BitTorrent search engine isoHunt is the first foreign website to partner with New York Attorney General Cuomo in an effort to keep the Internet clean from child pornography. By using the Attorney General’s hash value database to filter its search results, isoHunt will prevent thousands of images from spreading on BitTorrent.
As many of you who read this blog know, we spend a lot of time thinking about — and sometimes debating – section 230 of the Communications Decency Act. We’ve often lamented, however, that there isn’t a good compilation of all of the 230 cases (Eric Goldman, the dean of the 230 bar, has covered most, if not all, of the cases, but you have to sift through his excellent blog to find them). Well, back in 2008, I set out to create just such a compilation and after months of wrangling with my editors, the empirical study that research spawned is finally out in the current edition of the Loyola of Los Angeles Law Review.
I won’t recount the entire article in this post (it’s available as a PDF on SSRN), but I will highlight a few of the more interesting findings. First, here is the abstract:
In the thirteen years since its enactment, section 230 of the Communications Decency Act has become one of the most important statutes impacting online speech, as well as one of the most intensely criticized. In deceptively simple language, its provisions sweep away the common law’s distinction between publisher and distributor liability, granting operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties. Section 230 is of critical importance because virtually all speech that occurs on the Internet is facilitated by private intermediaries that have a fragile commitment to the speech they facilitate.
This Article presents the first empirical study of the section 230 case law. It begins by providing a doctrinal overview of common law liability for intermediaries, both online and offline, and describes how section 230 modifies these doctrinal approaches. It then systematically analyzes the 184 decisions courts have issued since the statute’s enactment. The Article also examines how courts have applied section 230, finding that judges have been haphazard in their approach to its application.
The Article closes by discussing the study’s findings and by offering some insights into how plaintiffs and defendants have fared under section 230. While section 230 has largely protected intermediaries from liability for third-party speech, it has not been the free pass many of its proponents claim and its critics lament. More than a third of the claims at issue in the cases survived a section 230 defense. Even in cases where the court dismissed the claims, intermediaries bore liability in the form of litigation costs, and it took courts, on average, nearly a year to issue decisions addressing an intermediary’s defense under section 230.
From February 8, 1996 (the effective date of section 230) through the conclusion of my study on September 30, 2009, state and federal courts produced a total of 184 decisions from 140 cases in which a party or the court interposed section 230 as a defense to liability for online content or acts. This is an average of 13.5 decisions per year during the thirteen-year period, with an average of 8.1 decisions each year (59.8%) holding that section 230 preempted at least one claim in the cases studied.
When I say that in 59.8% of the decisions a court dismissed at least one of the claims pursuant to section 230, this does not mean that in 40.2% of the decisions the court found for the plaintiff. The 59.8% figure only reflects decisions where the court dismissed a claim on the basis of section 230. If the court dismissed a claim on statute of limitations grounds or on the merits, I didn’t count it as a section 230 win (I explain this approach in some detail in sections III and IV of the paper). When dismissals on grounds other than section 230 are included in the calculations, the results for defendants improve substantially, with defendants winning dismissal in 76% of the cases studied.
One of the best ways to assess a statute’s impact on an area of law is to systematically compare the case law pre- and post-enactment. Unfortunately, this approach will not work for section 230, as courts issued only two reported decisions addressing an Internet intermediary’s liability for speech-based harms prior to section 230′s enactment. As a rough proxy, however, I sought to identify factors in the decisions that were germane to the question of liability under the common law, and then applied those factors in a "what if section 230 did not exist" thought experiment in order to gain insight into how section 230 has changed the liability landscape for intermediaries.
What I found was surprising. Many of the intermediaries that invoked section 230 likely would not have faced liability under the common law because they lacked knowledge of and editorial control over the third-party content at issuein the cases. Granted, I am undoubtedly overstating this because judges in the cases I analyzed did not focus on the two key determinates of liability under the common law — knowledge and editorial control — when addressing the application of section 230. Application of section 230 does not typically turn on those factors, so the calculations likely underreport the true number of defendants that would face liability under the common law. Nevertheless, my point in mentioning this is to note that many of the intermediaries who interposed section 230 as a defense did nothing more than provide an open platform for others to engage in speech.
Given this prediction, I note in the article that one might question whether section 230 is necessary. But this highlights one of section 230′s most important functions for intermediaries: it seeks to give them the legal certainty, or in First Amendment terms, "breathing space," to facilitate the distribution of third-party speech that may contain injurious or illegal content. Without this increased certainty, risk-averse intermediaries would be less willing to facilitate the speech of others and the public would be burdened by their censorship.
