Kim Kardashian versus … the FTC’s advertising rules?

Diet guru Dr. Siegel sued celebrity Kim Kardashian for defamation yesterday after Kardashian allegedly criticized Siegel’s “Cookie Diet” in Twitter postings.  The Miami-Dade Circuit Court lawsuit claims Kardashian defamed Siegel and his diet company by calling the diet “unhealthy” and accusing them of falsely claiming she was a satisfied user of the diet.

The defamation claim is weak, given that (1) Kardashian didn’t say anything bad about the diet save that it was “unhealthy,” which probably is either protected opinion or simply impossible to prove or disprove, and (2)  Siegel’s website contained a link to an article saying Kardashian used the diet, which means there is a good chance that she will get away with her accusations of Siegel’s “falsely promoting” or “lying” about her use of the product.

More interesting is the FTC issue lurking in Siegel’s Complaint.  In Paragraph 15, Siegel criticizes Kardashian for failing to note that she is a paid endorser of the QuickTrim diet when she tweeted “I would never do this unhealthy diet! I do QuickTrim!”  Although Siegel doesn’t mention the FTC, he unwittingly may have accused her of violating the FTC’s new Internet-advertising rules.

The FTC regulations require Internet speakers to disclose their financial ties to products they endorse.  Here, that could mean that Kardashian should have stated that she was a QuickTrim endorser when she implicitly compared QuickTrim favorably to the Cookie Diet.

Luckily for Kardashian, recent analyses suggest the new rules won’t apply as harshly as they appear in theory — and it’s hard to imagine the FTC fining Kardashian over her tweets.  However, Kardashian’s situation provides a reminder of the bizarre ways in which the “advertising” regulations could affect social media.

UM Law prof sues Above the Law

University of Miami Law professor D. Marvin Jones has sued legal blog Above the Law over the site’s commentary regarding Jones’ legal troubles.  Above the Law posted a series of articles about a police report that accused Jones of soliciting a prostitute.  The articles, which dubbed Jones ”The Nutty Professor,” leveled various criticisms of Jones’ actions and included a raunchy parody graphic.

I’ll leave the legal analysis to the many folks who already have done a superb job of hitting the highlights.  You can find a copy of the complaint here.

I agree with the consensus that Jones’ complaint has little chance of surviving a motion dismiss.  Obstacles in its way include:

• Florida doesn’t recognize “false light,” which is one of Jones’ three causes of action;
• Most of Above the Law’s commentary relates to the police report, which is a public record, and thus the fair report privilege likely precludes liability;
• Jones claims copyright in a photograph used to make the parody image, yet the image appears to have been taken from the UM website; and
• Jones might be considered a public figure for the purposes of commentary regarding his fitness as a professor.

As other commentators already have noted, Jones has positioned himself to become a case study on the Streisand effect.  The Above the Law posts until now had not garnered much notice: I am a regular reader of Above the Law yet was not familiar with the posts.  Now, however, Jones’ lawsuit is a minor sensation among legal blogs and websites across the Internet.  Jones has only a slim chance of recovering on his claims, but he is guaranteed to cause exponentially more people to read the allegedly harmful statements about him.

Hernando man sues Lil Wayne, Birdman over copyright

A Hernando County man hired by rappers Lil Wayne and Birdman to perform “mob-movie-flavored repartee” on their records has sued the entertainers and their label for copyright infringement.  Thomas Marasciullo lawsuit in the Southern District of New York alleges that Cash Money Records failed to pay him despite using his spoken word recordings in numerous songs by the two artists.

While I haven’t seen a copy of Marasciullo’s complaint, his allegations feel more accurately cast as breach of contract from what little I’ve heard.  Cash Money presumably offered some deal to Marasciullo, at least orally, in order to entice him into the studio — e.g. we’ll use your recordings on a hit Lil Wayne single and pay you big bucks in return.  By allegedly failing to pay Marasciullo, Cash Money arguably breached that deal.

Aside from that issue, the copyright analysis in this case is more complicated than most.  Typically, an artist automatically enjoys a copyright in his work upon creation, regardless of whether he registers a copyright.  But “creation” is not always easy to define.  For instance, does the copyright status of Marasciullo’s performance change if Lil Wayne and co. gave him an idea to work with, directed him throughout the performance, and asked him to modify his lines or delivery?  What if the dialogue was entirely scripted, with Marasciullo giving his interpretation of material created by another?  So, depending on the facts of the situation, parties other than Marasciulo might have some claim on the recordings due to their involvement in its “creation.”

