Turns Out You Can't Sue SexSearch.com If The Girl You Met Via It Is Underage

from the well-that-makes-sense dept

Another day, another case where someone tried to blame a website for the actions of its users. In this case, a guy used the website SexSearch (seriously) to find someone to have sex with (ah, the internet...). The woman he met claimed in her profile that she was 18 years old. In reality, she was apparently only 14 -- and the guy was eventually brought up on statutory rape charges. In turn, he sued SexSearch, claiming that the site had a responsibility to verify the ages of its users -- something he failed to do himself. After a district court ruling tossed out the lawsuit, an appeals court has also tossed out the lawsuit, noting that none of the various 14 claims the guy brought against the site seemed to hold up under scrutiny. Basically, as the judge in the district court noted: "Plaintiff clearly had the ability to confirm Jane Roe’s age when he met with her in person, before they had sex, yet failed to do so." Thus, it's pretty difficult for him to then claim that it was the website's responsibility to accurately verify the age of participants.

Still, as Eric Goldman notes in the link above, the appeals court differed with the lower court on one point: saying that it wasn't dismissing the case for section 230 safe harbor reasons -- which ordinarily protect a service provider from the actions of its users. The lower court felt that 230 applied, but the appeals court feared that such a ruling would extend the coverage of section 230 "potentially abrogating all state- or common-law causes of action brought against interactive Internet services." I'm not sure I agree with that at all. No one is saying that safe harbors get service providers off the hook for illegal activities they perform. The point is that they should not be responsible for illegal actions performed by their users.

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Craigslist Pressured Into Policing Ads For Prostitution

from the misplaced-blame dept

We've talked plenty about how New York Attorney General Andrew Cuomo has been using legal threats to get companies to change business practices, even if those practices aren't illegal. But, he's not the only Attorney General who tries to make headlines with bogus legal threats. Neighboring Connecticut has Richard Blumenthal, who has similarly blamed companies for the actions of their users. First, it was Facebook for having sexual predators on the site, and then it was Craigslist for for having prostitution ads. You'll notice in all of these cases, the threats involve actions that are generally considered less than socially acceptable. This way, even though the companies being blamed are not liable and clearly protected by section 230 of the CDA (you would think, as AGs, Cuomo and Blumenthal would, I dunno, know the law...), the threat of bad publicity gets companies to cave.

And, in fact, it appears that Craigslist has, indeed, been pressured into agreeing to monitor postings on its websites to try to prevent prostitution ads. 39 other Attorneys General joined in with Blumenthal, so it's of little surprise that Craigslist agreed to do this, even though it seems pretty clear that the law was on its side. As a service provider, it is in no way responsible or liable for the content placed on its site. The law and various court rulings are pretty clear on that, but when you have 40 Attorneys General gunning for you, painting you as a proponent of prostitution, sometimes it makes sense to cave.

The most ridiculous thing, of course, is that this will do little to nothing to actually deal with the root issue. Prostitution will continue -- and it will continue online. Those who used Craigslist before will simply move on to other sites. In fact, those sites will be much trickier to find and track down, meaning that it now becomes much more difficult for authorities to crack down on the actual law breakers. In fact, we've noted that police say that Craigslist is a very useful tool in monitoring and cracking down on prostitution. And, now, to get some headlines about how these AGs were "tough" on prostitution, they've just taken that tool away from police, while opening the door to forcing Craigslist to have to monitor posts on its site -- something the law says the company need not do.

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Court Ruling In Veoh Case Could Be A Big Boost To YouTube Over Viacom

from the a-good-decision dept

A judge has ruled that online video hosting site Veoh is not guilty of copyright infringement for videos uploaded by its users. The judge made the proper ruling here, noting that the DMCA's safe harbors protect Veoh. The lawsuit was brought by adult video entertainment firm Io, who was upset that Veoh's users kept uploading clips from its films. As the judge properly noted, Veoh follows all the rules necessary under the DMCA to avoid liability (this doesn't mean that the individuals doing the uploading aren't liable, however).

While this may seem like a small case, it is quite similar to Viacom's infamous lawsuit against YouTube/Google. Considering that YouTube follows the DMCA's rules in a similar manner to Veoh, this ruling suggests that YouTube is also protected by the DMCA safe harbors, just as many had stated from the beginning. The key issues raised by Io (and also raised by Viacom) is that these sites lose their DMCA safe harbors because they take action on the content, often transcoding the content from one format into flash. However, the judge in the Veoh case trashed that argument pretty easily:

Here, Veoh has simply established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users. Veoh preselects the software parameters for the process from a range of default values set by the third party software... But Veoh does not itself actively participate or supervise the uploading of files. Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh's users

The folks over at Google are, understandably, pretty happy about this ruling, which confirms their position that YouTube is protected: "It is great to see the Court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights."

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Yes, DMCA Safe Harbors Apply To Websites

from the not-this-again dept

Every once in a while, when discussing the DMCA's "safe harbors" someone shows up in the comments to insist that the safe harbors were never intended to apply to websites, but merely to ISPs. Tim Lee does a nice bit of work absolutely destroying that assertion, by pointing out how it doesn't make sense given the language of the law which clearly is designed to apply to websites as well as network providers (otherwise, as he notes, why would they ever suggest content would have to be "removed" rather than just "blocked").

But, more importantly, the focus should be on the overall intent of the law beyond just the specific scenarios on the mind of those who wrote it. Even if it's true that those who crafted the language weren't "thinking" about websites when they wrote it, the intent of the safe harbor is clear, and it should apply to websites as well as network providers. Why? Because the whole point of safe harbors was to make sure liability was properly applied to those who actually infringed, rather than an easy-to-target company. That it was the network providers who raised this concern in the first place doesn't mean that the same thinking wouldn't apply to websites as well. And, on top of that, while the safe harbors of the CDA (for things like defamation) haven't been harmonized with the DMCA's safe harbors -- the purposes are nearly identical, and the courts have granted extremely wide coverage of the CDA safe harbors, so there's no reason to think that they wouldn't apply the same broad interpretation to the DMCA as well.

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What's The Liability For A Service Provider Who Ignores Takedown Notices?

from the we-may-be-about-to-find-out dept

We've gone on at length over the years concerning safe harbors for online service providers, noting that service providers shouldn't (and usually don't, under the law) have liability for illegal actions performed by users of the service. However, many of the safe harbors that provide that protection make it clear that should the service providers be informed of illegal activities, the service providers need to take action to avoid becoming liable. However, if the service providers don't take action, what is their liability? We may soon find out, thanks to a new lawsuit involving eBay and the maker of of dollhouse furniture, Hansson. Hansson is upset that someone else is selling dollhouse furniture on eBay using Hansson's trademark. While, at first, this might sound like other such lawsuits against eBay for counterfeit goods, this case is different in a few important ways. First, Hansson actually is suing the company who is selling the counterfeit doll furniture. Second, while it is suing eBay, that's only because Hansson claims that the company sent eBay eight takedown notices and a cease-and-desist letter -- all of which were ignored. So, the question now becomes what kind of liability eBay faces if it's found that the company ignored the various notifications about infringing goods on the site. Eric Goldman, who wrote the story at the link above wonders why eBay would ignore all those notifications, but also questions whether or not it's wise on Hansson's part to drag eBay into the lawsuit just to get its attention. As he says, Hansson may get more of eBay's attention than it really wanted.

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Service Providers Can't Be Honest With Themselves, So How Can They Be Honest With You?

from the self-realization-time dept

Last week I was wondering why the various mobile operators couldn't just be honest to customers in explaining the limitations of various service plans. A report had come out saying that people were sick and tired of service providers lying about service and features -- and it seemed to me that a company that was honest would get a lot of customers as a result of that honesty. Of course, this also came only a few days after we were wondering why Comcast couldn't come out and give an honest explanation for why it was jamming certain types of packets. Blogger Tom Lee from the Manifest Density blog, has responded to both things (though, incorrectly refers to Techdirt as being anti-telco, which we're not at all -- we're anti-telco-stupidity, which is quite different), making a very perceptive point. He basically says that it's impossible for any of these service providers to be honest with customers because doing so would require them to first admit the truth to themselves: they're just commodity dumb pipe providers, and all their efforts at pretending to be something more are pretty much meaningless. Until they can admit that (and Lee's assertion is they won't admit that), they can't be honest with customers. There's definitely a large chunk of truth in there, and it explains part of what the problem is -- but I still don't think that precludes service providers from being a lot more honest, even as they try to provide additional value-added services that might not matter. Being honest and transparent with customers is a good marketing idea for these companies, especially as they're being challenged to be anything more than a commodity dumb pipe provider. Being honest can actually be a part of their differentiated appeal to customers.

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Australian Online Forum Sued Because Users Wrote How They Didn't Like Accounting Software Package

from the safe-harbors-anyone? dept

While there are lots of problematic laws when it comes to the internet, two things that the US got right (though, in otherwise troublesome laws) was putting in various "safe harbor" provisions that protect service providers from the actions of their users, whether it's for copyright infringement (in the DMCA) or libel (in the CDA). Folks in other countries aren't so lucky, leading to all sorts of questionable lawsuits that seem to be a lot more about silencing critics than dealing with actual libel or infringement. The latest such story comes from Australia. Reader technofear writes in to let us know that a popular Australian online forum (and the guy who owns it) is being sued by a software firm because a number of forum users posted negative reviews of their software -- which the firm considers defamatory. As the article explains, the software firm is going to have quite a difficult time proving the case, because the company would need to show the statements were false (pretty hard to do when they seem to be of the nature of "we threw it out recently... many hundreds of lost hours of work and high stress levels was not worth it") and that forum owner had malicious intent... and then also show that the company lost money due to these postings. However, in the meantime, the company can tie up the owner of the site in a costly legal battle. If there were clear safe harbors, it would be much easier to fight back and hope for a quick summary judgment throwing the case out. In the meantime, some folks are pointing out that, as should be expected these days, the accounting software that got all these awful reviews is getting plenty of attention, but all of it is associated with the fact that the product isn't very good and the company apparently doesn't handle criticism well. Perhaps next time the company will learn to engage and respond to critics rather than trying to shut them up by suing the site that hosted their complaints.

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