Case Study: Online Defamation and Copyright Infringement In One Lawsuit

California lawyer Dionne Choyce wants a community watchdog group to pay for allegedly defaming him and his practice – but the court isn’t making things easy for him. In a recent ruling, Judge Jon Tigar shot-down several of Choyce’s motions – but not all. A suit dealing with both online copyright infringement and defamation, Dionne Choyce v. SF Bay Area Independent Media Center [SFBAIMC], et al. is a textbook case study on the importance of small details when pursuing civil actions.

Lawyer Is Trashed On San Francisco Forum

Layer42 hosts Indybay.org, a website of the San Francisco Bay Area Independent Media Center, a “non-commercial, democratic collective of bay area independent media makers and media outlets.” In April 2012. A posting appeared on Indybay.org titled, “Attorney Dionne Choyce, who embezzled from homeless, may serve prison time.” A month later, another negative Choyce post donning the title, “The Choyce Law Firm Evicted From Building” appeared on the same site. Both posts featured a picture of Dionne Choyce – a picture lifted from his website.

Lawyer Files Lawsuit Claiming Defamation and Online Copyright Infringement

Outraged by the articles, Choyce submitted a civil claim against SFBAIMC, Layer42 and Cernio Technology, another ISP tangentially involved in the hosting of Indybay.org. In the filing, he alleged intellectual property infringement and defamation. Judge Jon Tigar caught the case.

ISP Shoots Back A Response, Claiming DMCA and CDA Immunity, Plus anti-SLAPP Motion

Soon after Choyce’s filing, Layer42 submitted a response. In it, the company argued three main points:

  1. Choyce never stated a claim on which action could be took;
  2. As an ISP, it was protected from being held liable for defamation under section 230 of the Communications Decency Act; in addition, the company was protected from copyright infringement under Digital Millennium Copyright Act provisions.
  3. The case should be dropped pursuant to California’s anti-SLAPP statute.

Ultimately, the judge did not agree with all of Layer42’s conclusions, but Choyce’s claims didn’t pass muster with Tigar either.

Judge Says “Not Quite” To Both Parties

Judge Tigar did not agree with layer42’s DMCA safe harbor argument, but dismissed the copyright claim because Choyce did not register his copyright, nor did he have an in-process application. More than that, Choyce had not applied for registration within the 3 months after the alleged infringement occurred. Due to his lack of registered copyright, Tigar explained that the claim “must be dismissed,” but that Choyce can choose to amend the complaint if he applies for copyrights. That said, the judge also reminded Choyse that if he does resubmit the claim, he can’t ask for statutory damages or attorney’s fees related to the infringement action because he didn’t apply for copyright within 3 months of the original publication. He can amend the complaint to show that he has since applied for a copyright, but he can only seek redress appropriate for unregistered copyrights.

Choyce tried to subvert Section 230 of the CDA by alleging the ISPs had a hand in creating the works in question. The judge, however, wasn’t buying what Choyce was selling, concluding that the beleaguered lawyer’s claim itself made the case for Layer42’s immunity.

“The only factual allegations in the entire complaint that relate specifically to Layer42 is the allegation that it provides Internet hosting, connectivity and infrastructure,” wrote the judge. “That allegation does nothing to establish Layer42’s liability; in fact, all it does is establish its presumptive immunity. The facts alleged in the complaint fail to state a claim for defamation or libel against defendant Layer42.net,” he concluded.

Judge Tigar granted in part and denied in part the defense’s anti-SLAPP motions; he agreed with the defense that the embezzlement statements were fair game as they were a matter of public interest; he disagreed with the defense about the eviction statements and waved Choyce through to pursue argue for a defamation remedy relating to those statements only.

The last day Choyce can file his amend complaint is December 22.

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