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Liability for the Wrongful Acts of Publishers

University of Texas System ("System") and component institution ("University") employees are now creating, displaying, performing, distributing and in effect, publishing multimedia works. As our author/publishers proliferate, we must guard against infringement of the interests of third parties.

The Web makes it easier than ever to snip something from here, borrow an expression from there, download an image or sound, and incorporate these parts of others' works into a new work. It is also very easy to publish materials to which the author may not have given sufficient thought. As with email where writers sometimes hammer out a message and hit the "send" key before really taking a good look at what they are sending, publishing on the Web is so easy that it's possible to put things out there that really shouldn't be out there.

In most cases, the solution to these potential problems is just to be aware, to have a basic understanding of the rights of others, and to respect those rights. Since it would be impossible for a few people to review all materials and catch errors and make corrections, our long-term strategy must be to educate all potential publishers to these problems.

The focus of this article will be invasion of privacy and publicity, libel and copyright infringement since they are the most likely, though not the only problems.

Invasion of Privacy or Publicity

Disclosure of intimate and offensive material about someone, slight misrepresentations that place someone in a false light, or appropriation of someone's name or likeness (for example, unauthorized use of someone's photo) are all actionable. There may be constitutional limits on the privacy claims of public figures; constitutional considerations require greater public access to certain kinds of information concerning public figures and politicians. Courts implement this distinction by making public figures prove actual malice by the defendant in publishing the material.

Invasion of privacy is a state law claim. A publisher can be sued for such claims wherever its publications are distributed.

In Texas, invasion of privacy is an intentional tort with three distinct causes of action:

1. Intrusion into seclusion or solitude or into private affairs;
2. Public disclosure of embarrassing facts;
3. Appropriation, for commercial advantage, of a person's name or likeness.

Some states permit a fourth cause of action for publicity that places a person in a false light in the public eye. Some lower courts in Texas have recognized this claim, but the Texas Supreme Court has not. Thus, in Texas, this fourth tort is most often treated as a claim of defamation (see below - Libel).

The basic elements of intrusion into private affairs include:

1. Conduct in the nature of an intrusion;
2. The private nature of the thing or place intruded upon; and
3. Substantiality and highly offensive nature of the intrusion to a reasonable person. 1

In cases that address this invasion of privacy claim, publishing unauthorized photographs taken in a private place is a recognized intrusion into one's private affairs and if such intrusion causes emotional suffering, damages can be awarded. 2  

The basic elements of public disclosure of private facts include:

1. Publicity to a large number of people of matters concerning a person's private life;
2. Such publication would be highly offensive to a reasonable person of ordinary sensibilities; and
3. The matters publicized are not of public concern. 3

Spreading before the public in a highly offensive manner aspects of a person’s past history that he or she would rather forget is actionable as an invasion of privacy. 4 On the other hand, there is no liability for merely giving publicity to that which is already public. 5 Sexual relations are considered to be entirely private matters. 6 Other examples of acts that were found to be invasions of privacy include: the publication of an existing photograph that was stolen from its owner, and "bribing" someone who has access that the photographer was legitimately denied, to let the photographer take and publish a photograph. 7 

Examples of things that a court has agreed would be highly offensive if released to the public include details of injuries resulting from a sexual assault; a claim on behalf of illegitimate children for benefits following their father’s death; details of a pregnancy following failure of a contraceptive device; claims for psychiatric disorders stemming from work related injuries; injuries to sexual organs; injuries stemming from attempted suicide; and disability resulting from physical or mental abuse by co-workers. 8

In other jurisdictions, a picture of a woman nursing a child was found to be highly offensive and permission given to a doctor to film a caesarian operation was found to be exceeded when the doctor exhibited the film in a commercial theater making him liable for invading the patient’s privacy. 9 Revealing a person’s transexuality; identifying someone as a former convicted criminal; revealing intimate details of someone’s sex life; and revealing details of someone’s anatomy or body have all been found to be invasions of privacy. 10

Finally, if a private matter is nevertheless of public concern, a publisher will not be prevented from publishing it. This privilege is most often exercised in connection with publishing news. 11 Even there, however, private facts that are not necessary to the news story cannot be published without consequences. 12   This issue can only be considered in the context of each particular case, taking into account the nature of the information and the public's legitimate interest in its disclosure. 13 In general, the public has no interest in highly private facts about individuals. 14

The basic elements of a misappropriation claim include:

1. Appropriating a person's name or likeness for the value associated with it;
2. Identifying the plaintiff;
3. Reaping a benefit from the association.15

This claim usually involves famous or public persons, though not always. Most of the cases involve clear commercial uses -- uses in advertising or for-profit sales to consumers.

It is a defense to the claim that the information in question is in the public domain, since public figures cannot control the dissemination of publicly available information.

