This is a presentation made by media lawyer Robert Bertsche at a 2008 conference for New England newspapers. His topic: what news organizations need to know about the Digital Millennium Copyright Act (DMCA) and what they need to think about when setting reader comments policy. A video of his presentation can be found here: http://www.vimeo.com/4354424

1. Sponsored by: New England Press Association, New England Newspaper Association,
New England New Media Association, and Prince, Lobel, Glovsky & Tye LLP
Reader Comments on the Web:
A Collaborative Workshop
of Newspaper Editors and Media Lawyers
November 20, 2008
David Ardia
David Olson (Salem, MA)
Rob Bertsche
Jessica Kosowski (Attleboro)
T. Barton Carter
Damon Kiesow (Nashua)
Peter J. Caruso Sr.
Jim Bodor (Worcester)
Richard C. Gagliuso
Mary-Rose Papandrea
Joshua Benton

3. Reader Comments on the Web:
Whether, When, and How to Draw the Line
November 20, 2008
Robert A. Bertsche, Esq.
Chair, Media and Intellectual Property Practice
Prince, Lobel, Glovsky & Tye LLP

4. What the CDA doesn’t cover
• Your or your reporter’s content
• Headlines, categorization, editing that
changes meaning
• Infringement of copyright or trademark
– The CDA does not protect your newspaper from
potential liability for copyright infringement based
on a user’s theft of someone else’s original,
creative expression

5. Copyright infringement
• If reader/user posts copyrighted material
(text, music, photos, film, video, etc.) on your
site, will your newspaper be liable?
• Traditional copyright theory says “very
possibly, yes.”
• BUT there are ways to decrease or eliminate
your liability

6. Digital Millennium Copyright Act
(DMCA)
• 1998 federal law: “notice and takedown”
mechanism
• Safe harbor from claims for damages if you
promptly remove content upon receiving
notice of infringement
• Strict statutory formalities – including
designation of an agent with the Copyright
Office (see site) and adherence to deadlines

7. Example of DMCA Procedure
• Reader posts video to your site, or reprints part
of an article (with or without attribution)
• Copyright owner searches Web, finds her creative
work on your site (without her permission)
• Copyright owner sends letter to your site’s
“designated agent” (registered with Copyright
Office)
• Site must take down the video/text
“expeditiously”
…

8. Example of DMCA Procedure (2)
• Website tells poster that item has been removed
• Poster may send counter-notice to Website to
protest the take-down
• Website is required to forward counter-notice to
copyright owner
• Copyright owner has up to 14 business days to
file a lawsuit
• If no lawsuit filed, Website must put the video or
article back up

9. Limits on DMCA “Safe Harbor”
You may not qualify for safe harbor if you:
• Have actual knowledge of infringement, or are
aware of facts and circumstances that make
infringement apparent
• AND you receive financial benefit from infringing
activity AND have right and ability to control such
activity
– “Financial benefit” includes fees for access
– “Right and ability to control” may include use of a
monitoring program

10. Viacom v. YouTube
• YouTube site includes users’ video uploads of
copyrighted television programs and films
• YouTube takes down when provided notice, per
DMCA
• Viacom sues YouTube, seeking $1 billion damages
• YouTube claims safe harbor
• Viacom says no, because:
– Knowledge of infringing materials on site
– Financial benefit attributable to infringing works, and
right/ability to control

11. Takedown notice: good faith
Universal Music v. Lenz (go to video)
• Lenz posts video to YouTube of toddler son
dancing to Prince’s “Let’s Go Crazy”
• Universal sends takedown notice to
YouTube, alleging copyright infringement
• Lenz says song use is “fair use,” and Universal
knew it
• Lenz sues Universal, saying it violated DMCA
by materially misrepresenting its copyright

12. Trademark Infringement
• Not covered by DMCA
• You may be liable for trademark infringement
if consumer includes third-party trademarks
(logos, corporate names) in content posted on
your site
• Claims are rare: Requires a showing of
“likelihood of confusion” of endorsement or
affiliation
• Respond promptly to takedown notices!

13. Example of trademark infringement
• Blogger reports on sale of T-shirts making fun
of the “Best Buy” logo
• Best Buy claims copyright and trademark
infringement
• Blogger protests to Best Buy
• Best Buy apologizes!

14. The Broader Perspective:
Some questions to ponder
• What degree of control maythe newspaper
exercise over reader comments?
• What degree of control should the newspaper
exercise over reader comments?
• What are some possible techniques?
• What is best for your publication?

