There’s been significant fear and loathing of this proposal. At a recent legal meetup in NYC, I suggested that there may be a barrier - Section 230 of the CDA - to the FTC’s enforcement of this move (if it is adopted). Several participants thought I was a nutjob for making this argument, so I thought I’d set it forth and see what you think.

Section 230(c)(1) of the Communications Decency Act (47 U.S.C. 230(c)(1)) forbids treating a “provider or user of an interactive computer service… as the publisher or speaker of any information provided by another information content provider.” There are statutory exceptions for intellectual property law (but compare Doe v. Friendfinder with Perfect10 v. CCBill on this), the Electronic Communications Privacy Act, criminal law, and compatible state laws. The 230 shield has been interpreted quite broadly, though Roommates.com and Barnes v. Yahoo! suggest some chinks in its protection. (As always, I recommend highly Ken Myers’s Wikimmunity article on this topic.)

I’d argue 230 cabins the FTC’s Section 5 authority. Imagine a blogger who gets free passes from DreamWorks to “Transformers: Revenge of the Fallen” and, against the weight of all common sense, writes a paean to the movie, without mentioning the free tix. She’s now run afoul of the FTC guidelines: there’s no reason for the blogger’s audience to think that she got in for free, and the connection seems material to the review. What if the FTC goes after DreamWorks? In effect, the FTC’s argument is that DreamWorks is the speaker here: it helped generate the post by giving the blogger free entry to the film. (This stance is made more powerful by the fact that Transformers 2 appears to suck.) But that’s exactly what Section 230 forbids: the FTC treats DreamWorks as responsible for the blogger’s content. It seems this should work in the other direction as well - trying to hold the blogger liable for failure to disclose treats her as linked with DreamWorks and speaking on the company’s behalf. (This posture seems a closer case, though, since it imposes liability directly on the speaker / author, although what makes the blogger liable is connection to another Internet content provider.)

The obvious FTC rejoiner is an agency theory: the compensation arrangement makes the blogger a DreamWorks agent for this post. But that interpretation would render 230 a dead letter; we could readily concoct consideration-based arguments for most 230 cases that cut the other way. On this theory, Dontdatehimgirl.com would be liable for encouraging users to post stories about cads - in exchange for a public airing of their complaints, the site gets desirable content. Doe v. Friendfinder wouldn’t have to rely on a flimsy right of publicity claim: Ms. Doe could simply go after Friendfinder for the quid pro quo of attractive content in exchange for use of the service.

The employee as commenter / poster angle poses the problem neatly. If a DreamWorks publicity representative writes a blog comment, at the direction of the company’s CEO, trashing Ice Age: Dawn of the Dinosaurs as “a Blue Sky Studios plot to brainwash our children,” it is uncontroversial to hold DreamWorks liable for her speech. Firms can only act through their employees. But if she writes the same comment from home, with no studio input, based on her belief that animated squirrels are the devil’s minions, we’d be reluctant to hold DreamWorks liable. So, perhaps agency must enter the 230 analysis through the determination of who the “Internet content provider” is. I think it makes sense to separate employee blogging along these lines, but it does convert Section 230 from a relatively clear rule to more of a standard.

I don’t necessarily like the outcome here. Bloggers have been quite resistant to disclosure mandates (and even strong norms, at times) and are shocked, shocked to think that anyone could buy their support! Having the FTC push back, even if only in extreme cases, could be quite helpful. And it’s not just bloggers who are affected by this analysis - it would likely hold for Internet writing and endorsements more generally. Finally, the FTC is certain to dislike this suggestion that its Section 5 power wanes on the Internet (even though experts like Eric Goldman argue that other agencies, such as the SEC, are similarly constrained). But presumably this is what Congress wanted, and at minimum the Commission needs a cogent analysis of why its proposals escape the 230 driftnet.

Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, J., dissenting).

First, while waiting for my coffee to brew in the faculty lounge, my eye fell upon a front-page article [limited nonsubscriber access] in the Chronicle of Higher Education from last week that was lying on the table. An hour later, back at my desk, I stumbled upon this story in yesterday’s New York Times online. Both articles demonstrate that we have a serious problem — and both of them reported, as simple matters of fact, the wrong-headed legal interpretations that allow trademark-based censorship of film and television.

The Chronicle story explained how colleges and universities exercise control over the scripts of movies and television programs to ensure flattering fictional portrayals of their institutions. The author recounts how, for example, NYU “balked at racy plot lines” in the old TV teen soap Felicity, so the character instead enrolled at a fictional school very similar to NYU. In some cases, schools impose content restrictions as a condition for filming on campus (in addition to the thousands of dollars in rental fees they collect). That may be reasonable. But the main weapon the schools use is the assertion of expansive trademark rights in their names. The key passage from the article, with my emphases added:

Fleeting references to actual institutions should qualify as ‘fair use’ under trademark law, but anything more persistent requires permission. The threshold is confusion: If a viewer might infer an endorsement, a college that hasn’t signed off can sue. Cautious studio lawyers err on the side of letting colleges peek at the scripts.

