For years, we've talked about the importance of Section 230 in properly applying liability directed at the actual people who break laws, rather than the tools and services they use. Unfortunately, some people fail to make a distinction and love to blame service providers. And... once it gets into areas that make people react emotionally, things get ridiculous. For example, we've written a few times about the misguided attacks on Backpage.com, which only came about because of similar misguided attacks on Craigslist. At issue was that both sites had been used for prostitution and sex trafficking. But, rather than do the sensible thing and work with those platforms -- who both have programs to do exactly this -- to make it easier for law enforcement to find and prosecute those involved in such efforts, grandstanding politicians and activists blamed the service providers, driving the actual activities further underground. Of course, they have never had any real legal argument, and the lawsuits have fallen flat.

However, it appears that some politicians in Washington State decided to pass a state law (SB 6251) which targets service providers. It's one of those laws that it's easy for politicians to get behind without realizing what they're actually doing. They think they're "protecting the children" but they're actually making the problem significantly worse. That's because they're not setting up a better way to track down and stop those actually responsible, but rather are simply telling them to move further underground, where it will be even harder to stop them.

And, of course, in their zeal to "protect the children" the politicians who passed this bill wrote it so broadly that it can create massive problems for tons of legitimate online service providers. The Internet Archive, represented by the EFF, has filed to join a lawsuit (from Backpage) against the law, pointing out that it clearly violates Section 230 of the CDA, which providers the necessary safe harbors for service providers. The overreach of the Washington law is pretty astounding:

SB 6251 would effectively coerce, by threat of felony prosecution, online service providers to become censors of third-party users' content by threatening five years imprisonment and a $10,000 fine per violation against anyone who knowingly publishes, disseminates or displays or anyone who “indirectly” “causes” the publication, dissemination, or display of content that contains an explicit or even “implicit” offer of any sexual contact for “something of value” in Washington if the content includes an image that turns out to be of a minor. Because of its expansive language (i.e., “indirectly” “causes”), the law could be applied not only to online classified ad services like Backpage.com but also to any web site that provides access to third-party content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, Internet service providers, and more. A law that takes such an overbroad approach is of serious concern to the Internet Archive, which aims to serve as a library for the Internet, and accordingly, houses more than 150 billion web pages archived since 1996.

The law expressly states that it is not a defense that the defendant did not know that the image was of a minor. Instead, to avoid prosecution, the defendant must obtain governmental or educational identification for the person(s) depicted in the post (notably, even if that ID does not contain a photograph). This means that service providers – no matter where headquartered or operated – may be asked to review each and every piece of third-party content accessible through their services to determine whether the content is an “implicit” ad for a commercial sex act in Washington, whether it includes a depiction of a person, and, if so, obtain and maintain a record of the person’s ID. These obligations would severely impede the practice of hosting third-party content online.

I'm sure the folks behind this law had the best of intentions. Sex trafficking of underage persons is a very real and horrific problem (even if the numbers bandied about are massively exaggerated). But the real solution is to go after the actual perpetrators, and that means working with service providers to help track them down -- not criminalizing the service providers in a way that kills off lots of legitimate activity as well.

What is it with lawyers who default to being over-aggressive, without (apparently) stopping to think about how such aggression will almost certainly backfire? Today's such story focuses on one Neil Meyer, a prominent Beverly Hills lawyer, who represents the Hollywood actor Chris Evans. On June 12th, a blog called the "Celebrity Smack Blog" posted a story with the title "Exclusive! Chris Evans Might Have An STD", which has now been taken down, though Google still has a cache at the time of this writing. It's the sort of typical crap you'd expect from a site called "Celebrity Smack Blog" -- a totally unsourced rumor from an anonymous person (described as "one of my best sources in Los Angeles" which means absolutely nothing). Given that it's on a silly blog and not particularly believable, chances are this is the kind of story that would get a brief bit of buzz and then disappear. Indeed a few other celebrity gossip sites appear to have picked up on the story, but most people don't seem to care, and it certainly doesn't appear on any major site.

Either way, a user on the forum Lipstick Alley posted the story to that forum, with a link to the original, some quotes from the story and the comments, and a random picture of Evans. Meyer quickly sent a threat letter that really tries to include everything but the kitchen sink. It argues that even though Lipstick Alley is a forum, it is responsible for what its users post (which is clearly wrong under Section 230 of the CDA). It argues that the site "fraudulently" and "intentionally" published the post, again despite it being a forum where a user posted the information. Meyer also seems to claim that reporting on Evans -- regardless of whether or not the information is factual -- is a misuse of his publicity rights (which is clearly wrong under the First Amendment). He also claims that merely linking to content that may be defamatory is, itself, against the law. He demands that the site "permanently remove any mention of Mr. Evans" even beyond this particular story -- which, again, has no legal basis.

