Original URL:
http://www.theregister.co.uk/2007/0...bsite_immunity/
Website immunity spreads with impunity
By Kevin Fayle in San Francisco
Published Wednesday 28th February 2007 21:47 GMT
Silicon Justice February has been a banner month for website immunity in the US.
MySpace.com, Google, Microsoft and Lycos have all benefited from decisions entered in the latter part of the month which confirmed or adopted the broad grant of immunity that many US courts have extended to operators of "interactive computer services" under Section 230 of the Communications Decency Act.
It is fairly well established now that interactive computer service providers are not liable for information transmitted over their service by another. In the plain vanilla case of a person suing a website or ISP for defamation based on a message board posting by a third party, judges hardly even finish reading the complaint before granting judgment for the defendant.
That's essentially what happened in the case of Eckert v. Microsoft. A man sued the Redmond giant claiming that Microsoft owed him money for refusing to remove defamatory posts about him on a Microsoft-run message board, and for delaying the deactivation of the link between his message board account and his work email.
The magistrate judge, whose recommendations the district court judge adopted, was kind to Mr. Eckert since he had represented himself - and therefore had no idea that his lawsuit was doomed from the start - but the short, methodical dissection of his arguments belied the fact that the magistrate was probably hiding a snicker or two as he was writing it.
Most cases like this never get filed anymore, so it's interesting just to see one in the wild. The other notable aspect is that the magistrate judge came to his conclusions based on interpretations of Section 230 from other jurisdictions, which suggests that the broad grant of immunity has indeed become the de facto norm, even though some courts (
http://www.theregister.com/2006/11/20/eff_craigslist/) have limited the immunity somewhat.
Variations on the ordinary Section 230 theme are more common these days. For instance, parents of a 14-year old girl who was sexually assaulted by a man she met on MySpace.com sued the social networking site for negligence in failing to protect their daughter from contact by sexual predators. The plaintiffs insisted that the claim of negligence removed their suit from the Section 230 realm, since they were suing over MySpace's policies, and not the content of postings on the site.
The judge in the case, however, held in February that the girl and her assailant never would have met if MySpace hadn't published their communications, thus the plaintiffs' claims were aimed at MySpace in its publishing capacity. Under the Section 230 jurisprudence cited by the court, this entitled MySpace to Section 230 immunity and dismissal of the plaintiffs' case.
This ruling could have a great impact on other lawsuits involving sexual predator abuse on MySpace, either by influencing other judges to dismiss, or by shaping the claims that plaintiffs make against the site. Since this is a district court, other courts won't necessarily have to follow its logic, but MySpace's arguments for dismissal will be much more persuasive with some legal precedent behind them. Plus, any further negligence suits against MySpace in this district will now be barred based on rules of issue preclusion.
Google, Microsoft (again) and Yahoo! also benefited from another original application of the Section 230 immunity in February. A man sued the two companies after they refused to place contextually-based ads for the man's gripe sites within their search results. The judge dismissed this "must-carry" suit (except for a breach of contract claim against Google) after finding that the decision whether or not to place the ads constituted an exercise of editorial discretion that activated Section 230.
Part of the law states that information service providers won't be liable for decisions about monitoring, screening or deleting content. Citing this portion of the statute, the judge dismissed all claims relating to the companies' decisions to reject the ads. Essentially, the companies had screened access to the plaintiff's objectionable ad content, and therefore the decision to reject the ads was immune from suit.
This could affect other current and potential lawsuits against search engines, since the court's reasoning could apply equally well to decisions to exclude websites in search results, or to rank certain websites higher than others based on inscrutably complicated and annoyingly inaccessible algorithms.
The Section 230 decision issued in February that has the most precedential effect (since it was rendered by an appellate court) involved securities claims, of all things. The plaintiff, Universal Communication Systems, a publicly-traded company, sued Lycos over false statements about the company's financial health made in postings to RagingBull.com, a financially-oriented site that Lycos operated at all times relevant to the lawsuit.
The 1st Circuit Court of Appeals affirmed the dismissal of the claims against Lycos based on Section 230, holding that claims under Florida securities law treated Lycos as the publisher of information posted by third-parties. The court rejected plaintiff's claims that Lycos was actually the publisher of the information (and therefore not immune under Section 230), noting that other courts (most recently in this case (
http://www.theregister.com/2006/11/...said_ok_online/) from the California Supreme Court) have determined that notice of the unlawful nature of the third-party information does not turn it into the provider's own speech.
The plaintiff also floated an active inducement theory that it claimed should destroy Section 230 immunity. This theory was based on the Grokster case, and tried to create liability by claiming that Lycos had invited the misstatements, even though its terms of use directed users to abide by state and federal securities law.
