online defamation copyright defense

8/6/2019 Online Defamation Copyright Defense

http://slidepdf.com/reader/full/online-defamation-copyright-defense 1/38

Presented by:Presented by: Kevin M. Goldberg, Esq.

Fletcher, Heald & Hildreth, P.L.C. Phone: 703-812-0462

E-mail: [email protected]: http://www.fhhlaw.com

Blog: http://www.commlawblog.com



1. Information You Produce

2. Information Added by Others



� The laws generally don·t change

� But the lack of usual and important controls can affectexisting laws in important ways:

� Rush to publication/lack of editing process (see:Washington Post videos

)

� Ability to use multiple and new/unfamiliar media



� Defamation/False Light

� Copyright



8 Elements to be Proven by a Plaintiff as a Result of

New York Times v. Sullivan

�Defamatory�False� Assertion of Fact� About the Plaintiff

�Published�With Fault�CausingDamage�Without a Privilege for the Defendant



Statements of Fact vs. Statements of Opinion

Is it capable of being answered ́ Yesµ or ´Noµ?

Look at:

Verifiability of the alleged libelCommon usage or meaning of the specific language

Full context of statement

Broader context of statement (what sort of publication)



Public Official or Public Figure = Actual Malice

These people have assumed special roles in society and special

prominence in resolution of public questions

These people have greater access to the media to defendthemselves

In many cases, they have voluntarily exposed themselves torisk of injury from defamatory falsehood

Private Figure = Negligence



� A statement is made with actual malice if the writer or speaker has

knowledge that it was false or made it with reckless disregard to its

truth or falsity

�This must be proven by clear and convincing evidence

�Examples applicable to blogging:

Purposeful failure to interview a person with opposing viewpointUsing headline despite knowledge that readers might misinterpret it



�Determine Ownership

�Is the material eligible for copyright protection?

� (Is it an original work fixed in a tangible medium)?

�Who owns the Material?

�How long do they own it?

�What rights do they own?

� Avoid Substantial Similarity

�Can you Purchase or License the Content?

�Key Terms to Remember

�Statutory Licenses

� Are you Engaged in a Fair Use?

�Do other defenses or safe harbors exist?



�Original

�Independently created by the author

�Has some minimum degree of creativity

�Work of Authorship (Defined in Copyright Act)

�Fixed (more than just transitory duration)

�Tangible Medium of Expression



�Does Not Mean it is already being used

somewhere, somehow -- the fact that something is

on the Internet does not mean it is ´publicµ

�It simply means that the Copyright Term has

expired.

�This is why you need to identify the owner and

when the work was created.



�Reproduce the copyrighted work

�PrepareDerivative works

�Distribute by sale, transfer, rental, lease, or lending

�Perform the work in public

�Display the work



Display



Display

(Resolution)



Extent of Ownership Rights

� A copyright owner has a limited monopoly to engage in these five

activities.

� Unless you are the copyright owner, you cannot use a currentlycopyrighted work or anything substantially similar to the workunless:

± You get permission right to use the work via purchase or license

± You are engaged in a ³fair use´

± Another defense exists



Permission/Licensing

Because a copyright is a piece of property (³Intellectual Property´) it

can be bought, sold, or leased/rented/licensed, with the followingcharacteristics:

± Exclusive or non-exclusive

± Limited in duration or perpetual

± Types of media covered**

± Other conditions, such as attribution

± Statutory and Compulsory Licenses



Licensing of Clip Art



Better Clip Art Options

Derived from Yahoo! Derived from Wikimedia free content projects

http://www.flickr.com http://commons.wikimedia.org/wiki/Main_Page



The Special Problems of Linking and Embedding Advances in technology and social media provide the ability tolink with text, pictures, and even audio or video, raisingquestions applicable to all 5 rights exclusive to a copyright owner

Easiest Solution:

Use the embedding function available through YouTube andother Social Networks to use the official version



The Fair Use Defense Defense



Fair Use Situation # 1 ² Text

Tip: Beware the Copyright Troll!!!



