Tuesday, September 30, 2008

Are Websites Responsible for Defamation Posted by Their Users?

As a lawyer operating an internet law firm, I am often asked whether or not websites are responsible for the content posted by their users. This frequently arises in the context of defamation. A business or individual is horribly defamed on a site like Ripoffreport or Citysearch or Yelp and the defamatory post achieves a high rank in Google natural search results for that particular business or individual. As a result, said business or individual experiences horrible fallout in the form of public shame and loss of business.

The defamed party obviously has claims against the poster/author of the defamatory content. However, many defamed parties wish to also sue the website that provided the forum for the wrongdoer and broadcast the harmful defamation to the world.

The bad news is that the Communications Decency Act (CDA), signed by Bill Clinton in 1996, provides broad immunity to websites for content posted by their users in addition to other torts. Of course, this law was passed well before the web 2.0 revolution which birthed a bevy of websites granting users the ability to post content and collaborate in ways never previously contemplated. Bottom line is that in most situations, websites are not liable for the bad acts of their users, including defamation.

Recently, the Ninth Circuit has given victims of defamation a little hope and perhaps signaled a shift toward further website responsibility in policing its users. In Fair Housing Council of San Fernando Valley , et. al., v. Roommate.com, LLC, the Ninth Circuit held that the CDA would not provide immunity to Roommate.com for violations of the Fair Housing Act and other state laws. The reason the Court gave was that Roommate.com participated in the bad conduct of its users by providing drop down menus for its users to complete - these drop down menus were used by Roommate.com to commit discriminatory housing acts.

So, there is finally some caselaw on the books - applicable at least in the west coast states comprising the Ninth Circuit - which suggests that websites may be held liable for the defamatory comments of users if the website editorializes or embellishes or legitimizes its users' comments in any way. I believe a number of these business ratings websites, identified above, may be held liable for defamation committed by their users because most, if not all, legitimize their users' posts in the form of stars or smiley faces or other avatars and/or icons.

If you have questions regarding internet defamation and the Communications Decency Act, contact an experienced internet defamation attorney.

Friday, September 26, 2008

Terrific SEO Expert Blog

Before I embark on my weekend full of football viewing, I want to quickly endorse what I have found to be a terrific resource for internet law attorneys. Michael Gray writes the GrayWolf SEO blog which does a tremendous job of breaking new and interesting developments related to SEO and explaining just how the hell Google works. Click on the title link to get there and dive into the world of SEO.

Wednesday, September 24, 2008

Copyright Law Basics

As an internet lawyer, I often deal with legal issues centered upon copyright. That being said, many times clients are very confused as to what is and what is not protected by copyright.

Copyright is a legal theory which grants the creator of an original work an exclusive bundle of rights flowing forth from such creation. Copyright does not protect ideas, but rather, it protects the expression of ideas in a fixed tangible form. Thus, copyright will protect creative works fixed in such tangible forms as books, cd's, dvd's, computer code, paintings, writings and drawings. In general, copyright is the right to make copies of a given work. However, a whole bundle of rights comes with copyright in America. A copyright holder has the right to be credited for the work, to determine who may make derivative versions of the work, who may distribute copies of the work, who may charge money for exhibition of the work, who may publicly perform or display the work. The public policy motive behind copyright is that governments wish to encourage the creation of new forms of expression by granting authors of works the ability to control the exploitation of such works and make money from such works.

In America, copyrights are created upon creation of a work. However, formal registration with the Librarian of Congress is required as a precedent to enforcing copyrights in a court of law. In other words, you can possess a copyright without formal registration but you can't sue for copyright infringement without a proper registration of the work. Many countries around the world do not require formal registration as a pre-requisite to enforcement.

The term of copyright generally lasts between 50 and 100 years after the author's death.

There are many exceptions and limitations applied in copyright law. The most notable being the "fair use" exception to a copyright holder's exclusive bundle of rights. If the doctrine of fair use applies, no infringement will be found. The internet and new distribution platforms such as peer to peer networks have rapidly changed the copyright landscape. Copyright holders generally advocate for an expansion of copyrights and legal mechanisms to aid in the identification of digital, internet copyright infringers. Many internet populist and digital freedom advocacy groups advocate for expanded application of the fair use doctrine.

