Lemley on Online Safe Harbors

By Eric Goldman

Mark Lemley, Rationalizing Internet Safe Harbors

Mark Lemley has weighed in on an topic near and dear to my heart–secondary liability online. He advances two principal arguments in his paper. First, it would make sense to harmonize the disparate legal treatment between secondary liability for copyright law (basically, the notice-and-takedown scheme) and secondary liability for just about everything else (which has no liability under any circumstance per 47 USC 230). Second, the right harmonized model would use, as its starting point, trademark law’s safe harbor for innocent publishers/printers (15 USC 1114(2)). As with Mark’s other work, his arguments warrant careful consideration.

The abstract:

Internet intermediaries – service providers, Web hosting companies, Internet backbone providers, online marketplaces, and search engines – process hundreds of millions of data transfers every day, and host or link to literally tens of billions of items of third party content.

Some of this content is illegal. In the last 12 years, both Congress and the courts have concluded that Internet intermediaries should not be liable for a wide range of content posted or sent through their systems by another. The reasoning behind these immunities is impeccable: if Internet intermediaries were liable every time someone posted problematic content on the Internet, the resulting threat of liability and effort at rights clearance would debilitate the Internet.

While the logic of some sort of safe harbor for Internet intermediaries is clear, the actual content of those safe harbors is not. Rather, the safe harbors actually in place are a confusing and illogical patchwork. For some claims, the safe harbors are absolute. For others, they preclude damages liability but not injunctive relief. For still others they are dependent on the implementation of a “notice and takedown” system. And for at least a few types of claims, there is no safe harbor at all. This patchwork makes no sense. In this article, I suggest that it be replaced with a uniform safe harbor rule. A single, rationally designed safe harbor based on the trademark model would not only permit plaintiffs the relief they need while protecting Internet intermediaries from unreasonable liability, but would also serve as a much needed model for the rest of the world, which has yet to understand the importance of intermediaries to a vibrant Internet.