On Fri, 02 May 2008 19:37:15 -0500, Jim Logajan
wrote in :
"Good news for discussion list moderators: The Ninth Circuit has held that
under 47 U.S.C. sec. 230, discussion group moderators are immune fr
Research seems to confirm immunity:
http://www.techlawjournal.com/courts/zeran/47usc230.htm
(c) PROTECTION FOR `GOOD SAMARITAN' BLOCKING AND SCREENING OF
OFFENSIVE MATERIAL-
(1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user of an
interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content
provider.
(2) CIVIL LIABILITY- No provider or user of an interactive computer
service shall be held liable on account of--
(A) any action voluntarily taken in good faith to restrict access to
or availability of material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable, whether or not such material is
constitutionally protected; or
(B) any action taken to enable or make available to information
content providers or others the technical means to restrict access to
material described in paragraph (1).
http://blog.ericgoldman.org/archives...escom_de_1.htm
Cyberspace Exceptionalism
47 USC 230 was enacted in 1996 during the height of "cyberspace
exceptionalism," the belief that the Internet was
unique/special/different and therefore should be regulated
differently. 47 USC 230 is a flagship example of such exceptionalism.
It creates rules that really differ between the online and offline
worlds, such that publishing content online may not create liability
where publishing the identical content offline would. The medium
matters.
Despite Congress’ obvious intent, the majority opinion bristles with
antipathy towards cyberspace exceptionalism. In numerous places, it
expresses skepticism that offline rules should not apply verbatim to
online behavior--even though that's exactly what 230 does in some
cases. Kozinski’s not the first judge to rankle at the policy
implications of Congress' cyberspace exceptionalism, but he may have
let this hostility override other analytical considerations.
http://www.ca9.uscourts.gov/coa/newopinions.nsf/870C17829A420BDA882572DC0051EC26/$file/0456916.pdf?openelement
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Argued and Submitted
December 5, 2006—Pasadena, California
Filed May 15, 2007
....
Avoiding this broad interpretation of “information content
provider,” we held that immunity from “ ‘publisher’ liability
necessarily precludes liability for exercising the usual prerogative
of publishers to choose among proffered material and to
edit the material published while retaining its basic form and
message.” Id. at 1031. We noted that “[o]ther courts have
agreed that the exercise of a publisher’s traditional editorial
functions—such as deciding whether to publish, withdraw,
postpone or alter content do not transform an individual into
a content provider within the meaning of § 230.” Id. at 1031
n.18 (internal quotation marks omitted); see also Barrett v.
Rosenthal, 146 P.3d 510, 528 (Cal. 2006) (relying on Batzel
in reaching its conclusion that “[a] user who actively selects
and posts material based on its content fits well within the
traditional role of ‘publisher’ ” and that “Congress has exempted
that role from liability”). Although not expressly addressed by
our case law, a “publisher’s traditional editorial functions”
also include seeking out and specializing in a specific type of
publication, just as in Batzel, where the website operator operated
a website dedicated to a specific topic (museum security
and stolen art). Batzel did not suggest that this fact made the
operator an information content provider.
In sum, our binding precedent has already addressed the
question when a website operator has jointly created and
developed content so as to become an “information content
provider.” Unless a website operator directly provides “the
essential published content,” Carafano, 339 F.3d at 1124, it
is not an “information content provider.” The result is robust
immunity under section 230(c).
http://blog.internetcases.com/category/section-230/
No CDA immunity for adult-oriented Web site in right of publicity case
Tuesday, April 1st, 2008
Doe v. Friendfinder Network, Inc., — F.Supp.2d —-, No. 07-286, 2008 WL
803947 (D.N.H. March 28, 2008)
Plaintiff Doe learned that a nude image and some biographical
information about herself had been used to set up a bogus profile on
the adult-oriented personal-ad Web site Adult Friend Finder. She sued
the operator of the site alleging a number of claims, like defamation
and intentional infliction of emotional distress. She also alleged
misappropriation of her right of publicity under state law, and false
designation of origin and false advertising under the federal Lanham
Act.
Adult Friend Finder moved to dismiss the claims, arguing that the
Communications Decency Act (”CDA”) at 47 U.S.C. 230 immunized the site
from liability for the information provided by someone other than the
site operator. The court agreed with Adult Friend Finder as to the
majority of the claims, holding that the claims were barred by the CDA
where the plaintiff sought to impose liability on the site as the
publisher or speaker of the information.
But the court held that the CDA did not immunize Adult Friend Finder
from Doe’s state law claims for violation of the right of publicity,
or for violation of the federal Lanham Act.
Section 230(e)(2) provides that “[n]othing in this section shall be
construed to limit or expand any law pertaining to intellectual
property.” You may recall that last year the Ninth Circuit [in Perfect
10, Inc. v. CC Bill, LLC, 488 F.3d 1102 (9th Cir. 2007)] held that
230(e)(2)’s restriction on immunity only applied to federal claims
involving intellectual property (leaving state law claims barred).
The court in this case disagreed with the Ninth Circuit on this point,
looking at the plain language of the statute and finding no meaningful
distinction between state and federal causes of action involving
intellectual property, especially given the presence of the word “any”
when decribing “law[s] pertaining to intellectual property.”
http://www.cybertelecom.org/cda/samaritanref.htm
Cybertelecom
Federal Internet Law & Policy
An Educational Project
News
Craigslist Gets Seventh Circuit 230 Win in Fair Housing Act
Case--Chicago Lawyers' Committee v. Craigslist, Tech & Marketing Law
3/17/2008
7th Circuit rules in favor of Craigslist, Online Liability 3/17/2008
47 USC 230 Day at the Technology & Marketing Law Blog, Tech &
Marketing Law 3/13/2008
No Liability for Providing User-Selected Category Tags--Whitney v.
Xcentric, Tech & Marketing Law 2/19/2008
RipOffReport Litigation, Online Liability 1/22/2008
Should CDA Section 230 Immunity Depend Upon Site Design?, Tech Law
Update 1/10/2008
Goodale on CDA 230 and Anonymous Speech Online, Citizen Media Law
Project 12/11/2007
Lawyer sues again over Web site he says defamed him -, Pittsburgh
12/4/2007
Blogger Wins Lawsuit Over Gripe Post--BidZirk v. Smith, Tech &
Marketing Law 10/30/2007
"Immunity" not accurate description for 47 USC 230 protection,
Internet Cases 11/13/2007
More Defendants Lose 230 Defense, Technology & Marketing Law Blog
6/8/2007
Builder sues Web site and Google over posting, Newark Star 4/27/2007
California Court Expands Immunity for Bloggers, eWeek 11/21/2006
One week's time, two takes on Section 230 immunity, Internet Cases
11/21/2006
Calif. Supreme Courts upholds Internet free speech, Xinhuanet
11/21/2006
Websites not liable for posts by others, USA Today 11/21/2006
[Calirfornia] Supreme Court to review online speech case [230
liability], Tri Valley Herald 4/16/2004
Settlement Reached in Long-Running Internet Libel Case, eweek
11/16/2004
Dow Jones settles Net defamation suit, CNET 11/16/2004
Peter H. Lewis, After Apology From Prodigy, Firm Drops Suit, N.Y.
Times, Oct. 25, 1995 , at D1.