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.