Yet the data show that plaintiffs continue to file claims against defendants who are clearly protected by section 230 and who likely would not face liability under standard tort theories. Currently, there is no mechanism in the statute to deter these filings nor is there a fee-shifting provision (unlike, say, anti-SLAPP statutes). Accordingly, even intermediaries who succeeded in getting a claim dismissed under section 230 still bore liability in the form of litigation costs that they were unable to recoup from plaintiffs. This latter point is particularly concerning because the research showed that it took courts nearly a year, on average, to issue a decision addressing an intermediary’s defense under section 230.
Now that I’ve whetted your interest in the article, go read the whole thing here. Over the next few weeks I’ll be posting some of the figures and tables on CMLP’s Section 230 Empirical Study Page, as well as the coding form and some of data. I plan to make the entire data set publicly available, searchable, and updatable at the 15 year retrospective/anniversary party for section 230 on March 4, 2011 at Santa Clara University that Eric Goldman is organizing. More on that later….
Update: Eric Goldman put up a blog post about the article and mentioned two statistics that puzzled him. I’ll try and address his questions here.
* The study found that 41.2% of the decisions "involved anonymous content." Eric is skeptical that this statistic implies that in more than 2/5 of the cases the primary tortfeasor could not be found. I think that skepticism is warranted.
What trips a lot of people up is that litigants and judges often conflate anonymity and pseudonymity. The use of identity abstractions, such as Social Security numbers and nicknames, is pervasive in society. These identifiers are typically referred to as pseudonyms. Simply because someone uses a pseudonym does not mean they are anonymous. Traceable details always exist; it is just a matter of how hard one looks. This is especially true on the Internet, where every computer that connects to the network must have a unique IP address and where servers and routers within the network routinely log communications.
Because the degree of anonymity a user can maintain varies depending on the nature of the communication, the systems used, and other circumstances, I chose an objective measure (objective from the researcher’s perspective) for this calculation. For purposes of this study, I tagged a decision as involving anonymous speech if the court stated that the speech was anonymous (courts are, unfortunately, very sloppy in using this term) or the parties asserted that the source was unknown. What I probably should have written was that "41.2% of the decisions involved an assertion that the content’s source was anonymous."
As Eric correctly notes, "successful anonymity is really hard." In fact, I’d say that true anonymity is exceedingly rare in the online context and that very few of the decisions in the study involved truly anonymous speech. Because of time and resource constraints, my study didn’t look below the surface of that figure. That would be a great topic for someone else to take up.
* The study also reports that "in more than half of the cases (55%), the content plaintiffs sued over was no longer available as of mid-2009." Eric notes that this suggests that "plaintiffs can get content takedowns despite 230 because the service provider voluntarily helps or the author takes the content down him/herself (or, in some cases, the court ordered the takedown)." Again, Eric is right about this.
In my view, this is another data point that shows that even those intermediaries who are protected by section 230 still face pressure — primarily litigation cost pressure — to remove content. When we looked at the availability of the content at issue in the cases, we found that when content was no longer available this was attributable to the defendant’s voluntary removal in more than a quarter (27%) of the cases. In another 18.3% of the cases, the defendant’s website was defunct. In a small number of cases (4.9%), all or some of the material was no longer available because of a court order.
That’s the title of my Slaw post for today. It reads as follows: We constantly see commentary on frivolous lawsuits, and cases that poke holes in limitation clauses in contracts of various types. Perhaps everyone should have some sort of basic understanding of who is responsible for what. So I propose (in jest of course) that [...]
Yesterday the Information Commissioner’s Office released a (rather short) statement in reply to the European Commission’s finding last week that the ICO’s powers were too weak to be compatible with the Data Protection Directive 1995. The Commission requested that these…
Google’s legal fortunes may be turning round after another favourable judgement, this time from the American courts as a summary judgement was granted against Viacom’s claims of copyright infringement against its video sharing website YouTube. Everyone is well aware that…
There is outrage amongst sections of the online community as it is revealed that at the behest of copyright holders, a free online library has been raided by police. Chitanka carried user translated and submitted books, poems and other literature and as an “altruistic library” was thought to be legal under current legislation. Instead the site was raided and subjected to criminal procedures.
Join the Electronic Frontier Foundation and the Cartoon Art Museum for a special evening with Nina Paley as we screen her award-winning animated feature film “Sita Sings the Blues,” described by the creator as “the greatest breakup story ever told.” Paley animated and produced the film single-handedly over the course of five years on a home computer, and will be on hand to take filmgoers behind the scenes.
The benefit screening will take place at the Delancey Street Foundation Screening Room at 600 The Embarcadero, San Francisco, CA 94107 on Tuesday, July 20, 2010. Doors open at 6:30 PM. Film begins at 7 PM. Advance tickets may be purchased online for $25 at http://action.eff.org/ninapaley, or for $30 at the door the night of the screening. No food or drink is permitted in the screening room.
