New Hampshire Supreme Court, Banaian v. Bascom, Docket No. 2020-0496

Internet Law

 

Tweeter

 

Defamation

 

Republishing Someone Else’s Content

 

Immunity?

 

Communications Decency Act, 47 U.S.C. § 230(c)(1) (2018) (CDA)

 

 

(…) Given that Congress declared that “‘no provider or user of an interactive computer service shall be treated as a publisher or speaker,’” the court found no basis “for concluding that Congress intended to treat service providers and users differently,” and that “the statute confers immunity on both.”

 

(…) Section 230 of the CDA abrogates the common law of defamation as applied to individual users.

 

 

 

 

The sole issue on appeal is whether the defendants, who retweeted a defamatory tweet (the retweeter defendants) initiated by another individual, are “users” within the meaning of the Communications Decency Act, 47 U.S.C. § 230(c)(1) (2018) (CDA), and therefore entitled to immunity from the plaintiff’s claims for defamation and reckless infliction of emotional distress.

 

 

(…) The retweeter defendants retweeted the original tweet. As a result, the plaintiff was subject to “school-wide ridicule,” was unable to work for approximately six months, and suffered financial, emotional, physical, and reputational harm.

 

 

The plaintiff sued a number of defendants for defamation and reckless infliction of emotional distress. These retweeter defendants moved to dismiss, arguing that the plaintiff’s claims against them were barred by section 230(c) of the CDA. The trial court agreed, determining that the retweeters’ actions of simply “clicking the. . . ‘retweet’ icon and republishing someone else’s content,” were shielded by section 230. Accordingly, the trial court dismissed the plaintiff’s case against these retweeter defendants.

 

 

The CDA provides in pertinent part that “no 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.”  47 U.S.C. § 230(c)(1). An “interactive computer service” is “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet.” 47 U.S.C. § 230(f)(2) (2018). An “information content provider” is “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.” 47 U.S.C. § 230(f)(3) (2018). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with” section 230. 47 U.S.C. § 230(e)(3) (2018). The statute sets forth findings and a statement of policy. See 47 U.S.C. § 230(a) & (b) (2018). Congress recognized the Internet as a “forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity, ”and that the “Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.” Id. § 230(a)(3)-(4). The stated policy of the United States includes the promotion of “the continued development of the Internet and other interactive computer services and other interactive media” and the preservation of “the vibrant and competitive free market” for such services, “unfettered by Federal or State regulation, ”as well as the encouragement of “the development of technologies which maximize user control over what information is received by individuals.” Id. §230(b)(1)-(3). Separated into its elements, section 230(c)(1) “only protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a State law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” Teatotaller, LLC v. Facebook, Inc., 173 N.H. 442, 450 (2020) (quotation omitted); see Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007). “Section 230 of the CDA provides broad immunity to entities that facilitate the speech of others on the Internet.” Teatotaller, LLC, 173 N.H. at 448 (quotation and ellipsis omitted); see Bennett v. Google, LLC, 882 F.3d 1163, 1166 (D.C.Cir.2018) (explaining that the intent of the CDA is “to promote rather than chill internet speech”). “There has been near-universal agreement that section 230 should not be construed grudgingly, but rather should be given broad construction.” Teatotaller, LLC, 173 N.H. at 449 (quotations omitted). The trial court found, and the plaintiff does not dispute, that Twitter falls within the definition of an “interactive computer service.” Twitter is a social media platform that “enables users to publish short messages to the general public called ‘tweets,’ to republish or respond to others’ tweets, and to interact with other users.” Campbell v. Reisch, 367 F. Supp. 3d 987, 989 (W.D. Mo. 2019). “A user ‘Retweets’ a Tweet when he or she elects to publish the original Tweet in full on his or her Twitter profile. A Retweet shows the original Tweet in full, including attribution to the person who initially published the Tweet.” McNeil v. Biaggi Productions, LLC, No. 3:15cv751, 2017 WL 2625069 at *3 n.13 (E.D. Va. June 16, 2017).

 

 

The meaning of “user” in the first element of section 230(c)(1) is the sole issue in this appeal.

