Fight WikiLeaks Case in Court, Not Cyberspace

By Jim Astrachan and Eric B. Easton

If WikiLeaks founder Julian Assange conspired with Bradley Manning to acquire and disseminate classified government documents, the United States should indict, extradite, and prosecute him.  But the United States government should not use extra-legal means to coerce or bribe American companies into withholding services from WikiLeaks.com as long as that organization’s First Amendment right to disseminate information remains an unresolved issue.

To be sure, we don’t know whether the government has pressured PayPal, Amazon, DNS.net, and others to sever ties with the rogue web site WikiLeaks.com after it began disseminating classified State Department cables.  The White House has refused to comment despite reporters’ requests to clarify widespread speculation.

We do know that, whatever prompted those Internet service companies to drop the controversial site, the United States government now has egg all over its face.  Not only did WikiLeaks activate dozens of mirror sites around the world, but other radical transparency advocates launched denial of service attacks on the American companies that couldn’t or wouldn’t take the heat.  And it didn’t take long for the mainstream media to dig up a recent speech by Secretary Clinton praising the Internet’s ability to  help people discover new facts and make governments more accountable.

But the matter of extra-legal coercion goes beyond its ineffectiveness or the government’s hypocrisy regarding the Internet.  Where First Amendment issues are involved, such conduct by the government is just plain wrong.

At this point, we do not know for sure whether WikiLeaks broke any U.S. laws, at least any that can survive constitutional scrutiny.  Attorney General Eric Holder has repeatedly said the Department of Justice had undertaken a major investigation, but no charges have been filed at this writing.  Allegations of sexual misconduct in Sweden by WikiLeaks’ Julian Assange and extradition proceedings in London have bought Mr. Holder some time, but sooner or later he will have to come up with specific charges.

The last time the Department of Justice tried to use the Espionage Act to prosecute a “middle-man” like Assange – the late AIPAC prosecution – the case blew up in their faces.  Receiving “stolen” property has long been held inapplicable to information, where the owner is not deprived of the property.  And copyright infringement analogies suggested by some are certainly inapposite where, as here, there is no copyright. 

Still, there may be a viable case against Assange.  Perhaps there is evidence that he solicited the information or provided the necessary software, or perhaps the laws protecting national security information do constitutionally reach disseminators like Assange.

If the government truly has a valid cause of action against WikiLeaks because it violated the law, or because the Nation’s security is at stake, it should pursue the case through the courts, not start a surreptitious cyberwar that it should not and probably cannot win.  Such tactics may be acceptable to frustrate Iran’s nuclear weapons program, but not to chill what must be described as protected speech until found otherwise.

If the government does take WikiLeaks to court, though, it must be mindful of the Pandora’s box it may open.  For example, some commentators have gone to great lengths to distinguish WikiLeaks from its mainstream outlets:  the Guardian, Der Speigel, and The New York Times.  Journalistically, they are very different.  These mainstream publications routinely exercise editorial judgment and, presumably, restraint.  Well established communication channels, not duress, can mitigate serious security leaks.

But the New York Times and WikiLeaks.com are exactly the same under First Amendment law as we know it.  When Daniel Ellsberg of Pentagon Papers fame was prosecuted under the Espionage Act, the government opted not to pursue the Times and The Washington Post.  But it might have, according to some of the separate  opinions of Supreme Court Justices, who collectively refused to enjoin publication. The Ellsberg prosecution was ultimately scrapped when the White House plumbers were discovered, and the Espionage Act dodged a modern First Amendment analysis.

In any event, the Supreme Court has repeatedly found that the press’s right to gather and publish information is the same as yours or mine or Julian Assange’s; the state cannot punish us for publishing the information unless we break the law to acquire it.  Does national security information stand on different ground?  We don’t know, but a successful prosecution of WikiLeaks.com for publishing national security information that it acquired legally could open the door to prosecuting the Times for publishing all the national security leaks it gets on a daily basis.  Our concept of a free press would surely be jeopardized.

Freedom of speech is one of our most sacred and important rights, particularly where that speech involves the press’s gathering and reporting news about governmental activities.  Should the government attempt to take WikiLeaks to court over these embarrassing, and even harmful, publications – at least without evidence of complicity in the leak – that right could be compromised.  Still, it is better to raise this issue in open court than to attack freedom of speech by the back door.


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This commentary ran in the December 27, 2010 issue of The Daily Record.

So Sue Me, Hon!

