Massachusetts Attorney’s Innovative Attempt to Use Copyright Law to Remove Defamatory Material From “Ripoff Report” Unlikely To Succeed

by Lee Gesmer on August 6, 2013

Massachusetts Attorney’s Innovative Attempt to Use Copyright Law to Remove Defamatory Material From “Ripoff Report” Unlikely To Succeed

An unusual copyright suit recently filed in federal court in Boston is worth a brief comment.

Here are the facts.

In July 2012 someone wrote an offensive, defamatory “complaint” about a Boston attorney on the website Ripoff Report.  Because a federal statute (47 USC § 230) protects Ripoff Report from liability for defamatory user generated content (“UGC”), the lawyer could not force Ripoff Report to remove the defamation from the site.* However, he came up with a clever (but, as we shall see, probably ineffective) work-around.

 *Ripoff Report does not voluntarily take down UGC.

The lawyer sued the original poster for defamation in Massachusetts superior court, and obtained a default judgment.  As part of the relief he was assigned the copyright in the defamatory posting (or, power of attorney giving him the right to assign copyright ownership to himself). He then demanded that Ripoff Report take down the copyrighted material. Ripoff Report refused, and the lawyer has now sued Ripoff Report in federal court in Boston for copyright infringement.

Setting aside the question of whether transferring copyright ownership of defamatory material is a proper remedy for defamation (this implicates First Amendment issues), and whether the defamation at issue is even entitled to copyright protection (it is very brief and non-creative), can the lawyer use this strategy to obtain removal of the defamation from Ripoff Report?*

 *More precisely, can the threat of damages for copyright infringement compel Ripoff Report to take down the defamation?

At first blush the attorney’s copyright suit against Ripoff Report faces two significant problems: first, whether the Massachusetts state court had the legal authority to transfer the copyright to him, and second, whether the original author granted rights to Ripoff Report that trump any rights the state court could give to the lawyer.

Let’s take these in reverse order. Paragraph 6 of the Ripoff Report’s terms of service state: “by posting information or content to any public area of www.RipoffReport.com, you automatically grant, and you represent and warrant that you have the right to grant, to [Ripoff Report ] an irrevocable, perpetual, fully-paid, worldwide exclusive license to use, copy, perform, display and distribute such information and content ….” In order to post on Ripoff Report a user must register on the site and agree to be bound by a clickwrap agreement that includes these TOS.

Can an assignment (whether by the court or even the original author) deprive Ripoff Report of this license? Clearly not. Ripoff Report, not the original poster, owns the copyright in this content. (See, e.g.,  Davis v. Blige, 2nd Cir. 2007 (“exclusive license … conveys an ownership interest”).

The fact that Ripoff Report owns the copyright should end the matter right there. The Massachusetts court had no authority to transfer ownership in a copyright that was not even owned by the defaulting defendant. However, there is the further question of whether the Massachusetts state court had the authority to transfer ownership to the attorney, even if the defendant had still owned the copyright. The copyright statute provides that “when an individual author’s ownership of a copyright, … has not previously been transferred voluntarily by that individual author, no action by any governmental body … purporting to … transfer, or exercise rights of ownership with respect to the copyright … shall be given effect except as provided under title 11.”

Title 11 is the federal bankruptcy statute. Bankruptcy was not implicated in this case, and in any event the bankruptcy laws are administered by the federal bankruptcy courts, not the state courts. Thus, the state court did not have the authority to transfer any rights of ownership in the defamatory material, and therefore any rights the attorney could have acquired by reason of the court order are of no legal effect. Because the attorney does not hold the copyright he has no valid copyright claim against Ripoff Report, and the case should be dismissed.

[Note: I have not provided the name of the attorney or the case, or a link to any pleadings, because I am hoping to spare the attorney involved any further discomfort arising from the Streisland Effect.]

 

Previous post:

Next post: