You, and not Medium, would be liable for a writer’s malfeasance
Defamation of Character and Infringement of Intellectual Property Rights on Medium
What every publication owner needs to understand and protect against
The Applicable Law
I believe it is universally understood, or at least accepted, that a newspaper or magazine, along with a writer, whether such writer is an employee or a freelancer, would be liable for infringement of intellectual property rights and for defamation of character, which when committed in writing, is denominated libel.
The lines blurred with the advent of the digital age. In order to allow platforms not to be impossibly responsible for posts over which the platforms have no control, while at the same time encouraging the platforms to moderate content without becoming legally responsible therefor, Congress passed two laws relevant to the subject of this article, to wit: 1) The Communications Decency Act (the “CDA”) and 2) The Digital Millenium Copyright Act of 1998 (the “DMCA”).
The CDA provides in relevant part that:
No provider or user of an interactive computer service [(“ICS”)]shall be treated as the publisher or speaker of any information provided by another information content provider.
The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
Similarly, as summarized by United States Copyright Office, the DMCA states:
A party seeking the benefit of the limitations on liability in Title II must qualify as a “service provider.” …“service provider” is defined in section 512(k)(1)(A) as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.”
By Medium, outright pushing responsibility for being the copyright police downhill onto publications, and as we choose, in varying degrees, to affect the content of articles by taking pride in our publications and thus to whatever extent, editing submissions, publications are not mere platforms for writers and do not have any shield from liability for either defamation or intellectual property infringement.
In order to keep their shields, ICS’s must act to shut down the accounts of infringers, which if one reads Medium’s detailed copyright policy, is one aspect of Medium’s policy that is clearly and appropriately designed by well-paid counsel to fit squarely within the DMCA shield.
Indemnification:
Moreover, Medium’s Terms of Service, which even the most sophisticated layperson-publication-owners do not know exists, provides:
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Medium, and our officers, directors, agents, partners and employees (individually and collectively, the “Medium Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights) or your violation of the law. You agree to promptly notify Medium Parties of any third-party Claims, cooperate with Medium Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees). You also agree that the Medium Parties will have control of the defense or settlement, at Medium’s sole option, of any third-party Claims.
This means that if Medium is hit with any claim for infringement or defamation or invasion of privacy, that the member, which includes publication owners, is liable to Medium for its losses, including attorneys fees, even if Medium opts to pay a settled amount, which it may do in its sole discretion without so much as consulting us.
Recommendations:
- Policies:
Publication owners should enact strict and simple policies and afford their editors zero discretion to vary therefrom. I have yet to see a story that is so dependent on one image over another to even warrant discussion as to why the writer thinks the image does not infringe. Unless the image is from a recognized stock photo provider or a recognized licensing site, and in either case properly captioned and in the latter case without watermarks, or a “friends and family” photo of friends and family, I would reject the image. I don’t care if the writer says it’s their picture of Old Faithful or the Trevi Fountain — unless they provide the driver’s license of the person identified in the picture as a personal acquaintance, let them find a stock photo. If they threaten not to write for you anymore, good riddance!!
Contrary to popular belief, just because the image is found on Facebook or Instagram does not make it usable.
2. Limited Liability Entities as Owners
Set up a corporation or LLC to be your publication owner. This does not require any involvement by Medium. Have your attorney prepare a nominee or agency agreement between you and your entity, and in any place on Medium that indicates that you are a publication owner, drop in the words “as agent for [name of entity]. Discuss with your counsel using a “not-for-profit” entity as the veil-piercing formalities may be more relaxed.
3. Publication Owner Association
Organize with each other, appoint leaders, and demand that Medium exempt from the indemnity clause owners who make good faith efforts at policing the writers.
Quid pro quo:
What would I like for myself in kind for the thousands of dollars of legal work I just did for you? I came to Medium to hone my writing as a stepping stone to a new career. Lately, becoming a syndicated columnist has resonated. Philosopher, think tank member, or similar application of my vast mind has occurred to me. I request that you familiarize yourself with my work and keep me in mind should you come across an opportunity for my advancement.
Thank you,
In Rama I create,
Marcus
New York University School of Law, Class of 1992 Admitted to Practice in New York