An issue came up recently that is worth discussing. The question posed is: Does a university professor own the copyright in the materials he or she creates in the scope of his or her professorial employment?
I would answer the question as “yes,” at least under the Copyright Act. Interestingly, many educators with whom I’ve spoken seem to think that the answer is categorically “No!.”
Now I haven’t spoken to scores of professors about this, but I have spoken to a few. Here is an example of one who gave me permission to share our conversation on this blog.
Howard Suber is a professor in the School of Film and Television (at least that’s what it was called when I attended) at UCLA. He is one of UCLA’s finest educators, and like many of his colleagues, he writes extensively both in connection with classroom activities and otherwise. His take on this issue was:
“I thought it was settled law, established decades ago in cases, that the intellectual property a professor produces is his/her own and does not belong to the university, absent signed documentation to the contrary. [¶] The patent and I.P. department at UCLA and elsewhere routinely try to get researchers in the sciences, engineering, etc. to sign such stipulations. But I’m not aware of any in the arts and humanities, have never been asked to sign such a document in my 45 years at UCLA.”
I’ll come back to UCLA’s policy – and Professor Suber’s belief in a moment. First, let me lay the foundation for my view of the world.
Let’s start with the work for hire doctrine. Under that doctrine (17 U.S.C. Section 201(b)) a "work for hire" is the property of the employer of the creator of the work, not of the creator provided the work was "prepared by an employee within the scope of his or her employment." (See also 17 U.S.C. Section 100.) There is no express statutory (or binding case law) exception for educators. Rather, you have to conduct a factual analysis to determine whether the work was created with the scope of employment. See principally Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (the seminal “work for hire” case that set forth a muti-factor test to determine if the work-for-hire doctrine applied); Restatement (Second) of Agency (setting forth the following factors, all of which must be shown to establish that the employee was acting within the scope of her employment: (1) whether the work is of the type that the employee is employed to perform; (2) whether the work occurs substantially within authorized work hours; and (3) whether its purpose, at least in part, is to serve the employer).
Under the multi-factor test in Reid, the court will look to, among other things, whether the "hired party" is an employee of the "hiring party"; whether the hiring party has the right to control the manner and means by which the hired party creates the product at issue (here it would seem to be the teaching materials); whether the hired party uses his or her own equipment, tools, etc. and where he or she creates the work. The court will also look at the hired party’s discretion over when and how long to work; whether the work is part of the regular business of the hiring party; and the provision of employee benefits to (and the tax treatment of) the hired party. Notably, the Court in Reid said that no one factor was determinative.
Under the holding in Reid, it would seem to me that where one is employed expressly for teaching purposes, a professor’s teaching activities would fall under the work for hire doctrine. While professors certainly have a good deal of autonomy, they still receive a pay check for teaching (from which the university will withhold taxes), and likely receive employee benefits such as insurance, retirement plans, etc. I don’t know whether universities assign the classes to be taught in all instances, I assume not, but it may impose some requirements with respect to this that would arguably fall under the scope of Reid. When you look at all those factors, and consider as well the rules regarding Agency that I set forth above, it is hard for me to believe that a court would find that faculty-created teaching materials are not prepared within the scope of the professor’s employment.
By the way, I also think that there is also a good argument that outside scholarly works could be likewise considered a work for hire, but I think the argument there is not as robust.
Now, turning back to the seemingly-prevailing view of this issue in world of academia. You’ll recall that I mentioned UCLA’s policy on the matter. According to one administrator there, “The answers are quite clear at UCLA . . . .” And those answers are set forth in the following links: http://www.universityofcalifornia.edu/copyright/systemwide/pcoiv.html; http://www.ucop.edu/ucophome/coordrev/policy/8-19-92att.html; and http://www.ucop.edu/ott/faculty/crworks.html.
Reading these through, you will notice that the UCs give ownership much as does the Copyright Act (and as does the ruling in Reid). That is, the professor is given ownership of his or her “scholarly/aesthetic work,” defined as work that is originated by the professor “resulting from independent academic effort” unless such works are “sponsored works or contracted facilities works [meaning works that originated with the use of University controlled buildings, equipment, computer centers, certain laboratories and other facilities, but excluding University libraries]. . . .” Professors are also given the copyright in their “personal works” which are defined as “work that is prepared outside the course and scope of University employment (except for permissible non-University consulting activities) without the use of University Resources.” In other words, if the work is “independent” or outside the course and scope of the professor’s employment, the copyright in the work usually will belong to the professor. To the extent this is more generous than the Act itself provides, keep in mind that it contractually given to the professor and not given as a matter of law.
Now according to Professor Suber:
“I’m sure you’d find that virtually every major university in the country makes similar statements [to that which is on the American Association of University Professors’ website: http://www.aaup.org/AAUP/protect/legal/topics/copy.htm . I don’t know of any university that has tried to claim copyright in a professor’s lectures or scholarly writing unless, as the UCLA statement says, the work was specifically commissioned for a narrow purpose and the professor signed an employee-for-hire contract. . . . [i]f your hypothetical were ever translated into practice, the professoriate of every university in the country would be in arms. It hasn’t happened because, as far as I’m aware, no university of any repute would dare assert ownership.”
I’ll just note that the AAUP site does include several references to case law on this topic, but most of them go against the professor and I do not believe that those which don’t are binding copyright precedent.
