Intellectual Property Law Info Blog

Is an Interactive Website Responsible for the Unlawful Uploading of Copyrighted Materials by Its Users?

Should a website be responsible for all of the material that is uploaded by its users? Under what circumstances should a website be liable for direct and/or secondary copyright infringement?  

These questions were addressed in Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19, 26-28 (2d Cir. 2012). That case involved a claim against YouTube (“Defendant”). As all of us know, it enables users to upload and view video clips free of charge. Before users are permitted to upload their videos they have to register. The registration process includes a “terms of use agreement” which states that the user “will not submit material that is copyrighted…unless [he is] the owner of such rights or ha[s] permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein.” Id. at 28.

This case arose when users nonetheless uploaded infringing material in derogation of the terms of use agreement. When YouTube was notified about the presence of infringing material, it took steps to remove it from the site. Nonetheless, Viacom and Premier League (“Plaintiffs”) filed suit against YouTube alleging direct and secondary copyright infringement.

The District Court denied Plaintiffs’ motion and granted summary judgment to Defendant. The District Court explained that YouTube qualified for Digital Millennium Copyright Act (“DMCA”) safe harbor protection with respect to all claims. The DMCA states that an Internet Service Provider (which includes a site, such as YouTube that hosts posts from unrelated third parties) is immune from suit when all it does is host the content without the requisite degree of knowledge that it is infringing. Once it has that degree of knowledge, it must remove the material under a procedure that provides both the poster and the aggrieved party to address the dispute.

Plaintiffs argued on appeal to the Second Circuit that general awareness of the presence of infringing material on Defendant’s site made them ineligible to receive safe harbor protection. Defendant argued that general awareness of infringement was not enough to remove internet service providers from the protection of the DMCA. Rather, specific and identifiable infringements of individual items were required. 

Thus, the issue on appeal was whether “actual knowledge” under the DMCA safe harbor 17 U.S.C. § 512 requires a general awareness that there are infringements, or rather means actual or constructive knowledge of specific and identifiable infringements of individual items.

The DMCA’s Online Copyright Infringement Liability Limitation Act, establishes a series of four “safe harbors” that allow qualifying service providers to limit their liability for claims of copyright infringement based upon;

(a) “transitory digital network communications,”

(b) “system caching,”

(c) “information residing on systems or networks at [the] direction of users,” and

(d) “information location tools.”

 17 U.S.C. § 512(a)-(d).

In its holding, the Second Circuit analyzed § 512(c)(1)(A) which states that the safe harbor will apply only if the service provider:

(i) does not have actual knowledge that the material or an activity using the    material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

The Court explained that § 512(c) requires knowledge or awareness of specific infringing activity. It focused on the fact that under § 512(c)(1)(A) knowledge or awareness alone does not disqualify the service provider. Rather, the provider that gains knowledge or awareness of infringing material activity retains safe harbor protection if, under § 512(c)(1)(A)(iii), it acts expeditiously to remove or disable access to the material. The Court concluded that the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material because “expeditious removal is possible only if the service provider knows with particularity which item to remove.” Id. at 30.

Ultimately, the Court held that YouTube was not liable for direct and/or secondary infringement. This is because “general awareness” was not enough to strip YouTube of its safe harbor protection. Additionally, the Court noted that YouTube took down infringing material in an expeditious manner when it did have “actual notice” of the presence of the infringing material.

What Intellectual Property Issues Will Arise if The NBA Sells ad Space on Its Uniforms?

In July 2012, Adam Silver, the deputy commissioner of the NBA announced plans to allow corporate logos on team jerseys.  If the plan is formally approved, the ad space will be 2.5-in.-by-2.5-in. and will be placed below the left shoulder. This would be significant because prior to this year, none of the American big-four sports (the NBA, MLB, the NFL or the NHL) had contemplated providing ad space on their players’ uniforms. 

The decision to allow advertisements to be placed on NBA members’ uniforms could undoubtedly generate large revenue per annum, but a bigger concern will be the intellectual property disputes that could arise from the deal. 

Is there a likelihood that the venture could create sponsorship confusion for basketball fans? If more than one brand advertises on a single player’s uniform, could this create confusion over corporate association and dilute the brand?  These are all important questions to consider as this initiative proceeds to fruition. 

