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Autoadmit Lawsuit:

The two women law students who were generally badmouthed and insulted by pseudonymous commenters on the AutoAdmit Web site have sued. They've sued Anthony Ciolli, who helped found and manage AutoAdmit, and they've sued the pseudonymous commenters. The claims are copyright infringement (based on someone's apparent copying of some photographs of Doe I to which the copyright was owned by Doe I), appropriation of name and likeness, disclosure of private facts, false light invasion of privacy, and intentional and negligent infliction of emotional distress. The suit seeks compensatory and punitive damages, "permanent removal of the message threads from the AutoAdmit Site," "authorization to Google permanently to remove the cached message threads," and costs.

A few thoughts:

1. Ciolli's liability: If Ciolli is being sued solely because of his operation of the AutoAdmit thread — as opposed to any posts he himself might have made — then he should be immune under 47 U.S.C. § 230, which generally immunizes people from liability for online speech by other people (such as the pseudonymous commenters here). Section 230 doesn't apply to copyright liability, but even if there was a copyright-infringing photograph posted to AutoAdmit, I quite doubt that there'd be material damages. Only actual damages, an injunction, and court costs are available unless the photograph was registered within three months of its original posting, which I expect it wasn't. (AutoAdmit might also have some 17 U.S.C. § 512 protections, but only if satisfied section 512's agent identity notification requirements, which I doubt.)

2. Permanent removal of message threads: Many (but not all) jurisdictions allow injunctions in libel cases, after a finding on the merits that the speech is libelous. The same might be true of injunctions against speech that is found to fit within another First Amendment exception (such as a threats exception, or an intentional infliction of emotional distress exception, if there is one). But nearly all courts that have considered the issue have held that 47 U.S.C. § 230 preempts injunctions against online speakers based on speech of other parties, as well as damages. So I see no basis here for an injunction against Ciolli as AutoAdmit's operator, except perhaps as to removal of the infringing photograph, if it is indeed on AutoAdmit's site. (Of course, it's possible that Ciolli will give in on this score because of public pressure, because of fear of liability, or because of worry about the expense and burden of litigation; on the other hand, his § 230 defense is strong enough, and the case interesting enough, that I imagine he would be able to prevail either by himself or with some pro bono help.)

UPDATE: I had assumed that Ciolli still had some legal power over what comments stay on the AutoAdmit site, since otherwise this demand would have been pointless. If, as some correspondents have suggested, Ciolli no longer has this power, then the demand to permanently remove the message threads is especially out of place -- it can't work (even setting aside the 47 U.S.C. § 230 problem) unless the complaint is amended to join AutoAdmit or its operators as parties.

3. Authorization to Google permanently to remove the cached message threads: This is just odd; Google needs no such authorization — it can remove whatever it pleases from its cache. Perhaps there's some Google policy under which Google removes material only following a finding that the material is libelous, or perhaps plaintiffs think such a finding would in any event persuade Google to remove the material. But they can't seek such "authorization" as a remedy; there is no legal doctrine under which the court can grant such authorization, and there is no legal need for such authorization.

4. Liability of the pseudonymous posters — libel / false light: Some of the statements mentioned in the complaint may well be libelous, for instance the ones that accuse plaintiff of having herpes, and of being sexually promiscuous (assuming the statements are false, which I expect they are), or at least false plus highly offensive (which in these circumstances would suffice for a false light claim). They are on matters of private concern and about a private figure, so the defendants would be liable for actual, presumed, and punitive damages.

Defendants' only defense would be that in context a reasonable reader wouldn't understand the statement as a factual claim, but just a loose insult that lacks factual content (much as "motherfucker" may be insulting because of the connection to its literal factual meaning, but is almost always used as a pure insult and not a factual claim). That's a not implausible defense, but far from a sure winner.

5. Liability of the pseudonymous posters — other causes of action: Some of the statements mentioned in the complaint may also be actionable as intentional infliction of emotional distress, because they do seem pretty outrageous when made in a publicly accessible medium. (I doubt the other causes of action are particularly strong, but the distress one might be.) Does the First Amendment preempt such claims?

Some of the statements may be interpreted as threats of rape and the like; if they are interpreted this way, again as opposed to loose hyperbole (see Watts v. U.S. for the leading hyperbole case, though one that arose in a political context), they may be constitutionally unprotected, and there would be no bar to tort liability for them. Most of the statements, though, are just general nastiness; and it's not clear whether crude, personally insulting speech on matters of private concern about a private figure is constitutionally protected against intentional infliction of emotional distress liability.

I think it should be protected, because the emotional distress tort is in my view unconstitutionally vague as applied to otherwise protected speech (even nasty speech on matters of private concern), and because I'm generally skeptical about the courts' ability to reliably draw the public/private concern line (see PDF pages 46-52 of my Freedom of Speech and Intellectual Property). But a few courts have allowed liability without finding First Amendment problems, as in the radio station "Ugliest Bride" contest case, Esposito-Hilder v. SFX Broadcasting Inc., 665 N.Y.S.2d 697 (App.Div.1997). And of course this is the sort of case where liability seems especially apt, and especially harmless when one just looks at the particular speech involved here. The case for First Amendment protection would have to be made based on the concerns about the long-term consequences of a new "private-concern speech inflicting emotional distress" exception to First Amendment protection.

6. Disclosure of the pseudonymous posters' identities: But I think the real punitive remedy that plaintiffs may get is disclosure of at least some of the pseudonymous posters' identities, given that plaintiffs have at least plausible tort claims that should suffice to justify discovery of defendants' identities. I'm not sure whether this is primarily what plaintiffs want — but it will be much cheaper to get, since it could be gotten just using some subpoenas plus amendment of the complaint to reveal the true defendants, with no need for a trial or for anything else. (Of course, if the identities can't technically be gotten, because the site's logs are incomplete, because the posters adequately cloaked their identities, or for some other technical reason, then no remedy, social or legal, would be available.)

