Wikipedia and 230, and a Great 230 Case Law Resource

Ken Myers, a recent Harvard Law School graduate and soon-to-be attorney at Sullivan & Cromwell, has posted an article, Wikimmunity, to SSRN. The article concludes that Wikipedia will be squarely immunized from liability by 47 USC 230. While this conclusion should be relatively non-controversial (at least, it made perfect sense to me!), the article lays out the mechanical detail of how the statutory immunity applies to the somewhat novel operations of Wikipedia.

As part of doing his article research, Ken prepared an Excel spreadsheet categorizing the 230 precedent cases on a variety of dimensions (such as whether the court analyzed if the defendant was an ICS). See his Excel spreadsheet here (reposted with Ken’s permission). This is a great resource for anyone researching 230 cases as part of a lawsuit or for a paper. I haven’t gone through it line-by-line, but it looks like it includes most/all of the 230 cases I know about. Thanks to Ken for doing the legwork and sharing it with us.

The abstract on Ken’s Wikimmunity article:

Wikipedia (www.wikipedia.org) is an amazing resource that resembles an online encyclopedia. Critical to its success is its process: it is editable by anyone with access to its content. As the project hurtles forward towards its humbling goal of providing the world with “free access to the sum of all human knowledge,” questions regarding its veracity and accountability become increasingly insistent and important.

In the wake of the Seigenthaler biography controversy, many commentators suggested that Wikipedia should be able to escape liability for defamatory content pursuant to the immunity provided for in 47 U.S.C. § 230(c)(1), enacted by Congress as part of the Communications Decency Act of 1996. Unfortunately, those commentators do not provide a detailed roadmap to that conclusion. Additionally, courts interpreting § 230(c)(1) have not been self-conscious or precise with respect to their choice of several alternative approaches to the ambiguous statutory text of § 230(c)(1). This Article is an attempt to bridge those gaps by offering a taxonomy of those available analytical approaches while exploring ambiguities relevant to that application in light of Wikipedia’s unique facts. Namely, the open contribution model and the accretion-based continuous “publication” system raise issues heretofore unexplored in § 230(c)(1) cases: (1) What is an “entity,” as it is used in the definition of the critical phrase, “information content provider”? and (2) What is the appropriate level of generality to apply to the term “information”? While this Article concludes that the Wikipedia will prevail on the basis of § 230(c)(1) immunity, it offers a few thoughts for shaping its code in the shadow of the law.

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