Furthermore, if Marasciullo and Cash Money put anything in writing, that could change the entire analysis.  Even if Marasciullo had a valid copyright in the recordings, he might have given the rights to Cash Money in exchange for payment.  This again would make breach of contract a stronger claim against the label.

I’ll try to get a copy of the complaint so that I can get a better handle on Marasciullo’s clams.

Florida man settles Dungeons & Dragons copyright case

Milton, FL resident Thomas Patrick Nolan agreed this month to pay $125,000 to settle claims arising from his alleged infringement of materials for the popular role-playing game Dungeons & Dragons.  Gaming company Wizards of the Coast sued Nolan in Washington federal court after Wizards allegedly found a copy of its new “Player’s Handbook 2″ manual on Nolan’s page at document-sharing website Scribd.com.

According to the complaint, a watermark alerted Wizards that Nolan had not purchased the copy of the Handbook that appeared on Nolan’s Scribd page.   Wizards stated that more than 1,000 users downloaded illegal copies of the Handbook from Nolan.

Aside from the entertaining description of D&D in the complaint, the most interesting aspect of this case is the $125,000 damages figure.  It is difficult to say whether $125,000 is a good deal for Nolan, given the curious state of damages awards under federal copyright laws. Typically, a copyright holder chooses at the outset to seek either actual damages (i.e. the amount of money they lost) or statutory damages (a fixed level of damages per infringement).  Wizards asked for both in its complaint, so we don’t know which it actually would have pursued.

On the one hand, the Handbook sells for roughly $25.  Even if we assume Nolan would have been found liable for either the approximately 1000 downloaders or 1,600 viewers of the document, that would result in a maximum of $50,000-$80,000 in actual damages  suffered by Wizards.   Adding the likely substantial attorney’s fee bill Nolan would face if he went to trial might get the total figure near $125,00o — but it certainly wouldn’t make it a bargain.

On the other hand, Wizards might have succeeded in winning statutory damages at trial.  Statutory damages under 17 U.S.C. 504(c) can be any number between $200 and $150,000 per infringement, depending on a variety of factors.  In that case, Nolan could have lost a judgment as high as $150,000 for just his alleged posting of the Handbook to his Scribd page.  If he were on the hook for the 1,000+ downloaders and viewers, he could have faced a multi-million dollar verdict.

High-powered defamation roundup Pt. 2: White v. Rowe

Debbie Rowe, best known as the mother of Michael Jackson’s two oldest children, might soon win a $500,000 defamation judgment against Key West resident Rebecca White.  Rowe sued White in July, after White accused Rowe in a TV inverview of seeking custody of Jackson’s children only because she wanted the pop star’s money.  White claimed to be repeating statements Rowe made in e-mails to White, but Rowe disputes that she sent any such e-mails.

Rowe is now seeking  a default judgment against White.  If the judgment is granted, White essentially would lose because she didn’t show up to defend the lawsuit, rather than because a judge or jury determined that Rowe’s claims were valid.

If White comes forward to contest the lawsuit, this will be one to watch.  Most notably, White poses one of the more interesting “public figure” issues to have come up in recent memory.  Traditionally, a “public figure” is someone who exists in the public eye by nature of their job or other personal characteristics.  Classic examples include public officials, politicians and, of course, pop stars.

A more restricted class – “limited purpose” public figures - also exists.  These individuals count as public figures for the purposes of a limited range of issues, owing to some intentional action of their part to insert themselves into the public eye.  For instance, an animal rights activist might not be sufficiently well known to count as a public figure for all purposes, but she could well be a public figure in matters involving animal rights.

Establishing whether someone is or is not a public figure is a key battle in defamation cases.  This is because an allegedly defamed public figure must face a heightened set of obstacles in prevailing on his claim, on the theory that society benefits from wide public debate about these individuals.

Rowe is unlikely to constitute a standard public figure.  She doesn’t appear to seek the spotlight, and her profession (nurse) is not particularly “public.”  Furthermore, Rowe spends most of her time time out of the public eye — so much so that odds are good you didn’t recognize the name “Debbie Rowe” when you read the first sentence of this post.

However, Rowe might well be a limited purpose public figure for the purposes of all things Michael Jackson.  White could make a strong argument that, by choosing to have Michael Jackson’s children, Rowe intentionally entered the public eye at least as to matters regarding pop star.  It is hard to argue that a reasonable person wouldn’t be aware that widespread attention would follow such a decision.  Furthermore, her intentions might not matter; a growing trend among courts is to find public-figure status as arising alternatively from the sheer volume of media attention and public dicussion surrounding a person, regardless of why such attention arose.

So is she, or isn’t she? I think Rowe is, but we’ll never know unless White steps forward to contest Rowe’s allegations.