The posters' actions are pretty disgusting and unprofessional; they violate codes of basic decency endorsed by most of society, left, center, and right. If their identities are disclosed, they are likely to lose their jobs (or job offers), lose friends, and be set back for many years and by many hundreds of thousands of dollars in their careers.

Ciolli himself apparently lost a job over all this, even though his asserted sin was simply providing a largely unrestricted forum. We can debate the ethics of providing such forums, and declining to delete trash posts like these ones. But even if what he did reflects some lack of professional or other ethics, what the posters did reflects a far worse ethical standard. If Ciolli got some professional flak, the posters would likely get far more.

In any case, that's my main thinking. I'll also post a little shortly about a possible risk to one of the plaintiffs should the case go to trial (which is unlikely) — a risk that illustrates one of the many difficulties that libel plaintiffs face.

JB:
This is an interesting question: To what extent do we have a right to anonymity? If the anonymous statements were, say, political dissent and the discovery was for the purpose of punishing them for that dissent, I should hope sympathies would be on the other side. But as a matter of law it would seem to me to be the same.

(I also don't think the online nature matters. Near where I live there's a wall where graffiti artists can legally spraypaint. If one of them waited until a deserted time, then anonymously spraypainted vicious libel/political dissent, that seems to me to be an analogous act, although the methods for de-anonymizing them would be necessarily different.)
6.13.2007 1:48am
EarlofBrandeis (mail):
Whatever the outcome of this case happens to be, one thing is for certain...there should be definite consequences and accountability for those who thrash/stalk/defame the professional reputation of private persons. We're not talking about a disgruntled employee talking shit about his employer/boss nor are we talking about political dissent against an unpopular executive branch. What the law school students at auto admit accomplish with their cowardly, anonymous insults was basically commit rape in the virtual world. There should be consequences for this crime and self-congratulatory law students enrolled at allegedly prestigious law schools ought to know better.
6.13.2007 2:09am
Paco McDooby:
One important thing to note about Autoadmit/Xoxo and the copyright claim is that the site does not post pictures on threads. The pictures presumably being referred to in the complaint were hosted on a completely different site initially started (IIRC) by "Paulie Walnuts."
6.13.2007 2:12am
Ak:
Yes, posting cowardly, anonymous insults is exactly like "rape in the virtual world". Except for the part with the actual rape, I mean. You win the ridiculous hyperbole of the day award and it's only 1:24AM.

I am curious as to what the standard of evidence is for proving who made these comments. Let's say a couple law students live together in an apartment and share an internet connection. Is the guy whose name the bill is in screwed no matter what? Or do they need more evidence than "an internet account paid for by X made these posts"?
6.13.2007 2:25am
guest:

I'll also post a little shortly about a possible risk to one of the plaintiffs should the case go to trial (which is unlikely) — a risk that illustrates one of the many difficulties that libel plaintiffs face.


Although this may not be the risk you have in mind, I presume that many people in the plaintiffs' situation would be extremely hesitant to make the truth or falsity of the matters asserted (here, the plaintiffs' sexual promiscuity) a subject of legitimate discovery, which -- unless I misunderstand how discovery operates in a libel suit -- would happen if the case goes to trial.
6.13.2007 2:38am
EarlofBrandeis (mail):
Ak said:
You win the ridiculous hyperbole of the day award [...]

Ok, I'll bite, troll. If you don't think that strangers following you around taking your picture, noting the dates/times/places of your activities, uploading the images to a website and then inviting others to do the same who then, in turn, post their own nasty little versions and then proceed to denigrate you amounts to a kind of virtual rape, then how about you give me your real name so I can do the same to you? Just a wild ass guess here that it would be an *entirely* different story, eh?
6.13.2007 3:00am
Bob W (mail):
I agree that the content is offensive, but some of the statements in the complaint are very likely not actionable. Some simply indicate what she was wearing in the gym or that the poster would like to have sex with her (but in more explicit terms). It seems like that type of thing is constitutionally protected.
6.13.2007 3:27am
RealityCheck:
"If you don't think that strangers following you around taking your picture, noting the dates/times/places of your activities, uploading the images to a website and then inviting others to do the same who then, in turn, post their own nasty little versions"

Except that nothing you just decribed actually happened
6.13.2007 3:29am
Eugene Volokh (www):
EarlofBrandeis: I'm puzzled by your argument. Naturally people wouldn't want you to do the things you describe to them. But people also wouldn't want you to torture their cats, or accuse them of terrorism in an e-mail to the FBI, or a million other things. That means those things are bad, offensive, harmful, call it what you will. But it doesn't make them "virtual rape," no?

To rebut Ak's argument, you'd have to explain why the action you're describing is sufficiently like rape, not just that it's something bad that people shouldn't do and that people don't want done to them.
6.13.2007 3:33am
David M. Nieporent (www):
Eugene: in terms of her possible claim for injunctive relief, it's not even clear to what extent Ciolli is affiliated with the site any more (he publicly resigned his position with the site, but he may have some ownership in it; I don't know), so I don't know that the plaintiffs could get an order to remove the postings. And they didn't sue Ciolli's partner, Jarret Cohen, and they didn't sue the site itself (if it is any sort of business entity.)

I really don't see any basis in their suit for naming Ciolli. It's not well drafted; it doesn't identify any causes of action against him individually, but only against "defendants" collectively. If I'm him, I've got my MTD already drafted.

As for the authorization to Google, what I think it means (generously interpreting the complaint as drafted) is that Google will only remove a cached site if the operators of said site themselves make the request. So the Does want the court to order the operators of Autoadmit to ask Google to de-cache the site. That's just a guess -- and as I noted, I'm not even sure whether Ciolli is still sufficiently affiliated with the site to make such a request.
6.13.2007 4:16am
Brian K (mail):

To rebut Ak's argument, you'd have to explain why the action you're describing is sufficiently like rape, not just that it's something bad that people shouldn't do and that people don't want done to them.

