User:Lciaccio/Privacy

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The following is the result of a joint project between myself and an LLM student. It is a memo to law students in a hypothetical situation mirrored on the Jane Doe. v. Cipriani case. In the hypothetical, the defamitory comments and pictures (some altered) were placed on the "NewsByMe" section of a networking site (WBM), and some were featured in the "BestOf" category with possible mingling of editor commentary and headings.

II. DISCUSSION

A. REMOVAL OF OFFENSIVE MATERIAL

Considering the ongoing harm to the clients’ future career opportunities, one of the first actions would be to get the offensive material removed from the NewsByMe (“NBM”) “Best of” site, the individual harassers’ sites, and any other NBM sites. Prior to requesting removal, all offensive material would be copied and printed for future evidentiary purposes.

(a) Publicize Intent to Pursue Legal Remedies.

The posters may fear being sued, or that negative publicity would be detrimental to their own careers; this is especially likely if they are fellow law students. Consequently, pub-licizing the intent to pursue legal remedies or reveal their identities may cause the harassers to independently remove the offending material. This may be the fastest way to get the offen-sive material removed from the harassers’ sites. Publication of the intent could be made on the clients’ IAmMe (“IAM”) profiles or on other areas of the site posters are likely to frequent. Considering that the harassers have previously read and copied material from the clients’ pro-files, it seems likely that such notice would reach the harassers.

(b) Cease and Desist Letter to WBM.

If publishing the intent to pursue legal remedies is unsuccessful, the next step would be to send a cease and desist (“C&D”) letter to WBM requiring the removal of the offensive material. To the extent that the material is not removable by the harassers (e.g. material on “Best of” site), a C&D letter to WBM will be necessary regardless of the outcome.

A C&D letter would increase the pressure on WBM and would force WBM to take a stand regarding the offensive material. Although the letters the students themselves sent did not succeed, a C&D sent by counsel has a greater chance of securing a positive response. It would signal to WBM that the students have hired attorneys and that WBM may face litiga-tion if they fail to comply. This step has the potential to remove the materials much more quickly than litigation; even if it were unsuccessful, it would strengthen the clients’ position in an eventual dispute by demonstrating an attempt to resolve the problem out of court.

Considering the ongoing damages to the law students, the C&D letter would be tersely worded stating a short time limit for the removal of the material and an intent to sue should they fail to comply. In order to make the letter resonate with the audience, it would focus on the clients’ strongest claims against WBM and would point out the significant legal risks in WBM’s position. As WBM is a consumer-oriented company, the PR consequences of a possible suit would also be addressed. In its marketing WBM has held itself out as a safe network and has touted the “privacy and control its limited networks afford users”. Remind-ing WBM that it has to live up to its marketing, and the possible PR consequences if it does not, would be used to lend strength to the C&D letter.

In order to facilitate the possible future legal actions, the C&D letter would also place WBM on notice and require WBM to take measures to preserve the offensive material and all electronic material relating to the harassing posters, including the IP addresses and other identifying information.

(c) DMCA Takedown Regarding Infringing Pictures

According to the Terms and Conditions of Usage for WBM’s services, the users re-tain all ownership rights in the material they post. Consequently, the clients have retained their copyright to the pictures they have posted on their IAM profiles. The harassers have taken several of these pictures and re-posted them in original and/or modified form. Such use of the pictures potentially infringes the student’s exclusive rights to reproduce the pictures, 17 U.S.C. § 106(1), prepare derivative works of the pictures, § 106(2), and display the pictures publicly, § 106(5). If the infringing pictures are not removed after publicizing the intent to pursue legal remedies and/or the C&D letter, a DMCA takedown notice, 17 U.S.C. § 512(c), would be issued to the designated agent of WBM.

The fact that WBM has previously been responsive to takedown notices for infring-ing material on its other services indicates that WBM could also be receptive to a takedown notice regarding the infringing pictures posted on NBM.

(d) Filing Suit

If, despite the efforts in (a)-(c), the offensive material is not removed, filing suit against WBM and the anonymous posters (as “John Does”) would be a possible next step. The urgent need for removal of offensive materials would make a motion for preliminary in-junction, Fed.R.Civ.P. 65, against WBM advisable. In granting preliminary injunctions courts have generally taken into account: (1) the likelihood of success on the merits; (2) the likeli-hood of irreparable harm; (3) the relative hardships faced; and (4) public interests. Medicine Shoppe International, Inc., 336 F3d 801, 803 (8th Cir. 2003). Considering the arguably irrepa-rable harm to the clients’ future lives and careers, and the ease by which WBM could remove the material, a successful motion for a preliminary injunction could be possible.

