Fordham CLIP Symposium: Panel, "Content and CDA Immunity" - Fordham Intellectual Property, Media & Entertainment Law Journal
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Fordham CLIP Symposium: Panel, “Content and CDA Immunity”

Fordham CLIP Symposium: Panel, “Content and CDA Immunity”

Live Blog of the Fordham Center for Law & Information Policy “Third Law & Information Society Symposium” — Intermediaries in the Information Society

Panel, “Content and CDA Immunity”
Moderator: Olivier Sylvain
Panelists: Eric Goldman, Samir Jain, Nancy Kim, Rebecca Tushnet

[Blogged live by Jason Lunardi, citations edited subsequently]

[9:15] Opening remarks by Dean Michael Treanor and Prof. Joel Reidenberg.

[9:20] Moderator Olivier Sylvain [introduces the panelists]

[9:23] First Speaker, Samir Jain:   Compuserve, Prodigy cases. These set up disincentive to filter. This is why the Communications Decency Act section 230 was passed [47 U.S.C. § 230] (“CDA 230”). CDA 230 Protects intermediaries for 3rd party content: But, must be an online service, plus information at issue must be from another information provider, and the information provider must be treated as the “speaker.”

Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997): Advertisements for T-Shirts making fun of the Oklahoma City bombing, with contact for Ken Zeran. He didn’t have anything to do with them. People sent death threats to him. He sued AOL. 4th Cir. agreed that AOL was protected by CDA 230. Allegation was that AOL knew about the content, but the court said the statute was broad enough to cover. Case [Fair Housing Council of San Fernando
Valley v., LLC, 521 F.3d 1157
(9th Cir. 2008)] & Craigslist Case: gave you online form with categories to fill out, then created a structured profile for you, allowed you to search for roommates. some of the questions asked were about characteristics that would be prohibited under Federal Fair Housing Law to discriminate.

The additional comments section unanimous decision that CDA gave immunity. As to questiosn themselves, created by, they were created by the company, so no CDA immunity. As for the profiles generated, in one sense they could be considered content created by third parties. But the court distinguished Carafano case, because whether or not a user answers the question (lie or truth) they would be in violation of the law. So is involved in the creation of the unlawful content. Points out that it was an “inevitableness” that the content will be illegal.

Craigslist, 7th Cir. Also a fair housing case. Issue: Is Craigslist partially responsible for the content? also, would it be considered the “publisher” or “speaker”? the District Court holds that it is not the publisher. Rule was 230 applies only when publication is an element. So, 230 applied to Craigslist. 7th Circuit used language that they may not be narrowing 230 as much, Defendant wins on 230 grounds.

[9:40] Second Speaker, Eric Goldman: Talking about where 230 stands right now. It has suffered many attacks, leading to exceptions.
He states: “Online Service Providers are not liable for third party content PERIOD!” The courts reject challenges across the board. But there are some exclusions: Statutory exclusions:
(1) ECPA claims;
(2) Federal crimes (gambling, child porn, obscenity) — but state crimes ARE preempted;
(3) Intellectual Property claims (but what is an “IP claim”? … there is a grey area. Fed copyright is not covered under CDA.)
What about state IP claims? CCBill case (9th Cir.): Court said If it is a state IP claim, it is also categorically preempted! (Not a popular decision. ex. recent Project Playlist case said it disagreed with this outcome).

To get around CDA and get to website, sue website based on “First Party Content” — The Marketing representations, for example, that prohibits defamatory content, and then users post defamatory content, this violates the professed marketing representations.
Masur v. eBay case is flagship case. eBay said that the third party service was “Safe”.  eBay argued that the third party rendered the statement untrue. Court said that eBay had to own up to the claim itself!
You can always find marketing representations that you can sue on when rendered untrue, and get around CDA.

In the past, if you had editorial control, you can be liable. CDA reversed this: even if they have done something to edit, or profit, or screened, they are still immune.

Problem, potential to create a lopsided Internet.  People will want to excise content that is negative! So if we create a regime where people are able to take off negative content, the Internet would be lopsided — only good content.
Job-reference market is broken. Afraid to give recommendations; fear of backlash. Now the internet facilitates reputational system.

[9:55] Third Speaker, Nancy Kim:  [Powerpoint slides showing the wording of CDA 230].
Courts have interpreted it to give immunity any time third party content is injurious. No reason not to treat ISPs as the providers that they are! She proposes a front-end analysis as to their practices are “Reasonable”
It should depend on the context: Online vs offline businesses, volume of traffic, size of site, size of company, difficulty in controlling content, problems with anonymity.

But, cannot Require: Pre-screening, or acting as “content cops”

There is room for a “website proprietorship” analysis. She thinks Cragslist and Roommates cases both show this proprietorship analysis. Craigslist case: There were warning notices, the company was leanly staffed, pointed out that the lawyers can go after posters themselves. Roommates case different: forseeable that the users would be prompted to post discriminatory content. “If you don’t encourage illegal content . . . you will be immune”
Doe v. Myspace: Plaintiff was a minor, met an adult online. when they met offline, she was assaulted. Plaintiff argued that Myspace should have taken reasonable measures — age verification software. Court rejected this argument. then went through “reasonability analysis”. Policy in place. Plaintiff violated the policy. Lack of parental supervision is really the problem. Plus, age verification is not foolproof.
Court said, “to impose a duty under the circumstances . . . to determine the age of each applicant, with liability resulting from negligence . . . would stop MySpace’s business in its tracks . . .”

