Sneaky Way To Get Past Section 230 Safe Harbors To Force Content Offline

from the this-should-be-watched dept

We all know the importance of Section 230 safe harbors that protect a service provider from actions done by its users. While there have been a few cases that chipped away at those protections, on the whole, they're quite solid. However, Eric Goldman brings us the story of how some lawyers seem to be dealing with this. They've stopped suing the sites directly, but they then file a lawsuit against the party who actually created the content they want taken down -- but if that person does not show up in court, then the suing party can get a default judgment, and then use that default judgment to get the content taken offline -- since the default judgment can be used to enforce injunctions against third parties. From the perspective of the suing party, then, they have every incentive in the world to try to get a default judgment, rather than even fighting with the real person in court. Then, with the default judgment, they can force a site to take down the content. As Goldman notes:
For the price of a complaint and a defendant's default (which can be engineered by targeting a phantom author), plaintiffs obtain an effective cudgel to excise unwanted content throughout the web.
That's not a good thing.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Poster, Nov 12th, 2009 @ 8:02pm

    Wow, that's just incredibly evil and underhanded.

     

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  2.  
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    Anonymous Coward, Nov 12th, 2009 @ 8:25pm

    Sounds like something Miracle Whip would do.

     

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  3.  
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    Willton, Nov 12th, 2009 @ 8:38pm

    Sneaky, but there's a remedy

    Most jurisdictions have a rule regarding default judgment where if the aggrieved party was not served properly, then the party can move to have default judgment set aside. So, if a content owner files against a phantom defendant, at some point the real defendant will find out that his content has been removed and can respond as stated above. Then both parties can determine how much the suit is worth to the plaintiff content holder.

    All that said, if a defendant is properly served and does not respond, then it would seem to me that taking down the allegedly infringing content was not that important or harmful to the defendant.

     

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  4.  
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    Anonymous Coward, Nov 12th, 2009 @ 9:00pm

    Re: Sneaky, but there's a remedy

    Oh - well, that makes it ok then.

     

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  5.  
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    Mud, Nov 12th, 2009 @ 9:04pm

    Seems like you're making something out of nothing, here. CDA 230 protects publishers of user generated content from action for certain causes and instead prescribes the proper course of action as being against the user who generated the content. That hasn't changed.

    If you're suggesting that some lawyers are breaching the standards of their profession, by bringing frivolous suits which, by design, intentionally make it impossible to identify the respondent, then perhaps your problem is with those lawyers and you should call them on it. Or talk to the bar associations. Or most anything instead of posting a feel-bad whine that is designed to elicit the sort of retarded comments that the first two commentators came up with. After great thought, I'm sure.

     

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  6.  
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    Anonymous Coward, Nov 12th, 2009 @ 9:12pm

    Re:

    Perhaps, instead of posting your feel bad whiny comment...

    Oh, oops.

     

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  7.  
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    Anonymous Coward, Nov 12th, 2009 @ 9:16pm

    Re:

    Mud, the lawyers are bring action against "the name they know". John doe #1, known only by screen handle "mud" is acceptable in a court of law.

    Nice to see that content owners can get a little legal support once in a while.

     

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  8.  
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    a, Nov 12th, 2009 @ 9:50pm

    the importance of Section 230 safe harbors that protect a service provider from actions done by its users.

     

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  9.  
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    Anonymous Coward, Nov 12th, 2009 @ 10:03pm

    Re: Re:

    Except this doesn't just cover content owners. This site has dozens of examples of improper DMCA abuse, false trademark claims, etc., and all of them are subject to the same types of rulings.

     

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  10.  
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    Grae (profile), Nov 12th, 2009 @ 10:29pm

    Re:

    Can we get this spam nuked please?

     

    reply to this | link to this | view in thread ]

  11.  
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    Anonymous Coward, Nov 13th, 2009 @ 12:26am

    I don't get it;

    How can a default judgment against a phantom person be used to effect a real one? Presumably the ISP knows who the real customer is, so the injunction wouldn't have any legal standing and can safely be ignored. At least, that's how it'd work here (Netherlands).