Oh, and lest we forget, he pretends that he can unilaterally declare that the letter itself is secret and that the site cannot even "report on its substance" let alone publish it:

This letter is confidential legal communication and you are specifically prohibited from publishing any portion of it or reporting publicly on its substance in any way.

Some of the sites (including the original) that had the story appear to have taken them down, suggesting that perhaps they received similar letters. However, the folks who run Lipstick Alley, thankfully, work with lawyer Paul Levy, and have an understanding of the basics of the law and their own liability. Levy has responded to the letter (embedded below) and posted Meyer's letter and his own response publicly. I highly recommend reading both letters. Levy calls Meyer's attention to the legal failings of his threat letter -- and suggests that Meyer's strategy is bound to backfire, due to the Streisand Effect:

Lipstick Alley is not gong to comply with any of your demands. And, indeed, I cannot think of a strategy better suited to drawing both yourself and Evans into disrepute than by sending a letter such as yours. Given that you are billed as an "entertainment lawyer," it is amazing that you may have never taken the "Streisand effect" into account in deciding whether to send your letter.

I actually think there are a few places where Levy even underplays the ridiculousness of the original letter. Beyond the fact it's a user forum, Meyer's arguments, taken to their logical conclusion, would mean that no site could report on or show an image of Chris Evans without his permission. That makes little sense and the First Amendment clearly makes a mockery of such a claim.

And we won't even bother to discuss the ridiculousness of telling Lipstick Alley that it can't even report on the substance of the letter, let alone its specific contents.

Of course, there are a few clues that perhaps the reason that Meyer is unfamiliar with things like the Streisand Effect has to do with the fact that he's not particularly tech savvy. The letter notes that it was "dictated" (old school!), for one thing. But, I also noticed that Meyer's law firm, Stone, Meyer, Genow, Smelkinson & Binder, LLP, doesn't even appear to have a website. The domain which is listed as a part of Meyer's email address in the letter... takes you to a GoDaddy holding page. Yes, GoDaddy.

Hint to Hollywood stars: if you're going to hire an entertainment lawyer to try (badly) to police rumors about you online with questionable legal threats, perhaps first check to see if they have a website themselves.

I'm almost always impressed and intrigued by articles from Rick Falkvinge, who I think does an amazing job distilling some complicated issues around the intersection of the internet, the law and civil liberties into a format that's easy to understand. However, in his recent column for TorrentFreak, I think he overstates his case. His main argument is that "safe harbor laws" are disastrous for free speech. To expand it a bit, he's mainly complaining that in order to get the safe harbor protections (avoidance of liability), companies have to suppress free speech and/or give up private info on users. He's mainly talking about the DMCA. But that's part of the problem. Unfortunately (and surprising for someone usually as careful as Falkvinge), he's taking one part of the (very problematic) DMCA and using it to tar the entire idea of safe harbors.

That's a mistake.

To show it's a mistake, you need to look no further than the other big US "safe harbor" law that we talk about with great frequency when it comes to free speech online: Section 230 of the CDA. This, too, was part of a terrible law -- but thankfully, most of that law got thrown out. What remained was an exceptionally useful safe harbor for guarding free speech.

The problem comes up in the differences between these laws. While Section 230 is a blanket safe harbor that does not require specific actions on the part of the service provider, the DMCA requires a notice-and-takedown provision. We've noted in the past that there are very strong arguments for why the notice-and-takedown provisions represent a First Amendment violation, but there haven't been any significant legal challenges along those lines in the past. But a safe harbor like Section 230 (which is used in other types of cases, such as defamation cases) has no such provision. There is no requirement at all to suppress free speech.

And, yes, we're certainly worried about safe harbor provisions that require too much on the part of service providers to get the necessary protections from liability. It's why we are worried about the safe harbor provisions in SOPA.

But the idea behind safe harbor provisions are not bad and are not dangerous. In fact, they are quite useful in allowing companies to focus on building innovations and growing, without having to act as nannies online. The caselaw behind Section 230 has been tremendously useful in enabling new online services that encourage and enhance free speech. The DMCA safe harbors have definitely been much more of a mixed bag. There's no doubt that they've been abused, repeatedly, but that's because of the bad part: requiring the suppression of speech to get the safe harbor. If the DMCA's safe harbors were modified to match Section 230s you'd get the protection without the harm.

So, I think Falkvinge's argument here is surprisingly weak. Safe harbors are incredibly useful. It all depends on how they're implemented. The DMCA's safe harbors have some good facets (pretty broad protection from liability for third parties) and some bad facets (suppression of speech without any judicial review). It makes little sense to condemn the entire concept widely based on the bad facets of one implementation...

A year and a half ago, we wrote about a bizarre antitrust lawsuit filed in Ohio state court by a small shopping search engine company most people haven't heard of called myTriggers. The details were particularly odd. First, myTriggers set up a line of credit with Google to buy AdWords advertisements. Then... it didn't pay. The company claimed that a rejiggered algorithm made the ads much more expensive than it expected. But that doesn't explain why it racked up a $335,000 bill that it refused to pay. You can put limits on your spend. Either way, Google went to court in Ohio to try to collect on the money owed.... and bam, myTriggers suddenly used that as an excuse to launch a giant antitrust lawsuit against Google in Ohio. And, on top of that, this tiny company in Ohio that no one had heard of somehow magically hired Microsoft's chief antitrust counsel, Rick Rule, who does not come cheap. As Eric Goldman noted at the time:

Assuming myTriggers even has the money, writing a $335k check to Google (and I bet Google would have taken less!) is almost assuredly cheaper than paying three law firms to mount an antitrust assault on a $20B/year behemoth. Assuming that myTriggers wants to maximize profits, then either (1) myTriggers thinks its odds are good enough that it will win AND make enough money to pay the 7 lawyers on the counterclaim's signature page plus their teams, or (2) the law firms struck an unbelievably sweet deal on fees.

Or... you know, perhaps someone else was financing the whole thing. Google has been pretty vocal about the fact that it suspects Microsoft is behind this. But, the bigger issue is that the case itself is a joke. Google can set up its ad ranking algorithms however it likes, and while this case was purposely filed in response to Google's attempt to collect in Ohio, since whoever was behind it knew that would keep it in an Ohio state court rather than a federal court, it turns out that the court might not have been as clueless as those who filed the lawsuit expected. That's because the case has been dismissed.

You can read the full ruling below. It consists of two key issues. First, Google tried to have the case dismissed under Section 230 of the CDA, claiming that as a service provider, it's not responsible for blocking or demoting ad content. This is a slightly different part of Section 230 than we usually discuss. This is the part that is designed to encourage companies to voluntarily filter "objectionable" content, and to not face liability for doing so. Here, the court ruled that ads don't qualify as objectionable content. The caselaw it relies on here is a little murky, but for the most part, this did seem like a bit of a stretch as an argument. So that wasn't very effective.

However, the case was still dismissed on a much bigger issue: which is that myTriggers failed to properly allege an antitrust violation. You would think that with all those big, fancy and expensive lawyers, they would have done a bit better. The problem, of course, is that to show antitrust you have to show harm to competitors. But, as the court notes, all myTriggers did was show (potential, possible) harm to myTriggers. In fact, part of myTriggers' own argument was to show how other vertical search engines performed much better in Google, which undermines myTriggers' argument:

"[T]o prove antitrust injury, the key inquiry is whether competition--not necessarily a competitor--suffered as a result of the challenged business practice."

Here, the counterclaim only alleges harm to myTriggers itself. In addition, myTriggers' counterclaims contain allegations that other competitive vertical search sites were indeed favored by Google. In paragraph 12 of its counterclaim, myTriggers alleges that "Google has entered these favorable agreements with Shopping.com, shopzilla.com, PriceGrabber.com, bizrate.com, NexTag.com * * *." Such an allegation undercuts myTriggers' argument that competition as a whole within the relevant market is being injured.

The court also notes that just because myTriggers thinks its been blacklisted, that's not a real claim. It's just a random guess by myTriggers.

There are a few other claims by myTriggers, and in each and every case, the court points out that it failed to establish a legitimate claim. It's a pretty complete rejection of the lawsuit, though you have to expect it'll be appealed/amended. This marks the second of a trio of such cases that has been tossed out by courts. One wonders if grandstanding politicians using these silly claims as evidence of Google antitrust violations may start to quiet down.

The entertainment industry has been pushing really hard for greater secondary liability for third parties, lately -- hoping to roll back some of the vastly important safe harbors found in both the DMCA and Section 230 of the CDA. Both of those safe harbors (though, they work in different ways) are designed to make sure that liability is properly applied towards the party that actually broke the law. Secondary liability is a dangerous concept that applies the liability to a third party because it's difficult to find the actual perpetrator. But, in what world does it make sense for you to blame an innocent bystander just because it's hard to find the actual person responsible?

The consequences of secondary liability (both intended and unintended) are incredibly dangerous for both free speech and for the ability to create new and useful services online. We've already seen how the Chinese have taken secondary liability to a new level by using it as the core mechanism for censorship. But still the entertainment industry pushes forward.

They should be careful what they wish for. An article in the Times Online highlights the situation in Ireland, where there aren't safe harbors against secondary liability for defamation -- and it's leading internet companies to blatantly censor or to avoid doing business in Ireland out of fear for the liability. Now, some in the entertainment industry seem to think this is just fine -- because they think that the internet should be a broadcast medium for the big "professional" producers of content, and all these internet companies and user-generated content things should really all fade away.

But for people who recognize that freedom of communication online is important, and who recognize that third parties who create services should not be blamed for their misuse by users, this should be quite troubling. Trying to increase secondary liability on service providers through things like ACTA is an attempt to strip away basic legal common sense in the proper application of liability, in an effort to crowd out new online services, in favor of old school broadcast entertainment firms.

Last month, Carlo wrote about how a number of doctors were pushing their patients to sign waivers, promising that they wouldn't review the doctors online -- and that one company would go around trying to enforce these waivers and get critical comments pulled down from ratings sites like RateMyMD.com. The whole thing seemed quite odd -- but in another article about the service (found via Michael Scott), the details make it clear that this is even more questionable than we previously thought. That's because the way the "waivers" from the company "Medical Justice" work is by having the patient "assign all intellectual property rights for anything the patient may write (and publish) about the physician to the physician." Then, the physician can claim copyright infringement on any review, and force it offline. So unlike what was implied in the original article, it wouldn't be a specific contractual issue, but a copyright issue.

This is not what copyright law was intended to do.

Of course, it does bring up a few interesting points of discussion. First, is that the main purpose of using copyright here is so that the doctors can make use of the DMCA's notice-and-takedown safe harbor provisions, rather than be stymied by the similar (but not quite the same) CDA section 230 safe harbors for things like defamation. One of the key differences between the two is that Section 230 doesn't have a notice-and-takedown provision (though some have been trying to add one). So, really, all this is designed to do is figure out a way to shift the critical rules in question from the CDA to the DMCA. Sneaky!

Second, is that I wonder if this would be seen as actual copyright infringement anyway, or if reviewers could make a credible fair use defense. In some cases, the review itself might not even be covered by copyright (i.e., if there's no creative expression in it -- such as simple "he's awful!" reviews). In other cases where copyright might exist, the four factor fair use test might allow its use. While it could hurt the doctor's ability to make money as a doctor, it wouldn't be harming the market for the copyrighted content. Also, the use would be for purposes of "criticism." So, it's difficult to see how such content posted on a review site would actually violate anyone's copyright, even if the rights really were signed over.

But... (and this is where that sneaky first part comes into play), this might not matter. Even though you can get in trouble for filing a false DMCA notification (and even for failing to take fair use into account), most online services will quickly pull down content when receiving a DMCA takedown to preserve their safe harbor protections. So in almost all cases, the content will get pulled down, even if the content isn't really infringing. And, then it seems quite unlikely that any reviewer/patient will find it worth the trouble of filing a counternotice.

So, really, this is a fascinating misuse of the DMCA that will live on (unless someone like the EFF decides to make an example of it). What it really highlights is one of the many problems with the DMCA's notice-and-takedown provision, which heavily incentivizes service providers to pull down content as quickly as possible. As a result of that, companies like Medical Justice have tremendous incentives to come up with a plan like this to shift what they do to a copyright issue, solely to make use of the notice-and-takedown provision, even in cases where there's no actual infringement of the copyright.

The federal government has been trying to pass a law to "protect the children" online for ages. First there was the CDA, the Communications Decency Act, which was struck down as unconstitutional. Then, there was COPA -- the Child Online Protection Act. It tried to be more narrow... but was still a very questionable law, with rather vague wording. It bounced around the courts for years, including hitting the Supreme Court twice -- which sent it back to lower courts both times. Last summer, the appeals court knocked it down again, and today the Supreme Court refused to hear the appeal... meaning that COPA is about as dead as can be. This is definitely a big win for free speech online.