False Light/Defamation

The main differences between false light claims and defamation is that a false light claim need not damage reputation if it is otherwise "highly offensive" to a reasonable person; it must be published more widely than a defamatory statement; and the damages that are awarded are for subjective mental and emotional suffering and embarrassment rather than harm to reputation.

Although consent is an absolute defense to an action for invasion of privacy,16 it must be as broad as the action complained of to be effective. A consent that has been exceeded is not a defense. 17

Libel

Libel is the publication of a printing, writing, sign, picture or drawing that injures the reputation of another. It must be false in order for the plaintiff to recover.

The publisher of a defamatory statement is just as responsible for spreading a defamation as the actual author because publishers exercise editorial control over content and are considered to "know" what they have published. Bookstores and libraries, on the other hand, usually are not liable. Instead, as "secondary" publishers, they distribute the defamatory material but they do not have any knowledge of the material's contents.

Publishing on the Web is publishing. System will be held responsible for what is out there under its banner. It would be a mistake to think that libelous content is unlikely to appear in System materials. Recently I reviewed material that caused concern: The proposed publication included information for faculty members advising them of the benefits of using an on-campus facility. The material coupled the name of an off-campus facility that performs the same kind of function with several misstatements of fact about it and our relevant policy leaving a very unfavorable impression about going off-campus for the subject service. These problems were, however, easily remedied with more factually correct statements and deletion of any reference to actual entities.

There have only been a few cases involving online publishing. The early Prodigy case 18 held that when system operators exercise editorial control, they are liable to the same extent as print media publishers. In other words, they are more like a publisher than like a bookstore or library, for purposes of responsibility for defamatory statements published on a bulletin board moderated by an independent contractor. Once an online publisher undertakes the role of editor, he is liable for the consequences.

Fortunately for Internet service providers, the Communications Decency Act contains a provision (not among those that were challenged as unconstitutional) that overturned Prodigy. 19 The provision has been tested in court many times by persons suing America Online, among others. It appears to be an effective bar to litigation against Internet service providers who are not themselves the content providers.

Libel Checklist

The Office of General Counsel has developed a Checklist that should provide guidance for those System personnel who will review materials for publication on the Web (or other publication). Please use the Checklist to analyze materials for libelous content; if you still have questions after completing that process, please contact Georgia Harper for further suggestions.

Copyright Infringement

This is an area where System stands to incur tremendous liability for doing nothing. In the 1980's, it was generally thought that classroom copying and research copying were safely within the fair use exception of Section 107 of the Copyright Act, but the Kinko's and Texaco cases cast into doubt whether university copying activities actually came within the fair use exception. 20 Today, concerns about photo-copying are just the tip of the iceberg. More and more materials that used to be photocopied are now mounted on the Web for student access or for world-wide access.

System or its employees may be held liable for the infringing acts of  employees and others who place materials on computers we own either as a direct infringer or as a contributory infringer, or both.

Direct Infringement

When we are publishers ourselves, we incur liability for direct infringement. This kind of liability arises out of the use of Web servers to publish administrative and academic information. For example, administrative publication of policies, faculty publication of classroom reading materials, library publication of electronic reserve readings, and departmental publication of graduate student dissertations, theses and faculty preprints could all involve direct infringement of the copyrights of third parties. Additionally, individuals who publish materials for which the University may be contributorily liable as discussed below, may themselves be directly liable for copyright infringement.

Contributory Infringement

Contributory infringers are of two types, those who provide the means to infringe and those who participate.

Means to infringe involves providing equipment used to infringe and has traditionally been subject to the defense that the equipment might have substantial noninfringing uses, as the videotape machine was found to have in the Sony case (the case that determined that Sony could not be liable for contributory infringement because the primary infringement, taping television programs for personal use, was fair use).21 In the electronic environment, however, it may be very hard to rely on this defense if System employees place infringing materials on bulletin boards and Web servers that System makes available to the public. This has been likened to providing a copy machine with the infringing material already sitting there on the glass. Further, means to infringe liability does not depend on whether the employer knew of the infringement, making it easier to prove than participatory infringement.

Participatory infringers are those who, with knowledge of the infringement of third parties, induce, cause or materially contribute to such infringement. The cases seem to be evolving towards liability for system operators ("sysops") that is a mixture of direct infringement and participatory infringement.

