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Perils for Libel Plaintiffs:

In my post below on the autoadmit case, I noted that the pseudonymous posters faced huge professional risks from being identified. But say that one of them decides to fight the case to trial (unlikely, but assume he does).

In a typical libel case, the plaintiff may worry that filing the case, and having a trial, will only further spread the libelous accusations. Even if the accusations are ultimately disproved, more people will have heard them, and some may pay more attention to the accusations than the ultimate disproof. This isn't really an issue here, I suspect; I doubt that anyone will really believe that plaintiffs really do have sexually transmitted diseases, for instance.

But libel cases also let defendants discover many things that plaintiffs might find embarrassing. Consider, for instance, Doe I's claim that the "harassing, offensive, and false statements posted by defendants" caused her to get no job offers through the on-campus interview process, even though she had sixteen on-campus interviews and four callbacks (paragraphs 30-33 of the complaint). I'm skeptical that there was any causation here; as Ilya pointed out,

First, most people know that anonymous comments on chat sites are often inaccurate, and intelligent employers are unlikely to give them great credence — especially if doing so leads them to pass up a strong job applicant from what is arguably the nation's most elite law school. Second, even if law firm hiring committees did believe the comments, ... [m]ost big law firms care very little about associates' personal lives outside the office, so long as those associates are racking up the billable hours. Even if one or two firms were deterred from making offers to this student by the internet comments, it is highly unlikely that all sixteen (or even a large percentage of them) were.

Instead, it seems to me that the likely reasons for Doe I's striking out were among the normal reasons why many people who look great on paper don't do as well in the hiring market as they'd like — they don't seem that interested in firm jobs, their credentials aren't really that good, they come across as too quiet or nervous, they come across as too brash and self-important, they flub some questions, they rub the interviewers the wrong way, some of their professors are unimpressed by them and say so, and so on.

But even if I'm wrong, surely defendants would be entitled to try to prove that there was no causation here, given that plaintiffs are making an issue out of this (an issue that bears directly on actual damages, and indirectly on presumed and punitive damages). Presumably defendants would subpoena the firms involved and ask them why they didn't hire Doe I. (I don't see any reason why such an obviously relevant matter would be found undiscoverable or inadmissible.)

Even if I'm wrong and the firms were somehow influenced by the online nastiness, I expect that their hiring people would do anything short of outright perjury to minimize that and to maximize the conventional reasons why they thought Doe I was unsuitable. If I'm right, or at least right as to many firms, those firms would quite candidly explain why they thought Doe I was unsuitable. Some of them may be politic ("we had an exceptionally strong pool that year, and she just wasn't quite as fantastic as the other Yale applicants"), but others may not be. (Remember that while many firms are reluctant to say anything bad about an ex-employee, for fear of a libel lawsuit, witnesses are immune from libel lawsuits for their testimony.)

So the result will be testimony from sixteen prominent law firms explaining why they didn't want to hire Doe I. What's more, the law firms aren't being painted as the bad guys in this law suit, so it's not a case where (for instance) someone sues an employer for discrimination and the employer's badmouthing of the plaintiff could be put off to the employer's racism or sexism or what have you. It's just sixteen law firms that come across as largely disinterested bystanders (despite the possible reason to shade the truth that I mention above, a reason that is likely not to be prominent in observers' mind) and that talk about how Doe I botched her interview, or about how her grades were really pretty weak. That's not exactly the best publicity for an aspiring young lawyer, especially given that the case about online chatter is likely to lead to online chatter.

Again, perhaps all this is moot because there's virtually no chance that this case will get to trial or even to discovery. Still, it's the sort of thing that libel plaintiffs ought to worry about in similar cases, and perhaps even in this one.

UPDATE: Ann Althouse has more thoughts on this, and the AutoAdmit controversy more broadly. Plus, one of the great things about Ann is that she mixes highly accessible posts about interesting legal controversies with asides about pretty technical but important legal questions, such as federal court jurisdiction — she has some thoughts about that in the second post. (Recall that she's a jurisdiction, federalism, and constitutional law scholar.)

Patterico has more (also here), which is more sympathetic to the lawsuit than Ann Althouse's posts are.

