|MINNEAPOLIS PERSONAL INJURY ATTORNEY|
Gregerson v. Vilana Financial, Inc.: US District Court : COPYRIGHT | CDA - removing digital watermark; Communications Decency Act immunity for third parties' commentsUNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FINDINGS OF FACT,
v. CONCLUSIONS OF LAW, AND
ORDER FOR JUDGMENT
Civil No. 06-1164 ADM/AJB
Vilana Financial, Inc., a Minnesota
Corporation and Vilana Realty, Inc., a
Chris Gregerson, pro se.
Boris Parker, Esq., Bassford Remele, Minneapolis, MN, on behalf of Defendants.
The above-titled matter was tried by consent of the parties as a court trial before the
undersigned United States District Judge beginning on November 5, 2007. At issue were
Plaintiff Chris Gregerson’s (“Plaintiff”) claim of copyright infringement against Vilana
Financial, Inc., and Vilana Realty, Inc. (“Defendants”) and Defendants’ counterclaims of
deceptive trade practices, intentional interference with prospective contractual relation, and
appropriation against Plaintiff. Having previously determined in a prior order [Docket No. 108]
that Defendants are liable to Plaintiff for copyright infringement, the only issues for trial on
Plaintiff’s claim related to damages. After two days of trial and hearing the testimony of eight
witnesses, the Court finds in favor of Plaintiff and dismisses Defendants’ counterclaims with
II. FINDINGS OF FACT
1. Plaintiff is a photographer of stock images that he licenses on a single-use basis and
that can be purchased as prints.
2. Defendants are Minnesota corporations offering mortgage, financial, and real estate
services. Andrew Vilenchik (“Vilenchik”) is the principal shareholder of both corporations.
3. Two photographs taken by Plaintiff, image 2981, hereinafter referred to as the
“Skyline” photograph, and image 2258, hereinafter referred to as the “Kenwood” photograph are
the basis of the infringement claim. The Skyline photograph is a picture of the Minneapolis
skyline taken by Plaintiff on January 8, 2004. The Kenwood photograph is a picture of a home
taken by Plaintiff on August 20, 2002.
4. Plaintiff maintains a website where he publishes his photography, including the
Skyline and Kenwood photos. The website, cgstock.com: Phototour of Minneapolis, can be
accessed at two web addresses: (1) http://www.phototour.minneapolis.mn.us; and (2)
www.cgstock.com. Plaintiff uses the website to publish his photographs and as a medium for his
stock photography business. Persons interested in using Plaintiff’s photographs may license
them according to the terms and prices set forth on the website.
5. On January 14, 2004, Plaintiff published the Skyline photo on his website. Plaintiff
published the Kenwood photo on his website on November 23, 2002. The website, the exclusive
source for both photos, included the following notice: “Copyright © 2004 Chris Gregerson”
underneath the Skyline photo. Pl.’s Ex. 1. Plaintiff published the following notice underneath
the Kenwood photograph: “Copyright © 2002 Chris Gregerson.” Pl.’s Ex. 2.
6. The posted photos had been edited by Plaintiff to include a visible watermark with the
following website: www.phototour.minneapolis.mn.us and a digital watermark. Pl.’s Exs. 1-4.
7. A digital watermark is a digital code that is imperceptible to the eye but is readable by
computers and software. Plaintiff used the software utility “exiftool” to extract the digital files
embedded in his images. For each image, the embedded data included the copyright notice.
Pl.’s Exs. 3, 4.
8. In May 2005, Plaintiff discovered the unauthorized use of his Skyline photo by
Defendants in a Vilana Financial advertisement printed on the inside cover of the 2005-06 Qwest
Dex phone book. Pl.’s Ex. 5. Plaintiff testified that Qwest printed approximately 500,000
copies of the phone book containing Defendants’ advertisement. The image in the Qwest
advertisement is cropped so that the watermark with Plaintiff’s web address does not appear on
9. After discovering the Qwest advertisement, Plaintiff sent a letter to Defendants on
June 6, 2005, demanding payment for the unauthorized use. Pl.’s Ex. 21. In Plaintiff’s letter he
estimated that the fair market value for use of the Skyline photo in the Qwest advertisement was
,816. Id. Plaintiff explained that his policy was to triple the charge for unauthorized use of
his photographs and that Defendants had until June 20, 2005, to pay him treble damages of
,448. Id. Plaintiff further stated his policy would be to increase his fee to ten times the normal
fair market value bringing the fee to ,160 if Defendants failed to pay him by June 20, 2005.
