide protection for site owners who allow postings by third parties without screening them and those who remove offensive content."

Jurisdiction: 

CMLP Notes: 

1/12/2012: Pulling it together; will be done first thing tomorrow (JS)

1/13: Ready for review (JS)

1/13: JH editing

Content Type: 

Threat Source: 

Blog Post

Subject Area: 

Everybody's Public to Somebody?: Social Media and the Public/Private Divide

facebook

First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are "public" (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are "private" (less societally important, so less protected).

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Subject Area: 

Live Tweeting from the ‘Restaurant of Broken Dreams’

When web developer Andy Boyle overheard a couple discussing their marital woes in a Burger King in Boston on Nov. 7, he immediately recognized the entertainment value and began tweeting a play-by-play.

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Subject Area: 

Antioch University v. The Antioch Papers

Date: 

02/29/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Brian Springer, Tim Noble, TheAntiochPapers.org, theantiochpapers@gmail.com

Type of Party: 

School

Type of Party: 

Organization

Legal Counsel: 

Robert J. Fitrakis

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

The Antioch Papers, an investigative journalism and media arts website, maintains and "open archive for primary source materials that document the institutional life of Antioch College and by extension Antioch University."  Source materials have been gathered through publicly accessible archives and through submissions by institutional whistle blowers.

On February 29, 2008, Antioch University sent a letter to The Antioch Papers demanding the removal of documents that the University alleged included attorney/client privileged communications and proprietary business and financial planning documents.

The Antioch Papers responded in a letter dated March 12, 2008, asserting a First Amendment right to publish the materials at issue.

No further actions on this dispute have been reported; the operations of Antioch College were suspended in July 2008, apparently rendering this demand moot.

 

Jurisdiction: 

Content Type: 

Subject Area: 

Justin Bieber v. FreeBieber.org

Date: 

10/25/2011

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Fight for the Future, FreeBieber.org

Type of Party: 

Individual

Type of Party: 

Organization

Legal Counsel: 

Corynne McSherry, Electronic Frontier Foundation

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Fight for the Future is an advocacy organization focusing on free speech and consumer rights issues related to intellectual property and technology. The organization is opposed to Senate Bill S.978, introduced in May 2011, which alters the criminal penalties for copyright infringement and extends criminal liability for public performances of works in certain circumstances.

Fight for the Future believes that extending liability for public performances of copyrighted works would extend criminal liability to many amateur musicians, who frequently post unauthorized "covers" of works on websites such as YouTube. Noting that musician and teen celebrity Justin Bieber gained his initial fame from unauthorized covers of R&B songs on YouTube, the organization created a website called FreeBieber.org. The website contains several depictions of Bieber in prison uniform and behind bars, suggesting that he could be arrested if S.978 becomes law. The website encourages visitors to write to Congress opposing the bill, and to create videos expressing their opposition using a superimposed overlay of prison bars and a digital wig in the shape of Bieber's iconic haircut, provided by the website.

On October 25, 2011, counsel for Justin Bieber sent a cease-and-desist letter to FreeBieber.org, claiming that the website infringed Bieber's trademark rights by falsely suggesting his endorsement of Fight for the Future's campaign, and violated his rights of privacy and publicity.

Fight for the Future's attorney responded, claiming that any use of Bieber's name or image was nominative fair use under trademark law and protected by the First Amendment. The attorney also rejected claims of privacy and publicity, noting that Bieber is an extremely public figure and any claim under right of publicity would be trumped by the First  Amendment.

As of October 31, 2011, the website is still active.  S.978 has been reported out of committee and has been placed on the legislative calendar.

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Health Reporters Unite! How One Doctor's Complaint Turned a Public Database Private

Kansas City Star reporter Alan Bavley had a hunch. After years of investigating the health care industry, Bavley began to suspect that state medical boards did not adequately discipline doctors who committed malpractice. Physicians battling substance abuse, for example, were punished far more harshly.

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Tell Us, Judge Posner, Who Watches the Watchmen?

In what is now their widely publicized exchange, U

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Zen and the Constitutionality of Twitter 'Cyberstalking'

If you thought a spat between Buddhists couldn't devolve into a federal cyberstalking case of dubious constitutionality, consider the following.

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Baby Brady Photos Removed, But Did AG's Office Overstep Its Bounds?

If you've been living in Boston, you've undoubtedly heard the recent uproar over a local website publishing a photo of Ben Brady, the 20-month-old son of New England Patriots quarterback Tom Brady and supermodel Gisele Budchen, playing with his parents on a Costa Rican beach.

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CMLP and Cyberlaw Clinic Urge First Circuit to Affirm First Amendment Right to Make Cellphone Recording of Police

With the help of Harvard Law School's Cyberlaw Clinic, the Citizen Media Law Project and a coalition of media and advocacy organizations submitted an amicus curiae brief last week to the United States Court of Appeals for the First Circuit in a case involving a lawyer who was arrested for using his ce

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New Conference for Internet Law Scholars

Call For Papers:

The High Tech Law Institute at Santa Clara University School of Law and the Institute for Information Law and Policy at New York Law School are pleased to announce a new annual works-in-progress series for Internet Law scholarship. The inaugural event will be held at Santa Clara University on March 5, 2011. Thereafter, the event will rotate between NYLS and SCU each Spring semester.

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Social Media Policies: Fed Labor Law Problem?

A Connecticut company suspended and then fired an employee for making disparaging comments on Facebook about the company and about her supervisor.

Not in dispute is that the employee’s actions violated the company’s social media and other personnel policies, which (among other things) prohibited depicting the company ‘in any way’ on Facebook or other social media sites or from “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

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