The Right to Say, "i Didn't Write That": Creating a Cause of Action to Combat False Attribution of Authorship on the Internet

• Publication year: 2015

The Right to Say, "I Didn't Write That": Creating a Cause of Action to Combat False Attribution of Authorship on the Internet

Kathleen Brennan Hicks

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Hicks: The Right to Say, "I Didn't Write That": Creating a Cause of Acti

NOTES

THE RIGHT TO SAY, "I DIDN'T WRITE THAT": CREATING A CAUSE OF ACTION TO COMBAT FALSE ATTRIBUTION OF AUTHORSHIP ON THE

INTERNET

Kathleen Brennan Hicks^*

Table of Contents

I. INTRODUCTION..........................................................................................377

II. BACKGROUND.............................................................................................379

A. THE PROBLEM: ANONYMOUS, ONLINE FALSE ATTRIBUTION......380
B. MORAL RIGHTS: THE FOUNDATIONAL ISSUE.................................381
C. AGGREGATING A CAUSE OF ACTION: THE BASES FOR RELIEF ELSEWHERE AT LAW..............................................................384

1. THE VISUAL ARTISTS RIGHTS ACT: MORAL RIGHTS IN AMERICAN LAW.....384
2. DEFAMATION: INDIRECT STATE LAW PROTECTION OF MORAL RIGHTS..............386
3. THE LANHAM ACT § 43: TRADEMARK AS A BACK DOOR TO ATTRIBUTION RIGHTS............................................................................387

a. Section 43(a) Confusion as to Source: Closing the Back Door to Attribution Rights........................................................387
b. Section 43(c) Dilution: Recognition of an Attribution-Tike Interest in a Mark.....................................................................392
c. Section 43(d) Cybersquatting: Protecting Trademarks Online .... 394

D. THE ENFORCEMENT MECHANISM: THE DIGITAL MILLENNIUM COPYRIGHT ACT'S NOTICE-AND-TAKEDOWN SCHEME.................................................................................................397

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III. ANALYSIS......................................................................................................399

A. THE CAUSE OF ACTION: FORMAL LEGAL ACKNOWLEDGEMENT OF THE RIGHT AGAINST FALSE ATTRIBUTION.......................................................................................399
B. DEFINING THE PARTIES: AUTHORS AS PRINCIPALS, ATTRIBUTORS AS AGENTS..................................................................403
C. THE ENFORCEMENT MECHANISM: MODIFIED NOTICE AND TAKEDOWN..........................................................................................405

IV. CONCLUSION...............................................................................................408

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I. Introduction

Kurt Vonnegut never advised the class of 1997 to wear sunscreen.¹ Bill Gates may have a list of "Eleven Things You Won't Learn in School," but has not shared it with the world.² Thomas Sowell disagrees with President Barack Obama's policies, but does not dispute his American citizenship.³ And neither David Kaiser, Massachusetts Institute of Technology physics and history of science professor, nor David Kaiser, retired Naval War College professor, ever wrote an essay comparing President Obama to Adolf Hitler.⁴

All, save Mr. Gates, have gone on the record denying authorship of each piece wrongly attributed to them.⁵ The "sunscreen" essay, a piece by Chicago Tribune columnist Mary Schmich, spread online billed as a commencement address Vonnegut gave at the Massachusetts Institute of Technology.⁶ The "eleven rules" originated in a column, written by education reformer Charles J. Sykes, which ran in the San Diego Union-Tribune in 1996.⁷ An essay alleging that Barack Obama was not an American citizen, and therefore ineligible to run for president, circulated via email with Thomas Sowell's name attached.⁸ Both

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Kaiser of MIT and Kaiser of the Naval War College learned that the essay had been circulating, bearing their shared name and the Naval College professor's curriculum vitae. The professors were able to trace the essay to a comment from a blog, but neither knows who attached their names, nor when.⁹

In several of these cases, a simple Google search reveals the real author and original source of the falsely attributed work.¹⁰ Yet, despite the readily available Snopes.com articles¹¹ or public statements to that effect, these works continue to circulate across cyberspace, bearing the wrong name.¹²

The Internet facilitates episodes of false attribution such as these with greater ease and speed than print ever could. Victims of false attribution—that is, "non-authors"—have limited, if any redress, and currently none at law. Professors Kaiser and Kaiser exhibit the best course of action available: when individual readers of the falsely attributed work contact each alleged author with feedback, the "non-authors" respond with a form email denying authorship.¹³

Yet this approach hardly provides a cure for the unknown number of less proactive readers—those not moved to contact either professor. For every one who emails or calls, far more passively encounter the work and do nothing besides associate the information with the alleged author's name.