10. Plaintiff later discovered Defendants had used his photo on additional print and web
advertisements. In each case the Skyline photo had been edited to remove the watermark with
Plaintiff’s web address. Plaintiff discovered that Defendants used his Skyline photo in an
advertisement published in Zerkalo, a Russian-language newspaper with a press run of 5,000
copies of each issue, and in the Zerkalo website. Pl.’s Exs. 12, 13. Defendants used the Skyline
photo in a one-fourth page advertisement that appeared in six different issues of the newspaper.
Defendants used the Skyline photo in two advertisements that appeared on the Zerkalo website.
One advertisement was a one-fourth page advertisement that appeared on the website’s
homepage for six months. The other advertisement was a one-eighth page advertisement that
also appeared on the website’s homepage for six months. Plaintiff also discovered that
Defendants used his Skyline photo in a one-eighth page online advertisement appearing on the
website www.bestredyp.com. Pl.’s Ex. 15. This was a non-homepage advertisement that ran for
11. In the course of discovery of the original infringement claims, Plaintiff discovered
that Defendants used his Kenwood photo in a tri-fold brochure that also includes the Skyline
photo. Pl.’s Ex. 17. Plaintiff estimates that Defendants printed 30,000 copies of the brochure
displaying the Kenwood photo while Defendants contend that they printed only 1,000 copies.
12. Defendants contend there was no willful infringement of Plaintiff’s copyright,
because they believed they validly licensed the Skyline and Kenwood photos from an individual
named “Michael Zubitskiy” (“Zubitskiy”). Vilenchik testified he met Zubitskiy in the sauna at
the gym in early March 2004 and in that initial meeting commissioned Zubitskiy to take
photographs of buildings in Minneapolis. Vilenchik claims he did not speak with or hear from
Zubitskiy until Zubitskiy called to tell him that he was ready to present the pictures he had taken.
Vilenchik testified that after Zubitskiy called him, Zubitskiy came to his office and produced a
CD containing digital images of the Skyline and Kenwood photos. Vilenchik says he agreed to
pay Zubitskiy for the photos and memorialized the agreement in writing. Under the terms of the
written agreement dated March 19, 2004 (hereinafter, the 3/19/04 Agreement), Zubitskiy agreed
to sell Defendants the photos for 0. Pl.’s Ex. 28. According to the agreement, “[a]ll photos
1 Whether the change in spelling of “Zubitskiy” in the 3/19/04 Agreement to “Zubitsky”
in Defendants’ Proposed Findings of Fact is intentional or a typographical error will not be
resolved here, but it is curious nonetheless.
and images will become an intellectual property of Vilana Financial and cannot be resold.” Id.
The agreement is signed by Zubitskiy and notarized by Vladimir Kazaryan (“Kazaryan”). Id.
13. The Court finds there is no credible evidence to support a belief that “Zubitskiy”1
exists or was the source of the controverted photos. It is highly implausible that after a brief
meeting in the sauna at the gym at which Zubitskiy did not provide contact information,
references, or examples of his work, Defendants commissioned Zubitskiy to perform the
photography service. Defendants ask the Court to believe that Zubitskiy arrived at Defendants’
office with the exact type of photos Defendants needed in the correct format and image
resolution without so much as a phone call in the interim. Further undermining Defendants’
story is the fact no contact information for Zubitskiy was included on the 3/19/04 Agreement
presented by Defendants and, despite Plaintiff’s discovery requests, Defendants have failed to
provide any information regarding the whereabouts or existence of Zubitskiy. Despite
Vilenchik’s contention that the CD Zubitskiy provided contained several photos in addition to
the Skyline and Kenwood photos, Vilenchik did not remember what images the other
photographs contained, nor the specific number of photographs on the CD.
