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Copyright Law
Law 6102 – Professor Randazza’s Copyright Law Course – Barry University School of Law – Fall 2007
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October 17, 2007 at 5:46 pm |
While the crux of the problem regarding the take down letter may be within copyright law, the jurisprudence regarding free speech and the internet is an interesting topic. Copyright is not superior to the First Amendment. The First Amendment was woven into the Copyright clause. This is demonstrated in the use of words like “progress.” I posit the following regarding Freed Speech and the Internet, in the current state of the law (this was footnoted but the footnotes did not transfer). I pledge that it was cited correctly and sufficiently.
The internet is a unique forum for the dissemination of ideas. It transcends borders (domestic and international), it has a wholly anonymous creator, it has no centralized authority, it is readily accessible by almost anyone at any given time, and has applications left to be utilized. The internet itself is not a form of technology so unique that the rule of law cannot compensate. However, in the realm of free speech restrictions the Court has taken a path that appears to create the potential for a unique forum for the distribution and consumption of public ideas. The hypothetical forum is “pure” and is more restrictive of speech regulation than those “immemorially held in trust for use of the public.” By restricting the government’s ability to extend criminal and civil penalties to cyberspace with the same breadth as in the offline world, the Court has inadvertently created an institution that is beyond regulation. Concurrently the Court holds that the internet is not a traditional public forum, which does not provide the government a working framework to create constitutional restrictions online. Therefore, the internet may be outside of current precedent and left open for any and all publicly displayed information. The cure for offensive, tortious, or obscene speech may lie with the individual and a localized filter.
The United States Supreme Court recognizes three distinct types of fora for the dissemination of ideas and speech: the traditional public forum, the public forum created by government designation, and the nonpublic forum. The traditional public forum is the most restrictive of governmental regulation regarding speech. If the Court finds the restriction to be content based then the government has the burden to demonstrate the existence of a compelling state interest and that the restriction is the least restrictive alternative to achieve that interest. In the alternative, if the Court finds a restriction to be unrelated to speech and content neutral the government still retains the burden to show the restriction is narrowly tailored to an important of significant governmental interest which also leaves open ample alternative channels of communication. The analysis of restrictions on protected free speech and the dissemination of ideas on the internet is unique. The uniqueness is the product of the Court’s reluctance to recognize the internet as a certain type of forum. While the government’s burden is heightened on traditional public forum, there remains a test that may be overcome. However, relying on the precedent established by International Soc. of Krishna Consciousness, Inc., 505 U.S. at 679, the court close mindedly held, “[t]he doctrines surrounding traditional public forums may not be extended to situations where history is lacking.” It appears the Court will not extend the traditional public forum analysis to the internet until there is sufficient history to substantiate the claim. There is no definite time frame for this to occur.
The argument supporting the internet as a pure public forum is strengthened by the inability of the government to constitutionally impose criminal and civil penalties on illicit uses of the medium. The government was unable to extend criminal penalties to internet sites that posted child pornography because it substantially prohibited protected speech. The courts have also restricted the extension of civil penalties to almost every facet of internet usage besides the individual that was the genesis of the information. Essentially, the law in the online world only applies to the initial individual that posts the information. In order to enforce any penalty on the violative individual, the government needs the assistance of the immunized entities. The specific and general deterrent effect is lacking given the current state of the law online. The law has created a “lawless” forum.
Even if the Court were willing to extend a classic forum analysis to the internet, the government restriction of information and speech would be hindered by its ability to demonstrate an interest in the regulation. An important factor in determining whether the government can restrict speech is the captivity of the audience. The Court has found the private residence was the most protected forum because it was the “last vestige of the weary soul” to avoid unwanted speech. The home computer and internet connection are not analogous to a private residence. The distinction lies in the form of the individual control over the access to the internet. Frisby and similar cases deal with the privacy interest by weighing it against the invasion by unwanted speech. The internet is, by its nature, passive. An individual must choose to access the connection, access the information, and contact the distributors of information. The unwanted material is not thrust upon an individual by simply owning a computer. The individual can determine not to enter the web or to place a filter on their end of the connection. Therefore, by accessing the internet without a filter, the individual has relinquished any level of captivity by freely entering a public realm.
