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Internet Service Providers have no control over most of the content transmitted over their networks, and, therefore, also have limited liability for it. Two statutes largely determine the structure of these liability limitations. The first, Section 230 of the Communications Decency Act of 1996 (CDA) grants ISPs broad immunity from liability for defamation and other tort claims. The second, Title II of the Digital Millennium Copyright Act (DMCA), provides eligible ISPs with four safe harbors significantly limiting their liability for copyright infringement claims. Both statutes recognize ISPs’ limited ability to police what goes on in their own houses. The expansiveness of the Internet renders the task of monitoring the universe of materials that traverse ISPs’ networks impossible. Yet these two statutes address this constraint in different ways and legislative action ultimately may be required to ensure that content immunity provided under the CDA is kept in check. The CDA broadly immunizes ISPs from any claim, whether in law or in equity, for storing, transmitting or directing its visitors to content that is defamatory, whether or not they are aware of the content’s potentially injurious nature. The DMCA, however, does not provide such a broad shield with respect to copyright infringement. Instead, ISPs can limit their liability for claims arising from transmitting, storing, or directing users to infringing content, but only by taking certain affirmative steps, including removing the allegedly offending content upon notice. Section 230 of the CDA was enacted as a reaction to the decision of the New York state Supreme Court in Stratton Oakmont, Inc. v. Prodigy Servs. Co. In Stratton, the plaintiffs sued Prodigy, a then-popular ISP, for defamatory comments made by an unidentified party on one of Prodigy’s bulletin boards. The court held Prodigy strictly liable as a “publisher” of the offensive materials. Prodigy argued that it should not be considered a publisher but, instead, should be held to the knowledge standard imposed on “distributors.” Consequently, Prodigy argued, it should not be held liable since it had no knowledge of the subject materials’ offending nature. The court rejected Prodigy’s argument, reasoning that its role was more akin to that of a publisher than a distributor because it had the capacity to monitor bulletin board messages and in many cases actively screened and edited those messages. In fact, Prodigy advertised its control of the content on its service. Contemporaneously with the determination of the Stratton case, Congress grew concerned about the pernicious spread of Internet pornography. The ISP community’s reaction to Stratton was exactly the opposite of what Congress wanted. Congress wanted ISPs to take the lead in curtailing pornography. The desire was for ISPs to act like Prodigy — to self-monitor their systems. As a result of the Stratton decision, however, ISPs abdicated their monitoring role, seeing content monitoring as begging for litigation. They felt there was no way they could screen thoroughly enough to catch offending material and feared they would be held strictly liable for every bit of offending content they failed to catch, even if they had no effective knowledge of the presence of such content on their systems. ISPs began to beg off, affirmatively disclaiming any attempt to filter the materials on their networks. In order to encourage ISPs to recommence blocking and screening content, Congress passed Section 230(c)(1) of the CDA, which states 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.” An “interactive computer service” is defined simply as a classic ISP that merely makes content created by others available to its users, as opposed to the creator of the content. — The cases that have construed this provision since its adoption have largely followed the interpretation of the 4th U.S. Circuit Court of Appeals. In Zeran v. America Online, Inc., 129 F.3d 327, 330 (1997) — the first case to emerge interpreting the CDA’s scope — the court found that Section 230 (c)(1) “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Even where ISPs had notice of the potentially offending nature of the content and did nothing in response, courts have (with an exception discussed below) not looked past this shield. Furthermore, courts have expanded the immunity beyond defamation claims to include, among others, tort claims (negligence) and claims brought under federal civil rights statutes. Courts have only held ISPs liable for content on their service where they had a sufficient role in its creation to be considered information content providers. This was the case, for example, in Carafano v. Metrosplash.com, Inc., 207 F.Supp.2d 1055 (C.D. Calif. 2002), where the defendant operator of a matchmaker Web site was held to be an information content provider, and thus not immune to claims relating to content on the site because it was largely comprised of users’ answers to questionnaires designed by the defendant. EXCLUDED FROM SCOPE Yet a few areas are specifically excluded from the scope of CDA immunity. The CDA provides that it shall not effect any law pertaining to intellectual property. As a result, ISPs cannot avail themselves of CDA immunity against infringement claims. While no statute has been enacted granting ISPs special protections against trademark infringement, the DMCA does provide considerable safe harbor to limit liability for copyright infringement, provided the ISP follows certain procedures. Like the CDA, the safe harbor provisions of the DMCA were enacted as a reaction to a high profile court decision. Unlike the CDA, however, Congress largely adopted many of the principles of that decision rather than overriding them. In Religious Technology Center v. Netcom On-Line Communications Services, Inc., 907 F.Supp. 1361 (N.D. Calif. 