C.E.B.
ELECTRONIC COMMERCE AND INTERNET LAW & PRACTICE:
5th Annual Recent Developments
Derivative Liability for User Content and Actions
Epinions, Inc.
1. What
is the Problem?
•
Users
engage in bad behavior on the Internet
•
Bad
users are too numerous to pursue individually
•
Users
may be hard to find or judgment proof
•
Companies
hate suing their users
•
Intermediaries
offer:
–
Deep pockets
–
Ability to act quickly
–
“Leverage”
2. Congress
Has Spoken (Part 1)
47 USC 230(c)(1):
“No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information
provided by another information content provider.”
3. “Provider
or User of an Interactive Computer Service”
•
America
Online (Zeran, Ben Ezra, Doe, Blumenthal, Oliver, Morrison)
•
Internet
access provider/library (Aquino, Kempf, Patentwizard, Mainstream Loudon,
Kathleen R.)
•
Web
host (Franco)
•
Website
(Gentry, Stoner, Amazon.com)
–
But see Batzel
•
Chatroom
operator (Marczeski)
•
Mail
list operator (Truelove)
•
Person
who forwards email to a maillist (Barrett)
4. “Treated
as the Publisher or Speaker”
•
Defamation (Aquino,
Barrett, Ben Ezra, Blumenthal, Kempf, Marczeski, Morrison, Amazon.com,
Truelove, Zeran)
•
Negligence (Oliver.
PatentWizard, Truelove, Zeran)
•
Breach of contract (TPB)
(Morrison)
•
State anti-pornography
laws (Doe, Mainstream Loudon, Kathleen R.)
•
Privacy rights/nuisance
(Franco)
•
Sale of fake sports
memorabilia (Gentry)
•
Sale of bootleg
recordings (17200) (Stoner)
5. “Provided
by Another Information Content Provider”
• Zeran: Didn’t matter if AOL
knew of the defamation and failed to act
• Blumenthal: Drudge wrote
column as an independent contractor; AOL had contractual rights to edit
• Amazon.com: Amazon obtained a
non-exclusive license to the user reviews and had contractual rights to edit
6. What
Happens if 230(c)(1) Isn’t Available?
•
230(c)(2)—actions
taken to restrict access to objectionable material
•
Attack
the elements
–
Hart v. Internet Wire
(no liability under securities law for bogus press release)
–
Tzougrakis (no liability
for defamation when it was reasonable to rely on the source)
•
Common
law safe harbor
–
Lunney (Prodigy not the
publisher of defamatory emails and message board postings; and even if it was,
there was a safe harbor akin to that provided to telephone companies)
7. What
Doesn’t 230(c) Cover?
• Intellectual property laws
– Copyright
– Trademark
– Patent/trade secret
– Others?
• Federal criminal laws
(including federal obscenity and child pornography laws)
• ECPA violations
8. Congress
Has Spoken (Part 2)
Digital Millennium
Copyright Act (17 USC 512)
(a): Internet access provider safe harbor
(b): caching safe harbor
(c): web host safe harbor
(d): safe harbor for linking to infringing items
(e): university safe harbor
9. 512(c):
Web Host Safe Harbor
No liability for
storing material at a user’s direction if
• No “red flags” that
infringement is occurring
• No direct financial benefit
from infringement when provider has right and ability to control infringement
10. What
is a “Red Flag”?
512(c)(3)—Notice
of Infringement:
•
ID
the infringed work (or representative sample)
•
ID
the infringing copies so provider can find them
•
statement
of a good faith belief that use is not authorized
•
statement
that complaint is accurate and, under perjury, person is authorized to act
•
signature
of person authorized to act
•
contact
information
11. What
Happens if 512(c)(3) Notice is Not Sent?
•
Hendrickson: eBay
entitled to safe harbor when 512(c)(3) notice not sent
–
Plaintiff
needed to ID specific item numbers that were infringing
•
ALS Scan: deficient
notice eliminates safe harbor so long as it “substantially” provided the
specified information
–
Generalized
statement that USENET groups contained infringing items was enough
•
Napster
–
District
court initially did not require any notice; Napster had red flags based on its
behavior
–
9th
circuit required record companies to provide some information to Napster
12. Eligibility
for 512 Safe Harbors
• Register with the copyright
office
• Post contact information on
the website
• Notify users in the user
agreement that repeat infringers will be terminated
• Follow a policy of
terminating repeat infringers
• Accommodate and not
interfere with “standard technical measures”
13. Vicarious
Copyright Infringement
• “Direct Financial Benefit”
– Used to arise when provider
made more money attributable to the infringement (e.g., banner ads, not
subscription fees)
– But Napster had direct
financial benefit even though it had no revenues
• “Right and Ability to
Control”
– Napster’s contract said it
could refuse service and terminate accounts in its sole discretion