In summary judgment the moving party has to show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). Considering that the posts relevant for the case are openly available on WBM’s website and are not in dispute, a motion for summary judgment may be successful and would be advisable.

The publicity of the lawsuit itself may further the harm to the clients’ lives and ca-reers. Consequently, it may be advisable to label the plaintiffs “Jane Doe” in the suit. How-ever, the increased publicity will not necessarily be detrimental. By framing the clients as innocent students who have had their lives and careers sabotaged by vicious posters and a greedy internet company, it would be possible to further the clients’ core theory and raise sympathy in the media. An effective way to do so may be to quote directly from the libelous posts to underline the outrageous behavior. In addition, considering the amount of publicity the harassment has already received (featured on NBM “Best of” site), some additional pub-licity may not make a difference to the clients’ reputations and careers, and may strengthen the perception that the rumors posted are untrue.

B. IDENTIFYING THE HARASSING POSTERS

Posts on NBM are mostly anonymous; in order to be able to proceed against the ha-rassers, the first step would be to identify the harassing posters. To the extent that direct con-tact or “naming and shaming” the posters may resolve the dispute, achieving this prior to fil-ing suit would be advisable.

(a) Request Identities of Harassing Posters Without a Subpoena or Suit

It may be possible to convince WBM that voluntary disclosure of the harassing post-ers’ identities would make WBM appear cooperative in front of a court and could diminish them as a potential target for claims. If voluntary disclosure is not achieved within a short timeframe, the next step would be to proceed with a subpoena or a John Doe suit.

If it seems likely that the harassing posters are fellow law students of the clients, it would be advisable to get into contact with the general counsel’s office at the law school. Most likely the general counsel would be sympathetic to the students’ plights. With assistance of the school’s general counsel and IT department, it might be possible to identify the post-ers. If the posters are fellow law students, simply announcing that the school’s general coun-sel is looking into the issue may scare the harassers into removing the offensive material.

(b) Subpoena to Identify Copyright Infringers

To the extent that pictures infringing the clients’ copyrights have been posted on NBM, a subpoena under 17 U.S.C. § 512(h) could be used to identify the posters. § 512(h) authorizes federal district court clerks, upon request by the copyright owner, to issue subpoe-nas for identification of the subscriber who posted the infringing material. A subpoena can be issued to an online service provider such as WBM. Considering that most likely the same per-sons have posted the infringing pictures as the harassing posts, this may be an efficient way to identify the harassers.

However, according to § 512(h)(2)(C), any identification information obtained through a § 512(h) subpoena may only be used for the purpose of protecting rights under the Copyright Act. This will affect the possibility to use the identification information obtained to file suit for defamation and other non-copyright claims against the posters. Consequently, options (a) and (c) may be preferable for identifying the posters.

(c) John Doe Suit

If the identities of the harassing posters cannot be otherwise obtained, a John Doe suit could be filed against the posters. After filing the suit, a court order would be obtained requiring WBM to disclose the identities of the posters and/or their IP addresses. If WBM only has the IP addresses, the relevant ISP could be compelled to identify the posters. Depending on the jurisdiction, a prima facie case may need to be established before a court order identifying the posters is obtained. Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005). The plaintiff must thus produce a level of evidence high enough to defeat a summary judg-ment motion. Although this should be achievable, it presents yet another delay into the litiga-tion process.

C. CLAIMS AGAINST POSTERS

1. PUBLICITY

a. The law students have claims for publicity that places one in a false light before the public and unreasonable publicity given to another’s life. Publicity that places another in a false light requires that the content of the messages be untrue, highly offensive to a reasonable person, and the speaker act with knowledge that the allegations were untrue, or act with reck-less disregard to the falsity of the claims. Restat 2d of Torts, § 652E. Unreasonable publicity given to another’s life requires that the nature of the materials and comments posted are “highly offensive” and are of no concern to the public. Restat 2d of Torts, § 652D. The sub-stantive law may vary from this based on the jurisdiction.

b. The content of the postings included “alleged details of the students’ sex lives and proclivities and allegations of drug use”, both of which are likely to qualify as highly offen-sive. Under the circumstances, it seems likely that the posters made up some of the statements about the law students, which would make out a claim for false light. Furthermore, since the law students are not public figures or otherwise newsworthy, the claim of unreasonable pub-licity is likely to succeed regardless of the veracity of the posts.

c. Considering the facts at hand, the law students would have a good chance of suc-ceeding on the unreasonable publicity claim. The chances of succeeding are thus estimated at 80%. The false light claim, however, will be more challenging to prove since it would raise evidentiary issues in proving reckless disregard of the truth.