As a final note, the public figure debate could become a side issue in this case depending on determination of one other key question: whether or not Rowe sent White the alleged e-mails.  If Rowe did send e-mails that say substantially what White repeated on-air, then it is unlikely that White could have a valid defamation claim.  If Rowe did not send the e-mails, then White could have trouble convincing the court that her statements were not false.

High-powered defamation roundup Pt. 1: Rush Limbaugh v. Al Sharpton

While last week was dominated by open records news, this week was featured a number of high-profile, Florida-related defamation lawsuits.

The first involves a dispute between Rev. Al Sharpton and Palm Beach radio personality Rush Limbaugh.  The two leveled accusations of racism, race-baiting, defamation, and general misconduct against each other after Limbaugh engaged in a contentious bid to become co-owner of the NFL’s Los Angeles Rams.  After a particularly harsh salvo from Limbaugh, Sharpton claimed he would sue for defamation unless Limbaugh apologized.

Rev. Sharpton would face a tough battle if he were to sue.  Sharpton is the very definition of a public figure — someone who, by virtue of both his occupation and his knowing self-injection into the public scene, has voluntarily exposed himself to public comment.  In order to win a defamation judgment against Limbaugh, Sharpton would need to prove that Limbaugh spoke with actual malice; that is, that Limbaugh either knew his accusations were false or acted with reckless disregard as to whether the accusations were true or false.  In practice, actual malice is very difficult to prove in court.

The statements themselves are mixed.  Some are unlikely to be defamatory, such as Limbaugh’s largely factual discussion of Sharpton’s 1998 loss of a defamation case.  Others are stronger; Limbaugh is toeing a dangerous line when he pegs Sharpton as serving a “leading role” in a pair of 90s race riots.  In between are a number of statements that arguably constitute non-defamatory opinion or hyperbole, such as accusations that Sharpton is a race-baiter or has a “blind hatred” for conservatives.

And, as I discussed in the last post, defamation is context-specific.  Readers and listeners arguably know to expect that Limbaugh will use emotionally charged language to elicit a strong reaction, and they correspondingly will take his statements with a metaphorical grain of salt.  For more reasons than one, then, Rev. Sharpton might want to think twice before filing suit

Coming up in Pt. 2: Michael Jackson.

When it comes to defamation, context is key

A recent New York Times article (in the Fashion & Style section, oddly enough) contained a surprisingly thoughtful note about a basic tenet of defamation law that probably will have a significant effect on how existing law adjusts to better fit online communications. In short, context matters.

Defamatory statements cannot be viewed in a vacuum. After all, the legal “wrong” in a defamation case is one person making a statement that harms another’s reputation. If the statement did not or could not have harmed a person’s reputation, it makes little sense to label the statement “defamatory.”

When asked about how the law will shift, if at all, when applied to online media forms such as blog and Twitter posts, lawyer Floyd Abrams told the New York Times: “The basic law will be the same, but I would think that a defendant might argue that the language used on Twitter is understood to not be taken as seriously as is the case in other forms of communication.”

As David Ardia at the Citizen Media Law Project explains in another Twitter-related piece, a defamation claim requires a false statement of fact.  To determine whether a false statement of fact exists, the court or jury looks to the “totality of the circumstances” — including factors such as source, tone, language, and the various intangible elements  surrounding the statement.  Consequently, a statement made on Twitter or a blog might have an entirely different effect, when taken in context, than an identical statement made elsewhere.

For example, a Florida court recently awarded a doctor approximately $10 million in damages against the St. Petersburg Times over statements appearing in a news article.  Setting aside the merits of the doctor’s claim, it’s easy to imagine how a disparaging statement in a reputable newspaper could have a significant effect on the doctor’s reputation.  People expect facts when they read a newspaper and, while we all have varying levels of faith or skepticism regarding a paper’s accuracy, we are  generally likely to credit much of what we read.

Twitter posts — or blogs, or forums — are somewhat different.  This is not a question of journalistic merit, but of expectation: while many online-based media are tremendous sources of information, others are known for their more conversational style.  To put it bluntly, people expect to receive someone’s opinion when they read an individual’s personal blog or Twitter feed.

Thus, the St. Pete Times’ statements regarding the doctor might have been defamatory.  The same statement, published in a disgruntled patient’s Twitter feed, might not be.

That is, of course, unless other contextual factors are present.  The “totality of the circumstances” concept requires the law to look at all relevant aspects of the statement, and not to grant free passes to certain forms of communication.  At the very least, it will be interesting to see how courts in the near future will address the differing context surrounding the various forms of online and traditional media.

they have varying levels of faith or skepticism regarding the newspaper’s accuracy.