 

 

(…) The trial court “recognized that the vast majority of the reported cases that address whether a defendant is immune from suit under Section 230 involve internet service providers. . . , and not individual users. ”Nonetheless, cases that have addressed this issue have determined that the broad immunity in the statute extends to individual users. For example, in Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006), an individual who posted a copy of an article she had received via email on two newsgroup websites was sued for republishing defamatory information.  Barrett, 146 P.3d at 514.  The California Supreme Court addressed what “appeared to be the first published case in which section 230 immunity had been invoked by an individual who had no supervisory role in the operation of the Internet site where allegedly defamatory material appeared, and who thus was clearly not a provider of an ‘interactive computer service’ under the broad definition provided in the CDA.” Id. at 515. Employing “standard rules of statutory construction,” the court looked to the ordinary meaning of the word “user” to discern “legislative purpose. ”Id. at 526. In doing so, the court determined that the term “‘user’ plainly refers to someone who uses something, and the statutory context makes it clear that Congress simply meant someone who uses an interactive computer service.” Id. As the court reasoned, Section 230(c)(1) refers directly to the “user of an interactive computer service.” Section 230(f)(2) defines “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet.” Section 230(a)(2) notes that such services “offer users a great degree of control over the information that they receive,” and section 230(b)(3) expresses Congress’s intent “to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.” Thus, Congress consistently referred to “users” of interactive computer services, specifically including “individuals” in section 230(b)(3). Id. (ellipsis omitted). Given that Congress declared that “‘no provider or user of an interactive computer service shall be treated as a publisher or speaker,’” the court found no basis “for concluding that Congress intended to treat service providers and users differently,” and that “the statute confers immunity on both.” Id. at 527. Thus, the court concluded, “Congress employed the term ‘user’ to refer simply to anyone using an interactive computer service,” id. at 515, and held that section 230(c)(1) immunizes such individual users, id. at 513.

 

 

Subsequently, the United States District Court for the Eastern District of Virginia, noting that the CDA does not contain a definition of “user,” turned to the plain meaning of the word. Directory Assistants, Inc. v. Supermedia, LLC, 884 F. Supp. 2d 446, 452 (E.D. Va. 2012). Citing the dictionary definition of “user” as “someone who uses,” and the verb “to use” as “putting into action or service; avail oneself of; carry out a purpose or actions by means of; utilize,” the court reasoned that the defendants’ “action of compiling information from a website and e-mailing that information to others clearly constitutes use of that website and its services.” Id. There was no allegation that the defendants “engaged in the traditional role of a publisher of content by soliciting the posts, creating them, or altering them,” or that the defendants “actually wrote, created, or developed the allegedly defamatory content.” Id. at 453. Rather, the defendants were “downstream users of content created by other people and posted” on the websites at issue. Id. The court determined that “there is no authority in the statute or case law that makes a user responsible for the creation or development of posts on a website that is an interactive computer service” and that “in enacting the CDA, Congress prohibited courts from entertaining claims that would place both a computer service provider and user in a publisher’s role. ”Id. Accordingly, the court found that “a person who creates or develops unlawful content may be held liable, but . . . a user of an interactive computer service who finds and forwards via e-mail that content posted online in an interactive computer service by others is immune from liability.” Id. at 451.

 

 

Despite the plaintiff’s assertion to the contrary, we conclude that it is evident that section 230 of the CDA abrogates the common law of defamation as applied to individual users. The CDA provides that “no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).  We agree with the trial court that the statute’s plain language confers immunity from suit upon users and that “Congress chose to immunize all users who repost the content of others.” That individual users are immunized from claims of defamation for retweeting content that they did not create is evident from the statutory language. See Zeran v. America Online, Inc., 129 F.3d 327, 334 (4th Cir. 1997) (explaining that the language of section 230 makes “plain that Congress’ desire to promote unfettered speech on the Internet must supersede conflicting common law causes of action”).