14. Vilenchik’s testimony was inconsistent and full of contradictions. Vilenchik
explained that although he was in the sauna, he was able to give Zubitskiy his contact
information without the benefit of paper and pen because his cell phone number was easy to
recall. However, Vilenchik’s deposition testimony was that Zubitskiy called him at the
following number: 612-963-2900. Dep. Tr. at 24. What would make this phone number
particularly easy to recall eludes the Court. In another contradiction, Vilenchik stated in his
deposition that at Zubitskiy’s request he paid cash, Dep. Tr. 28, but at trial he testified that he
paid cash because Defendants did not have a company checkbook at the time of payment.
Additionally, Vilenchik testified at trial that Zubitskiy took the photos in March, yet the
conditions depicted in the Kenwood photograph show it was taken during the late spring or
15. Vilenchik’s credibility was further undermined through the character testimony of
several witnesses during trial. Michael Walker, who worked for Defendants and had both
business and personal contacts with Vilenchik, testified that Vilenchik has a reputation of being
honest only when it serves him. Similarly, Vladimir Sivriver, who has worked and socialized
with Vilenchik, testified that Vilenchik has a reputation for being highly deceptive and saying
one thing and then doing another. Kazaryan also testified to Vilenchik’s reputation for being
dishonest. Kazaryan, who has both a professional and personal relationship with Vilenchik,
echoed Sivriver’s testimony stating that Vilenchik has a bad reputation and is known for saying
one thing and then doing something different. Kazaryan believes Vilenchik exaggerates the
16. The testimony of Kazaryan is additional evidence that Zubitskiy is fictional and the
3/19/04 Agreement is fraudulent. Kazaryan initially testified that he did not remember
notarizing the 3/19/04 Agreement but later testified that he remembered some portion of it.
When Kazaryan was asked whether Zubitskiy was present when he notarized his signature on the
3/19/04 Agreement, Kazaryan replied “apparently, yeah.” Further, when notified that the
Commissioner of Commerce was prepared to formally investigate whether Kazaryan
fraudulently notarized the 3/19/04 Agreement, Kazaryan voluntarily agreed to surrender his
notary seal. Although both Kazaryan and Vilenchik testified to the existence of Zubitskiy, the
Court finds their testimony lacking credibility.
17. Defendants did not procure the Skyline and Kenwood photos from Zubitskiy, rather,
they unlawfully procured them from Plaintiff’s website.
18. After Defendants refused to pay Plaintiff the amount requested in his June 6, 2005,
letter, Plaintiff posted on his website an essay about the dispute and a picture of Vilenchik.
Plaintiff has continued to use his website as a forum for discussing his dispute with Defendants.
In addition to posting essays regarding the dispute, Plaintiff has maintained a comment section in
which visitors to his website may post commentary. The comments posted on Plaintiff’s website
included criticism of Defendants by Plaintiff, comments posted by visitors to the website, and
comments by Vilenchik.
19. Plaintiff’s website comments include a detailed description and chronology of all the
events relating to this litigation in an essay originally titled “Vilana Financial/Andrew Vilenchik
Sued for Copyright Violation, Suspected of Fraud and Forgery.” Plaintiff requests: “If you have
any information to share, you can email me at email@example.com. You can also post a
comment on this page, keeping in mind profanity and libel are not allowed.” Defs.’ Ex. 5(A).
Plaintiff also made the following comment:
If you are currently considering obtaining a mortgage through Vilana
Financial, Inc. I would encourage you to consider finding a mortgage elsewhere.
If you are a customer of Vilana Financial and believe you have been a victim of
illegal, fraudulent, or predatory loan practices, you can file a complaint with the
Minnesota Department of Commerce, market assurance division . . . .