    And:
    1. What kind of lame-ass process-servers do they have in the US that they're not requiered by law to independently check the identity of the person on the subpoena?
    2. How does a lawyer manage to engineer this and not get disbarred?

    Tricks like these are easy to do, but not so easy to get away with.

     

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  12.  
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    Brad Morrison, Nov 13th, 2009 @ 4:00am

    re: I don't get it;

    Read the article. The buried lede is that the laws are outdated and some lawyers are exploiting the mismatch.

     

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  13.  
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    Anonymous Coward, Nov 13th, 2009 @ 4:50am

    Re: Re: Re:

    "dozens"

    Yes, and there are millions of copyright abuses every day. In the end, a few failures (with a very bright light shining on them) still doesn't make the rest of the abuses go away.

    Wholesale copyright violation is an issue that needs addressing, and it appears that these lawyers have found a very legally correct way to get the job done.

    Perhaps this might change the tide of "hosts" that profit grandly from purloined content.

     

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  14.  
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    Anonymous Coward, Nov 13th, 2009 @ 5:34am

    This is stupid.

    230 is not designed so you can post anything you want on the internet. It's so users are responsible for their own actions... not the service providers. 230 case after 230 case, service providers are winning, so now the focus turns to individual users, and now you're saying this is "not a good thing"? This is EXACTLY what 230 is intended to do. Users are responsible for their own actions. If they don't want to show up to court, that's their fault.

     

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  15.  
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    Anonymous Coward, Nov 13th, 2009 @ 6:15am

    Re: I don't get it;

    What kind of lame-ass process-servers do they have in the US that they're not requiered by law to independently check the identity of the person on the subpoena?

    "john doe" known as "mud" on internet service provider techdirt is legally acceptable. The judge will almost certainly require some sort of public notification (whatever that state requires), and after that period, the poster would be considered to be in absentia and away you go.

    Anonymous doesn't mean "not responsible"

     

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  16.  
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    jilocasin, Nov 13th, 2009 @ 6:20am

    It's NOT going after the users, just removing content

    The anon that post "This is stupid" apparently doesn't get it.

    This ISN'T going after the users, this is about removing material from the web. If the parties complaining had an actual complaint then they would be filing papers against the actual authors. What they want is the stuff taken down. Perhaps it's fair use, perhaps it's just embarrassing, for whatever reason they can't just tell the ISP to pull it (section 230) so they are purposely filing against the wrong parties in order to force the information off the net.

    If they really wanted the authors to pay for something they actually did that was illegal, then they would have sued the actual author.

     

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  17.  
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    Mechwarrior, Nov 13th, 2009 @ 6:35am

    Thankfully we have the Streisand Effect, Google caching and the Way back machine to strike back with a vengeance .

    Note to lawyers: The internet never forgets.

     

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  18.  
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    Mud, Nov 13th, 2009 @ 6:48am

    Re: Re:

    AC @ 21:16 - I did say "if". ;-)

    Seriously, though the article quoted Goldman saying "which can be engineered by targeting a phantom author". That seems, to me, to be very close to an allegation of acting in bad faith. If there's evidence of that he should put up, if not...

     

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  19.  
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    DB, Nov 13th, 2009 @ 8:54am

    Is Anonymity Part of the Problem?

    Are these case where the identity of the author is known, the author is served and they don't care about the content enough to defend, so they default?
    Or are these cases where "John Doe" complaints have to be drafted because the poster of the content did so anonymously, so he/she can't be identified?
    If the second, if it's a "john doe" but instead the poster of the content used their name and took responsibility, they'd be served and be able to defend, right?
    Maybe the rules for in rem domain cases indicate a useful approach -- you can't file an in rem case unless you can't serve the real person.