 

 

We hold that the retweeter defendants are “users of an interactive computer service” under section 230(c)(1) of the CDA, and thus the plaintiff’s claims against them are barred. See 47 U.S.C. § 230(e)(3). Accordingly, we uphold the trial court’s granting of the motions to dismiss because the facts pled in the plaintiff’s complaint do not constitute a basis for legal relief.

 

 

 

 

(New Hampshire Supreme Court, May 11, 2022, Banaian v. Bascom, Docket No. 2020-0496)

U.S. Court of Appeals for the Fifth Circuit, Bell v. Eagle Mountain Saginaw Independent School District, Docket No. 21-10504

Copyright Infringement

Tweets

Fair Use

Effect on Licensing

Tweets: A Fair Use of Copyright That Bars This Suit?

Attorney’s Fees in a Copyright Action

« Win One for the Gipper »

 

 

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20-CV-1157

 

Just as famous as some great upsets in sports history are the motivational speeches that inspired them. Knute Rockne, in a speech immortalized in film by a future President, asked his Notre Dame players at halftime to “win one for the Gipper.” They did just that, rallying to beat an undefeated Army. See Knute Rockne: All American (Warner Bros. 1940). Herb Brooks convinced a group of American college players that for one night they could be “the greatest hockey team in the world.” They were, defeating the mighty Soviets in the Miracle on Ice. See Miracle (Walt Disney Pictures 2004).

 

Technology now allows inspirational messages to be conveyed not only in the locker room but also on social media. The softball team and flag corps at a public high school outside Fort Worth used their Twitter accounts to post a motivational passage from sports psychologist Keith Bell’s book, Winning Isn’t Normal.

 

We do not know if the tweets motivated the students to perform at a higher level. We do know that the tweets resulted in Bell’s suing the school district for copyright infringement. We must decide if the tweets were a fair use of the copyright that bars this suit.

 

In 1982, Bell published Winning Isn’t Normal, a 72-page book that provides strategies for success in athletics. Bell continues to market and sell Winning Isn’t Normal through online retailers and his personal website, where he also offers merchandise, including t-shirts and posters that display the passage that was quoted in the tweets.

 

That passage, which Bell calls the WIN Passage, is separately copyrighted. Bell offers licenses for its use. The passage reads:

(…)

 

(…) The leading treatise on fair use observes that “increasingly, courts have considered fair use on a Rule 12(b)(6) motion to dismiss for failure to state a claim.” William F. Patry, PATRY ON FAIR USE § 7:5 & n.10 (2017) (citing more than 25 cases that have evaluated fair use at the Rule 12 stage).

 

(…) Our question, then, is whether a successful fair-use defense appears on the face of Bell’s complaint.

 

(…)

Congress codified the fair-use doctrine in the Copyright Act of 1976 and listed four factors that courts should consider when applying it:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

 

The four factors are not exclusive. Harper & Row, 471 U.S. at 560. “All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 578. A fair-use defense can succeed even if one or more factors favor the claimant. See id.; Compaq Comput. Corp. v. Ergonome Inc., 387 F.3d 403, 409–10 (5th Cir. 2004). Courts typically give particular attention to factors one and four (the purpose and market effect of the use). See Monge v. Maya Mags., Inc., 688 F.3d 1164, 1171 (9th Cir. 2012); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. Pa. L. Rev. 549, 584 (2008) (finding that “the outcomes of factors one and four very strongly correlated with the test outcome” in a survey of caselaw). But, ultimately, courts have “almost complete discretion in determining whether any given factor is present in any particular case” and whether the totality favors fair use. See Melville B. Nimmer & David Nimmer, 4 Nimmer on Copyright § 13.05(A)(4) (Matthew Bender rev. ed. 2021).

 

The first factor considers “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. §107(1). This involves a few considerations. The first and most obvious is commerciality—“whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” See Harper & Row, 471 U.S. at 562. The second is whether the user acted in good faith. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1204 (2021); NXIVM Corp. v. Ross Inst., 364 F.3d 471, 478 (2d Cir. 2004). The third is whether the use is “transformative,” meaning it “adds something new” to the copyrighted work. Google, 141 S. Ct. at 1203. The school district does not assert that its use was transformative but argues the other inquiries tip the first factor in its favor. We agree.

