Online service provider law
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Online service provider law is a summary and case law tracking page for laws, legal decisions and issues relating to online service providers, like the Wikipedia and internet service providers, from the viewpoint of an OSP considering its liability and customer service issues. See Cyber law for broader coverage of the law of cyberspace.
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1.1 Libel, defamation |
United States
The general liability risk within the US is low but it's necessary to review the laws and decisions of all other countries because the extra-territorial application of laws to content hosted in the US is a significant concern.
Libel, defamation
- 1991 Cubby v. CompuServe [1] (http://www.epic.org/free_speech/cubby_v_compuserve.html) held that CompuServe wasn't the publisher and granted summary judgment in its favor.
- May 1995 Stratton Oakmont, Inc. v. Prodigy Services Co. [2] (http://www.eff.org/Legal/Cases/Stratton_Oakmont_Porush_v_Prodigy/) decision which held that Prodigy was the publisher, because it could delete messages.
- 1996 Section 230 (http://www4.law.cornell.edu/uscode/47/230.html) of the Communications Decency Act (CDA), which states in part 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". Note that this portion of the CDA was not struck down and remains law.
- November 1997 Zeran v. AOL [3] (http://laws.lp.findlaw.com/4th/971523p.html) The CDA protects AOL even though it repeatedly ignored a defamation complaint.
- April 1998 Blumenthal v. AOL (part of the case against Drudge and AOL) held that the CDA protects AOL for Drudge's writing that Blumenthal, an assistant to the US President, had a spousal abuse background (retracted in two days) even though it paid Drudge US$3,000 a month for his columns, had editorial control and might well have been liable if it was not an online publication [4] (http://www.techlawjournal.com/courts/drudge/80423opin.htm).
- 2003 Carafano v. Metrosplash.com (the Star Trek actress case) [5] (http://caselaw.lp.findlaw.com/data2/circs/9th/0255658p.pdf). Providing multiple choice options in forms doesn't invalidate CDA immunity.
Immunity under Section 230 requires that: (1) the defendant is a provider or user of an interactive computer service; (2) the cause of action treat the defendant as a publisher or speaker of information; and (3) the information at issue be provided by another information content provider. Zeran, 129 F.3d at 330. Even completely ignoring a complaint has generally been found not to garner liability, so protection appears to be very comprehensive, though it still doesn't stop people from trying.
In 2002, the California Court of Appeal held that CDA Section 230 does not apply to distributor liability, meaning that a defendant who had notice of a defamatory statement must stop publishing it or face liability. Barrett v. Rosenthal, 114 Cal.App.4th 1379 (2002). This case is currently briefed for the California Supreme Court. See also Grace v. eBay, Inc., 2004 WL 1632047 (Cal. Ct. App. Jul. 22, 2004) (no immunity against liability for a distributor of information who knew or had reason to know that the information was defamatory). Both Grace and Barrett are depublished pending the California Supreme Court decision.
Patent, trademark, right of publicity, trade secret
The CDA does not "limit or expand any law pertaining to intellectual property" 47 U.S.C. Section 230(e)(2); see also Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001) (no immunity for contributory liability for trademark infringement); Perfect 10, Inc. v CCBill LLC (No. CV 02-7624 LGB) (C.D. Cal. June 22, 2004) (state right of publicity claim is not covered by Section 230); but see Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (dismissing, inter alia, right of publicity claim under Section 230 without discussion).
Courts have not yet addressed whether a state law trade secret claim is a "law pertaining to interllectual property."
Copyright
- Communications Decency Act
- Online Copyright Infringement Liability Limitation Act (part of the DMCA)
- List of leading legal cases in copyright law
The OCILLA can provide a safe harbor for OSPs who comply with its requirments. As noted above, CDA Section 230 does not provide protection against a copyright claim.