Cases

Playboy v. Frena

In December of 1993, the U.S. District Court for the Middle District of Florida found that the sysop for the "Techs Warehouse" bulletin board was liable for the direct copyright infringement of Playboy's copyrights by distributing and displaying Playboy's images even though the sysop claimed he did not make copies himself. He supplied a product with infringing copies in it (infringing the distribution right) and the distribution resulted in infringing displays on the bulletin board's users' computers. 22

Sega Enterprises Ltd. v. Maphia

In early 1994, the U.S. District Court for the Northern District of California found that the Maphia Bulletin Board sysop directly infringed Sega's copyright in its games by permitting unauthorized copies of the games to be uploaded to and downloaded from a bulletin board. The Court further found that because the sysop had knowledge of the infringement and provided "facilities, direction, knowledge and encouragement" he was also liable for participatory infringement. 23

Frank Music v. CompuServe

Frank Music sued CompuServe over CompuServe's digital music library, which contains hundreds of user-supplied music files. The parties settled this lawsuit in November, 1995, shortly after President Clinton signed the Digital Performance Right in Sound Recordings Act of 1995 into law. 24

The press release included the following:

"In settling the dispute, CompuServe has made no admission of liability, and the parties have reserved all of their rights and defenses under the copyright laws. As part of the overall settlement, CompuServe will make a payment to HFA [the Harry Fox Agency], which will be divided (after deduction of litigation expenses) among the music publishers whose songs were involved in the case."

Despite the disclaimers, this resolution furthers the trend towards sysop liability for the infringements of system users.

Religious Technology Center v. Netcom On-Line Communication Services, Inc., No. C95-20091 RMW

Netcom On-Line Communication Services, Inc. ("Netcom") provides the computer facilities through which a bulletin board subscriber indirectly obtained access to the Internet. That subscriber posted copyrighted works belonging to Religious Technology Center, part of the Church of Scientology ("CoS"). CoS alleged that Netcom was liable for the infringement of the bulletin board subscriber because Netcom did not take action after it was told by CoS that the subscriber had posted messages through Netcom's system that violated CoS' copyrights.

It appears likely that CoS owns valid copyrights in published and unpublished works that were posted without permission and the poster's near-verbatim copying of substantial portions of those works was not likely a fair use. In an interim ruling on the case on November 21, 1995, Judge Whyte indicated that Netcom was not liable for direct infringement, but Netcom would be liable for contributory infringement if CoS proves at trial that Netcom knew about the infringement and did nothing. Nevertheless, the judge also noted that such contributory infringement, if found, could be a fair use. In fact, the court refused to issue an injunction against Netcom because he did not believe, as he would have to in order to issue such an injuction, that CoS was likely to win at trial. 25

Digital Millennium Copyright Act

Against this background of liability and potential liability for the acts of subscribers to its services, Internet service providers (ISP's) lobbied Congress for some relief and certainty as to the extent of service provider liability. Congress responded with Title II in the Digital Millennium Copyright Act (DMCA), which adds a new Section 512 to the Copyright Act limiting the liability of online service providers for infringing acts of their customers. 26

In the University environment, University liability is most likely to attach to actions of employees who post materials online as part of their jobs, and students who post class-related and personal materials. The DMCA ISP liability limitations would only apply to circumstances where we would not otherwise be likely liable under theories of direct, vicarious or contributory infringement. In other words, Title II protects ISPs from liability for the mere "carrying" of the materails that customers post, but when the service provider is the "poster" of the materials itself, Title II does not apply, except in a very narrow cirumstance. Complying with the DMCA explains Title II and what must be done to take advantage of its liability limitations.

Recommendations

In many ways System is similar to the sysops and ISPs who have been found liable or potentially liable for copyright infringement based on the actions of third parties using their systems: we make the Web, bulletin boards, discussion groups, listserves, email, and every other Internet protocol available to every employee in System; through our employees, we may place potentially infringing materials on the Internet every day; we provide instruction in and encourage the use of all these modalities. Additionally, we provide the computer hardware and software that could be used in infringing activities.

But System is different from them in some important ways: we are a nonprofit educational and research institution; we have a reasonable claim to fair use in many cases, and we have a copyright policy that can provide our employees the guidance they need to avoid infringing activities.

Nevertheless, System may face significant problems. Courts may disregard or de-emphasize the importance of a copyright policy that is not effectively deployed or that seems to be widely ignored. System probably has much work to do to make our policy more accessible and easier to understand. Most people need more information in order to form an accurate understanding of the scope of fair use; otherwise they may engage in infringing activities without really knowing it. Unfortunately for individual electronic publishers and for System, the copyright law does not let infringers off the hook if they don't know what the law is.

Electronic publishing tends to increase the likelihood of infringement because so many individuals will be potential publishers. Ultimately, prevention is the best policy and education and information are crucial to effective prevention. To that end the Office of General Counsel has established a Copyright Crash Course on the Web that provides information on these issues. For example, there is an article at the site about the permission issues involved in creating multimedia works that explains the various rights creators must be careful to respect (in addition to copyright, there are rights of privacy and publicity and concerns with defamation).

