DMCA/CDA

Cicilia Barnes’ choice in men was worthy of a Darwin Award. After she broke up with her boyfriend, he created fake personal ads for her on Yahoo and impersonated her on online forums. As the Ninth Circuit described it in Barnes v. Yahoo:

Barnes did not authorize her now former boyfriend to post the profiles, which is hardly surprising considering their content. The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

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We had a great CLE at the BBA on Wednesday evening. The lucky folks who attended received three hours of (almost) nonstop legal info, and we barely scratched the surface of the topics.

I spoke on CDA Section 230, which has seen a great deal of activity lately, and there are no signs it’s slowing down. Below, via scribd.com, are the slides and paper that I prepared for the program.

CDA Section 230 Article, BBA April 2009 Read the full article

Judge Gants Holds StubHub Not Protected by CDA Section 230 (relying on Roommates.com Decision)

On January 26, 2009, in what may have been Judge Ralph Gants’ last opinion before departing Suffolk Superior Court for the Supreme Judicial Court on January 29, 2009, Judge Gants ruled on a number of issues in the New England Patriots lawsuit against StubHub.com. The claims are based on the fact that StubHub provides an online marketplace for the scalping of Patriot’s tickets, something that really pisses off the Patriots’ owners, who attempt to exercise a high degree of control over their ticket sales.  The Patriots’ various causes of action arise out of their claim that the tickets are a “revocable license” with printed terms, and civil claims related to the Massachusetts anti-scalping statute, G. L. c. 140, Section 185A.

The discussion on 47 USC Section 230 is only a small part of the decision (which addresses a number of defensive theories set forth by StubHub on summary judgment, rejecting most of them) is as follows:

CDA immunity “applies only if the interactive computer service provider is not also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole or in part,’ for the creation or development of the offending content.”

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It’s easy to forget that the Digital Millennium Copyright Act is really two separate laws. One protects publishers from “inadvertent” copyright infringement by creating the “notice-and-takedown” regime that requires copyright owners to demand that publishers take down copyrighted works published by third parties before asserting infringement. The other part of the DMCA is the anti-circumvention rule that generally prevents anyone from from bypassing copy protection schemes.

The Electronic Frontier Foundation (“the leading civil liberties group defending your rights in the digital world”) has published the fifth update to its comprehensive white paper, “Unintended Consequences: Ten Years Under the DMCA.”This 19 page report details the extent to which the DMCA’s anti-circumvention provisions have been used to not to mount legal challenges against pirates who develop technologies to circumvent copy protection, but against consumers, scientists, and legitimate competitors in ways not fully anticipated when the law was passed. The EFF paper provides a comprehensive history of this side of the DMCA, including the famous “Felton/SDMI challenge” incident in 2000 (“bet you can’t defeat this protection.… Read the full article