20. Visitors to Plaintiff’s website posted numerous comments in response to Plaintiff’s
essay. Id. While many of the comments related to the legal issues involved in the litigation,
many comments expressed personal opinions about Vilenchik and his businesses. Id. These
comments included accusations that Vilenchik was affiliated with the Russian mafia, that his
secretary was his girlfriend and a prostitute, and that Vilenchik is a thief. Id.
21. Vilenchik also posted a comment on Plaintiff’s website. Id. In his comment, he
denies intentionally using Plaintiff’s photo without authorization, offers his opinion regarding
the litigation, and denies any wrongdoing. Id.
III. CONCLUSIONS OF LAW
A. Plaintiff’s Damages
Plaintiff seeks actual damages for Defendants’ use of his Skyline photo under 17 U.S.C.
§ 504(b). Pl.’s 2d Am. Compl [Docket No. 119]. Plaintiff asserts Defendants’ willful
infringement of his copyright for the Kenwood photo entitles him to statutory damages up to
0,000 under 17 U.S.C. § 504(c)(2). Plaintiff asserts that Defendants’ willful removal of the
electronic and visible watermarks from his photos is a violation of 17 U.S.C. § 1202, thus
entitling him to damages under 17 U.S.C. § 1203. Plaintiff also seeks his costs and attorney’s
fees under 17 U.S.C. § 505.
1. Actual Damages for the Skyline Photo
Plaintiff claims the fair market value for all uses of his Skyline photo by Defendants is
,462. Plaintiff, however, seeks ten times that amount because he published a policy of
charging ten times the fair market value for unauthorized uses not paid for within ten days. Pl.’s
Proposed Findings and Conclusions ¶ 47 [Docket No. 149].
17 U.S.C. § 504(b), however, does not provide for a tenfold increase of punitive damages
on the basis Plaintiff seeks. Section 504(b) entitles the injured party to actual damages to
compensate for the injury resulting from the infringement but also entitles the injured party to
the infringer’s profits deriving from the infringement. “By stripping the infringer not only of the
licensing fee but also of the profit generated as a result of the use of the infringed item, the law
makes clear that there is no gain to be made from taking someone else’s intellectual property
without their consent.” Walker v. Forbes, Inc., 28 F.3d 409, 412 (4th Cir. 1994). The Supreme
Court has made very clear that the purpose behind the measure of damages set forth in § 504(b)
is “to provide just compensation for the wrong, not to impose a penalty by giving to the
copyright proprietor profits which are not attributable to the infringement.” Sheldon v. Metro-
Goldwyn Pictures Corp., 309 U.S. 390, 399 (1940).
Plaintiff could have sought the profits Defendants derived from the infringement as
damages but chose not to do so. Although Plaintiff included a request for this type of damage
award in his First Amended Complaint [Docket No. 76], he abandoned his claim for profits in
his Second Amended Complaint and did not pursue this theory of relief at trial. Accordingly,
Plaintiff’s damages are limited to actual damages—that is, the fair market value of Defendants’
uses of the Skyline photo. To award Plaintiff ten times the fair market value of his pricing
policy, would be to “impose a penalty by giving to the copyright proprietor profits which are not
attributable to the infringement.” Sheldon, 309 U.S. at 399.
Plaintiff estimates the fair market value of all of Defendants’ uses of his Skyline photo to
be ,462; Defendants estimate the fair market value to be ,756. At trial, Plaintiff testified
regarding his calculation of the fair market value of Defendants’ uses of the Skyline photo. Pl.’s
Ex. 24. Plaintiff obtained price quotes from four other stock photography websites based on a
license for “rights-managed photos (usage fees calculated on a case-by-case basis) for nonexclusive
use of a photo similar to [the Skyline photo].” Id. In obtaining the price quotes,
Plaintiff took into account the various factors that impact the licensing fee such as the size of the
image relative to the publication, the placement of the advertisement, and the number of copies
printed or the amount of time the advertisement ran. Plaintiff determined the total fair market
value each stock photography website would charge for all of Defendants’ uses and determined
that fair market value was the average of those estimates: ,462. Id.