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May The Look and Feel of the Tetris Video Game be Protected by The Copyright Act?

Is the look and feel of the Tetris video game distinguishable from the ideas of the game and therefore protectable? In Tetris Holding, LLC v. XIO Interactive, Inc., No. 09-6115 (D.N.J. May 30, 2012), the United States District Court for the District of New Jersey answered this question in the affirmative. 

In that case, Plaintiff, Tetris Holdings, LLC sued XIO Interactive, Inc. (“Defendant”) for the Defendant’s marketing of the game called “Mino.”  Plaintiff alleged among other things, copyright infringement and trade dress infringement because the game copied many copyrightable aspects of its Tetris game.  Tetris identified the following fourteen (14) elements that were allegedly copied:

1. Seven Tetrimino playing pieces made up of four  equally-sized square joined at their sides;
2. The visual delineation of individual blocks that comprise each Tetrimino piece and the display of their borders;
3. The bright, distinct colors used for each of the Tetrimino pieces;
4. A tall, rectangular playfield (or matrix), 10 blocks wide and 20 blocks tall;
5. The appearance of Tetriminos moving from the top of the playfield to its bottom;
6. The way the Tetrimino pieces appear to move and rotate in the playfield;
7. The small display near the playfield that shows the next playing piece to appear in the playfield;
8. The particular starting orientation of the Tetriminos, both at the top of the screen and as shown in the “next piece” display;
9. The display of a “shadow” piece beneath the Tetriminos as they fall;
10. The color change when the Tetriminos enter lock-down mode;
11. When a horizontal line fills across the playfield with blocks, the line disappears, and the remaining pieces appear to consolidate downward;
12. The appearance of individual blocks automatically filling in the playfield from the bottom to the top when the game is over;
13. The display of “garbage lines” with at least one missing block in random order; and
14. The screen layout in multiplayer versions with the player’s matrix appearing most prominently on the screen and the opponents’ matrixes appearing smaller than the player’s matrix and to the side of the player’s matrix.

Id. at 5.

Defendant conceded that it blatantly copied the look and feel of Tetris so that it could make a similar game for the iPhone.  However, Defendant alleged that it was careful not to copy protectable aspects of the game.  Instead, it copied unprotectable elements such as the “rules, function, and expression essential to the game play.” Id. at 7.  Defendant argued that “not only are the ideas of Tetris (or the rules of the game) not protectable, but neither are the ‘functional aspects’ of the game or expressive elements relating to the game’s function or play.” Id. at 17.  However, the Court disagreed and stated that Defendant “cannot protect expression inseparable from either game rules or game function.” Id.

In its holding, the Court noted that the Plaintiff was conflating the doctrine of merger and the related doctrine known as “scenes à faire.”  The Court explained that merger exists when an idea and the expression of that idea become inseparable. Id. at 14.  In that situation, copying is allowed to prevent a copyright holder from obtaining a monopoly over that idea.  The Court went on to discuss how expressions that are so associated with a particular idea (scenes à faire) are also unprotectable by copyright law.  Id. at 15.  In Tetris, the Court felt that neither doctrine applied.

Evaluating screenshots of both games side by side revealed just how similar the two games appeared.  The Court stated:

Without being told which is which, a common user could not decipher between the two games.  Any differences between the two are slight and insignificant.  If one has to find distinctions only at a granular level, then the works are likely to be substantially similar.  Reviewing the videos of the game play bolsters this conclusion as it is apparent that the overall look and feel of the two games is identical.  There is such similarity between the visual expression of Tetris and Mino that it is akin to literal copying.

Id. at 26-27.

Ultimately, the Court granted summary judgment for Tetris Holding, LLC, as to the copyright infringement and trade dress infringement claims.    

 

What Elements Need to be Satisfied Under New York Law to State an Unjust Enrichment Claim?

To state a claim for unjust enrichment in New York, a plaintiff must establish that a) the defendant benefitted; b) the defendant benefited at the plaintiff’s expense; and c) that equity and good conscience require restitution.  Tasini v. AOL Inc., No. 11 Civ. 2472 (S.D.N.Y. March , 2012).  Ultimately, a court must be persuaded that it would be against equity and good conscience to allow a defendant to retain what the plaintiff seeks to recover. Id. at 9.