The court shot this theory down by noting, appropriately, that nothing in the statute creates an exception for active inducement. Even if it did, the court said, Lycos had done nothing close to the behavior necessary to trigger liability for active inducement.
With this decision, the 1st Circuit threw its hat in with the other appellate circuits that have interpreted Section 230 broadly. As noted above, some other circuits have lessened the immunity somewhat, so the issue may end up before the Supreme Court eventually. For now, however, the weight of the appellate decisions rests with the broad immunity camp.
So, all-in-all, a big month for Section 230 immunity for websites based on third-party content. As these decisions continue to come out, and the subject matter of the immunity continues to expand, the protections for interactive websites should only become stronger, and the types of services available to web users more varied. Amazingly, this is the exact idea that Congress had when it passed Section 230 over a decade ago. Who woulda thought, right?
Just a little something to keep all you Web 2.0 acolytes warm in bed tonight.®
Kevin Fayle is an attorney, web editor and writer in San Francisco. He keeps a close eye on IP and
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THE JOHN MARSHALL LAW SCHOOL CENTER FOR INTELLECTUAL PROPERTY LAW51st ANNIVERSARY CONFERENCE ON DEVELOPMENTS IN INTELLECTUAL PROPERTY LAW Copyright and Online User-Generated Video Evan D. Brown Hinshaw & Culbertson LLP February 23, 2007 Chicago, Illinois
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2 I.CULTURAL AND TECHNOLOGICAL CONTEXT: THE CONCEPTS OFUSER-GENERATED CONTENT AND SOCIAL MEDIA To fully understand the legal implications presented by video-sharing sites like YouTube, one has to understand some of the concepts underlying the modern Internet. The web of today is markedly different than it was just a few years ago. Nearly half of all homes now have a broadband connection.1New technologies like AJAX and RSS make the web more distributed and collaborative. The software platforms behind sites like del.icio.us and MySpace make it simple for people around the world to instantly shareideas and content, and to become "friends," although in the real world they will likely never meet. Sites like Craigslist are disrupting the traditional notions of how content is delivered. The open-source model of Wikipedia has brought the vast amounts of knowledge distributed among many users into one coherent package to which anyone can contribute. No longer is the basic framework for the delivery of content a one-to-many model. In Web 2.0, anyone who wants to participate can easily do so. One cannot underestimate the importance of a user-generated web when considering the legal issues that arise online. A greater number of Internet users, along with the distributed, collaborative, and disruptive nature of Web 2.0, means there are more opportunities for infringement to occur. The basic architecture of the Internet is one in which a number of centralized entities such as Internet service providers and web hosts provide access and data to a larger number of individual users. The centralizedentities provide the means for individual users to make content available to other Internet users. When an individual user uploads content that causes harm to another (e.g., infringes on intellectual property interests), the question arises whether one harmed by this distribution of content may pursue legal action against the centralized entity that provided the means for the distribution. II.THE CURRENT CONTROVERSY YouTube has been in the news for a number of reasons lately, perhaps mostsignificantly because of Google's recent purchase of the site for a reported $1.65 billion. But YouTube (and other sites like Grouper and Bolt) also draws attention due to the uneasiness it has caused certain owners of copyrighted content. There apparently has been an extraordinary number of allegely infringing video clips uploaded to the YouTubeservers. This is evidenced by the fact that in the first week of February 2007, Viacom (the owner of Comedy Central, MTV and others) served DMCA takedown notices on YouTube relating to over 100,000 works posted on the site. The uneasiness of content owners is also shown in some of the lawsuits that have been filed against video sharing sites. Such ongoing litigation includes: • Io Group, Inc. v. Veoh Networks, Inc., No. 06-3926, (N.D. Cal., filed 6/23/2006) 1Pew Internet and American Life Project, "Home Broadband Adoption 2006," available at
http://www.pewinternet.org/pdfs/PIP..._trends2006.pdf
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3 • Tur v. YouTube, Inc., No. 06-04436 (C.D. Cal., filed 7/14/2006) • UMG Recordings Inc et al v. Grouper Networks, Inc., No. 06-6561 (C.D. Cal., filed 10/16/2006) • UMG Recordings Inc et al v. Bolt, Inc., No. 06-6577 (C.D. Cal., filed 10/16/2006) • UMG Recordings Inc et al v. MySpace Inc., No. 06-7361 (C.D. Cal., filed 11/17/2006) III.THE LEGAL FRAMEWORK – DMCA AT CENTER STAGE Provisions of the Digital Millennium Copyright Act, at 17 U.S.C. §512, provide a safe harbor from liability for online "service providers" who are accused of storing orfacilitating the transmission of content that infringes the copyright of another. If aservice provider qualifies for the safe harbor exemption, only the individual infringing user can be liable for monetary damages; the provider of the network through which the infringing user engaged in the alleged activities is not liable. Many commentators, as well as YouTube itself2, have invoked the safe harbor provisions in discussing the type of defenses that video sharing sites may assert. Who is protected from what? Section 512 provides that, so long as certain conditions are met, a service provider shall not be liable for copyright infringement by reason of the provider's facilitation orproviding of: • "transitory digital network communications" • "system caching" • "information residing on systems or networks at the direction of users" • "information location tools" The DMCA defines "service provider" as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network 2"'Mr. Tur's lawsuit is without merit,' YouTube said in a statement. 'YouTube is a service provider thatcomplies with all the provisions of the Digital Millennium Copyright Act (DMCA), and therefore is entitled to the full protections of the safe harbor provisions of the Act.'" YouTube sued over copyright infringement, CNET News.com, July 18, 2006,
http://news.zdnet.com/2100-9588_22-6095736.html (last visited February 15, 2007).