Related Posts (on one page):

  1. AutoAdmit Story on NPR:
  2. Perils for Libel Plaintiffs:
  3. Autoadmit Lawsuit:
EarlofBrandeis (mail):
Prof. Volokh said:
Presumably defendants would subpoena the firms involved and ask them why they didn't hire Doe I.

And you believe that these firms would admit to playing politics: In short, admit to not hiring a candidate based on what they read on a web page?

No disrespect intended here, but when was the last time you went job hunting? Do you honestly believe that all the time/effort/money that goes into a law school education that a firm does not consider the liabilities associated with someone whose name/images appear online and are portrayed in a less than flattering light as in the autoadmit case? Do you honestly believe that firm won't just toss the resume into the circular file out the gate? If you do, then you haven't looked for a job lately.

Just because you're interviewing for a six figure job doesn't mean the level of scrutiny is exclusively applied to freshly minted law grads from gold plated schools. I don't have the privilege of being a gold plated law school grad and the positions I have sought have been rather low on the totem pole, however, every single one of those employers due diligenced my name on Google just to see what they could find.

I shudder to think where my career would be if a website populated by the type of unethical individuals on autoadmit took my name and posted the kind of malicious statements the cowardly anonymous posters did about Does I and II.
6.13.2007 3:20am
Eugene Volokh (www):
What exactly are the liabilities to a firm when an applicant is being badmouthed by a bunch of jackasses online? Lawyers and their clients tend to be pretty savvy businesspeople; they care about who can make them money.

That some idiots talk about how they'd like to do indecent things to a candidate will not give a typical lawyer much pause, I think. That they accuse her of being dumb -- in a context where it's very likely that it's trash talk -- likely wouldn't give the typical lawyer much pause, either (especially when the lawyer has much more reliable data about the applicant's smarts in the resume in front of him).

Now if there was a serious-seeming site that was suggesting the candidate had committed crimes, or was a plagiarist, or cheated on her exams, that might well affect her job prospects, even if it turns out the accusations are entirely false. But the posts here were pretty obviously unreliable -- perhaps not enough to justify summary judgment for defendants on some fiction or hyperbole ground, but enough for all serious lawyer readers to notice the reliability.

Hiring partners aren't fools. Nor, given how competitive law firm hiring is (just consider how much money firms spend on recruiting), can they afford to casually throw out resumes from Yale law students. Serious charges can tank an applicant. I strongly doubt that obvious trash talk, online and anonymous, would.
6.13.2007 3:43am
Joe Bingham (mail):
Um, we might also find out that the girls really have herpes. I'm sure they took that into account when they decided to sue, though.
6.13.2007 4:11am
Evan B.:
EV: Spot on, as usual. Do you have any thoughts on Plaintiffs counsel, David Rosen?
6.13.2007 4:14am
tarheel:
Prof. Volokh, I think you are giving firms too much credit. They have no clue what is true or not true, nor do they really care. They just don't want the controversy (or even the potential of a future controversy). Given that they have many more applicants (yes, even from Yale) than they do spots, why would they take the risk?
6.13.2007 7:08am
c.f.w. (mail):
Personnel files are normally considered privileged. The fact that there was no hiring would make the privilege more limited, but still worth arguing. Law firm could and would likely say they need confidentiality to allow interviewers to speak candidly to the firm about the candidate. I suspect a bunch of the law firms would get their backs up and tell the defense counsel (if AC can afford one) to go pound sand. Then AC needs to come up with $5000 or so per motion to compel and make up to 16 motions to compel. Once (if) the law firm needs to produce files, or give a depo, it will be quite easily persuaded to say that it googled the name and took the results into consideration. It would be foolish not to admit that, if it happened.
6.13.2007 10:17am
Steve:
If I'm right, or at least right as to many firms, those firms would quite candidly explain why they thought Doe I was unsuitable. Some of them may be politic ("we had an exceptionally strong pool that year, and she just wasn't quite as fantastic as the other Yale applicants"), but others may not be.

This is your idea of a "candid explanation"? This, to my mind, is the absolute most any law firm would be willing to offer in this context. If they take an aggressive stance trying to help the defense, casting aspersions on the plaintiff's abilities, surely the plaintiff will be permitted to test the validity of those aspersions, including taking depositions of the interviewer and everyone else involved in the hiring process.

