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http:// --> Ashland, Oregon HOME Valley & State Sports Nation & World Opinion/Editorial Classifieds Business Columnists Local Issues Obituaries Weather Archive Revels Etcetera Backpage Hot Topics Most Viewed Forum Photo Galleries Video Readers Polls O-Zone Online Games Movie Preview Special Sections Real Estate Guide Menu Guide Shakespeare Subscribe Contact Us Rate Card Place an Ad Top Galleries: February 6, 2007 City in court fight over pornographic image By Vickie Aldous Ashland Daily Tidings The City of Ashland is embroiled in a lawsuit after temporarily shutting off a Web site that displayed a doctored photo of a nationally syndicated columnist in a pornographic situation. The case pits the city — operator of the Ashland Fiber Network Internet service — and The Washington Post Company against an Ashland lawyer who has won major Internet-related lawsuits. AFN shut off a Web site operated by attorney Charles Carreon and his wife after receiving a complaint from conservative columnist Kathleen Parker that the site's use of her column mug shot was a copyright violation. Carreon is not a lightweight in Internet litigation. In 2003, Carreon recovered the rights to the Web site address www.sex.com for the man who first registered the name. That address is the most valuable domain name in the world, according to the on-line industry journal Domain Name Journal. Carreon said his client sold the domain name for $15 million in 2006. But Carreon said his lawsuit against the city of Ashland and The Washington Post Company is not about money. Instead, he wants to win greater protections against shut-downs for Web sites that show copyrighted material. "People rarely say, 'I did this litigation to give back to the community.' But I did," he said. "AFN is supposed to be operated as a public forum. This is a community where people have repeatedly expressed the desire for free speech." Free speech or copyright infringement? The case began unfolding on Aug. 1, 2006, when AFN Telecommunications Engineer Richard Holbo received an e-mail from Parker, a conservative columnist with the Washington Post Writers Group whose column appears in more than 350 newspapers across the country. The mother of three had learned about an image of herself on the www.american-buddha.com Web site. Carreon's wife, Tara, had combined a photo of Parker's face with photos of two men's genitals. Wording on the image reads, "Bite the bullet, Kathleen! Unchecked Militarism? Criminal Government? Why Choose? Watch Kathleen Parker get the best of both worlds." In her e-mail to the city of Ashland, Parker wrote that the image "is both obscene and a copyright infringement. Among my fans are children, some of whom are my own, who Google me frequently. I am also a frequent subject for school research projects and student papers. They do not need to see such a thing. I am asking for your help in getting this image off the Web as soon as possible." Parker said she did not want to comment for this article. Web site shutdown After receiving the e-mail, Holbo contacted City Attorney Mike Franell, who told him to contact InfoStructure and ask for directions on the issue, according to Franell. AFN wholesales Internet service to Internet Service Providers, including InfoStructure, which then sell the service directly to customers. The american-buddha.com site is a customer of InfoStructure. Franell said an InfoStructure representative instructed Holbo to shut off the modem for the site and Holbo did so. Within minutes, Carreon called the city and was told about the copyright infringement claim. Carreon then called InfoStructure, and the company asked AFN to turn the modem back on. The modem was off for about an hour, Franell and Carreon agreed. Carreon said that he operates about 40 Web sites through his server, including his business Web sites, and was in the midst of e-mailing a $1 million contract to a client when his Internet service went down. He said he was able to send the contract after his service was restored by the city. Carreon said shutting down the american-buddha.com Web site did not remove the picture of Parker from the Internet. People could still find the picture by doing an image search through Google, he noted. "Nothing was accomplished except american-buddha.com had its rights of free speech violated," he said. Freedom of speech battle Shortly after the incident, Carreon filed a lawsuit in U.S. District Court in Medford. He said the city of Ashland runs AFN as a public forum and was not complying with First Amendment protections when it shut down the Web site. Although AFN's user agreement states that a Web site that uses copyrighted material without authorization can be shut down, Carreon said he is a customer of InfoStructure, not AFN, and has not agreed to those terms. Carreon may not have First Amendment protections because InfoStructure gave the instructions to have his Web site shut down, said Dennis Dunleavy, an assistant professor of journalism at Southern Oregon University who studies copyright infringement and Internet issues. The First Amendment deals with government restrictions on free speech. A private company can shut down an Internet site, he said. However, Dunleavy said Carreon has made convincing and precedent-setting arguments on Internet-related cases. Law schools teach about the sex.com lawsuit, he said. The city of