Prof. Donald Jones’ Lawsuit Against Above The Law

Orin blogged about this below, linking to Ben Sheffner’s analysis at Copyrights & Campaigns. I agree with Sheffner that the lawsuit (see the Complaint) is a loser. In part, it’s even downright frivolous:

1. The false light invasion of privacy claim is frivolous because the Florida Supreme Court has expressly and recently held that no such claim is recognized under Florida law (which is the law that would govern this dispute). I would think that this would be an occasion for Rule 11 sanctions against the plaintiff, though I defer on that to others who are experienced in federal civil litigation.

2. The invasion of privacy claim is a loser because (among other things) the First Amendment protects the right to reveal public records such as arrest reports. That’s true even when the arrest report contains the name of a rape victim; it would be equally true when it contains the name of the accused, even if the accused turns out to be innocent (as Prof. Jones claims he is). It’s also possible, as Sheffner points out, that 47 U.S.C. § 230 protects Above The Law because David Lat just posted something that was passed along by someone else (see Batzel v. Smith (9th Cir.)), but it’s not completely certain that the Eleventh Circuit will take this view; nonetheless, Above The Law doesn’t need this immunity, because it’s protected by the First Amendment and likely by the built-in limitations of state tort law.

3. The copyright claim, based on use of Prof. Jones’ picture, seems to be a likely loser because it’s highly unlikely that Jones owns the copyright in the picture — the complaint says that the picture was “stolen from the UM website without permission,” and in my experience such photos are generally taken by the school or an independent photographer, and the copyrights remain with the school or the photographer. But even if Prof. Jones has acquired the copyright in the photograph, it seems very likely that its use in the blog post is fair use.