FL courts deliver two major open records decisions

It has been a good week for organizations seeking access to FL government records, as two noteworthy decisions recently came down in their favor.

NCAA v. AP

The marquee case in FL open records law this past week was National Collegiate Athletic Association v. The Associated Press, in which the NCAA was ordered to turn over records related to an investigation into allegations of improper academic assistance given to athletes at Florida State University.

Neither the NCAA nor the firm that prepared some of the documents are public institutions, meaning their records typically are not open to public view.  However, the 1st District Court of Appeals held that any document “received” by a public institution — such as FSU — qualifies as a public record, so long as the document is related to the institution’s official business.

In NCAA v. AP, a novel use of technology brought the meaning of “received” into dispute.  When the NCAA provided documents to FSU, it did so by providing unprintable, un-copyable electronic copies that could be accessed only via a password-protected website.  To further complicate matters, FSU signed a confidentiality agreement agreeing not to turn over the records.

In finding that the records were public and therefore subject to disclosure, the 1st Circuit took the time to parse the meaning of the word “received” in the context of public documents.  The Court found that the term includes viewing a document online, regardless of any protections built into the viewing process.  This makes sense, as the court notes, because a public institution otherwise could circumvent open records laws through simple technological workarounds such as that employed by the NCAA.

Citizens for Sunshine, Inc. v. City of Venice

The second case is less noteworthy from the standpoint of substantive law, but equally relevant in terms of likely effect on the reality of open records lawsuits.

In Citizens for Sunshine, Inc., v. City of Venice, nonprofit organization Citizens for Sunshine won $1.4 million in attorney’s fees after successfully challenging the city of Venice, Florida’s failure to properly maintain city records.  The city attacked Citizens for Sunshine’s demand for fees on the grounds of various alleged defects — primarily overbilling — but failed to gain much purchase with the court.

Citizens for Sunshine won most of the fees it requested, failing to obtain only a fee multiplier and those fees expended in litigating the amount of fees due to the organization.  For anyone interested in the minutiae of fee-awards battles, note the discussion in page 3 regarding idiosyncratic FL caselaw under which one arguably should win fees for litigating whether or not you can win fees but not for arguing how much you should win in fees.

Decision such as this set precedent that can greatly shape the future of open records challenges.  While Florida’s open records and open meetings laws already provide for awards of attorney’s fees to citizens who successfully challenge violations in some cases, it is up to the courts to determine the boundaries of such awards.  In such lawsuits the plaintiffs have little hope of recovering monetary damages, which makes the ability to win legal fees a key factor in whether or not a plaintiff will ever bring a lawsuit in the first place.

Drew (tentatively) acquitted in MySpace suicide case

A federal judge today tentatively acquitted Lori Drew, the Missouri woman convicted for her involvement in a MySpace “cyberbullying” hoax that allegedly resulted in a young girl’s suicide.  If it sticks, the acquittal will help reverse the momentous change in online liability that Drew’s earlier guilty verdict threatened to set in motion.

Last November, a jury convicted Drew of three misdemeanor violations of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, which is essentially an anti-hacking law.  Commentors widely criticized the convictions, as the case’s logic seemed to criminalize any violation of a website’s Terms of Service (see Marc’s Satyricon post, CMLP, Threat Level, and numerous links therein).

As Judge George Wu pointed out in announcing his tenative decision, such a result is probably unconstitutional.  Terms of Service include an infinite variety of provisions — most of which have little bearing on criminal acts — and few web users ever read them.

Stripped of the emotionally charged facts regarding the fraud and suicide, Drew’s crime was nothing other than failing to submit “truthful and accurate” registration information when creating a MySpace profile.  She would have been no less liable for misstating her height.

Note that the acquittal will not take effect until Judge Wu issues a written decision.  Until then, keep an eye out for the flood of commentary that will no doubt arise regarding the issue.

9th Circuit extends CDA 230 to anti-spyware

The 9th Circuit’s exploits at the boundaries of CDA 230 immunity took an interesting turn yesterday, as the court extended CDA 230 to makers of anti-spyware and anti-malware software.  In its opinion in Zango v. Kaspersky, the court held that the same public policy rationales warranting protection for other Internet service providers apply just as strongly to anti-spyware makers.  Most importantly, society is better served by encourage software makers to develop new ways of combatting malware without fear of liability for their efforts.

Plaintiffs did raise one clever (if unavailing) argument:  Zango asserted that the disputed software served to override the computer user’s agreement to install the company’s software.  The court declined to dig into that claim, finding it preempted by CDA 230 immunity.

E-Commerce and Tech Law has an in-depth discussion of the 9th Circuit opinion.