by Paul Alan Levy
In a comment posted yesterday to my blog post last week about an amicus brief that Public Citizen and EFF filed in the First Circuit, Ripoff Report founder Ed Magedson announced that his company is going to modify the browsewrap agreement that it has been imposing on users, whereby the company purported to obtain an exclusive license to carry reviewers’ critical content. This is progress for which that company deserves praise.
As I explained in last week’s post, our amicus brief agreed with Ripoff Report’s argument that plaintiff Small Justice had abused copyright law by trying to invoke it to enjoin continued posting of allegedly defamatory content. However, we also argued that a term in the Ripoff Report browsewrap contract that took an exclusive license in reviews was an unenforceable contract of adhesion. Our principal concern was that such a contract could be used to prevent users from posting the same criticism, in identical or even similar language, on other review sites.
According to Magedson’s comment, the only reason the current browsewrap agreement takes an exclusive license is to enable Ripoff Report to go after other review-hosting sites for “scraping” its content. He insists, as his counsel did when I discussed the case with them before filing our amicus brief, that Xcentric Ventures (the owner of Ripoff Report) has never pursued a copyright claim against a user for reposting the identical review elsewhere. However, to deal with the “academic concern” that I expressed in my blog post, Xcentric has now decided to revise the browsewrap agreement so that although reviewers will give the full copyright interest in their content to Xcentric, Xcentric will, in turn, give the reviewers licenses to re-post their own content.
I confess I not at all persuaded that Xcentric has any legitimate need to grab users’ copyright to attack “scraping.” Other review-hosting sites such as Yelp feel quite capable of addressing scraoing without having such an abusive contract claim. Moreover, although I can understand why Xcentric might see scraping as being contrary to its interests, it would be my guess that most consumers who have taken the trouble to compose critical reviews about businesses would be pleased to learn that their criticisms have been disseminated even further by other review sites, legitimate or otherwise. And if that is so, I am not inclined to believe that is worth any risk to consumers to justify the new browsewrap contract that Xcentric is developing. (And I express no view whether the new language would meet the legal concerns under Arizona law that our amicus brief presents).
Indeed, when I pressed Magedson in a conversation after he made his comment, it seemed to me that the justification for taking copyright was two-fold – that scrapers take traffic from his web site, and that scrapers make it less valuable for companies to buy into the “Corporate Advocacy Program.” Neither of those arguments suggests that there is any reason why the interests of consumers who write reviews on Ripoff Report are advanced by the taking copyright ownership away from them.
Moreover, I am less than impressed by the need to make the Corporate Advocacy Program more valuable, but discussing that here would detract from my main point, which is to express appreciation for Xcentric having responded to our amicus brief by dropping the browsewrap provision that we criticized.