Letter from AmeriKat

Stop your relentless Twittering!

Despite the powerful protection afforded her by the First Amendment, the AmeriKat does not tweet, Twitter, or chirp. Hundreds of other people may be joining her, given the recent rash of claims against users who have published defamatory, private, or otherwise infringing statements on their Twitter accounts. Despite the internet begin heralded as “the most participatory form of mass speech yet developed” in ACLU v Reno, this participation may have come at a price. The Media Law and Resource Center has reported that over 250 claims have been brought against individuals using Twitter and other blogging sites this year.

As reported by The Independent in March, the first lawsuit against a Twitterer was brought against the notorious Courtney Love (left) by fashion designer Dawn Simorangkir. Love posted Twitter updates calling the designer, among other things, a liar and drug user. Under section 230 of the Communications Decency Act 1996, Love and not Twitter is responsible for the publication of libellous and private material. To counteract the immunity from liability afforded publishers, the president of the Media Bloggers Association, Robert Cox, has collaborated with Media Professional Insurance to establish a new insurance plan for bloggers to protect themselves in the event of a lawsuit.

But it is not only the world of libel, nor just the liability of independent bloggers that is at issue. At the beginning of this month, St. Louis Cardinals (a Major League Baseball team) manager Tony La Russa filed the first claim brought against Twitter in the Superior Court of California. The complaint states that Twitter is responsible for trade mark infringement, misappropriation of image and likeness and invasion of privacy by publishing the Twitter content of an impersonator of La Russa. As far as the AmeriKat is aware, the post of Twitter’s co-founder Biz Stone stating that Twitter has not settled the case means that the two parties will be proceeding to trial. If they do, the court will be asked to decide whether section 230 of the CDA is also applicable in cases of trade mark infringement. In the AmeriKat’s opinion, however, La Russa’s lawyers dressed up a defamation suit in the clothes of a trade mark claim to fall outside of section 230; she believes that the Court will be wise to such tactics.

In a recent case this month, Barnes v Yahoo!, Orgeon’s 9th Circuit has attempted to redress this imbalance by holding that, where an ISP has undertaken to remove infringing content and does not, it may not be able to bar a claim for promissory estoppel against them by virtue of section 230. Despite this case, the AmeriKat feels that it is inadequate for claimants to have to rely on a contractual claim when an actionable tort has been committed against them. The AmeriKat believes that with the comparative effortlessness, speed, and general brevity of these types of internet publications, the ease to which someone’s reputation is libelled or intellectual property infringed has surely increased. Since under section 230 a claimant, without the ability to sue the publishing website, is potentially left without adequate redress for a tort committed against it, the AmeriKat feels that the US needs to redress this current imbalance in the law.

Sotomayor Standing

Following every Supreme Court nomination comes the inevitable media and governmental interrogation of the nominee’s judicial, legal, and personal record. President Obama’s May 29 nomination of Sonia Maria Sotomayor to the Supreme Court has resulted in 54% of Americans stating they would like to see her confirmed as the next Supreme Court Justice, replacing Justice David Souter. Given the US public’s majority approval of Sotomayor, the AmeriKat has taken this opportunity to conduct a little research into our likely next Supreme Court Justice’s intellectual property law record.

Before her nomination to the bench by former President George H W Bush, Sotomayor was a partner at New York firm Pavia & Harcourt, specializing mainly in trade mark matters. For four years Sotomayor represented significant brands, such as Fendi, against producers of counterfeit goods and ran stringent anti-counterfeiting programmes to protect their brands. Responding to a 1986 event called the “Fendi Crush”, where to celebrate their success against counterfeits thousands of fake Fendi accessories were destroyed, Sotomayor stated that in representing brands the “aim is much like a drug operation. We attempt to go after suppliers and secure information that leads back to the manufacturers.” Besides obtaining several ex parte injunctions against counterfeit suppliers on behalf of Fendi every month, Sotomayor also established a group of prominent trade mark lawyers in New York City to lobby for changes in anti-counterfeiting laws. In an interview with The San Francisco Chronicle in 1992, Sotomayor stated that “In the next five or 10 years, trade mark owners will become more concentrated on changing state laws, changing penalties. They will rely more on local police to make arrests. A real threat of jail does have an impact.”

Unfortunately, it is Sotomayor’s subsequently reversed decision in Tasini v The New York Times 972 F.Supp. 804 (SDNY 1997) which is the most well known of all her intellectual property decisions. In this case, freelance journalists brought a claim against the Times alleging copyright infringement arising from the republication of their articles on electronic databases such as LexisNexis. The authors contended that their original licence granted to the Times was for publication in print form and therefore did not include electronic publication. Sotomayor was tasked in interpreting section 201(c) of the Copyright Act which deals the rights of owners of collective works, i.e. whether the Times as a collective works owner could reuse the journalists’ works absent any express authorization. In her liberal interpretation of this section, Sotomayor held that the Times had the right to reprint the journalists’ works, even if their initial licence did not include electronic reproduction. However, the Supreme Court reversed Sotomayor’s decision by 7-2. Justice Ginsburg gave the majority speech ruling that the Times republication of the journalists’ individual articles without the context of the entire newspaper in which the articles were first printed was an infringement and thus required the journalists’ consent and compensation.