Most firms, seeing this scenario in their crystal ball, would either try to stay above the fray or else attempt to finesse the issue in some way. For example, if they proffered an affidavit from the decisionmaker saying "we had no knowledge of the autoadmit comments," it's questionable whether a court would permit the plaintiff to go any further against a nonparty based upon pure speculation. And of course, the defendant would have no basis to go any further if the plaintiff didn't.
6.13.2007 10:33am
Houston Lawyer:
Whenever I've interviewed law school candidates, whether at the school or in the office, I was required to complete an evaluation. These generally include a hire/don't hire recommendation along with an area where you can explain your reasoning. The plaintiff should be required to execute a release authorizing the law firms to turn over all such data.
6.13.2007 11:23am
Alex R:
I'm not a lawyer, so I'm surprised by the side note EV makes: ".. witnesses are immune from libel lawsuits for their testimony."

Is this generally true? If Party A is suing Party B for some harm, and Party B calls Witness W to testify as to why Party A deserved that harm, is it a general rule that Witness W is immune from being sued for any testimony (short of perjury, I assume)? I knew that prosecutors and judges were generally considered to have some immunity, but wasn't aware that it extended to witnesses called by a litigant in a civil case...
6.13.2007 11:58am
Steve:
The plaintiff should be required to execute a release authorizing the law firms to turn over all such data.

But if I'm a law firm, the evaluation is my document, not the plaintiff's document. While a release signed by the plaintiff would obviate any concerns I might have about her personal privacy, surely I have other interests in protecting the document. After all, if an interviewee wrote me a letter and asked for a copy of his interview evaluation, I'd hardly give it to him.
6.13.2007 12:01pm
ATRGeek:
My intuition is that Volokh is right, and that few firms would red flag the sort of stuff that was going on at XOXO.

But I am nor sure. However, I do know of a discussion board where people can go to ask questions about law firm hiring, although it can get kinda raunchy ...
6.13.2007 12:02pm
Eugene Volokh (www):
Alex R: As I understand it, witnesses are indeed immune from civil lawsuits based on their testimony. If others know better, please let me know, but I'm pretty confident here.

Steve: The firm may want to keep the evaluations confidential, but I don't know of any testimonial privilege that would give them such a right. And while subpoenas could be quashed on the grounds that the information they seek is irrelevant (or sometimes barely relevant and the subpoena is highly burdensome on its recipient), here the true causes of Doe I's not getting a callback or an offer are highly relevant given Doe I's theory.

Recall that as a general matter the law is entitled to every person's evidence. This principle is limited by the testimonial privileges and various other matters, but it remains the general principle, and I'd think it would apply here. The firm's legitimate business reasons to want to keep candidate evaluations confidential would not, I think, suffice to trump the principle.
6.13.2007 1:55pm
No Privilege:
I'm not sure where anyone got the idea that personnel files are privileged - perhaps there are some state law restrictions for state government employees. However, personnel files are routinely used in many types of employment litigation in both federal and state courts. The records concerning plaintiff's non-hiring would certainly be discoverable, but that doesn't mean that the law firms involved wouldn't bother to resist discovery if for no other reason than to try to impress future interviewees on how seriously they regard the interview process.
6.13.2007 2:04pm
elChato (mail):
I wonder how long firms retain their evaluations of unsuccessful candidates. It would not make much sense to do so, other than to guard against possible discrimination suits (but even that could backfire on you). If no, or few, records are maintained, you might be relying on the memory of someone who interviewed more than a dozen people more than a year ago; who would recall the also-rans in any detail?

I suppose somewhere there is someone who makes hiring decisions on grounds such as, "we saw people flaming her or talking about how hot she was on the internet, so we decided we didn't want her despite the fact that she was otherwise the best candidate for the job," but not at all 20 law firms; and as EV suggests, lots of luck trying to get them to say that.
6.13.2007 2:15pm
PGofHSM (mail) (www):
Two aspects of the complaint struck me as odd:
First, that Jarret Cohen wasn't named as a defendant despite his practically inviting a lawsuit.

