Lex 8256: The Law in Cyberspace Seminar

Liability of Internet service providers for their subscribers' communications

    The Internet is a different communications medium from those that have come before in part 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 generally held that 47 U.S.C. § 230, which provides that "[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," precludes liability for the service provider.  Read Donato v. Moldow, 865 A.2d 711 (N.J. Superior App. Div. 2005).  Then, for a contrasting result, read Fair Housing Council v. Roommates.com, 521 F.3d 1157 (9th Cir. Cal. 2008).  Are these cases (along with the ones they discuss) rightly decided?  What costs does section 230 impose on society?  Are the benefits worth it?

    Congress chose a different approach when it came to the liability of service providers 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 only under certain circumstances: In particular, to avoid liability, a host must promptly remove or disable access to material that complaining copyright owners identify as infringing.  Is this a better approach?  What are its costs?  Visit www.chillingeffects.org, and browse the database.

    Consider the ruling in Lenz v. Universal Music Corp., No. C 07-3783 JF (N.D. Calif. Aug. 20, 2008).  How significant is it?

    Read the court's opinion in Io Group v. Veoh Networks, No. C06-03926 (N.D. Calif. Aug. 27, 2008).   Now read the complaint filed in a lawsuit by Viacom International against YouTube (and its corporate parent Google).  Who should prevail?