So, all this to say: check with the school’s technology transfer policy before assuming who owns – or doesn’t own – the copyright in work created by a professor. Absent a generous grant to the professor in that document, the “work for hire” doctrine should apply.
Jonathan Pink is a commercial litigator specializing in high stakes copyright, trademark, patent and business-related disputes. He is resident in the Irvine (Orange County) and Los Angeles offices of Bryan Cave, LLP. He can be reached at 949-223-7173.
Wednesday, October 21, 2009
Friday, October 16, 2009
Twitter Jitters
Here is some information to pass on to clients or incorporate into your drafting of iron-clad agreements.
Turns out that an ever-increasing number of entertainment deals now include contract language that is expressly intended to curb the use of social media by the other contracting party. According to an article in today's Hollywood Reporter, the goal of this language is to plug "leaks of disparaging or confidential information about productions via the likes of Twitter, Facebook and YouTube."
According to the article, Disney has used such a clause to forbid confidentiality breaches on Facebook, Twitter, and "any other interactive social network or personal blog," and DreamWorks has one that prohibits the making of any statement via "a social networking site, blog or other Internet-type site" prior to the studio's own public release of the information. Another studio agreement is broadly drafted to prohibit commentary on "all platforms, including voicemails, blogs, Internet sites, chat or news rooms, podcasts or any online forum," and at least one talent deal referenced in the article contains a nondisparagement provision prohibiting the actor from "bashing any element of a production with social media."
This once again highlights the potential for both positive and damaging information (truthful or otherwise) being disseminated via social media. It also points out the potential hazard this new avenue of expression poses for our clients, and suggests some steps we may take to protect them. In short, while the Internet has given a voice to millions, it has also given them an audience.
Eliminating the traditional "gate keepers" to the public dissemination of information can be great or it can be problematic. As lawyers working in the Internet space, we need to be aware of this, and find ways to shield our clients from the potential dangers. Because of this, we should consider following the lead of the networks and studios by drafting Internet/social media-specific confidentiality clauses in all appropriate agreements. (NDAs, employment agreements, IP licenses and settlement agreements come immediately to mind). If you're thinking, "doesn't the confidentiality clause I currently use already cover this?", the answer is "maybe." But as those who litigate contracts know, sometimes having the additional, highly specific provision is better. California has a statute that says the specific controls over the general, and I suspect other states have something similar. So if we want to expressly prohibit or limit specific conduct -- such as the on line bad-mouthing of our clients -- it is better to take the lawyerly "belt and suspenders" approach.
Which reminds me: I once saw a man who was actually wearing a belt and suspenders. I don't think he was a lawyer, but maybe he should have been.
Jonathan Pink is a commercial litigator with a specialty in high-stakes trademark, trade dress, copyright, patent and trade secret disputes. His clients include companies in industries ranging from media to manufacturing, software to soft drinks. He has successfully represented many of the biggest names in the automotive and motorcycle aftermarket parts industries (including B&M Racing & Performance Products, Hurst Shifters, McLeod Clutches, and Baron Custom Accessories), and has extensive experience litigating claims for breach of contract, fraud, unfair practices, trade libel and a broad spectrum of intellectual property matters in state and federal courts, and before the United States Trademark Trial and Appeal Board. He is resident in Bryan Cave's Irvine (Orange County) and Los Angeles offices.
Turns out that an ever-increasing number of entertainment deals now include contract language that is expressly intended to curb the use of social media by the other contracting party. According to an article in today's Hollywood Reporter, the goal of this language is to plug "leaks of disparaging or confidential information about productions via the likes of Twitter, Facebook and YouTube."
According to the article, Disney has used such a clause to forbid confidentiality breaches on Facebook, Twitter, and "any other interactive social network or personal blog," and DreamWorks has one that prohibits the making of any statement via "a social networking site, blog or other Internet-type site" prior to the studio's own public release of the information. Another studio agreement is broadly drafted to prohibit commentary on "all platforms, including voicemails, blogs, Internet sites, chat or news rooms, podcasts or any online forum," and at least one talent deal referenced in the article contains a nondisparagement provision prohibiting the actor from "bashing any element of a production with social media."
This once again highlights the potential for both positive and damaging information (truthful or otherwise) being disseminated via social media. It also points out the potential hazard this new avenue of expression poses for our clients, and suggests some steps we may take to protect them. In short, while the Internet has given a voice to millions, it has also given them an audience.
Eliminating the traditional "gate keepers" to the public dissemination of information can be great or it can be problematic. As lawyers working in the Internet space, we need to be aware of this, and find ways to shield our clients from the potential dangers. Because of this, we should consider following the lead of the networks and studios by drafting Internet/social media-specific confidentiality clauses in all appropriate agreements. (NDAs, employment agreements, IP licenses and settlement agreements come immediately to mind). If you're thinking, "doesn't the confidentiality clause I currently use already cover this?", the answer is "maybe." But as those who litigate contracts know, sometimes having the additional, highly specific provision is better. California has a statute that says the specific controls over the general, and I suspect other states have something similar. So if we want to expressly prohibit or limit specific conduct -- such as the on line bad-mouthing of our clients -- it is better to take the lawyerly "belt and suspenders" approach.
Which reminds me: I once saw a man who was actually wearing a belt and suspenders. I don't think he was a lawyer, but maybe he should have been.
