DC Bar Association Claims Lawyer Rating Site Infringes Its Copyright

from the oh-come-on dept

There's been no shortage of stories about misplaced anger (and sometimes lawsuits) filed against all kinds of rating sites lately, and the latest situation is equally questionable. Against Monopoly points us to the news that the Washington DC Bar Association has sent a cease-and-desist letter to lawyer-rating site, Avvo, claiming that Avvo's use of information on the DC Bar's website violates copyright and privacy rights. It would be great if some lawyers chimed in, but I have a hard time seeing either claim making any sense. On the copyright side, the information appears to mostly be factual information, which isn't covered by copyright. On the privacy side (and local privacy laws do differ), if the information is public information, it's difficult again to explain how anyone's privacy is being violated. It seems like yet another attempt by folks who just don't like being rated to try to come up with something (anything!) to shut the site down, rather than figuring out ways to work with the provider and improve their own quality.


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  1.  
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    Easily Amused, Mar 17th, 2009 @ 3:13pm

    I am amazed that the lawyers aren't totally in love with the concept of ratings... it doesn't cost much to do a little astroturfing. If you notice in all the wide-market advertising the big firms do, at the end in all the hastily spoken fine print, there is a line about 'no representation is made that the quality of this lawyer's services are greater than any other lawyer'. This would be an easy way to get around that restriction.

     

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  2.  
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    Anonymous Coward, Mar 17th, 2009 @ 4:09pm

    Like Divorce-

    Why change when you can blame someone else?

     

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  3.  
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    Anonymous Coward, Mar 17th, 2009 @ 4:22pm

    Re: Like Divorce-

    'cause it's all your fault

     

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  4.  
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    Headache Collector, Mar 17th, 2009 @ 4:32pm

    *holds head in hands*

    oh, god...please just make them stop all this copyright bullshit...pleeeeeease...

     

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  5.  
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    reformed lawyer, Mar 17th, 2009 @ 4:48pm

    Not privacy

    This has more to do with the ability of the general public being able to give ratings. While also suppressing dissenting opinion and free speech.

    Avvo's ratings are a third party outside of the DC Bar. Should someone complain to the Bar, an illusion of justice can be created. It's theater. In reality things are smoothed over during a three martini lunch. Avvo, however, may present a problem of replacing "the illusion" for "a reality" of a reprimanding process.

     

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  6.  
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    Anonymous Coward, Mar 17th, 2009 @ 4:51pm

    It's easy to see why the bar association wants to prevent ratings, they don't want any of their members to be seen as below some standard that they are supposed to maintain. therefore if a lawyer sucks then the bar association has failed.

    Now they are lawyers so i think they should know the law ... but maybe that's part of the problem here

     

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  7.  
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    Anonymous Coward, Mar 17th, 2009 @ 4:59pm

    Sounds like the reply should be in the form. Supply a citation or have a motion to disbar submitted. i.e. put up or shut up. Filing a SLAPP countersuit might also be a good idea.

     

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  8.  
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    Mylo Heartsmith, Mar 17th, 2009 @ 8:57pm

    http://patenthands.com

    As an attorney, I have quite a few objections to sites like these, but it's not based on the fact that I'm an attorney -- just that I generally dislike these directories.
    1) I'm not a sex offender. There's no reason my home address needs to be on a 100% free place on the internet. Ever.
    2) It's way too easy to defame someone with total immunity on these sites.
    3) It's so easy to pay people to rank down opponents and rank up in-house counsel.
    4) Certain sites like these have horrible reputations for attempting to extort whoever is being rated.

    47 USC 230 and all the cases interpreting it REALLY screw anyone who is defamed online. Because sites like Avvo and Yelp don't authenticate who is posting the "review" in any manner at all, it's so easy to fake something.

    One of my close friends was a victim to this -- the other side filed a lawsuit with multiple claims against his client. My friend got the case tossed because it was completely bull, and so the other side went after my friend personally. My friend ultimately won because the idiots left a trail, but it was a nightmare handling it.

    But if the jerks had just blitzed my friend online, there would be no recourse. Sites that have unauthenticated posting become breeding grounds to defame people. Look at something like Facebook -- no one is defaming anyone there because everyone is readily identifiable.

    And some clients simply don't understand that there is absolutely no guarantee of winning a case. Despite repeated claims by an attorney that a jury/judge can decide the case either way, people will get into such a mindset that they're going to win. When I started out, I did civil service, and in virtually every single case where the clients were accused of violating the law, we had no defense at all. Our clients would start to flat out lie TO US about the facts (they say that the photos, and documents, and video/audio, and all the witnesses were in cahoots or fake). I can't stand defending these people because they think attorneys are magicians. There's no way to make these people happy, and if these people are the ones rating me on the site, I'm going to be really pissed.