2. DEFAMATION

a. The publication of false statements that are either slander per se or cause special harm is defamation. Slander per se includes allegations that a person has committed a crime and allegations of sexual misconduct. Special harm is present when the slander causes the loss of something of economic value. Restat 2d of Torts, § 558.

b. The posts in the present case qualify under both regimes, since the accusations on the board concerned illegal drug use and sexual acts. Furthermore, the law students may be able to show the loss of employment prospects as a result of the posts. A defamation cause of ac-tion will require only a showing of negligence in regards to the veracity of the statements, which will be easier to prove than the reckless standard for the false light claim.

c. Considering the conduct of the harassing posters, the chances of prevailing for defa-mation are very good and are estimated at 90%.

3. INTENTIONAL INFLECTION OF EMOTIONAL DISTRESS

a. A claim for intentional inflection of emotional distress (“IIED”) is possible in situa-tions where a party’s outrageous conduct causes severe emotional distress to another. Intent to cause emotional distress is not necessary; it is already sufficient that the party was reckless regarding the possibility that emotional distress could be caused. Restat 2d of Torts, § 46.

b. Mere threats and insults that people face in everyday life are not sufficient for a claim of IIED, the conduct must be extreme. According to the Restatement (Second) of Torts, the conduct must be such that “an average member of the community would arouse his re-sentment against the actor, and lead him to exclaim, ‘Outrageous!’” The posters could thus argue that their conduct, while reprehensible, was not outrageous. There are various factors that may indicate outrageous conduct, e.g.: (1) conduct was systematic; (2) knowing exploita-tion of an especially vulnerable person; and (3) abuse of position. Restat 2d of Torts, § 46.

A threat of future harm that does not constitute assault, but nevertheless causes se-vere emotional harm to the recipient, may be actionable as IIED. Considering that the threats against the clients (and the other harassing conduct) has been systematic and has already stretched over a period of six months, a strong argument could be made that the posters con-duct is outrageous.

The posters may raise a first amendment free-speech defense. However, courts have generally held that the first amendment does not protect defamatory speech, Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571 (1942) and Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005), and a first amendment defense would likely fail.

c. The chances of prevailing in the IIED claims against the harassers are not certain. While a strong case can be made that the conduct is outrageous, courts have generally not been sympathetic to IIED claims. In some jurisdiction IIED claims have also not been recog-nized. 16 Am. Jur. Proof of Facts 2d 493. The chances of prevailing on the claim are thus es-timated at 60%.

4. COPYRIGHT INFRINGMENT


a. A claim for copyright infringment has two major elements, the plaintiff must prove ownership of a valid copyright and that the defendant has violated one of the exclusive rights reserved to the copyright owner in 17 U.S.C. § 106. The copyright owners exclusive rights include the right to reproduce the work, § 106(1), prepare derivative works, § 106(2), and display the copyrighted works publicly, § 106(5).

The right to reproduce includes the right to prepare identical and substantially simi-lar copies of the work. A derivative work is a work based on an earlier copyrighted work. A derivative work incorporates some element of the original work, H.R. Rep. No-. 94-1476, 94th Cong., 2d Sess. 62 (1974), while at the same time containing enough independent expression to create a new work for a different market. Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 20 J. Copr. Soc’y 209, 217 (1983). Placing copyrighted pictures on the Internet for anyone to access has been considered a violation of the display right. Perfect 10 v. Amazon.com, 487 F.3d 701, 716 (9th Cir. 2007).

Registration of U.S. works with the copyright office is a prerequisite for a copyright infringement suit. 17 U.S.C. § 411(a). Registration establishes a presumption that the plaintiff owns the copyright in the work and that the copyright is valid. In order to be eligible for statu-tory damages and attorney’s fees, the copyrighted works must also have been registered within three months of first publication or within a month form the plaintiff becoming aware of the infringement, whichever is earlier. § 412.

b. The clients hold the copyright to the pictures posted on their IAM profiles. By taking these pictures and re-posting them in original and/or modified form, the harassing posters have likely infringed on the clients’ exclusive rights to reproduce the pictures, § 106(1), pre-pare derivative works, § 106(2), and display the copyrighted pictures publicly, § 106(5).

Before filing suit the clients’ pictures would need to be registered. However, since the harassment has been going on for the last six months, it may well be that statutory dam-ages and attorney’s fees cannot anymore be recovered due to late registration. Considering the difficulty in proving actual damages, this is a problem.

