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Tort Cases Tort Cases

Tort Cases - PowerPoint Presentation

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Tort Cases - PPT Presentation

IM 350 Intellectual Property Law and New Media Spring 2015 Mug Shots Galore Mug Shots Galore Mug shots used to be public in theory but not practice Now they are big business Publishers obtain mug shots and create searchable databases ID: 276283

cal content frayley 01726 content cal 01726 frayley facebook dirty jones sponsored cir shots names mug world 2014 230 section jordan district

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Slide1

Tort Cases

IM 350: Intellectual Property Law and New Media

Spring, 2015Slide2

Mug Shots GaloreSlide3

Mug Shots Galore

Mug shots used to be “public” in theory but not practice

Now they are big business

Publishers obtain mug shots and create searchable databases

Subjects who are “not guilty” are offered opportunity to pay publisher to remove photo

Waive of legislative initiates to curb exploitation of mug shotsSlide4

Section 230 – Website Solicited Content

Jones v. Dirty World Entertainment

, 755 F.3d 398 (6

th

Cir. 2014)

Summary from the Digital Law Media Project:

http://www.dmlp.org/threats/jones-v-dirty-world-llc#descriptionSlide5

Jones v. Dirty World Entertainment

, 755 F.3d 398 (6

th

Cir. 2014)

High

s

chool teacher and former cheerleader is subject of unwelcome posts on www.The Dirty.com

Site operator contributes some commentaryTrial court says TheDirty is a publisher and not immune under Section 230Teacher wins $38,000 in actual damages and $300,000 in punitive damages at trialSlide6

Jones v. Dirty World Entertainment

, 755 F.3d 398 (6

th

Cir. 2014)

On appeal, Sixth Circuit reverses district court on Section 230

Sixth Circuit held

district

court erred in finding that the website operators were the “creators” or “developers” of the content at issue and also erred in adopting an “encouragement test of immunity under the CDA”Slide7

Jones v. Dirty World Entertainment

, 755 F.3d 398 (6

th

Cir. 2014)

Richie and TheDirty.com did not author the statements at issue, even though they selected them for publication.

Jones had not alleged that Richie’s own editorial comments were defamatory.

Failing to remove the defamatory content could not be found to materially contribute to the content. The CDA expressly bars “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

.”Richie and TheDirty.com did not require users to post illegal or actionable content as a condition of use.The name of the website does not suggest that only illegal or actionable content will be published.

Richie and TheDirty.com did not pay users to submit unlawful content.The website’s content submission tools were neutral in both orientation and design as to what third parties submit.Slide8

Libel Suits Against Rating Websites

Grand Hotel Resort v.

TripAdvisor., 11-cv-549

(E.D. Tenn. Aug. 22, 2012)Slide9

Grand

Hotel Resort v. TripAdvisor., 11-cv-549

(E.D. Tenn. Aug. 22, 2012

)

District Court grants TripAdvisor’s motion to dismiss

“Dirtiest Hotels” is non-actionable opinion – unverifiable rhetorical hyperboleSlide10

Rights of Publicity and Social MediaSlide11

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

Background

FB launches “Sponsored Stories” on 1-25-11

When FB users “like” a product, their names and images automatically appear on “friends” pages under “Sponsored Stories”

With the launch, FB updated its terms:

Users give FB “permission to use your name and [FB] profile picture in connection with commercial, sponsored, or related content. . .”

Zuckerberg touts product:

“Nothing influences people more than a recommendation from a trusted friend”

“A trusted referral is the Holy Grail of advertising.”Slide12

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)Slide13

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

Consumer class action filed in the Northern District of California

Class: all people who registered to use FB as of 1-24-11 and whose names, photographs, likenesses were used in Sponsored Stories

Claims:

Violation of California Right of Publicity statute

Violation of California Unfair Competition statute

Common law unjust enrichmentSlide14

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

FB files motion to dismiss under 12(b)(1) and 12(b)(3)

Lack of Article III standing

Immunity under Section 230 of CDA

Failure to state a claimSlide15

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

Ruling on MTD

No immunity under Section 230 of CDA

While FB was an “interactive computer service,” its conduct of creating a “like” button and publishing user’s names and images as sponsored stories made it an “information content provider.” Slide16

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

Ruling on MTD (cont’d)

Right of Publicity – MTD denied

Not newsworthy

Fact issue on consent

Sufficient allegation of injurySlide17

Frayley

v. Facebook, 11-cv-01726 (N.D. Cal.)

Case

settles after ruling on motion to dismiss.

FB pays $20 million into settlement fund

FB changes certain terms of useSlide18

Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)

Take-away from case:

Use of users’ names and likenesses for commercial endorsement purposes in social media poses risk of ROP claims.

Obtaining consent by changing terms of use may mitigate claims, but perhaps only prospectively.Slide19

Perkins v. LinkedIn

, 13-cv-4303 (N.D. Cal.)

Plaintiffs accuse LinkedIn of hacking into their emails and sending multiple messages to harvested email addresses to invite people to join

Plaintiffs accuse LinkedIn of improper

use

of

names,

photographs, likenesses, and identities of Plaintiffs for the purpose of generating substantial profits for LinkedlnSlide20

Celebrity TributesSlide21

Jordan v. Jewel

Jordan v. Jewel Food Stores, Inc.,

743 F.3d 509 (7

th

Cir. 2014)

21Slide22

Jordan v. Dominick’s

Jordan v. Dominick’s Finer Foods, LLC,

10-cv-407 (U.S. D.C. N.D. Ill)

22