Lawyer gets creative with defamation lawsuit

By: The VNN Team  //  Editorial & Opinion

by Editorial Staff

Defamation is hard to prove.  While it can be easy to show a derogatory comment was made, it’s not so easy to prove the comment was made with actual malice and even harder to prove the comment caused actual damage.

Most often the law comes down to fact vs. opinion.

Opinion is what most consumers write on the popular website Ripoff Report. It’s a place to air grievances– some quite serious, some humorous. From anti-aging creams not anti-aging to companies that take money and run, Ripoff Report has it all.

Christian DuPont had a gripe to air about Massachusetts attorney Paul Goren and did so on the Ripoff Report website, calling Goren “Psycho-Richard” and falsely accusing him of a plethora of wrongs.

Loren wanted the post removed, however, Ripoff Report’s Ed Magedson, who operates under the name Xcentric Ventures. LLC, makes it clear in his website that he does not remove complaints.

Goren then sued in a Massachusetts court. Defamation wasn’t holding water, so Goren got creative and sued for copyright and in the end the case came down to the Terms and Conditions of the website, those same terms and conditions that few, if any, read.

A District of Massachusetts court ruled that a website’s Terms and Conditions resulted in the ownership of the copyright in a user’s post to transfer to the website’s operator regardless of whether the user had actually read or even agreed to the Terms of Service.

The copyright dispute centered on whether Xcentric infringed the copyright in DuPont’s posts on RipoffReport.com by refusing to remove the posts from the website. Xcentric moved for summary judgment, arguing it was the owner of the copyrights. DuPont had granted Xcentric exclusive licenses to the copyrights, as provided in RipoffReport.com’s Terms and Conditions, Xcentric argued.

The Court agreed, concluding RipoffReport.com’s Terms and Conditions transferred ownership of the copyrights to Xcentric.

The Terms and Conditions state that the user grants, “an irrevocable, perpetual, fully paid, worldwide exclusive license to use, copy, perform, display and distribute…” the contents of the post.

It further states, “By posting this report/rebuttal, I attest this report is valid. I am giving Rip-Off Report irrevocable rights to post it on the website. . . ” The user must then check a box agreeing to the terms to continue.

Whether or not DuPont had actually read the Terms and Conditions had no bearing in the case. The court concluded that by clicking the button to continue, DuPont was bound by RipoffReport.coms Terms and Conditions and in doing so had also transferred ownership to Xcentric.

Copyright laws are pretty confusing to the lay person, however, the court ruling suggests they aren’t so confusing when it comes to those pesky Terms and Conditions on websites.

Magdeson has an amazing record when it comes to warding off lawsuits. He has won nearly 100 of them and is an aggressive defender of the First Amendment.

What really makes the case interesting is that Goren and DuPont are the plaintiffs. Goren’s teaming with the man who called him psycho is stranger than fiction.

DuPont’s complaint remains on the website and in light of the court’s ruling, will remain so.