But, of course, just as COPA followed the CDA, have no fear that politicians looking for headlines and photo ops about how they "protect the children" are working hard on new legislation -- such as DOPA -- the Deleting Online Predators Act -- and will continue to push the boundaries of what sort of speech is allowed online. All this really does is waste taxpayer money on unconstitutional attempts to restrict free speech. And, for what? Recent studies have shown time and time again that the threat to children online is relatively small compared to the hype -- and the best response is educating children, rather than restricting speech for all. Somehow, though, I doubt politicians will recognize that any time soon -- especially when lobbyists for companies that sell filtering tools keep beating down their doors with stories of the horrors of online content.

After the Supreme Court rejected most of the Communications Decency Act as being unconstitutional, Congress tried again with the more friendly sounding Child Online Protection Act. It sounds nice. Who doesn't want to "protect the children," right? But it was basically the same thing as the CDA, and court after court has struck it down as unconstitutional. The Supreme Court has already weighed in on some aspects of the law, kicking the case back down to the district level, where the judge noted the law was unconstitutional. The government appealed (of course), and subpoenaed data from just about everyone. You may recall the legal fuss over the government's demand that pretty much every search engine hand over their logs? That was part of the case the government was trying to make -- and about the best they could do was to prove that (gasp!) there's some porn online.

Of course, since porn is legal, proving that there's porn online is hardly a rationale for restricting free speech -- which is what COPA would do. It would require sites to make sure that either no adult content showed up anywhere on their site, or verify the age of everyone who visited their site. That is quite an extreme limitation on free speech, which is exactly what court after court after court has said. And, now we can add to that the Appeals Court who has now struck down COPA yet again, pointing out that it's a clear violation of the First Amendment and chilling to freedom of speech. It also noted that there's simply no reason that parents can't deal with themselves through the use of filters:

"It is apparent that COPA, like the Communications Decency Act before it, 'effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,'... and thus is overbroad. For this reason, COPA violates the First Amendment. These burdens would chill protected speech."

Interesting that this comes at the same time that Andrew Cuomo and NY State are bullying ISPs to effectively do what COPA would have demanded. Hopefully Comcast will send Andrew Cuomo a copy of the Appeals Court decision. In the meantime, the Justice Department is indicating that it will appeal to the Supreme Court -- so this case is still not over.

It's getting to be rather silly how many times we've posted about section 230 of the CDA, which protects websites from the actions of their users -- but it seems that there's no shortage of folks with quick legal trigger fingers, who figure that anything they dislike online must be illegal, and they can blame the site that hosted it. The latest example, sent in by an anonymous reader, is that 800Notes, one of many websites that allows users to post notes on random callers (telemarketers and such) discovered that the owner of one company, mynutritionstore, whose phone number was listed on the site sent an angry threat demanding it be taken down, because someone had a negative experience with the company. When 800Notes told the owner of mynutritionstore that it would not remove the negative reviews, he apparently threatened to sue 800Notes. Public Citizen stepped in and sent him a quick legal lesson on the safe harbors provided by the CDA, how anti-SLAPP laws work and also pointed out that his claim that the posts were defamatory is clearly shown to be untrue by the fact that the same demand for a takedown claims that the content is proprietary to mynutrtionstore. If it's proprietary than that would indicate that it's truthful, not defamatory. It's not libel if it's the truth.

So, once again, just because you dislike what someone has to say about you online, it doesn't mean that it's illegal. Also, threatening to sue the service provider for content you dislike generated by users is bound to backfire -- often badly. Hopefully, more people will learn this, and we'll stop seeing these sorts of threats.

Mark Cuban has a weird obsession with trying to convince people that YouTube is illegal, despite plenty of evidence to the contrary. His latest discussion on the topic is a real stretch. In response to the bad ruling that gives YouTube log files to Viacom, Cuban is saying that Viacom can now wipe out Google's DMCA safe harbors by showing that the company filters porn.

This is simply incorrect. The DMCA safe harbors do not claim that if you filter any material you must filter it all. Filtering out porn is a different beast than filtering out infringing content. You can tell that porn is porn simply by looking at it. But you cannot tell if content is infringing just by looking at it. It could be put up there on purpose by those who own the copyright. It could be fair use. It's not as simple as just saying that because YouTube removes porn it loses its safe harbor provisions. Also, while not specifically concerning the DMCA, other lawsuits involving the similar safe harbors in the CDA have found that intervening with content on a site does not mean that the safe harbors go away. Having knowledge that some content is porn is quite different than having knowledge of what content is infringing on someone's copyright.