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The Internet

Internet Service Providers Not Liable for Content 162

biodork writes " A bout of sanity in the courts. Prodigy is NOT responsible for defamatory material sent over its network. Further, they may not be responsible for the material posted in their bulletin boards." This case has been kicking around since 1994. Finally a real, clear-cut, precedent-setting decision.
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Internet Service Providers Not Liable for Content

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  • by Gurlia ( 110988 ) on Sunday December 05, 1999 @02:23PM (#1477749)

    It's all fine and dandy now that at least one court realizes that ISP's only act as carriers, and are not responsible for the content transmitted through them. Great, this is nice for us privacy freaks and all that.

    But still, from the other point of view, you still haven't really solved the problem. All this proves is that you can't make ISPs trace info so that you can track down abusers. But I'm just wondering, supposing privacy concerns become priority in the future -- meaning no one is legally allowed to monitor our Net activities, store personal info, and strong encryption becomes the norm. This is all great for privacy-aware users like us. But what about people who abuse it? Is there some way to both preserve our privacy, yet not make it impossible to track down abusers when it's necessary? Or will privacy necessarily entail the impossibility of tracking down Net criminals?

    Maybe some people think, forget about the abusers, as long as we have our privacy. But this is like saying, forget about robbers, let's just make sure the police have no rights to search our belongings and we'll be happy. Then how would you mete out justice to robbers? This doesn't solve the problem, it only (rather foolishly) ignores it. How about on the Net? Can privacy be preserved yet at the same time it's possible to do something about Net crime?

  • Shouldn't an ISP be liable to some extent for the newsgroups it carries? I mean have you ever looked at the names of some of these newsgroups. For example it is obvious what kind of content is in (or intended to be in) groups like alt.binaries.warez, or alt.binaries.pedophilia and the like.
    The ISP's have to ok the newsgroup so they obviously know by OKing a newgroup with the words pictures and pedophilia or binaries and warez that they will be carrying illegal content. Should they be held liable for such an outright disregard for human decency?

  • Maybe we should just allow anyone to run around under any pseudonym they chose, and allow them to take out several driver's licences, bank accounts, etc, in various names that couldn't be tracked back to them.

    Do you like spam and e-fraud?

    You aren't losing any privacy by ID-ing yourself to an ISP, really now. See my response to the next comment as well.
  • My wrong-doing. I see your point. I believe my other point is still valid though.
  • My next question is how this will affect companies being liable for employee e-mail and network traffic. In a sense, a corporation is acting as an ISP for their employees.

    in another sense, an internal mail system is not an ISP. Also check the following quotes from the story...

    But aside from resolving the dispute in this particular case, the Court articulated a cautious wait-and-see approach to what it clearly perceives as an evolving body of law. "Given the extraordinarily rapid growth of this technology and its developments, it is plainly unwise to lurch prematurely into emerging issues, given a record that does not at all lend itself to their determination," Judge Rosenblatt wrote for the Court.

    and

    Judge Rosenblatt expressed concern that going beyond the issues necessary to decide Lunney v. Prodigy would "entail something very much like drafting advisory opinions. Misdirected or misapplied, they can create the very kind of uncertainty, or confusion, that purposeful decisional law seeks to eliminate."

    It seems to me that the court is taking a very conservative (in legal terms) view; i.e. Don't make any new decisions, laws etc, until we have to.

  • To your first point - No. The person who uses the account does not, and should not, have to be the same one who registered it. Again, from personal experience, I registered - and pay for, an ISP account for my younger sister. She lives on the East coast, I on the West. I built her a PC, and shipped it to her, with her ISP account all set up. I agreed to pay for her account until she graduates High School. I find no basis for any complaint regarding this.

    The second point, about "One should at least have proof that the name isn't entirely false". Well, Mr. Iguana2000 (interesting name), I wonder how much you really are committed to your comments?!?