Defendants do not explain their calculation of the fair market value of their uses of the
Skyline photo; however, they assert that their ,756 estimate is consistent with the ,816
demanded by Plaintiff in his June 6, 2005, letter. Plaintiff’s letter, however, sought payment for
Defendants’ use of the Skyline photo in only the Qwest advertisement and does not reflect the
fair market value of Defendants’ additional uses of the Skyline Photo.
The Court awards Plaintiff ,462 in actual damages under 17 U.S.C. § 504 for
Defendants’ infringing uses of the Skyline photo.
2. Statutory Damages for the Kenwood Photo
Plaintiff seeks damages for Defendants’ use of the Kenwood photo under 17 U.S.C.
§ 504(c)(2). Section 504(c)(2) provides that “[i]n a case where the copyright owner sustains the
burden of proving, and the court finds, that infringement was committed willfully, the court in its
discretion may increase the award of statutory damages to a sum of not more than 0,000.” In
determining the proper measure of statutory damages, the Court considers what is just in a
particular case, the nature of the copyright, and the circumstances of the infringement. Peer Int’l
Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990). “Because awards of statutory
damages serve both compensatory and punitive purposes, a plaintiff may recover statutory
damages whether or not there is adequate evidence of the actual damages suffered by plaintiff or
of the profits reaped by defendant . . . in order to sanction and vindicate the statutory policy of
discouraging infringement.” L.A. News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987,
996 (9th Cir. 1998) (internal quotations and citations omitted).
The standard for determining whether the infringer’s conduct was willful is “whether the
defendant had knowledge that its conduct represented infringement or perhaps recklessly
disregarded that possibility.” Hamil Am., Inc. v. GFI, 193 F.3d 92, 97 (2d Cir. 1999). “[E]ven
in the absence of evidence establishing the infringer’s actual knowledge of infringement, a
plaintiff can still prove willfulness by proffering circumstantial evidence that gives rise to an
inference of willful conduct.” Island Software & Computer Serv. v. Microsoft Corp., 413 F.3d
257, 264 (2d Cir. 2005).
By March 2004, when Defendants contend they procured the photos from Zubitskiy,
Plaintiff had obtained a copyright for both photos and Plaintiff’s website contained content
informing visitors that the photos were copyright protected. Having found that Defendants did
not purchase Plaintiff’s photos from Zubitskiy and that Plaintiff’s website was the sole source for
the Skyline and Kenwood photos, the Court concludes that Defendants obtained the photos from
Plaintiff’s website and thus, willfully infringed Plaintiff’s copyright. In so finding, the Court
awards Plaintiff ,000 in statutory damages. This amount serves the interests of justice in
acknowledging both the need to compensate Plaintiff and deter Defendants from future
infringement. By unlawfully obtaining Plaintiff’s photos from his website, where it was clear
both that use of Plaintiff’s photos was only available for a fee and that the photos were copyright
protected, Defendants flagrantly disregarded Plaintiff’s rights as a copyright owner.
3. Damages for Removal of Copyright Management Information
Plaintiff asserts that Defendants’ willful removal of the digital and visible watermarks
from his photos is a violation of 17 U.S.C. § 1202, thus entitling him to damages under 17
U.S.C. § 1203. 17 U.S.C. § 1202(b)(1), provides that “[n]o person shall, without the authority of
the copyright owner or the law intentionally remove or alter any copyright management
information.” 17 U.S.C. § 1202(c) defines copyright management information as “information
conveyed in connection with copies . . . , including in digital form” and provides a list of such
information including “the name of, and other identifying information about, the copyright
owner of the work, including the information set forth in a notice of copyright,” § 1202(c)(3),
and “[i]dentifying numbers or symbols referring to such information or links to such
information,” § 1202(c)(7).