First, the school’s use was noncommercial. (…)

(The school district did not, for example, charge others to access the WIN Passage, cf. Elvis Presley Enters. v. Passport Video, 349 F.3d 622, 628 (9th Cir. 2003), or pawn the work off as its own, Triangle Publ’ns, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1176 (5th Cir. 1980). Nor did it reproduce a substantial portion of Winning Isn’t Normal to save its students the cost of purchasing the book. Cf. Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2010). (Fn. 1)).

 

The school’s good faith adds another point to the scorecard. See Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 23 (1st Cir. 2000). Good faith does not excuse infringement. See id. Nevertheless, because “fair use presupposes good faith and fair dealing,” the propriety of the defendant’s conduct does factor into “the equitable balance of a fair use determination.” Fisher, 794 F.2d at 432 (quoting Harper & Row, 105 S. Ct. at 2232). The school posted the WIN Passage in quotes and credited Bell as the author. See Nunez, 235 F.3d at 23. Bell discovered the posts soon after but waited nearly a year before telling the school he disapproved of them. Once he did, the school immediately removed the posts and responded that the incident was “a teachable moment” it would be sure not to repeat. We do not see anything in the school’s conduct “sufficiently blameworthy” to weigh against fair use. See id.

 

(…) The pleadings, however, also indicate that the WIN Passage was freely accessible before the softball team and flag corps posted it. The WIN Passage appears in images that Bell posts online. Indeed, the complaint suggests that Bell merely took issue with the post because it “was not the generally circulated version.” If an infringing use “enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that the entire work is reproduced . . . does not have its ordinary effect of militating against a finding of fair use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449–50 (1984). The school quoted a small excerpt from Winning Isn’t Normal, which was already freely available to the public. As a result, the third factor is neutral.

 

The fourth factor examines “the effect of the use” on the market for and value of the copyrighted work. 17 U.S.C. § 107(4). We consider actual market harm but, more broadly, whether widespread use of the work in the same infringing fashion “would result in a substantially adverse impact on the potential market” for the original work and any derivatives. Campbell, 510 U.S. at 590; see also Compaq, 387 F.3d at 410. “This last factor is undoubtedly the single most important element of fair use.” Harper & Row, 471 U.S. at 566.

 

Bell does not allege that he actually lost any revenue due to the school’s use of the passage. Instead, his complaint contends that widespread use of the WIN Passage on social media could reduce “the incentive to purchase Winning Isn’t Normal or related merchandise.”

 

We do not see a plausible economic rationale to support Bell’s assertion that widespread tweeting of the WIN passage would undermine the value of his copyright. See Twombly, 550 U.S. at 566–68 (considering market realities in evaluating whether a claim is plausible). The tweets do not reproduce such a substantial portion of Winning Isn’t Normal “as to make available a significantly competing substitute” for the original work. See Author’s Guild, 804 F.3d at 223. If anything, the properly attributed quotation of a short passage from Winning Isn’t Normal might bolster interest in the book; it is free advertising. See Narell v. Freeman, 872 F.2d 907, 914 (9th Cir. 1989). The same is true for merchandise. An online post is not a market substitute for a coffee mug. Viral sharing of the WIN Passage on Twitter might enhance the notoriety and appeal of Bell’s work, thereby increasing the incentive to purchase products displaying it. The opposite inference does not make sense: How would online references to the WIN Passage reduce the market for merchandise displaying it?

 

(The school district asserts that Bell carries the burden on this factor because its use was not commercial. Although some courts once interpreted Sony as creating a presumption of de minimis harm for nonprofit uses, see e.g., Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1385–86 (6th Cir. 1996), the Supreme Court has since clarified that no such presumption exists, see Patry § 6:4 (“The burden of proving the defense always remains on the party asserting it.”); Campbell, 510 U.S. at 584–85; Harper & Row, 471 U.S. at 566–69. (Fn. 4).