If rumour is correct and President Obama’s administration manages to install Sotomayor to the Supreme Court by October in time for the Court’s next term, she may be presiding over the much-anticipated judgment in Bilski. The AmeriKat’s brief investigation into Sotomayor’s intellectual property decisions seems to show her leaning in favor of larger corporations and rights holders. However, this limited evidence and Sotomayor’s few judgments concerning patent cases have not given the AmeriKat any definitive guidance on how to predict Sotomayor’s approach to Bilski. If it is anything like her ex-husband’s stance, however, Sotomayor’s judgment will not be forming part of any ground-breaking judgment that many are hoping.
Where the AmeriKat has failed to predict Sotomayor’s attitude towards patent claims, she is eager to hear your views. To help you along your way, the AmeriKat suggests you look Sotomayor’s responses to the required Senate Committee of the Judiciary questionnaire.

Michael Jackson

This week’s Letter would not be an accurate reflection of the current discussions in the US if the AmierKat did not mention the death of Michael Jackson. The AmeriKat herself remembers dancing around to the Thriller vinyl record in her purple corduroy flairs and joining her parents exercising to “Can You Feel It” on Jane Fonda’s Workout cassette (vinyl and cassettes – those were vintage days for intellectual property law!). Besides his enduring earlier hits and his later bizarre press appearances, it was Jackson’s purchase of ATV Publishing, the owner of the rights to 251 Beatles’ songs, and his own catalogue of valuable copyright works, that will be preoccupying numerous lawyers handling the administration of his estate in the coming months. As reported in Rolling Stone, since Jackson’s death on Thursday, sales of his music on iTunes have soared. The AmeriKat wonders whether, with his death, the increase in value of Jackson’s intellectual property assets will now go somewhere in handling the reported $400 million in debt facing his estate.
Letter from AmeriKat Letter from AmeriKat Reviewed by Annsley Merelle Ward on Monday, June 29, 2009 Rating: 5


  1. "Since under section 230 a claimant, without the ability to sue the publishing website, is potentially left without adequate redress for a tort committed against it, the AmeriKat feels that the US needs to redress this current imbalance in the law."

    Nonsense. The claimant may obtain redress from the user who posted the content. If that redress is inadequate, that's unfortunate, but not a situation that necessarily justifies extending liability to the deep pocket of the service provider.

    We do not permit someone who has been defamed to obtain redress from the venue in which that defamation occurs, or the owner of the property upon which a libelous leaflet was posted, simply on the basis that the communicative act took place at that location. A posting on a Yahoo message board is no different than a pronouncement from the stage, or a note posted on a bulletin board. Section 230 merely codifies a longstanding judgment that the burden of pre-screening communications in a participatory forum outweighs the losses that might be expected from the minority who commit a tort. Moreover, the social opportunity costs of restricting communication outweigh the benefit that might be expected from preempting these infrequent torts.

    Those who claim that section 230 is an instance of "internet exceptionalism" base their argument on a false analogy -- that internet service providers are akin to publishers who select content for public distribution. Instead, service providers are far more akin to theater or stadium owners. Sometimes they create or solicit material for consumption, but othertimes they only provide a venue for third parties to present their own material. I am unaware of any instances of "premises liability for defamation," so I see little basis for arguing that there is an imbalance or undue exceptionalism in circumstances like those involving Ms. Barnes.

  2. The AmeriKat thinks that where redress for a civil action is inadequate there is every need to review the law. One must consider the ease and speed to which an anonymous user can post a defamatory statement on-line, with that of the time and cost it takes the subject of a defamatory statement to reveal that user’s identity. Then assuming that it is the award of damages that vindicates the claimant’s reputation, this vindication may be practically impossible when at the end of a laborious John Doe application a claimant discovers that the author is unable to pay any damages. The Claimant is then left without the redress necessary to vindicate their reputation. 1-O to the libeler!

    The AmeriKat in part disagrees with WittyKitty’s analogy that ISPs are akin to theatre or stadium owners. The AmeriKat agrees with the basic position that venue owners do not have control over what is uttered on their premises and are therefore should not liable for these comments (innocent dissemination). However, this general premise assumes that theatre and stadium owners are only mere bystanders that do not have any exercise of control over what and who enters their premises. This is not true. Once a slanderous statement is spoken by an individual a premise owner can revoke that person’s licence to be on their property and prohibit them from entering again. Likewise with a posting of a defamatory leaflet, the owner can and should remove the leaflet from their premise. If once aware of the defamatory statements occurring or being posted at their venue and the owner then electing that these statements should continue, surely the owner is exercising a degree of control as to the defamatory statement’s publication and at this point is no longer a mere bystander. Likewise, once put on notice of the existence of defamatory content on their website, the AmeriKat disagrees that an ISP continues to be mere bystander and therefore should not be exempt from any responsibility for the continued existence of the content.

    Though the AmeriKat recognizes that section 230 was introduced in order to foster the development of on-line forums and programmes, surely the need for such protectionist legislation has minimized now that these on-line communities have established themselves. Although the AmeriKat understands that the burden for these on-line communities in pre-screening comments prior to publication on their website would be far greater than the benefit afforded to a minority of individuals who are defamed, where is the overwhelming burden to the ISP to remove identified defamatory content post-publication once notified? Once put on notice of the defamatory content on their website and then electing not to remove the content, aren’t the ISPs acting as de facto publishers? If so, the AmeriKat argues, the continued publication of the defamatory statements would suggest that at this point the ISPs should also be liable for the publication of the defamatory statement.


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