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Truth in Technology Law

October 11th, 2006

I keep meaning to write something about my thoughts on North Korea… but I can’t seem to bring myself to do it. So here are a few words about something less important.

Two big developments to report in the world of internet joojoo. First, a Florida jury awarded a Florida women an $11 million defamation award against a Louisiana woman who posted mean things about her business online. This case is interesting for a couple of reasons. First, it’s a default judgment, which means the defendant never showed up in court to fight the claim. As a result, we have some jurisdictional issues here. The Florida courts do not, be default, have authority over those in Louisiana. You either have to file in Louisiana or opt for Federal Court. It is possible the defendant waved jurisdiction, but I assume for purposes here that she not an idiot.

Based the article all she did was post defamatory messages about the Florida women’s business in an online community. Are these acts sufficient to establish contacts with the forum state? Under the standard International Shoe test for jurisdiction, I’d have to say no. The defendant did not avail herself of the benefits of the forum state and it sure doesn’t conform to my notions of fair play.

Which brings me the reason the Florida women sued in the first place… she wanted to send a message. See, the defendant can’t pay the judgment. She couldn’t even pay a lawyer. The suit was brought to scare her, and others, away from the internet. But this sort of award should never have happened if there were equal parties in the proceeding. Yes, the message has been sent, and the message is wrong and damaging for communication on the internet. The ability to speak should not be limited to those who can afford lawyers.

Second big news: GooTube. But in less than a day after the announcement comes a flood of analysis saying Google is going to get its pants sued off. The theory goes that most (cough, cough) of the YouTube content is copyrighted. Let’s assume that’s true. Up until now, content holders have tolerated YouTube’s infringement because even if you sue and win, YouTube has shallow pockets… which means no actual award payment… which means no incentive to sue.

But now, cry the pundents (and Microsoft’s Ballmer), the holder of YouTube has cash. Lot’s of cash! So here come the lawyers. Which is probably true… lots of people will sue with hopes of reaching a settlement with the Google giant.

That being said, I don’t think Google will spend a dime on settlements with these content vultures. First, Google has shown a willingness to stand against copyright abuse with their book scanning project, the legality of which is something of intense debate. Second, and more importantly, a plain reading of the law shows Google isn’t infringing any copyrights. See, under the Digital Millennium Copyright Act, a service provider (such as YouTube) is not liable for infringement by its users provided it has a reasonable means for rights holders to take down the violating copy.

Now, maybe a Grokster style complaint can be won against Google… but the Grokster decision was based largely on the intent of the company. Essentially, the court felt Grokster was encouraging copyright violation in its business plan. YouTube is quite different and we’ve seen an explosion of user driven content flourish there. I don’t think Groskter sticks.

At this point, two days since the announcement, every single newspaper I read has run a story about the legal pitfalls for Google, so it’ll be interesting to see how this plays out in the courts, the public, and the market.

probonogeek Law, Technology

  1. ethan.john
    October 12th, 2006 at 00:11 | #1

    Google bought YouTube for 1.6 billion in stock. Their stock has gone up 4% as a result of the merger (and rumors thereof). They made money by purchasing YouTube.

    Given this piece of corporate brilliance, I don’t think you can assume that Google hasn’t thought through nearly every possible rammification, legal or otherwise, of this purchase. I’m willing to wager that they either have defenses prepared for the inevitable lawsuits, or they have money set aside to pay the man. Either way, they already know what they’re going to do. They probably knew months ago. Interesting, that.

  2. Anonymous
    October 12th, 2006 at 02:57 | #2
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