Jonathan Pink is a commercial litigator with a specialty in high-stakes trademark, trade dress, copyright, patent and trade secret disputes. His clients include companies in industries ranging from media to manufacturing, software to soft drinks. He has successfully represented many of the biggest names in the automotive and motorcycle aftermarket parts industries (including B&M Racing & Performance Products, Hurst Shifters, McLeod Clutches, and Baron Custom Accessories), and has extensive experience litigating claims for breach of contract, fraud, unfair practices, trade libel and a broad spectrum of intellectual property matters in state and federal courts, and before the United States Trademark Trial and Appeal Board. He is resident in Bryan Cave's Irvine (Orange County) and Los Angeles offices.
Tuesday, October 6, 2009
Still More on Punternet
A bit of a further update on this:
Many of you know Eric Goldman, and if you don't, you should. He is an Associate Professor at Santa Clara University School and Director of the High Tech Law Institute there -- he is also, for my money, one of the foremost U.S. authorities on issues involving Cyberlaw. (His blog can be found at http://blog.ericgoldman.org/ and is well worth following.)
In any event, with respect to my comments regarding Punternet's response to recent calls (from the British government) for its demise, Eric wrote: "I looked at the Punternet site this weekend. On it, the operator makes clear that he is a Brit residing in CA."
Interesting, but what I really wanted to know was, so what's the site like (I'm not visiting it, thanks; even if I could under the guise of work related activity -- hey, I co-lead the Internet and New Media team here at Bryan Cave -- but who wants to explain those red flags to my esteemed colleagues?). To which Eric responded:
"I was surprised at how internally credible it looked. The reviews were surprisingly thoughtful and detailed. It was a well run product review site for a class of services that normally don't elicit intelligent commentary."
This from the man who used to be GC of Epinions (and who knows a decent review site when he sees it). So, yes, I'm tempted to look. Maybe from home. If I can explain it to my wife.
JP
jonthan.pink@bryancave.com. Mr. Pink is a member of the Intellectual Property Group and a resident in the Irvine office of Bryan Cave.
Many of you know Eric Goldman, and if you don't, you should. He is an Associate Professor at Santa Clara University School and Director of the High Tech Law Institute there -- he is also, for my money, one of the foremost U.S. authorities on issues involving Cyberlaw. (His blog can be found at http://blog.ericgoldman.org/ and is well worth following.)
In any event, with respect to my comments regarding Punternet's response to recent calls (from the British government) for its demise, Eric wrote: "I looked at the Punternet site this weekend. On it, the operator makes clear that he is a Brit residing in CA."
Interesting, but what I really wanted to know was, so what's the site like (I'm not visiting it, thanks; even if I could under the guise of work related activity -- hey, I co-lead the Internet and New Media team here at Bryan Cave -- but who wants to explain those red flags to my esteemed colleagues?). To which Eric responded:
"I was surprised at how internally credible it looked. The reviews were surprisingly thoughtful and detailed. It was a well run product review site for a class of services that normally don't elicit intelligent commentary."
This from the man who used to be GC of Epinions (and who knows a decent review site when he sees it). So, yes, I'm tempted to look. Maybe from home. If I can explain it to my wife.
JP
jonthan.pink@bryancave.com. Mr. Pink is a member of the Intellectual Property Group and a resident in the Irvine office of Bryan Cave.
Monday, October 5, 2009
Thursday, October 1, 2009
Britain asks Schwarzenegger to Close Prostitute Web Site -- But Can he Do That?
A. Funny What You Come Across When Reading the News
In a recent article entitled “Britain Asks Schwarzenegger to Close Prostitute Web Site,” Reuters reported that Harriet Harman, the British government minister for women and equality (no caps in the original article, so I’m assuming that’s how they write it) has asked California governor Arnold Schwarzenegger (my fair state) to shut down a U.S. website entitled "Punternet" that allows men (and I’m assuming women too) to rate prostitutes, including those working in London.
Ms. Harman (who one assumes is not reviewed on that particular site, but I have not personally checked to verify this) stated at a recent Labor Party conference that "Punternet" fuels the demand for prostitution, degrades women and puts them at risk. I am certain that it degrades women; as to fueling the demand for prostitution, I find that a little specious. I mean, that’s like saying that a match thrown into a raging inferno fuels fire. As to putting women at risk, they’re not in a great situation anyway, and maybe this would allow someone to track/find rescue them, but maybe this is just Westside naiveté on my part.
In any event, the Minister for Women and Equality (to hell with it, I’m capitalizing her title) has apparently asked Governor Schwarzenegger to close down Punternet, believing that he has the power to do so given that it is located here in California. "Surely it can't be too difficult for 'The Terminator' to terminate Punternet and that's what I am demanding that he does."
Not so fast there Ms. Minister. In United States, we have the Communications Decency Act of 1996, Section 230 of which protects operators of websites and other interactive computer services from liability for publishing the statements of third parties. 47 U.S.C. § 230. And in Britain? They have the Queen. Of course, another difference between the two countries (and I’m not counting the food here folks) is that Britain permits – as in it’s legal – prostitution, while here it – umm – is not.
So back to Section 230, and how it might impact Punternet. Section 230 provides clearly that “[n]o provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider,” and that “n]o cause of action may be brought and liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. §§ 230(c)(1), 230(e)(3); see also Blumenthal v. Drudge, 992 F. Supp. 44, 51 (D.D.C. 1998) (in enacting the Section 230, "Congress made a policy choice . . . not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially ages. ").