Second, that the complaint shot itself in the foot with regard to the potential diversity jurisdiction through paragraph 15, in which the plaintiffs state that on information and belief, some of the persons posting messages about the plaintiffs -- i.e., the anonymous defendants -- were residents of Connecticut, like the plaintiffs. I realize they're filing in federal court under 1331 Federal Question, but they haven't stated a copyright violation for Doe I, only Doe II. (Doe I also is the plaintiff who alleges that she failed to get a job because of the apparently false allegations regarding her LSAT score.) Overall, Doe I appears to have a much weaker case; Doe II would be better off filing suit on her own. Doe I would appear to need diversity jurisdiction in order to get into federal court due to her lack of a copyright infringement.

Overall, the complaint is rather sloppy; it repeats phrases in the same sentence, refers to Doe I when it means Doe II, and is just silly to bother with "Doe" when anyone can google the phrases it quotes and find the autoadmit as well as other webpages that name the plaintiffs. I'm sympathetic to the plaintiffs, but the copyright claim is weak, and the rest are common law claims that put them in state court unless they're going for diversity jurisdiction -- which they've just made impossible.
6.13.2007 2:19pm
Bruce Hayden (mail) (www):
The jurisdiction is a bit flaky. In the body of the complaint, Doe II alleges that she owns the copyright in five photos that were copied w/o her permission (p 46), but then in Claim 1 of the causes of action (pp 62-64), it is Doe I who is apparently making the copyright claim.

The problem here is that these women will soon be trying to get jobs as attorneys. There is a possibility that they didn't have a hand in the drafting of the complaint. But I think that most attorneys would expect that a 2L would be involved, and thus, I will suggest that the craftsmanship of the complaint is one more thing that a potential employer might hold against them.

These women are attending Yale Law School, allegedly one of the finest law schools in the country. I would think that YLS students and grads would be expected to produce better work than this.
6.13.2007 2:40pm
Bruce Hayden (mail) (www):
I think that they were sunk on diversity in the first place. At least some of the "named" defendants seemed to personally know the women, and did so most likely through attendance at YLS.
6.13.2007 2:44pm
Carolina:
There is another downside to filing the suits: publicity of these allegations. Although the lawsuit is filed anonymously as "Doe I" and "Doe II", a quick google search of one of the quotes referenced in the complaint brought up the actual thread, with "Doe"'s name right there for all to see. I had never heard of this website, and certainly never heard of these plaintiffs before, but now I have. I am not sure this was a wise move on their part (filing suit).
6.13.2007 2:47pm
Steve:
And while subpoenas could be quashed on the grounds that the information they seek is irrelevant (or sometimes barely relevant and the subpoena is highly burdensome on its recipient), here the true causes of Doe I's not getting a callback or an offer are highly relevant given Doe I's theory.

Sure, maybe the plaintiff would succeed in a motion to compel compliance with her subpoenas, if she really wanted to try and back up this claim. My suspicion is she doesn't; it's all well and good to say "I had 16 interviews and not a single offer, it must be because of this controversy," but it's a lot tougher to actually pin down a specific firm that rejected her for that specific reason.

And if the plaintiff doesn't go down that route, my suspicion is that a court wouldn't let the defendant go there merely for purposes of rebutting the plaintiff's vague and unsupported allegation. But whether or not this is the ruling, I suspect the firm would make the defendant go to the trouble of filing a motion, rather than set the precedent that interview evaluations are fair game for outsiders to obtain.
6.13.2007 2:55pm
c.gray (mail):

[m]ost big law firms care very little about associates' personal lives outside the office, so long as those associates are racking up the billable hours.


It's true that most large law firms will tolerate scandalous personal lives from an associate turning in 2400 billable hours per annum.

It absolutely does NOT follow that they are willing to extend job offers to an unproven law student engaged in a prominent public scandal. Law firms also do not necessarily tolerate scandalous behavior of the sort their clients would become aware of and express concerns about. After all, hasn't Ciolli himself lost a job offer over this matter?

And remember, in the unlikely event the plaintiff's claim proceeds to trial, their claims about employability are going to be evaluated by a normal trial jury. Its unlikely any will have real-life experience with employment by a large law firm. They are more likely to take their cues from "Boston Legal", "Ally McBeal" or "La Law". If the defendant is lucky, none of the jurors will have watched "Philadelphia".

