Lex 8256: The Law in Cyberspace Seminar

Liability of Internet service providers for their subscribers' communications

    The Internet is a markedly different communications medium from those that have come before, because it is many-to-many; ordinary people can come together in Internet-mediated fora to trade ideas, swap recipes, argue politics, or engage in any other communication they choose.  Those discussions, typically, will be hosted on at least one set of computer servers; some person or firm will own those servers.  That person or firm may or may not moderate the discussions.  What is the liability of the host in connection with the things its users or subscribers say or make available?  In the ordinary tort-law context, the courts have most often held that federal law bars liability, pre-empting the state-law claims. Begin by reading Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998), and Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).  Are these cases rightly decided?  What costs do they impose on society?  Are the benefits worth it?

    OPTIONAL:  For a different application of the same immunity, see Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (Cal. App. 1st Dist. 2001) (plaintiffs sought to impose state-law liability on a public library offering unfiltered Internet access, on the ground that patrons could view sexually explicit speech on its computers; held, the library, as an Internet service provider, is not responsible for the speech that may be viewed using its machines).

    Congress, however, chose a different approach when it came to the liability of ISPs in connection with material hosted on their systems that is said to violate someone's copyright.  Read 17 U.S.C. 512, and this FAQ explaining section 512's provisions.  Section 512 gives ISPs a safe harbor, but subjects it to strict conditions.  Is this a better approach?  Ellison v. Robertson, 189 F. Supp. 2d 1051 (C.D. Calif. 2002), is a pretty good guide through the copyright thickets.

    Read In re Verizon Internet Services, 2003 U.S. Dist. LEXIS 681 (D.D.C. 2003).  That case involved a claim that a subscriber had used the ISP's bandwidth to share material, in violation of the copyright laws, over a peer-to-peer network.  Note that the ISP in such case isn't actually hosting the offending material; rather, it's just providing connectivity.  The court nonetheless enforced a subpoena requiring the ISP to turn over the user's identity.  (Questions:  Why is the ISP contesting this subpoena?  What are an ISP's incentives in this sort of case?)  To (better) understand why the court's result is problematic, take a look at the opposition the ISP filed.