The recent revelation that Café Hon owns the trademark HON has stirred controversy among persons who think HON belongs to the residents of the City of Baltimore and should not, or cannot, be monopolized by one entity for its commercial gain.  What’s a “Hon”? And does Café Hon have the right to enforce its HON trademark?  Definitions of Hon abound because of its common and well-known usage.  The Lexicon of Bawlamarese (How to co-moon-icate wiff the natives), defines Hon as “The universal name…Like Sir, Ms. ..interchangeable with any name.”  My usual waitress at the Sip-n-Bite emporium of fine dining has been calling me Hon for six years.  She has no idea of my name, nor does she care.  We are all Hons to her, regardless of age or gender.

Wikipedia defines “honey” with a tip of its hat to Baltimore.  “…’Honeybun’ and the abbreviation ‘hon’ has become a term endearment in most of the English-speaking world…In…Baltimore, Maryland, [Hon] is used when addressing casual acquaintances or even strangers.”  A visitor to World Reference Forums opines that, “I am fond of terms of endearment and use them cheerfully.  I call most of my friends hon, honey, sweetie, dear, anything like that…”.  English-Test.net relates that “The short form of honey is hun, or sometimes it’s spelled hon.”
   
The Culture of Baltimore Wikipedia adds, “Between the 1950s and 1970s, it was common to see working class local women dressing in bright, printed dresses with outdated glasses and beehive hairdos…Hon (…an abbreviation of honey) was a common informal name for someone else.”

The hon culture predates Café Hon, the restaurant in Hampden that has obtained federal trademark registrations for CAFÉ HON and simply HON.  John Waters has extensively and with accuracy parodied Baltimore’s hon culture in movies like Pink Flamingo and Hairspray. Even the most cursory Internet search reveals that there are many, many other references to Hon and Hon with reference to Baltimore.  The Welcome to Baltimore, Hon! website celebrates all things Bawlamer, and dedicates its title to the Hon, indicating, perhaps, that there is no other word that best describes Baltimore. 

The owners of Café Hon have properly registered the marks CAFÉ HON for restaurant services.  Mention Café Hon to most Baltimoreans and that quirky restaurant in Hampden comes to mind to the exclusion of all other cafes.  That’s what trademarks are intended to do – they designate a single source of goods or services to consumers because they are distinctive.  But Café Hon has also registered the mark HON for use with retail stores, paper goods and the like.  My first objection to this registration is that the word is hardly distinctive, is generic and generic words can never serve as trademarks.  HON should not serve to describe the source of gift shops or paper napkins – it describes those ladies in bright glasses with out-of-date glasses and beehive hair does.  It describes that waitress at the Sip-n-Bit who plops down the pie and calls me “Hon” even though she doesn’t know me.  It describes the culture of Baltimore in one word and unlike apple and APPLE  computers, ivory and IVORY soap, or shell and SHELL petroleum, Hon belongs to all of us because it is a part of our culture and the city in which we live.  We use the term in so many ways, and so frequently, that it can never serve to designate a source of napkins.

HON should remain in the public domain where it was born, discovered and cleverly exploited by Café Hon.  Granting to Café Hon a monopoly over the word, even if used with stores and napkins, is the equivalent to removing the word from the public’s use, risking that each time a person uses the word, commercially, he or she would be improperly subjected to a claim of trademark infringement regardless of how the mark is used.  Evidencing that this is a real risk is the recent report that Café Hon “allowed” the Maryland Mass Transit Administration to use HON (not CAFÉ HON) on ads but insisted on creative control as if it was the owner of the word, which apparently it thinks it is.

The only way that a generic term can be elevated into trademark status – that is, it comes to mean the source of the goods – is through a radical change in how consumers perceive the use of the word.  Given how popular Hon is in this town, it is highly unlikely that, despite Café Hon’s efforts to the contrary, Hon will ever come to mean other than the universal name, the abbreviation for honey or a way to address casual acquaintances.

My second objection is that the HON mark is very weak.  If a trademark challenge occurs and a court is not inclined to find that Café Hon’s use of the HON mark is generic, it will still understand that all marks are not equal.  Some are strong and they enjoy the highest level of protection.  Some are weak and they receive little protection.  Strength is measured by consumer perception.  Weak marks are relatively unknown or very much like other marks, or words, already in use.  They exist in a crowded field.  A weak mark does not identify goods sold under the mark as emanating from a particular source.  The word HON is in the lexicon and as such it is in common and frequent usage.  It will be very difficult, if not impossible, for HON to achieve the status of strength that allows protection of it as a mark.
   
