On-Line Service Provider Liability

In preparation for the March 12 class on online service provider liability, please read the required reading materials (which should not take too long) and consider the following questions.

QUESTIONS TO BE CONSIDERED:

(1) How should an internet service provider (ISP) be viewed in order to determine liability? As a bookseller, publisher, common carrier, broadcaster, etc.?

(2) How should the ability to control and/or the ability to police factor into a liability analysis?

(3) How should actual or constructive knowledge factor into a liability analysis?

(4) Do the answers to questions #2 and #3 depend on the type of violation occurring (e.g., copyright infringement, libel/defamation, obscenity/pornography)?

(5) What rights do people have to interact anonymously online (e.g., by using anonymous remailers)? Do we support anonymous interaction where it results in no party being accountable for content of communication?

(6) What role should/can an independent third party play in policing and/or resolving online disputes? Should that third party be a government agency, a court, or an independent party such as the Virtual Magistrate?

(7) Assuming the participation of some third party, at what point should an ISP be required to respond to allegations of copyright infringement, the presence of defamatory or libelous material, or the presence of obscenity? How does this implicate Free Speech?

(8) Can/should liability be assigned by contract (e.g., indemnification clauses)? Keep in mind contracts between an ISP and a content provider and well as between a content provider and a visitor to her site (e.g., point-and-click liability release)?

ABOUT THE READING:

Where possible we have assigned online sites that summarize key cases about online liability. Where such summaries do not exist we have assigned the case itself. In addition, other sites listed under required reading address more forward-facing issues, such as proposals for legislation addressing online liability, possible fora for dispute resolution, and attempts to limit liability via contract. Overall, the required reading should not take an inordinate amount of time and will provide a good basis for our class discussion. If you would like to learn about the cases in depth, their cites are listed under recommended reading.

REQUIRED READING:

(1) for a summary of defamation cases Cubby v. Compuserve and the two Stratton Oakmont v. Prodigy cases, see: http://lawlinks.com/flacom/recent/index.html then choose the hotlink to "On-line Service Provider Liability for Defamation."

(2) for a discussion of contributory infringement of copyright, and the cases Fonavisa v. Cherru Auction, Sega Enterprises v. Maphia, and Religious Technology Center v. Netcom On-Line Communication Services, see: http://www.gse.ucla.edu/iclp/jul96.html

(3) Playboy Enterprises v. Frena, 839 F.Supp 1552 (M.D. Florida, 1993), available on-line at http://www.leepfrog.com/E-Law/Cases/Playboy_v_Frena.html.

(4) United States v. Robert Allen Thomas, F.3d 701 (6th Cir. 1996). See also (not required) the Electronic Frontier Foundation amicus brief.

(5) for a critique of recent proposed legislation and suggestions regarding future legislation meant to protect copyright online, see the Ad Hoc Copyright Coalition site at: http://www.ahccoalition.org/cn/bill.htm

(6) for an introduction to the Virtual Magistrate, its purpose and procedures, see: http://www.law.vill.edu/vis/student_home/ courses/civpro/vmagprb.htm then hotlink to "Virtual Magistrate System" and to "Virtual Magistrate Project Concept Paper of 7-24-96."

(7) for a sample of a contract between a content provider and an online service provider, including a couple clauses attempting to prevent the content provider's violation of any laws, see: http://www.wdcnet.com/agree.html.

RECOMMENDED READING:

(1) William B. Turner, What Part of "No Law" Don't You Understand?, Wired, Mar. 1996, at 104 See http://www.hotwired.com/wired/4.03/no.law.html

(2) Religious Technology Center v. Netcom On-Line Communications Services, 907 F.Supp. 1361 (N.D. Cal 1995).

(3) Stratton Oakmont v. Prodigy Services Company, 1995 WL 323710 (N.Y.Sup 1995); and Stratton Oakmont v. Prodigy Services Company, 1995 WL 805178 (N.Y.Sup 1995). See also the EFF's summary of the case.

(4) Cubby v. Compuserve, 776 F.Supp. 135 (S.D.N.Y. 1991).

(5) Sega Enterprises v. Maphia, 1996 WL 734409 (N.D.Cal 12/18/1996), and Sega Enterprises v. Maphia, 857 F.Supp. 679 (N.D.Cal 3/28/1994).

(6) Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996).

Required Links