Vol 7 No 1 - Roger Williams University School of Law

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Cubby, the court in Stratton Oakmont held that Prodigy could beheld liable for libel as if it were a newspaper or broadcasterbecause it reserved the right to exercise editorial control over itselectronic bulletin boards.41 The court reasoned that Prodigy helditself out to the public as an ISP exercising editorial control overits bulletin board postings.42 Prodigy employed both an automaticscreening software program and volunteer bulletin board leadersto supervise the content of board submissions.43 The StrattonOakmont court likened these features to the editorial controlexercised by a newspaper, and held that Prodigy was a publisherof the defamatory statements at issue, even though the ISP had noknowledge of these statements.44The court in Stratton Oakmont distinguished the Cubbydecision by describing the different roles performed byCompuServe and Prodigy, the two ISPs and bulletin boardoperators in question. The court acknowledged that a meredistributor, such as a bookstore or library, may be liable for adefamatory statement made by a third party only if it knew or hadreason to know of the defamatory statement at issue.45 Adistributor, such as CompuServe in Cubby, acts as a passiveconduit and will not be found liable for libel in absence of fault. 46The court reasoned that Prodigy was not such a passive conduitbecause it exercised editorial control over its bulletin boardpostings equivalent to that of a newspaper editor.47 By exercisingthis editorial control, the court found that Prodigy exposed itself togreater liability than other computer networks choosing not tomonitor the content of their system.48B. Congressional Reaction to Stratton Oakmont v. ProdigyServices Co.: The CDAIn response to the decision in Stratton Oakmont, Congresspassed Section 230 of the Consumer Decency Act of 1996.49 In41. See id. at *5.42. See id. at *2.43. See id. at *4.44. See Stratton Oakmont, 1995 WL 323710 at *3.45. See id. at *3.46. See id.47. See id.48. See id. at *5.49. 47 U.S.C. § 230 (1996).
this section, Congress provided that online service providers andweb site owners be regarded as distributors rather thanpublishers of third-party content posted on their systems.50Congress adopted this section with the intention of removing theheightened liability Stratton Oakmont placed on ISPs who chooseto monitor the content posted on their systems that was generatedby other, third-party providers.51 Section 230 also limits theliability of an online provider for any action taken voluntarily bythe ISP in “good faith” to restrict access to material “that theprovider or user considers to be obscene, lewd, lascivious, filthy,excessively violent, harassing, or otherwise objectionable, whetheror not such material is constitutionally protected.”52 Theseprovisions were enacted to facilitate Congress’ larger goal of“removing disincentives for the development and utilization ofblocking and filtering technologies” which allow parents to“restrict their children’s access to objectionable or inappropriateonline material.”53Although portions of the CDA prohibiting the transmission of“obscene or indecent” communications were held unconstitutionalby the Supreme Court in Reno v. American Civil LibertiesUnion,54 the provisions limiting ISP liability for third-partycontent remain viable.55 While the language of Section 230clearly limits the liability ISPs face as publishers of third-partycontent, it does not directly address the remaining liability thatISPs could potentially incur as distributors of third-partydefamation when the required knowledge standard is proven incourt.56 However, in applying the CDA to online defamationcases, the courts have declined to draw a distinction betweendistributors and publishers in a way that would give rise to ISP50. 47 U.S.C § 230(c)(1) provides: “No provider or user of an interactive computerservice shall be treated as the publisher or speaker of any information provided byanother information content provider.”51. See Joint Explanatory Statement of the Congressional Conference Committee,H.R. Conf. Rep. No. 104-458 (1996), reprinted in 1996 U.S.C.C.A.N. 124.52. 47 U.S.C. § 230(c)(2)(A) (1996).53. 47 U.S.C. § 230(b)(4) (1996).54. 521 U.S. 844 (1997).55. See id; see also Goldstein, supra note 3, 617-21 (discussing the limitations ofthe Reno case on the CDA and the continuing viability of Section 230 as it limits thecontent liability of ISPs).56. See Joseph P. Zammit & Felicia Gross, Web Site Liability: Risks and Costs ofCompliance, 4 P.L.I. Ann. Internet L. Inst., Course Handbook Series, available at 611PLI/Pat 815, 895 (2000).
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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Page 184 and 185: It is against this background that
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Page 220 and 221: Other Substantive IssuesThere are,
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Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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provision,143 but judging from the
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