February 26th, 2007
Courts continue to immunize community sites under CDA Section 230, but what about the Live Web?
Hard on the heels of a Texas district court's recent decision to dismiss claims against MySpace, Howard Bashman spotted a recent Section 230 decision out of the First Circuit that continues in this vein, and emphasizes the clear judicial trend of applying Section 230's protections to Web sites acting as neutral hosts of a third party's wrongful acts (excluding infringement, which is the province of a specific provision of the DMCA). Courts seem to have little trouble reaching this conclusion when dealing with text based communications, but I'm curious to see what will happen when a case involving a podcast or videocast commenter comes up. Per its language, Section 230 immunizes providers and users of "interactive computer services," defined as:
any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
The provision most of these cases turn on provides that:
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.
(Emphasis added.) An "information content provider" is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." I emphasized "provided by" in the language above because if a site exercises a sufficient amount of editorial control over the third party material, this can lead a court to conclude it is no longer wholly a third party contribution and render Section 230 inapplicable.
My take is that all manner of Live Web phenomena should constitute "interactive computer services" for purposes of this statute, but I wonder what wrinkles will flow from things like:
- site and/or user direction of what submissions get priority display or distribution (e.g., digg; current.tv),
- defendants that otherwise would not be eligible for Section 230's protections (e.g., radio stations) but trigger the statute's application by adding (almost as an afterthought) a Web-based component to their otherwise non-Web dependent offerings, and
- mashups that build on user submissions.
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Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
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| 02/28/07
