Information Law and Policy Blog

Abrahm Coffman
Erin Knight
Julian Couhault

This week’s readings explored two important pieces of legislation that have had a major effect on the evolution of the “interactive computer service” industry over the last decade.  The first of these was the Communications Decency Act (Title V of the Telecommunications Act of 1996) which contained section 230 in our reading.  The second of these was the Online Copyright Infringement Liability Limitation Act which was essentially section 512 of the Digital Millennium Copyright Act of 1998.

Section 230 of the CDA did four important things:

It essentially provides ISPs (and users) with broad immunity from liability for distributing content published by a third party.  In an attempt to promote self regulation within the industry, and also partially in response to the 1995 Stratton Oakmont, Inc. v. Prodigy Services Co. case, section 230 also attempts to prevent ISPs from being construed as publishers when attempting to “restrict access to or availability of [questionable] material”.  A few more important things to note about the CDA:

Section 512 of the DMCA is similar to the CDA in that it addresses service provider liability for the distribution of content posted by a third party.  It also seems to be premised on the same industry values established in the CDA.  However it has two distinct differences derived from the fact that it specifically addresses copyright material:

Reactions to Readings:

In reading the Rosenthal v Polevoy review, there were a lot of times when we had to stop to keep the arguments straight.  The big distinction at play was “publisher” versus “distributor”. Section 230 of the CDA (1996) explicitly states that service providers and users cannot be treated as publishers of content provided by some other source.  Subsequently, the arguments throughout these cases focus in on whether distributors fall under “publishers” or outside of that term.  If outside, they would not have immunity from liability and would be subject to the common law distributor liability policy (which is that they are liable upon notice).  This is where the backwards part comes in.  The main fight is over the liability of the distributors who typically have less control or even knowledge of the content, not the publishers, who typically have much more active control.  The publishers are in the clear because the word is included in section 230, but distributors might not be?   And what happens if a distributor takes down the defamatory information but does it too slowly in the court’s opinion? The distributor would be liable, whereas the publisher of the information would not? It seems like illogical thinking (and ruling in the case of the Court of Appeals) enabled only because of how the section was written and the words they chose.

Most of the cases mentioned deal with defamation, which brings up another point of contention.  If someone knowingly and intentionally republishes defamatory information, according to the authors and Zehran court, the person is immune from liability.  The active versus passive distinction seems like a logical and important one, but because it can’t be done on any standard way, they essentially just write it off.  The Court of Appeals claims that they were too dismissive of the defamation victims.  We agree in principle, it seems like the victim is all but ignored and the distributor/publisher’s intentional actions go without recourse, but we also agree that the way section 230 was written demands that users/providers be immune from liability.  As the authors mention, the victim can always go after the original source.

This reading was a difficult exercise in resolving conflicts between what seems logical and fair to us (publishers should be more liable than distributors! if someone intentionally republishes defamatory information, they should pay!) against the literal interpretation and application of law.  In some ways, we wanted to agree with the Court of Appeals, but the authors did a great job in convincing us of the bigger, wider contextual considerations built into section 230 that make the blanket immunity the “better” option for society.

Additional Resources:

Another source for more wild and crazy section 230 debate is Goodale’s call to change section 230 to stop protecting people who knowingly defame. It is a good discussion on the ability to find the original source in defamation cases…isn’t that then enough?  “Why do we need to go after website operators when a plaintiff can pursue the wrongdoer directly?”  Goodale fears that new technologies that mask IP addresses could impede on this ability and therefore puts it back on section 230 to stop the madness…

http://www.citmedialaw.org/blog/2007/goodale-cda-230-and-anonymous-speech-online.

UK v US policies:

http://www.guardian.co.uk/media/2008/apr/03/medialaw.digitalmedia?gusrc=rss&feed=media

“Courts chip away at Web sites’ decade-old legal shield”

http://news.cnet.com/8301-10784_3-9911501-7.html