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March 21, 2011
47 USC 230 Retrospective Conference Recap
By Eric Goldman
Earlier this month, we had a major academic event on 47 USC 230. My notes are especially incomplete because I had lots of administrative duties that day. I didn’t get any usable notes from the introductory sessions by Sen. Wyden or Chris Cox. Fortunately, you can read Sen. Wyden’s written remarks. As usual, my notes are my impressions of the conversation and not verbatim transcriptions; you should double-check anything you want to cite or rely upon. Fortunately, we had several other folks covering the day’s proceedings:
We also recorded the day’s proceedings and plan to post the video soon. I’ll circulate the announcement when the video is live.
In-House Counsel Panel
Laura Pirri: IP complaints are more expensive than 230 complaints—they take more resources and in-house attorney time
Alex Macgillivray: Twitter has 1,000 tweets posted a second. Twitter gets 10k complaints a month, and most of those are completely not actionable. Twitter has 24 people dealing with user complaints. “People who work with angry complaining users are some of the most fun people” but they are a bit weird. Alleged defamation is among the most useful stuff online (as opposed to real defamation which is among the worst).
Sandy Baron: has any judicial decision changed your practices? Pirri: Barnes v. Yahoo prompted her to look at the company’s processes. Linden Labs won’t make any representations about what LL will do for a complaining user until LL has actually done the work, even though that approach frustrates users. Laurence Wilson: our “message is ‘we’ll take a look at it.’”
Kai Falkenberg: She is closely following the pending lawsuit Parisi v. Sinclair (D.D.C.). Barnes & Noble’s and Amazon’s product pages include a book synopsis and publisher blurb that was allegedly defamatory. The plaintiff claimed that the heading “synopsis” isn’t clear to the reader if it came from Amazon/B&N or the third party publisher. Her lesson: the site should be clear where the content is coming from.
Alex: lots of complainers try to shoehorn defamation into copyright complaints. Twitter now sends its received takedowns to Chilling Effects. Laurence: unhappy businesses try to assert copyright in business listing or trademark in name to try to prevent discussion about the business altogether.
Sandy: how often do you get requests for user identifications? Laurence: not that frequently. Laura: never received an unmasking request covered by 230. Kai: zero. Laurence: Yelp might lend a hand to squash a subpoena targeted at a power user (presumably like a Yelp Elite member).
Sandy: what amendments would you like to see? Laurence: get 47 USC 230 passed in every country in the world. We don’t have to imagine a world without 230—he lives it every day.
Rep. Zoe Lofgren
1995 was a primitive time for the Internet. In 1996, she didn’t anticipate how the Internet would develop. Think of all the companies that didn’t exist then, including Google, Yelp, Facebook. Amazon and Yahoo were new start-ups. She called Yahoo’s GC TWICE about the Communications Decency Act—normally, companies are chasing her. She knew if we put liability on technology, we would stifle innovation.
Technology changes, but Hollywood, the recording industry and the FBI are always with us.
The threat is not gone: DHS takedowns of domain names without due process or consideration of fair use. [Lofgren expands on that point here.] Plus COICA could have an adverse impact on technology itself—no consideration of free speech or fair use. We should not let anti-piracy efforts impede innovation.
Declan McCullagh: are any changes to 230 necessary? Lofgren: it would be “unwise” to attempt to make adjustments. The courts are “not too far off” in terms of statutory interpretation. If there is any statutory change, it will be a change for the worse. Ex: anti-child porn advocates want permanent data retention.
(Ken has promised to send written notes for his talk, so I remain hopeful you will get to see his words verbatim). UPDATE: his comments are available here.
Zeran didn’t sue because he felt like a victim. Based on his background, he knew media law and felt that the statute wasn't consistent with the law. He wouldn’t have sued if he had felt AOL operate in the spirit of good faith.
Congress didn’t contemplate the statute’s effects of online anonymity. Zeran: "the underbelly of the internet is an engraved invitation for anonymous crime."
Congress mislabeled 47 USC 230 as a “Good Samaritan Act.” Zeran explained the biblical origins of the phrase. Today, he wants to play good Samaritan and come to the aid to 230. He proposed a statutory change where the FBI can put the squeeze on servers that facilitate harassment at penalty of civil liability.
Maria Speth: some of plaintiffs’ creative and not-so-creative attempts to get around 230:
* Claim the website is an ICP. This should be Rule 11able.
* Claim 230 doesn’t apply to injunctive relief. The Gentry case says otherwise. [I note that Noah v. AOL squarely addressed this issue as well]. The Blockowicz case provides even more support.
* Argue that the website is an ICP because it creates metatags and URLs. This exception would swallow the 230 rule. The Herman case rejected the argument.
* Argue the website isn’t following its own T&Cs, such as an anti-defamation covenant. Websites should write the T&Cs carefully. [Eric’s note: I made this point in response to the Lori Drew case. Also, I would broaden Maria’s argument to include false advertising claims based on site text beyond the T&Cs.]
* Assert IP claims. 1) Trademark infringement because the site references the plaintiff’s company name. [Eric’s note: see, e.g., the Lifestyle Lift v. RealSelf lawsuit.] 2) Copyright via the Medical Justice workaround.
* Make a promissory estoppel claim. Websites should not say “let me see if I can help you.” [Eric’s note: as we heard from the in-house counsel panel, well-advised companies have gotten this message.]
* Make an appeal to the court to ignore 230 because “there just has to be a remedy.”
