1st Circuit says publisher is not a content provider despite copyright claims

Accuse-o-rama

Designed in a garish red and black theme, with headings like “Victim of a consumer Rip-off? Want justice?,” RipOffReport.com makes a strong impression. It is, after all, appealing to an upset crowd – consumers who feel they have suffered at the hands of companies or individuals. The site is designed to receive “reports” from consumers documenting their complaints.

RipOffReport.com positions itself as a research tool to help consumers investigate businesses prior to striking up a relationship with them. But it also advances itself as a catalyst for class action lawsuits and investigations: “Your information may aid in pursing civil or criminal proceedings against companies engaged in wrongdoing.”

Ominous, however – at least for the companies who are targeted by the site’s reports – is a link that reads, “If you are considering filing a lawsuit against Rip-off Report, click here for important information about applicable federal law. Do you really want to sue Rip-off Report? … you really need to read this link.”

The link leads to a long webpage, replete with a table of contents that outlines information about the futility of pursuing legal action against the site. The centerpiece of this tract is a lengthy discussion of the Communications Decency Act (CDA), which RipOffReport.com clearly sees as key to its defense against lawsuits from disgruntled companies.

Cover

The CDA has been wielded successfully by RipOffReport.com’s parent company, Xcentric, for a while now. A string of suits against Xcentric and its founder, Ed Magedson, about the content posted by consumers to the site have been dismissed under the CDA.

The CDA makes a crucial distinction between interactive computer services (ICS) that host content – websites, for example – and information content providers (ICP), the parties that actually post or otherwise provide content to the ICS. Under the CDA, an ICS is not “treated as the publisher or speaker of any information provided by another information content provider.” Thus, Xcentric has escaped quite a number of suits by relying on its status as an ICS, rendering itself untouchable in cases where defamatory material against a plaintiff was posted to its site by a third party.

Latest Iteration

This approach was reinforced yet again by a 1st Circuit opinion issued on Oct. 11, 2017.

The facts of the case had their roots in a separate and unrelated lawsuit, wherein Massachusetts attorney Richard Goren sued an individual under state law over two negative reports about Goren that he posted to RipOffReport.com. Goren won a default judgment that awarded him copyright over the negative reports.

Once this victory was in place, Goren opened a federal suit in Massachusetts, claiming that Xcentric was infringing on his copyright by keeping the posts active on the site. Goren sought equitable relief and damages, including a declaratory judgment that he owned the copyright to the posts in question, and injunctions that would prevent the company from “continuing to publish, and/or from republishing all or any part” of the two reports.

Xcentric moved to dismiss, arguing that the CDA protected its right to publish and maintain the reports. Goren’s counsel made an interesting counterargument – because RipOffReport.com asks posters to sign over their rights to their reports, Xcentric was responsible for the reports in question. It was in effect both the service provider and the content provider. Additionally, Xcentric worked hard to have its reports perpetuated over internet search engines – another form of publishing. If Xcentric was responsible for the content, it couldn’t use the CDA to get out from under the suit. The District Court ruled against Goren, who appealed to the 1st Circuit.

The Takeaway

The appellate court affirmed the dismissal, arguing that the immunity from libel and tort claims afforded to an ICS under the CDA should be broadly construed: “We noted [in an earlier decision] that Congress has expressed a ‘policy choice … not to deter harmful online speech through the … route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.’”

The 1st Circuit held that to identify Xcentric as both ICS and ICP would “flout Congress’s intent by wrongly preventing an ICS like Xcentric from claiming immunity.” The opinion also noted a 9th Circuit decision that rejected the notion that an “ICS, by merely providing such direction to search engines with respect to information the ICS has not altered, becomes an ICP of that information.”

The opinion of the appellate court in this case sets yet another protective boundary around immunity offered to an ISC by the CDA.

Turning to Goren’s copyright claim, the 1st Circuit agreed with the District Court that when the individual who first posted the reports did so, he granted Xcentric a perpetual and irrevocable license to publish and distribute the posts that was still valid. This illustrates the importance of online terms of use and submission terms for publishers of user-generated content.