Section 230's protection is not limited to civil liability. That is, while it does not apply to federal criminal law, see 47 U.S.C. § 230(e)(1), the most plausible reading of the statute's language is that it preempts state criminal actions that are inconsistent with it. 47 U.S.C. § 230; see also Gibson v. Craigslist, Inc., 2009WL 1704355 (SDNY June 15, 2009). (applying the service provider immunity of § 230, the court held that Craigslist was not liable for an advertisement displayed on Punternet, even if the ad itself was tortuous) . When determining the availability of immunity under Section 230, courts engage in a three part inquiry that is discussed in greater detail below. See e.g. Green v. Am. Online (AOL), 318 F.3d 465, 470-71 (3d Cir. 2003), cert. denied, 540 U.S. 877 (2003); Kruska v. Perverted Justice Found. Inc., No. 08 Civ. 54, 2008 WL 2705377, at *2-3 & n.1 (D. Ariz. July 9, 2008).
B. An Application of Section 230 to Punternet
Here, as indicated above, Punternet (just to digress – I don’t really know what this means, “Punter,” and I’m pretty sure that I don’t want to; still, every time I write it, I get the feeling that maybe I’m saying something I shouldn’t – like that Monty Python skit about the German guy and the English dictionary. . . ) provides a forum where users can review prostitutes. (Again, according to Minister Harman, Punternet allows users to compare and rate services in the same way as they would a restaurant, a hotel or a holiday – apparently as in “tasty,” “nicely redone” and “a party from start to finish.”) Clearly a site of that nature may be abused by third-parties in connection with various crimes despite efforts Punternet itself might take to prevent this. But can Punternet be shut down, or is it protected by Section 230? And moreover, what steps might it take to help insure that it is entitled to immunity pursuant to Section 230 should this ever become necessary?
Here are a few thoughts from the trenches:
1. Terms of Use –
I would strongly recommend that Punternet create and implement an appropriate and detailed “Terms of Use,” and that henceforth all usage of Punternet be subject to those terms. The “Terms of Use” should be readily available to all users through prominently displayed links throughout the website. Further, I would advise that, in order for users to post any review, he or she first affirmatively declare his or her acceptance of the “Terms of Use” by clicking an "ACCEPT" button located below a full-text display of those terms themselves.
Among other things, I would recommend that the “Terms of Use” explicitly prohibit the posting or making available of any content that is "unlawful" or that "advertises any illegal service," including in particular "any offer or solicitation of illegal prostitution." To promote compliance with these “Terms of Use,” Punternet should employ some self-regulatory measures, including an automated filter that blocks reviews that contain words or phrases that are associated with problematic content and perhaps a community flagging system that encourages users to "flag" inappropriate ads for removal. I realize that this might limit what they are trying to do on the site, but I’m paying the “conservative lawyer” here: I’m just talking about staying within the confines of Section 230, not keeping Punternet’s users happy (which they apparently are taking care of themselves).
2. Strict Compliance with Section 230 –
As indicated above, the key provision of Section 230 states that "[n]o 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." 47 U.S.C. § 230(c)(1). As the Ninth Circuit has noted, there is a "consensus developing across other courts of appeal that § 230(c) provides broad immunity for publishing content provided primarily by third parties." Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003); see also Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) ("Courts have construed the immunity provisions in § 230 broadly in all cases arising from the publication of user-generated content"); Zeran v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997) ("Section 230 . . . plainly immunizes computer service providers like AOL from liability for information that originates with third parties"); Green v. America Online, Inc., 318 F.3d 465, 471 (3d Cir. 2003) ("By its terms, § 230 provides immunity to AOL as a publisher or speaker of information originating from another information content provider"); Ben Ezra, Weinstein, & Co., v. America Online, Inc., 206 F.3d 980, 984-85 (10th Cir. 2000) (§ 230 "creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third-party"); Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); ("[W]e too find that Section 230 immunity should be broadly construed"). Chicago Lawyers Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F. 3d 666 (7th Cir. 2008) (under Section 230, Craigslist itself could not be held liable for its users' allegedly unlawful postings).
The last case listed above, Chicago Lawyers Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc. (“CLC”,) is instructive as there is little material distinction between the facts in that case and my fellow citizen’s operation of Punternet. In CLC, the plaintiff sued Craigslist for allegedly discriminatory housing ads posted by Craigslist-users. In affirming the lower court’s dismissal of the case, the Court of Appeal noted that services like Craigslist are, in many respects, “like common carriers such as telephone services,” meaning that they do not read the messages they transmit on their systems. 519 F.3d at 668. Based on this, the Court recognized that requiring Craigslist to review each ad is neither practical nor effective. Id. at 669. It therefore concluded that Craigslist was not obligated to review the ads at issue because Section 230 immunized it from liability for them. In short, the plaintiff in the CLC case was seeking to hold Craigslist – a provider or user of an interactive computer services – liable for publishing the ads at issue in that case, and the Court (applying the clear immunity set forth in Section 230),said “no.” Id. at 671.
As with CLC case, any criminal or civil action against Punternet based on users who may be involved in prostitution should be barred by Section 230 so long as Punternet does not induce anyone to advertise any illegal service, or solicit prostitution. See 519 F.3d at 671-72 ("given § 230(c)(1) [the CLC] cannot sue the messenger just because the message reveals a third party's plan to engage in unlawful [conduct]"). 519 F.3d at 672. See also Fair Housing Council v. Roommates.com, 521 F.3d. 1157, 1174 (9th Cir. 2008) (en bane) (holding that a website operator may not be liable for unlawful ads posted by its users, except in circumstances where the website operator structures its site so as to directly and necessarily cause its users to include unlawful statements in their postings).