If you have further questions regarding copyright and the impact the internet has upon copyrights, contact an internet law attorney for more information.

Tuesday, September 23, 2008

Are We Going to Get International Internet Copyright Regulation?

The Bush administration is negotiating a possible international internet treaty which would provide copyright holders with increased protections. Not surprisingly, consumer groups and internet companies led by Google are opposed to this potential treaty. The Bush administration is talking with Japan and the European Union regarding the treaty. However, most savvy internet attorneys will tell you that Japan and the EU is not where the majority of nefarious copyright infringement occurs. China, Russia and the former Soviet block countries rule the roost when it comes to copyright infringement.

Google is attempting to insert an exclusion from the treaty for the sale of copyrighted movies and music on the internet. Obviously, as Google becomes a larger and larger distributor of content through Youtube and other properties, the more opportunities for infringement arise. Youtube is already up to its neck in internet based copyright infringement lawsuits. The last thing Google wants to deal with is even stricter copyright infringement oversight and procedures. Currently, companies like Google are required to set up procedures to deal with DMCA take down notices provided by content owners. Simply processing the volume of these notices must add millions to Google's expense sheet. Think of the potential cost to be shouldered by internet companies in the wake of an international treaty.

The real point to take from this proposed treaty is that internet lawyers and internet law firms now have to take a global view of copyright infringement in a way that simply wasn't imaginable even 10 years ago. The proliferation of broadband, distribution platforms and bit torrent technology has led to an international copyright infringement epidemic. This technology makes infringement easy and, currently, there is no international regulation so, in most countries, there is no downside or risk for infringers. This is rapidly changing however, and not just due to this potential treaty. Courts in both America and Europe have become more responsive to the needs of internet lawyers in obtaining the identity of infringers.

In America, the current weapon for internet litigators is the John Doe lawsuit. Armed with only an ip address and evidence of an infringement, internet lawyers must file a lawsuit against unidentified defendants, and then discern the identity of such defendants by issuing subpoenas. Perhaps this new treaty will provide a mechanism whereby internet law firms no longer need to utilize the cumbersome john doe lawsuit procedure and, instead, may obtain infringer identities outside of the litigation context.

Bluegrass State Seizes Gambling Domains

Gambling is regulated, by and large, on a state by state basis. A state judge in the bluegrass state has taken the unprecedented action of seizing over 100 gambling site url's. The basis for the Court's authority appears to be an utter mystery. As a practical matter, it won't make much sense for those who have lost their domains to fight it. Very, very simple to register a similar domain in another country and host the site on servers in a foreign jurisdiction beyond the reach of American courts. My bet is that these sites are back up and running in a matter of hours. Interesting that most opposition to gaming sites comes directly from state governments that sponsor or endorse various forms of gaming. I guess the moral objections to gaming go out the window as long as the state can get its hands on the money.

Tuesday, September 16, 2008

The Future of Gambling Websites - Web 3.0 and Beyond

Gaming websites became extremely popular in the late 90's and early 00's. The ease of use of these sites was a particularly strong draw. The sports fan no longer needed to go through the hassle of finding a guy on the street to take his action on the big game.

George Bush and Congress effectively killed online sports gambling in America by the passage of the SAFE Port Act, outlawing banks from entering into transactions with online gaming sites. The result was that many online gambling sites suspended real money operations.

As always, e-commerce is an extremely adaptive animal. The next generation of gaming sites is now surfacing and beginning to make a dent. The business model has changed from the site taking straight, real money bets. Now, we see sites popping up offering user against user wagers, aggregate weekly and season pick 'em type sites and sites awarding points or fictional dollar totals for correctly picking games. Usually, points or fictional dollars are redeemable for various prizes.