Administrators often behave like film-ratings boards: They forbid violent or sexually explicit scripts, which could sully an institution’s good name. Some colleges are more persnickety, turning away fictional students who seem loutish or shady.

“Anything more than a fleeting reference” is a gross misstatement of the legal requirements of trademark law. If a writer really wants to send a fictional character to NYU or any other school, that alone does not give rise to actionable consumer confusion. The character can say the name of the school dozens of times, and even wear some collegiate sweatshirts too. At most, such references in works of fiction give rise to just the sort of “irrelevant confusion” that has so badly deformed trademark law.

Where would we be if, say, movie versions of One-Lor God and Man at Yale legally required permission from the universities they discuss (not always in flattering terms)? For that matter, why doesn’t the same logic require the schools’ trademark-based permission to talk about them in a book? Likewise, how could a film fully portray the struggles Dr. Kinsey faced in his research about sexuality without mentioning that he conducted them at Indiana University?

The Chronicle also discusses the movie Stealing Harvard, about a character who pilfers money to pay the tuition, which was originally called Stealing Stanford until that school objected. This may be a closer case of potential consumer confusion, but even here there is well-established case law that titles of artistic works can mention a trademark if it has relevance to the underlying work. And if Stanford in particular had somehow been important to the artistic message of a fictional work, surely we could not allow the subject of that message to stifle it without intruding very seriously on free speech.

Of course, as the quoted passage also notes, the excess caution of risk-averse gatekeepers often matters more than the actual scope of the law. I do hope that simpler law exempting such uses from the ambit of trademark law might embolden the timid studios — I’ve written that before and I am working on follow-up proposals this summer — but maybe that’s hoping too much.

The Times article tells, if anything, an even more alarming tale, though trademarks are a smaller part of it. A movie version of the great baseball book Moneyball (responsible, among other things, for inspiring law dean Jim Chen!) was set to begin filming in days, starring Brad Pitt and directed by Steven Soderbergh, but the studio has pulled the plug. Many Hollywood-style conflicts were involved (it reads like an episode of Entourage, actually), but one significant part was, again, over-expansive trademark law. The studio, Sony Pictures, had problems with Soderbergh’s revised script, according to the Times (again, with my emphases):

One reason [for Soderbergh's changes] was to win the approval of Major League Baseball, which was not happy with some factual liberties in [the original screenwriter's] version. Such approval is crucial in a baseball film that intends to use protected trademarks.

“Typically, on a film like this, we look at it for historical accuracy,” said Matthew Bourne, a vice president of Major League Baseball for public relations. “We’ve been in touch with Soderbergh and Sony, and they’ve been receptive to our requests.”

What baseball saw as accurate, Sony executives saw as being too much a documentary. Mr. Soderbergh, for instance, planned to film interviews with some of the people who were connected to the film’s story.

So, if a screenwriter wants to tell a story about a real team, baseball’s PR executives must approve of it first? To the degree that they can change the entire style of the movie? What if the character makes a pact with Satan to defeat the Yankees? How about an acclaimed Lou Gehrig biopic, or a cartoon about Babe Ruth’s talking bat? What about a mock trial of Pete Rose at Harvard Law School?

I wish these stories were unusual. But the casual way the journalists state the supposed law shows how widespread this (mis)understanding of trademark rights has become. And these incidents, like countless others (see here and here for examples), will never result in litigation, and therefore never result in decisions that might clarify the law. Rightsholders demand compliance, and movie or TV studios consider it too costly or troublesome to resist.

There oughta be a law!

First, the Court denied cert. in IMS Health v. Ayotte. This case involved data miners’ First Amendment challenge to a New Hampshire law that prohibits the transfer of physicians’ prescribing records for use by pharmaceutical company representatives in their efforts to promote certain drugs to individual doctors. The First Circuit’s thorough decision in the case upheld the law on two distinct grounds: the transfer of the records was conduct rather than speech; and anyway if it was commercial speech the law satisfied the narrow tailoring requirements of the Central Hudson test. There is somewhat mixed case law on the First Amendment status of data mining, but I think the pro-privacy side is winning overall. (For more on this complex topic, see Neil Richards’ great law review article). While it might have been nice if the Supreme Court took the case and delivered the death blow to data miners’ constitutional arguments, that would have been very risky; it is better to leave Judge Selya’s strong opinion — and New Hampshire’s law, imitated by some other states — in place. (EPIC has more information on this one.)

The second decision is close to my co-blogger Tim’s heart, as he has described before. The Supreme Court refused to review the Second Circuit’s opinion finding that Cablevision’s proposed new DVR system does not violate copyright law. (Public Knowledge has more discussion on this one.)