I would think the important question in a typical juror's mind would be whether anyone at the firms in question were aware of the AutoAdmit threads before making a hiring decision regarding one of the Does. I doubt one would give much weight to a firm representative's denials that his perusal of the threads affected his decision.

Seriously though, the primary purpose of this lawsuit is almost certainly to force discovery of the "real life" identities of the John Doe defendant's and to get the obnoxious threads deleted. Is there anyone who will not be stunned if this case reaches summary judgment stage, let alone trial?
6.13.2007 4:24pm
SmallMoney:
Something I thought of as I talked about this with co-workers at lunch:

If this succeeds, is this the end of anonymity on the Internet?

Follow my logic: Anon says nasty things re: B on www.x.com. B sues Anon under his screen name. While not good claims, they should at least survive the ground-level bar of 12(b)(6). B then subpoenas Anon's IP from his ISP and www.x.com.

Voila - Anon is outed. Lawsuit fails. Court's have turned into private investigators hired at the cost of a filing fee and a few subpoenas.

Dangerous territory...
6.13.2007 4:27pm
Guest44 (mail) (www):
True, but there are already solutions. They'll become even more popular if this is true. There are anonymizers like GhostSurf, and there are also anonymous networks that route traffic randomly through several jumps.


My question is about the copyright suit. When you upload pictures to the internet, aren't you inviting the world to make "copies" of the image file on their own computer to view it?
6.13.2007 4:42pm
c.gray (mail):

If this succeeds, is this the end of anonymity on the Internet?


What internet anonymity? Using court ordered discovery to uncover anonymous posters on message boards has been going on now for years. See http://www.eff.org/Privacy/Anonymity/cyberslapp.php for some examples.

People exaggerate the extent of their purported anonymity anyway. Most people leave electronic trails behind them in cyberspace that can be tracked with very modest levels of skill and determination. One of the ironies about this case is that the one kind of message thread AutoAdmit's admins WOULD censor were posts "outing" the real life identities of the site's so-called "anonymous" posters. Perhaps exposing the real identities of posters was a little too easy for the moderator's taste.
6.13.2007 4:46pm
Fub:
Eugene Volokh wrote at 6.13.2007 2:43am:
Now if there was a serious-seeming site that was suggesting the candidate had committed crimes, or was a plagiarist, or cheated on her exams, that might well affect her job prospects, even if it turns out the accusations are entirely false. But the posts here were pretty obviously unreliable -- perhaps not enough to justify summary judgment for defendants on some fiction or hyperbole ground, but enough for all serious lawyer readers to notice the reliability.

Hiring partners aren't fools. Nor, given how competitive law firm hiring is (just consider how much money firms spend on recruiting), can they afford to casually throw out resumes from Yale law students. Serious charges can tank an applicant. I strongly doubt that obvious trash talk, online and anonymous, would.
My experience and knowledge is very limited on these issues but I think that in a jurisdiction that recognizes libel per se, publishing falsehoods that a plaintiff "had committed crimes, or was a plagiarist, or cheated on her exams" would entitle plaintiff to punitive damages regardless of actuals, hence without the proof of causation you suggest. I doubt that a libel outcome would depend upon whether the publication was on a "serious-seeming site" or not.

I have seen a libel suit prosecuted for precisely such "trash talk" on usenet (hardly a forum with a reputation for reliability of published information). The false statements in the "trash talk" were that plaintiff had committed crimes and had a sexually transmitted disease. Defense counsel was no fool and very reputable; and quickly settled out of court entirely on plaintiff's terms, including money damages and stipulations to liquidated damages for various prospective acts by defendant. I am confident that defense counsel would not have advised such a settlement so readily unless plaintiff had been highly likely to prevail.
6.13.2007 5:16pm
Eugene Volokh (www):
Fub: Especially following the Court's recent punitive damages cases, actual damages are always pretty important in figuring out the permissible range of punitive damages. There's no fixed multiplier, but the amount of actual damages is part of the constitutional excessiveness analysis.

