EFF, Public Citizen Enter Legal Battle That Started With Defamation But Is Somehow Now All About Copyright

from the the-Section-230-sneak-attack dept

Copyright is supposed to be a limited-use protection for creative works. The "limited" part went away with endless term extensions and auto-copyright for any creation attached to a "fixed medium." These days, copyright is the magical cure-all that doesn't actually cure anything. It's a weapon to be wielded dishonestly and inelegantly against the ignorant, in hopes of limiting speech to only what IP abusers like.

A lawsuit over a negative review hosted at Ripoff Report began with an all-too-familiar tactic: an attempt to route around Section 230 protections by claiming copyright infringement. The chain of events leading up to the bogus copyright claim is all sorts of problematic.

The case arose from a posting on a gripe site called Ripoff Report that recites a litany of insults and complaints written by Christopher Dupont against Massachusetts lawyer Richard Goren. Goren sued for defamation, and Dupont never showed up to defend the suit, so the court issued a "default judgment" in favor of Goren.1

Here's where things get odd. As part of the default judgment, Goren asked for and received a court order purporting to transfer Dupont's ownership of his copyright in the post to Goren. Goren and his company Small Justice then sued Ripoff Report's parent company Xcentric for copyright infringement.

The default judgment transferring copyright is indeed odd, as it has nothing to do with relief from defamation. The judgment simply should have resulted in a court order directed at Dupont to remove the review. (It's a default judgment so the question of whether or not the review is truly defamatory hasn't been explored, but...)

Ripoff Report isn't really helping matters with its policies. For one, it refuses to take down reviews for almost any reason, while also allowing entities to purchase services like statement retractions and the burial of negative reviews. It also prevents users from deleting posted complaints, presumably to head off legal threats issued by criticized parties. This doesn't do much for users who might delete something when threatened, but it also lets those who issue bogus threats know that this tactic won't work here.

Ripoff Report's copyright claim to the disputed review isn't much better than the lawyer's post-judgment claim. Anyone posting a complaint to Ripoff Report is forced to click through an "agreement" that hands over the rights to the complaint to Xcentric.

Unfortunately, Xcentric's legal theories haven't all been good for users, either: Xcentric claimed that it, in fact, is the true owner of the copyright in content posted to its site, not the users. The argument was based on the fine print to which users "agree" when they post content, which says that Xcentric gains an "exclusive license" to the content. It is a quirk of copyright law that this exclusive license language is actually code for transferring ownership of the copyright.

The EFF and Public Citizen argue against this "agreement," as well as Goren's abuse of IP protections, in its submitted brief [PDF]. In it, they make the point that Xcentric/Ripoff Report have a non-exclusive license to host users' reviews, rather than being in complete control of the content. While this may seem more favorable to the plaintiff and his infringement claim, it also insulates Xcentric from being sued for copyright infringement.

In contrast, users do clearly intend to give Xcentric permission to host the content, and understand that permission cannot be revoked. This is called an irrevocable, non-exclusive license, and in this case granting such a license to Xcentric advances the user's interest in censorship-resistant publishing on Ripoff Report and does not restrict their freedom to repost elsewhere. Therefore, even if Goren did obtain ownership of the copyright, Xcentric would not be liable because it has permission to host the content, and that permission cannot be retracted.

This doesn't mean any of the parties composing the brief are supportive of Ripoff Report's copyright grab. Public Citizen's Paul Alan Levy (who contributed to the amicus brief) sums it up this way in his post on the lawsuit:

In lay terms, the terms of service are themselves a ripoff.

This explains why Ripoff Report wants the court to bypass any examination of its browsewrap "agreement" when considering the amicus brief, despite the fact that it would help defend it against bogus infringement lawsuits like Goren's.

Abusing IP law is often the path of least resistance. And that is true of Ripoff Report just as much as it is for the aggrieved lawyer.

Those who wish to censor will try to use whatever area of law has the weakest protections for free speech. We encourage the First Circuit and other courts to bolster speech protections in the copyright realm, to resist attempts to dress up other claims as copyright infringement in order to censor speech, and to look askance at clickthrough "contracts" that compromise users' freedom.

Fortunately, Ripoff Report has now decided -- after the submission of this amicus brief -- to revamp this part of its terms of service. Paul Alan Levy notes that the company (Xcentric) should be applauded for taking this step, but perhaps not sent a round of drinks on the house.

