The Effect of the Status Quo and the Internet

An argument for custom on the Internet can perhaps be successful if an advocate could prove that since the copyright statute does not have specific provisions for Internet related copyright activities then custom should prevail until Congress decides to legislate on the issue.

In It’s in the Cards. Inc. v. Fushetto, Jeff Meneau filed an action against Rosario Fushetto for libel, based on statements written on a bulletin board (a part of the computer network). “Meneau alleges that Fushetto’s communication made over the bulletin board were communications which form the basis for defamation..” Fushetto was granted a motion to dismiss because she was not entitled to first post a retraction on the bulletin board, based on Wisconsin Statute section 895.05(2).

Section 895.05(2), Stats., reads: Before any civil action shall be commenced on account of any libelous publication in any newspaper, magazine, or periodical, the libeled person shall first give those alleged to be responsible or liable for the publication a reasonable opportunity to correct the libelous matter.” WIS. STAT. 895.05(2).

The appeals court analyzed the Wisconsin statute and reversed and remanded the case. The court reasoned that both the plaintiff and defendant agreed that the bulletin board is not a magazine or newspaper; however, defendant contended it was a periodical. The court held that it was not a periodical as the definition of periodical is “a magazine or other publication of which the issues appear at state or regular intervals.” The court analyzed the nature of a bulletin board and noted the “bulletin board is a random communication of computerized messages analogous to posting a written notice on a public bulletin board, not a publication that appears at regular intervals.”

Thus, since the bulletin board was not a newspaper, magazine, or periodical, then the defamation action should not have been dismissed based on the statute. The court noted “The magnitude of computer networks and the consequent communication possibilities were in existence at the time this statute was enacted. Applying the present libel law to cyberspace or computer networks entail rewriting statutes that were written to manage physical printed objects not computer networks or services. Consequently it is for the legislature to address the increasingly common phenomenon of libel and defamation on the information superhighway.