V. Beyond Copyright: Information Liability and the Communications Decency Act

Whereas the DMCA sets forth a complex schema of limited immunity for qualified Internet actors, the Communications Decency Act has been construed by the courts to provide blanket immunity for Internet actors, against liability for injuries caused by the dissemination of information generated by third-parties. Enacted in 1996, the CDA was originally passed to provide protection to Internet distributors of defamatory material (as distinguished from Internet publishers, i.e. the parties who actually generate Internet content).

Although the courts initially held that parties that merely distribute defamatory material on the Internet would only be held liable if they knew or should have known that the material was defamatory, one court held that where the distributor acted to edit or remove defamatory content, it would be held to the same strict liability standard as the generator/publisher of the material. See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) and cf. Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y. Sup. 1995). This led to the anomalous result that a distributor who merely passed defamatory content along the Internet would typically be immune from defamation liability, but a distributor who made some effort to police the content it distributed would render itself vulnerable to the same strict liability as the actual generator/publisher of the material.

In order to encourage self-regulation of Internet information dissemination conduct, the CDA 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." Consequently Internet information distributors, including those that monitor for defamatory or other objectionable content, are held only to the actual or constructive knowledge standard of liability. See e.g. Zeran v. America Online, 129 F. 3d 327 (4th Cir. 1997); Blumenthal v. Drudge, 992 F. Supp. 44, 51-52 (D.D.C. 1998) ("Congress has ... provid[ed] immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others. In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.")

Moreover, although the CDA expressly provides that its provisions have no effect on liability arising under the criminal, intellectual property, or Communications Privacy laws, or arising under any under state law that is consistent with the Act, the courts have construed the breadth of CDA immunity very broadly. For example in Doe v. America Online, Inc., 718 So. 2d 385 (Fla. Dist. Ct. 1998) plaintiff therein filed a negligence suit against AOL when her minor son was victimized by a sexual predator, who used the Internet to lure the boy into engaging in sexual acts, and then marketed photographs and videotapes of these activities through AOL chat rooms. Plaintiff alleged that but for AOL's negligence, these injuries would not have occurred. Nonetheless, the court granted AOL's motion to dismiss, on grounds that permitting recovery under state negligence law would be inconsistent with the CDA, in that it would effectively punish AOL for content it merely disseminated and had not generated, and thus, the CDA preempted state negligence law. See also Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (Cal. Ct. App. 1998) (dismissing suit against municipality and public library for various claims arising in connection with plaintiff's minor son's downloading of pornographic material through the library's computers; the court held that permitting plaintiff to hold the library responsible for her son's access to the material would be akin to holding the library responsible for Internet disseminated content which the library did not itself generate.) See generally Cara J. Ottenweller, Cyberbullying: The Interactive Playground Cries for a Clarification of the Communications Decency Act, 41 Val. U. L. Rev. 1285 (2007).

In Stoner v. eBay, Inc., 2000 Extra LEXIS 156 (Cal Super. Ct. Nov. 7, 2000) plaintiff brought suit against eBay in connection with the sale of bootlegged audio recordings, asserting a variety of claims, including unfair competition. Once again, however, the court held that the defendant was entitled to CDA immunity, given that it was not the "content provider" but merely the content distributor. Accord, Carafano v. Metrosplash.com, Inc., 339 F. 3d 1119 (9th Cir. 2003); cf Fair Housing Council of San Fernando Valley v. Roomate.com, LLC, No. 04-56916, D.C. No. CV-03-09386-PA 2007 (holding that categorization of answers to housing questionnaire constitutes partial generation of information by ISP, and thus not entitled to CDA immunity). Interestingly, had plaintiff based its claims on copyright infringement he might have prevailed (recall that the CDA has no affect on intellectual property liability) unless one of the DMCA safe harbor's insulated eBay's conduct.

Although the CDA provides broad immunity in connection with the dissemination of third-party generated information, it also imposes severe penalties in connection with the distribution of inappropriate material to minors. For example, pursuant to 47 U.S.C. 231, also referred to as the Child Online Protection Act, the knowing, commercial provision to minors of material harmful to minors is punishable by a $ 50,000 fine and up to six months in prison. Where such conduct is intention, the fine is $ 50,000 per day of the violation.

It must be noted that the "child protection" provisions of the CDA and related federal statutes intended to prevent the Internet dissemination of material harmful to minors have been repeatedly challenged as unconstitutional. See e.g. Reno v. ACLU, 521 U.S. 844 (1997) (holding 47 U.S.C. 223 of the CDA unconstitutional on First Amendment grounds); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (holding the Child Pornography Prevention Act, 18 U.S.C. 2251 et. seq., which prohibited the transmission or possession of computer generated child pornography images, unconstitutional); Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) (enjoining enforcement of the successor provision to 47 U.S.C. 223, the Child Online Protection Act, 47 U.S.C. 231, on grounds that the statute is likely unconstitutional.) In response to these decisions, Congress has repeatedly revised the relevant statutes, only to begin anew the legal chase. See e.g. Ashcroft v. American Civil Liberties Union, 542 U.S. 656 supra; American Civil Liberties Union v. Gonzales, 478 F.Supp.2d 775 (E.D. Pa. 2007). Consequently the "liability thicket" in this area is particularly dense and uncertain.