Click the play button below to listen, or click here to subscribe to us on iTunes!

Click here to download this week’s show.

Here are the show notes for this week’s episode:

Shownotes for The Singularity Law Podcast: Episode 8 for December 8, 2008

Our Panel for Today:

• Prof. Michael Scott of The Singularity Law Blog
• Josh Kagan of The Josh Kagan Blog

Video Game Law as a Hot New Practice Area: Hype or Reality?

• Wall Street Journal: Video-Game Law: The Niche Legal Practice Du Jour
• LA Times: These Lawyers Got (Video) Game
• Michael Scott’s blog: Videogame Law: New Legal Specialty or Marketing Hype?

The Limits of Section 230 Immunity, Part 1: Malware

• 47 U.S.C. §230
• Venkat Balasubramani’s SPAM NOTES blog: Could Facebook Be Liable for Spreading the Koobface Virus?
• Green v. AOL

The Limits of Section 230 Immunity, Part 2: Trademarks

• Alleyinsider: Amazon, Google: eBay Shouldn’t Have To Hunt For Trademark Infringers
• EFF: Jewelry Company Quest to Expand Trademark Law Could Quash Internet Commerce

Practice Pointer: The Continued Importance of Forum Selection Clauses

• “Internet Cases” blog: Court enforces forum selection clause in web hosting agreement
• Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)

Turning Piracy Into Profit: The Myspace Experiment and Other DMCA Issues

• Reuters: MySpace, MTV Test Piracy-Profit Plan
• Michael Scott’s blog: Priming the Pump – Copyright Style

Final Thoughts: Entrapment by Emoticon

• Wall Street Journal: Emoticons on Trial at the Nebraska Supreme Court

This recording is an informational resource only. It is not designed to offer legal advice

I recommend downloading (instead of allowing it to play in the browser) for a full-screen picture.

• Elektra v. Barker and London-Sire v. Doe:  Can merely “making available” a file on a P2P network constitute copyright infringement, or does infringement require that a plaintiff prove that the file was actually downloaded by a third party?  Maybe not.  Coincidentally, I’m currently working on a seminar paper on this very topic.
• Fair Housing Council of San Fernando Valley v. Roommates.com, LLC.:  Roommates.com was denied § 230 immunity by the Court of Appeals for the Ninth Circuit.  Eric Goldman comments on his blog.
  
• Perfect 10 v. Visa:  This is a secondary liability suit in which a copyright owner unsuccessfully sought damages from a group of credit card companies that process transactions for infringers overseas.  On appeal, the plaintiff has now been joined with an amicus brief filed by the MPAA, RIAA, and others, as well as another amicus brief filed by the an organization that polices with counterfeit apparel and sneakers.  I’ll comment on this sometime soon once I’ve had an opportunity to read the briefs.
• A class-action was settled by Apple last week after some consumers complained that the flat panel displays on their Apple notebook computers don’t display as many colors as they should, leading to inferior image quality.  This week, an identical suit was filed complaining that Apple’s “iMac” line of all-in-one desktop computers have the same problem.  Apple might settle again simply to avoid negative press, but the truth here is that all flat panel displays from all manufacturers have this issue.  No flat panel display can mimic every color that the human eye can see, so they all fake it using a technique called dithering.

The most obvious potential for litigation against JuicyCampus, aside from the largely meritless consumer fraud action brewing against them in New Jersey, is a suit for libel by a hypothetical student who claims s/he has been defamed by something posted by a visitor to the website. Defamation is the communication of a false statement of fact that may harm the reputation of an individual. Courts have held that the posting of a defamatory statement to an Internet website is libel, the strongest form of defamation which is characterized by having the harmful statement published in a fixed medium. Section 230(c)(1) of the Communications Decency Act of 1996 provides immunity from certain kinds of civil liability, including defamation, for “providers of interactive computer services” who publish information provided by others. “Interactive computer services” includes website operators such as the operators of JuicyCampus. The relevant caselaw suggests that even when a website operator does not take steps to police content on his/her site, s/he will not be liable as a publisher for statements posted to the site by third-party visitors. The law instead views the website operator as more akin to an owner of a newsstand, distributing content written by others and not directly responsible for that content.

