Law, Ethics, and Social Media: A Primer on Copyright Law, Fair Use, and Defamation in a Digital World

1. Law, Ethics, and Social Media:
A Primer on Copyright Law, Fair
Use, and Defamation
in a Digital World
Dr. Matt J. Duffy
Kennesaw State University

2. Mission Statement
• To give you practical information that can help
you make good decisions related to your
digital communications
Photo by Lougan Manzke

3. You can be sued for libel on…
• Twitter
• Facebook
• Pinterest
• Tumblr
• Youtube
• Anywhere anything is “disseminated”
–But know your rights

4. Defamation
• The US Supreme Court has said that “in the
context of defamation law, the rights of the
institutional media are no greater and no less
than those enjoyed by other individuals and
organizations engaged in the same
activities.”
Dun & Bradstreet, Inc. v.
Greenmoss Builders (1985)
Photo by Arbyreed

5. Obsidian Finance Group v. Crystal Cox
• And in January 2014, the courts official ruled
that bloggers are journalists
• Appeals court noted “with the advent of the
Internet and the decline of print and
broadcast media . . . the line between the
media and others who wish to comment on
political and social issues becomes far more
blurred.”

6. Defamation
• US defamation law is among world’s best
in protecting wide latitude for speech
NY Times vs. Sullivan, 1964
• Generally, 3 things needed to prove libel:
– Statement was false
– Statement was disseminated
– Statement caused injury
• So, just make sure what you’re
saying/publishing/blogging is true…
Photo by OZinOH

7. Public vs. Private figures
• In US, you’ll receive more defamation
protection if you’re talking about public figure
– Public official, someone who speaks about public
issues
– Good for public debate
– Fact errors OK as long as no “reckless disregard for
the truth.’
• But private figures receive more protection

8. What about opinions?
• In general opinions are more protected
• But, opinions stated as facts are not
Milkovich v. Lorain Journal Co., 1990
• “I think” or “I believe” better than no qualifier
• But, don’t fret too much…
Photo by A River Runs Through

9. Because lots of speech is protected
• Making a list of “Top 10 Dumbasses” was
ruled as protected speech in California
– Just an expression of contempt, not factual
meaning
• Parody is completely protected
– Hustler Magazine v. Falwell (1988)
• Public figures harder to libel than private
figures – should be open to more criticism
– NY Times vs. Sullivan

10. Specific examples (from EFF.org)
• Ruled as Libelous
– Charging someone with being a communist (in 1959)
– Calling an attorney a "crook"
– Describing a woman as a call girl
– Accusing a minister of unethical conduct
• Ruled as not-libelous:
– Calling a political foe a "thief" and "liar" in chance
encounter (because hyperbole in context)
– Calling a TV show participant a "local loser," "chicken
butt" and "big skank"
– Calling someone a "bitch" or a "son of a bitch"
– Changing product code name from "Carl Sagan" to
"Butt Head Astronomer”

11. Defamation
• Strong protections for republishing: Section
230 of Communications Decency Act provides
cover for “intermediaries” who republish
– Very strong protections for…
– Retweeting, Tumblr, Sharing on Facebook

12. Venting tweets?
• “Who said sleeping in a moldy apartment was
bad for you? Horizon Realty thinks it’s okay.”
– Illinois woman tweeted to 30 people
• Horizon sued for $50,000
• Local judge summarily dismissed case, so no
precedent

13. What about reviews?
• Va. contractor filed $750,000
defamation suit over YELP review
• Member comments: “My home was damaged the "work" had
to be re-accomplished; and Dietz tried to sue me for "monies
due for his "work." I won in summary judgement (meaning
that his case had no merit). Despite his claims, Dietz was/is
not licensed to perform work in the state of VA. Further, he
invoiced me for work not even performed and also sued me
for work not even performed … This is after filing my first ever
police report when I found my jewelry missing and Dietz was
the only one with a key. Bottom line do not put yourself
through this nightmare of a contractor.”
• Jury found both sides were defamers, awarded no damages
(2/2014)

