U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

Bad Review? Removing It Is More Complicated Than You'd Think

Do you own the copyright to posts that flame you? And if so, is it proper to use your ownership of those flame posts to have them removed from ISPs? Can you?

These and others are the issues at the center of a debate that has been roiling around in the courts for some time. Are defamed professionals allowed to own the comments that malign them? The First Circuit will chime in on this issue when it decides who owns the user comments in Ripoff Report reviews.

This Could Be You

In early January 2012, netizen Christian Dupont wrote a highly critical review on RipoffReport.com of Boston lawyer Richard Goren's firm and his business practices accusing him of fraud, vexatious lawsuits, and other such reputation damaging accusations. Even by objective standards, Dupont's comments about Goren have the appearance of being a hit-piece. Goren sued DuPont for defamation in state court and was given a default judgment that awarded him the copyrights to the posts.

Communications Decency Act

There's unconfirmed speculation floating about the internet that Goren sought the intellectual property rights to the posts not because he wanted to profit from them (how could he?) but because he wanted to have them removed.

He could hardly be blamed for wanting to have these comments buried. But why would he have to resort to such roundabout tactics?

RipoffReport is under the umbrella of Internet Service Providers as outlined in the Communications Decency Act. Under this federal law, ISPs like RipoffReport are generally not liable for the content of user-generated posts. This allows the company to contractually enforce a broad policy of "no deletions ... ever."

Another wrinkle is the argument by RipoffReport's parent company, Xcentric, which argues that Goren's claims to copyright are invalid. Why? Because Dupont's rights to the posts were never his to be taken. The company argues that Dupont and others like him give up their rights when they click "agree" before they post to the site. This theory was supported by District Judge Denise Casper who granted Xcentric summary relief.

In Comes the EFF

The Internet's fairness watchdog, the EFF, recently released a thorough account of the issues before the courts. The argument is that both sides are talking past the real issue. Goren, the EFF and other public interest groups say, cannot use copyright for the improper use of destroying a work. The whole purpose of copyright is to protect the intellectual exclusivity of written works.

But the RipoffReport doesn't get away unscathed. In an amicus written by the EFF, Public Citizen, and Harvard's Berkman Center for Internet and Society, the groups argue that users do not agree to give up their copyright rights to a work simply because they clicked "agree." Such browsewrap agreements generally amount to adhesion contracts, so goes the argument. An enforcement of such policies would have serious negative implications for free speech.

Probably. But then, we're supposing that's part of the nature of commercial speech. A review, if in good faith, is probably some form of speech that has some commercial effect. And in this case, it's not the government who holds the purse-strings.

But we're also somewhat on the fence about the EFF argument that destruction or removal of speech is an improper use of copyright law. If I create a painting in my front lawn, but destroy it after someone takes a picture of it, is it not my right to destroy the original? Does this analogy have any application to the internet?

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