If the OSP does not fall under OCILLA's safe harbor, it still may be protected. In Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N. D. Cal. 1995), an internet services provider who merely transmitted material that infringed the plaintiff’s copyright was held not liable. See also CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir., 2004) [6] (http://www.eff.org/legal/ISP_liability/CoStar_v_Loopnet/20040621CoStarOpinion.pdf)
When responding to copyright complaints it's helpful to know more about US copyright law to assist in deciding which viewpoint to accept. These are some issues to consider when deciding whether something might infringe copyright.
Copyright law protects creativity
It doesn't matter how much hard work was involved in building a directory or photographing items unless there is some creativity involved. No creativity and there's no copyright protection at all. Accurate mechanical reproductions (scans; photographs of artifacts or paintings, simple conversions from one image or sound storage format to another) don't create a new copyright beyond that of what is being copied unless there was some creativity, perhaps in lighting. If the source is not copyrighted, the copy isn't either.
- Feist Publications v. Rural Telephone Service 111 S Ct 1282 (1991) [list of telephone numbers & addresses have no © (U.S.)]
- Bridgeman Art Library Ltd. v. Corel Corporation, 36 F. Supp. 2d 191, US SDNY (1999) photograph of public domain work is not original([7] (http://www.constitution.org/1ll/court/fed/bridgman.html))
Sometimes there are only a few ways to do something
The scenes a faire principle covers situations where there is limited scope for doing things in different ways, in much the same way that the merger doctrine covers cases where there's only one way to express something because the idea and expression are effectively the same thing. In these situations something can be almost identical and not be infringing. Web page layouts and designs are likely candidates.
- Ets-Hokin vs. Skyy Spirits, Inc., et. al [8] (http://www.ivanhoffman.com/scenes.html).
Also included here are cases where the scope for written creativity is small, like limited creative joining words in lists of facts, where the facts are the significant content and where granting copyright would unduly limit the ability of others to express the same facts.
Sometimes a use is so insignificant that it can't infringe
The de minimis principle applies to cases where the use of a work is insignificant. No fair use analysis required. A blurred poster image in the background of a movie was found to be de minimis and the case dismissed early in the proceeding. A 30 second, clearly visible, use of a poster was found not to be de minimis and to require further analysis. Minor creativity in text in a large amount of purely factual information may be found to be de minimis use.
Fair use isn't copyright infringement
If a use is fair use, the copyright holder was never granted any rights to control that particular use. The difficulty is in deciding what is fair use and what isn't.
- Campbell v. Acuff-Rose Music (1994) 510 U.S. 569 (commercial parody is fair use (USA))
- Suntrust v. Houghton Mifflin (2001) [parody is fair use (11th cir. US Court of Appeals)]
- Kelly v. Arriba Soft Corporation, (1999) U.S. App. LEXIS 1786 . Thumbnail images in a search engine are fair use. Inline linking still undecided.
Copyright is for a limited time
US works published before 1923 or before 1978 without a copyright notice are in the public domain. So are most US federal government works.
- when US works enter the public domain (http://www.unc.edu/~unclng/public-d.htm)
- Dastar Corp. v. Twentieth Century Fox Film Corp. (2002) attempt to use trademark to keep rights to a public domain work failed
Security
The Computer Fraud and Abuse Act is one US law covering this area.
Australia
Defamation
Gutnick v Dow Jones US publisher, liable in Austalia under the relatively new lex loci delicti rule (where the harm happens).
Copyright
- Duration of copyright in Australia (http://www.gu.edu.au/text/ins/copyright/content_duration.html)
United Kingdom
Copyright
According to section 1 of the Copyright, Designs and Patents Act 1988, a work is eligible for copyright protection if it is:
"1 Copyright and copyright works
(1) Copyright is a property right which subsists in accordance with this Part
in the following descriptions of work?
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films or broadcasts, and
(c) the typographical arrangement of published editions.
(2) In this Part "copyright work" means a work of any of those descriptions
in which copyright subsists.
(3) Copyright does not subsist in a work unless the requirements of this Part
with respect to qualification for copyright protection are met (see section 153
and the provisions referred to there)."