    To make things worse, we as attorneys rarely can even defend ourselves because we are bound by our ethical obligations not to disclose our client confidences. If I have some guy who lied to me, and he was found liable/guilty (when he blatantly injured someone or otherwise violated the law), and then he flat out lies about the quality of my representation on the internet, I can barely even defend myself, because there are VERY limited circumstances in which I'm allowed to disclose information about this idiot's case.

    Then you also have "competitive intelligence" firms and marketing agencies. You've heard about the marketing idiots who've posted job listings on various sites to pay for rankings/reviews. Because Avvo doesn't check with any legal documents that an attorney actually represented someone, it's so easy to falsely rank down the competition and rank up allied counsel.

    And finally, you have the sites that outright attempt to extort those who have bad information posted on the site. Yelp ends up in the news every few months for this exact reason. Completely unauthenticated reviews end up on the site downranking the person, and then that person gets a call from some random marketing guru claiming to be able to make these bad reviews disappear... for a monthly price. That's a protection racket, and it's illegal.

     

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  9.  
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    Josh King (profile), Mar 17th, 2009 @ 9:51pm

    Avvo

    Mylo, Avvo's ratings of lawyers aren't based on client reviews - they're based on an algorithm that takes into account numerous factors in an attorney's background. Client ratings are only offered as an additional data point.

    Most client reviews on Avvo are positive. Could someone nefariously defy our guidelines, claim to be a client and leave a bad review for an attorney they have a vendetta against? Sure. Is that a reason to deny consumers the benefit of thousands of well-intentioned reviews?

    Consumers are used to dealing with user/client reviews and assessing the validity and weight to assign to anonymous screeds. Attorneys don't need protection from client reviews any more than Sony or your local trattoria does, and they certainly don't need their licensing agencies denying the public novel means of finding information about attorneys.

    And FWIW, Avvo has never - and has never been accused of - extorting those with bad reviews.

    Josh King
    General Counsel
    Avvo, Inc.

     

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  10.  
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    Mike (profile), Mar 17th, 2009 @ 11:12pm

    Re: http://patenthands.com

    I'm not a sex offender. There's no reason my home address needs to be on a 100% free place on the internet. Ever.

    Public records are public, you know.

    It's way too easy to defame someone with total immunity on these sites.

    That's simply not true. The party doing the defaming still has liability. There's no immunity for the defaming party. You seem to be confusing the service provider with the party doing the defaming.

    It's so easy to pay people to rank down opponents and rank up in-house counsel.

    If that were true, the site wouldn't be useful and wouldn't last very long.

    4) Certain sites like these have horrible reputations for attempting to extort whoever is being rated.

    Do you have any evidence that Avvo is doing this, or are you spreading false rumors with no evidence?

    47 USC 230 and all the cases interpreting it REALLY screw anyone who is defamed online

    That's a rather astounding statement. The purpose of 47 USC 230 is quite clear and admirable: it's to place liability on the party actually liable for the defamatory statements. To be honest, I think that we shouldn't even need 230 because it should be common sense. The desire of folks like yourself to put liability on a 3rd party just because you have trouble identifying the actually guilty party is really rather disturbing.

    Sites that have unauthenticated posting become breeding grounds to defame people. Look at something like Facebook -- no one is defaming anyone there because everyone is readily identifiable.

    So you are saying you have no respect for the right to anonymity, which is regularly supported by the courts and basic American history. The Federalist Papers apparently should have been illegal based on your reasoning? I'm glad we live in a country that feels differently.

    Because Avvo doesn't check with any legal documents that an attorney actually represented someone, it's so easy to falsely rank down the competition and rank up allied counsel.

    As noted elsewhere, Avvo rankings are not based on reviews, but on a variety of things.

    And finally, you have the sites that outright attempt to extort those who have bad information posted on the site.

    Do you have any evidence that Avvo does this, or did you just make false statements accusing Avvo of unethical behavior that it does not do?

     

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  11.  
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    Mylo Heartsmith, Mar 18th, 2009 @ 1:08am

    Public records are public, you know.
    -- you cannot walk up into a courthouse and walk out with a copy of every single public document, even at cost. They simply won't let you do it. There should always be some cost to obtaining this data, even if it's merely just walking down to the courthouse and getting a free copy. If there is no cost, it will be abused. I have a stack of unsolicited junk mail every month to prove it, some of which are clearly scams (ranging from Nigerian scams to solicitations designed to look like bills). People working on controversial or high stakes cases get threats. The damage it causes society outweighs the benefits.

