United States: Copyright As An Online Reputation Management Tool: A Round Hole For A Square Peg

Last Updated: July 23 2014
Article by David A. Kluft

So, how is copyright law doing as an online reputation management tool?

We have written many times recently about the use of copyright law to do what defamation law can't: take stuff down from the internet.  A politician in California claimed copyright in her campaign photo in order to have a satirical blog deleted. Dental patients have been asked to sign away their copyrights to hypothetical future online reviews so the dentists can take down the ones they don't like. And most notably, in Garcia v. Google, the Ninth Circuit held that an actress who had been allegedly defrauded and defamed by her unwitting role in an anti-Muslim film could use copyright law to remove the film from YouTube.

Why is everyone with reputational problems suing for copyright infringement? It's at least in part because copyright law, via the Digital Millennium Copyright Act ("DMCA"), provides a mechanism for removing things from the internet.  By contrast, if you sue for defamation, you may one day see a few bucks in damages, but the First Amendment and its prior restraint doctrine makes it difficult for courts to enjoin speech except in rare circumstances, and Section 230 of the Communications Decency Act ("CDA") often prevents the complainant from obtaining relief from the internet service that hosts the speech. So, where the defamer has been determined, in most cases the defamation has stayed online.

Thus, filing a copyright infringement claim as a supplement to a defamation claim has become an increasingly popular strategy. But is burdening copyright law with this extra duty solving a problem, or just creating new ones? Let's take the recently concluded case of Katz v. Chevaldina.

Katz v. Chevaldina

Raanan Katz is a commercial real estate mogul and part owner of the Miami Heat. He has a "very unhappy" former tenant named Irina Chevaldina, who maintains a blog almost entirely dedicated to saying horrible things about him. Typical blog entries include collages of unflattering images of Mr. Katz accompanied by titles such as "How RK Associates Ripped Off Single Mother of Special Needs Child."

Mr. Katz, alleging that many of these statements are false, filed a defamation claim in Florida state court, along with a motion to enjoin the blog. The Miami-Dade Circuit Court initially entered an injunction, but the Third District Court of Appeal dissolved it on First Amendment grounds. If Mr. Katz was going to get any part of the blog taken down, it wasn't going to be through defamation law, at least not until the successful conclusion of a costly and painful trial that no doubt would garner far more negative publicity than the blog itself ever could.

So Mr. Katz tried copyright law, too. He located the newspaper photographer who owned one of the images used by Chevaldina, and purchased the copyright. He then brought a parallel federal suit for copyright infringement in the Southern District of Florida.

You may be assuming that Chevaldina's fair use defense made quick work of this claim, right? Wrong. Because fair use is a mixed question of fact and law, the Court held that a Rule 12(b)(6) dismissal wasn't appropriate.  So the parties commenced discovery. On June 17, 2014, nearly two years later, the Court granted Chevaldina's summary judgment motion on fair use grounds, based on pretty much the same undisputed evidence that had been available from the beginning (i.e., the blog).

A Square Peg in a Round Hole

So, how good was copyright law at solving Mr. Katz' non-copyright problem? Not very.

Let's look at this from both parties' perspectives. Say you're Mr. Katz and you really have been defamed.  You've just wasted two years of your time and your money. It turns out that the very reason you brought the copyright claim — to stop negative (and allegedly) false criticism — was used against you to bolster a fair use defense. Indeed, negative criticism by its very nature is more often than not considered transformative. And, as to market harm, you testified truthfully that your purpose in purchasing the copyright was to eliminate the photo from existence, not to license it, thus admitting that there was no market to harm. Classic fair use. The blog stays up, and all you accomplished was to call more attention to it.

And what if you are Ms. Chevaldina? Let's assume everything on your blog was true. From your perspective, this case was little more than a digital-age SLAPP suit: an opponent with vast resources using copyright law not to protect a copyright but to shut you up.  And, although you knew you had a great fair use defense, the judge was frustratingly unable to address that defense until after you had suffered through pointless and expensive discovery.

The foregoing perceptions of the parties are admittedly hypothetical, but are nevertheless concerning.  Copyright law was originally designed to encourage and reward creative and scholarly expression, not to act as an online reputation management tool.  That is why, when put to that unintended use, the results have been inconsistent, difficult to predict and sometimes downright inconceivable. Perhaps it is time to amend the CDA and/or similar legislation to include a clearer statement of the remedies available to victims of online defamation. If the result of such reform is that there really are no meaningful equitable remedies that are consistent with the First Amendment, at least we'll know it and people like Mr. Katz can stop banging their heads against the copyright wall. Alternatively, perhaps copyright law could be given more powerful tools for expediting fair use determinations in certain situations.

But if nothing is done, we could be in for more opinions like Garcia v. Google, in which the Ninth Circuit has contorted copyright law into a general online equity tool in order to grant preliminary relief to a party who, while perhaps deserving of relief, really shouldn't be getting it from copyright law (at least not according to most critics, including this author and the Copyright Office). Meanwhile, what is all of this confusion doing to public confidence in the law's ability to comprehend the digital age? You can only pound a square peg into a round hole for so long until you irreparably damage the peg, the hole or both.

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