Mike Rhodes discussed trendlines in last 15 years. Old days: it was easy to separate the content author from the technology provider. Now: 1) tools help shape content (Metrosplash, Roommates.com, Goddard) and that channels users into unlawful content. It’s hard to distinguish “neutral tools” from tools that shape content. 2) Complaining users are claiming privity via T&Cs—which creates direct liability instead of basing the claims on third party content. These trends have made his 230 practice harder than it was 10 years ago.
Pat Carome: Section 230 is counterintuitive. The statute lets intermediaries remove content without fear that such involvement increases liability exposure. Most intermediaries have been very responsible in taking down problematic content (he then made a not-so-subtle dig at Ripoff Report). He gave a nod to Judge Wilkinson. The Zeran decision was breathtaking in its scope when it didn’t need to be. The case interpretation went beyond the defamation/negligence claim; it reached all claims—not what you expect from a conservative judge. This helped increase the decision’s credibility. Amazing how quickly other courts followed behind the ruling.
Cindy Cohn: She is not in it to protect Google; she’s in it to protect Google’s users. We don’t see enough of the things Section 230 protects. She made an appeal: help EFF make visible all of the good things that Section 230 enables. She pointed to another way around 230: advance state IP claims. This was shut down by ccBill in the 9th Circuit.
In light of the observations by Maria and Mike R. that plaintiffs are invoking website T&Cs, Cindy asked: why do so many websites have T&Cs for web browsing? This seems to set up the privity bypass that plaintiffs are claiming.
Users are dramatically better under 230 than the DMCA/17 USC 512—censorship is much higher via 512 takedowns. A notice-and-takedown regime would result in flood of takedowns.
Colette Vogele: is 230 an immunity from suit or an immunity from liability? Carome: defendants can ask the judge to restrict discovery to just this issue. Rhodes: Sometimes it's hard to tell your client that you just spent a million dollars litigating an immunity from suit.
Speth: doesn’t think there’s a legal split at all about 230’s application. Rhodes: at trial court level, there is a big variation throughout the country. Some judges who aren’t technology-savvy are results-driven. Carome: confusion about line between first party content and third party content. This isn’t a well-drawn line. Most courts don’t parse the words like “responsibility,” “create,” “develop.” This line will get greyer with new technology innovations.
Cohn: fallout from Roommates.com: the more you help users to express themselves, more risk you take on. Websites won’t make their sites user-friendly.
Paul Levy: thinks Roommates.com was correct in all its respects. (By this time, Judge Kozinski had entered the room, so the litigators started fawning all over him). Lots of businesses are pushing the 230 envelope. Every immunity has its limits.
Vogele: what does “good faith” mean in 230(c)(2)? Carome: anti-competitive motivations may be bad faith. Good faith standards in immunity are always problematic because they invite litigation, which is why defendants go for 230(c)(1). Many cases have possible 230(c)(2) defenses, but clients don’t go there. Levy: one possible example of bad faith: if a website always takes down content that criticizes the website, its lawyer or its advertisers.
James Grimmelmann: what about harassthem.com? [Eric’s note: there seemed to be some confusion in response to James’ question. Harassthem.com was a fictional example in Judge Kozinski’s first Roommates.com opinion, and Joe Gratz subsequently registered the domain name for fun. Some of the responses from the panelists seemed to treat harassthem.com as if it were once an actual site.] Cohn: are those sites even visible? Levy: a lot of people would like to reopen the First Amendment. Cohn: remember that federal criminal law isn’t covered by 230 [Eric’s note: but which way does this cut?]
Mark Lemley: data retention as prerequisite to immunity? Cohn: this would eliminate controversial anonymous speech.
Before the conference, Chris Cox sent Judge Kozinski an email saying that Judge Kozinski got the Roommates.com opinion correct. Judge Kozinski said this email was like a rabbi getting an email from God saying that swordfish is kosher.
When litigants argue “if you do X, you’ll bring down Google,” it's the equivalent of saying “if you do X, you’ll bring down the government.”
The Roommates.com en banc opinion reflects limits to the immunity, even though the Internet is a cool place. The Internet is a big commercial enterprise, not the Wild West. But the dissent is brilliant! Every time he reads the dissent, he thinks “gee, I must've been wrong.” Judges aren’t as awe-struck by the Internet as they were 5 or 10 years ago.
Lemley: is 230 just about protectionism for infant industry? Kozinski: The First Amendment doesn’t need protection. We don’t need a statute to help us interpret it. 230 goes beyond the First Amendment. 230 is an anti-liability statute, and those are swell. "I don't think there's anything I can do to sink the internet." Nothing persuades him that the Internet is any different from airplanes or other industries that both do good and cause harm. People shoot themselves over things online.
He lived fine without the Internet. He could live fine without it. If he could flip the switch to personally get rid of the Internet, he’s not sure which way he would go. The Internet has enabled instantaneous communication, perhaps to our detriment. He lamented the mentality: “you went 25 minutes without responding to my email. Are you dead?”
Why is anonymity the sine qua non of 230 protection or First Amendment? "Where is it written that you have a right to speak anonymously and commit defamation?" He’s skeptical of the absolutist position.
When he first looked at 230, it looked like overkill—an overreaction to a bad case. But he’s not so sure any more—judges can shape it through interpretation. He’s now moderately optimistic, now that we’ve gotten past the anything-goes on the Internet, that boundaries are getting to the right place. Thus, the statute may not need additional tinkering by Congress.
Felix Wu talked about 230’s application to the email forwarding cases.
I spoke about 47 USC 230 as good economic policy. My talk notes.
Nancy Kim recapped her arguments that websites should be treated like any other retailers.
Posted by Eric at March 21, 2011 09:25 AM | Derivative Liability
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