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4 access, or the operator of facilities thereof." 17 U.S.C. §512(k)(1)(A-B). This broad definition includes network services companies such as Internet service providers, search engines, bulletin board system operators, and even auction web sites. Internet service providers enter a safe harbor from liability for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider as long as the service provider can show that it: •has neither actual knowledge that its system contains infringing materials nor an awareness of facts or circumstances from which infringement is apparent, or it has expeditiously removed or disabled access to infringing material upon obtaining actual knowledge of infringement •receives no financial benefit directly attributable to infringingactivity, and•responds expeditiously to remove or disable access to material claimed to be infringing after receiving from the copyright holder a valid takedown notice. To qualify for DMCA safe harbor protection, a service provider must: •Register with the Copyright office, and provide to the public, the name and contact information of an agent designated of the serviceprovider to receive notices of copyright infringement. •Upon receipt of a notice from a person claiming that the service provider is caching or storing content that infringes that person's copyright, take down or disable access to the alleged infringing content, and notify the customer who provided such content. •Upon receipt of a "counter notification" from the customer providing the content that the material is not infringing, replace or enableaccess to the content unless an action for injunctive relief is timely filed (between 10 and 14 days after receipt of the counter notification) •Establish procedures for dealing with repeat infringers Some Relevant Safe Harbor Cases Each of the cases against video sharing sites like YouTube, Grouper and Bolt are still pending, but until the cases are resolved, one can look to past cases dealing with the DMCA safe harbor provisions. The following cases are likely to guide the courts'analyses:
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5 ALS Scan, Inc. v. RemarQ Communities, Inc., Inc., 239 F.3d 619 (4th Cir. 2001) – Producer and distributor of adult images sued newsgroup operator over digital images uploaded by defendants' users that infringed plaintiff's copyrights. The district court dismissed the case, holding that the notice of infringing materials on the defendant'ssystem was inadequate, where it did not identify particular infringing images, but merely referred to entire newsgroups on the defendant's server and pages on plaintiff site. Accordingly, the district court determined that the defendant remained in the safe harbor. On appeal, the court reversed, holding that the plaintiff's notice "substantially" compliedwith the DMCA notice requirements, and that defendant's resulting knowledge of infringement, even though acquired through imperfect takedown notice, was sufficient to remove it from the safe harbor. Hendrickson v. Amazon.Com, Inc., 298 F. Supp. 2d 914 (C.D. Cal. 2003) – Court granted summary judgment in action brought by copyright owner against Amazon.com. The court held that the plaintiff's letter notifying Amazon that all DVD copies of plaintiff's movie were unauthorized, well in advance of the movie being offered for sale through the site, was insufficient to deprive Amazon of its safe harbor defense to claim of infringement. "'The actual language of the DMCA is present tense. The service provider must have knowledge that the actual material 'is infringing.'" CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) – Operator of web site that hosted online real estate listings for brokers did not lose its status as a passive Internet service provider and attendant safe harbor protection merely because it screened brokers' photographs for propriety before allowing them to be posted. The cursory screening process did not add volition to operator's involvement in storing copies of the allegedly infringing photographs. Rossi v. Motion Picture Ass'n of America Inc., 391 F.3d 1000 (9th Cir. 2004) – Association representing motion picture copyright owners had "good faith belief" that website was infringing copyrights, as required under notice and takedown procedures of DMCA, and thus its request that ISP shut down site did not tortiously interfere with website operator's business relations.Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090 (W.D. Wash. 2004) – Summary judgment entered in favor of Amazon.com against plaintiff holder of copyright in digital images in action brought against Amazon, claiming that service provider directly and vicariously infringed its copyright interests. The court held that Amazon did not have actual knowledge of the alleged infringement and did not have the right and ability to control any of the alleged infringing activity, which was on a third party platform provided by Amazon. # # # Evan D. Brown
ebrown@internetcases.com