The text of § 1202 defines copyright management information broadly and specifically
includes information conveyed in digital form. Accordingly, while it is uncertain whether the
visible watermark providing Plaintiff’s website qualifies under § 1202(c)(7), Plaintiff’s digitally
embedded watermark does meet the definition set forth in § 1202(c)(3). The digitally embedded
watermark, “(c) Chris Gregerson 2003” on the Skyline photo and “(c) Chris Gregerson 2002” on
the Kenwood photo, includes Plaintiff’s name and the notice of copyright. The plain text of
§ 1202(c)(3) unambiguously defines copyright management information to include protection for
a digitally embedded watermark. However, even if the Court were to conclude that § 1202(c)’s
definition of copyright management information was ambiguous and were to look to the
legislative history and intent underlying § 1202(c), there is further support that a digitally
embedded watermark constitutes copyright management information. In IQ Group, Limited. v.
Wiesner Publishing, LLC, 409 F. Supp. 2d 587, 596 (D.N.J. 2006), Judge Joseph A. Greenaway,
Jr., of the United States District Court for the District of New Jersey, engages in a lengthy
evaluation of legislative history and intent and concludes that “Congress viewed a digital
watermark as an example of copyright management information.”
2 Plaintiff testified at trial that he included in his Second Interrogatories, Second Request
for Production, and Second Request for Admissions, a request that Defendants produce the
copies of his photos used by Defendants and the advertisements including the Kenwood photo in
digital form. A review of Defendants’ Answers to Plaintiff’s Second Interrogatories, Second
Request for Production of Documents and Request for Admissions, Plaintiff’s Exhibit 32, does
not reveal such a request and Plaintiff did not offer into evidence the Second Interrogatories,
Second Request for Production of Documents and Request for Admissions he submitted to
Defendants. Accordingly, there is no evidence of record that Plaintiff requested the digital copy
of the Kenwood photo as possessed by Defendants and used in Defendants’ brochure.
Defendants failed to produce the original Skyline photo used in the Qwest advertisement
as requested in Plaintiff’s first request for production. Plaintiff submitted his first request for
production before discovering that Defendants had also used his Kenwood photo and it does not
appear that he submitted a request that Defendants produce the original Kenwood photo used in
the tri-fold brochure.2 By failing to produce the original version of the Skyline photo used by
Defendants in their various advertisements, Plaintiff was unable to determine whether
Defendants removed the digitally embedded watermark. Defendants, however, cannot benefit
from this failure to produce. “Where relevant evidence is within the control of a party to whose
interest it would naturally be to produce it and he fails so to do, without satisfactory explanation,
and produces no evidence or weaker evidence, an inference is justifiable that it would be
unfavorable to him.” Goldie v. Cox, 130 F.2d 695, 719 (8th Cir. 1942). The Court infers from
Defendants’ failure to produce the original electronic image used in its advertisements that the
original image would have demonstrated that Defendants removed or altered Plaintiff’s digitally
embedded watermark in violation of § 1202(b)(1).
17 U.S.C. § 1203 provides that this Court may award Plaintiff damages upon finding that
Defendants violated § 1202. Plaintiff elected to recover statutory damages for Defendants’
violation of § 1202 under § 1203(c)(3)(B). Pl.’s 2d Am. Compl. Under § 1203(c)(3)(b),
Plaintiff may recover “statutory damages for each violation of section 1202 in the sum of not less
than ,500 or more than ,000.” The Court awards Plaintiff ,000 for Defendants’ willful
removal of the digitally embedded watermark in the Skyline photo.
4. Attorney’s Fees
Finally, Plaintiff seeks reasonable attorney’s fees, costs, and disbursements under 17
U.S.C. § 505. No court has specifically addressed whether a pro se litigant may recover
attorney’s fees and costs under § 505; however, there is a general principle that pro se litigants
are not entitled to attorney’s fees otherwise authorized by fee-shifting statutes. See, e.g., Bond v.
Blum, 317 F.3d 385, 398-99 (4th Cir. 2003); Gonzalez v. Kangas, 814 F.2d 1411 (9th Cir. 1987);
Smith v. DeBartoli, 769 F.2d 451 (7th Cir. 1985); Owens-El v. Robinson, 694 F.2d 941 (3d Cir.