In Tasini, the Plaintiffs brought suit against the Defendants alleging, among other things, that the Huffington Post was unjustly enriched by its practice of soliciting and accepting unpaid written submissions for its website. Id. at 7.  The Plaintiffs further alleged that the Defendants unjustly denied them compensation for their independent promotion of the content.

 The Defendants moved to dismiss the suit claiming that the Plaintiffs failed to “demonstrate that equity and good conscience require restitution and, in the alternative, that the plaintiffs’ unjust enrichment claim is barred by the existence of an implied contract between the plaintiffs and the defendants.” Id. at 8.  The Defendants made clear to the Plaintiffs from the beginning that they would not be compensated for their voluntary contribution to the website.

The court noted that the essential inquiry in any action for unjust enrichment is whether it can be shown that equity and good conscience warrant restitution, which would therefore obviate the need for dismissal. See Id. at 9.  The court further noted that in evaluating whether equity requires restitution, New York courts look to whether the plaintiff has alleged an expectation of compensation that was denied.  Id. at 10. In this case, the Plaintiffs had full knowledge of the transaction and only expected to gain exposure from their contributions.  Ultimately, the court held that the complaint failed to plead an expectation of monetary compensation and the Plaintiffs therefore could not recover under their unjust enrichment theory.  Further, it was held that since the Plaintiffs contributed to The Huffington Post out of their own unprovoked desire, equity and good conscience did not support what was sought in this matter.

When bargaining, it is important that parties are clear about one another’s expectations.  Everything should be set in writing, if possible, before the transaction proceeds.  

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© 2012 Nissenbaum Law Group, LLC

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What Are The Repercussions For Sites That Facilitate Internet Music Piracy?

Would a person walk out of a store and take a CD without having paid for it?  If so, we might not only conclude that they are a shoplifter, but also someone who has committed theft of copyrighted intellectual property.  Many individuals commit the equivalent of the latter kind of theft by the illegal download of a digital file of a recorded song. File sharing software makers such as LimeWire, Napster and Kazaa have made it easy for users to easily commit this offense by a click of a mouse.  However, beware; there are consequences for sites that enable this sort of conduct.

In 2006, The Recording Industry Association of America (“RIAA” or the “association”) filed a lawsuit on behalf of its member music labels against LimeWire, claiming that the music industry had lost a lot of money because LimeWire's P2P software enabled users to share and make use of 11,000 copyrighted songs without paying a fee. The case was heard by the United States District Court, Southern District of New York. In 2010, the court ruled in favor of RIAA issuing a Permanent Injunction. RIAA, et al. v. Lime Wire, LLC, et al, 06 Civ. 05936 (Oct. 26 2010).  In evaluating whether an injunction was warranted the Court balanced four (4) elements:

1) irreparable injury;

2) whether or not there is an adequate remedy at law;  

3) consideration of the balance of  hardships between the parties; and

4) whether the public interest would be disserved by the injunction

Id. at 5.

The Court concluded that RIAA faced irreparable harm because “it is virtually certain that [RIAA] will be entitled to an enormous damage award [] that will far exceed Lime Wire’s ability to pay.” Id. at 6.  Under the Copyright Act, a plaintiff is entitled to statutory damages from $750-$150,000, depending upon the circumstances of the infringement. Id. at 6; See 17 U.S.C. § 504(a)(2)-(c). 

The Court found that a permanent injunction in addition to damages was necessary since the compensation for damages would only satisfy past infringement, not future infringement. Id. at 8.  The Court found that LimeWire’s widespread dissemination of its software left RIAA vulnerable to ongoing infringement by users and that this far outweighed any hardship to LimeWire by the injunction. Id. at 8. 

Although the Court agreed that LimeWire induced copyright infringement, it did not agree with RIAA’s position on damages.  RIAA believed that it was owed the statutory allotment ($750-$150,000) per download, per song. Id. at 6-7.  That would have amounted to a penalty well beyond LimeWire’s resources. Id. at 6.  Ultimately, in May 2011, LimeWire made its settlement offer, and the case settled for $105 million in damages.   

