Saturday, February 14, 2009

Published By Cathy Kirkman of Wilson, Sonsini, Goodrich & Rosati

Published By Cathy Kirkman of Wilson, Sonsini, Goodrich & Rosati


Stanford E-Commerce Conference 6/13

Hope to see you at the E-Commerce Best Practices Conference at Stanford Law School on June 13.   I think it's consistently one of the best events around about online legal issues -- credit organizers Roland Vogl, Mark Lemley, and Ian Ballon, among others.  I'm moderating a panel -- the agenda's here.   It's really the audience that makes the event what it is-- always a great turn-out of the Valley legal crowd.

Questions & comments 0

Make Way for Duck Bites -- Roommates.com

Jumping in with a few thoughts on the 9th Circuit's Roommates.com decision, which came out last week -- some viewpoints include Eric Goldman, Michael Erdman, and Evan Brown.

Roommates was sued for violating the fair housing laws, and it unsuccessfully argued that as an interactive computer service it was immune from liability for the content posted by its users, under Section 230 of the Communications Decency Act.

Under the statute, the immunity does not apply if the service provider also participated as an "information content provider", by being "responsible, in whole or in part, for the creation or development of the offending content."

The opinion says it adopts a "common-sense interpretation" of what "developing" is, for the purpose of liability. It says that "[C]lose cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged – or at least tacitly assented to – the illegality of third parties."

Actually ducks are really nice animals (guess that's why we're talking 10,000 bites), so let's leave them out of this. Chickens of course have sharp beaks, and geese can be rather aggressive, but ducks are generally quite genial, with rounded bills and just some serrated edges-- so ducks may find the reference offensive and should reserve their rights and remedies.  Duck image (c) Tomo.yun, (www.yunphoto.net/en/).

The decision focuses on the term "development" in assessing the site's involvement in providing user drop-down menus for creating their housing profiles, and in providing search and email notifications relating to the user's stated housing preferences. The decision found the "additional comments" portion of the site to be covered by the immunity, because it was a neutral tool for users to post their comments.

"The decision interprets the term "development" as "referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. [emphasis added]" 

"In other words, a web site helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially it to the alleged illegality of the conduct [emphasis added]."

It thus associates the CDA immunity analysis with the legally complex notions of contributory liability (and inducement liability), which are areas of some uncertainty in the copyright arena. 

The opinion says there's more clarity now about the legal standard than there was before: "Our opinion extensively clarifies where that edge lies, and gives far more guidance than our previous cases".  it does take pains to elaborate on what it means by "development", in seeking to avoid a pedantic interpretation, and there's certainly a lot here to digest. 

Here's a word cloud summary of some of the opinion's lexicon.  These are snippets from the opinion, obviously taken out of context, but after the gestalt of the opinion.

"contributes materially to the alleged illegality of the conduct"

"encourage illegal content"

"designed to achieve illegal ends"

"design your website to require users to input illegal content"

"website directly participates in developing the alleged illegality"

"elicits the allegedly illegal content"

"makes aggressive use of it in conducting its business"

"directly related to the alleged illegality of the site"

"developing and enforcing a system that subjects subscribers to [illegal content]"

"inducing third parties to express illegal preferences"

"enhance, encourage, make easier" the posting of illegal content

"solicit" or "encourage" the harmful content"

"creating a website designed to solicit and enforce [illegal] preferences"

"direct encouragement to perform illegal searches or publish illegal content"

* * * * * * * *

"providing neutral tools"

"generic text"

"simple, generic prompt"

"weak encouragement"

 "development by inference"

"enhancement by implication"

"merely provide a framework"

 "generic search engines"

 "edits are unrelated to the illegality"

 "without prompting or help from the website operator"

"did nothing to encourage the posting of [illegal] content"

 "contrary to the website's express policies"

"mere classifying user characteristics"

nothing "induces anyone" to engage in illegal conduct

"chat rooms for general use"

"generic message board"

"does not provide any specific guidance"

does not "urge subscribers" to engage in illegal conduct

Rodrigo González Fernández
Diplomado en RSE de la ONU
oficina: Renato Sánchez 3586 of. 10
Teléfono: OF .02-  8854223- CEL: 76850061
e-mail: rogofe47@mi.cl
Santiago- Chile
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