Reader Comments on the Web:A Collaborative Workshop

of Newspaper Editors and Media Lawyers

November 20, 2008

David ArdiaRob BertscheT. Barton CarterPeter J. Caruso Sr.Richard C. GagliusoMary-Rose Papandrea

David Olson (Salem, MA)Jessica Kosowski (Attleboro)Damon Kiesow (Nashua)Jim Bodor (Worcester)

Joshua Benton

Sponsored by: New England Press Association, New England Newspaper Association, New England New Media Association, and Prince, Lobel, Glovsky & Tye LLP

Reader Comments on the Web:Whether, When, and How to Draw the Line

November 20, 2008

Robert A. Bertsche, Esq.Chair, Media and Intellectual Property Practice

Prince, Lobel, Glovsky & Tye LLP

What the CDA doesn’t cover

• Your or your reporter’s content• Headlines, categorization, editing that changes

meaning• Infringement of copyright or trademark – The CDA does not protect your newspaper from

potential liability for copyright infringement based on a user’s theft of someone else’s original, creative expression

Copyright infringement

• If reader/user posts copyrighted material (text, music, photos, film, video, etc.) on your site, will your newspaper be liable?

• Traditional copyright theory says “very possibly, yes.”

• BUT there are ways to decrease or eliminate your liability

Digital Millennium Copyright Act (DMCA)

• 1998 federal law: “notice and takedown” mechanism

• Safe harbor from claims for damages if you promptly remove content upon receiving notice of infringement

• Strict statutory formalities – including designation of an agent with the Copyright Office (see site) and adherence to deadlines

Example of DMCA Procedure

• Reader posts video to your site, or reprints part of an article (with or without attribution)

• Copyright owner searches Web, finds her creative work on your site (without her permission)

• Copyright owner sends letter to your site’s “designated agent” (registered with Copyright Office)

• Site must take down the video/text “expeditiously”…

Example of DMCA Procedure (2)

• Website tells poster that item has been removed• Poster may send counter-notice to Website to

protest the take-down• Website is required to forward counter-notice to

copyright owner• Copyright owner has up to 14 business days to

file a lawsuit• If no lawsuit filed, Website must put the video or

article back up

Limits on DMCA “Safe Harbor”

You may not qualify for safe harbor if you:• Have actual knowledge of infringement, or are

aware of facts and circumstances that make infringement apparent

• AND you receive financial benefit from infringing activity AND have right and ability to control such activity– “Financial benefit” includes fees for access– “Right and ability to control” may include use of a

monitoring program

Viacom v. YouTube

• YouTube site includes users’ video uploads of copyrighted television programs and films

• YouTube takes down when provided notice, per DMCA

• Viacom sues YouTube, seeking $1 billion damages• YouTube claims safe harbor• Viacom says no, because:– Knowledge of infringing materials on site– Financial benefit attributable to infringing works, and

right/ability to control

Takedown notice: good faith

Universal Music v. Lenz (go to video)• Lenz posts video to YouTube of toddler son

dancing to Prince’s “Let’s Go Crazy”• Universal sends takedown notice to YouTube,

alleging copyright infringement• Lenz says song use is “fair use,” and Universal

knew it• Lenz sues Universal, saying it violated DMCA by

materially misrepresenting its copyright

Trademark Infringement

• Not covered by DMCA• You may be liable for trademark infringement if

consumer includes third-party trademarks (logos, corporate names) in content posted on your site

• Claims are rare: Requires a showing of “likelihood of confusion” of endorsement or affiliation

• Respond promptly to takedown notices!

Example of trademark infringement

• Blogger reports on sale of T-shirts making fun of the “Best Buy” logo

• Best Buy claims copyright and trademark infringement

• Blogger protests to Best Buy• Best Buy apologizes!

The Broader Perspective:Some questions to ponder

• What degree of control maythe newspaper exercise over reader comments?

• What degree of control should the newspaper exercise over reader comments?

• What are some possible techniques?• What is best for your publication?

Is this a LEGAL question or an EDITORIAL question?