Finally, the use of HON to adorn napkins and shirts may be inconsistent with a trademark’s role as an identifier of source.  Instead this use of a word to enhance a product may be seen as functional and as a product in itself.  Trademark law might not protect such a use.
   
For the same reason that Ninth Circuit Justice Alex Kozinski quipped in his introduction to an opinion some years back, “ no one can tell me I can’t put a BAND-AID on a problem”, no one can tell me I can’t use HON in any fashion I please.  The word is not entitled to the grant of a monopoly or protection – not in this town, anyway.  As the bumper sticker reads: “So Sue Me, Hon”.

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This article ran in the December 20, 2010 issue of The Daily Record.

 

Dilution By Common English Words (Visa Int'l Service Ass'n v. JSL Corp., 610 F. 3d 1088 (9th Cir. 2010)

In late June 2010, the 9th Circuit Court of Appeals issued an opinion written by Chief Judge Kozinski affirming the trial courts' decision that a common English word, eVISA, could dilute the famous VISA credit card trademark.  eVisa was being used by appellant JSL for a multilingual education services.  JSL argued that its eVisa mark could not dilute the VISA trademark because visa is a common English word meaning a travel document that authorizes the bearer to enter a foreign country and as a result VISA's use of this common word could not be distinctive as is required under 15 U.S.C. §1125(c).

The Court disagreed with JSL but its opinion took pains to distinguish fanciful trademarks from those that are common English words for purposes of applying the dilution statute as follows:

When a trademark is also a word with a dictionary definition it may be difficult to show that the trademark holder's use of the word is sufficiently distinctive to deserve anti-dilution protection because such word is likely to be suggestive of an essential attribute of the trademarked goods.  Moreover, such a word may already be in use as a mark by third parties.

To be diluted the mark must be both famous and distinctive. A non-distinctive mark can not be diluted and it is likely that a common English word used as a trademark will not be considered distinctive if others have adapted that word, which is likely in the case of these common words.  Thus, if there are other uses of the mark, dilution by blurring is unlikely because the mark has not been associated with only one product and the new use of the mark is not likely to evoke in the minds of consumers an association with only one other product.

The Court held that although VISA, as used by the credit card giant, was a common dictionary word, its use of VISA was sufficiently distinctive "because it played only weakly off the dictionary meaning" of the term visa.  It also held that the significant factor is not whether the word is a common word, but instead whether the use of the word VISA by the credit card issuer was sufficiently unique to warrant trademark protection.  The Court explained "there are many camels but just one Camel [cigarette]; many tides, but just one Tide [detergent]...".

Although there is widespread use of the word visa for its common English meaning, e.g. Fred's Visa Service, JSL did not use visa for its common everyday meaning and as a result there were now two products in the market named VISA, the Court having disregarded the "e" as being meaningless to distinguish the two marks.

The Court patiently explained that trademark law will not prevent a person from using another's common word mark in its everyday, intended, manner, e.g. Joe's Apple Orchard; or Bob's Camel Farm.  Conferring anti-dilution rights to common English words used as such would deplete the inventory of available and useful words.

But JSL did not use Visa for its literal dictionary meaning, and VISA was found to be strong and distinctive.  As a result, eVisa diluted VISA by blurring and its use was enjoined because a consumer seeing eVisa was likely to associate it with VISA.

In summary, this is what the Court concluded:

• Common English words can dilute a famous and distinctive mark.
• Whether dilution exists is a question of fact, but summary judgment may be granted if no reasonable fact finder could fail to find a likelihood of dilution, as occurred here.
• Where the mark is in the dictionary as a word, it may be different to establish that the mark is sufficiently distinctive.  This is particularly true where there are other uses of the word as a mark.
• Use of another's mark for its dictionary meaning should not be enjoined, e.g. JSL's Visa Service. 

These practice pointers may help establish protectable rights in common English words:

• A common English word proposed to be used should be tested to determine if it is being used in its dictionary sense, or in an arbitrary sense.  If arbitrary, it may dilute another use if that use is famous and distinctive, e.g. Blackberry Farms v. Blackberry Motors.  If arbitrary and there are no other trademark uses of this word, it may be protectable or distinctive although it must also be famous.
• Look for other uses of the mark; it is more likely that the mark does not dilute if there are other trademark uses of the mark.
• Dilution does not require a finding that there is a likelihood of confusion.

