Cubby, Inc. v. CompuServe, Inc., Stratton Oakmont, Inc

However, no documentation or detailed explanation of such a change, and the dissemination of
news of such a change, has been submitted. In addition, PRODIGY argues that in terms of sheer
volume -- currently 60,000 messages a day are posted on PRODIGY bulletin boards -- manual
review of messages is not feasible. While PRODIGY admits that Board Leaders may remove
messages that violate its Guidelines, it claims in conclusory manner that Board Leaders do not
function as "editors". Furthermore, PRODIGY argues generally that this Court should not decide
issues that can directly impact this developing communications medium without the benefit of a
full record, although it fails to describe what further facts remain to be developed on this issue of
whether it is a publisher.
As for legal authority, PRODIGY relies on the Cubby case. There the Court found that
CompuServe's product was, "in essence, an electronic for-profit library" that carried a vast
number of publications, and that CompuServe had "little or no editorial control" over the
contents of those publications.
The key distinction between CompuServe and PRODIGY is two fold. First, PRODIGY held
itself out to the public and its members as controlling the content of its computer bulletin boards.
Second, PRODIGY implemented this control through its automatic software screening program,
and the Guidelines which Board Leaders are required to enforce. By actively utilizing
technology and manpower to delete notes from its computer bulletin boards on the basis of
offensiveness and "bad taste," for example, PRODIGY is clearly making decisions as to content,
and such decisions constitute editorial control. That such control is not complete and is enforced
both as early as the notes arrive and as late as a complaint is made, does not minimize or
eviscerate the simple fact that PRODIGY has uniquely arrogated to itself the role of determining
what is proper for its members to post and read on its bulletin boards. Based on the foregoing,
this Court is compelled to conclude that for the purposes of plaintiffs' claims in this action,
PRODIGY is a publisher rather than a distributor.
PRODIGY has virtually created an editorial staff of Board Leaders who have the ability to
continually monitor incoming transmissions and in fact do spend time censoring notes. Indeed, it
could be said that PRODIGY's current system of automatic scanning, Guidelines and Board
Leaders may have a chilling effect on freedom of communication in Cyberspace, and it appears
that this chilling effect is exactly what PRODIGY wants, but for the legal liability that attaches
to such censorship.
Let it be clear that this Court is in full agreement with Cubby. Computer bulletin boards
should generally be regarded in the same context as bookstores, libraries and network affiliates.
It is PRODIGY's own policies, technology and staffing decisions which have altered the scenario
and mandated the finding that it is a publisher.
PRODIGY's conscious choice, to gain the benefits of editorial control, has opened it up to a
greater liability than CompuServe and other computer networks that make no such choice. For
the record, the fear that this Court's finding of publisher status for PRODIGY will compel all
computer networks to abdicate control of their bulletin boards, incorrectly presumes that the
market will refuse to compensate for its increased control and the resulting increased exposure.
Presumably PRODIGY's decision to regulate the content of its bulletin boards was in part
influenced by its desire to attract a market it perceived to exist consisting of users seeking a
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