    The fact is, I can walk into a public forum, such as a park, and begin to communicate to everyone while stating my name is Ben Franklin. Does this mean I should be ID'd by everyone who walks by? Or perhaps by the Park operators? This position is ludicrous. An ISP account, or a Forum username is not the same as a drivers license or bank account.
  • IANAL, but this is the New York State Court of Appeals, not a federal court, which means that it's certainly not binding outside of New York, and prolly not binding on federal courts within New York.
    Beyond that, the article quotes Michael J. Silverberg, an attorney for Prodigy, as saying "The Court is saying, under New York law and without going to federal law and without having to determine the scope of the Communications Decency Act, that this kind of case doesn't stand up.". Since it doesn't interpret any law which is applicable outside of New York, it isn't even of much use to point to and say "This is how New York interprets this law.".
    It's a good decision, certainly, but I don't think that it's The Decision which grants ISPs Common Carrier status.
  • People always have the option of viewing ALL messages, so it's not really editing. It's just an option to select some messages that some other people happen to agree with.
  • Recently a Belgian judge ruled that the Belgian ISP Skynet had to remove web pages that contain links to MP3 sites (for which it was not yet determined whether they contained illegal material or not), as asked by the IFPI.

    The ISPA [www.ispa.be] (Internet Service Providers Association Belgium) regrets that, according to this ruling, Belgian ISPs are held responsible for the content of webpages of their customers. Unfortunately the article on the ISPA website is not available in English, only in Dutch [www.ispa.be] and French [www.ispa.be].

  • Umm, a Swiss bank account shouldn't be trackable back to you.

    Driver's licences are different. Cars kill. (Ok, not by themselves.) Just like guns. This is the reason why driver's licences (and gun licences) are needed.

    Moderate this down, for a change.
    --

  • Nope. Because /.'s moderation system requires the participation of the readers as well. You can choose not to filter, so the moderation is equivalent to a critic reviewing a movie, not a censor deleting parts of it.
  • Re: Your comments

    Censor : Function: transitive verb - to examine in order to suppress or delete anything considered objectionable. It can be (validly) argued that moderating a post down due to objectionable is supressing it. Just a thought.

    You bring up an interesting point regarding the strict definition of the meaning of the word Censor and what it means to be "suppressed or deleted".

    I believe that a very strong argument could be made for 'suppressed' information if the default setting on the 'Threshhold' was 0 or higher.

    However, I think making the deleted argument would be almost imposible.

    Either way, /. assumes no Editoral responsibility for content in the posts submited, and that was pivitol in this case.

  • Both ethically, and possibly pragmatically -- their case is less clear-cut when suing the ISP, so while the potential payoff was much greater, the chance of winning anything at all was somewhat less.

    It's still not zero, since it wasn't the Supreme Court...
  • But now that they have common carrier status, they risk losing it if they attempt to regulate what people do with their access.
  • What's the difference between a message board and web content? Both are under the direct control of the subscriber and there is no reason that someone could not change web content as often as they sent an email or posted to a message board. How does a large internet provider police this? It doesn't seem reasonable to make the ISP's/Hosting Services responsible, though I can see the argument for it. And if they are held accountable, wouldn't they have to adopt a very conservative policy. This would lead to censorship.
  • There are some major differences between the local bullitain boards, and e-mail or web sites that are purely transferred.
    If you read the stadard legal disclaimers on the ISP stuff, most bullitain boards claim ownership of anything posted on them.
    This may mean that the message is the ISP's legal responisibility, however, it would be nigh impossible to demonstarte intent.
    In California Law, auto accidents are considered the fault of the last person who could have avoided them. Similarly, by reserving the right to edit content, even if they do not, the ISP is creating a last failure point for witch it is in some sense liable. Since the ISP is easier to target than some vauge net entity on the other side, and because it is guaranteed to have deeper pockets, the ISP will be sued for it's part of the liabilty before the actual culprint.
    I don't necessarily agree with the line of reasoning, but it could certainly be sold to a jury, and probably to some friendly judges as well.
    I suppose a similar case could be made with a normal bulletain board, and some offensive note posted on it. In that case, noone sane would think twice about holding the owner of the board responsible, but I wouldn't doubt that an institution could be sued for content of one of its bulletain boards if it was deemed obscene.
    I suppose a good way to describe it is that if all communication were strongly encrypted, then the last point of mutability, i.e. the last place where the text was unencryped, and hence editable could be considered a liable point, however, if the info is ecrypted, then obviously the carrier cannot excercise editorial content, and hence cannot be found liable for a lack of it.
    Now, if you examine the case of the e-mail the message could have passed from transmitter to reciever without ever being unencryped, but at the bullitain board it must have been plain, in order to be freely distibuted.
  • Napster is designed for MP3 distribution. It's not their responsibility if the majority of the MP3s that get distributed are illegal.
  • Napster was designed to help transmit MP3s. An MP3 file in and of it's self is _not_ illegal. There are several examples of when they are perfectly legal. If the artist explicitly said the MP3s are free, then it's fine. If you have the CD yourself, then it's legal too.