I suppose it can be called a form of "emotional rape" depending on how badly the language affected the Doe's...but even I think that's a bit of a stretch and I'm prone to hyperbole.
6.13.2007 5:02am
Erasmus (mail):
Why did the posters start verbally attacking this particular woman? And how did they find out who she really is?
6.13.2007 6:56am
Grant Gould (mail):
But I think the real punitive remedy that plaintiffs may get is disclosure of at least some of the pseudonymous posters' identities, given that plaintiffs have at least plausible tort claims that should suffice to justify discovery of defendants' identities.

There's something a bit wrong when the major remedy in this case is the one thing that the plaintiffs don't need to prove their case in order to get. Even if plaintiffs lose, if they got as far as discovery then they won on the big issue at stake.
6.13.2007 7:15am
jim bob:
"That's a not implausible defense"

Come one, now. For someone who wrote a book teaching law students how to write, this is just poor. Why not just say "plausible defense"?
6.13.2007 8:01am
c.f.w. (mail):
Key practical question - can the defendant get defense under a general liability policy? If he was a homeowner, it should be simple. If his parents had a broad policy covering dependent kids, and he was a dependent, there might be coverage. If there is no insurance, time to settle?
6.13.2007 10:02am
buffpilot (mail):
I have one point about how this problem is going in the future. Very soon it will be possible to not only google for a person’s name, but you will be able to search for a persons face (i.e. google search for all pictures of someone on the net given you have a picture of the person now). This, coupled with digital cameras everywhere - including very good ones in small packages, will make your privacy almost impossible. Ever had a picture taken of you with your top off on the beach (even though your breasts were covered)? Drunk at a party? In a picture where someone else in the picture is doing drugs? Shower in public facility? Fell asleep naked with the boyfriend 10 years ago who took a picture of you, now you’re running for Mayor?

Everything on the net is potentially searchable and they will find you and people will make judgments based on what you did on spring break 15 years ago. These women would have no case if they got caught in a revealing position, drunk, on spring break - ever see the commercials for Girls Gone Wild? For most they will never be affected, but come into the public eye 15 years later and I am 100% certain those old photos and videos will surface.

You may have a right to privacy (?) but effectively you won't be able to enforce it. It's a new world out there.
Not trying to be a troll. :)
6.13.2007 10:12am
Dan Weber:
I am curious as to what the standard of evidence is for proving who made these comments. Let's say a couple law students live together in an apartment and share an internet connection.


There's ususally scads of evidence indicating which person was regularly using the account. You can try to fight it if you want to, but it quickly becomes hard to deny without perjuring yourself.
6.13.2007 10:49am
Justin (mail):
I'll say that the actions here of Edwards Angell Palmer &Dodge here, though not as offensive as the actions of the anaonymous commenters, are unfortunate. Ciolli did nothing wrong - and he's shown a creativity and understanding of business that bodes well for his future career.
6.13.2007 10:56am
SmallMoney:
Two comments:

First, the professors and the schools that hired them should be ashamed at the really poorly drafted complaint. Many of the COAs are weak, and the use of the copyright claim as an attempt at keeping the matter in federal court is a joke.

This complaint should be Exhibit A in the case against (many) professors as good lawyers. There is a clear difference between being able to pump out scholarly articles and draft a complaint. Hilarity ensued around my workplace as we read through that complaint.

Second, I doubt this complaint was ever drafted with the intent of pursuing this matter to trial or even discovery. Rather, I think Doe I and Doe II will be just as happy when these clowns are outted...
6.13.2007 11:04am
Steve:
Ciolli did nothing wrong - and he's shown a creativity and understanding of business that bodes well for his future career.

Nothing wrong? He knew full well what sorts of nasty comments were being posted at the site. As the Law Blog recounts, he voluntarily defended it as a "free, uninhibited exchange of ideas." Only when he was confronted with the potential loss of a job did he start arguing that gosh, he was offended by many of the comments and it was his partner who had operational control and refused to take them down.

He'll have plenty of opportunities, I'm sure. But the firm has its own reputation to protect. Choosing to stand by the offensive language posted on the site was a poor business decision by Ciolli.
6.13.2007 11:12am
ATRGeek:
On Point #4, if you spend a couple minutes reading the unfiltered version of XOXO, it becomes pretty clear what the context is like, and I personally think it would be hard to claim that anyone would take the factual claims in question seriously.

Although I guess I can see how XOXO might be a victim of its own strange history and composition. As an outgrowth of the old Princeton Review discussion board, it continued to contain many serious (and not-so-serious) "on topic" discussions about law schools, law admissions, legal employment, and so on. There were also serious or semi-serious political and public policy debates (and sometimes pop culture discussions, automotive discussions, and so on). The line between those "on topic" and general interest discussions and the personal/offensive stuff was far from clear, particularly when a topic like affirmative action was being discussed.

So, retreating from my original claim, maybe the context of posts at XOXO will not be so clear, at least not to anyone without a sense of the history of the board.
6.13.2007 11:18am
Too_Funny:
The poor little girls Paris Hilton themselves around a prestigious law school instead of, you know, studying, flaunt whatever physical attributes they were lucky enough to be born with or acquire through surgery, insult the half of their class with condescension and snobbery, insult the other half with bitchiness and attitude, then go screaming and crying to daddy warbucks when some of the people they spent years denigrading call them on their inadequacies and laugh at their failures.

