Vol 7 No 1 - Roger Williams University School of Law

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liability for third-party content.57 In fact, as this paper will nowdiscuss, courts have interpreted the CDA as providing ISPs acomplete safe harbor from tort liability for third-party contentposted on their services, even when the provider does not employany of the self-monitoring activities Congress hoped to promote inenacting the CDA.58C. Applying the CDA: ISP Immunity from Liability for Third-Party ContentIn Zeran v. America Online, Inc.,59 an unidentified personposted a message on an America Online bulletin board advertisingt-shirts for sale glorifying the April 16, 1995 bombing of the AlfredP. Murrah Federal Building in Oklahoma City, and instructinginterested parties to call a person named “Ken” at Zeran’s homephone number.60 After receiving a high volume of calls, Zeraninformed America Online of the defamatory posting, and was toldthat the message would be removed.61 Zeran later sued AOL forunreasonable delay in removing the message, refusing to post aretraction, and failing to screen for similar postings following theincident.62 AOL successfully plead that it was immune fromliability under the CDA.63On appeal, the court construed Section 230 of the CDAbroadly, stating that “[b]y it’s plain language, Section 230 createsa federal immunity to any cause of action that would make serviceproviders liable for information originating with a third-party userof the service.”64 The court also noted that the CDA directlyprecluded an ISP such as America Online being liable as thepublisher of third-party content.65 The court regarded AOL’sactivities in maintaining the bulletin board not as the role of a57. See id; see also Douglas B. Luffman, Defamation Liability for Online Services:The Sky is Not Falling, 65 Geo. Wash. L. Rev. 1071, 1083-85 (1997); David R. Sheridan,Zeran v. AOL and the Effect of Section 230 of the Communications Decency Act UponLiability for Defamation on the Internet, 61 Alb. L. Rev. 147, 167-77 (1997).58. See e.g.,Blumenthal v. Drudge, 992 F. Supp. 44, 52 (D.D.C. 1998); Zeran v.Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997), cert. denied, 524 U.S. 937(1998).59. See Zeran, 129 F.3d at 327.60. See id. at 328.61. See id.62. See id.63. See id.64. Id. at 330.65. See Zeran, 129 F.3d at 330.
distributor, but rather as a participant in the publication of thirdparty content—an activity which is protected under Section 230.66The court even went so far as to hold that, upon notice of adefamatory posting, an ISP is “thrust into the role of a traditionalpublisher,” because the service provider must then determinewhether or not to publish, edit, or withdraw the posting.67 Thisrationale effectively prevents an ISP distributing third-partycontent from ever meeting the knowledge standard required forliability, because once knowledge is proven, the ISP would rise tothe federally protected realm of a publisher.68 In support of thisholding, the court argued that an interpretation of Section 230imposing liability on ISPs with knowledge of defamatory contentwould be contrary to Congress’ intent in passing the CDA, as itwould deter service providers from monitoring the content of theirsystems.69One year after Zeran, a similar decision was reached inBlumenthal v. Drudge70 regarding the CDA’s extreme limitationon the liability faced by an ISP for third-party content posted onits services. In Blumenthal, Sidney Blumenthal, an assistant toPresident Clinton, sued Matt Drudge, a gossip columnist, overcomments included in Drudge’s publication, “The Drudge Report,”suggesting that Blumenthal had a history of beating his wife.71Blumenthal also sued America Online, which had a contract withDrudge to make the Drudge Report available to all AOL membersfor the period of one year in exchange for a monthly royalty of$3,000.72 In the contract, America Online reserved the right toremove content from the Drudge Report that it reasonablydetermined violated AOL’s standard terms of provider service.73AOL had also vigorously promoted its distribution of the DrudgeReport, characterizing Matt Drudge as a “Runaway GossipSuccess.”74 After Drudge formally retracted his allegations aboutBlumenthal, America Online disabled access to the story on its66. See id. at 332.67. See id.68. See Goldstein, supra note 3.69. See Zeran, 129 F.3d at 333; see also Goldstein, supra note 3.70. 992 F. Supp. 44 (D.D.C. 1998).71. See id.72. See Blumenthal v. Drudge, 992 F. Supp. 44, 47 (D.D.C. 1998).73. See id.74. See id. at 51.
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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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the debate has centered on whether
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Page 212 and 213: worth a thousand words. Picture a d
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Page 220 and 221: Other Substantive IssuesThere are,
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Page 228 and 229: acts of copyright infringement.7 Un
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Page 262 and 263: II. CONSTITUTIONAL ANALYSISA. Const
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Page 278 and 279: EPCA Section 2518 provides that upo
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