The harassing posters may claim that the use of the pictures and the modifications of the pictures is fair use. In determining whether a fair use defense exists, courts take into ac-count four factors: (1) the purpose of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect on the market for the copy-righter work. All four factors should be evaluated and weighted, thus no single factor is de-terminative. Campbell v. Acuff-Rose, 510 U.S. 569, 577 (1994)

As to the first factor, it seems clear that the use of the pictures to harass and embar-rass does not further the purpose of copyright in any way. Any transformative use of the pic-ture is also minimal. The first factor thus weights in the favor of the clients. The nature of the pictures are neither factual nor really creative, the second factor is thus neutral. The harassers have generally copied the entire pictures and the third factor thus weights in favor of the cli-ents. The fourth factor weights slightly in favor of the defendants, as the use of the pictures is non-commercial and does not supplant any possible market for the original pictures. Weighed together, it seems unlikely that a fair use defense would exist for the posters use of the clients’ copyrighted pictures.

c. The chances of prevailing in the copyright infringement claims against the harassing posters are good. The chances of prevailing can be estimated at 80%, as there are some uncer-tainties in the fair use evaluation. However, considering that statutory damages would most likely not be available, proving actual damages will be a problem.

D. CLAIMS AGAINST WBM

1 LIABILITY FOR DEFAMATION BY POSTERS

a. Common law principles allow the publisher or distributor to be held liable for false defamatory remarks if they were negligent in ascertaining the truth of those statements. Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003). However, 47 U.S.C § 230(c) provides an ex-tensive safe-harbor for Online Service Providers (“OSP”) such as WBM. According to § 230(c) “No provider or user of an interactive computer service shall be treated as the pub-lisher or speaker of any information provided by another information content provider.” A information content provider is a party that created or developed the information “in whole or in part”. § 230(f)(3).

b. If § 230(c) does not apply, WBM is likely liable for defamation. To the extent that that the OSP is not a passive conduit for the information but contributes to the creation of the information, § 230(c) safe-harbor protection might not be applicable. Carafano v. Metros-plash.com Inc., 207 F.Supp.2d 1055, 1068 (D. Cal. 2002). However, the mere fact that WBM had the ability to delete the posts will not place them in this category. Blumenthal v. Drudge, 992 F. Supp. 44, 52 (D.D.C 1998). Nor will editing portions of the content or selecting mate-rial for publication constitute development for § 230(c) purposes. Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003). The selection of materials for the “best of” site and the creation of gossip categories such as “Collegiate Indiscretions” are the main arguments that WBM par-ticipated in the development of the posts “in whole or in part”. Furthermore, if any of the har-assing posts were written by WBM employees , agency principles may make WBM directly liable for defamation.

It is possible to envision a scenario by which authoring introductions and segues might transform WBM into the developer of the content as a whole. However, if the means by which WBM integrated the content into the site involved little original content, it is unlikely they will be liable for defamation. A court will likely consider featuring certain posts to be akin to selecting content for publication, an action that was held immune to defamation under § 230(c). Id. c. Unless WBM employees authored portions of the content, the chances of prevailing on the claim for liability for defamation by the posters are low and are estimated at 10%.

2. COPYRIGHT INFRINGMENT – USER POSTS

a. The harassing posters have most likely posted copyright infringing pictures on NBM, supra, ¶ II C4(b), WBM could therefore be liable for infringement of the clients’ exclusive rights to reproduce, 17 U.S.C. § 106(1), and display, § 106(5), the copyrighted pictures. How-ever, the claim against WBM for copyright infringement would need to overcome the safe-harbor protection of the DMCA. According to 17 U.S.C. § 512(c), a OSP is not liable for in-fringement of copyright due to material stored on its servers at the direction of a user, pro-vided that the OSP fulfills the safe-harbor requirements. The requirements include, inter alia, that the OSP: (1) does not have actual knowledge that the stored material is infringing, and, upon obtaining such knowledge, acts expeditiously to remove the material; (2) does not re-ceive a financial benefit directly attributable to the infringing activity; and (3) upon notifica-tion of an alleged infringement responds expeditiously to remove the material. § 512(c)(1)(A)-(C).