What could these little primadonnas who have no business being at YLS expect for their behavior? I think they got off lucky, though truth be told, I am still waiting for some home video to pop up online.
6.13.2007 11:44am
gvibes (mail):
Eugene - The plaintiff doesn't need to prove actual damages for copyright infringement. Statutory damages (750-30,000 per work) are also available.
6.13.2007 11:50am
ATRGeek:
One other thought: I can also see how google might allow one to bypass a lot of the context at XOXO and go straight to the offensive content. I guess that raises an interesting issue of what counts as context on the internet.
6.13.2007 11:56am
Bruce Hayden (mail) (www):
Eugene - The plaintiff doesn't need to prove actual damages for copyright infringement. Statutory damages (750-30,000 per work) are also available.
Well, maybe. EV addressed this with:
Only actual damages, an injunction, and court costs are available unless the photograph was registered within three months of its original posting, which I expect it wasn't.
6.13.2007 12:06pm
Bruce Hayden (mail) (www):
Maybe I should be a little more explicit in regards to my last comment. Eugene pointed out that statutory damages and attorneys' fees are unlikely because of the registration requirement.

17 U.S.C. § 504 provides for damages. § 504(c) provides for statutory damages, and § 504(d) for enhanced damages. 17 U.S.C. § 505 provides for costs and attorneys' fees. And, if one stopped there, gvibes would be right. However, you also have to look at 17 U.S.C. § 412 which provides that attorneys' fees and statutory damages are not available if:
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
Note that the work has to be registered anyway before suit can be filed (technically, but some courts seem to allow a slightly later registration), so ultimately we should find out when the works were registered.

The reason that this is somewhat backwards is that it is really a result of the U.S. joining the Berne Convention. In the past, notice and registration were required for copyright protection. But Berne is mostly predicated on not requiring formalities. These are remedies, and therefore absence of these formalities can be limited for U.S. citizens and residents.
6.13.2007 12:24pm
Bruce Hayden (mail) (www):
Does anyone have a link for the complaint? Mention has been made about its drafting, and therefore, someone must have it.

The whole copyright thing is a bit weird, and that is one of the reasons I want to read it. The story that I have seen so far is the copyright to pictures were purchased and then used for the filing. As has been pointed out elsewhere, federal jurisdiction is based on the alleged copyright violation, and if it is a bogus claim, then they should be back in state court.
6.13.2007 12:27pm
aaaaaaaaaaaa (mail):
6.13.2007 12:39pm
Mahan Atma (mail):
"The poor little girls Paris Hilton themselves around a prestigious law school instead of, you know, studying, flaunt whatever physical attributes they were lucky enough to be born with or acquire through surgery, insult the half of their class with condescension and snobbery, insult the other half with bitchiness and attitude, then go screaming and crying to daddy warbucks when some of the people they spent years denigrading call them on their inadequacies and laugh at their failures.

What could these little primadonnas who have no business being at YLS expect for their behavior? I think they got off lucky, though truth be told, I am still waiting for some home video to pop up online."


Ah someone from the VC commentariat always comes through.

Care to explain what you're talking about?
6.13.2007 1:02pm
tomjedrz (mail):

If (the poster's) identities are disclosed, they are likely to lose their jobs (or job offers), lose friends, and be set back for many years and by many hundreds of thousands of dollars in their careers.


And all such consequences would be appropriate and well deserved. I would never hire (or associate with) someone who publicly made such vile statements about another, particularly if they did so under the cowardly cover of anonymity.

The First Amendment may well guarantee the right of these buffoons to make such statements. But it does not prevent others from judging them based on those statements and making decisions and taking actions on those judgments.

These folks are jerks. If this lawsuit reveals their identities, and the people around them learn that they are jerks, so be it.
6.13.2007 1:22pm
Sarge6 (mail):
This is the kind of thing that sends me from a political/journalistic First Amendment absolutist to a Neanderthal in no time. I fail to see how scurrilous graffitti triggers any kind of “free expression, free society” debate.

When this kind of stuff was scrawled on bathroom walls, that was as far as it went. I'm sorry, but you can't ennoble that as “free expression” with a straight face to my face. And odds were pretty good that employers, landlords, dates, friends, and family members were never going to end up seeing that “Suzie gives it up easy call her 555-1234″.

So I need to be educated on how the Internet elevates bathroom graffitti into “free expression”. It’s not just some new paradigm to be accomodated. It’s a paradigm-buster. Like the man said, "A lie runs halfway around the world before the truth gets its boots on." Those flame-threads or “Don’t Date These Scumbags” sites are permanent. Google means the whole world is that bathroom wall. And the practical effect of hosting shield laws is that there’s no incentive for the owner to paint over it. Like another guy said, "Where do I go to get my good name back?"

The common law (e.g., reputation and privacy torts) and the police power evolved - first - as mechanisms for responsible government to regulate and enforce a civil society. The First Amendment is in place as the citizenry's limit on the government when it misuses them; it's not a consent-to-disclosure form given to the world-at-large. Regulate and stamp out private parties' Internet graffiti by tort law all day long, and I won't spend a second worrying that the state is going to pull the Federalist Papers off the shelves at Borders or kick in my door if I try to read Gramsci. I just don't see the slippery slope.
6.13.2007 1:22pm
bob jim:
jim bob: "That's not an implausible defense" and "That's a plausible defense" have two distinct meanings in my mind.
6.13.2007 1:22pm
ed (mail) (www):
Hmmm.

@ Steve

I thought there was a specific legal delineation between a Publisher and an Editor. I.e. a Publisher cannot be held accountable for anything published but not edited by the Publisher while an Editor can be held accountable for the content of anything edited.

Sooooo. Wouldn't Ciolli have greater legal exposure if he did being culling and editing the comments?
6.13.2007 1:28pm
ed (mail) (www):
Hmmm.

I must admit that the transcript of this case would be interesting if for no other reason than to see the court address the issue of "The Ayatollah of Rock-n-Rollah".
6.13.2007 1:31pm
ed (mail) (www):
Hmmm.


Wouldn't Ciolli have greater legal exposure if he did being culling and editing the comments?


sigh. That should read "... begin culling ..."