Businesses should take heed to the permanent injunction issued against LimeWire and the subsequent settlement amount of the lawsuit.  The issue of music piracy is serious and the music industry is being all the more active in fighting against copyright infringement. 

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Should Appropriation Artists Be Protected By Fair Use?

Appropriation art, which involves an artist purposefully copying the work of another, has become a popular art form. But is it legal? The United States District Court for the Southern District of New York recently faced that question and determined whether appropriators are entitled to use the defense of fair use against a claim of copyright infringement. Cariou v. Prince, 784 F.Supp. 2d 337 (S.D.N.Y. 2011).

The plaintiff in that case, professional photographer Patrick Cariou (“Cariou”), had spent time in Jamaica over the course of six years. After gaining the trust of the Rastafarians, he had been permitted to take their portraits. In 2000, Cariou published a book of his photographs. The book contained those portraits as well as landscape photos he had taken around Jamaica. He testified that he was the sole copyright holder of the images that appeared in his book.

The defendant, Richard Prince (“Prince”), was a well-known “appropriation artist” who had shown his work at several museums. Appropriation art deliberately copies images and presents them in a new version or context. During an exhibit at a hotel in St. Barts between December 2007 and February 2008, Prince showed a collage entitled “Canal Zone (2007)” which included 35 photographs that had been taken from Cariou’s book. Prince painted over some portions of the photos. Some were used in their entirety, while others were only partially used. Prince intended to use “Canal Zone (2007)” as a means of introducing characters he intended to use in a planned series of artworks. Cariou eventually claimed that Prince had infringed on his copyright, but Prince asserted that his works were protected by the defense of fair use.

Cariou possessed undisputed ownership of valid copyright in the photos, which courts have held to be a copyrightable subject matter for more than 100 years. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). The Court then considered whether Prince’s use of Cariou’s copyrighted work should be protected as a type of fair use. When determining whether a particular use of a copyrighted work qualifies as fair use, courts will consider four factors:

1)      the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2)      the nature of the copyrighted work; 

3)      the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 

4)      the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. §107.

First, the Court considered the purpose and character of Prince’s use of the photos. It found its transformative content to be “minimal at best,” its purpose to be “substantially commercial, and interpreted Prince’s failure to obtain permission (and the co-defendant Gagosian Gallery’s failure to inquire as to whether Prince had obtained permission) to constitute bad faith. Cariou at 350-1. Thus, it determined that the first prong weighed heavily against a finding of fair use. Second, the Court found that Cariou’s photos were highly original and creative (as opposed to factual or informational). Thus, the Court held that the use of such works without permission also weighs against fair use. Id. at 352.

Third, the Court considered the amount and substantiality of the portion of Cariou’s photos used in Prince’s works. It found that, in the majority of his works, Prince appropriated central figures that went to the very heart of Cariou’s works, and that this factor also weighed heavily against a finding of fair use. Id. Finally, the Court found the fourth factor to also weigh against fair use because Prince’s secondary use “unfairly damaged the original market for [Cariou’s] [p]hotos and, if widespread, would likely destroy any identifiable derivative market for [them].” Id. at 353. Because none of the four factors considered supported fair use, the Court found that the defendants were not entitled to fair use as a defense. Id.

Prince is appealing the Court’s decision. This case may have a significant impact in both the art and intellectual property industries. 

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How Much Copyright Protection Is Granted To A Twitpic?

Does copyright protection extend to original pictures that users post on their Twitter account? That question was considered by the United States District Court for the Southern District of New York last year. Agence France Presse v. Morel, 2011 WL 147718 (S.D.N.Y. Jan. 14, 2011).

The defendant, Daniel Morel (“Morel”), was a photojournalist working in Haiti when an earthquake devastated the city in January 2010. After photographing the aftermath, he opened his Twitter account as well as Twitpic, a third-party application of Twitter. He uploaded his earthquake photos to Twitpic and then posted a message on Twitter that advertised that he had “exclusive earthquake photos,” while also providing a link on Twitter to his Twitpic page. There were no copyright notices on the images themselves, but his Twitpic page included the attributions “Morel” and “by photomorel.”

