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Tricky Lawyer Turns Defamation Battle Into Copyright Dispute

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By Casey C. Sullivan, Esq. on June 17, 2016 1:15 PM

We have to hand it to Massachusetts attorney Richard Goren. When faced with a negative review on Ripoff Report, he didn't just win a defamation victory (alright, it was by default, so it's not too impressive), he convinced the court to transfer him ownership over the copyright of the negative post, in a clever attempt to get around laws that protect websites hosting user-generated content.

But not everyone is amused by Goren's legal maneuvering. The Electronic Frontier Foundation and Public Citizen have filed an amicus brief in Goren's case against Ripoff Report, arguing that Goren's move is an abuse of intellectual property protections.

An Attempt to Get Around the CDA

Hit with unwanted and defamatory criticism online, Goren faced a common conundrum. He could go after the poster personally, suing for defamation, and he did. (He's not alone. Another lawyer won $350,000 earlier this year, after suing a former client over a dishonest review.)

But even with a defamation win, plaintiffs can have trouble getting websites to remove defamatory content. That's because section 230 of the Communications Decency Act insulates websites from liability relating to user-generated content.

Goren's solution? Rely on the Copyright Act instead. Having won the copyrights to the defamatory post as part of the default judgment (relief which, as Techdirt points out, is unusual), Goren then sued Ripoff Report's parent company for copyright infringement.

Goren Loses and Public Interest Groups Step In

Of course, Goren's approach isn't without a few hitches. First there's the question of whether Goren actually owns the IP rights to the defamatory post. Ripoff Report, which refuses to take down reviews for almost any reason, claims that Goren's critic never controlled the copyright in the first place. That's because the website's terms of service grant Xcentric, Ripoff Report's parent company, an exclusive license to the content users create on the site.

As a result, the district court tossed Goren's suit on the grounds that Xcentric controlled the copyright to the post and that section 201(e) of the Copyright Act forbids involuntary transfers of copyright.

Goren has appealed to the First Circuit, and that's where the public interest groups come in. The Electronic Frontier Foundation and Public Citizen have filed an amicus brief arguing that both Goren and the Ripoff Report were in the wrong.

Copyright law can't be manipulated to undermine the CDA, the groups argue, without undermining the public's ability to speak out online. To rule otherwise would put both review-hosting sites and public criticism at risk. Further, not only does copyright law forbid the relief granted by the court in Goren's defamation case, the use of copyright law to suppress "goes against the grain of copyright law."

As for the Ripoff Report's browsewrap agreement? Those terms "are themselves a ripoff" and should be disregarded as unconscionable, Public Citizen's Paul Alan Levy writes.

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