1982); see also McDermott v. Royal, 123 Fed. Appx. 241, 242 (8th Cir. 2004) (stating that “a
pro se litigant is not entitled to attorneys fees under section 1988”); White v. Armontrout, 29
F.3d 357, 361-362 (8th Cir. 1994) (stating that a litigant was not entitled to attorney’s fees
because of his pro se status); McMillan v. Chief Judge, Circuit Court of Greene County, 711
F.2d 108, 109 (8th Cir. 1983) (stating “Because the plaintiffs brought this action pro se and in
forma pauperis, however, they did not incur any [costs and attorney’s fees]”). Accordingly,
Plaintiff’s request for attorney’s fees is denied.
B. Defendants’ Counterclaims
Defendants assert counterclaims of deceptive trade practices, interference with
contractual and business relationships, and invasion of privacy by appropriation of Defendants’
name and Vilenchik’s likeness. All of Defendants’ claims arise from the comments made by
Plaintiff on his website, the comments made by visitors to his website, and Plaintiff’s use of
Defendants’ name and Vilenchik’s picture on his website.
As it relates to all of the individual counterclaims, Plaintiff contends that he is not liable
for the comments made by third parties under the Communications Decency Act (“CDA”), 47
U.S.C. § 230(c). Section 230 provides that “[n]o provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information provided by another
information content provider,” § 230(c)(1), and that “[n]o cause of action may be brought and no
liability may be imposed under any State or local law that is inconsistent with this section,”
§ 230(e)(3). Although the Eighth Circuit has yet to address the application of § 230, “[t]he
majority of federal circuits have interpreted the CDA to establish broad ‘federal immunity to any
cause of action that would make service providers liable for information originating with a thirdparty
user of the service.’” Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006)
(quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)); see also Perfect 10, Inc.
v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007); Universal Commc’n Sys., Inc. v. Zwebner, 478
F.3d 413 (1st Cir. 2007).
Plaintiff, as an operator of a website where users can post comments, is a provider of an
interactive computer service. See Universal Commc’n Sys., 478 F.3d at 419; Carafano v.
Metrosplash.com Inc., 339 F.3d 1119, 1123 (9th Cir. 2003); Faegre & Benson, LLP v. Purdy,
367 F. Supp. 2d 1238, 1249 (D. Minn. 2005). The third-party comments posted on Plaintiff’s
website are “information provided by another information content provider.” § 230(c)(1).
Section 230 defines “information content provider” as “any person or entity that is responsible,
in whole or in part, for the creation or development of information provided through the Internet
3 Section 230 immunity extends even after Plaintiff was made aware of Defendants’
objections to the comments posted by third parties. Universal Commc’n Sys., 478 F.3d at 420
(“It is, by now, well established that notice of the unlawful nature of the information provided is
not enough to make it the service provider’s own speech. . . . Section 230 immunity applies even
after notice of the potentially unlawful nature of the third-party content.”).
or any other interactive computer service.” § 230(f)(3). Accordingly, Plaintiff is not liable for
the third-party comments posted on his website.3
Plaintiff is liable for only his own comments on his website. See Universal Commc’n
Sys, 478 F.3d at 419 (stating “immunity only applies when the information that forms the basis
for the state law claims has been provided by ‘another information content provider.’ Thus an
interactive computer service provider remains liable for its own speech”) (internal citations
omitted); see also Faegre & Benson, 367 F. Supp. 2d at 1249 (stating that § 230 “immunizes web
site operators from liability unless they themselves post the defamatory comments”).
Defendants’ counterclaims will be analyzed by a review of Plaintiff’s comments.
1. Deceptive Trade Practices
Minn. Stat. § 325D.44, subd. 1, states in relevant part:
A person engages in a deceptive trade practice when, in the course of
business, vocation, or occupation, the person: (8) disparages the goods, services,
or business of another by false or misleading representation of fact; . . . or (13)
engages in any other conduct which similarly creates a likelihood of confusion or
Defendants assert that by entitling Defendants’ essay with the words “Suspected of Fraud and
Forgery” and by making the following comment, Plaintiff suggested that Defendants engaged in
fraud, illegal activity, and predatory lending practices:
If you are currently considering obtaining a mortgage through Vilana Financial,
Inc. I would encourage you to consider finding a mortgage elsewhere. If you are
a customer of Vilana Financial and believe you have been a victim of illegal,
fraudulent, or predatory loan practices, you can file a complaint with the
Minnesota Department of Commerce, market assurance division . . . .