Upon receipt of a complaint that any material residing on a University server infringes copyright or other intellectual property rights or contains material inaccuracies, libelous materials or otherwise unlawful materials, the University must decide whether the complaint should be handled under the DMCA ISP liability limitations statute or whether another response is more appropriate. Complying with the DMCA explains this choice and the procedures for complying with the Act's requirements.

If another approach is warranted, immediately notify System's or the University’s legal department and begin to investigate the complaint. Investigation should always begin with notification of the author of or person responsible for the allegedly wrongful material and discussion of the options for responding to the complaint. Investigations may also include a request that the parties involved substantiate their claims. The investigator, in coordination with legal counsel, should make a good faith determination whether to remove the allegedly wrongful material and how to respond to the complaint.

In either case, a decision not to remove material should represent the investigator’s and the System's or University’s reasonable belief that the complaint is without sufficient foundation, or if well-founded, that a legal defense or exemption may apply, such as fair use in the case of copyright infringement or truthfulness of a statement in the case of libel. The investigator should carefully document the investigation and decision.

Footnotes:

1. Thomas v. Allsip, 836 S.W.2d 825 (Tex. App. Tyler 1992).

2. Boyles v. Kerr, 806 S.W.2d 255 (Tex. App.--Texarkana 1991) rev’d on other grounds, 855 S.W.2d 593 (Tex.1993).

3. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995), reh’g of cause overruled, (Mar. 7, 1996); Ind. Foundation, Etc. v. Texas Ind. Acc. Bd. 540 S.W.2d 668 (Tex. 1976).

4. Restatement 2d Torts, Section 652 D, comment b.

5. Ind. Foundation, Etc. v. Texas Ind. Acc. Bd., at 684.

6. Boyles v. Kerr, at 259.

7. Restatement 2d Torts, Section 652 D, comment b.

8. Ind. Foundation, Etc. v. Texas Ind. Acc. Bd., at 683.

9. Restatement 2d Torts, Section 652 D, comment c.

10. Diaz v. Oakland Tribune, Inc. (1^st Dist) 139 Cal App 3d 118; Briscoe v. Reader’s Digest Asso, 4 Cal 3d 529; National Bonding Agency v. Demeson (Tex. App.--Dallas) 648 S.W.2d 748; McCabe v. Village Voice, Inc. (ED Pa) 550 F. Supp. 525 (applying Pa. law).

11. McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901 (Tex. App.--Corpus Christi 1991), writ denied, (June 12, 1991).

12. Wavell v. Caller-Times Pub. Col, 809 S.W.2d 633 (Tex.App.--Corpus Christi 1991), writ denied, (Jan. 8, 1992) and reh’g of writ of error overruled, (Feb. 12, 1992), abrogated on other grounds by Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994); McNamara v. Freedom Newspapers, Inc. 802 S.W.2d 901 (Tex.App.--Corpus Christi 1991), writ denied, (June 12, 1991).

13. Ind. Foundation, Etc. v. Texas Ind. Acc. Bd., at 685.

14. Id.; Star-Telegram, Inc. v. Doe, at 915.

15.  Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994) (applying Texas law).

16. Farrington v. Sysco Food Services, Inc., 865 S.W.2d 247 (Tex. App. Houston 1^st Dist. 1993), writ denied, (Mar. 23, 1994).

17. Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. Eastland 1975), writ refused n.r.e., (July 23, 1975).

18. Stratton Oakmont, Inc. v. Prodigy Services Company, 1995 WL 323710 (N.Y.Sup. May 1995). 

19. 47 U.S.C. 230.

20. Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991). For discussion of the Kinko's case, see University Copy Centers: Do They Pass the Fair Use Test?  American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2nd Cir. 1994). For discussion of the Texaco case, see Professional Fair Use After Texaco: Second Circuit Affirms Lower Court Decision. Another coursepack decision Princeton University Press v. Michigan Document Services, Inc., 1996 WL 54741 (6th Cir. 1996) is discussed in Coursepacks and Fair Use After Michigan Document Services Case.

21. Sony Corp. v. Universal City Studios, Inc, 464 U.S. 417 (1984).

22. Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (M.D.Fla. 1993).

23. Sega Enterprises Ltd v. Maphia, 857 F. Supp. 679 (N.D.Cal.1994).

24. The full text of the Digital Performance Rights in Sound Recordings Act may be found on the Government Printing Office's Connection to Online Databases. In order to find this or any other public law, once you have accessed the database search tool that the above-linked reference will take you to, indicate that you want to search the Public Law database in the drop-down form box and enter the exact name of the Act you are seeking in the search term box.

25. Religious Technology Center v. Netcom On-Line Communication Services, Inc., No. C95-20091 RMW (N.D.Cal 1995).

26. 17 U.S.C. 512.