A Southern California lawsuit involving bikinis, copyrights, and America Online has surfaced as a new candidate for the legal precedent that will establish how responsible an online service provider has to be for content posted on its network.
Two Orange County women have sued America Online and Surflink for $1 million for allegedly posting pictures of them in their bathing suits without permission. The women claim that their modeling opportunities have been jeopardized because Surflink, a site that offers information about surfers and tides on America Online and the Web, posted the pictures in November 1995 and made them available to anyone, according to John Hanson, the attorney working on the case.
Hanson confirmed that a complaint has been filed, but would not comment further. AOL officials said they had not yet seen the filing.
If it makes it into a courtroom, the case may help set a precedent that will clarify whether Internet service providers and online services can be held liable for material posted via their services that by law defames or infringes copyrights. Online legal observers had little to go on after Netcom and the Church of Scientology settled a comparable dispute this week because the out-of-court settlement failed to clarify if an ISP can be held liable for not removing contested information from its network.
The Orange County case has been building since two weeks after the photos first appeared when the women hired an attorney. The lawyer demanded royalties from Surflink, which responded by removing the pictures, hiring its own lawyer, and offering the women a royalty of $15.
One attorney who specializes in online law says that if the women didn't give permission to have their photos reproduced on either Surflink or AOL, they do have a good case to plead infringement. But he still doesn't expect the women to walk away as winners if Surflink and AOL can prove that they pulled down the photos right away.
"I don't think these women are going to make any money on this case," said Lee Gesmer, an attorney who deals with Internet issues. "The wise thing to always do is take the pictures down in a class like this. Why should AOL and Surflink spend money in lawyers, lawsuits, and controversy when they have nothing to gain?" Gesmer asked.
In the Netcom vs. Scientology case, the church alleged that Netcom should be held liable for copyright infringement after a former minister used Netcom to post literature copyrighted by the church. Netcom refused a request from the church to remove the material, claiming that it wasn't responsible for the actions of its customers. A court subsequently ruled that Internet access providers don't have to monitor their sites for illegal content, but the bigger question of whether they must pull down material in dispute was not addressed.
Although no court has said that Net access providers have to remove the content, Gesmer says that most will opt to do so just to avoid the hassle of going into court. If they do, plaintiffs like the Orange County women are probably out of luck as far as gathering royalties or damages.
"The reality is that the ISP is going to do the easy thing and take it off, because who is going to spend money on lawyers and hassle? It makes the service provider a judge, jury, and executioner in that situation," Gesmer said.
Gesmer said that once ISPs and online service providers realize that in taking content down, the issue will fade, but for now it remains unresolved.
"In the past, copying photographs was a physical process: You either had to go to a copy machine or copy a negative. Now [that] it is an effortless process, suddenly the ease of copying has become a factor, but the same laws still apply."