According to the UK Patent Office website, the definition of 'original' is the following:
"A work can only be original if it is the result of independent creative effort. It will not be original if it has been copied from something that already exists. If it is similar to something that already exists but there has been no copying from the existing work either directly or indirectly, then it may be original.
The term "original" also involves a test of substantiality - literary, dramatic, musical and artistic works will not be original if there has not been sufficient skill and labour expended in their creation. But, sometimes significant investment of resources without significant intellectual input can still count as sufficient skill and labour.
Ultimately, only the courts can decide whether something is original, but there is much case law indicating, for example, that names and titles do not have sufficient substantiality to be original and that, where an existing work is widely known, it will be difficult to convince a court that there has been no copying if your work is very similar or identical.
Sound recordings, films and published editions do not have to be original but they will not be new copyright works if they have been copied from existing sound recordings, films and published editions.
Broadcasts do not have to be original, but there will be no copyright, if, or to the extent that, they infringe copyright in another broadcast."
The other relevant portion of the Act in question is section 153:
"153 Qualification for copyright protection
(1) Copyright does not subsist in a work unless the qualification
requirements of this Chapter are satisfied as regards?
(a) the author (see section 154), or
(b) the country in which the work was first published (see section 155), or
(c) in the case of a broadcast, the country from which the broadcast
was made (see section 156).
(2) Subsection (1) does not apply in relation to Crown copyright or
Parliamentary copyright (see sections 163 to 166B) or to copyright subsisting
by virtue of section 168 (copyright of certain international organisations).
(3) If the qualification requirements of this Chapter, or section 163, 165 or
168, are once satisfied in respect of a work, copyright does not cease to
subsist by reason of any subsequent event."
This section controls the nationality and country of origin requirements for copyright. It is roughly comparable with US law, since both countries are signataries to the Berne Convention.
Crown copyright
Photographs created before 1 June 1957 have a 50 year copyright period, as do other works except engravings. Photographs published before August 1989 also have a 50 year copyright period.
- flowchart for determining Crown Copyright status of literary, dramatic and musical works (http://www.mda.org.uk/mcopyg/crown-l.pdf) (PDF)
- flowchart for determining Crown Copyright status of artistic works (http://www.mda.org.uk/mcopyg/crown-a.pdf) (PDF)
Japan
On May 27 of 2002, so-called Provider Liability Limitation Law (プロバイダ責任法 or プロバイダ責任制限法) was enacted. It is said that the major purpose of the law is to limit the liability of ISPs, administrators and system operators of bulletin boards, hosting services, and others. The law covers copyright violation, defamation, and obscenity among other things. Regarding those contents that have to be removed, the law holds that the service providers cannot be held liable unless 1) they have the technological means to remove the content and either 2-a) they have the knowledge of the illegal content or 2-b) they could reasonably have gotten to know it. It also specifies circumstances under which service providers may offer personal information of a user to another.
Major cases preceding the law include Niftyserve Case, in which a system operator/ moderator of an online forum was found to be liable for not removing a series of defamatory postings. The system operator was noy requested by the defamed participant to remove the content, but had the knowledge of the content. The court found it to be an important ground for the liability.
Elsewhere
Copyright
- copyright outside the UK (http://www.epuk.org/resources/abcd/copyrightoutside.html) has some guidance.
- Bromberg Sunstein guidance on international copyright (http://www.bromsun.com/practice/copyrights/copyright_durations.html)
External links
- EFF ISP Liability page (http://www.eff.org/legal/ISP_liability/), further information on ISP liability for third-party content/conduct
- AOL Legal (http://legal.web.aol.com/index.html), a useful law resource
- ISP Law (http://www.netlitigation.com/netlitigation/isp.htm), Netlitigation's overview and case law archive
- AOL Postmaster (http://postmaster.aol.com/index.html), description of AOL's email policies, of use for identifying some anti-spam techniques as normal.