PIMF.
6.13.2007 1:32pm
PGofHSM (mail) (www):
According to Ciolli and Cohen, though Ciolli generally was the one to do the actual work of taking down threads/ messages, he had to get Cohen's permission for each one he took down.
6.13.2007 1:55pm
Bruce Hayden (mail) (www):
Thanks for the link to the complaint. I love the listing of defendants:
Anthony Ciolli; Individuals, whose true names are unknown, using the following pseudonyms: Pauliewalnuts; neoprag; STANFORDtro11; :D; :D (Hillary vs. Jeb ‘08); MoreDoughHi; Remember when I said I would kill you last? I lied.; lkjhgf; yalelaw; Spanky; ylsdooder; Community Norm; HI; David Carr (Glass of water for Mr. Grainger); vincimus; Beach Body Brady; Cheese Eating Surrender Monkey; Todd Christopher; A horse walks into a bar (saving one CPGWBT at a time); The Ayatollah of Rock-n-Rollah; DRACULA; Sleazy Z; Whamo (Let me lay it on the line, he had two on the vine); An Gold; Ugly Women; playboytroll; Get_to_da_choppa; Dean Harold_Koh,
6.13.2007 2:19pm
ATRGeek:
Sarge6,

I think if you look at XOXO overall, it is not clear that the freedom to post idiotic and offensive things is entirely unconnected from the freedom to post things which arguably have more social value. I don't have a grand thesis about this, but I might suggest that this is basically a chilling issue: could you really apply legal liability to the posts at XOXO you think don't merit protection without affecting the speech that does merit protection?
6.13.2007 2:27pm
TomH (mail):
As to the lack of privacy, and the "what-if-somone-takes-a-picture-of-me-drunk" fear, perhaps we will either: a) learn to behave like grown-ups much earlier in life, or b) stop caring that people act like that, particulalry in their leisure time.
6.13.2007 2:32pm
IB Bill (mail) (www):
I'm not going to pretend I know the law here, but wow! I investigated this and am shocked. It's horrifying -- these are private people, and this behavior is way over the line. I agree that publicizing the names of the anonymous posters may be the answer here.
6.13.2007 2:36pm
Steve:
Wouldn't Ciolli have greater legal exposure if he did being culling and editing the comments?

Well, it's not so much that he didn't edit the comments; heck, maybe he's right that only his partner had the physical power to do so. It's that he didn't even express his disapproval of the content - in fact, he praised it as a "free, uninhibited exchange of ideas" - until it became clear that it might keep him from getting a job, at which time he secured a newfound sense of responsibility.

I understand the concept of an unmoderated bulletin board and I think people should be free to set them up without fear of liability. But let's say, hypothetically, that AutoAdmit had turned into a meeting place for large numbers of white supremacists. Surely Ciolli, at a minimum, would have distanced himself from their racist discussions. He certainly wouldn't have shrugged it off by saying that they're just having a "free, uninhibited exchange of ideas" - and if he did, we'd quite properly start feeling creepy about him.

The fact that he saw nothing wrong with the actual discussions taking place on AutoAdmit, and in fact praised them as legitimate exercises of free speech, is indicative of a lack of good judgment. He could have easily repudiated the objectionable parts of the AutoAdmit content without assuming an obligation to edit. But it's clear that he felt the posts we're discussing were actually no big deal.
6.13.2007 3:03pm
Bruce Hayden (mail) (www):
Are the identities of Does I and II publicly known? I would suggest that if they aren't yet, they will be shortly.
6.13.2007 3:04pm
Too_Funny:
Mahan Atma / Bruce Hayden

You're reading commentary on a complaint but haven't read the basis for that complaint? It's all in the threads being referenced...I could say more but I don't want Daddy Warbucks hunting me down as well. =)
6.13.2007 3:39pm
c.gray (mail):

Are the identities of Does I and II publicly known? I would suggest that if they aren't yet, they will be shortly.


Doe I &II are probably trying to keep stories about the lawsuit from showing up at the top of the Google page when a potential employer, business partner, date or random acquaintance googles one under her real name.

It would probably be preferable that the lawsuit popped up first rather than the AutoAdmit.com threads. But the AutoAdmit.com threads will probably be taken down by the time this lawsuit is resolved.


Hilarity ensued around my workplace as we read through that complaint.


The professor might have had nothing to do with drafting the complaint. That's what unpaid student interns are for! That might also explain the eagerness to append a truly shoddy copyright infringement claim to the complaint. Yale Law students probably tend to be much more familiar with federal court rules than local state court rules.

But I have to admit I did start laughing when I read the first sentence:

"Two women who have done nothing except work hard in school and show promise of making contributions to society have been targeted because of their appearance and out of spite to be the subject of a campaign of pornographic abuse."

The introductory paragraph is a bit ... uh ... unusual as typical federal complaints go. I have to wonder if the front page of the filing is covered with the author's tears. It almost makes me think one of the Does wrote it herself.

And does it open the plaintiff's up to discovery of whether they have, in fact, done NOTHING but work hard in school and show promise of making contributions to society. Seriously, they must have done _something_ else during the past few years.
6.13.2007 3:55pm
Steve:
The introductory paragraph is a bit ... uh ... unusual as typical federal complaints go.

It's really not that unusual as far as complaints in high-profile cases go, even in federal court. If the public is going to be looking at your complaint, you want to have an opening statement with a bit of color, rather than starting out with dry boilerplate about jurisdiction and venue and such. In your typical case where no one sees the complaint except the judge, on the other hand, there's no real point to this.

And does it open the plaintiff's up to discovery of whether they have, in fact, done NOTHING but work hard in school and show promise of making contributions to society.

