Curran v. Amazon.com, Inc., 2008 WL 472433 (S.D. W.Va. Feb. 19, 2008)

Erik Curran was a National Guard soldier who served in "a combat zone." For reasons unclear from this opinion, he was photographed by an unspecified photographer, and the photo (or photos) of Curran became widely republished. Erik is now suing numerous defendants for violations of his publicity and privacy rights based on these republications.

CafPress is a defendant because third party users provided Curran's photos for republication on CafPress-produced t-shirts. CafPress asserts a 230 defense.

Superficially, 230 looks possible. The images were provided to CafPress by third parties, CafPress is a website, and 230 preempts right of privacy claims. I also think 230 probably bar right of publicity claims; even if the publicity claims are IP claims, they would still be state-based IP claims that should be preempted per ccBill.

Nevertheless, I'm a little confused about CafePress' 230 defense. Even assuming 230 facially applies, it should cover only CafPress' web-based publications and not the vending of physical goods. (As discussed in the Accusearch case, it's possible that any vending by a merchant of record is outside 230's scope, even when the vended materials are just online data). Thus, CafPress' shipment of physical space t-shirts with an improper image could be outside 230's scope. Perhaps CafPress believes (much like Amazon did in the Corbis v. Amazon case) that the physical space sales are made by its users, not CafPress. I could see a judge buying that argument, but if CafPress is integrally involved in every aspect of the physical retailing, manufacturing and shipment of the impermissible items, it's not clear CafPress can avoid liability for the non-cyberspace activities, none of which should be covered by 230. (In this sense, I believe CafPress provides substantially more services to its third party "merchants" than Amazon provides its zShop merchants that were at issue in the Corbis case).

The court doesn't get into this nuance here. Instead, CafPress argued that Curran's complaint had not alleged that CafPress had created or developed the content at issue. The court says this argument is insufficient because "CafPress relies upon the absence of facts not pled in the complaint and seeks to place the onus on the plaintiff to plead around affirmative defenses, which it need not do." I think the court is wrong about this--many courts have granted the 230 defense on a motion to dismiss based on incomplete allegations--but this may not matter in the end. The court adds that "plaintiff faces an uphill battle given the broad grant of immunity conferred by 230, as interpreted in the seminal case of [Zeran]." But the denial of the motion to dismiss gives Curran a fishing expedition license and some time to parse through the liability associated with vending physical items.

One other interesting note. Curran also sued Amazon for displaying a book cover (from a third party publisher) that featured Curran without his consent. Amazon defended by citing the Almeida case, which dealt with an identical issue. In Almeida, the court sidestepped Amazon's 230 defense and instead held that Amazon wasn't liable because the book cover display was just incidental to Amazon's sale of the book. This court defers the issue, refusing the motion to dismiss as too early to make that judgment.

First, a couple things to bear in mind:

The person of the year doesn't have to be a person. In previous years, it's been a group of people ("The Whistleblowers," 2004), an abstract figure ("The American Soldier," 2003), a pronoun that's really a concept ("You," 2006) and even a device ("The Computer," 1982).

The person of the year is meant to be the most influential person/group/entity/concept of the year, but the designation is value-neutral -- at least in theory. Past POYs have included Richard Nixon, Ayatollah Khomeini and Adolf Hitler. In practice, Time has seemed to favor feel-good POYs in recent years, possibly because it's easier to sell the issue to advertisers. Hence Rudy Giuliani in 2001 instead of Osama bin Laden.

And now for the contenders:

Pervez Musharraf
This would be something of a throwback choice -- an actual individual rather than a group or concept, a dictator rather than a hero. Picking Musharraf would reflect an emerging consensus that Pakistan -- not Iraq or Iran -- is the make-or-break foreign policy issue of the next few years. On the other hand, even though POY is supposed to be value-neutral, Time editors might worry that bestowing the title on Musharraf so soon after he declared emergency rule might be seen as an endorsement of his power-grab.

Rupert Murdoch
It's been a banner year for Murdoch, with his acquisition of The Wall Street Journal and the launch of Fox Business. And his $580 million purchase of MySpace in 2005 put him right in the middle of the year's biggest media story, social networking. While a media mogul might seem like an insidery choice, past POYs have included Ted Turner and Amazon's Jeff Bezos.

The Dissenters
A politician POY is unlikely this year, since next year's selection will almost certainly be the winner of the presidential election. (The last time a new president wasn't named POY was 1988, when "Endangered Earth" beat out George H.W. Bush; before that, it was 1968, although Nixon was recognized after his 1972 victory.) If it's to be a political cover, I'd guess we'll see some kind of concept package expressing the national mood. Thus: "The Dissenters": the figures who give voice to our exasperation with the Bush Administration. Time likes three-person tableaux, so let's say Stephen Colbert, Keith Olbermann and perhaps Eli Pariser of MoveOn.org, or Arianna Huffington? Or forget "The Dissenters" -- wrap them in a flag and call it "The New Patriots."

I know I'm missing obvious possibilities here -- is there someone who could serve as the face of the sub-prime crisis? -- but I'm out of ideas, and rather than ask all my co-workers to help me look smart, I figured I'd crowdsource this one. If you have suggestions, put 'em in the comments, and if I can I'll bounce them off the panelists.