The DMCA safe-harbor defense does not protect the defendant against claims of contributory or vicarious copyright infringement. Ellison v. Robertson, 357 F.3d 1072, 1077 (9th Cir. 2004). In the Grokster case the Supreme Court held that contributory copyright in-fringement exists where the party intentionally induced or encouraged direct infringement. Metro-Goldwyn-Maier v. Grokster, 545 U.S. 913, 930 (2005). A defendant is liable of vicari-ous copyright infringement if he enjoys direct financial benefit from another’s infringing ac-tivity while not exercise a right to stop the infringement. Id. In Perfect 10 v. Amazon.com the court held that the defendant had to have a practical ability to stop the infringement for vicari-ous liability to exist. 487 F.3d 701, 730 (9th Cir. 2007).

b. If WBM dose not respond to the DMCA takedown notice as set out in ¶ I A(c) above, WBM will not be eligible for safe-harbor protection. However, to the extent that WBM follows the takedown procedure it would have a strong safe-harbor defense.

WBM has expressly prohibited the posting of infringing material, in addition, in its marketing of the site, WBM has neither induced nor encouraged the posting of infringing pic-tures. A claim for contributory copyright infringement would thus likely fail.

Considering the amount of pictures posted on the NBM site, WBM could make a credible argument that it lacked the practical ability to monitor every picture posted and ana-lyze them for possible copyright infringement. Perfect 10, 487 F.3d at 731. Whether WBM enjoys direct financial benefits from the postings of the infringing pictures is also question-able. Consequently, a claim for vicarious copyright infringement would not be strong.

c. If WBM follows the DMCA takedown procedure, it would have strong safe-harbor defense. Furthermore, the chances of prevailing on the claims for contributory or vicarious copyright infringement are small. Consequently, the chances to prevail on the infringment claims are estimated at 10%.

3. COPYRIGHT INFRINGMENT – “BEST OF” SITE

a. According to § 512(c), the DMCA safe-harbor extends only to infringement of copy-right due to material stored on the OSP’s servers “at the direction of a user”.

b. WBM has actively selected some of the posts, including some the infringing pictures, for prominent display on its “Best of” site. It can therefore be argued that the material on the “Best of” pages is not stored at the direction of a user and that the § 512(c) safe-harbor would not be applicable to such material. Consequently, WBM could be held directly liable for re-producing the protected pictures, § 106(1), and for displaying the pictures. § 106(5).

In a similar fashion as in the copyright infringement claims against the harassing posters, WBM could also present a fair use defense against the infringement claims. In weighting the four fair use factors, similar results as in the claims against the harassing post-ers are likely; supra ¶ II C4. Consequently, it seems unlikely that WBM would have strong a fair use defense.

c. Regarding the pictures selected by WBM for placement on its “Best of” pages, the chances of prevailing are significantly better and are estimated at 60%. However, considering that statutory damages would most likely not be available due to late registration, Id., proving actual damages will be a problem.

E. WHERE TO FILE SUIT

Most likely the claims will be filed be filed in the U.S. district court of the state where the clients are attending law school. The copyright claims require the case to be filed in federal court and allow pendent jurisdiction over the state law claims, subject matter jurisdic-tion will consequently not be an issue. Since WBM is doing business on a national level and advertising nationwide, personal jurisdiction can likely be obtained over it in any state. Per-sonal jurisdiction over the posters should also be possible as the posters “directed” their harm-ful behavior to the state where the clients were attending law school. Furthermore, reasons of convince favors filing claims in the state where the clients attend law school

The Terms and Conditions of Usage for WBM’s services may contain jurisdiction and/or arbitration provisions that may affect where to file suit. However, such terms would not be applicable in the relationship between the clients and the harassing posters. In addition, the claims against WBM do not arise out of the contractual relationship between the clients and WBM, consequently such provisions would most likely not affect where to file suit.

III. CONCLUSIONS

To the extent that the clients strive to recover monetary damages, the possibilities for recovery are limited. While the claims against the posters for publicity, defamation and inten-tional inflection of emotional distress are strong, the individual posters are likely to have lim-ited resources. The corporate defendant WBM may have more resources, but it has a strong § 230(c) immunity defense against claims of liability for defamation by the posters. Further-more, to the extent that there are viable copyright claims against the posters and WBM, the potential for recovering damages is limited as statutory damages and attorney’s fees would most likely not be available.

If the clients’ main objective is to have the offensive material removed, attempting to resolve the matter quickly without litigation may be the best strategy. A desire to avoid nega-tive publicity and litigation may cause both the posters and WBM to remove the materials in response to C&D letters, a DMCA takedown notice, and other measures to communicate in-tent to defend the clients’ legal rights. The fact that the material is clearly offensive, has harmed the clients, and the law students make sympathetic victims, provides a good case for getting the material removed.