Ashland should have been more cautious about shutting down Carreon's Web site, Dunleavy said. "The act was not well thought out beforehand. They didn't know the extent of the consequences of their actions before they did it," Dunleavy said. "They picked on the wrong guy." Franell said the city of Ashland did not violate Carreon's free speech rights because AFN is only a wholesaler of Internet services and was acting on the instructions of InfoStructure to shut down the Web site. "I don't believe it was a government action," Franell said. According to court documents, the city's legal counsel has also argued that Carreon does not have a constitutionally protected right to violate copyright laws. The city did not shut down the Web site because the image was pornographic or obscene, according to court depositions given by city employees in November. Not an isolated case American-buddha.com is not the first Web site that has been shut down by AFN because of claims of copyright infringement, city employees said in court depositions. Since Carreon filed his lawsuit, the city has adopted a formal policy to govern how it handles copyright infringement claims, Franell said. The policy outlines steps that comply with the federal Digital Millennium Copyright Act. Adopting a formal policy gives the city of Ashland some immunity for any future cases, he said. People complaining about copyright infringement must submit a claim that complies with city policy. The city will then send a notice to the Internet Service Provider that retails AFN Internet service, and will try to contact the ISP customer who is operating the Web site in question. The Web site operator can submit a notice countering the copyright infringement claim, which will be sent to the complainant. If the complainant does not act to protect the copyright by filing a federal lawsuit, the Web site can be turned back on after 10 business days, Franell said. Carreon had wanted a formal city policy, but he also wants additional protections for american-buddha.com. The Web site features an on-line library where registered members can view copyrighted material and political commentary. Carreon said that the public's right to knowledge trumps copyright holders' rights to restrict the distribution of copyrighted material. Settlement breakdown He wants the city to agree in a settlement that it has accepted the Web site's legitimacy as an on-line library. The city would give a copy of the settlement agreement to anyone who complained that american-buddha.com was violating a copyright. The person could still sue to shut down the Web site, Carrion said. He said the city has refused to accept those settlement terms. Franell said he could not comment about that aspect of the settlement discussions. At one point, the city and Carreon had agreed on a settlement, but then Carreon asked for additional terms. The settlement talks did not break down over money, Franell said. Carreon is seeking attorney fees and costs, which he said would cost the city less than it is spending to retain outside legal help. Franell, who is not licensed in federal court, estimated the city has spent several thousand dollars for outside counsel on the case. Even if the city wins the lawsuit, it cannot recover attorneys' fees from Carreon. But if Carreon wins, he can recover the fees, Franell said. The city filed a motion for summary judgment in December, arguing that Carreon did not have a case. Carreon filed his response to the motion by a Jan. 29 due date. A decision is pending. Staff writer Vickie Aldous can be reached at 479-8199 or [email protected]. Current Comments: There is a definite nexus between this story and the other Tiding's story on Franell. The failure by AFN and Franell to have put in place a policy for the posting of such material is completely negligent and now leaves the city open to liability. No wonder Franell quit before his review! SeppiSlice - Ashland - February 6th, 6:46 PM You should require people who leave comments to use their real names. If SeppiSlice wants to take a shot at Mike Franell, he or she should stand up and take responsibility for the comment. Anonymous political sniping is not a contribution to community dialogue. PS The story is lively and amusing. Dunleavy's comments were illuminating. Well done, Vicki. Diarmuid McGuire ( [email protected] ) - Ashland, OR - February 7th, 8:57 AM The city wanted to play with the big boys and run their own Fiber Network....look where it has led. Now they're facing lawsuits and more liability. Maybe we shouldn't let our city run AFN, The Ski Resort, and everything else outside the realm of a traditional city government. The kingdom that has become Ashland is a monster that has grown out of control. A perfect example of what happens when a government is left to do as it pleases-unchecked. We're the ones going to pay for all this mess. Steve L. Iverson - Ashland, Jefferson - February 8th, 11:13 AM Diarmuid, is that really your name? I think people who use a screen name are rather wise. C - Ashland - February 8th, 8:31 PM Give 'em hell, Charles! Dave - Ashland, OR - February 15th, 7:02 PM Leave a Comment: Advertisement: Advertisement: Paid Advertising: Debt Help Inkjet Printers Payday Loans Free Ringtones Debt Consolidation Water Filter Security Systems Debt Relief Advertisement: Copyright © 2007 Ashland Daily Tidings and Ottaway Newspapers. All Rights Reserved. Del.icio.us