(And by the way, if you share my side interest in election law, today’s announcement that the Court will hear more arguments in the campaign finance case about the Hillary Clinton documentary rather than deciding it — and consider much broader issues about corporate political donations — is also a bombshell. Probably a very bad sign for advocates of campaign finance regulation. Lots of big news other than Ricci today!)

Among the newest is the recent lawsuit filed by St. Louis Cardinals manager Tony LaRussa against Twitter. A user who claimed to be LaRussa opened a Twitter account in his name and said some nasty things, including mocking references to the deaths of two Cardinals pitchers. Twitter denied initial reports that the suit had been settled in a somewhat bellicose blog post (remember, lawyers: it isn’t a settlement until the other guy’s client signs off). Twitter then removed the case (that is, transferred it) from state to federal court, where it currently remains active on the docket of the Northern District of California. (The best news coverage is here and here.) The phony LaRussa account was terminated long ago; impersonation violates Twitter’s terms of service.

LaRussa’s actual grievances sound like they should give rise to defamation or false light, or perhaps the appropriation tort. But these would all be blocked, quite routinely, by section 230. Of course, LaRussa could go after the individual impostor, assuming that person could be found. Instead, his lawyers framed much of his complaint in terms of trademark infringement. Why? It’s no coincidence that section 230(d) carves out IP (along with criminal law) from the special immunity, stating, “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”

But to prevail on the trademark infringement claim, LaRussa has to prove that the phony account was likely to confuse consumers into thinking he endorsed Twitter, thus harming him. That is why his complaint emphasizes:

The Site states in large lettering, ‘Tony LaRussa is using Twitter,’ and encourages users to ‘Join today to start receiving Tony LaRussa’s updates.” It also contains a picture of Plaintiff with his name printed next to ít. Beneath the picture, the Site contains written entries that are impliedly written by Plaintiff himself when in fact they are not.

In this particular case, proving confusion and harm will be very difficult, since (1) the account only had four followers; (2) it included a notation in the user’s profile section, “Bio Parodies are fun for everyone;” (3) it’s not clear a statement (even a false one) that LaRussa used the service can fairly be called an endorsement of the service (though the “endorsement” concept can be slippery, as I have written elsewhere). Trademark dilution does not require confusion or monetary harm, but LaRussa pleaded under federal dilution law, which allows only injunctive relief — now moot since the profile is gone — and completely exempts “noncommercial use” of a trademark.

More generally, however, this case highlights the possibility of a loophole for celebrities who can recast privacy-like claims under trademark law (and possibly also rights of publicity, if those are interpreted as intellectual property under the language of section 230(d)). Where would that leave us? Well, it shows (again) that the apparently bright lines of section 230 sometimes aren’t. But it might also create what I’d consider a pernicious double standard: celebrities maligned by anonymous online impostors could plead around section 230 by claiming trademark or publicity rights in their name, while many ordinary people victimized by defamation or cyber-bullying would have their claims blocked. Other law, defamation in particular, expects celebrities to have thicker skin and tolerates more insensitive speech about them. If LaRussa pulled off this suicide squeeze, that sensible dichotomy might get turned on its head.

[UPDATE: I plumb forgot to mention another crucial angle: Twitter now wants to sell verified accounts to celebrities (as in, “This is the real Tony LaRussa tweeting.”) Those wouldn’t fetch a very high price if the fake accounts from which the celebs are trying to distinguish themselves are unlawful and Twitter is liable for them.)

This might be useful in getting Australia to reform its content classification system, which has some weird dichotomies in evaluating on-line vs. off-line material, and in dealing with different media for the same content. This particular quirk, though, seems like it’s vulnerable to gamesmanship: if I were an Australian gaming company, I’d surely submit complaints about my competitors’ games (especially foreign ones) - censorship could help my sales by eliminating alternatives.

Fun stuff. Hat tip to Boing Boing.

Law students spend hundreds of thousands of dollars each year on statute books or statutory supplements for their courses. These statutory supplements, notorious for their weight and bulkiness, are compilations of subject-specific statutes and regulations, most of which are publicly available at no charge. This article discusses the advantages of digital statute books, details how the authors created a digital statute book that was used in two securities regulation courses, and evaluates the result of that experiment.

In brief, Professor Bradford created a downloadable PDF copy of the statutes and regulations needed for his Securities Regulation class.  It’s a massive document, over 2,400 pages, enough to give any law student severe spine problems if they printed it out and carried around in their backpack.  But of course, the point of the statute book being digital is that you don’t have to do that.  Furthermore, Bradford made it possible to highlight and annotate the document in Acrobat Reader.  If you’re interested in seeing it, you can download the whole thing from Bradford’s class page.