Communications Decency Act of 1996 (CDA)

Section 230:• “No provider or user of an interactive

computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

• “No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.”

Why the CDA?

• Cubby v. CompuServe, Inc. (S.D.N.Y. 1991)– CompuServe sued for republishing user’s comment

that a competing business is a “start-up scam”– Question: Is Cubby liable as a “republisher”?• Is Cubby a newspaper or a library?

– Court finds that Cubby is a mere distributor, with no liability• No role in creating content• No opportunity to review content

• Stratton Oakmont, Inc. v. Prodigy Services Co. (N.Y. Sup. Ct. 1995)– Anonymous user of Prodigy’s “Money Talk”

bulletin board says a securities firm was a “cult of brokers who either lie for a living or get fired.”

– Same result as Cubby?– Court finds this case is different, because Prodigy

“held itself out to the public … as controlling the content of its computer bulletin boards.”

The natural lesson to be drawnfrom Cubby and Stratton-Oakmont?

• If you control content, you will be liable.• So, the logic goes, you should not interfere

with user content in any way.• That means those websites that try to “clean

up” user comments will risk liability; those that let the filth remain, will not.

• “No good deed goes unpunished.”

It’s called the “Communications Decency” Act for a reason

• Congress, worried about inappropriate content on the Internet, steps in

• Purpose of CDA Sec. 230: – To remove any requirement that website read,

monitor or approve all comments.– To remove any disincentive to website’s deletion

of offensive or inappropriate comments.

The rules under the CDA

• You are not liable (in tort) for third-party content on your site– You ARE liable for your or your reporters’ content

on your site.– Copyright and trademark are separate questions,

falling under DMCA– You may delete comments, delete parts of

comments, refuse access to certain users

The grey areas under the CDA

• Liability for discriminatory job or housing ads?– Probably only if you invite an unlawful response (e.g.,

through a leading or multiple-choice question)• When does “third-party content” become “your”

content– If your editing changes the meaning of the post

• Conservative advice: – As a general rule, don’t edit, except to remove obscenities when

appropriate

– Some (wrong) cases say you’re liable if your question or format compels a defamatory response• This is bad, bad, bad law and won’t be upheld.

Why monitor or edit if you don’t have to?

• Encourage constructive, quality dialogue• Attract thoughtful contributions• Newspaper’s role in the community• “Brand” considerations: You are judged by the

company you keep.

Common Problems

• Defamation• Personal attacks• Obscenities• Anonymous (unaccountable) speech• Subpoenas for user identities • Sock-puppetry• False facts or advice (do these reflect on your paper?)• Bullying, taunting, intimidation• Criticism of your paper or reporter• “Breaking news” on the website – good or bad?

How can your paper respond?

• Exercise control over the web comments• Encourage and persuade, to achieve quality

dialogue• Disassociate the paper from the comments• Or some combination of the above…

Common Solutions: Control

• Moderation of posts• User flagging of posts, leading to automatic

take-down• User flagging of posts, leading to moderation• Don’t permit posting in response to certain

content • Moratoriums and cooling-off periods• Community control?

Common Solutions: Persuasion

• User-friendly “rules of the road”• Requirement of registration• Bar anonymous comments?• Rating of posts by users– Ranking by rating?

• Print the best posts in the print newspaper

Common Solutions: Disassociation

• Physically separate the posts from the article to which they respond

• Should you allow reporters to respond?• Should you correct false statements?• Should you permit anonymity?• Suspend privileges of repeat offenders– Difficult to do successfully unless you require

verification of user identities

Reader Comments on the Web:A Collaborative Workshop

of Newspaper Editors and Media Lawyers

November 20, 2008

David ArdiaRob BertscheT. Barton CarterPeter J. Caruso Sr.Richard C. GagliusoMary-Rose Papandrea

David Olson (Salem, MA)Jessica Kosowski (Attleboro)Damon Kiesow (Nashua)Jim Bodor (Worcester)

Joshua Benton

Sponsored by: New England Press Association, New England Newspaper Association, New England New Media Association, and Prince, Lobel, Glovsky & Tye LLP