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Many Web site operators want to control what users post on their sites not only to avoid liability, but also to maintain their sites’ reputations. To reduce their potential legal exposure and improve the reputation of their sites’ information effectively, Web site owners and operators should develop procedures for dealing with problems that may arise from the user-posted content on their Web sites. THE ISSUE Almost all consumer-based Web sites now provide Web site communities — useful and valuable forums that allow a Web site’s users to interact with one another by posting various kinds of content for others to review. This content can include commentary, discussion, news, copyrighted material and other intellectual property. Although there are at least two statutes that insulate Web site operators from liability for user-posted infringing material appearing on their sites, one of these statutes may expose Web site operators to liability for federal infringement actions, and the other requires Web site owners and operators to jump through lots of hoops to qualify for its protections. STATUTORY PROTECTIONS FOR WEB SITE OPERATORS The Communications Decency Act (CDA), 47 U.S.C. � 230, which Congress passed to promote the continued development of Internet services and to preserve the competitive market for such services, provides Web site owners the broadest immunities from liability for material posted in their Web sites’ communities by third parties. Section 230(c)(1) of the CDA states that “[n]o 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.” The CDA defines “interactive computer service” 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.” 47 U.S.C. � 230(f)(2). The act defines an “information content provider” as “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.” 47 U.S.C. � 230(f)(3). Any person accessing the Internet and placing content online, such as on a “bulletin board,” is considered an “information content provider.” Many believe that, by using the phrase “publisher” or “speaker,” the CDA is limited to providing a safe harbor for defamation claims only. This is not the case. Under the CDA, an interactive computer service is immune from any state law cause of action that would hold computer service providers liable for information created, composed or placed on their sites by third parties. 47 U.S.C. � 230(e)(3) (“[n]o causes of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”). See Ben Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980, 984-986 (10th Cir. 2000) (affirming grant of summary judgment on state law claims on basis of CDA immunity); Zeran v. America Online Inc., 129 F.3d 327, 335 (4th Cir. 1997) (affirming trial court’s grant of judgment on the pleadings to America Online based on CDA immunity); Doe v. America Online Inc., 718 So. 2d 385, 389 (Fla. 1998) (holding that the plaintiff’s Florida statutory and common law causes of action are barred by the CDA). However, although CDA immunity has been held to apply to any state law cause of action, the applicability of the CDA to federal causes of action remains an open issue. The Digital Millennium Copyright Act (DMCA) also provides limitations on liability relating to material online. 17 U.S.C. � 512. The owners and operators of Web sites that provide communities typically rely on � 512(c) of the DCMA. If they fulfill this subsection’s requirements, service providers can extricate themselves from liability for infringing material residing on their systems or networks at users’ direction. To qualify under � 512(c), service providers must, among other things, agree to take down or block access to infringing material upon receipt of notification that it exists. A Web site also must register, with the U.S. Copyright Office, an agent for the receipt of notifications from rights owners regarding possible infringements on the site. In addition, the DMCA contains “counter-notification” provisions and requires Web sites to enforce policies against repeat offenders. If a company does not meet � 512(c)’s requirements, the traditional laws concerning contributory and vicarious infringement apply. MAINTAINING INTEGRITY OF SITE CONTENT Not all Web sites with communities take advantage of the above-described provisions. Understandably, some Web site operators have found the DMCA’s structure confusing and difficult to apply. In addition, many Web site communities want to be responsive to user complaints and complaints from rights owners even though they have no legal obligation to do so. For these reasons, many Web sites have developed ways of monitoring the content posted by users. One way to do this is by providing forms on which users or rights owners can report the existence of infringing material on the site. These forms make the Web site operator aware of potentially infringing material so the Web site operator can take appropriate action. They also ensure that the reporting party complies with the appropriate statutory formalities. Many Web sites make the information reported on the forms available to all users in an effort to facilitate community standards of appropriate conduct. Web site owners also can deal with rights-owners’ concerns by developing special programs with particular rights owners. A site can designate a contact person to whom rights owners can complain about allegedly infringing material or create an application programming interface. Of course, once they develop a reporting infrastructure, Web site operators must decide what to do about the allegedly infringing material. Rather than deal with the statutory requirements that must be fulfilled to avoid liability for such material, many Web sites, in their “terms of use” agreements, expressly reserve the right to take down or block access to material posted by users. This notifies users that Web site may take action to block the material they post. The rules governing content and access to content on the Internet are changing rapidly. Web sites can protect themselves by implementing policies and procedures that will help them to be aware of potentially infringing material and responsive to rights owners’ complaints. I. Neel Chatterjee is an associate at Orrick, Herrington & Sutcliffe in Menlo Park, Calif.

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