    It's way too easy to defame someone with total immunity on these sites. ... That's simply not true. The party doing the defaming still has liability. There's no immunity for the defaming party. You seem to be confusing the service provider with the party doing the defaming.
    -- I'm not confusing anyone. There are plenty of cases where the judge has said that for one reason or another, the person making the false statement gets to stay anonymous, which means the case is over. The law is far from developed in this area.

    It's so easy to pay people to rank down opponents and rank up in-house counsel. ... If that were true, the site wouldn't be useful and wouldn't last very long.
    -- your argument is marginal. Every few month, there's another marketing rep in the news after getting caught for paying for fake reviews. Besides, anyone doing it will make sure it blends in with the rest of the material.

    4) Certain sites like these have horrible reputations for attempting to extort whoever is being rated. ... Do you have any evidence that Avvo is doing this, or are you spreading false rumors with no evidence?
    -- How am I "spreading false rumors with no evidence"? I never said Avvo did this. You did. I said that sites LIKE Avvo (particularly Yelp) are in the news repeatedly for this. As I said in the first line of my original post, I'm not against Avvo specifically. I'm against these anonymous meta-review sites which don't acknowledge their weaknesses, and then try to play the victim in the media when someone points out those weaknesses.

    47 USC 230 and all the cases interpreting it REALLY screw anyone who is defamed online ... That's a rather astounding statement. The purpose of 47 USC 230 is quite clear and admirable: it's to place liability on the party actually liable for the defamatory statements. To be honest, I think that we shouldn't even need 230 because it should be common sense. The desire of folks like yourself to put liability on a 3rd party just because you have trouble identifying the actually guilty party is really rather disturbing.
    -- If you set up a system knowing that it has a gaping weakness, and continue to let people exploit that weakness to violate the law, particularly after the victims of those violations have pointed out the weakness in your system, you should also be held liable when you continue to allow your system's weakness to be further exploited. The problem is exacerbated by websites which refuse to keep logs in accordance with discovery guidelines (which are typically 2 years, although many sites claim not to keep logs for even 60 days, which having worked as an IT admin, I know is bull). Or some judge decides that for some obtuse reason or another, one should have a right to anonymity on the internet, even if their statements were 100% false. If you look at the cases, a lot of them are split on the rationale. I wouldn't have a problem if some of these judges in the subpoena cases considered the allegations on the merits. Basically, the judge should take the complaint, and ask whether the facts regarding the false statements, if proven true, would state a prima facie case of defamation. Once that has been determined, the identity should be exposed. Some judges disagree.

    Sites that have unauthenticated posting become breeding grounds to defame people. Look at something like Facebook -- no one is defaming anyone there because everyone is readily identifiable. ... So you are saying you have no respect for the right to anonymity, which is regularly supported by the courts and basic American history. The Federalist Papers apparently should have been illegal based on your reasoning? I'm glad we live in a country that feels differently.
    -- Once again, you're twisting my words greatly. You unreasonably infer this all-or-nothing approach into my logic which simply isn't so. I'm just saying that when sites purposely have little or no authentication, they know that they have this weakness, and they defend the stance of having this weakness, they're going overboard. Your right to anonymity does not allow you to break the law in public. In fact, most states have additional crimes along the lines of "wearing a mask or disguise during the commission of a crime." If you rob a bank, you get one sentence, and if you rob a bank with a mask on, you get a higher sentence. You never have a right to make false statements about someone, and anonymity isn't some magical trump card that allows you to do it either.

    Because Avvo doesn't check with any legal documents that an attorney actually represented someone, it's so easy to falsely rank down the competition and rank up allied counsel. ... As noted elsewhere, Avvo rankings are not based on reviews, but on a variety of things.
    -- but they still leave the text commentary where people are free to defame an attorney all they want. Even then, the algorithm argument is silly. Most settlements and licenses have confidential terms, so those won't be included. Corporate defense is rarely a question of whether liability exists, but more of a question of how much the damages will be. Criminal defense is similar in that most charged defendants end up with a guilty verdict, but the gauge of skill is generally how much the defendant pled out to under the weight of the evidence. And going by case volume is also worthless. Many of the best attorneys try 1 case every 5 years, whereas the guys working traffic cases have a revolving door. I would love to assign numerics to all the factors involved (my undergrad degree was in applied mathematics), but with all the confidential information, there's no way you can get an accurate gauge here.

    And finally, you have the sites that outright attempt to extort those who have bad information posted on the site. ... Do you have any evidence that Avvo does this, or did you just make false statements accusing Avvo of unethical behavior that it does not do?
    -- (I don't know why you felt the need to twist my words... again). Look back up at my original comment. I never said that Avvo tried to extort any attorneys. It is this class of meta-review sites LIKE Avvo that have repeatedly been accused of this (Yelp is the worst offender).