Defs.’ Ex. 5(A). Because this statement is not a false or misleading representation of fact, but
rather a statement of opinion, the question is whether Plaintiff’s comment created a likelihood of
confusion or misunderstanding regarding Defendants’ goods or services. The Court finds that
because this statement is so clearly a statement regarding Plaintiff’s opinion, and Plaintiff does
not represent to have any knowledge regarding Defendants’ goods or services, Plaintiff’s
statement did not create any confusion or misunderstanding regarding Defendants’ goods or
services. Similarly, the statement that Defendants were suspected of fraud and forgery was a
true statement of fact reflecting Plaintiff’s belief that Defendants fabricated Zubitskiy and forged
his signature on the 3/19/04 Agreement, which was also fraudulently notarized. Accordingly,
Plaintiff did not engage in deceptive trade practices in violation of Minn. Stat. § 325D.44,
2. Interference with Contractual Relationship
One is not liable for intentionally interfering with an existing or prospective contractual
relationship where that person has made a truthful representation. Sorenson v. Chevrolet Motor
Co., 214 N.W. 754, 757 (Minn. 1927) (finding that a salesman who made a truthful
representation did not tortiously interfere with a contractual relation); Glass Serv. Co., Inc. v.
State Farm Mut. Auto. Ins. Co., 530 N.W.2d 867, 871 (Minn. Ct. App. 1995) (stating that there
is no liability for tortious interference with prospective contractual relation “on the part of one
who merely gives truthful information to another”).
Defendants did not identify any specific comments by Plaintiff that were false.
Accordingly, Defendants have not shown that Plaintiff is liable for interference with existing or
prospective contractual relationships.
Defendants contend that Plaintiff is liable for invasion of privacy by appropriation of
Defendants’ name and Vilenchik’s photograph on his website. “Appropriation protects an
individual’s identity and is committed when one ‘appropriates to his own use or benefit the name
or likeness of another.’” Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233 (Minn. 1998).
The Restatement describes the ways in which an individual can invade another’s privacy:
The common form of invasion of privacy under the rule here stated is the
appropriation and use of the plaintiff’s name or likeness to advertise the
defendant’s business or product, or for some similar commercial purpose. Apart
from statute, however, the rule stated is not limited to commercial appropriation.
It applies also when the defendant makes use of the plaintiff’s name or likeness
for his own purposes and benefit, even though the use is not a commercial one,
and even though the benefit sought to be obtained is not a pecuniary one.
Restatement (Second) of Torts § 625C cmt. b. Defendants contend that Plaintiff’s postings
regarding the dispute caused the website to experience increased traffic constituting a benefit to
Plaintiff. Defendants, however, failed to prove that Plaintiff’s website experienced any increase
in traffic whatsoever. Even assuming they had, Defendants presented no evidence demonstrating
a causal connection between Plaintiff’s use of Defendants’ name and Vilenchik’s picture and an
increase in traffic to Plaintiff’s website. Accordingly, Defendants failed to prove that Plaintiff
appropriated their name and likeness for his benefit.
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1. The Court finds in favor of Plaintiff Chris Gregerson and awards him ,462 in actual
damages for Defendants’ infringement of the Skyline photograph, ,000 in statutory damages
for Defendants’ infringement of the Kenwood photograph, and ,000 for Defendants’ removal
of Plaintiff’s copyright management information.
2. Plaintiff’s claim for attorney’s fees and costs is DENIED.
3. Defendants’ counterclaims against Plaintiff are DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: February 15, 2008.
| By visiting this page or clicking the
"submit" button above, you agree
that you have read and accept this "disclaimer".
Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.