     

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  20.  
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    DB, Nov 13th, 2009 @ 8:54am

    Is Anonymity Part of the Problem?

    Are these case where the identity of the author is known, the author is served and they don't care about the content enough to defend, so they default?
    Or are these cases where "John Doe" complaints have to be drafted because the poster of the content did so anonymously, so he/she can't be identified?
    If the second, if it's a "john doe" but instead the poster of the content used their name and took responsibility, they'd be served and be able to defend, right?
    Maybe the rules for in rem domain cases indicate a useful approach -- you can't file an in rem case unless you can't serve the real person.

     

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  21.  
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    Hulser (profile), Nov 13th, 2009 @ 9:50am

    Re: This is stupid.

    230 case after 230 case, service providers are winning, so now the focus turns to individual users, and now you're saying this is "not a good thing"?

    I would have to agree. TechDirt states on a regular basis that the infringers are responsible, not the parties which host the infringing content or direct users to it. I actually agree with this wholeheartedly. Third-parties should not be held accountable for the actions of their members.

    So, how is going after the infringers "not a good thing"? Because some people host content anonymously and can't be tracked down to explain or, if you like, defend their uploaded content, it's deemed underhanded? It seems to me that the "problem" has more to do with anonymous content posting than with the process of default judgements. At least with this approach, a big content company can't just send an e-mail to YouTube and demand that they take something down and it happens. So, again, how is this wrong? Isn't this the natural and expected result 230 safe harbor clause coupled with the fact that some people post content anonymously?

    (On the other hand, IANAL, but it would seem to make sense that the lawyers would at least be required notify the alleged infringer via the same mechanism by which the content was posted. As in, if you post a YouTube video, send a notification to the YouTube account.)

     

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  22.  
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    Darryl, Nov 13th, 2009 @ 11:45am

    I was reading it as:

    Alice as Alice posts some content Bob does not like.

    Bob files against John Doe getting the content removed via a default judgment.

    Alice wonders why her content was removed and no notice was filed against her.

     

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  23.  
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    Anonymous Coward, Nov 13th, 2009 @ 12:14pm

    Re: Re: Re: Re:

    Pft, if there really are "millions of copyright abuses every day", then copyright laws really are the problem.

    I'd love to see a court system that could handle millions of cases in a day and still be called "fair and just".

     

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  24.  
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    Hulser (profile), Nov 13th, 2009 @ 1:11pm

    Re:

    In this example, I'd agree that this is "sneaky". But the impression I get from the TD post is that the whole concept of default judgements is "sneaky", not the "sue John Doe when you know it's really Alice" technique.

     

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  25.  
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    Anonymous Coward, Nov 13th, 2009 @ 2:43pm

    Re: Re: I don't get it;

    /"john doe" known as "mud" on internet service provider techdirt is legally acceptable./

    That's not what the article says, it says they are deliberately issuing subpoenas for people that don't exist. That's something else entirely.

    Also, it's a practical impossibility to enforce a verdict against someone who's identity wasn't established. You can´t do that afterwards, since it almost violates the principles of due process.

    You might be able to shut down a single account, but that's all. It'll take the perp all of 3 minutes to setup a new account as a different user.

    As I said: I don't get it. You spend money, you risk getting disbarred and you get a Pyhrric victory at best.

     

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  26.  
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    Anonymous Coward, Nov 13th, 2009 @ 3:00pm

    Re: Re: This is stupid.

    Because they're not "going after the infringer." They're going after imaginary people who aren't going to show up in court and then using the resulting default judgment to GO AFTER THE SERVICE PROVIDER.

     

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  27.  
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    Anonymous Coward, Nov 13th, 2009 @ 3:11pm

    Re: re: I don't get it;

    Ok, I read it.