A judge would have to be in a particularly cruel mood to hold that this hyperbole opens the door to discovery into the plaintiff's partying habits and such. The overwrought language could make for good cross-examination fodder, however. But don't fall too deeply in love with your point - imagine, for example, the defense lawyer saying, "You CLAIM to have done NOTHING but work hard in school, but didn't you once take a trip to Daytona just for fun?" Most jurors are not going to see this as a gotcha, they're going to see it as a lawyer being an ass.
6.13.2007 4:03pm
Bruce Hayden (mail) (www):
You're reading commentary on a complaint but haven't read the basis for that complaint? It's all in the threads being referenced...I could say more but I don't want Daddy Warbucks hunting me down as well. =)
I am not sure of your point there. My last question was whether the identity of Does I and II was publicly know. That is not answered in the complaint and I went back through the commentary and it wasn't answered there either.

Aaaaaaaaaaaaaaaa (or something like that) provided a link to the complaint earlier in response to my request for it.
6.13.2007 4:49pm
gvibes (mail):
Thanks for the correction/clarification on statutory damages Bruce! I should have read a bit more carefully.
6.13.2007 4:57pm
David M. Nieporent (www):
Wouldn't Ciolli have greater legal exposure if he did being culling and editing the comments?
In the off-line world, you would be correct -- but in the on-line world, the CDA explicitly protects sites that do so.

(Depends what you mean by "editing." If a site edits -- as in changes the words -- of a comment to make it defamatory, then it would be liable. If you mean by "edit" the use of editorial discretion as to which comments to keep or delete, then no.)
6.13.2007 5:15pm
Ella (www):
Too_Funny and AutoAdmit are evidence that law schools should impose a higher minimum age requirement as a means of promoting greater maturity in their student body and the profession. From what I've seen the two times I've visited the site, many of the posters on AutoAdmit haven't progressed past the "poopy-head" stage all three year olds go through - you know, the time when the toddlers take great pleasure in saying bad words because they know it will get a rise out of everyone.

Too_Funny, if your insecurities drive you to go on the web to trash a few girls because they are apparently prettier, smarter, richer, more popular, and/or more accomplished than you are, it's time to reexamine your life. I don't know the plaintiffs in this case and don't care to, but I'm certainly not more inclined to think badly of them because of what some adolescent cowards vomit out online.
6.13.2007 5:26pm
R Tushnet:
I'm not sure why people think the copyright claim is ridiculous. Some (?) of the defendants posted pictures to which they didn't own the copyright, violating at least one of the copyright owner's exclusive rights. If the argument is that the posts were clearly fair use, I'm sympathetic to that, but fair use is a defense and there are certainly non-frivolous arguments on the plaintiffs' side.

And there's nothing wrong with pleading a colorable federal claim to get into federal court.
6.13.2007 5:37pm
ed (mail) (www):
Hmmm.

But isn't the copyright action against Ciolli and not against "various AutoAdmit posters" in order to justify bringing the case into federal court?

And yet nowhere do they actually tie in Ciolli personally with the photographs. Or at least I didn't see it.
6.13.2007 6:14pm
ed (mail) (www):
Hmmm.

"In the off-line world, you would be correct -- but in the on-line world, the CDA explicitly protects sites that do so. "

Ahh. Thank you for clearing that up for me.
6.13.2007 6:16pm
logicnazi (mail) (www):
Steve:

I don't see the problem. Believing that the free unmoderated exchange of ideas is a good thing is hardly a horrible belief. You might not agree with it but it is surely within the realm of reasonable political belief that any harm done to individuals because of an unmoderated bulletin board is a worthwhile price to pay for the benefits. There is no way one can claim this belief is 'beyond the pale' while beliefs like abortion is murder or we ought to provide free abortions do not qualify.

As far as condemning the posts we might as well condemn the CEO of Comcast because he has not publicly condemned the messages of racists who use comcast internet access to spread their views. Or condemn the other commenters in this thread because they too now know about the bad comments posted over at AutoAdmit and many of them haven't bothered to say they condemn these comments. If you haven't endorsed someone else's comments you have no responsibility to affirmatively repudiate them.

It seems quite reasonable for Ciolli to take the view that they aren't his comments so why should he go out of his way to condemn them. In fact by out of the blue condemning some comments he risks being interpreted as endorsing (or not objecting too) any future comments he doesn't bother to condemn. At worst it seems Ciolli made the minor mistake of not realizing that people wouldn't treat his situation just like that of the Comcast CEO. So long as he thinks it is just a few emotionally involved critics who can't see the obvious fact that he isn't approving of them it doesn't seem so unreasonable that pride would cause him not to give in to what he thinks is unreasonable criticism.

Now if Ciolli said anything that suggested he approved of the comments themselves (rather than just the right of people to post them) that would be a different story. However, the fact that some people thought he should have to apologize for remarks that aren't his and he didn't hardly seems like a justification for denying him this job. Surely the law firm has the right to not hire him but I think it's a really shitty thing to do on par with choosing not to hire someone because of their belief about abortion or their political affiliation.
6.13.2007 6:17pm
ed (mail) (www):
Hmmm.

You know if this lawsuit actually results in payment for damages then I think DemocraticUnderground.com better watch it's step.
6.13.2007 6:29pm
Eugene Volokh (www):
R Tushnet: I agree entirely that the copyright claim isn't clearly a loser -- and may in fact be a winner as to one or more of the defendants -- but what's your sense about the degree to which it would indeed succeed in keeping the case in federal court? The copyright claim involves only one of the plaintiffs, and likely at most a few of the defendants (unless you can somehow get them on some conspiracy theory, which I doubt). I'm no federal courts maven, but would this suffice for keeping both plaintiffs and all the defendants in federal court?
6.13.2007 6:51pm
Ben Pollitzer (mail):

Too_Funny and AutoAdmit are evidence that law schools should impose a higher minimum age requirement as a means of promoting greater maturity in their student body and the profession. From what I've seen the two times I've visited the site, many of the posters on AutoAdmit haven't progressed past the "poopy-head" stage all three year olds go through - you know, the time when the toddlers take great pleasure in saying bad words because they know it will get a rise out of everyone.



I don't really see how law schools are relevant to this at all.

