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Volume Twenty-Four, Number
3, 2004
TABLE OF CONTENTS
ARTICLE
When
is a User Not a "User"? Finding the Proper Role for Republication
Liability on the Internet
by James P. Jenal
Although the originator of a defamatory statement is the usual defendant
in an action for libel, courts have long held that “one who repeats
or otherwise republishes defamatory matter is subject to liability as
if he had originally published it.” Nevertheless, the common law
has recognized a distinction between the liability assigned to initial
publishers, such as book or newspaper publishers which routinely exercise
editorial control over the content of their publications, and distributors,
such as bookstores and newsstands which serve as mere conduits for providing
content to the public. The Internet served to blur that distinction and
early cases considering the extent of liability for republication of defamatory
content over the Internet created great uncertainty. Congress responded
by enacting the Communications Decency Act (“CDA”), which
immunizes a “provider or user of an interactive computer service”
from being “treated as the publisher or speaker of any information
provided by another information content provider.” Early cases interpreting
the CDA’s so-called “Good Samaritan” provisions attempted
to determine the extent of that immunity, but always in the context of
immunity for Internet Service Providers (“ISPs”) like America
Online, Incorporated (“AOL”). Recently, however, a case—Barrett
v. Rosenthal—has arisen that focuses squarely on the CDA’s
apparent protection of users who knowingly republish defamatory content
on the Internet. But the extent of that protection is necessarily a more
nuanced, and as yet unanswered, question than the blanket immunity courts
have decided Congress intended to grant ISPs. Understanding the many roles
assumed by users of interactive computer services—some which neither
need nor merit the CDA’s protection—is the key to understanding
the extent of the CDA’s grant of immunity for users who intentionally
republish libelous content. Two conclusions emerge in finding liability
for defamation on the Internet: first, that user roles form a continuum
that directly correlates with the appropriateness of immunity under the
04.TOC 8/31/2004 4:50 PM CDA, and second, that cases such as Barrett can
only be properly decided by determining where on that continuum of roles
the user in question lies. Under the analysis advanced in this Article,
Poster-users who maliciously republish libelous content over the Internet
will not be able to use the CDA to shield them from liability.
NOTES & COMMENTS
Modified
to Fit Your Screen: DVD Playback Technology, Copyright Infringement
or Fair Use?
by Ashley C. Kerns
We’ve
all seen network-acceptable and airplane-friendly films that have been
edited and excised of their offensive content in order to appeal to general
audiences. While this practice is commonly accepted for publicly accessible
movies, new digital video disk (“DVD”) playback software that
allows consumers to “sanitize” films within the privacy of
their own home is causing discontent within the entertainment industry.
Manufacturers of this DVD playback software have been dragged into Huntsman
et al. v. Soderbergh et al., an ongoing lawsuit presenting the first legal
challenge to the sanitizing software. This Comment addresses the copyright
infringement claims against the manufacturers and their motion for summary
judgment. After discussing the pending case, the technology itself, relevant
statutes and case law, the following analysis supports the manufacturers’
motion for summary judgment. Should the court deny their motion, the manufacturers
either should not be held liable for copyright infringement because the
“sanitizing” filters do not constitute derivative works under
the Copyright Act, or, in the alterative, the manufacturers should prevail
under the affirmative defense of fair use. The author concludes in favor
of the manufacturers, while considering future advancements in technology
and speculating upon potential future copyright violations.
How the RIAA Can Stop Worrying and Learn to Love the RICO Act: Exploiting
Civil RICO to Battle Peer-to-Peer Copyright Infringement
by Phillip Stuller
Now that the recording industry has decided to sue the users of peer-to-peer
networks along with the networks themselves in its battle against P2P
copyright infringement, it should check its arsenal for a more powerful
weapon—a civil RICO suit. The RIAA can claim racketeering violations
because of two laws enacted pre-Napster in the late 1990’s. In 1996,
Congress added criminal copyright infringement to the list of predicate
crimes under RICO through the Anticounterfeiting Consumer Protection Act.
In 1997, Congress passed the No Electronic Theft Act, which eliminated
the need to show any profit motive to convict an individual for criminal
copyright infringement. This Comment demonstrates how the RIAA would benefit
by employing civil RICO in its litigation strategy to fight P2P copyright
infringement. A civil RICO suit would reduce the RIAA’s burden to
prove a P2P network’s secondary liability, avoiding the controversial
standards for proving contributory infringement. RICO also blocks those
networks from invoking the “staple article of commerce” doctrine
to gain immunity. This Comment warns against using RICO actions against
anyone except the most egregious users. The effects of RICO’s mandatory
attorney’s fees and treble damage awards combined with joint and
several liability could yield judgments so excessive and inequitable as
to violate constitutional bounds or lead courts to increase the plaintiffs’
burden of proof. If used prudently, RICO is a viable litigation strategy
that offers many advantages over the RIAA’s current tactics.
Internet Pop-Up Ads: Your Days are Numbered!
The Supreme Court of California Announces A Workable Standard for Trespass
to Chattels in Electronic Communications
by Geoffrey D.
Wilson
Internet pop-up advertisements are considered by many Internet users to
be the most intrusive form of advertising on the web; however, there may
finally be a way to get rid of them. In the summer of 2003, the California
Supreme Court announced that thousands of email messages sent by a disgruntled
former Intel employee did not constitute a trespass to chattels. In their
decision, the court revealed a workable standard for the application of
trespass to chattels to the Internet age. The application of these factors
to Internet pop-up advertising could be the undoing of what thousands
of Internet users consider an unethical form of advertising. Legal practitioners
may also use the newly redefined tort to defeat other forms of Internet
advertising such as “spyware” and “adware,” or
to combat data loss and system failures caused by pop-ups, cell phone
text message ads, or other aggressive forms of electronic advertising.
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