Category Archives: Free Speech

Team Kimberlin Post of the Day

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An important reason for the failure of all of the legal actions filled by Team Kimberlin during their campaign of lawfare was their gross misunderstanding of the law—as this Prevarication Du Jour from four years ago today reveals.

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The Cabin Boy™ has tweeted this—Cheddar201602281636ZThe Gentle Reader who has been following Schmalfeldt’s career of cyberfoolishness will not be surprised to find that the Cabin Boy™ is wrong. Here’s the EFF’s take on the Communications Decency Act—

Section 230 says 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). In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content.

—CDA 230: The Most Important Law Protecting Internet Speech

Here’s what the General Counsel of Automattic, the company that owns WordPress.Com has to say about the value of 47 U.S.C. § 230’s protection afforded to publishers of third-party speech on the Internet—

I think to the extent that it protects speech, you can’t get much more expansive. I think the concept of no third-party liability is good.

You can find that and more concerning WordPress and the Communications Decency act here.

Here’s what the Seventh Circuit Court of Appeals thinks—

What §230(c)(1) says is that an online information system must not “be treated as the publisher or speaker of any information provided by” someone else.

—Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist, 519 F.3d 666, 671 (7th Cir. 2008).

No, the EFF and WordPress.com agree with me. So do lots of federal courts, including the Seventh Circuit Court of Appeals (Wisconsin is in the Seventh Circuit). Of course, the Cabin Boy’s™ misunderstanding of the Communications Decency Act has been pointed out to him before, but he continues to insist that his interpretation overrides the case law. It’s that sort of pigheadedness that will make his loss in LOLsuit VI: The Undiscovered Krendler so expensive.

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BTW, I originally considered titling that post as a Legal LULZ Du Jour, but on second thought it seemed that after so many losses that even Schmalfeldt would understand the protection § 230 offers and that he was now simply lying.

Copyright Trolling

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The time I would have spent drafting a post for today was spent doing research to support a fellow blogger who is being threatened with a lawsuit by a copyright troll. Almost seven years ago, the blogger linked to a story at a major newspaper’s website, including a photo from the story. Years later, the photographer is trying to extort money out of the blogger for use of the image.

First of all, such a link is most likely an example of Fair Use.

Even if it weren’t, research indicates that the photographer may have failed to timely file for registration of the copyright on the image. IANAL, but it’s my understanding that such  a defective registration means that the copyright holder is only entitled to the actual damages he suffered. Statutory damages are off the table. Indeed, I believe that a reasonable argument can be made that the blogger’s linking to the newspaper’s article created additional traffic to the story and enhanced the value of the photo. Thus, the photographer received a benefit from the link rather than suffering any damage. His case is nonsense.

Copyright trolls need to be dealt with swiftly and firmly.