These new sites avoid the current gambling laws because, usually, they do not require the player to wager any real money. Thus, a key element in the definition of illegal gambling is missing. I also find it interesting that these new gaming sites are true web 2.0 and web 3.0 companies, offering collaboration and micro-social networks. Will these sites change the face of sports wagering? That remains to be seen.

If you have questions about the legality of sports gaming websites or any other type of e-commerce business, contact an experienced internet law attorney.

Great Internet Law Blog

I love to promote other creative, innovative internet lawyers out there. I recently stumbled upon one such fellow's blog. Mr. Evan Brown puts out a terrific internet law blog which does a great job tracking case law developments. I found it very helpful and informative. I am sure readers of my blog will enjoy it as well.

Friday, September 12, 2008

Virginia Spam Law Struck Down

Virginia internet users sick of email spam may be depressed today. Apparently, Virginia's tough spam law goes a bit too far. That is, it is a bit too broad in outlawing spam. Why is that? The Virginia statute bans anonymous emails and that, according to the Virginia Supreme Court, is an unlawful restriction on First Amendment rights.

What constitutes lawful commercial email as opposed to spam is a fine line. Anyone conducting mass commercial email solicitations must have an experienced internet lawyer review their campaigns. I have been noticing an increase in jail time and penalties for those convicted of spamming. Judges are starting to regard spam as a more serious offense.

Myspace Music Launching Soon in the Wake of Muxtape

Myspace is launching its new free music platform. This will allow users to organize and listen to music from the big U.S. music labels free of charge. The labels are hoping to recoup money from lost cd sales by monetizing ad revenue on the site. I'm not too optimistic Myspace music is going to deliver significant revenue from advertising. We'll see how it is deployed. If ads are inserted into free content - then I can see it working to some extent. At least advertisers could be assured their message is being heard. But if the advertising model is simply pay per click, I don't see it generating much revenue. Fraudulent clicks are a huge problem in the pay per click model. Also, are users going to leave the free music content to watch advertising? Me thinks not.

It is a shame that Muxtape was shut down by the RIAA, it seemed like a much cooler, user friendly and interactive site. I wonder if Myspace and Newscorp had anything to do with that?

For further information regarding pay per click advertising and other online advertising revenue streams, consult an experienced internet law attorney.

Thursday, September 11, 2008

Antitrust Noise Surrounds Google

Real quick, I found it very interesting that the U.S. Department of Justice has hired a top lawyer to investigate Google with regard to anti-trust concerns. It is not clear whether this relates only to the deal with Yahoo to use Google's search technology or if it will encompass Google's overall business. Google is certainly getting into Microsoft territory, the last sexy tech anti-trust case.

Depending on who you ask, Google now controls 70% to 85% of the online search advertising market. The antitrust drum will only continue to get louder for Google. Perhaps we'll see a break-up like the baby bells in telecom. Only time will tell.

Friday, September 5, 2008

Internet Directories and Ratings Websites,

I have been in trial this week, so I have been neglecting my blog but want to fire off a quick post about a new issue I have spotted regarding internet directories.

Almost everyday, I receive calls from businesses and professionals upset that they have been defamed by an anonymous reviewer on an internet business directory/ratings service. Citysearch is one such prominent directory, but there are specialized directories for lawyers, doctors, dentists and every other kind of profession you can imagine. It is very difficult, under the Communications Decency Act, to hold the website liable for defamation. As such, most websites refuse to remove defamatory, anonymous posts. Unfortunately, those posts remain and often rank high in Google search results.

What is a business or professional to do? Recently I have found a great deal of success in "convincing" website directories and ratings sites to remove defamatory posts. Not because of the defamation angle, but based upon the theory that such sites do not have my clients' permission to use their name, likeness and trade names for profit. Frequently, these sites generate revenue by posting ads upon my clients' profiles. I call that misappropriation of likeness for profit and an unfair business practice. Should a business or professional be forced to associate with a website directory against their will? That strikes me as wrong. This may become a powerful new tool in combating anonymous internet defamation on directories, we shall see as it is yet to be fully tested in a court of law.

If you are the victim of internet defamation, contact an internet defamation lawyer for information regarding your rights.