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A New Retail Twist On Copyright Defenses

July 24th, 2013

This is similar to problems many retailers face with entities like Yelp, Angie’s List, or other consumer rating services. It is almost impossible to get bad reviews removed, even if the reviews are false and defamatory. The Ripoff report is worse because, at least according to the lawsuit, the Corporate Advocacy Program is little more than an extortion attempt. At least that’s what they claim.

But the Ripoff Report is protected by the CDA and has immunity. So what does Attorney Goren do when the report posts information that he “routinely seizes assets from the elderly” and “routinely perjures himself to State authorities” and “has serious problems coping with his own sexuality, .. violent temper,… [and] addiction to illicit substances…”? The person posting these materials went by the handle “Arabiannights” and, of course, couldn’t be reached by Goren. But the Ripoff report refused, under the CDA, to remove the offending materials. The trick? Turn the offending materials into a copyright infringement.

What Goren apparently did was to sue “Arabiannights” in a “John Doe” lawsuit, and seek as a remedy assignment to the copyright of the “Goren has problems coping with his sexuality” posting. Of course, Arabiannights never showed up in court, and Goren gets a default judgment against him (or her.) Then, armed with the copyright in the offending posting, Goren sues under the DMCA to get Arabiannights to remove the offending materials as a copyright infringement. Guess what else? No need to prove actual damages or harm to reputation. It gets you into federal court, too. And, if you register the copyright, you can get statutory damages. The miracles of copyright law and copyright lobbyists.

There is no guarantee that the strategy will be successful. Ripoff Report could argue that Arabiannights assigned all or part of the copyright to them when he or she posted it, and therefore Goren obtained the copyright subject to the express or implied license. But you gotta give them credit for trying. In fact, suing in state court to get “assignment” of a copyright is not only novel, but may violate federal law.

Federal copyright law, 17 USC 201(e) essentially says that “no action by any governmental body … purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title.” What that means is that the state court’s seizing of the poster’s copyrighted defamatory posting probably was ineffective, and so when Goren asserts

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that he is the “owner” of the copyright (for the purposes of the DMCA) he is probably committing perjury. Add that to the list of things on the Ripoff Report.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.


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