People who don't like what's said about them on the Internet can't bypass important protections for online speech by demanding the copyright to objectionable comments, EFF argues in a new amicus brief filed together with Public Citizen and Harvard's Cyberlaw Clinic. The underlying case, now before the United States Court of Appeals for the First Circuit, implicates key principles for online free speech and the rights of those who use online speech platforms.

The case arose from a posting on a gripe site called Ripoff Report that recites a litany of insults and complaints written by Christopher Dupont against Massachusetts lawyer Richard Goren. Goren sued for defamation, and Dupont never showed up to defend the suit, so the court issued a "default judgment" in favor of Goren.1

Here's where things get odd. As part of the default judgment, Goren asked for and received a court order purporting to transfer Dupont's ownership of his copyright in the post to Goren. Goren and his company Small Justice then sued Ripoff Report's parent company Xcentric for copyright infringement.

Why not simply sue Xcentric for defamation?

Under Section 230 of the Communications Decency Act, online platforms and website like Google, the New York Times, and Ripoff Report can't be sued for content uploaded by users. It's the law that allows for social media, comment sections, and hosting services; if a user breaks the law, the user is responsible, but the platform does not need to undertake the impossible task of policing speech.

That immunity from lawsuits, however, does not apply to copyright claims. A different safe harbor provision (Section 512 of the DMCA) could apply, but a platform needs to comply with takedown requests in order to qualify. That requirement is at odds with Xcentric's policy of not removing complaints that have been posted on the Ripoff Report site.

In our brief, we point out that it is a misuse of copyright to suppress speech with which one disagrees, and that it would defeat the intent of the CDA's safe harbor to permit what is actually a defamation claim to masquerade as a claim for copyright infringement. Besides, Goren doesn't actually own the copyright: Section 201(e) of the Copyright Act provides that an author cannot be unwillingly stripped of copyright ownership. The lower court order is ineffective and Dupont still owns the copyright in his post. Goren and Small Justice cannot sue because they don't in fact own the copyright.

The twist: Xcentric says it owns the copyright in user posts

Unfortunately, Xcentric's legal theories haven't all been good for users, either: Xcentric claimed that it, in fact, is the true owner of the copyright in content posted to its site, not the users. The argument was based on the fine print to which users "agree" when they post content, which says that Xcentric gains an "exclusive license" to the content. It is a quirk of copyright law that this exclusive license language is actually code for transferring ownership of the copyright.

We have long resisted the idea that companies can unilaterally strip users of important rights through surprising language hidden in clickthrough agreements that no one reads. State law provides several avenues for finding such terms unenforceable. Here, the Ripoff Report Terms of Service provided that they were governed by Arizona law, so we looked to three doctrines of Arizona law that protect customers on the receiving end of a non-negotiable contract: the doctrine of reasonable expectations, unconscionability, and the idea that contract terms may be void as contrary to clearly-established public policy considerations.

Under the doctrine of reasonable expectations, when parties reach "agreement" as to a form contract in a setting where customers aren't truly expected to sit and carefully analyze the terms, then terms that contravene their reasonable expectations are not enforceable. This doctrine fits online terms of service perfectly, and the copyright transfer concealed in the Ripoff Report Terms of Use certainly is surprising. A user who posts on Ripoff Report does not expect that they can be sued for copyright infringement if they repost their complaint elsewhere, for example. Our brief contains the full argument and the additional legal basis for rejecting enforcement of the copyright transfer in Ripoff Report's Terms of Service.

In contrast, users do clearly intend to give Xcentric permission to host the content, and understand that permission cannot be revoked. This is called an irrevocable, non-exclusive license, and in this case granting such a license to Xcentric advances the user's interest in censorship-resistant publishing on Ripoff Report and does not restrict their freedom to repost elsewhere. Therefore, even if Goren did obtain ownership of the copyright, Xcentric would not be liable because it has permission to host the content, and that permission cannot be retracted.

Final thoughts

Goren loses for three reasons: he doesn't own the copyright, Xcentric has irrevocable permission to host the content, and Goren's claim would be a misuse of copyright anyway.

Those who wish to censor will try to use whatever area of law has the weakest protections for free speech. We encourage the First Circuit and other courts to bolster speech protections in the copyright realm, to resist attempts to dress up other claims as copyright infringement in order to censor speech, and to look askance at clickthrough "contracts" that compromise users' freedom.

• 1. Goren's defamation claim against Dupont may well have merit. However, his tactics do not rely on having a meritorious claim and, if upheld against Xcentric, would undermine the safe harbor of CDA 230 and provide a roadmap for censorship.