United States: The Bermuda Triangle Of Online Defamation: Copyright, Clickwrap And The CDA

Last Updated: April 28 2015
Article by David A. Kluft

We have written many times about attempts to use copyright law to do what defamation law can't: take stuff down from the internet. Because Section 230 of the Communications Decency Act ("CDA") prevents a defamation plaintiff from suing an internet service provider for merely hosting defamatory content, many allegedly defamed parties instead have attempted to use the Digital Millennium Copyright Act ("DMCA") to "take down" the offending material. For example, some dentists have asked their patients to sign over the copyright to future online reviews so they can issue take down notices if any of those reviews turn out to be defamatory.

However, as we've previously noted (and as those dentists are now learning) copyright law ultimately is ill-suited to this purpose, and in most cases no true friend to the defamed litigant. In fact, based on a recent decision in the District of Massachusetts, we're starting to wonder if copyright law may be the defamed litigant's worse enemy.

Psycho-Richard

Massachusetts attorney Richard Goren once represented a client in a matter against Christopher Dupont. In 2012, Dupont took revenge on Goren by submitting a defamatory online review to RipoffReport.com. The review referred to Goren as "Psycho-Richard" and accused him of, among other things, fraud, child abuse, domestic violence, drug addiction and "problems coping with his own sexuality." Goren sued Dupont for defamation in Massachusetts Superior Court and won. Goren even convinced the judge to order that the copyright in the review be assigned to him so he could use the DMCA to take it down.

But the review is still up. Why? Because, according to Goren, RipoffReport.com's policy is that it "will not remove a report from its website even if the report is adjudged defamatory." So Goren sued Xcentric Ventures, the parent company of RipoffReport.com for copyright infringement and defamation. The defamation claim was dismissed last year and, last month, Judge Denise Casper disposed of the copyright claim on summary judgment.

The Bermuda Triangle of Online Defamation

Why did Goren lose? It appears that his claims were swept into what may become a Bermuda Triangle for online defamation claims: the confluence of the CDA, copyright law, and the clickwrap contract. First, let's look at the defamation claim. The CDA provides that a computer service will not be treated as the "publisher or speaker" of defamatory statements provided by another information content provider. Here, because Dupont was the content provider, and RipoffReport.com was just the unwitting host of that content, the defamation claim against RipoffReport.com failed.

As to the copyright claim, Goren had a court order stating that he was the owner of the defamatory review, but RipoffReport.com was able to convince the Court otherwise. You see, in order to post the review on the site, Dupont had to click his assent to RipoffReport.com's terms and conditions, which among other things effectively transferred ownership of the copyright in the review to RipoffReport.com. Therefore, the subsequent Massachusetts state court transfer of the copyright from Dupont to Goren was invalid (by that time, Dupont didn't have anything to transfer). Because RipoffReport.com owned the copyright, it cannot have infringed that copyright.

Each of these decisions was published separately and, taken separately, they may seem unremarkable. But, just for argument's sake, look at them together. On the one hand, the copyright claim failed because, at the time the review was published, RipoffReport.com owned and controlled the review by virtue of the clickwrap agreement. On the other hand, the defamation claim failed because Dupont is the only party that can be legally responsible for the review under the CDA, even though by the time of publication he neither owned the review nor had the power to remove it. Put more broadly, RipoffReport.com was the sole master of the review for copyright purposes, but had nothing to do with it for defamation purposes. From Goren's perspective, RipoffReport.com gets all the benefits of ownership of the defamatory content with none of the liabilities, and he is left without a meaningful remedy.

If that seems unfair to you, you are not alone. Last week, Goren noticed his appeal, and the matter is headed to the First Circuit. That court will also consider the dismissal of Goren's claim under the Massachusetts Consumer Protection Act, Chapter 93A. That claim challenges the propriety of RipoffReport.com's arbitration program, through which Goren might have had the defamatory review redacted had he been willing to pay an arbitration fee to RipoffReport.com.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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