In Roommates.com, a portion of the defendant’s website required users to answer multiple choice questions which, the court found, necessarily led to the generation of statements of unlawful preferences in housing ads. 521 F.3d. at 1165. The Roomates.com website also included an open-ended "Additional Comments" section which allowed users to insert content, some of which also was allegedly unlawful. Still while the Court held that Section 230 did not immunize Roommates.com with respect to the allegedly unlawful content dictated by the multiple choice questions, the court expressly held that everything users included in the "Additional Comments" section was created entirely by the users themselves, and thus the site operator was entitled to immunity from liability for any unlawful content contained there pursuant to Section 230(c)(1). Id. at 1174-75.
To this end, and in keeping with the Roommates.com holding, I would advise that Punternet avoid any “check the box” sort of questionnaire (analogous to the multiple choice questions discussed in Roomates.com) that may cause its users to include unlawful statements or otherwise promote (engage in) unlawful conduct. Rather, I would advisethat Punternet simply provide a blank text box in which users may review the service their received, advertise their service, or post their comments. In short, Punternet should have no content dictates or constraints (other than compliance with the “Terms of Use”) which induce users to advertise, solicit or promote any illegal activity. By limiting its function similarly to providing something analogous to the open-ended "Additional Comments" feature of the Roommate.com website, Punternet will help insure its Section 230 immunity from liability for content published by its users.
3. Diligence in Assuring Punternet Meets the Section 230 Immunity Test –
While similar to recommendation No. 2 above, it is important to remember that immunity under Section 230 must be determined, if at all, by a formal legal ruling (e.g. only after the website at issue has been sued based on its content), and that any court before whom this issue arises will apply the three-part “Section 230 immunity test.”
Specifically, the Court will first determine whether the defendant is a provider of interactive computer services. From what we have seen of Punternet, it seems that it is indeed a provider of an interactive computer services. See Chicago Lawyers' Comm. For Civil Rights, supra, 519 F.3d 666; see also Carafano v. Metrospash.com Inc., 207 F. Supp. 2d 1055, 1065-66 (C.D. Cal. 2002), affd, 339 F.3d 1119 (9th Cir. 2003).
Second, the Court will look at whether the content was placed on the website by independent third parties or by an agent of the website itself. If the content was posted by an independent third party, the website should be entitled to protection under Section 230. In this instance, the reviews and on Punternet appear to have been placed there not by Punternet, but from “another information content provider,” namely the users of Punternet. 47 U.S.C. § 230(f)(3).
Finally, the Court will look at whether the would-be legal action is merely a cloaked attempt to hold the website itself liable for third party content, e.g. based on an alleged failure to block, screen, or otherwise prevent the dissemination of such third-party content. Here, it is difficult to imagine any would-be claims other than those that seek to hold Punternet itself liable for the reviews and/or advertisements posted there by third parties. Because those claims would, by necessity, be directed toward Punternet as a "publisher" of third party content, they would be subject to protection under Section 230. Green v. Am. Online, supra 318 F.3d at 470-471 (affirming dismissal of claim that AOL "negligent[ly] fail[ed] to properly police its network for content transmitted by its users" because Sects m 230 bars "attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network — actions quintessentially related to a publisher's role”; internal quotations and citation omitted).
Along this same line, see also Myspace, supra, 474 F. Supp. 2d at 849 ("Plaintiffs argue this suit is based on MySpace's negligent failure to take reasonable safety measures to keep young children off of its site and not based on Myspace’s editorial acts . . . . No matter how artfully Plaintiffs seek to plead their claims, the Curt views Plaintiffs' claims as directed toward MySpace in its publishing, editorial, and/or screening capacities."); Green, supra, 318 F.3d at 470-71 (affirming dismissal of claim that AOL "negligent[ly] fail[ed] to properly police its network for content transmitted by its users" because Sects m 230 bars "attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network — actions quintessentially related to a publisher's role”); see also Stoner v. eBay, Inc., No. 305666, 2000 WL 1705637, at *3 (Cal. Super. Nov. 1 2000) (rejecting plaintiffs "contention . . . that eBay should be held responsible for failing to monitor the products auctioned over its service" because "Congress intended to remove [through Section 230] any legal obligation of interactive computer service providers to attempt to identify or monitor the sale of such products").
Now again, I have not reviewed or visited Punternet; I’m basing my comments strictly on Ms. Harman’s comments, as she seems to be pretty familiar with the site. Nonetheless, given what I’ve read, it appears that the three elements for Section 230immunity would be met if the recommendations set forth were followed. The mere fact that Punternet provides a forum for erotic content – or even crimes that may flow from that content – is not sufficient to treat the website as the publisher of any posted illegal content. See Gentry v. eBay, Inc., 99 Cal.App.4th 816, 832 (2002) (holding that eBay's provision of product categories did not render it responsible for ads created by users).
4. Section 230's Specific Exceptions –
One final note is that Section 230 contains several exceptions of which Punternet should be aware. Specifically, Section 230 is inapplicable in cases involving enforcement of federal criminal statutes, 47 U.S.C. § 230(e)(1), intellectual property law, 47 U.S.C. § 230(e)(2), and communications privacy law, 47 U.S.C. § 230(e)(4). Section 230 does not contain any exception for State prostitution laws. This would seem to show that Congress did not intend to exempt such laws from the statute's reach. See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980) ("Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent.")