The above analysis is superficial at best but the point remains the same, without a proper legally recognized designation the Court may be without recourse to decide a constitutionally viable restriction of free speech on the web. The conclusion of an unregulated internet is not necessarily a horrible idea. In fact, a “lawless” internet may be more aligned with the notions and fundamental principles of the First Amendment. The Court reaffirmed that the principle behind allowing otherwise offensive or defamatory speech into public consumption was to allow for the free flow of information into the marketplace of ideas. The history of the internet embodies this concept of unfettered information, good or bad. By allowing the internet to exist as a “pure public forum,” the dissemination of ideas and the identification of truth will grow exponentially. The marketplace on the internet is immense and transcends all boundaries. By allowing the internet to exist without limits, the individual will gain the power and ability to view and absorb information at his discretion.
This analysis reveals that the government is unable to restrict Free Speech on the Internet. Therefore, by extension, private parties do not need to fear other private parties regarding defamation suits. The site that posts the consumer reports and the site that posts the take down letter are both protected. Perhaps the victims of this predatory lawyering should send the vultures a Constitution. Also, they may want to send the lawyers a 1L Torts book with the definition of defamation.
October 18, 2007 at 1:22 am |
I absolutely loved this C&D letter. Although it had no legal affect it probably served its purpose more times than not. I call this good lawyering on the party of Donald E. Morris.Esq. Sure he has violated the Model Rule of Professional Conduct 4.1: (“a lawyer shall not knowingly… (a) make a false statement of material fact OR LAW to a third person…”, also, 4.3 “The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if… the interests of such a person are… in conflict with the interests of the client.”) but who besides Donal Morris should be concerned. The Directbuy people got what they paid for, Shoddy legal sounding C&D letter which with little actual legal significance. Claiming the actual C&D letter was copyrighted plus the threat of forum shopping to Canada was brilliant. Some tech-nerd website operator would probably not take the time to cross check American Law, let alone Canadian,
However, if Directbuy walked into my office with this problem I would have taken a different approach. Instead of writing this obviously phony letter, I would get some of my people all over the country to get on this website and sing the praises of Directbuy’s product. It would save everybody lots of time and money with strikingly similar results. My guess is that Mr. Morris was a little short on money at the time and saw huge billable hours.
Captain Obvious to the Rescure
Feldman
October 18, 2007 at 4:02 pm |
Wow! In reading this article and the attached letters, I was most impressed by the trickery and deception employed by the attorneys for DirectBuy. The deliberate/ and willful misstatements of law, while impressive in their creativity, are somewhat disheartening. Perhaps my own naivety is to blame, for allowing me to believe that success after law school is at least somewhat based on merit and aptitude, and not on bullying. But then again, this is an adversarial profession with extremely high stakes. I just never thought that deception would be so literal.
I never expected Copyright law and Defamation to cross paths in this manner. Of course, I’ve read cases where defamatory statements coupled with unauthorized uses of name/likeness triggers rights of privacy, publicity, and copyrights. But, I never imagined that Copyright Law would be used to suppress legitimate criticism. I guess I can attribute that to my own inexperience.
In reading the Defamation argument, I immediately came to the same conclusions as the author. That pure opinion cannot give rise to liability. However, I cannot say that I am sure whether or not a word like “scam” is purely opinion, without seeing it in context. The circumstances surrounding the word define its meaning and use. For the most part, In defamation cases, where a media Defendant (like the website) is involved, a statement on matters of public concern must be provable as false before liability can be assessed. Philadelphia Newspapers, Inc. v. Hepps. In this case, the Supreme Court carved out, full Constitutional protections for statements of opinion that have “no provably false factual connotation.” Essentially, this case leaves room for expressive public debate. However, in cases like, Milkovich v. Lorain Journal, the Court tightens the leash on opinion. The Ct held that, not all expressions of opinion are protected. Here, it clarified its holding in Philadelphia, by ruling that, the protections of the First amendment do not create an absolute privilege for opinion. Rather the question in these cases is whether a reasonable factfinder could conclude that the statement is an assertion of fact. I guess what I’m saying its that there is a big difference between saying, “That program is a scam.” And saying “I was scammed by……”
I was actually more impressed with the Copyright impression. Here, it was immediately apparent that Fair Use protected the commentators. I haven’t actually read Fair Housing Council v. Roommates.com, so I’ll limit my comments to fair use. § 107 of the Copyright Act, discusses Fair Use of a Copyrighted work. It clearly delineates criticism and comment as non-infringing uses of a Copyrighted work. Additional factors apply in this analysis (the Purpose and character of the use, the Nature of the copyrighted work, the amount and Substantiality of the portion used, the Effect of the use upon the potential market of the work.) I believe that in applying these factors, the use is in fact a fair use.
