CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Gradually a body of Section 230 case law has developed affirming the immunity from liability website hosts enjoy, except in certain limited situations. (Courts have allowed cases to go forward against web hosts only when there’s evidence that the website operator, or one of its employees, was – directly or through inducement – involved in posting the offending content that allegedly violated the plaintiff’s rights or reputation.)

But that hasn’t stopped the armies of enterprising plaintiff’s attorneys – you know, the folks who “only get paid if you do”. Sure enough, we continue to see efforts to end run around Section 230 to get to the deep pockets of the web hosts.

We have already discussed one such “legal” maneuver. The New Jersey Attorney General’s office announced that it was investigating whether it could sue the gossip site “Juicycampus.com” for fraud because the site didn’t comply with its own Terms of Service by removing offensive content. (Juicycampus.com went out of business before any official action was taken, thus mooting the inquiry.)

In view of the quantity and quality of postings to Facebook every day, there were probably even odds that an innovative attorney with a willing plaintiff would try to get a piece of the reported $15 billion of that company’s net worth.

Enter Denise E. Finkel, high school student. She alleged that four classmates created a Facebook group in January, 2007, to which they posted “defamatory statements with negative sexual and medical connotations”. She filed a lawsuit against these classmates, several others, and Facebook in New York.

Of course, Facebook immediately moved to dismiss. (At this point, a defendant in Facebook’s situation should be able to win with a one line motion that simply says “Section 230 – Deal with it.”)

In response, Finkel didn’t dispute that Facebook is an “interactive computer service” covered by Section 230. Instead, she claimed that Facebook took itself outside the protections of Section 230 because, in its Terms of Service, Facebook claims ownership in all content posted to the site.

Because this is a rather common provision in a website’s Terms of Service – and one we often include in Terms we draft for our own clients – we are now big fans of Judge Debra A. James, who decided that “Plaintiff's argument is meritless.”

Oh noes!

Judge James cited one of the earliest cases interpreting Section 230, Zeran v. America Online, for the proposition that the law “precludes courts from entertaining claims that would place a computer service in a publisher’s role”. As she saw it, “ownership of content plays no role in the Act’s statutory scheme”. Since Facebook had no hand in creating the defamatory content, it simply couldn’t be sued.

As a side note, the court also dismissed Facebook’s own motion for sanctions to be imposed against Frankel and her attorney for bringing a frivolous argument. So it appears that Judge James was impressed, but not moved, by the lawyering in this case. That might embolden other attorneys with nothing to lose to continue to push the limits of Section 230.

The new "username" capability was introduced to make it easier to find individual users.  Prior to June 13, the only way to find a person was to go to www.facebook.com and use the Search function to find a person or entity; despite the existence of various filters to narrow down a search, you'd still often end up with a dreaded "Displaying 1 - 10 out of over 500 results for: xxx".

Now, any individual or company -- but not "groups" or "causes" -- can, but does not have to, create a username which becomes part of that person's Facebook URL.  What's the difference? Well, look closely the next time you visit the site (we know you do).  If the person you're stalking -- sorry, looking for -- doesn't have a username, his or her personal page will simply be assigned a random number ID and the URL will appear as something like:

http://www.facebook.com/home.php#/profile.php?id=123456789&ref=nf

Not all that unique or helpful when you're trying to find someone or go directly to a particular page, is it? 

Well, while I was on a cross-country flight the other night, I happened to be surfing the Internet (my review of Virgin America's in-flight wi-fi is a story for another post) and, lo and behold, was on Facebook right after midnight Saturday morning.  So I figured, what the heck, I'll grab a username.

Now you can find me simply by typing: 

www.facebook.com/kevinmgoldberg 

That's a lot more direct, isn't it?  It makes one's Facebook page much more akin to an actual "home page", especially since I've never bothered to register or develop www.kevinmgoldberg.com.  It also distinguishes me from "Kevin I. Goldberg", another attorney in the DC area (and even if you have been friends with him for almost 20 years, you'd want to distinguish yourself, too, if he advertised on TV to those who "have been injured in an accident", asking them to call "1-800-HurtNow", but that, too, is a story for another post...). 

There are a couple of restrictions: 

• In order to register a username, one had to be a registered Facebook user as of 3 pm, EDT on June 9, 2009.   This restriction is temporary and will be lifted on June 28, 2009 to allow any registered user to create a username.
   
• A username must be at least 5 characters long and consist entirely of alphanumeric characters and periods/full stops. This means broadcasters with a Facebook presence will not be able to simply use a four-letter call sign as a username unless the station's frequency or "AM", "FM" or "TV" were to be included. 

But while you can see the benefit of being easier to find, you can see the detriment as well, right?  It's also possible for someone to cybersquat your Facebook page.   And the Anti-Cybersquatting Consumer Protection Act and ICANN Uniform Domain Name Dispute Resolution Policy we've discussed in the past -- to the extent you wish to invest the time and money to grab your domain name back from a cybersquatter -- aren't really all that helpful, since the trademarks you're trying to protect really aren't part of the domain name itself. 

That's why we recommend that businesses who have established a Facebook page go ahead and take the few minutes to create a user name which reflects your most prominent brand or registered trademark -- the term that people are most likely to use to find you on Facebook.   If you don't have a Facebook presence, you might want to think about creating one, if only for the purpose of then preserving your desired username for future exclusive use (after all, it's free and, did we mention that one in five people who used the Internet in December 2008 visited Facebook?).  However, since every user can only have one user name, you should, as they say, "choose wisely". 

And what happens if someone has already taken your trademark as a user name and you want it back?  Well, Facebook claimed to have a system in place through which anyone with a registered trademark could preserve that right by submitting evidence of its rights in the form of the United States Patent and Trademark Office registration number. But that appears to have closed upon the opening of the username creation process on June 13 (again -- not the greatest outreach on Facebook's part).

There is still a relatively simple automated IP Infringement Form that can be used to report infringements on intellectual property.  It appears that filing this form is akin to filing a "Notice and Takedown Request" under the DMCA (another topic we've covered on Commlawblog) and will result in Facebook providing the allegedly infringing party the opportunity to respond. 

Of course, we're always ready and able to assist you in combatting the scourge of cybersquatting.  The only thing that rankles us more than Facebook cybersquatting is Twitter.  Not cybersquatting on Twitter, mind you.  All of Twitter.  But that's a story for another post...