    Usually the techdirt commentary isn't too bad, but this time, you either misunderstood my statements or outright twisted them purposely. I know you guys are all about the "alternative business models" and how big content should switch their model instead of going after a making available right in copyright. But what happens when someone starts defaming you and all you have is his IP address? If the "IP != a person" argument trumps all (which I hate to tell you, it doesn't -- facts in civil trials need only be proven by >50%, which is far from 100%), then the only remedy when someone defames you is to get a name change or change your trademark. The law seeks to enforce reasonable behavior. Is it reasonable that someone sets up a site with reckless disregard for defamation, and when people are defamed on the site, the operators refuse to cooperate, especially when the operators are profiting off of this unlawful content being posted? Of course not. That's patently absurd.

    Regardless, neither you, nor Avvo's GC who posted here addressed the fact that's unique to attorney's situations. Attorneys can only divulge their former client's confidences in rare situations.

    Think about it -- if someone made a Rate-a-Consultant site which is now getting 1m+ uniques/mo, and one of their users claimed you ripped them off, stole money from them, attempted to walk out with copies of their source code and databases, and you sexually harassed the females who work there, you'd be pretty pissed. Now you send Rate-a-Consultant a nastygram saying that it's not true. They respond that they don't save their logs at all, and they're not going to take it down. Should they be able to continue to profit from this ongoing defamation? No way; you'd want that ridiculous review gone as fast as possible.

     

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  12.  
    identicon
    Anonymous Coward, Mar 18th, 2009 @ 7:16am

    Re:

    Good, bad or indifferent, the information about particular individuals is readily available from a myriad of sources. Hence, I do not find the information being assimilated into one or more sites such as the one under scrutiny here to be particularly troublesome.

    I do, however, share your concern about "ratings", not because I am fearful of ratings honestly given, but because of ratings that are motivated by other reasons such as, for example, "this is my opportunity to stick it to him or her". Herein lies the problem, and quite frankly, after much thought, I cannot conceive a solution at this time that is objectively fair to the one being "rated".

     

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  13.  
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    Mike (profile), Mar 18th, 2009 @ 9:57am

    Re:

    Think about it -- if someone made a Rate-a-Consultant site which is now getting 1m+ uniques/mo, and one of their users claimed you ripped them off, stole money from them, attempted to walk out with copies of their source code and databases, and you sexually harassed the females who work there, you'd be pretty pissed. Now you send Rate-a-Consultant a nastygram saying that it's not true. They respond that they don't save their logs at all, and they're not going to take it down. Should they be able to continue to profit from this ongoing defamation? No way; you'd want that ridiculous review gone as fast as possible.

    Now it is you twisting my words. I never said you shouldn't be able to go after those actually responsible. I said that the third party does not have liability.

    The fact that you think the investigation ends at the point of "no logs" is simply wrong.

    Furthermore, if your business is so weak that an anonymous review on a site kills it, then you've got bigger problems. If we found such a false review (and we're not consultants, so I don't know why we'd be on such a site in the first place...), we'd probably respond and explain our side of the story.

    The purpose of defamation law was to deal with cases where there was uneven access to "the printing presses." These days that's not true, and you can easily respond.

     

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  14.  
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    Mylo Heartsmith, Mar 18th, 2009 @ 1:27pm

    http://patenthands.com

    If you're not "consultants", what is this supposed to mean: [Name] is an expert at the Insight Community. To get insight and analysis from [Name] and other experts on challenges your company faces, click here.

    And you're not responding to my argument at all. Basically, I asserted a fact that these meta-review sites often facilitate defamation by not keeping logs, and then defending the anonymity of the defamers. The number of online defamation cases is undeniable proof of that fact. I argue that the site should only be liable if it refuses to cooperate in the proceedings, and evade liability if it operates diligently to allow proceedings to go on. When the site actively roadblocks the proceedings, then the site is doing something wrong and should be contributorily liable, especially when it's profiting off this defamatory content.

     

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  15.  
    identicon
    Kevin Judd, Aug 16th, 2011 @ 7:00pm

    Kevin Judd - Bankruptcy Afforney

    The WORSE of the WORSE! Kevin doesn't pay attention to detail, often makes MANY mistakes at your expense, and because he is a 'one man band', answers calls (on his cell phone, which is his business phone) for future and current clients during meetings with you, which takes his attention from YOUR detail. Will charge you full fee even if he doesn't complete the representation of you. I would NOT recommend him to an enemy!

     

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