Tuesday, November 06, 2007

The Right to Whine :: Global Royalties, Inc., v Xcentric Ventures, LLC, (DAR October 10, 2007)

The Good Samaritan provisions of Sec. 230 the Communications Decency Act hold water over the water – where water means overseas international judgments – and where overseas in this case means the dirt road leading north guarded by Canadian Mounties. Between a Canadian judgment for defamation which involved third party content, and the safeguards of Sec. 230 of the Communications Decency Act, the Good Samaritan wins the smack-down.

So here’s the dirt. This week’s spat is Global Royalties, Inc., v Xcentric Ventures, LLC, No. 07-956-PHX-FJM (DAR October 10, 2007). Defendant Xcentric Ventures runs a whine-website called Ripoff Report. A disgruntled third party visited defendant’s website and expressed disgruntledness in three separate posts. Plaintiff Global Royalties took offense in the disgruntledness and ended up suing defendant and disgruntled party in Canadian court. Defendant never showed up. The court issued an injunction requiring defendant to remove all of disgruntled party’s posts from its website, prohibiting defendant from posting any further comments about plaintiff, and pushed the dispute to trial court for talk about damages.

Plaintiff brought the judgment South-of-the-Border down to Arizona seeking enforcement, and also called defamation on defendant. The court said, wait a minute, we don’t just enforce Canadian-hockey playing court orders as a matter of course. And as to “defamation,” the comments in question were written by a third party and not defendant, and therefore pursuant to the Good Samaritan clause of the CDA, the defendant is not liable. 47 USC § 230.

Wait a minute, argued plaintiff, defendant never took down the comments as ordered by Dudley Do Right, and therefore plaintiff has “adopted” the disgruntled statements.

Sorry, responded the court, but it is well established that notice to a website owner of some problem with someone whining does not morph the whining into the website’s own speech. This aint the DMCA.

Which led the judge to do a little whining of his own: With no risk or liability for third party content, a website owner has no incentive to take down that content where it flusters some plaintiff. If it was an unintended consequence of the CDA to render plaintiffs helpless against website operators who refuse to remove allegedly defamatory content, the remedy lies with Congress through amendment to the CDA.”

Poor poor helpless plaintiffs (that hire attorneys who haven’t read Sec. 230 case-law).

One of the truly great innovations of the Internet and specifically Web 2.0 is the interactive features that permits disgruntled third party’s to visit review web sites and whine about the failings of their least favorite companies. You can find out how horrible your plumber is, how horrible your teacher is, or how horrible Bruce Willis’ latest movie is (and if you believe every review or comment you read on the Internet, I have a nice investment in Nigeria to recommend to you). International treaties and fear of the Dudley Do-Right cannot thwart this. It’s good to know that your right to whine holds water over the water (even where the water is a frozen hockey pond).

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