Internet Content Liability David S. Bralow CUNY October 15, 2012

Topics Liability for User Generated Content Liability for User Generated Content Terms of Service Terms of Service Communications Decency Act Communications Decency Act Digital Millennium Copyright Act Digital Millennium Copyright Act Reverse Publishing Reverse Publishing Defamation Defamation Invasion of Privacy Invasion of Privacy Copyright Infringement Copyright Infringement

Communications Decency Act Broad Immunity Broad Immunity No Provider or User No Provider or User Of an interactive computer service Of an interactive computer service Shall be treated as a Publisher Shall be treated as a Publisher Of Any Information Provided by another Information Content Provider Of Any Information Provided by another Information Content Provider

What is an Interactive Computer Service? Means “any information service, system or access software provider that provides or enables computer access by multiple users to a computer server.” Means “any information service, system or access software provider that provides or enables computer access by multiple users to a computer server.” i.e. EVERYONE i.e. EVERYONE

What is a Provider or User Very broad… virtually anyone who has anything to do with a computer service. Very broad… virtually anyone who has anything to do with a computer service.

Information Provided by Another As long as the content was provided by a third party, you are immune. As long as the content was provided by a third party, you are immune. Notice is irrelevant. Notice is irrelevant. Even assistance does not necessarily turn someone into a publisher Even assistance does not necessarily turn someone into a publisher

CDA (continued) Assistance/Editorial Control Assistance/Editorial Control Immunity retained even when the ISP “exercise(s)... a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content” provided by third parties. Zeran v. AOL, Inc. Immunity retained even when the ISP “exercise(s)... a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content” provided by third parties. Zeran v. AOL, Inc. Defendant is not publisher even though he made minor alterations to before posting. Batzel v. Smith Defendant is not publisher even though he made minor alterations to before posting. Batzel v. Smith

CDA (continued) Assistance/Editorial Control (continued) Assistance/Editorial Control (continued) Dating website did not become content provider when it provided multiple choices and essay questionnaires to member to generate profiles. Carafano v. Metrosplash Dating website did not become content provider when it provided multiple choices and essay questionnaires to member to generate profiles. Carafano v. Metrosplash But But Roommate created and developed questionaires, forms and answer choices so it was “responsible, in whole or part, for the creation or development of the information. Fair Housing Counsel v. Roommate.Com, LLC Roommate created and developed questionaires, forms and answer choices so it was “responsible, in whole or part, for the creation or development of the information. Fair Housing Counsel v. Roommate.Com, LLC

How broad is the defense? Defamation Defamation Invasion of privacy Invasion of privacy Negligent performance of a gratuitous undertaking Negligent performance of a gratuitous undertaking Child pornography Child pornography Tortious interference Tortious interference

Terms of Service/Copyright Copyright Complaints. Tribune.com respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement or are aware of any infringing material placed by any third party on Tribune.com, please contact us at Copyright Agent, 435 N. Michigan Ave., 6th Floor, Chicago, IL 60611, (ph.), (fax), Copyright Complaints. Tribune.com respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement or are aware of any infringing material placed by any third party on Tribune.com, please contact us at Copyright Agent, 435 N. Michigan Ave., 6th Floor, Chicago, IL 60611, (ph.), (fax),

Digital Millennium Copyright Act ISP is immune if: ISP is immune if: Service Provider does not have actual knowledge of infringement Service Provider does not have actual knowledge of infringement Is not aware of facts or circumstances from which infringing activity is apparent Is not aware of facts or circumstances from which infringing activity is apparent Upon receiving knowledge acts expeditiously to remove material Upon receiving knowledge acts expeditiously to remove material Does not receive direct financial benefit Does not receive direct financial benefit Designates and Agent for Notice Designates and Agent for Notice

When you are the publisher!!! THE CDA DOES NOT APPLY THE CDA DOES NOT APPLY Defamation Defamation Invasion of Privacy Invasion of Privacy Intrusion Intrusion THE MILLENNEUM COPYRIGHT ACT DOES NOT APPLY THE MILLENNEUM COPYRIGHT ACT DOES NOT APPLY Fair Use Fair Use