1995), the plaintiffs, an arm of the Church of Scientology, sued Netcom, an ISP, for copyright infringement arising out of postings on a bulletin board linked to the Internet by Netcom that copied portions of the books of Scientology founder L. Ron Hubbard. The bulletin board postings, which used illustrative excerpts from some of Hubbard’s books, were made by a former member who became an outspoken critic. Although the case was ultimately settled, the Religious Technology court determined (without concluding whether the materials were in fact infringing) that even though Netcom was not the creator of the postings, it could be liable for infringement if it had knowledge of the infringing materials and failed to take any action to curb access to them. The DMCA safe harbors do not affect the ultimate conclusion as to liability. Instead, if liability is found, they preclude monetary damages and significantly limit injunctive relief to specifically target removal or disabling access to the offending content. The safe harbors only apply to “service providers,” which is defined similarly to providers of an “interactive computer service” under the CDA. In order to qualify for these safe harbors, however, ISPs must (i) adopt, reasonably implement, and promulgate policies that provide for termination in “appropriate circumstances” of repeat infringers and (ii) accommodate and not interfere with technical methods adopted by copyright owners to identify or protect copyrighted works (such as watermarks). In addition, if ISPs store material for their users or direct users to material at other locations (as search engines do), and if they receive notification (which must comply with the statute) that any of the materials are infringing, they must take action to remove or block access to the materials in accordance with a complicated procedure outlined under the DMCA. Whether or not an ISP complies with these requirements is an issue of fact, not of law. In contrast to the CDA, ISPs bear a larger burden in order to avoid substantial content-related liability under the DMCA. The CDA analysis basically begins and ends with the determination of the nature of the entity. If the entity is a provider of an “interactive computer service,” it has immunity from liability, even if the injured party suffers continuing harm for failure or unwillingness to remove the materials. Under the DMCA, a “service provider” may still have considerable liability if it is held not to have taken the actions required under the statute. RECENT CASES A few cases have recently taken issue with the breadth of the CDA immunity. In Batzel v. Smith, 333 F.3d 1018 (2003), the 9th Circuit recognized that the immunity should not apply where the defendant had reason to know the content creator did not provide it for dissemination over the Internet. Most recently, the California Court of Appeals, in Barrett v. Rosenthal, 9 Cal. Rptr.3d 142 (2004), offered a detailed analysis declaring the Zeran court wrong. Refusing to follow Zeran, the Barrett court maintained Congress never intended to immunize persons or entities having knowledge of the subject materials’ offensiveness. In light of the developing debate in the courts, Congress may wish to re-examine the differing approaches of the CDA and the DMCA. It is difficult to see the advancement of a cogent policy behind this variation. Arguably, the advancement of free speech objectives merits higher consideration than upholding intellectual property rights, which may account for the more strident protection afforded by CDA immunity. However, courts have interpreted the CDA to apply beyond defamation claims. Does the government really have an interest in making federal civil rights claims more difficult? Probably not. The Zeran court addressed the issue of applying a notice exception to the CDA immunity, stating that removing immunity where notice was provided would have a chilling effect on free speech and impose impossible obligations on ISPs to evaluate the validity of each notice. Yet, in light of the increasing availability of legal copyrighted materials on the Internet (through a number of legal music services for example), it is difficult to argue that the notice provisions of the DMCA have negatively affected the growth of those offerings. Furthermore, it is hard to imagine that Congress now believes that a notice provision imposes an impossible burden on ISPs to evaluate each notice, since it has imposed this very burden on ISPs through the DMCA. The more recent immunity cases raise even more questions: What if the original speaker has removed the offensive materials from its computers? If the ISP continues to maintain those materials on its servers, should it still enjoy immunity? At some point, if an ISP continues to make offending materials available under the protection of the CDA, in the face of numerous objections by the offended party, can it be argued that it has taken on the role of the “speaker” of the content. CONCLUSION It remains to be seen if Barrett is the beginning of a trend away from the Zeran line of cases or simply anomalous. If Barrett is largely rejected in later decisions, and the broad immunity provided in the CDA continues to be upheld and expanded by the courts, Congress may wish to re-evaluate the statute, in light of its experience with the DMCA, and curtail some of these expansionist tendencies. Marc S. Reisler is a partner in the Corporate Department of Katten Muchin Zavis Rosenman (www.kmzr.com) in New York and a co-head of the department’s Media, Technology and Internet Practice Group. He is also a former in-house counsel for a major Internet provider service. Yuhua Liu, an associate at the firm, assisted in the preparation of this article. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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