October 15, 2007

posted by Dave Hoffman

Very interesting post! I think that there's a great incentive for Cohen and Ciolli to settle -- litigation is tremendously costly. One of the most difficult problems I had to address in my book, The Future of Reputation, was how to deal with litigation costs. Litigation can often cost more than the actual monetary values at stake. Just defending against a lawsuit can be too great a financial punishment for an irresponsible blogger.

So the settlement proposal is an attempt to get AutoAdmit to take steps to clean up the problematic remarks from the Internet and to force AutoAdmit to be more responsible in the future and better deal with comments that are defamatory or invasive of privacy.

Dave suggests that lawsuits are a "bad fit for the reputational harms that sparked this mess." I generally agree, but there is no great solution to the problem of how gossip, rumor, and shaming online are affecting reputation -- just a bunch of bad and worse solutions. In The Future of Reputation, I conclude that lawsuits are the best solution among a bunch of very imperfect solutions. But I argue that lawsuits should be a last resort, and that the primary purpose of the law should be to encourage the informal resolution of issues. I suggest ways to limit the costs and bite of lawsuits. In other words, lawsuits work best as a threat, but when litigation materializes in practice, it is often bad. Kind of like radiation treatment -- a little bit can be helpful, but a lot is deadly.

One of the difficulties with existing law is that Section 230, as currently interpreted by most courts, provides a very potent immunity to the operators of discussion boards like AutoAdmit. But there are several unresolved issues under 230. As for locating anonymous commenters, the information often exists to find them (most people don't know how to be completely untraceable). One thing I distinguish in the book is between anonymity and traceability. It is easy for a person to post anonymously, but most people don't know how to be untraceable. But I believe that there should be strong protections before anonymous speakers are unmasked -- I support the court's opinion in Doe v. Cahill, for example.

From what I understand, people now post on autoadmit using the community account. The login is gwerks, as is the password. This seems to make it even harder to find out who posted what.

All in all, I think this is similar to RIAA's attempt to police music piracy. You can catch a few people with lawsuits, but ultimately the internet is too large a place to police.

The only real way to stop this would be to pass a federal statute requiring the use of your actual identity when communicating online. Actually, even then a savvy internet user could get around it by using a proxy from another country.

Sigh.

By the way, Mr. Hoffman and Solove, do you think the plaintiffs are going to accomplish anything with their lawsuit? I doubt it, for the following reasons:

1. From what I understand - Most of the people who post there don't actually go to top law schools. They are mostly highschool students and undergraduates from state schools. They post on xoxo out of loneliness and a desire to act out the "hot womanizing stud" persona which their IRL ("In Real Life") existence denies them. So outing them is not going to get the plaintiffs much satisfaction. It's not like the editor of Yale's Law Review posted those offensive comments. It's some geeky, socially ostracized 19 year old World of Warcraft champion posting from Missouri State.

2. If there is nothing to be gained by outing these people, then what is the point? I don't see how you are going to get any money from them.

All in all, I think this lawsuit has exposed the warped and perverted mind of the nerd. That meek, anti-social dork you pittied in school didn't know how clueless he was. He made up for lack of social graces with an overzealous imagination, one only his nerdy friends knew of. It's a shame xoxo has exposed the distorted geek mind to the world.

"Gwerks," I think you are wrong about XO users - and to see why, check out CO's current referral logs.

Dan, if litigation is only useful as a threat, doesn't that mean that ultimately it is a bad solution, and, if so, do you explore alternative methods? (Like, perhaps, the ICANN cybersquatting arbitration system?)

Oh, and a user of XO with the IP address 68.55.111.63 offered an obscene comment. I've deleted it, and will do the same for any other nonsense.

"I think you are wrong about XO users - and to see why, check out CO's current referral logs."

Are you getting a lot of hits from top law firms and law schools? Interesting. I was under the impression that the people who posted the obnoxious stuff weirdos. For example, one of the most racist posters was outed as an unemployed college graduate with obsessive compulsive disorder. He repeated posts the N-word, it's as certain as clockwork. Eventually I learned that he himself is half African American. His compulsive posting is his way of dealing the stress he feels. It's pretty messed up.

I only started looking at the site a while back, and from what I learned, most of the users are highschool students and undergraduates. The pathetic kind who never talk to anyone, and have no friends.

Of course I'm no expert and I guess we'll learn the truth when they're outed.

