Using copyright law to combat internet defamation
by Tim Bukher
An interesting case just came down in the Southern District of New York which shows how plaintiffs have begun to use copyright law as a means of overcoming Section 230 immunity and take down defamatory or simply “uncomfortable” content about themselves. Scott v. WorldStarHipHop, Inc., 2012 WL 1592229 (S.D.N.Y. May 3, 2012).
In Scott, the plaintiff sought to take down a video of himself, posted on WorldStarHipHop, wherein he was taped in a physical altercation with his ex-girlfriend. The video was posted by Scott’s classmate, Seymour, who subsequently assigned the video copyright to Scott.
As a general rule, Scott would have no recourse against WorldStarHipHop since Section 230 of the Communications Decency Act provides websites with absolute immunity for any potentially defamatory material posted on the website by its users. In this case, the video wasn’t even so much defamatory as it merely showed a side of Scott that he would perhaps not want the public (e.g., potential employers) to see.
Scott’s lawyers got creative. Having Seymour assign the copyright to the video to Scott, Scott then sent a copyright take-down request to WorldStarHipHop which the site refused to honor. Scott sued the site and, on WorldStarHipHop’s motion to dismiss, the court ruled that Scott had a valid cause of action for copyright infringement against the site.
WorldStar’s argument, that Seymour’s posting of the video granted it a license to host the video to which license the subsequent copyright assignment was subject, was unavailing because WorldStar could not show a written license as required by 17 U.S.C. 205(e).
Takeaway: This is certainly a new and creative strategy of overcoming Section 230. In this case, copyright law was quite blatantly
abused for something it was not intended to do in a way that, moreover, helped a not very sympathetic guy. Nevertheless, I expect we will see more of this strategy as business owners continue to fight with UGC sites (complaint sites like RipOffReport.com) which had otherwise called on Section 230 immunity to protect some fairly questionable user comments and which, in many cases, provide no means for business owners to defend themselves.
Tell us what do you think.
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