In a comment posted yesterday to my blog post last week about an amicus brief that Public Citizen and EFF filed in the First Circuit, Ripoff Report founder Ed Magedson announced that his company is going to modify the browsewrap agreement that it has been imposing on users, whereby the company purported to obtain an exclusive license to carry reviewers’ critical content. This is progress for which that company deserves praise.

Progress, yes. But Xcentric still asserts its control of the copyright, albeit now in nonexclusive form. Magedson claims this control is needed to battle scraper sites, and will never (and has never) been used to go after site users. But Levy is not so sure this "protection" is actually necessary.

Indeed, when I pressed Magedson in a conversation after he made his comment, it seemed to me that the justification for taking copyright was two-fold – that scrapers take traffic from his web site, and that scrapers make it less valuable for companies to buy into the “Corporate Advocacy Program.” Neither of those arguments suggests that there is any reason why the interests of consumers who write reviews on Ripoff Report are advanced by the taking copyright ownership away from them.

With the modification to the terms of use in place, it's likely Xcentric/Ripoff Report will be able to sidestep any additiona judicial scrutiny as this case moves forward.

Filed Under: copyright, copyright assignment, defamation, reviews, section 230
Companies: ripoff report, small justice, xcentric


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  • identicon
    Anonymous Coward, 15 Jun 2016 @ 3:17pm

    "Abusing IP law is often the path of least resistance."

    When the penalty structure is so one sided that it greatly favors plaintiffs it makes sense for every plaintiff to throw infringement into the mix no matter how bogus and unrelated the infringement claim is. After all the upside if you win is potentially huge penalties and the downside if your infringement claims hold no water are almost no punishment at all.

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

  • icon
    Coyne Tibbets (profile), 15 Jun 2016 @ 3:40pm

    Reputation extortion

    What do Ripoff Report, trolls like Prenda and that company that sank Silk Road have in common?

    Reputation extortion.

    It should be illegal to do either of these:
    - Be an agent of damage to a reputation, and then require payment for fixing it.
    - To propose to be an agent of damage to a reputation, and require payment to refrain.

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

    • identicon
      Anonymous Coward, 16 Jun 2016 @ 5:32am

      Re: Reputation extortion

      It is a business model, are you interfering with it?

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

      • identicon
        Wendy Cockcroft, 17 Jun 2016 @ 5:45am

        Re: Re: Reputation extortion

        Assume it is; if Coyne and I go into business together to set up a website that complains against the extortion tactics of Ripoff Report, the idea being that we will stop comparing the accuracy of the reports posted there to toilet walls if they pay us, AND RR complains about us, would we have a valid complaint of RR interfering in our business model?

        I would TOTALLY interfere in a business model which consists of being a wolf dressed like a sheep and going "Baa!" beside the sheepfold. Alas, all I can do is state the bleedin' obvious: don't take anything you see there seriously, it's a troll paradise.

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

  • icon
    Whatever (profile), 15 Jun 2016 @ 5:58pm

    A couple of things on this one.

    If RR ends up with a non-exclusive license, they no longer have a legal leg to stand on against scraper sites. This is because they will not be able to prove that the original copyright holder didn't also grant the scraper site a non-exclusive license. At that point, the license is moot for almost anything except for the content to appear on RR.

    In other words, they could limit their license to "permission to post on our site" and have about the same legal standing.

    I also think that non-revocable licensing such as this is a crock in many ways. It creates an interesting problem where the original writer could face a legal challenge in regards to their post, and have absolutely no way to edit, remove, or change the content to meet any court order or legal agreement made. Taken in that light, it's pretty scary to post anywhere that has a similar "license".

    Most importantly, I think that by taking a copyright position on the content, RR should be putting themselves into a liability position. They are not just "hosting" the content, they are "owning and controlling" the content. It surprises me that nobody has used their T&C as leverage against them. This is perhaps another situation where section 230 protections are more than a little overly broad. By changing their terms, they perhaps are a little less at risk as only being a non-exclusive licensee, but by making it impossible to remove or change content, they would appear to be prolonging harm from bad / dishonest posts long past the point of legal resolution.

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

    • identicon
      Wendy Cockcroft, 17 Jun 2016 @ 5:53am

      Re:

      You can edit your reviews if you pay for the privilege, Whatever. RR's business model is "Pay to bury or minimise embarrassing comments."

