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The $105 Fix That Could Protect You From Copyright-Troll Lawsuits

By David Kravets
Wired
October 27, 2010

Call it ingenious, call it evil or call it a little of both: Copyright troll Righthaven is exploiting a loophole in intellectual property law, suing websites that might have avoided any trace of civil liability had they spent a mere $105.

Thats the fee for a blog or other website to register a DMCA takedown agent with the U.S. Copyright Office, an obscure bureaucratic prerequisite to enjoying a legal “safe harbor” from copyright lawsuits over third-party posts, such as reader comments.

There’s no better time to become acquainted with that requirement.

Founded in March, the Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content of the Las Vegas Review-Journal for the sole purpose of suing blogs and websites that re-post, or even excerpt, those articles without permission. The company has SETTLED about 60 of 160 cases for a few thousand dollars each, and plans to expand its operations to other newspapers across the country.

Many of its lawsuits arise, not from articles posted by a websites proprietors, but from comments and forum posts by the site’s readers. Under the Digital Millennium Copyright Act, a website enjoys effective immunity from civil copyright liability for user content, provided they promptly remove infringing material at the request of a rightsholder. Thats how sites like YouTube are able to exist, and why Wired.com allows users to post comments to our stories without fear that a single user’s cut-and-paste will cost us $150,000 in court.

But to dock in that legal safe harbor, a site has to register an official contact point for DMCA takedown notices, a process that involves filling out a form and mailing a check to the government. An examination of Righthavens lawsuits targeting user content suggests itҒs specifically going after sites that failed to fill out that paperwork.

“The DMCA is a good deterrent from being sued,” says Kurt Opsahl, a staff attorney with the Electronic Frontier Foundation, “Complying with conditions of eligibility for the safe harbor is a good thing to do. It probably will prevent somebody from suing you in the first place.”

The EFF is defending political community site Democratic Underground from a Righthaven suit stemming from a users posting of four paragraphs from a 34-paragraph Review-Journal story on Sharron Angle, the Republican Nevada candidate for Senate entitled ғTea party fuels Angle. The brevity of the excerpt, and the fact that the post links back to the original story, gives Democratic Underground a strong fair use defense. But had it registered with the Copyright Office, it wouldnԒt even have to make that argument.

Opsahl doesn’t believe any of the sites Righthaven has sued had a designated agent, though not all of the cases involve user posts. (Righthaven did not respond to inquiries for this story.)

If you run a U.S. blog or a community site that accepts user content, you can register a DMCA agent by downloading THIS FORM (.pdf) and sending $105 and the form to Copyright RRP, Box 71537, Washington, D.C., 20024.

Opsahl and other experts note that failing to qualify for the DMCA safe harbor still leaves you with fact-based defenses from a lawsuit, including the defense, supported by some case law, that infringing third-party posts aren’t your responsibility.

Ben Sheffner, a Hollywood copyright attorney and the man behind the must-read blog COPYRIGHT AND CAMPAIGNS, says there is a reason the DMCA demands a takedown agent, which is supported by a recent court ruling.

“The idea is you need to make it easy for copyright owners to locate who you send infringement notices to,” he says. “They shouldn’t have to go hunting around.”

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Social Networks Give Rise To Internet Law Specialty

By Walter Pacheco
Orlando Sentinel
November 1, 2012

The next time you log into FACEBOOK, Twitter or any other social media network, keep in mind that anything you post could be used as evidence in a lawsuit.

That’s the message that experts in Internet law, a complex and new emerging aspect of the legal profession, are trying to get across to consumers.

Adam Losey, an attorney with Foley & Lardner’s Orlando office, runs the IT-LEX website, which explores issues concerning technology and the legal system. He says any number of things from a person’s digital trail could possibly land them in a court.
“The information overload started hitting the tipping point around the new millennium,” Losey said. “But that amount of information is staggering now that there are so many different ways people communicate on the Internet or electronically.”

Losey’s specialty is new to Orlando, and he’s expanding the field through his website, in part by sponsoring annual writing contests with up to $5,000 in cash for law students interested in pursuing technology law.

Losey, who served as adjunct professor at Columbia University teaching electronic discovery, lectures on technology law at his alma mater, the University of Florida, and at Florida A&M University’s law school in Orlando. He also has talked about Internet legal issues at conventions of the Florida Bar and at the Orange County Bar Association.

“Getting lawyers involved in technology law is important for the field because rules defining e-discovery and other aspects of Internet law are constantly getting revamped,” he said.

Avid Facebook and Twitter users post hundreds of images and comments on their personal social media sites. While users expect a certain level of privacy, social media sites are often very much open to outside inspection.

Insurance companies prowl the Facebook and Twitter accounts of clients who file accident and personal injury claims against them. Attorneys also monitor and download massive amounts of data from them and other Internet sites as possible evidence.

But a seemingly endless stream of electronic data also could at least in some instances ח cripple a case.

A federal judge in August dismissed charges against Armando Angulo, a fugitive Miami doctor indicted in one of the nation’s largest cases against Internet pharmacies, in part because prosecutors said maintaining more than 400,000 documents and two terabytes of information was too expensive for the Drug Enforcement Administration.

“It’s the most exciting time to be a lawyer because the law is struggling to keep up with changes in technology,” Losey said. “In some cases, lawyers will help create laws based on the problems encountered with the developing technology.”

In 2011, a U.S. Magistrate in the Southern District of New York approved the defendant’s request to use technology-assisted review in a case involving labor disputes. The software searches thousands of electronic documents for information relevant to the case, reducing the time and money spent on gathering electronic discovery.

The stakes in cases involving defamation law can be much higher because of the worldwide reach of the Internet.

“The old rules still apply whether the possibly defamatory comment is written in a letter, made in a phone call or posted on the Internet,” said Fort Lauderdale attorney Dana McElroy, a lawyer whose firm represents the Orlando Sentinel and the Sun Sentinel. “But now, the liability is potentially broader because of the jurisdictional issue. Those comments are accessed worldwide and stay online forever.”

Miami attorney Tom Julin said “it is critical for lawyers to understand how social media works and how the rules are because they will encounter it in their cases.”

Some already are making lucrative careers from Internet cases, with many companies specializing in data mining for attorneys.

Some attorneys work to rebuild reputations soiled on the Web.

Their services produce large amounts of content about their client tagged with popular search keywords that Google will latch onto instead of embarrassing or negative information already on the Internet.

“There is so much written about social media and technology these days that I see a lot of attorneys boast about being experts on the subject on their websites,” Julin said. “It’s not clear to me that they are legitimate experts in that field, but there is certainly money to be made in it.”

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Posted by Elvis on 10/27/10 •
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