C. Conclusion
Section 230 was enacted, for among other reasons, to encourage self-regulation of the Internet by eliminating disincentives to such self-regulation that existed prior to the passage of that statute. Congress sought to achieve this goal by “encourag[ing] interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material.” Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003); see also Zeran v. America Online, Inc., supra, 129 F.3d at 331 (Section 230 was intended "to encourage service providers to self-regulate the dissemination of offensive material over their services"). I note this because, for Section 230 to be an effective immunity, a certain amount of self-regulation is expected of service providers. Punternet can comply with these expectations by, among other things, taking the steps set forth above including (but not limited to) : (1) the creation and implementation of a detailed “Terms of Use”; (2) avoiding any structure that directly and necessarily causes its users to include unlawful statements in their postings; and (3) deleting – if and when discovered – any reviews or advertisements that contain unlawful statements or solicit illegal activities.
So to wrap this up, let's all keep this straight: Britain allows prostitution, but does not have an equivalent to 47 U.S.C. § 230; the U.S. has that statute which creates a broad immunity for websites that publish this kind of third party content, but doesn't allow prostitution. Oh, and Britain has the Queen as the faux ruler of their country, and we Californians have a faux Terminator as the ruler of our state. It's a bit like Through the Looking Glass around here.
Ok, so that you’ve read this, which web site are you going to next?
Jonathan Pink heads the Internet and New Media Team at Bryan Cave, LLP. He is resident in the firm’s Irvine, California (Orange County) office, and is a member of the firm’s Intellectual Property Group. He can be reached at jonathan.pink@bryancave.com or by dialing 949-223-7173.
In a recent article entitled “Britain Asks Schwarzenegger to Close Prostitute Web Site,” Reuters reported that Harriet Harman, the British government minister for women and equality (no caps in the original article, so I’m assuming that’s how they write it) has asked California governor Arnold Schwarzenegger (my fair state) to shut down a U.S. website entitled "Punternet" that allows men (and I’m assuming women too) to rate prostitutes, including those working in London.
Ms. Harman (who one assumes is not reviewed on that particular site, but I have not personally checked to verify this) stated at a recent Labor Party conference that "Punternet" fuels the demand for prostitution, degrades women and puts them at risk. I am certain that it degrades women; as to fueling the demand for prostitution, I find that a little specious. I mean, that’s like saying that a match thrown into a raging inferno fuels fire. As to putting women at risk, they’re not in a great situation anyway, and maybe this would allow someone to track/find rescue them, but maybe this is just Westside naiveté on my part.
In any event, the Minister for Women and Equality (to hell with it, I’m capitalizing her title) has apparently asked Governor Schwarzenegger to close down Punternet, believing that he has the power to do so given that it is located here in California. "Surely it can't be too difficult for 'The Terminator' to terminate Punternet and that's what I am demanding that he does."
Not so fast there Ms. Minister. In United States, we have the Communications Decency Act of 1996, Section 230 of which protects operators of websites and other interactive computer services from liability for publishing the statements of third parties. 47 U.S.C. § 230. And in Britain? They have the Queen. Of course, another difference between the two countries (and I’m not counting the food here folks) is that Britain permits – as in it’s legal – prostitution, while here it – umm – is not.
So back to Section 230, and how it might impact Punternet. Section 230 provides clearly that “[n]o provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider,” and that “n]o cause of action may be brought and liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. §§ 230(c)(1), 230(e)(3); see also Blumenthal v. Drudge, 992 F. Supp. 44, 51 (D.D.C. 1998) (in enacting the Section 230, "Congress made a policy choice . . . not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially ages. ").
Section 230's protection is not limited to civil liability. That is, while it does not apply to federal criminal law, see 47 U.S.C. § 230(e)(1), the most plausible reading of the statute's language is that it preempts state criminal actions that are inconsistent with it. 47 U.S.C. § 230; see also Gibson v. Craigslist, Inc., 2009WL 1704355 (SDNY June 15, 2009). (applying the service provider immunity of § 230, the court held that Craigslist was not liable for an advertisement displayed on Punternet, even if the ad itself was tortuous) . When determining the availability of immunity under Section 230, courts engage in a three part inquiry that is discussed in greater detail below. See e.g. Green v. Am. Online (AOL), 318 F.3d 465, 470-71 (3d Cir. 2003), cert. denied, 540 U.S. 877 (2003); Kruska v. Perverted Justice Found. Inc., No. 08 Civ. 54, 2008 WL 2705377, at *2-3 & n.1 (D. Ariz. July 9, 2008).
B. An Application of Section 230 to Punternet
Here, as indicated above, Punternet (just to digress – I don’t really know what this means, “Punter,” and I’m pretty sure that I don’t want to; still, every time I write it, I get the feeling that maybe I’m saying something I shouldn’t – like that Monty Python skit about the German guy and the English dictionary. . . ) provides a forum where users can review prostitutes. (Again, according to Minister Harman, Punternet allows users to compare and rate services in the same way as they would a restaurant, a hotel or a holiday – apparently as in “tasty,” “nicely redone” and “a party from start to finish.”) Clearly a site of that nature may be abused by third-parties in connection with various crimes despite efforts Punternet itself might take to prevent this. But can Punternet be shut down, or is it protected by Section 230? And moreover, what steps might it take to help insure that it is entitled to immunity pursuant to Section 230 should this ever become necessary?