A 2006 Guggenheim Fellow, Nina will also screen three of her Minute Memes, a series of animated shorts about intellectual freedom, including the premiere of a new cartoon created by Nina especially for the Electronic Frontier Foundation.
Nina Paley is a longtime veteran of syndicated comic strips, creating Fluff (Universal Press Syndicate), The Hots (King Features), and her own alternative weekly “Nina’s Adventures.” In 1998, she began making independent animated festival films, including the controversial yet popular environmental short, “The Stork.”
“Sita Sings the Blues” has screened in over 150 film festivals and won over 35 international awards including the Annecy Grand Crystal, The IFFLA Grand Jury Prize, and a Gotham Award. Nina’s adventures in our broken copyright system led her to copyLeft her film, and join QuestionCopyright.org as Artist-in-Residence. She is now re-releasing all her comics under a Creative Commons Share-Alike license.
Event admission is $25 in advance and $30 at the door.
Purchase your tickets today!
About the Cartoon Art Museum
Founded in 1984, the Cartoon Art Museum is the only museum in the western United States dedicated to cartoons and comics. The Museum was started by a group of cartoonists and collectors who wanted to share their appreciation of this unique art form with the rest of the world. The Museum is dedicated to the collection, preservation, study and exhibition of original cartoon art in all forms to benefit historians, cartoonists, journalists, artists, collectors and the general public.
The criminal proceedings against P2P index site ShareConnector is turning into an embarrassing fiasco for the Dutch Department of Justice. A court has decided to reopen the case and summons the public prosecutor as it doubts the legitimacy of the criminal prosecution and the fact that it acted on evidence brought in by local anti-piracy outfit BREIN.
Ending months of anticipation, yesterday the U.S. Supreme Court finally issued a ruling in Bilski v. Kappos, a business method patent case that, many hoped, would give the Court an opportunity to sharply limit these much maligned patents, or at least offer clear guidance on how business method patents are to be judged in the future. Unfortunately, the Court did neither one.
By way of background, Bernard Bilski and Rand Warsaw applied for a patent on methods for hedging risks for commodities trading. The Patent Office rejected their patent application as covering an abstract idea not eligible for patent protection, under § 101 of the Patent Act. Bilski appealed to the U.S. Court of Appeals for the Federal Circuit (CAFC). The CAFC affirmed the Patent Office’s rejection of the patent application. The CAFC adopted a “machine-or-transformation test” to judge patentability: a patent applicant “may show that a process claim satisfies § 101 either by showing that his claim is tied to a particular machine, or by showing that his claim transforms an article.”
Bilski then appealed to the Supreme Court. EFF joined an amicus brief arguing that patents should only be granted for technological processes. Such technological processes advance the development, understanding, or application of a machine, manufacture, or composition of matter.
The Supreme Court affirmed the CAFC’s rejection of Bilski’s patent application, but with different reasoning. The Court merely agreed that Bilski sought to patent an abstract idea, and held that such abstract ideas were unpatentable.
A majority opinion authored by Justice Kennedy agreed that the Federal Circuit’s “machine-or-transformation” test at least “is a useful and important clue, an investigative tool,” for patentability, but not the sole or exclusive test. The five-justice majority opinion also rejected a rule that all business methods are unpatentable. Four justices would have held that methods of doing business are unpatentable (Justices Stevens, Ginsburg, Breyer and Sotomayor).
By watering down the CAFC’s “machine-or-transformation” test, the Supreme Court regrettably failed to provide guidance in the future about business method patents. For example, suppose a patent claim is not clearly unpatentable as just an abstract idea, but it does fail the now-optional “machine-or-transformation” test. When will such a claim be patentable? The Court did not answer that question, or provide details about how to apply its “abstract idea” test.
In short, the ruling has done little to clean up the mess the CAFC helped created in 1998, when it decided State Street Bank & Trust Co. v. Signature Financial Group, and opened the doors to patents for novel methods of doing business. That ruling knocked patent law loose from its historical moorings and injected patents into business areas where they were neither needed nor wanted. The results had been nothing short of disastrous: a flood of patent applications for services like arbitration, tax-planning, legal counseling, charity fundraising, and even a “system for toilet reservations.” In its Bilski opinion, the CAFC tried to fix the problem by effectively overruling State Street. Yesterday’s ruling eroded the CAFC’s limits on process patents, and thus missed an opportunity to fix some of the problems with those patents.
Michael Barclay is an EFF Fellow.
The Dutch public broadcasting organization NPO has launched a trial project which will see it publish all recent video broadcasts via BitTorrent downloads and streams. With the trial NPO wants to gauge the demand for BitTorrent downloads, and whether P2P technology can cut down distribution costs significantly.