Yes, the boards in this case were closely related to law schools. My own law school has such a community site (not in any way affiliated with the school itself). It's content is slightly more mature, but only because it has several moderators that endeavor to keep the discussion on the site relatively mature.

Nevertheless, it's the internet. Nearly from the beginning of the internet there have been things available on it that range from what you term "the poopy-head" stage, to things that are disgusting to things that are outright illegal.

Forums, or Messageboards, are little different. Some are mature and intellectual, but the vast majority of them are not, and this is due in no small part to the anonymity that the internet offers.

The mere fact that someone is 23 or 24 or 25 and in Law School doesn't prevent this atmosphere from taking hold in any forum. I've seen individuals who are in their 30's and 40's act just as immature online as someone who is highschool.

There was a phrase coined by members of one such forum for situations like this. That phrase is "the internet is serious business." If you google search it, you'll find several interesting things.
6.13.2007 7:30pm
Bruce Hayden (mail) (www):
I'm not sure why people think the copyright claim is ridiculous. Some (?) of the defendants posted pictures to which they didn't own the copyright, violating at least one of the copyright owner's exclusive rights. If the argument is that the posts were clearly fair use, I'm sympathetic to that, but fair use is a defense and there are certainly non-frivolous arguments on the plaintiffs' side.

And there's nothing wrong with pleading a colorable federal claim to get into federal court.
I think the question is whether they can stay there, against a concerted attempt to dislodge them.
6.13.2007 8:12pm
Ella (www):
Ben -

Law schools are relevant to AutoAdmit because most of the posters on the website (and all the ones involved in this particular case) are ostensibly students at the most prestigious law schools in the country. As future members of the legal profession, more should be expected of law students than of the average internet poster. The behavior exhibited on AutoAdmit reflects poorly not only on the students themselves, but on the schools that admitted them.

My experience as a recent grad who was a few years older than most students (though not as old as many) indicates that this is a symptom of their age and lack of life experience, rather than of anything inherently "wrong" with the posters. They behave like college students because law school is just an extension of college to many of them. Most of us who've been in the "real world" for a few years are not only more mature, but don't have the time, energy, or patience for the sort of nonsense many of our younger colleagues engaged in. My law school seemed to have a good mix - most of the people in my graduating class had been in the workforce for a few years before enrolling as day or evening students - and I think it enhanced the classroom experience and general atmosphere for everyone.

It's obviously not a perfect correlation. There are many immature 30 and 40 year olds and many mature 21 and 22 year olds. But, the dynamics of internet message boards notwithstanding, a student body with an average age of 23 is going to be more likely to engage in the adolescent antics exhibited on AutoAdmit and in Too_Funny's posts than one with an average age of 26.
6.13.2007 8:22pm
Too_Funny:
Ella,
I agree with you, though I reject the insinuation that I am one of the AutoAdmit posters. I also think that the behavior the girls in question exhibited is just as obnoxious as the anonymous posters insulting them, yet we should censor neither the girls nor the posters for either of their behaviours. I find it especially telling that you fail to criticize the behaviour of the girls themselves.

Regardless, those girls and others, both male and female alike, have been talked about by endless summer associates at the various firms they worked at as well as attorneys at those same firms. But that's to be expected when you behave in such an obnoxious fashion. The lesson learned here is what goes around comes around. You treat others with contempt and insults, don't be surprised when you are treated the same way.
6.13.2007 9:17pm
Too_Funny:
Upon further review, I find Ella's posts indicative of a neo-feminist fascism. Do not criticize the girls for behaving like arrogant sluts but loudly condemn those who point it out.
6.13.2007 9:20pm
Ella (www):
Too_Funny - Did any of their obnoxious behavior include anonymously and publicly accusing people of having STDs? AutoAdmit posters did. Did either girl go into a public forum and anonymously post insulting comments about private individuals? You and AutoAdmit posters have. If you don't like being called immature or being grouped with AutoAdmit posters, you should refrain from such behavior.

If they're just obnoxious brats, the payback is in the poor reccomendations they receive and their poor professional reputations. It is not an appropriate response to their bad behavior to anonymously post slander or personal insults.
6.13.2007 9:45pm
Ella (www):
Too_Funny - Thank you for proving my point.
6.13.2007 9:50pm
logicnazi (mail) (www):
Also didn't anyone ask Ciolli before he lost his job what he thought about these comments? That seems a lot more reliable way to know his attitude that inferring it because he didn't go out of his way to condemn them. I mean doesn't charity require we assume that he just didn't think they were his remarks to apologize for any more than the phone company thinks they must apologize for what is said on the phone rather than that he approved of them?

---
buffpilot:

I think it's quite important here to distinguish between loss of privacy and loss of obscurity. The type of worries you cite (drunk spring break pictures on google) aren't really a loss of privacy because you were doing things in public and obviously didn't expect random people not to see. What you have lost is obscurity, i.e., the expectation that people you know probably wouldn't be able to find out about it. The distinction is important because while it's obvious that letting someone peer in your backyard window and take pictures of you having sex is a problem the loss of obscurity is less clear.

For one thing it isn't obvious to me that having more information about how our politicians behaved in the past is harmful. Sure aspiring politicians may not appreciate it but does this outweigh the public interest in knowing? If the public doesn't think this sort of old info should scuttle a political career all they have to do is keep voting for these politicians.

Also, while it's obviously bad if your coworkers find a picture of just you doing something ridiculous on spring break when you were in college it isn't so clear that it is so harmful if google retrieves embarrassing pictures of half the office. The harm is really from partial obscurity which allows the hypocritical castigation of those we find out did something crazy when in fact nearly all of us have done so at one time or another. The democratization of embarrassment might be the best thing that ever happened since it will undermine the ability of those with the means or motivation (hire PIs) to screw someone over with embarrassing information.