LexisNexis Emerging Issues Analysis by Jim Astrachan

Bankrupt Licensor’s Rejection of Executory Contracts

Bankruptcy of a trademark licensor can be a very unwelcome event for its licensee.  In 1985 the Fourth Circuit Court of Appeals permitted a licensor of technology who had filed for bankruptcy under Chapter 11 to reject the licensee as being an executory contract.  That licensee lost all rights in the license and the licensed technology and was left with solely a monetary damage remedy against an already insolvent debtor.  Lubrizol Enterprises, Inc. v. Richmond Metal Finishers, Inc., 756 F 2d. 1043 (4th Cir. 1985). 
       
In the case of a financially troubled licensor, rejecting the license may well be in its best interest, for often the value of the licensed technology has grown, and the licensor may be able to relicense it for a higher price.  Sometimes, unfortunately for the licensee, this is due to its efforts. 

Interests convinced Congress that the ability of a technology licensor to reclaim the licensed property through rejection of the license in bankruptcy was unfair.  Congress passed legislation that would allow licensees to avoid this hardship in the future.  The Intellectual Property in Bankruptcy Act of 1988 was intended to allow licensees whose bankrupt licensors rejected their licenses to reclaim rights in the licenses. 11 U.S.C.A section 365(n).  The Act provides that the case of intellectual property, other than a trademark, trade name or service mark, a licensee of a bankrupt licensor can elect to retain its rights under the license for the duration of the license plus extensions and, in exchange, continue to pay royalties due under the license.  Unfortunately, numerous decisions have held, correctly, that the Act, while it covers all other forms of intellectual property, such as copyrights, trade secrets and patents, does not cover trademarks.  Gucci v. Sinatra, 126 F. 3d 380 (2nd Cir. 1998).  As authority for so holding, this court and others have simply reviewed the legislative history of the Act which provides, “the bill does not address the rejection of executory trademark, trade name or service mark licenses.”  Indeed, bankruptcy law does not even define a trademark, service mark or trade name as intellectual property.  11 U.S.C. §101 (35A).  This is a harsh result for the licensee of a trademark who might have built its entire business around the mark.  One court, however, has held that where trademark rights are melded with other intellectual property rights Section 356(n) may apply to trademarks.  In re: Matusalem, 158 B.R. 514 (Bankr. S.D. Fla. 1993).
       
The apparent purpose for excluding trademarks, service marks and trade names from the definition of intellectual property for purposes of Section 356(n) can be found in the Senate Report and heavily implicates the requirement that, to protect the consuming public, a licensor must be able to control the quality of the products or services associated with its licensed mark.  Congress determined that issues of quality control and supervision were well beyond the scope of this corrective legislation and would require extensive study before it could consider making trademarks subject to Section 356(n).  Apparently, this exclusion of trademarks has never been revisited by Congress.
       
Practice Tip:  There really is no way to avoid the exclusion of Section 356(n) when it comes to trademark licensing unless the license is truly not executory; most licenses are, however, as they require quality control and royalty payments.  However, there may be limited circumstances where licensing can be avoided through the use of a coexistence, or “live and let live” agreement by which the parties merely acknowledge the other’s rights without transferring rights via a license.

LexisNexis Emerging Issues Analysis by Jim Astrachan
 

Repugnant Foreign Judgments

I am between flights at Dallas-Ft. Worth Airport, sitting on a comfortable chair outside of Starbucks and thinking about an editorial that ran in the New York Times a few weeks earlier.  It seems that an author, resident in New York State, had authored a book accusing a Saudi sheik of financing terrorism.  The sheik sued the author in Great Britain for libel where it was reported only a few copies of her book were sold.  She failed to appear or defend and a default judgment was entered against her.

The author had no assets in Great Britain or Saudi Arabia so the sheik sought to enforce his judgment in New York under New York’s Uniform Foreign Money Judgment Recognition Act (UFMJRA) which provides, with a few exceptions, that foreign judgments are final, conclusive and enforceable in the country where rendered and are deemed conclusive between the parties and enforceable by United States Courts.  The Times was outraged because it believed that the author would have been able to assert First Amendment defenses had she been sued in the United States.

The Times’ editorial caught the eye of a long-time Maryland politician who felt that this “travel liable” liability should not be permitted in Maryland if the suit brought in the foreign jurisdiction was based on a cause of action that might be defended under the First Amendment.  Maryland, however, has also adopted the UFMJRA.