      I saw an example of one lawyer whom they held up as an example of a service worth paying for: basically, they left the complaint about him up minus the statements that were proven defamatory; the unkind opinions remained in place because opinion is not defamatory. It seems that if you state as fact that a certain lawyer overcharged you and gave you bad advice, that's defamatory if proven false. However, if you were to say, "I believe that [lawyer] overcharged me by a ridiculous amount and am convinced he gave me bad advice because I lost the case" you get a pass. This is what RR wants you to pay for. It's a scam. And they take troll posts for gospel so if you tell the most egregious lies about someone they stay there even if you can prove they're not true.

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

      • identicon
        Anonymous Coward, 17 Jun 2016 @ 10:15am

        Re: Re:

        "basically, they left the complaint about him up minus the statements that were proven defamatory"

        Exactly, Whatever is conflating defamation with copy protections. Copy protection laws should not be meant to handle potential defamation, they're two separate things and there is a separate process for handling defamation. To use copy protection laws for defamation is an abuse of copy protection laws.

        A non-revocable license can be required by forum hosts while still separately complying with any defamation related laws or court orders. If a contributor doesn't like it they can either find another host or host their content themselves.

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

    • identicon
      Anonymous Coward, 17 Jun 2016 @ 10:01am

      Re:

      "I also think that non-revocable licensing such as this is a crock in many ways."

      But then, I imagine, you think it's OK for artists to sign over their copy protections over to record labels, publishers, and distributors in a way that can't be revoked, am I right.

      "It creates an interesting problem where the original writer could face a legal challenge in regards to their post, and have absolutely no way to edit, remove, or change the content to meet any court order or legal agreement made."

      The purpose of copy protection laws should not be to enable people to edit their works, and distort the history of events, after the fact. That's an abuse of the law. It should only be to promote the progress and expand the public domain.

      If the author has a legal agreement with the content host they can agree to change the content. If a court orders the content host to remove the content or allow for a change then that can still happen. Non-revocable licensing does not supersede a court order against the content host.

      In the meantime if you post something stupid here on Techdirt for example, like you always do, and you come to later regret it once everyone has shown you to be an idiot, tough. You should have absolutely no legal right to remove what you posted because you managed embarrass yourself as usual.

      Based on your previous posts I can certainly see the appeal for you to be able to remove pasts posts where you made a fool out of yourself and your position but the responses given are actually very important, informative, and help show how indefensible your position is. While that may be something you wish to change you should have no such power.

      and it's an abuse of copy protection laws when companies or individuals abuse copy protection laws to remove past videos they are embarrassed about in the future. Examples include, but are not limited to, companies that may have had their products associated with cigarettes in the past and wish to abuse copy protection laws to remove any evidence of past association (I can't remember, I think it was barbie? but I can't find it right now), companies that worked with the federal government (I believe Disney) that always gave the villain a foreign accent in the past, are now being called out on it, and wish to abuse copy protection laws to remove said videos, and the embarrassment of how Universal music made overly hyped videos about how infringement is killing the music industry and how embarrassing those videos look in retrospect and how Universal abuses copy protection laws to remove those videos.

      https://www.techdirt.com/articles/20101005/12204511290/why-won-t-universal-music-let-you-see- the-20-20-report-from-1980-about-how-the-music-industry-is-dying.shtml

      These are abuses of copy protection laws because they attempt to abuse these laws to pervert the history so that people can't use them to help reveal the true agenda of these people and the absurd nature of their true agenda.

      This is not the purpose of copy protection laws at all and for you to twist it into something it should not be is more reason to abolish it.

      Copy protection laws should not be about the 'original write', they're not about the IP holder, they're only about the public.

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

      • identicon
        Anonymous Coward, 17 Jun 2016 @ 10:22am

        Re: Re:

        and now the embarrassing 60 minute pro-IP videos have been removed because CBS is too embarrassed to have their videos viewed because it shows how ridiculous their baseless pro-IP, anti-infringement fear mongering is and they can't have anyone being able to use their own words to criticize the mentality of IP proponents and hence to criticize the nature and intent of IP laws.

        https://www.techdirt.com/articles/20091101/1818186751.shtml

        The use of copy protection laws to remove embarrassing videos is an abuse of these laws and shows how much these laws need to be changed.