 

Bell also alleges that the tweets might impact his ability to license similar uses of the WIN Passage. But we cannot recognize a “theoretical market for licensing the very use at bar.” Swatch Group Mgmt. Servs., Ltd. v. Bloomberg L.P., 756 F.3d 73, 91 (2d Cir. 2014) (quoting 4 NIMMER ON COPYRIGHT § 13.05(A)(4)). To weigh any possible effect on licensing, we must first find it plausible that there is a “traditional, reasonable, or likely to be developed market” for licensing the kind of use at issue. See Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 930 (2d Cir. 1994); see also Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1276 (11th Cir. 2014) (finding that the availability of licenses for the plaintiff’s copyrighted work “is not determinative” of a potential market for licensing the defendant’s use). Bell says he offers licenses for the WIN Passage. Yet despite being embroiled in litigation for years, Bell is unable to allege that anyone has ever purchased a license before posting the WIN Passage on social media—much less a public school district, which has no commercial interest in its online presence. Even in his brief, Bell’s only authority that “such a market exists” is his own “filing of at least 26 copyright infringement lawsuits” and obtaining settlements “from at least 90 different alleged infringers.” Bell’s aggressive efforts to litigate, no matter how successful, are not indicative of a “traditional” or “reasonable” market for his work. See Hofheinz v. AMC Prods., Inc., 147 F. Supp. 2d 127, 141 (E.D.N.Y. 2001) (explaining alleged infringers “are likely to seek a license to avoid entering the murky realm of fair use law during the course of litigation”). Absent any plausible allegation that public schools would willingly pay to tweet the WIN Passage, Bell’s licensing concerns “are purely speculative.” See Narell, 872 F.2d at 914.

 

Bell has failed to plausibly allege a “substantially adverse impact” on a legitimate market for his copyrighted work. The fourth factor thus weighs in favor of fair use.

 

Time to tally up the scorecard. The first and fourth fair-use factors favor the school district, the second narrowly favors Bell, and the third is neutral. In both their number and importance, the statutory factors show that the school’s tweets were fair use. This conclusion comports with the “ultimate test of fair use”: whether copyright law’s goal of promoting creativity would be better served by allowing the use than preventing it. Castle Rock Ent., Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 141 (2d Cir. 1998).

 

Bell also challenges the district court’s award of attorney’s fees. We review this ruling only for abuse of discretion. See Hunn v. Dan Wilson Homes, Inc., 789 F.3d 573, 588 (5th Cir. 2015).

 

“Attorney’s fees to the prevailing party in a copyright action is the rule rather than the exception and should be awarded routinely.” Virgin Records Am., Inc. v. Thompson, 512 F.3d 724, 726 (5th Cir. 2008) (quotation omitted). Still, “recovery of attorney’s fees is not automatic.” Id. It is a matter of the district court’s discretion. Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994). Relevant factors include: “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Id. at 539 n.19 (quotation omitted).

 

The district court did not abuse its discretion by following the normal rule. Bell is not the typical copyright plaintiff seeking “a fair return for his creative labor.” See Twentieth Cent. Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). He has a long history of suing public institutions and nonprofit organizations over de minimis uses of his work. Taking these cases into account, the district court reasonably concluded that Bell is a serial litigant, who makes exorbitant demands for damages in hopes of extracting disproportionate settlements. This case is another in the line. The school shared a single page of Bell’s work with fewer than 1,000 online followers and immediately removed the posts upon request. Bell was unable to identify any actual financial injury associated with that use but brought suit anyway. Attorney’s fees were thus an appropriate deterrent, both with respect to Bell and other copyright holders who might consider a similar business model of litigation. See id. at 618.

 

 

 

Secondary sources: William F. Patry, PATRY ON FAIR USE § 7:5 & n.10 (2017); Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. Pa. L. Rev. 549, 584 (2008); Melville B. Nimmer & David Nimmer, 4 Nimmer on Copyright § 13.05(A)(4) (Matthew Bender rev. ed. 2021).

 

 

 

(U.S. Court of Appeals for the Fifth Circuit, Feb. 25, 2022, Bell v. Eagle Mountain Saginaw Independent School District, Docket No. 21-10504)