A recent New York case illustrates the complexity of the UFMJRA, and the need for it.  A website was sued in France for copyright infringement and “parasitism” by two French-based houses of couture – Féraud and Balmain.  The site had published photos of plaintiffs’ fashion shows without authorization.  The site, Viewfinder, was owned and run by the fashion photographer, Donald Ashby, who sells annual subscriptions for $999.  Ashby likens his website to an electronic version of a magazine that contains topics of interest to fashion industry persons.

Féraud and Balmain sued Viewfinder in the Tribunal de Grande Instance in Paris because the published photographs of plaintiffs’ fashion shows revealed the upcoming season’s designs to its subscribers. Viewfinder failed to respond to the suit and a default judgment was entered against it.

Viewfinder appealed the judgment to the Cour d’Appel de Paris, but inexplicably withdrew its appeal.  The plaintiffs filed in New York to enforce the final French judgments and an attachment order was issued.  That’s where this story begins.

Viewfinder filed with the New York court motions to dismiss, for summary judgment, and to vacate the attachment order, presenting a number of reasons why it should have its way.  The court held that enforcing the French judgment would be repugnant to the public policy of New York on the ground that doing so would violate Viewfinder’s First Amendment rights.  Specifically, the court held that the fashion show photos depicted by Viewfinder, a magazine, were of public events and that publication of the photos was a protected First Amendment activity.

The court’s decision was appealed.  UFMJRA makes clear that the first step in analyzing whether a judgment is unenforceable under the UFMJRA due to repugnance to public policy is to identity the cause of action on which the judgment is based.  Incredibly, the trial court had not done so, and the appellate court was left on its own to conclude that the essence of the cause of action on which the French judgment was based was the “complete or partial performance or reproduction made without consent of the author” of the reproduced or performed work.  The court then compared the French law on which the judgment was obtained to comparable United States copyright law and found them similar.  Under the laws of both countries, photographs are subject to copyright protection and the French court ruled that publication of the photos by Viewfinder infringed the rights of the plaintiffs.

There was no basis for the court of appeals to second guess the French court’s finding of unauthorized reproduction and found, for purposes of its review, that Viewfinder’s acts resulted in infringement.  Viewfinder, however, claimed that as an online “magazine” its actions were entitled to First Amendment protection and a finding of fair use.  The appellate court wasn’t buying it, however, and held:

The ‘public policy’ inquiry rarely results in refusal to enforce a judgment unless it is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense.

Laws that are antithetical to the First Amendment will create such a situation.  Foreign judgments that impinge on First Amendment rights will be found to be ‘repugnant’ to public policy.

A court’s failure to enforce a foreign judgment requires a complete analysis by the court.  Here, the district court agreed that Viewfinder was a magazine and concluded it had an absolute First Amendment defense to infringement, which was simply wrong.  This is because in the United States, First Amendment and IP rights co-exist.  Clearly, a magazine can infringe a third party’s copyright to a photo.

Thus, the proper inquiry for the district court would have been to ask whether the causes of action under French law for violations of IP rights conflicted with the rights a magazine might have, in these circumstances, via the First Amendment or the statutory defense of fair use – clearly rights that may lend themselves more to the defense of a liable charge than a garden variety charge of copyright infringement, although classification as a magazine might impact a finding that a fair use defense might have been available to it under U.S. law.

The process, then, requires two steps.  First, the court must indentify the protection afforded the accused under the United States Constitution or statute, and second, determine whether similar protections are available under the laws of the country the accused has been charged with violating.  In this case, a careful review of the fair use exceptions to infringement was warranted because for the most part, fair use deals with a person’s right to reproduce or perform work that it claims is protected under the First Amendment or by a statute that recognizes these rights.  The district court missed the mark when it concluded, without any analysis, that even if the designs were protectable under French law, U.S. law provides “as a matter of First Amendment necessity a ‘fair use’ exception for the publication of newsworthy matters.”  This is of course, blatantly and grossly untrue.  A protracted analysis was needed and never occurred.  Viewfinder was remanded for the development of a full record.

A remedy does exist in Maryland to prevent enforcement of a foreign judgment under certain circumstances, and likely will be an important defense to enforcement of a liable judgment against a news source.  Although it is not talismanic there is likely no sense in creating a new law to do the same thing that UFMJRA would do.  As Viewfinder will likely learn, it is best to be careful and respect the rights of others unless it is sure of its position.