She points out that the courts have interpreted broadly the statute.
I.e., profile for a guy … anonymous posting about all bad things. This website is under no obligation to remove. No liability! asked to tell story about someone else, to add photos and video too. some things written are very cruel. No obligation for site to take content down.

[10:09] Fourth Speaker, Rebecca Tushnet:
She claims she will be the most abstract of the speakers in the panel.
She talks about Quizznos asking users to create comparative advertising. Some was defamatory of Subway sandwiches. They adopted the videos and used. They can use CDA 230.
IP rights get treated better, there is a notice and takedown regime. But should this be only for copyright? what about trademark? defamatory content? Should we move to a European system where all the IP laws are the same?
Recognizes that copyright infringement is relatively easy compared to defamatory content.
The three strikes model has resulted in a fear small offenses will lead to shut down, or that false accusations. Social networks are very important now, to lose them would be bad. Also anonymity is important, you would lose as soon as you try to defend an action.
ex. NY Times v. Sullivan establishing freedom to speak about anyone, was also a decision about the business model! Make it hard for newspaper to be liable, to preserve the business.
The real speech chilling effect is when publisher has to guess whether someone else has taken reasonable care, when they publish that content!
Sullivan removes the barriers from intermediaries carrying others’ speech. Can’t have too much of a burden in screening.
Sullivan was not understood as a case about intermediaries. We are now in an environment that we can say some businesses are better suited to provide robust speech.
Where do people engage in free speech? It is through the private entities like NY Times. they are fulfilling the public goal.
Her preference is Government solutions. They should have to give up some of the control — not be able to use contracts to completely govern the users. Need for a democratic governing plan for some of the big sites.

[10:20] Question and answer segment:

Jain comments:  It is true that the intermediaries don’t have the resources to investigate any and all complaints. You just take down the content in 99% of the cases. We ahve to recognize that the implications of regime is encouraging “hecklers”

Goldman comments:  We see a lot of ISPs taking down content even with the immunity.

Kim comments: The NY Times case could be viewed in the reasonablilty analysis. NY Times actions were reasonable considering the size of the business. difference between where there are controls in place – and where there are no controls!

[10:26] Question from Audience: What would someone do if they were featured on or Gossip. How do you proceed as an individual?

Kim answers: There is no realistic remedy, short of filing a lawsuit.

Goldman says: It is possible for people to be effectively invisible, but then surprised when they are called out.

Audience member responds: The terms and conditions would prohibit those posings, so use those terms to argue a violation.

[10:30] Jain comments:  It is a tricky analysis to start ex ante judging the business model. It would discourage innovation and speech.

Goldman: Challenges principle that is fundamentally bad. He thinks it serves some public purpose. We may decide that this is a good thing to hold people accountable for their bad actions! The site may not be illiciting “bad” information at all …

Audience member comments:  The comments section is available for users to challenge the information posted.

Goldman answers:  Only if the site allows the comment functionality. Some sites have a policy that they will not take down the content no matter what.

Audience member comments:  Bringing up “” where there was not exactly the traditional first amendment protection applied. It was gossip. How would society benefit from that sort of site?

Goldman answers: was an example of the market working well. It dropped out of marketplace because people realized value. This screening out is important.

Audience member comments:  Maybe there is a generational issue in assessing how harmful this trivial information about a person can be. He suggests maybe younger students dont care as much when info is posted about them.

Kim responds: This is probably because they are not thinking long-term. She doesn’t think we can say categorically that young people don’t care.

Goldman comments: There was a student effort to self organize and refuse to use the site. Students are able to make some judgments. Marketplace working just fine there.

Tushnet comments: Don’t underrate gender and other power differentials. Serious problem, e.g.,, females afraid to go to the gym because she read others commenting on how hot she is, etc.

Kim comments: we should consider the chilling effects on people doing things like going to the gym. These other issues are important. Free speech vs. free speech. what kind of discourse do we want to take shape in the internet?

Audience member comments: When you post online should should be responsible for the privacy repercussions … Kids don’t seem to care.

Goldman comments: There will always be a “lost generation” — those who don’t get to benefit from the technological advance. then the next generation learns from the mistakes of the first. This is what is happening now.

[10:48] Moderator indicates that time is almost up. Asks panelists to comment about a reasonability standard …

Kim comments: The 7th Cir. view that only claims based on publisher/speaker. Websites should not make subjective assessment.
Notice takediown proposal for three situations: (1) poster requests takedown, (2) naked pic of anyone without written authorization, and takedown notice from subject of pic; (3) pic of minor upon request of legal guardian.

Tushnet comments: In favor of more regulation. Get users to vote on these sites.

Goldman comments: CDA 230 system works just fine. He points out that we could do an analysis on what was the “secret sauce” that helped internet succeed. He suggests that 230 as one of the best successes with government reglation (de-regulation) to help the internet.

– – – – –
[10:53] BREAK

Jason Lunardi