15. Is this a LEGAL question or an
EDITORIAL question?

16. Communications Decency Act of 1996
(CDA)
Section 230:
• “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.”
• “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.”

17. Why the CDA?
• Cubby v. CompuServe, Inc. (S.D.N.Y. 1991)
– CompuServe sued for republishing user’s comment
that a competing business is a “start-up scam”
– Question: Is Cubby liable as a “republisher”?
• Is Cubby a newspaper or a library?
– Court finds that Cubby is a mere distributor, with
no liability
• No role in creating content
• No opportunity to review content

18. • Stratton Oakmont, Inc. v. Prodigy Services Co.
(N.Y. Sup. Ct. 1995)
– Anonymous user of Prodigy’s “Money Talk”
bulletin board says a securities firm was a “cult of
brokers who either lie for a living or get fired.”
– Same result as Cubby?
– Court finds this case is different, because Prodigy
“held itself out to the public … as controlling the
content of its computer bulletin boards.”

19. The natural lesson to be drawn
from Cubby and Stratton-Oakmont?
• If you control content, you will be liable.
• So, the logic goes, you should not interfere
with user content in any way.
• That means those websites that try to “clean
up” user comments will risk liability; those
that let the filth remain, will not.
• “No good deed goes unpunished.”

20. It’s called the “Communications
Decency” Act for a reason
• Congress, worried about inappropriate
content on the Internet, steps in
• Purpose of CDA Sec. 230:
– To remove any requirement that website read,
monitor or approve all comments.
– To remove any disincentive to website’s deletion
of offensive or inappropriate comments.

21. The rules under the CDA
• You are not liable (in tort) for third-party
content on your site
– You ARE liable for your or your reporters’ content
on your site.
– Copyright and trademark are separate
questions, falling under DMCA
– You may delete comments, delete parts of
comments, refuse access to certain users

22. The grey areas under the CDA
• Liability for discriminatory job or housing ads?
– Probably only if you invite an unlawful response
(e.g., through a leading or multiple-choice question)
• When does “third-party content” become “your”
content
– If your editing changes the meaning of the post
• Conservative advice:
– As a general rule, don’t edit, except to remove obscenities when
appropriate
– Some (wrong) cases say you’re liable if your question
or format compels a defamatory response
• This is bad, bad, bad law and won’t be upheld.

23. Why monitor or edit if you don’t have to?
• Encourage constructive, quality dialogue
• Attract thoughtful contributions
• Newspaper’s role in the community
• “Brand” considerations: You are judged by the
company you keep.

24. Common Problems
• Defamation
• Personal attacks
• Obscenities
• Anonymous (unaccountable) speech
• Subpoenas for user identities
• Sock-puppetry
• False facts or advice (do these reflect on your paper?)
• Bullying, taunting, intimidation
• Criticism of your paper or reporter
• “Breaking news” on the website – good or bad?

25. How can your paper respond?
• Exercise control over the web comments
• Encourage and persuade, to achieve quality
dialogue
• Disassociate the paper from the comments
• Or some combination of the above…

26. Common Solutions: Control
• Moderation of posts
• User flagging of posts, leading to automatic
take-down
• User flagging of posts, leading to moderation
• Don’t permit posting in response to certain
content
• Moratoriums and cooling-off periods
• Community control?

27. Common Solutions: Persuasion
• User-friendly “rules of the road”
• Requirement of registration
• Bar anonymous comments?
• Rating of posts by users
– Ranking by rating?
• Print the best posts in the print newspaper

28. Common Solutions: Disassociation
• Physically separate the posts from the article
to which they respond
• Should you allow reporters to respond?
• Should you correct false statements?
• Should you permit anonymity?
• Suspend privileges of repeat offenders
– Difficult to do successfully unless you require
verification of user identities

29. Sponsored by: New England Press Association, New England Newspaper Association,
New England New Media Association, and Prince, Lobel, Glovsky & Tye LLP
Reader Comments on the Web:
A Collaborative Workshop
of Newspaper Editors and Media Lawyers
November 20, 2008
David Ardia
David Olson (Salem, MA)
Rob Bertsche
Jessica Kosowski (Attleboro)
T. Barton Carter
Damon Kiesow (Nashua)
Peter J. Caruso Sr.
Jim Bodor (Worcester)
Richard C. Gagliuso
Mary-Rose Papandrea
Joshua Benton