October 25, 2007 at 1:56 pm |
I agree with the author of the post Greg Beck that it would seem more likely than not that the words “scam” and a “nightmare” as applied to consumer situations such as this are statements of opinion or pure opinion. This is not the first time, we have seen certain companies reportedly offering great deals on furniture or home supplies, to later find out, the deal was bogus. Most of the time, costing consumers more money.
While statements of opinion are defenses to defamation law suits, this does not mean that scam artists such as direct buy will fail at trial. Directbuy could still avail at trial if can prove either: these were statements were made as facts or concede that yes these were statements of opinion, but were actually statements of opinion mixed with statements of fact. If they can prove this they must also prove that these statements were false. In my opinion, its unlikely Directbuy could prove these statements were false. They are most likely up against disgruntled consumers who would do anything to see their demise.
However, directbuy’s defamation suit is another issue. The main issue to me is whether the attorney for DirectBuy Donald Morris is right that his demand letter is copyright protected. Pursuant to copyright law and what we have learnt thus far. I believe he is right. § 102(a) sets forth the threshold of copyrightability: It provides: “Copyright protection subsists, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
All that is required, for a work to be original is a modicum of creativity, i.e. something more a mere trivial variation. Under this definition, it is clear Morris’s demand letter meets this requirement. His letter is an original creative work of authorship which is fixed in a tangible medium of expression. Under § 102(a), Morris letter would qualify as a literary work.
However, while as attorney Morris states posting his demand letter on InfomercialScams.com is infringing his copyright. In defense, I believe Infomercial would be successful in availing on the defense of fair use. In the event they could prove unsuccessful with the defense, Morris will have to register his copyright in the demand letter. Thus in doing so, he can claim max statutory damages, costs & attorneys fees. Without doing so, Morris will only be entitled to statutory damages.
However it is my opinion, that Morris will in the end be SOL because it is unlikely any court will use copyright law to trump the first amendment, i.e. free speech.
October 25, 2007 at 6:29 pm |
I concur with the belief that the posting of the demand letter on the website was a clear example of Fair Use. The purpose and character of the use was criticism, comment, or teaching – at least three criteria listed in Sec. 107. Even applying the factors listed in the statute would weigh in favor of fair use. However, discussing the use of this letter as a fair use assumes that the letter is copyrightable. Personally I don’t believe the demand letter is copyrightable. There are no original elements in the demand letter. All the elements contained in the letter are natural and necessary to the writing of a demand letter (scenes a faire).
November 4, 2007 at 10:49 am |
I wanted to clarify my position on this a bit in light of the previous posts. I fully admit that I am probably wrong in my belief that a demand letter is not sufficiently original to qualify for copyright protection, but I believe there is a legitimate argument for the extension of the scenes a faire doctrine to this subject. (Incidentally, it is not my argument that a letter is not copyrightable – my argument only applies to demand letters in particular.) A demand letter necessarily follows a certain format: a recitation of what the other party is doing; a demand that they stop doing it; and support for why they should stop doing it (which will usually consist of a recitation of supporting statutes or case law which are themselves in the public domain). There are only so many ways you can say all these things. An independent author would probably have no choice but to write them the same way. The only truly original element of this particular demand letter is the claim that the letter itself is protected by copyright. Even if that one portion of the letter is copyrightable, the use of that portion would be protected under a fair use anaylsis, however.
November 13, 2007 at 3:44 pm |
I agree with the companies in this case more so because we live in a society where when people see things in the printed word, it really legitimizes the impression being made. A person who reads 10 positive things than in the same breath if they were to read a negative comment about the same thing, will change their whole outlook, Because it seems more nowadays that we live in more of a pessimistic, especially when it comes to company intentions toward their consumer, a negative comment could potentially do a lot of damage to a company, true or untrue. There needs to be a bolder method or way to disclaim or remind readers that the posts they are reading, especially ones discussing commercial businesses are only from random experiences. Or maybe allow or disallow certain language that may indicate that the comments and experiences are well founded or legitimate. There are two sides to every story, but In a fact pace society, sometimes we are waiting to here, or much less wanting to hear and accept the negative over the positive…