Minutes after the photos were posted, Dominican Republic resident Lisandro Suero (“Suero”) copied the photos, posted them on his Twitpic account and then “tweeted” that he had the “exclusive photographs of the catastrophe for credit and copyright.” Morel at 2. He did not give attribution to Morel. Eventually, the plaintiff, Agence France Press (“AFP”) and many other international news agencies began to acquire photos of the devastation. AFP emailed Morel asking if he had pictures the agency could use, but before he responded, AFP downloaded 13 of Morel’s earthquake photos from Suero’s Twitpic page. AFP placed the photos in its image forum, where they were transmitted to Getty (Getty holds exclusive rights to market AFP images in North America). AFP then included a credit line of “AFP/Getty/Lisandro Suero.” Getty subsequently licensed the photos to other news outlets, including CBS and CNN.

In December 2010, AFP brought a declaratory judgment action that alleged that it had an express license to use Morel’s photos and thus did not infringe on his copyright. In a counterclaim, Morel alleged that AFP had in fact infringed on his copyright. AFP made a motion to dismiss Morel’s counterclaim, but the Court denied it.

To prevail on a claim of copyright infringement, a plaintiff must demonstrate both:

1)      ownership of a valid copyright, and

2)      infringement of the copyright by the defendant.

Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 108-09 (2d. Cir. 2001).

However, even where both elements of the infringement claim are met, the existence of a license is a valid defense. Tasini v. N.Y. Times Co., Inc., 206 F.3d 161, 170-71 (2d. Cir. 2000). AFP argued that the Twitter and Twitpic Terms of Service granted the news agency an express license to use Morel’s photos and thus did not infringe on his copyright. However, the Court did not accept the argument, finding that the Terms of Service “by their express language […] grant a license to use content only to Twitter and it partners. Similarly, Twitpic’s terms grant a license to use photographs only to Twitpic.com or affiliated sites.” Morel at 6. The Court held that because AFP was not a partner or affiliate of Twitter, it had not proven that it had an express license to use the photos.

AFP also argued that it should be considered a third party beneficiary of the agreement between Morel and Twitter. However, the Court held that the contracting parties must have intended to benefit the third party in order for that party to be considered a beneficiary of the agreement. The Court did not find any evidence that the language of the agreement indicated any intention to confer a license upon third parties, even though the language might have encouraged re-use of any content that is posted. “That language is ambiguous and insufficient to establish on the pleadings that Morel ‘understood that [Twitter] had [the] intent’ to confer a license on other users.” Id.

The Morel Court declined AFP’s motion to dismiss the plaintiff’s counterclaim and found that the photographer could proceed with his copyright infringement claims. 

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Fourth Amendment Protection in the world of Smart Phones: Are we compromising our expectations of privacy?

With the advent of wireless technology, there have been growing concerns about the protection of individual privacy against arbitrary intrusion by government agents. While cell phones help us stay in touch with the important people in our lives, the technology also has the inherent potential for exposing our private lives to others. Over the last couple of decades, the Courts have continued to evolve the Fourth Amendment doctrine to keep up with the privacy concerns raised by the technological advancement in cell phones.

The Fourth Amendment to the United States Constitution guards against unreasonable searches and seizures as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., amend. IV.

In US v. Katz, 389 U.S. 347, 367 (1967), the U.S. Supreme Court set forth a two-part test to determine whether search was conducted that implicated the Fourth Amendment. Under the two-part test the Courts need to determine:

1. Whether the individual has exhibited an actual expectation of privacy; and
2. Whether the society is prepared to recognize that this expectation of privacy is (objectively) reasonable.  

That case was considered a landmark because it made government wiretapping subject to the Fourth Amendment’s warrant requirements.

In 1979, the U.S. Supreme Court also determined that individuals had no reasonable expectation of privacy in the phone numbers used to make or receive calls on their phone.  In that case, Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court determined that “the installation and use of [a telephone number] pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746.”  The Court carved out a third party exception to the Fourth Amendment analysis as follows:

Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736] to the police, cf. United States v. Miller, 425 U.S. 735 .

Id. at 741-746.

It is extremely important to contrast the difference between the data conveyed on the pen register in Smith v. Maryland  and cellular telephone data that is automatically sent to the cell phone carrier even without the subscriber dialing any numbers. The data that is automatically sent to the cell phone carrier also contains the “cell site location information” (CSLI). The historical CSLI identifies the cell tower to which the customer was connected at the beginning of the call and at the end of the call. Thus, the historical CSLI data can be used to track the previous movements of the cell phone user. Similarly, prospective CSLI data can be used to track the movements of the cell phone user in future.

