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Mixed Ruling in Police Officer's Lawsuit Over Depiction in Netflix Documentary
The U.S. District Court for the Eastern District of Wisconsin decided that the First Amendment barred a negligence claim by a former police officer who sued over how he was depicted in the documentary mini-series Making a Murderer. But the district court ruled that the plaintiff's defamation and intentional infliction of emotional distress claims were properly pleaded. Colborn v. Netflix Inc., 19-cv-0484. Former officer Andrew Colborn claims he was falsely depicted in the series as having framed a murder suspect. In granting Netflix's motion to dismiss Colborn's negligence claim, District Judge Brett H. Ludwig explained: "The fundamental point in the Supreme Court's New York Times v. Sullivan[, 376 U.S. 254 (1964),] ruling is that a public official plaintiff bears a high burden in pursuing tort claims related to the publication of matters that are of public concern. To pursue such a claim, the plaintiff must prove actual malice by clear and convincing evidence. … This requirement precludes any state law liability based on mere negligence." But District Judge Ludwig went on to find: "Contrary to Netflix's assertions, the Supreme Court has never held that the First Amendment completely bars public officials' claims for the intentional infliction of emotional distress." And in allowing Colborn's defamation claim to proceed, the district judge noted: "Netflix portrays both Making a Murderer and Making a Murderer 2 as part of the 'venerable American tradition' of 'true crime' reporting and suggests this label alone renders defendants immune from defamation claims. … Neither the Supreme Court nor the Seventh Circuit has ever suggested a speaker enjoys unconditional First Amendment immunity for making defamatory statements simply because the statements concern legal proceedings."
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New York Court Rules Music Plaintiffs Failed To Establish Vimeo's "Red Flag" Knowledge
In a lawsuit originally filed in 2009, the U.S. District Court for the Southern District of New York recently ruled that record labels and music publishers plaintiffs failed to establish that employees of the video-upload website Vimeo had "expertise with respect to … the laws of copyright" or music licensing customs that would have provided "red flag" knowledge of copyright infringement in videos Vimeo's users posted. Capitol Records LLC v. Vimeo LLC, 09-CV-10101 (S.D.N.Y. 2021). Vimeo claimed it was protected from liability by the safe-harbor provision of §512(c) of the Digital Millennium Copyright Act. On remand from the U.S. Court of Appeals for the Second Circuit (see, Capitol Records LLC v. Vimeo LLC, 826 F.3d 78 (2d Cir. 2016)), Southern District Judge Ronnie Abrams acknowledged, "[P]roof that the employees identified the presence of copyrighted material is a necessary but insufficient condition of red flag knowledge." Granting summary judgment to Vimeo, District Judge Abrams found: "These modes of interaction with infringing videos say nothing about the employee's knowledge as to whether the use of such music was authorized or fair." Judge Abrams noted, "Plaintiffs' evidence permits an inference that some Vimeo employees may have been broadly familiar with concepts such as fair use. [But s]uch evidence does not, on its own, permit the Court to infer that this knowledge armed employees with the ability to distinguish infringements from authorized or fair use with respect to any of the Videos-in-Suit." The district court went on to deny summary judgment to Vimeo on the issue of whether videos uploaded by Vimeo employees were done so as agents of Vimeo or on a personal basis.
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