DMCA/CDA

On May 28, 2020 President Trump issued an “Executive Order on Preventing Online Censorship” (the Order). It takes aim at Twitter, Facebook and Google through the lens of 47 U.S. Code § 230 (Section 230), the federal law that allows  internet platforms to host and moderate user created content free of  liability under state law. The Order came just days after Twitter, for the first time, added warning labels and fact-checking to several of Trump’s tweets.

A lot has already been written about the politics behind the Order.1 But what does the Order accomplish as a legal matter? Here’s my take, in brief.

First, the Executive Order directs the Commerce Department to ask the FCC to do rulemaking to interpret Section 230. Section 230 does not delegate to the FCC rule-making authority, so I don’t see how the FCC could exercise rule making authority with respect to Section 230.… Read the full article

It’s Probably Not a Good Idea to Sue Glassdoor If Your Employees Diss You There

Section 230 of the Communications Decency Act has, once again, protected a website from a claim of defamation based on user postings.

Simply put, Section 230 of the CDA provides that a website isn’t liable for defamation (or any other non-intellectual property claim) based on user postings. The poster may be liable (if she can be identified), but the website is not. Typically, Section 230 cases involve defamation or interference with contract by the poster — copyright infringement based on user postings is handled by a separate statute, the DMCA.

Craft Beer Stellar, LLC’s suit against Glasdoor ran into this law head-first in a recent case decided by Massachusetts U.S. District Court Judge Dennis Saylor.

Craft Beer complained to Glassdoor over a critical posting by a Craft Beer franchisee (the fact that the post was by a franchisee rather than an employee is legally irrelevant). Glassdoor removed the posting on the ground that it violated Glassdoor’s community guidelines.Read the full article

Attorney's Attempt to Circumvent CDA Fails Before California Supreme Court

The Communications Decency Act (CDA) is a federal law that protects online publishers from liability for the speech of others. The CDA gives online platforms the right to publish (or decline to publish) the ideas and opinions of users without the threat of being held liable for that content or forced to remove it.

However, people who are defamed online will sometimes go to extreme lengths to try to force online publishers to remove defamatory content posted by users. A notable First Circuit case that I wrote about recently illustrates how a lawyer attempted, unsuccessfully, to obtain copyright ownership of several defamatory posts and then force Ripoff Report to remove the posts. (See: The Copyright Workaround and Reputation Management: Small Justice v. Ripoff Report).

A California attorney tried something similar in Hassell v. Bird, a case decided by the California Supreme Court on July 2, 2018. In that case a lawyer (Dawn Hassell) sued a former client and the author of a Yelp review (Ava Bird) over a review that Hassell claimed was defamatory.Read the full article

Mavrix v. LiveJournal: The Incredible Shrinking DMCA

While many performing artists and record companies complain that the Digital Millennium Copyright Act (the “DMCA”) puts them to the unfair burden of sending endless takedown notices, and argue that the law should require notice and “stay down,” supporters of Internet intermediaries and websites argue that court decisions have unreasonably narrowed the DMCA safe harbor.

A recent decision by the influential Ninth Circuit Court of Appeals (which includes California) adds to the concerns of the latter group.

LiveJournal, the defendant in this case, displayed  on its website 20 photographs owned by Mavrix. Mavrix responded, not by sending DMCA “takedown” notices, as you might expect, but by filing suit for copyright infringement. LiveJournal responded that it was protected by the DMCA. However, to successfully invoke the DMCA’s safe harbor  LiveJournal had to satisfy all of the legal requirements of the DMCA.

A key requirement is that infringing content have been posted “at the direction of the user.”… Read the full article