Several federal courts have held that cell phone users have a reasonable expectation of privacy in the cell site location records. Therefore, government cannot access CSLI without a warrant as per the Fourth Amendment. But the majority of federal courts have held that this reasonable expectation of privacy is for the prospective CSLI only.  However, recently, the United States District Court for the Eastern District of New York held that the exception to third party disclosure should also apply to historical CSLI because cell phone users have a reasonable expectation of privacy in the cumulative cell site location records.

As the Fourth Amendment doctrine and the scope of individual’s expectation of privacy continue to evolve with technological developments, attorneys will continue to challenge the legality of government’s access to these technological advances.

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Can impersonating someone and posting inflammatory comments about them on a fake Facebook page result in prosecution?

In November 2011, a Superior Court Judge sitting in Morristown, New Jersey refused to dismiss an indictment charging Dana Thornton with identity theft for impersonating her ex-boyfriend on a fake Facebook page and posting inflammatory comments about him. After an investigation by law enforcement, Ms. Thornton was indicted in August 2010 on one count of fourth-degree identity theft. She pleaded not guilty but if convicted she faces up to 18 months in prison.

The investigation originated when the Morristown prosecutor’s office was informed about a Facebook page that was set up without Lasalandra’s (Dana’s ex-boyfriend) permission. The prosecutor’s office then conducted an investigation and found that the Facebook page contained photos and personal information about Lasalandra. The page also contained comments made by Lasalandra in which he allegedly admitted using drugs, hiring prostitutes and having herpes. According to the prosecutor’s brief the posts included comments like “I’m a sick piece of scum with a gun” and “I’m an undercover narcotics detective that gets high every day.”

Ms. Thornton’s attorney defended by asserting that the indictment should be dismissed because identity theft does not include “electronic communications.” However, the Court disagreed and held that the law was “clear and unambiguous.” In other words, although the law did not specify the “means” by which the injury from identity theft might occur, that would not undermine the fact that a crime was committed.

Accordingly, the Court ordered that the lawsuit proceed.  It should be noted that the New Jersey legislature is reviewing an amendment that would specifically add electronic communications to the identity theft law. The proposed amendment can be viewed at: http://www.njleg.state.nj.us/2012/Bills/A2500/2105_S1.PDF

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What does it take to prove Cyberbullying?

Cyberbullying occurs when one person repeatedly uses information technology such as blogs, chat rooms, cell phones, e-mails or instant messaging to deliberately threaten, harass or intimidate another person(s). Cyberbullying also includes cyberstalking; sending sexually offensive messages to the victim; monitoring the victim’s online activities; sharing private or intimate information about the victim with others; and/or intentionally infecting the victim’s computer with a virus. Technology has created the opportunity for new forms of harassment in a variety of ways and from any distance. With the rapid spread of social networking sites and other Internet communication forums, there has been a tremendous increase in the Cyberbullying cases both in the federal and state courts.

Cyberbullying is not just confined to children. Adults working at large companies or educational institutions can also be victims. Cyberbullying can not only result in hurt feelings but also in severe harm to the victim, up to and including precipitating a suicide.  In many states, there are statutes passed by the Legislature that outlaw Cyberbullying.

Unfortunately, in the absence of such a statute, the common law does not generally recognize Cyberbullying as an independent tort. However, the victims of Cyberbullying can often bring a garden variety cause of action for defamation or intentional infliction of emotional distress when they are the victim of such behavior.

To prove intentional infliction of emotional distress, the victim has the burden to show that the harasser’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Murphy v. American Home Prods. Corp, 58 N.Y.2d 293 (1983). The victim also needs to prove that the victim suffered sustained financial, physical or psychological injury due to the harasser’s conduct.

To prove defamation, the victim is required to show the following:

1. The defendant made defamatory statement regarding the plaintiff
2. The defendant published the statement to others; and
3. Injury resulted to the plaintiff.

Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991).

Thus, there are potential common law remedies for Cyberbullying even in the absence of a specific statute providing relief.

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