Here are a few thoughts from the trenches:
1. Terms of Use –
I would strongly recommend that Punternet create and implement an appropriate and detailed “Terms of Use,” and that henceforth all usage of Punternet be subject to those terms. The “Terms of Use” should be readily available to all users through prominently displayed links throughout the website. Further, I would advise that, in order for users to post any review, he or she first affirmatively declare his or her acceptance of the “Terms of Use” by clicking an "ACCEPT" button located below a full-text display of those terms themselves.
Among other things, I would recommend that the “Terms of Use” explicitly prohibit the posting or making available of any content that is "unlawful" or that "advertises any illegal service," including in particular "any offer or solicitation of illegal prostitution." To promote compliance with these “Terms of Use,” Punternet should employ some self-regulatory measures, including an automated filter that blocks reviews that contain words or phrases that are associated with problematic content and perhaps a community flagging system that encourages users to "flag" inappropriate ads for removal. I realize that this might limit what they are trying to do on the site, but I’m paying the “conservative lawyer” here: I’m just talking about staying within the confines of Section 230, not keeping Punternet’s users happy (which they apparently are taking care of themselves).
2. Strict Compliance with Section 230 –
As indicated above, the key provision of Section 230 states that "[n]o 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." 47 U.S.C. § 230(c)(1). As the Ninth Circuit has noted, there is a "consensus developing across other courts of appeal that § 230(c) provides broad immunity for publishing content provided primarily by third parties." Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003); see also Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) ("Courts have construed the immunity provisions in § 230 broadly in all cases arising from the publication of user-generated content"); Zeran v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997) ("Section 230 . . . plainly immunizes computer service providers like AOL from liability for information that originates with third parties"); Green v. America Online, Inc., 318 F.3d 465, 471 (3d Cir. 2003) ("By its terms, § 230 provides immunity to AOL as a publisher or speaker of information originating from another information content provider"); Ben Ezra, Weinstein, & Co., v. America Online, Inc., 206 F.3d 980, 984-85 (10th Cir. 2000) (§ 230 "creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third-party"); Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); ("[W]e too find that Section 230 immunity should be broadly construed"). Chicago Lawyers Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F. 3d 666 (7th Cir. 2008) (under Section 230, Craigslist itself could not be held liable for its users' allegedly unlawful postings).
The last case listed above, Chicago Lawyers Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc. (“CLC”,) is instructive as there is little material distinction between the facts in that case and my fellow citizen’s operation of Punternet. In CLC, the plaintiff sued Craigslist for allegedly discriminatory housing ads posted by Craigslist-users. In affirming the lower court’s dismissal of the case, the Court of Appeal noted that services like Craigslist are, in many respects, “like common carriers such as telephone services,” meaning that they do not read the messages they transmit on their systems. 519 F.3d at 668. Based on this, the Court recognized that requiring Craigslist to review each ad is neither practical nor effective. Id. at 669. It therefore concluded that Craigslist was not obligated to review the ads at issue because Section 230 immunized it from liability for them. In short, the plaintiff in the CLC case was seeking to hold Craigslist – a provider or user of an interactive computer services – liable for publishing the ads at issue in that case, and the Court (applying the clear immunity set forth in Section 230),said “no.” Id. at 671.
As with CLC case, any criminal or civil action against Punternet based on users who may be involved in prostitution should be barred by Section 230 so long as Punternet does not induce anyone to advertise any illegal service, or solicit prostitution. See 519 F.3d at 671-72 ("given § 230(c)(1) [the CLC] cannot sue the messenger just because the message reveals a third party's plan to engage in unlawful [conduct]"). 519 F.3d at 672. See also Fair Housing Council v. Roommates.com, 521 F.3d. 1157, 1174 (9th Cir. 2008) (en bane) (holding that a website operator may not be liable for unlawful ads posted by its users, except in circumstances where the website operator structures its site so as to directly and necessarily cause its users to include unlawful statements in their postings).
In Roommates.com, a portion of the defendant’s website required users to answer multiple choice questions which, the court found, necessarily led to the generation of statements of unlawful preferences in housing ads. 521 F.3d. at 1165. The Roomates.com website also included an open-ended "Additional Comments" section which allowed users to insert content, some of which also was allegedly unlawful. Still while the Court held that Section 230 did not immunize Roommates.com with respect to the allegedly unlawful content dictated by the multiple choice questions, the court expressly held that everything users included in the "Additional Comments" section was created entirely by the users themselves, and thus the site operator was entitled to immunity from liability for any unlawful content contained there pursuant to Section 230(c)(1). Id. at 1174-75.
To this end, and in keeping with the Roommates.com holding, I would advise that Punternet avoid any “check the box” sort of questionnaire (analogous to the multiple choice questions discussed in Roomates.com) that may cause its users to include unlawful statements or otherwise promote (engage in) unlawful conduct. Rather, I would advisethat Punternet simply provide a blank text box in which users may review the service their received, advertise their service, or post their comments. In short, Punternet should have no content dictates or constraints (other than compliance with the “Terms of Use”) which induce users to advertise, solicit or promote any illegal activity. By limiting its function similarly to providing something analogous to the open-ended "Additional Comments" feature of the Roommate.com website, Punternet will help insure its Section 230 immunity from liability for content published by its users.
3. Diligence in Assuring Punternet Meets the Section 230 Immunity Test –
While similar to recommendation No. 2 above, it is important to remember that immunity under Section 230 must be determined, if at all, by a formal legal ruling (e.g. only after the website at issue has been sued based on its content), and that any court before whom this issue arises will apply the three-part “Section 230 immunity test.”
