Jonathan D. Frieden, Esq.
ODIN, FELDMAN & PITTLEMAN,
P.C.

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Between one and two billion Internet users
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Nearly 240 million of Internet users live in the U.S
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Nearly 80% of Americans have Internet access

What We Use the Internet For
Use % of Adult Internet
Users Making Such Use
81% Research Products &
Services
Get News 70%
Read Blogs
Create Blogs
32%
11%

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First Amendment and Internet
Speech
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” First Amendment to the United
States Constitution
“[O]nline speech stands on the same footing as other speech—there is ‘no basis for qualifying the level of
First Amendment scrutiny that should be applied’ to online speech.”
In re Anonymous Online Speakers , 611 F.3d 653,
657 (9 th Cir. 2010).

Anonymous Internet Speech
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An author’s decision to remain anonymous is a fundamental aspect of freedom of speech.
“Anonymity is a shield from the tyranny of the majority.” McIntyre v. Ohio Elections Comm’n , 514
U.S. 334, 342 (1995).
The Internet is “a particularly effective forum for the dissemination of anonymous speech.” -
Sony Music Entertainment, Inc. v. Does 1-40 , 326
F.Supp.2d 556, 562 (S.D.N.Y. 2004).

Limitations
Copyright Law
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Copyright owner has exclusive right to reproduce, prepare derivative works, publicly perform or display, sell, transfer, rent, lease, or lend copies of the copyrighted work.
Author of a work of visual art has rights of attribution and integrity.
Fair use of copyrighted work is not an infringement of copyright.

Limitations
Copyright Law
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Deep Linking - leads readers to an internal page on a website, instead of the home page.
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Deep linking is neither copyright infringement nor trespass.
Images – Use of images owned by another person may be copyright infringement, depending on nature of use.
Comments – Placing comments on a blog implicitly licenses the use of that comment.
Public/Open Source Licensing – E.g., Creative Commons: allows users to create a “Mad Lib”-style license for his/her copyrighted work
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Creative Commons licenses are used by a number of influential websites, including Wikipedia.

Limitations
Trademark Law
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Fair Use – Requires that the disputed term be used:
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Not as a trademark;
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In good faith; and
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To accurately describe the characteristics of the defendant’s goods/services.
Most use of trademarks in legal blogging falls under fair use.

Limitations
Defamation Law
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To recover on a defamation claim, Plaintiff must prove:
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A false and defamatory statement about Plaintiff;
An unprivileged publication to a third party;
At least negligence on the part of the publisher; and
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Special harm caused by the publication.
Protection for Bloggers:
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If a statement posted on a blog is false and defamatory, the blogger may be held liable unless the content of the defamatory statement originated with a third party.

New Protections
Digital Millennium Copyright Act
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DMCA creates a copyright infringement “safe harbor” for online service providers who adhere to certain prescribed guidelines and promptly block access to, or remove allegedly infringing material upon receipt of a proper
“takedown” notice under the Act.
Viacom v. YouTube - Viacom brought copyright infringement suit against YouTube for posting copyrighted material. YouTube successfully defended under the DMCA, claiming insufficient notice of the particular infringements.
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Court held that the burden is on the owners of the material to identify the violation and that a general knowledge that infringement is ubiquitous does not impose a duty on the service provider to monitor or search its service for infringing material.

New Protections
Communications Decency Act of 1996
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Purpose: To ensure that providers and users of “interactive computer services” would not be exposed to liability as
“publishers” of any information provided by another “information content provider.”
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“The specter of tort liability in an area of such prolific speech would have an obvious chilling effect.”
Zeran v. AOL, Inc.
, 129 F.3d at 330-31.

New Protections
Communications Decency Act of 1996
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Provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Interactive Computer Service – defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”
Information Content Provider – defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

New Protections
Communications Decency Act of 1996
Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, §
230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.
Zeran v. America Online, Inc.
, 129 F.3d 327, 330 (4 th Cir. 1997).

New Protections
Communications Decency Act of 1996
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Reit v. Yelp!, Inc.
Dentist brought an action against Yelp! for defamation after it refused to take down negative reviews of his practice posted on Yelp!’s web page.
Court held that Yelp! was an interactive computer service, which merely published allegedly defamatory content supplied by a third-party and that § 230 shielded Yelp! from liability.
907 N.Y.S.2d 411 (N.Y. Sup. Ct. 2010).

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New Protections
Communications Decency Act of 1996
Chicago Lawyers’ Committee v. Craigslist
Lawyers’ Committee brought suit against Craigslist for violating the
Fair Housing Act for housing ads on the website proclaiming “no minorities” and “no children” as well as ads stating “Catholic Church and beautiful Buddhist Temple within one block.”
According to Craigslist, these housing ads were merely describing the neighborhood.
Court held that Craigslist was protected under § 230:
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“Doubtless Craigslist plays a causal role in the sense that no one could post a discriminatory ad if craigslist did not offer a forum. .
. . One might as well say that people who save money ‘cause’ bank robbery, because if there were no banks there could be no bank robberies.”
519 F.3d 666, 672 (7 th Cir. 2008).

New Protections
Communications Decency Act of 1996
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Bloggers are providers of an interactive computer service.
With respect to comments left on a blog by a third-party, the blogger will almost always be afforded protection under § 230. If the
“essential published content” is willingly provided by a third-party, the publisher of that content enjoys the full immunity of § 230.
Of course, the blogger may be held liable for those portions of the blog (including comments) actually authored by the blogger.

Jonathan D. Frieden, Esq.
ODIN, FELDMAN & PITTLEMAN, P.C.
9302 Lee Highway, Suite 1100
Fairfax, Virginia 22032
(703) 218-2125 (Direct) jonathan.frieden@ofplaw.com
www.ofplaw.com
www.ecommercelaw.typepad.com