Excuse the typos in my 2:15. Refusal to proof-read is my way of making me feel a little better about my internet procrastination.

Dave writes: "Dan, if litigation is only useful as a threat, doesn't that mean that ultimately it is a bad solution, and, if so, do you explore alternative methods?"

I recommend litigation only for the most egregious cases. I propose a series of reforms to the privacy/defamation litigation process that will hopefully keep lawsuits from multiplying yet create compelling incentives for the posters of harmful speech to remove it before it creates greater damage. I suggest that some kind of arbitration system might be useful here -- a system where parties must first seek to work out a solution before resorting to the courts. However, in order to work, lawsuits must be a palpable threat -- so solutions that all but eliminate this threat in some contexts (Section 230) will not provide the proper incentives.

As I prepare to teach my mediation class today, I can't help but wonder: what about the impact of mediation in a context like this? Perhaps some of the creative problem-solving and cost-savings aspects might have a role to play here.

""Gwerks," I think you are wrong about XO users - and to see why, check out CO's current referral logs."

If this means that you believe that the people who are coming to this site by way of XO are representative of those that post obscene comments on XO, I don't think that's necessarily true. An awful lot of people in law school read (or used to read) XO, but do not and/or have not posted anything on that site. It's entirely possible (though I don't know how probable) that some or most of the anonymous users who were sued in Doe v. Ciolli are in fact high school or college kids.

Professor Hoffman - thank you for providing the legal community with your excellent blog. I am posting this comment to suggest respectfully that some of the "information" that has come to you through the grape vine and is now posted on your blog may be incorrect.

I refer specifically to the alleged settlement negotiations between non-party Cohen and plaintiffs. I will refer to the four sought-for remedies, set off by bullet points in your blog post, by number.

Remedy one: This is a given.

Remedy two: It is not possible for a website to deindex itself from search engines. Search engines deindex websites. It was not possible for Cohen to provide this remedy to the plaintiffs and it suggests that the source of the gossip you have posted is not reliable. Of course, it is possible that Cohen and the plaintiffs negotiated the matter in vain, not knowing that it lay outside the purview of Cohen’s influence.

Remedies three and four: imposing these requirements after the plaintiffs have received the benefit of remedy one cannot benefit the plaintiffs themselves; therefore the purpose of seeking these remedies must be to compel Cohen to regulate the forum, presumably to help protect future victims from harm.

This logically cannot be a goal of the plaintiffs. Surely professors Rosen and Lemley understand that, if there is a market for an anarchistic, unregulated law forum like www.autoadit.com, then imposing constraints on one such forum will merely create a void in the internet forum market. That void will be filled by another anarchistic, unregulated law forum. It is not reasonable to suppose that the Professors intend to effect change in the internet one forum at a time. It is also not reasonable to suppose that the Professors have chosen this pro bono project for the mere opportunity to twist the arm of an innocent non-party, with no other benefit than the pleasure of hearing him cry.

In light of these considerations, it is doubtful that the plaintiffs seek remedies two through four. Therefore, there is a strong possibility that the source of your gossip is not reliable.

Thank you again for your informative blog. I respectfully offer these insights because I know that, as a contracts professor, you understand the value of accurate information.

Respectfully, Nicholas “Shaun” Angel, Esq.

It's well known that, at least among the known named defendants, one is a top-10 law school graduate, and two are enrolled at top-25 law schools. A few others are not in law school but attend college. Many are unknown, but those known include severa law students/graduates.

That said, it's a fair point on both sides: many lurk and attend law school but don't post defamatory comments, but many who posted

Nicholas Angel,

It is completely possible to mark particular pages on a website as 'Do not index this'. Look up "robots.txt". I do not completely understand the mechanics, but presumably the unindexed pages will eventually disappear from the record.

Nick is completely wrong about search engines, which might make someone suspect the other things he said as well.

To keep Google from indexing your site you simply include the correct tags in robots.txt as shown at: http://www.google.com/support/webmasters/bin/topic.py?topic=8459

You can likewise prevent Google from caching your site by including the proper metatags as shown at: http://www.google.com/support/webmasters/bin/answer.py?answer=35306

Further, Google has other tools that allow for prompt removal and preventing indexing. Most other reputable search engines will honor the robots.txt file as well.

Of course you can't remove it from the entire internet because some people will have copies of these posts on their individual websites, but that's not what the proposed settlement asks for.