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 almost always 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," bars liability.  Read Donato v. Moldow, 865 A.2d 711 (N.J. Superior App. Div. 2005).  Is this case (along with the ones it discusses) rightly decided?  What costs does it impose on society?  Are the benefits worth it?

    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.  In particular, a host must promptly remove, or disable access to, material that complaining copyright owners identify as infringing.  Visit www.chillingeffects.org, and browse the database.  Is this approach a better one?  For an attempt to navigate the copyright and § 512 shallows in a somewhat atypical context, see Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2003).

    RIAA v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003), cert. denied, 543 U.S. 924 (2004), approaches this problem from a somewhat different angle.  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 this case wasn't hosting the offending material at all, even temporarily; rather, it was just providing connectivity.  The court rejected a subpoena requiring the ISP to turn over the user's identity.  (Why did the ISP contest this subpoena?  What are an ISP's incentives in this sort of case?) 

    OPTIONAL:  In the wake of RIAA v. Verizon, the RIAA shifted to an approach of suing file-sharers as "John Does," and then filing subpoenas against ISPs as part of the civil discovery process.  See, e.g., Capitol Records v. Does 1-250, Civil Action No.  04 CV 472 (LAK)(HBP) (S.D.N.Y. Jan. 26, 2004).