Specifically, the Court will first determine whether the defendant is a provider of interactive computer services. From what we have seen of Punternet, it seems that it is indeed a provider of an interactive computer services. See Chicago Lawyers' Comm. For Civil Rights, supra, 519 F.3d 666; see also Carafano v. Metrospash.com Inc., 207 F. Supp. 2d 1055, 1065-66 (C.D. Cal. 2002), affd, 339 F.3d 1119 (9th Cir. 2003).
Second, the Court will look at whether the content was placed on the website by independent third parties or by an agent of the website itself. If the content was posted by an independent third party, the website should be entitled to protection under Section 230. In this instance, the reviews and on Punternet appear to have been placed there not by Punternet, but from “another information content provider,” namely the users of Punternet. 47 U.S.C. § 230(f)(3).
Finally, the Court will look at whether the would-be legal action is merely a cloaked attempt to hold the website itself liable for third party content, e.g. based on an alleged failure to block, screen, or otherwise prevent the dissemination of such third-party content. Here, it is difficult to imagine any would-be claims other than those that seek to hold Punternet itself liable for the reviews and/or advertisements posted there by third parties. Because those claims would, by necessity, be directed toward Punternet as a "publisher" of third party content, they would be subject to protection under Section 230. Green v. Am. Online, supra 318 F.3d at 470-471 (affirming dismissal of claim that AOL "negligent[ly] fail[ed] to properly police its network for content transmitted by its users" because Sects m 230 bars "attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network — actions quintessentially related to a publisher's role”; internal quotations and citation omitted).
Along this same line, see also Myspace, supra, 474 F. Supp. 2d at 849 ("Plaintiffs argue this suit is based on MySpace's negligent failure to take reasonable safety measures to keep young children off of its site and not based on Myspace’s editorial acts . . . . No matter how artfully Plaintiffs seek to plead their claims, the Curt views Plaintiffs' claims as directed toward MySpace in its publishing, editorial, and/or screening capacities."); Green, supra, 318 F.3d at 470-71 (affirming dismissal of claim that AOL "negligent[ly] fail[ed] to properly police its network for content transmitted by its users" because Sects m 230 bars "attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network — actions quintessentially related to a publisher's role”); see also Stoner v. eBay, Inc., No. 305666, 2000 WL 1705637, at *3 (Cal. Super. Nov. 1 2000) (rejecting plaintiffs "contention . . . that eBay should be held responsible for failing to monitor the products auctioned over its service" because "Congress intended to remove [through Section 230] any legal obligation of interactive computer service providers to attempt to identify or monitor the sale of such products").
Now again, I have not reviewed or visited Punternet; I’m basing my comments strictly on Ms. Harman’s comments, as she seems to be pretty familiar with the site. Nonetheless, given what I’ve read, it appears that the three elements for Section 230immunity would be met if the recommendations set forth were followed. The mere fact that Punternet provides a forum for erotic content – or even crimes that may flow from that content – is not sufficient to treat the website as the publisher of any posted illegal content. See Gentry v. eBay, Inc., 99 Cal.App.4th 816, 832 (2002) (holding that eBay's provision of product categories did not render it responsible for ads created by users).
4. Section 230's Specific Exceptions –
One final note is that Section 230 contains several exceptions of which Punternet should be aware. Specifically, Section 230 is inapplicable in cases involving enforcement of federal criminal statutes, 47 U.S.C. § 230(e)(1), intellectual property law, 47 U.S.C. § 230(e)(2), and communications privacy law, 47 U.S.C. § 230(e)(4). Section 230 does not contain any exception for State prostitution laws. This would seem to show that Congress did not intend to exempt such laws from the statute's reach. See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980) ("Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent.")
C. Conclusion
Section 230 was enacted, for among other reasons, to encourage self-regulation of the Internet by eliminating disincentives to such self-regulation that existed prior to the passage of that statute. Congress sought to achieve this goal by “encourag[ing] interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material.” Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003); see also Zeran v. America Online, Inc., supra, 129 F.3d at 331 (Section 230 was intended "to encourage service providers to self-regulate the dissemination of offensive material over their services"). I note this because, for Section 230 to be an effective immunity, a certain amount of self-regulation is expected of service providers. Punternet can comply with these expectations by, among other things, taking the steps set forth above including (but not limited to) : (1) the creation and implementation of a detailed “Terms of Use”; (2) avoiding any structure that directly and necessarily causes its users to include unlawful statements in their postings; and (3) deleting – if and when discovered – any reviews or advertisements that contain unlawful statements or solicit illegal activities.
So to wrap this up, let's all keep this straight: Britain allows prostitution, but does not have an equivalent to 47 U.S.C. § 230; the U.S. has that statute which creates a broad immunity for websites that publish this kind of third party content, but doesn't allow prostitution. Oh, and Britain has the Queen as the faux ruler of their country, and we Californians have a faux Terminator as the ruler of our state. It's a bit like Through the Looking Glass around here.
Ok, so that you’ve read this, which web site are you going to next?
Jonathan Pink heads the Internet and New Media Team at Bryan Cave, LLP. He is resident in the firm’s Irvine, California (Orange County) office, and is a member of the firm’s Intellectual Property Group. He can be reached at jonathan.pink@bryancave.com or by dialing 949-223-7173.
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