I'm actually looking forward to the day every picture of a stupid college prank, drunken foolishness, risque pose and bong hit is archived on google for posterity. It's going to be damn hard to demonize marijuanna, moralize about sex or fire someone for their stupid drunken prank when all your exploits are recorded for posterity as well.

Also I understand why the girls want these remarks taken down, they've been viscously attacked and a ruling demanding google take them down would be a sort of vindication that their attackers were in the wrong. However, it isn't the girls who need to worry about future material harm from these threads. I doubt anyone will refuse to hire them because some assholes treated them badly while if the names of the defendants ever come out they could be (deservedly) haunted by what they said for a long time.
6.13.2007 10:15pm
HowardWasserman (mail):
Eugene and Bruce:

This actually would be a great civ pro/fed courts exam question.

The complaint does not mention it (another defect or example of poor drafting, I guess), but the court likely can exercise supplemental jurisdiction under 28 U.S.C. § 1367 over all the claims other than the copyright claim (over which there is federal question jurisdiction). Section 1367(a) permits jurisdiction where the extra claims (whether involving the same or different parties) are "so related" to the copyright claim that they form part of the same case or controversy. This usually means the claims all arise from a "common nucleus of operative facts." The plaintiff's argument would be that all their claims arise from an ongoing pattern of conduct by all these defendants on the web site--posting the infringing photos (the basis for the copyright claim) was one example, the defamatory or damaging comments (the bases for other claims) were other examples. But all are related in that they are based on one basic factual concern--the "attacks" on these women on the web site. So that should be enough to put the entire case in federal court.

As to whether all the claims can remain in federal court: The court has discretion under § 1367(c) to decline to exercise supplemental jurisdiction over state-law claims (while hanging onto the federal claim) for a variety of reasons. Two are potentially in play here.

First, if the copyright claim fails on its merits (as many seem to think it will), the district court under § 1367(c)(2) could get rid of the state law claims. It usually depends on when the claim fails--the earlier in the case the main federal claim goes away (say, on a motion to dismiss for failure to state a claim), the more likely the court will be to decline jurisdiction over the remaining claims.

Second, if the state claims "substantially predominate" in the case over the federal claim. The inquiry here is whether the case is "really about" the defamation/false light/intentional infliction and not "really" about copyright infringement.
6.13.2007 11:24pm
Eugene Volokh (www):
Howard: Thanks very much for the response -- much appreciate it. But can you speak in more detail, please, about whether (1) one plaintiff's not pleading any federal claim should lead the federal case to be dismissed as to that plaintiff, and (2) most defendants' not being involved in any federal claim should lead the federal case to be dismissed as to those defendants? Also, would you say that here the state claims or the federal claims substantially predominate?
6.14.2007 12:15am
Bruce Hayden (mail) (www):
Thanks Howard.

My reading of the complaint left me with the feeling that the copyright claim was in there precisely to get into federal court. While I think it weak, if what is alleged is true, I would think it likely to survive summary judgment. Definitely likely to survive a motion to dismiss for failure to state a claim (after they clean up the complaint to make clear who is making the copyright claim).

I think though this is clearly a case where state law claims greatly predominate - I would guess at a 90% level. Since statutory damages and attorneys' fees were not (if my memory serves me right) plead, my guess is that the registration was late enough that they were precluded. That leaves actual damages for the copyright infringements, which are likely to be de minimis. So, from a damages point of view, the disparity is probably closer to 99% (if you take their estimation for damages seriously, which is most often unrealistic). Oh, and only one of the women is claiming copyright infringement (though it is not clear which one, since Doe II is listed in the body of the complaint as owning the copyrights, but Doe I is claiming the damages).

It should be interesting to watch.
6.14.2007 12:28am
HowardWasserman (mail):
Eugene:

The two factors you mention do not prevent the court from obtaining supplemental jurisdiction in the first instance. So long as the court has federal-question jurisdiction over one claim brought by one plaintiff against one defendant, it can exercise supplemental jurisdiction over all the other (state-law) claims involving all the other plaintiffs and all the other defendants. It does not matter that the federal "anchor" claim (here, the copyright claim) does not involve one of the two plaintiffs or certain, even most, defendants.

This case is an example of the old judge-made doctrine of "pendent-party" jurisdiction. The state-law claims are pendent to (bootstrapped and dependent on) the main federal claim, but they involve different parties who are not involved in that main federal claim. Pendent-party jurisdiction was controversial, with arguments that it was beyond the courts' power to grant themselves such jurisdiction. In Finley v. United States (1989), the Supreme Court rejected pendent-party jas beyond the statutory jurisdictional grants. Section 1367 was enacted in 1990 specifically to overrule Finley and to grant district courts jurisdiction over related state claims even if those claims involve entirely different parties than the anchor federal claim.

The two concerns you list are relevant to the secondary question of whether the state-law claims predominate so that the court can/should decline to exercise the jurisdiction it has been granted. Because most of the defendants (all but 2 of 27, by my quick count) are implicated only in the state-law claims and not the federal claim, there is a good argument that the state claims predominate. The case against those 25 defendants involves state law, best litigated in state court, and there is no reason to keep them in federal court attached to a federal copyright case that otherwise has little or nothing to do with them. I also think Bruce is on to something in the fact that most of the damages will come from the state claims, not the federal claim.

Note, however, that it is entirely in the court's discretion whether to decline jurisdiction; even if state-law issues do dominate the action, the court may choose to retain the entire case. In general, § 1367 evinces congressional intent (consistent with the intent of the Federal Rules of Civil Procedure) that related claims should be litigated together. For example, the court might take the view that the claims are all so tightly connected as part of a pattern of on-line mistreatment of these plaintiffs that they should remain together as a single trial unit. And since copyright claims are within exclusive federal jurisdiction (28 U.S.C. § 1338), the only way to keep them together is to keep them in federal court. Courts thus should (and generally do) hesitate before breaking cases up by sending the state claims into state court and hanging onto the federal claims.
6.14.2007 2:14am