Internet Content LiabilityInternet Content Liability

David S. BralowDavid S. BralowCUNY October 15, 2012CUNY October 15, 2012

TopicsTopics

Liability for User Generated Content Liability for User Generated Content Terms of ServiceTerms of Service Communications Decency ActCommunications Decency Act Digital Millennium Copyright ActDigital Millennium Copyright Act

Reverse PublishingReverse Publishing DefamationDefamation Invasion of PrivacyInvasion of Privacy Copyright InfringementCopyright Infringement

Communications Decency Communications Decency ActAct

Broad ImmunityBroad Immunity No Provider or UserNo Provider or User Of an interactive computer serviceOf an interactive computer service Shall be treated as a PublisherShall be treated as a Publisher Of Any Information Provided by another Of Any Information Provided by another

Information Content ProviderInformation Content Provider

What is an Interactive What is an Interactive Computer Service?Computer Service?

Means “any information service, system Means “any information service, system or access software provider that or access software provider that provides or enables computer access by provides or enables computer access by multiple users to a computer server.”multiple users to a computer server.”

i.e. EVERYONEi.e. EVERYONE

What is a Provider or UserWhat is a Provider or User

Very broad… virtually anyone who Very broad… virtually anyone who has anything to do with a computer has anything to do with a computer service.service.

Information Provided by Information Provided by AnotherAnother

As long as the content was provided As long as the content was provided by a third party, you are immune.by a third party, you are immune. Notice is irrelevant.Notice is irrelevant. Even assistance does not necessarily Even assistance does not necessarily

turn someone into a publisherturn someone into a publisher

CDA (continued)CDA (continued)

Assistance/Editorial ControlAssistance/Editorial Control Immunity retained even when the ISP Immunity retained even when the ISP

“exercise(s). . . a publisher’s traditional “exercise(s). . . a publisher’s traditional editorial functions – such as deciding whether editorial functions – such as deciding whether to publish, withdraw, postpone or alter to publish, withdraw, postpone or alter content” provided by third parties. content” provided by third parties. Zeran v. Zeran v. AOL, Inc.AOL, Inc.

Defendant is not publisher even though he Defendant is not publisher even though he made minor alterations to e-mail before made minor alterations to e-mail before posting. posting. Batzel v. SmithBatzel v. Smith

CDA (continued)CDA (continued)

Assistance/Editorial Control (continued)Assistance/Editorial Control (continued) Dating website did not become content Dating website did not become content

provider when it provided multiple choices provider when it provided multiple choices and essay questionnaires to member to and essay questionnaires to member to generate profiles. generate profiles. Carafano v. MetrosplashCarafano v. Metrosplash

ButBut Roommate created and developed Roommate created and developed

questionaires, forms and answer choices so it questionaires, forms and answer choices so it was “responsible, in whole or part, for the was “responsible, in whole or part, for the creation or development of the information. creation or development of the information. Fair Housing Counsel v. Roommate.Com, LLCFair Housing Counsel v. Roommate.Com, LLC

How broad is the defense?How broad is the defense?

DefamationDefamation Invasion of privacyInvasion of privacy Negligent performance of a Negligent performance of a

gratuitous undertakinggratuitous undertaking Child pornographyChild pornography Tortious interferenceTortious interference

Terms of Service/CopyrightTerms of Service/Copyright

Copyright Complaints.Copyright Complaints. Tribune.com Tribune.com respects the intellectual property rights of respects the intellectual property rights of others. If you believe that your work has others. If you believe that your work has been copied in a way that constitutes been copied in a way that constitutes copyright infringement or are aware of any copyright infringement or are aware of any infringing material placed by any third infringing material placed by any third party on Tribune.com, please contact us at party on Tribune.com, please contact us at Copyright Agent, 435 N. Michigan Ave., Copyright Agent, 435 N. Michigan Ave., 6th Floor, Chicago, IL 60611, 312-222-6th Floor, Chicago, IL 60611, 312-222-4653 (ph.), 312-222-4206 (fax), 4653 (ph.), 312-222-4206 (fax), copyrightnotice@tribune.com. copyrightnotice@tribune.com.

Digital Millennium Copyright Digital Millennium Copyright ActAct

ISP is immune if:ISP is immune if: Service Provider does not have actual Service Provider does not have actual

knowledge of infringementknowledge of infringement Is not aware of facts or circumstances Is not aware of facts or circumstances

from which infringing activity is apparentfrom which infringing activity is apparent Upon receiving knowledge acts Upon receiving knowledge acts

expeditiously to remove materialexpeditiously to remove material Does not receive direct financial benefitDoes not receive direct financial benefit Designates and Agent for NoticeDesignates and Agent for Notice

When you are the When you are the publisher!!!publisher!!!

THE CDA DOES NOT APPLYTHE CDA DOES NOT APPLY DefamationDefamation Invasion of PrivacyInvasion of Privacy IntrusionIntrusion

THE MILLENNEUM COPYRIGHT ACT THE MILLENNEUM COPYRIGHT ACT DOES NOT APPLYDOES NOT APPLY Fair UseFair Use