14. Fair Comment and Criticism
• In 1903, the Cherry Sisters
performance was ridiculed
in Des Moines Leader
Newspaper
• “… the mouths of their
rancid features opened
like caverns and sounds
like the wailings of
damned souls issued
therefrom.” Source: Rootsweb

15. Fair Comment and Criticism
“A public performance may be discussed
with the fullest freedom, and may be
subject to hostile criticism…”
Cherry vs. Des Moines Leader (1903)
Iowa Supreme Court Ruling

16. Georgia Anti-SLAPP law
• Strategic Lawsuit
Against Public
Participation
• In brief, Georgia Statute
provides limited relief
for people sued while
discussing a public issue
• Allows libel lawsuits to
be summarily dismissed

17. Other lawsuits
• San Francisco man sued by chiropractor after
review accused biz of over-charging him.
Settled out of court.
• In Rahbar v. Batoon, Calif. courts sided with
reviewer who wrote of “most painful dentist
ever!” Dentist’s suit thrown out using anti-
SLAPP statute. Made to pay attorney fees for
defendant.

18. Which way will courts rule? Why?
• Woman complains on Yelp about terrible
service at restaurant. She never went there
but has a grudge against the manager.
• Local blogger writes scathing review of local
production of “Annie.” Says it was the “worst
production of ‘Annie’ ever put on stage.” Has
no formal training in theater.
• Tweeter says: “I think the DA is a liar.”
• Tweeter retweets above statement.

19. Copyright
• Copyright power granted in US Constitution
“promote the progress of science and the
useful arts.”
• “Copyright exists from the moment the work
is created.”
– But must register to sue for infringement
– Adding © helps

20. Copyright
• Important to society – must allow authors to
benefit from their work
• But, much of copyright law written in different
era
• Boundaries still being explored
• Some call for wholesale rewriting of law
• Worry that corporations are making
copyrights last too long, too burdensome
– “Mickey Mouse” copyright extension act of 1998

21. Artwork and copyright
• Not OK (ethically, probably legally) to just
Google images and put them on your website,
presentations
• Don’t know if they are protected by copyright
– Instead, try Flickr. Here’s how
– Search for “some rights reserved” photos
– Or free stock photography
• But, that said, …

22. Fair use and copyright
• Copyright law states that “fair use...for
purposes such as criticism, comment,
news reporting, teaching (including
multiple copies for classroom use),
scholarship, or research, is not an
infringement of copyright.”
• Copyrights shouldn’t be overprotected

23. Fair use guidelines
• Purpose and character of the use.
– Transformative more than just a copy
• Nature of the copyrighted work.
– Unpublished more protected
• Amount and substantiality of the portion
used.
– Copying nearly all of a work, or copying its "heart"
is less likely to be fair.
• Effect on the market or potential market.
– Most important factor. In short, did your
borrowing cost someone else money?

24. What else is allowed?
• Anything US government
makes is in public domain (not
protected by copyright)
• Facts are not copyrightable,
just ideas
–So you can copy facts from
another site, just not their
exact words and structure

25. What else is allowed?
• Creative Commons – “some rights
reserved”
– Generally allows for copying as long
credit given
• Publicity photos
– Generally not copyright
enforceable since original
intent was dissemination
• So, you know, don’t go
too crazy

26. Linking and scraping
• Linking: Always OK
• Scraping: Cutting and pasting someone
else’s copy on their website
– illegal violation of copyright
• Officially, sites like Pinterest are illegal
because you’re copying others photos
and putting them on your site. But…
• Don’t forget to watermark your images

27. • Publishers sued after profs put
sections of books in electronic
reserves for students
• GSU won 95% of lawsuit, big loss for
publishers
• Basically, court ruled that providing less than
10% of book fit within fair use standard
• Effect on market was big – publishers won few
instances where e-version available to buy
GSU digital reserve case

28. The End!
• Any questions?
• Presentation available at:
– www.mattjduffy.com
• Twitter: @mattjduffy
Matt J. Duffy
Georgia State