This Note outlines a neglected problem—that of non-commercial, Internet-spread, falsely attributed authorship—and proposes a solution. When these works persist, bearing the falsely attributed names, those non-authors—who are often actually authors, albeit of other texts¹⁴ —have pieces wrongly added to their canons. Furthermore, the alleged author may not know his or her name has been attached to a work until long after the attribution has gained

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prominence, and the damage has been done.¹⁵ Yet the originator of the false attribution is nowhere to be found.

Additionally, the alleged authors suffer definable harm, analogous to that recognized in other realms of law. This form of false attribution implicates reputation, a legally cognizable interest domestically, as well as the right to define one's creative persona, which underscores moral rights, a legal regime prevalent abroad and partially adopted in the United States.¹⁶

This Note proposes that the U.S. recognize an individual's interest in preventing false attribution online, and adapt some existing legal protections to ameliorate the harm it causes. Part II expounds on the problem further, examines the relevant laws and policies, and explains how they fail to address this specific problem. Part III will advocate for the creation of a new notice-and-takedown regime, such as the one codified in the Digital Millennium Copyright Act, arguing that it would provide an expeditious, minimally burdensome solution to the problem for both author and unintentional (i.e., not the unknown original) false attributor. Further, Part III will address potential drawbacks to the proposed solution. Finally, Part IV concludes by reiterating the benefits of an anti-false attribution law, and noting that such a law does not conflict with the larger aims at the heart of U.S. intellectual property law.

II. Background

This section addresses the problem, the current state of the law, and the policies that support protecting authors from online false attribution. Part A explains the online problem in greater detail, outlining what harm befalls an author whose name attaches to something he did not write. Part B discusses moral rights protections, and illustrates how online false attribution directly implicates their underlying policies. Additionally, it considers the arguments for and against moral rights regimes. Part C examines the existing relevant laws that protect authors' attribution rights, explains how, independently, each falls short of ameliorating the problem, but that each offers a piece of the solution. Finally, Part D discusses the Digital Millennium Copyright Act's notice-and-takedown provision, and how, despite its faults, it could adapt to the problem of online false attribution.

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A. THE PROBLEM: ANONYMOUS, ONLINE FALSE ATTRIBUTION

The four episodes of false attribution described above share roughly the same five characteristics, which trace the scope of the problem herein addressed. First, the work at issue is written and found on the Internet. Second, its source of origin may be known, such as the "sunscreen" and "eleven rules" articles,¹⁷ or unknown, as with the two works disparaging President Obama. Third, the falsely attributed work has permeated the public conscience through rapid spread on the Internet, thereby obscuring the original source of the false attribution.¹⁸ Online written works "go viral" organically; it is all but impossible to find the starting point.¹⁹ Unlike false attribution in other contexts, then, the false attributor does not seek commercial gain from attaching the name of another to the work.²⁰ Most often, there is no clearly identifiable reason for the false attribution, largely because the originator cannot be found.²¹ Fourth, because the party responsible for the false attribution is not identifiable, this is an asymmetrical issue: the alleged author cannot point to a single person or entity to take to court for false attribution.²²

Finally, the work continues to exist and spread online, through e-mail, blogs, or other forms of social media, even after third-party debunking or the non-author's denial.²³ Furthermore, the work, with its non-author's name attached,

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continues to spread, even after authorship has been disclaimed. Readers genuinely believe it originated from the alleged author.²⁴ As a corollary matter, the work need not have any harmful effect on the author's reputation. Indeed, Vonnegut's name attached to a wildly popular essay, which arguably enhanced his reputation and recognition with many readers.²⁵

B. MORAL RIGHTS: THE FOUNDATIONAL ISSUE

American intellectual property law tends to grant protections safeguarding the economic aspects of an individual's creative contributions to society.²⁶ For protection for instance, copyright exists to protect an author's economic interest²⁷ in his works.²⁸ By contrast, moral rights recognize the intrinsic, non-economic value that a work provides to...