    /However, that need not stop you – all you have to do is file a lawsuit against someone, claim they were the author, make sure they default, and then ask the court for an injunction (even if it affects a non-party) and voila! You have just accomplished your goals without even really trying!..../

    It's the "make sure they default" I don't get. I work professionally in precisely this legal field (serving subpoenas) and the way Dutch (and EC) law is set up, it's impossible to do just that unless you cheat. We're obliged to check the address and identity of the defendant. I would assume any legal systems that allows default verdicts has a check like that, otherwise the process becomes meaningless.

     

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  28.  
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    Matt (profile), Nov 13th, 2009 @ 4:17pm

    Re: Re: Re: I don't get it;

    That's silly - orders against unknown parties are enforced every day.

    In order to file something against a John Doe defendant, the plaintiff generally must aver that the identity of the John Doe defendant is not known and cannot be ascertained. If that averment is false, the signing attorney is subject to Rule 11 sanctions.

    But the article didn't mention John Doe defendants. It mentioned "phantom authors". I don't know what that means.

    Incidentally, a default judgment is just a judgment. It is exactly as enforceable against a third-party as any other judgment. So you can run this just by suing someone who won't dispute the charge. The problem is not the default, it is the overbroad order on final judgment.

     

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  29.  
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    Matt (profile), Nov 13th, 2009 @ 4:19pm

    Re: Re: re: I don't get it;

    I think you "make sure they default" by picking a defendant that will default, not by screwing up service of process (incidentally, no subpoena is involved). So you choose a fictitious entity, or a friendly one, or an unrelated one.

    This is, of course, already illegal.

     

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  30.  
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    Anonymous Coward, Nov 14th, 2009 @ 12:35am

    Re: Re: Re: Re: Re:

    I'd love to see a court system that could handle millions of cases in a day and still be called "fair and just".

    There are many courts I don't call "fair and just" as it is.

     

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  31.  
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    Anonymous Coward, Nov 14th, 2009 @ 12:38am

    Re:

    Or talk to the bar associations.

    Yeah, everybody like to waste time.

    Or most anything instead of posting a feel-bad whine...

    Somehow, I don't think Mike is going to let you tell him what to post.

     

    reply to this | link to this | view in thread ]

  32.  
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    Mike Masnick (profile), Nov 14th, 2009 @ 12:58am

    Re: This is stupid.

    230 is not designed so you can post anything you want on the internet. It's so users are responsible for their own actions... not the service providers. 230 case after 230 case, service providers are winning, so now the focus turns to individual users, and now you're saying this is "not a good thing"? This is EXACTLY what 230 is intended to do. Users are responsible for their own actions. If they don't want to show up to court, that's their fault.

    Um. But the issue is they're not going after the actual user. That's what the whole article is about.

     

    reply to this | link to this | view in thread ]

  33.  
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    Anonymous Coward, Nov 14th, 2009 @ 6:12am

    Re: Re: This is stupid.

    They are going after the actual user. As the internet provider allows for anonymous postings, the solution is simple. Get a default judgement against John Doe(s), and then enforce the judgement.

    I just think you don't like that the lawyers figured out the weakness in the over-broad protections being abused by certain "service providers" who directly profit from illicit user activity.

     

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  34.  
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    Anonymous Coward, Nov 14th, 2009 @ 12:19pm

    Re:

    Maybe Alice needs to use her real name on posts in the future, so that they can't sue John Doe.

     

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  35.  
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    Tek'a R (profile), Nov 14th, 2009 @ 1:23pm

    Re: Re:

    the point is that the varied involved parties would much rather sue J. Doe then an actual person. What if alice shows up in court with a pack of lawyers?

    much easier to file paperwork (paperwork based on laws that have no real understanding of electronic communication systems), wait a while, then skip straight to getting a court order to force Alice's service provider to do things.

     

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  36.  
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    Anonymous Coward, Nov 15th, 2009 @ 8:31pm

    Re: Re: Re: This is stupid.

    Says the person posting anonymously, obviously using an illegally acquired laptop with a stolen WiFi connection and a hard drive full of illegally downloaded files.

     

    reply to this | link to this | view in thread ]


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