I'm not positive, but my suspicion is that in most places juries are instructed on the connection between compensatory and punitive damages (though I suppose that they might not be, and the evaluation of constitutional excessiveness might be left entirely to the trial judge deciding posttrial motions). Certainly if the case went to trial, and plaintiffs really wanted maximum punitive damages, they'd have an incentive to prove up actual damages, since the lower the jury finding of actual damages, the lower the maximum constitutionally available punitives. And on top of that, when the punishment is ostensibly for damage to reputation, a jury may want to know just how damaging the speech really was, as one input into its punishment calculation. So that's why I say the magnitude of compensatory damages is relevant to all the elements of damage.
6.13.2007 5:26pm
Fub:
Eugene Volokh wrote at 6.13.2007 4:26pm:
Especially following the Court's recent punitive damages cases, actual damages are always pretty important in figuring out the permissible range of punitive damages.
True, and while this is a federal case, the settlements I saw were small state cases. Damages prayed for in those case wouldn't even meet federal diversity minimums these days.

But I think that to persuade at least casual libelers to settle for a small sum and publicly retract, the likely punitive damages need not be even remotely excessive. The outcome that defendant will lose and have to pay something as well as his attorney fees just needs to be relatively certain. If plaintiff doesn't need to prove actuals to prevail and be awarded even a small figure, then defendant is facing a more certain loss. That certainty of loss is the edge that libel per se brings for defendant to settle.
6.13.2007 7:59pm
Bruce Hayden (mail) (www):
My question is about the copyright suit. When you upload pictures to the internet, aren't you inviting the world to make "copies" of the image file on their own computer to view it?
You are suggesting implied license, which is plausible. The problem is that it is a defense, and therefore has to be proven by the party asserting it. But, yes, I would tend to lean in that direction, that posting photographs on the Internet is implicitly licensing them - unless, of course, there were an explicit disclaimer. But any such license is, by necessity (and by law), limited. I would think that the limit of the license is what a reasonable poster would believe would be the use made of such photographs. But, as is obvious, this is all quite open to litigation.
6.13.2007 11:59pm
HowardWasserman (mail):
On the jurisdictional issue: This actually would make a great civ pro/fed courts exam question.

There is no need for diversity. The court likely can exercise supplemental jurisdiction under 28 U.S.C. § 1367 over all the claims other than Doe I's copyright claim (over which there is federal question jurisdiction). Section 1367(a) permits jurisdiction where 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 plaintiffs; 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.
6.14.2007 12:15am
Justin (mail):
Erm, I fail to see what was so insightful about Althouse's jurisdictional statement. In her defense, I don't think she was trying to be insightful, but the idea that federal question jurisdiction needs a federal question is something one needs to learn to get past their first year of law school.
6.14.2007 12:35am
ATRGeek:
I'm by no means a copyright expert, but I believe there is a category of copies known as "emphemeral copies" (also sometimes known as "server copies"), which refers to the copies that must be made by computers in order for something to be viewed or listened to in a digital context. So, that would seem to be a logical limit to any implied license arising from posting a photograph on the internet: you would have an implied license for the emphemeral copies used to view the photograph at its original address, but you could not otherwise capture that information and republish it.

I think an interesting issue may be one of links: would you have an implied license to not only view the photograph at its original address, but also to provide a link to the photograph at its original address? Or would that rather be fair use? Or neither?

I am sure someone out there has the answers.
6.14.2007 8:24am
SmallMoney:
I think most people are missing the point on the copyright issue. As I understand it, the message board in question does not allow pictures to be "posted" to the message board. Rather, pictures must be linked to in order to be viewed.

Therefore, it seems the posters may not have "infringed" on her copyright in the traditional sense. It will be interesting to see if linking to a picture can be construed as infringement. I side with the argument that it cannot be; therefore, the claim fails and so does federal question jurisdiction.
6.14.2007 11:12am
Kristjan Wager (mail) (www):
Actually, what happened was that someone copied the pictures from other sites, posted them on his own, and linked to them. The original sites (flickr among them) have explicit copyright notes on them, so it was clear that the owner did not grant others the right to use them.
6.17.2007 3:32pm
Bloix (mail):
"Recall that she's a jurisdiction, federalism, and constitutional law scholar."

I am aware that Althouse claims to be a jurisdiction, federalism, and con law scholar. However, I am unaware that she has published in any of these fields. Perhaps Prof Volokh could direct us to her scholarship.
6.17.2007 10:50pm