1st Circuit to decide who owns copyrights on Ripoff Report reviews

June 9, 2016

(Reuters) – In January 2012, an online reviewer named Christian Dupont posted a scathing comment at Ripoff Report about Boston lawyer Richard Goren, whose firm is called Small Justice. The post accused Goren, among many other scurrilous things, of defrauding elderly clients and filing baseless lawsuits to seize his clients’ assets. Goren, who says the allegations are “completely baseless and false,” sued Dupont for defamation in Massachusetts state court over the January post and a followup in February. Dupont never showed up, and Goren ended up with a judgment awarding him copyrights to the inflammatory posts.

That’s where the familiar story of the aggrieved target of a negative online review gets very interesting. Ripoff Reports has a policy of refusing to take down reviews (though it allows targets to pay a fee to have their complaints about negative reviews arbitrated). The site is, of course, protected by the Communications Decency Act provision that says Internet service providers are not broadly liable for user-generated posts. So in order to have the Dupont reviews deleted, Goren sued Ripoff Report’s parent company, Xcentric Ventures, in federal court in Boston, wielding the copyrights he obtained in the case against Dupont.

Xcentric, represented by Booth Sweet and Jaburg Wilk, countered that Goren had no control over Dupont’s posts because the reviewer granted Ripoff Report exclusive rights when he clicked the site’s user agreement button. In March 2015, U.S. District Judge Denise Casper agreed, granting summary judgment to Xcentric on Goren’s copyright claim. The judge acknowledged that Ripoff Report did not require users affirmatively to acknowledge the transfer of their copyrights to the site. She also found that there was no evidence Dupont read the fine print of the user agreement, which included the copyright transfer provision. She nevertheless held that as a reasonably prudent user, “DuPont transferred copyright ownership to Xcentric by means of an enforceable browsewrap agreement.”

In a later order, Judge Casper added that even if Dupont hadn’t granted exclusive rights to Ripoff Report, Xcentric was still entitled to summary judgment because in language next to the user agreement box he clicked, the site claimed irrevocable rights to control the published post. For good measure, the judge ended up ordering Goren to pay Xcentric’s legal fees for defending his failed copyright claim. He’s on the hook for nearly $200,000.

Goren’s appeal of the copyright holding to the 1st U.S. Circuit Court of Appeals poses some novel questions about the ownership of online reviews. As Eric Goldman, a law professor at Santa Clara University School of Law has written, Goren isn’t the first target of a negative review to attempt to use copyright law to get around the statutory protection for Internet publishers. But he seems to be the first to test the power of a copyright he obtained through a default judgment. Meanwhile, Xcentric’s appellate arguments about the validity of Ripoff Report’s user agreement offer the appellate court an opportunity to clarify the extent to which reviewers give up rights to their posts.

The most interesting development in the case is an amicus brief filed earlier this week by a formidable public interest triumvirate: the Electronic Frontier Foundation, Public Citizen and the Cyberlaw Clinic of Harvard’s Berkman Center for Internet and Society. (I first heard about the Goren case, and the amicus brief, from a post by Public Citizen’s Paul Alan Levy; EFF also published an insightful account of the issues.)

The public interest groups believe Goren and Ripoff Report are both wrong – and that arguments by both sides raise serious free speech concerns. Goren, the amicus brief argued, is clearly trying to use copyright law as a cloak for libel claims he cannot sustain because of the Communications Decency Act.

“He sought damages for injury to his reputation, and he obtained the copyright at issue not for the purpose of selling copies or otherwise profiting from the expression, but solely to get (the posts) removed from the Internet,” the brief said. “Achieving this objective was not a proper use of copyright law; Goren’s copyright claims were properly dismissed, not only because the transfer to Goren was invalid, but also because equity could not be invoked to remove the content and because his claims represent a misuse of copyright law.”

But the groups also contend Internet reviewers don’t surrender their rights when they click on an online publisher’s user agreement. Under Arizona law, which governs the Ripoff Report terms of service, such agreements are unconscionable and unenforceable, according to the brief. “Agreements such as the Xcentric Terms of Service are non-negotiated contracts of adhesion,” the brief said. “Terms of service provisions that strip authors of copyright ownership and give it to the platform have serious consequences for authors’ speech: it gives the platform the power to bar authors from repeating their speech elsewhere, such as on other platforms, and even to prevent them from making substantially similar postings that would infringe the copyright in the original post.”

Goren has asked for an extension to file his reply brief in the copyright appeal. Xcentric, meanwhile, wants expedited briefing in a separate but related appeal of a court order requiring Goren to post bond to challenge the award of legal fees to the site. Goren declined my email request for comment. Xcentric lawyers did not respond.

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