Section 230, a law that took effect in 1996, was inspired in part by Stratton Oakmont, Inc. v. Prodigy Services Co., a 1995 case in the New York State Supreme Court, in which a controversial opinion held that the defendant (an ISP and forum operator) could in fact be treated as the publisher of third-party postings to its Internet forum because it had an ability to police and delete messages that it found to be offensive. Service providers feared that the Stratton Oakmont decision would force them into one of two extreme positions, both of which were likely to cause backlash from users and would threaten the development of the Internet. On the one hand, service providers could opt to police Internet forums vigorously, filtering messages and aggressively deleting objectionable content to limit their liability. On the other hand, service providers could opt to shut their eyes entirely, refraining from moderating any posts whatsoever such that they could argue that they did not exercise any editorial control over the forum. With § 230, Congress gave service providers the safe harbor they required to build services like Internet forums free from fears of liability over content contributed by others. Section 230 also allowed for the proliferation of other Internet phenomena such as blogging, social networking, and content sharing. For example, could you imagine the burden that would be imposed on the authors of popular blogs if they were forced to moderate and research the accuracy of each and every comment that third parties post? In a world without § 230, it is likely that most popular bloggers would have preferred to disallow commenting entirely in order to avoid the burdens associated with it.

But JuicyCampus is not a blog. It is also not a typical Internet forum. There are at least two good reasons for this.

First, on most Internet websites that allow third-party contributions, users are required to identify themselves in some way. For example, if you choose to comment to this post on my blog, you are asked to provide an email address and choose a name. The name you choose may not be the name you use in real life, but it is designed to identify you in the discussion of comments that follows this post. This creates accountability in that your reputation–as pseudonymous as it may be–is attached to each comment you post. In contrast, JuicyCampus seems to make no such attributions. When a user writes a post on JuicyCampus, s/he has no incentive to warrant the accuracy or objectivity of the post. The website is entirely anonymous, which promotes a platform for posters who wish to recklessly disregard the truth, or worse.

Secondly, most Internet websites that allow third-party contributions keep certain logs about users that contribute content. For example, if you decide to leave a comment on this post as described above, the server that hosts this blog will also make note of your computer’s IP address, which is an identifier that could in most cases be used to accurately determine your identity if necessary. In the event that a plaintiff decides to bring an action against me as the publisher of information that you posted, I would be able to (and a court would probably order me to) provide the plaintiff with that information, helping the plaintiff to find the true publisher of the objectionable content. Ergo, although the plaintiff will not be successful in an action against me as publisher, the plaintiff might still have a cause of action against the third-party poster. In the case of this blog, that plaintiff still has a way to recover for his/her damages. But the same would not be true for an equivalent plaintiff bringing an action against JuicyCampus. Under the current body of caselaw associated with § 230, that plaintiff’s action against JuicyCampus would likely fail because the court would find that JuicyCampus is a mere distributor, and the plaintiff would probably not be able to ascertain the identity of third-party poster who is the proper defendant.

The operators of JuicyCampus would likely argue that their website is analogous to a big open area where anyone can speak without identifying himself. But, in the real world, even when people speak anonymously to strangers in an open area, they reveal certain aspects about themselves to that group, such as their voice and face. Internet posts often contain no such identifying characteristics. The consequences of this are clear: some victims of online torts may be left with absolutely no way to recover where the third-party poster–unquestionably the true tortfeasor–cannot be identified due to the anonymity policies of forums like JuicyCampus.

I’m not yet sure of the best solution to this problem. Should websites like JuicyCampus be prohibited from providing such complete anonymity to posters? Or, should they be required to give up some of their § 230 immunity in exchange for providing such anonymity? Or, can we as a society simply find it acceptable that, in this new age of technology, some plaintiffs simply will not be able to recover for their damages because of the anonymity required to allow free speech on sites like JuicyCampus?

Disclaimer: This weblog is an informational resource only. It is not designed to offer legal advice.