Remedies

� Actual damages

± Profit lost by copyright holder ± Profit gained by infringer

� Statutory damages

± $750 - $30,000 per work, based upon the judge·s discretion

± Can be increased to $150,000 if proven to be willful or reduced to$ 250 if proven to be innocent or willful

� Injunction

� Criminal prosecution (punishment may include fines/jail)



Steps to Avoiding Copyright Infringement



� Section 230 of the Communications

Decency Act (Defamation/False Light)

� Section 512 of the Digital Millennium

Copyright Act (Copyright)



No provider or user of an interactive

computer service shall be treated as

the publisher or speaker of any

information provided by another

information content provider



Has protected defendants in the following actions:

Defamation

Invasion of Privacy

Publication of Trade Secrets

But not these:

Federal Criminal Laws

Obscenity

Child Abuse

Intellectual Property (Copyright/Trademark)



W hen there is evidence that the company or an employee posted the content

Personal or Company Blogs

RSS Feeds

Prompting the Poster

MCW v.Badbusinessbureau.com

Operator of a website entitled was not entitled to this defense because it had "created and developed"

information on its site that was critical of local businesses.

Worth noting that www.badbusinessbureau.com specifically directed certain actions, including actively

encouraging and instructing posters what to include in their defamatory posts on the site

Roommates.com/Craigslist

Roommates.com· s creation of standard questions with drop down menus that offer mandatory responses from

users (such as male or female, or sexual orientation of the user) are content created by site, even if the user must

choose the actual answer to each question.

Compare with Craigslist, where posters often included that information, but Courts have twice said that

Craigslist has no liability



If the identity of that original speaker is unknown, the victim will often subpoena the website to get that

information, which also takes time in litigation.

Caught between the ´rockµ of litigation and the ´hard placeµ of censorship, many newspapers have

turned to the reporter·s privilege as a means of protecting both their legal interests and their reputation

Courts in Oregon, Montana and Maryland have held that the state shield law allows a newspaper to

protect the identity of an anonymous poster as though that person was a source; a similar case is

pending in Illinois

Will depend on how a journalist is defined in the state shield law



�General Provision stating ownership and that these terms must be accepted to access and use the blog and allowing

discontinuing of access for any violations.

�No reprinting or other unauthorized use.

�Representation and warranty that user will not use the blog for any purpose that is unlawful or prohibited by the Terms and

Conditions

� All statements and materials, whether original posts or comments to those posts, reflect the views of such individual

contributors and do not reflect the views of ________.

�We reserve the right to monitor the material placed on this site and to remove any posting that we deem inappropriate.

� You represent that your contribution is in the public domain or original to you; does not infringe the intellectualproperty, contractual or proprietary rights of any third parties; and is not otherwise defamatory or violative of the law.

�Limitation of Liability

�No liability for links to other sites

�Indemnification by user for liability stemming from its posts



____ reserves the right at any time and for any reason to deny you access to the blog or any

portion thereof, and to terminate this Agreement. Termination will be effective without notice.Please note that ____ reserves the right to change the Terms and Conditions under which this

blog is made available to you, upon notice, which may be given by ____ posting such

modifications on the blog, by e-mail, or any other reasonable way. Your continued use of this

blog following notice of such modifications will be conclusively deemed acceptance of any

changes to these Terms and Conditions. You agree that notice of changes to this Agreement on

the blog, delivered by email, or provided in any other reasonable way, constitute reasonable

and sufficient notice.



Information Produced by Others:

Section 512

� Provide notification regarding policies pertaining to repeat

copyright infringement offenses

� Designate an agent for service of proper DMCA Notice and

Takedown requests and Counter-Notifications on the website

and with the UnitedS

tates Copyright Office

� Act largely as a passive conduit and follow required

procedures when provided with proper notification of a

possible copyright infringement



Presented by:Presented by: Kevin M. Goldberg, Esq.

Fletcher, Heald & Hildreth, P.L.C. Phone: 703-812-0462

E-mail: [email protected]: http://www.fhhlaw.com Blog: http://www.commlawblog.com

online defamation copyright defense

Documents