I am leading an ExecSense webinar this Thursday, September 23rd at 5pm EST

“The Instant Impact of Visa International Service Association v. JSL Corporation (9th Cir. June 28, 2010) on the Application of Federal Anti-Dilution Law to Trademarks That Are Common English Words"

For more information and to register for the webinar visit: http://www.execsense.com/details.asp?id=1793

Anonymous Defamation By Internet

My buddy's call was a bundle of nerves. He's a medical doctor at one of the big institutions in town and he was on the receiving end of a nasty rating on a rate-the-doc type website. The kind that everyone has access to and can anonymously post a rating and comments.

I accessed the site while he was on the phone and found him by state and name. Wow! He wasn't kidding. There was a his name, address and affiliations and next to it was a "4 thumbs down" rating. The rater had described him as a "butcher whose incompetency knows no bowndrees [sic]." "Stay away from this doc, he's a killer," the posting warned.

I asked my friend if he had any idea of his protagonist's identity. "No clue," was the terse reply, "but I want you to learn who wrote this and sue the hell out of him or her and that damn website. I haven't even had a cross word with a patient in more than a decade." My buddy had a reputation for being a careful physician. He was always highly rated by his peers, and as an academic, he stayed on top of all new developments. I had no trouble believing that someone was out to get him for something unrelated to medicine.

I reminded him that he had recently finished building a vacation house, and during the process had fired a couple of contractors and refused to pay a landscaper for trees of poor quality. "Any one of them," I suggested, " could be seeking revenge through this website. After all, it is no secret that you are a physician, and it is easy enough to learn the identity of your employer."

"Okay, start the legal process. Get the name of the anonymous poster and sue him or her and the site for defamation."

My friend was beside himself when I responded that it was highly unlikely the site would voluntarily reveal the name of the poster, that it was not a given that he could force the site to do so, and worse, that the website was immune from defamation liability resulting from the posting. His words were not repeatable.

"Look friend," I told him, " The issue of anonymous posting on the Internet is not novel." As late as last year, the Maryland Court of Appeals crafted a standard that Maryland trial courts must apply to balance the First Amendment right to anonymous speech on the Internet with the opportunity of the subject of the speech, here, the doctor, to sue for defamation.

Internet anonymity has always been a part of the culture. From the beginning, chat room users have been permitted to use a screen name and are not required to use their real name. "The right to speak anonymously is protected by the First Amendment," I advised. In this regard, the Supreme Court has held that:

Anonymous pamphlets, leaflets, brochures and even books have played a role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names.

But calling my friend a "butcher" and a "killer" when he wasn't even a surgeon would hardly appear to reach the level of "great works of literature." "Clearly," I replied, "anonymity of speech is not absolute and may be limited by defamation considerations, as libelous utterances are not speech protected by the First Amendment." I explained that a libelous utterance is one that tends to expose a person to public scorn, hatred, contempt or ridicule and discourages others from having a decent opinion of the person or associating with him or her.

I told him I thought we could obtain from the website the identity of the writer if we sue and (1) undertake efforts to notify the poster that he or she is the subject of a subpoena or an application for an order of disclosure, and post a message of notification of the identity discovery request on the website; (2) do nothing until the poster has a reasonable opportunity to file and serve an opposition to our application; (3) identify and allege the exact statement the poster purportedly made which we assert is defamatory; and (4) be sure we have properly pled a prima facie case of defamation in our complaint.

"If," I said, "we do each of these the court will then balance the poster's right to remain anonymous against the strength of the prima facie case of defamation we have pled and the necessity of disclosure of the poster's identity so you can pursue your claim."

"Okay, what about the website? Why can't we sue it for defamation?" my bud asked. I had to explain that suing the website operator for defamation in this case would not be successful. This is because a website operator is immune from tort-like claims that do not involve infringement of intellectual property under the Communications Decency Act if the defamatory statements were provided by a person separate from the operator and the operator engaged in no editing. This is because immunity is granted by the Act to a prospective defendant who serves merely as an interactive computer service, as this rate-the-doc site appears to do. Courts generally apply a three part test to determine immunity under the Act: (1) Is the defendant a provider of interactive computer services; (2) are the postings at issue information provided by another information content provider; and (3) does the plaintiff's claim seek to treat the defendant as a publisher or speaker of third party content?

Clearly, the effort to reach the poster and correct the contents was going to be difficult, time consuming, expensive and uncertain. And in the end, it would be unlikely that any judgment awarded against the poster would be collected.

My friend was not pleased. "Tell it to your U.S. Representative," I replied.