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

    • identicon
      Anonymous Coward, 17 Jun 2016 @ 10:08am

      Re:

      "Taken in that light, it's pretty scary to post anywhere that has a similar "license"."

      But it's OK for record labels or publishers to have similar 'licenses' or license requirements, that an artist or contributor must sign over their copy protections or 'rights' in order to get signed or published.

      You have hypocrite written all over you.

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

      • identicon
        Anonymous Coward, 17 Jun 2016 @ 10:11am

        Re: Re:

        (and if I suggested that copy protections should be non-transferable you would then scream about how that denies content creators the right to do whatever they want with their copy protections. But then you scream about how it's unfair that contributors must agree to a non-revocable license before contributing to a forum).

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

  • icon
    Mason Wheeler (profile), 16 Jun 2016 @ 7:25am

    I have to wonder about this. I'm not an IP lawyer, but it sure seems to me that what a person doesn't have can't be taken away from them.

    In other words, if Dupont is not the copyright holder (because Ripoff Report is) then a court order transferring his copyright ownership of the post in question to a third party means absolutely nothing because he has no ownership to transfer, which helps to make the post more censorship-resistant.

    How is this a bad thing? (Bearing in mind that people don't write reports like this for commercial purposes, so taking away his copyright interest on something he was never going to make money on doesn't harm him in any way anyway.)

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

    • icon
      Avatar28 (profile), 16 Jun 2016 @ 8:10am

      Re:

      The irrevocable license has equivalent results. The user was the owner of the copyright at the time he posted it. He provided the site with an irrevocable license in good faith. When you buy an asset (like copyright or a company or whatever), you are still bound by any contracts relating to it.

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

    • icon
      Bergman (profile), 18 Jun 2016 @ 8:49am

      Re:

      That's what I was wondering too.

      Person A writes a review of something, and transfers ownership of the rights to that review to Review Site B.

      Person C considers that review defamatory so they sue Person A, and either Person A is never informed of the lawsuit, the lawsuit is in a court that lacks jurisdiction or Person A just doesn't bother to show up -- resulting in a default judgment. But Review Site B was not named in the lawsuit, and is not a party to it in any way.

      So how can the court seize B's property and give it to C, when it was A who lost the lawsuit and A does not own the property that is to be seized?

      It seems to me that there is enormous potential for abuse there if it's a valid court order. Go out and sue your next door neighbor, win, and demand the court award Disney's ownership of Star Wars to you? How on Earth could that possibly be valid?

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

  • identicon
    Amomy-mous Coward, 26 Oct 2016 @ 2:48am

    More than a few years ago I looked into various sites to upload my writing (fiction) to, that would make it available to the world. The promise to the writer was that you could make money. Not that I believed I had much chance of that, but it would be place I could send friends, family, and enemies to to read my stuff.
    As I tread carefully and slowly, I quickly concluded that most such sites contained similar language, giving a non-revocable use right to the site, without compensation.
    One day a light bulb went off in my head. With many of these sites hosting work(s) by thousands of authors, the site could profit by keeping a lookout for the few who would get a book deal (or e-reader deal) every year. Publishers, esp. of new authors, really like to only put material out by an author if no other material by the same author is currently on the market. They figure they are promoting the author, and they want any sales of anything bu that author to got to them.
    Back the on-line publishing site. With a non-revocable use in place, they are in a perfect position to screw up the other publisher's plans. They may go to the author or publisher or both, 'offering' for sale the use rights they have. Or threatening to publish it (often they have the right to publish books, or in e-book format or any format). Or, the publisher or author comes to them, hoping to 'clean up' the author's public presence.
    And, on a more serious note:

    One of the major selling points of that wholly remarkable book, The Hitch-Hiker's Guide To The Galaxy, apart form its relative cheapness and the fact that it has the words 'Don't Panic' written in large friendly letters on the cover, is its compendious and occasionally accurate glossary. [snip]. The simplistic style is partly explained by the fact that its editors, having to meet a publishing deadline, copied the information off the back of a pack of breakfast cereal, hastily embroidering it with a few footnotes in order to avoid prosecution under the incomprehensibly tortuous Galactic copyright laws. It is interesting to note that a later and wilier editor sent the book backwards in time through a temporal warp and then successfully sued the breakfast cereal company for infringement of the same laws.

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


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