    Napster is a way to share those legal files. How could they be doing something illegal? That's akin to saying that the file transfer feature of ICQ is illegal because people can transmit warez across it.

  • by the eric conspiracy ( 20178 ) on Sunday December 05, 1999 @02:36PM (#1477769)
    No, these two are not related at all. There is a long history of common carriers being immune to content liability. You cannot go after the telephone company because they accept a phone call to a bookie.

    Napster is a different beast altogether. They are benefitting directly by supporting a file format that is widely, perhaps even predominately used for the purpose of copyright infringement. Such a benefit could well be recoverable by the infringed. This is no different from cases in the past where the movie and music industry have sued manufacturers of tape recorders and gotten fees attached to the sale of blank tapes and recorders as a means of recovering their losses.

  • Why is this moderated down? It is on topic and funny.

    The AC above just illustrated a point: Slashdot is a common carrier and not liable for content carried.

    Now, moderate my post down.
    --

  • In fact, the Australian Supreme Court has cited U.S. Supreme Court rulings in a number of recent cases.

    Generally, only rulings of higher courts are directly binding on courts under their jurisdiction. But the rulings of any court in a jurisdiction that has inherited the common law of England is (more or less) part of the body of common law and can be cited as precedent for a ruling.

    In short, this case makes it easier to win similar cases anywhere in the U.K., Canada, Australia, the U.S. New Zealand, or any other common law jurisdiction; if it had ruled in the reverse, those cases would be harder to win.
  • Very good point. With true anonymous virtual networks like FreeNet being worked on now, tracing could become literally impossible even with a warrant. I suppose one possibility, if someone's being harassed, is to try and lure them into revealing themself - but that's not necessarily going to work.

    I don't know. It's a worrying question.

  • That would constitute fraud.

    But the fraud is done by the person doing the "impersonation", not the service provider (bank, whatever). For instance, NNTP is normally non-authenticated; the server will accept any content in the headers. Some are a bit more paranoid than others, and force trace headers like NNTP-Posting-Host, NNTP-Posting-Date and the like, but there is a limit to the information the server can pick up.

    If X.gc had been deployed, the issue would have been different, though... :-)

  • By the court's own arguments, they are wrong on one count: Prodigy's editorial policy removes them from comparisons to telephone providers. The phone company does not reserve the right to eavesdrop on my conversations unless they acquire a court order, so they naturally cannot be held liable for the content of my conversations. If Prodigy took a completely hands-off approach to the content they provide, I would agree that they are not liable for content.

    However, Prodigy can (at their sole discretion and without due process of law) monitor and remove any message flowing through their system. This puts them into the position of editor just like a newspaper. This gives them oversite regulation, and as such they should be liable for all content.

    Other Internet providers who truly act as merely an electronic conduit, and do not edit content, should not be held liable for anything flowing through that conduit, be it email or web page.
  • From the New York Law Journal Article:

    ALBANY - In its first major ruling on privacy and defamation in cyberspace, the Court of Appeals on Thursday held that an Internet Service Provider (ISP) is merely a conduit for information, as opposed to a publisher, and consequently is no more responsible than a telephone company for defamatory materials transmitted over its lines.

    Also:

    "We are unwilling to deny Prodigy the common-law qualified privilege accorded to telephone and telegraph companies," Judge Albert M. Rosenblatt

  • I don't think this will have much (if any) bearing on the case against Demon in the UK - afterall this is a US court case.

    I think it will have useful implications where board owners have a disclaimer which clearly states they can edit messages if they are informed of a problem but perform no other checking. IIRC part of the problem with the Demon case was them not removing the messages when somone complained about them. Please note I am not saying the messages in the Demon case were libelous or not, just that part of the problem revolved around lack of action on their part after being informed of the problem.

    Kithran
  • by Asmodean451 ( 71567 ) on Sunday December 05, 1999 @01:52PM (#1477779) Homepage
    This kind of ruling was something I was expecting for a while. There's been a large rash of blatant privacy violations that have been working their way up the courts. This precedent is a good stepping stone for other privacy violations that are on the ballot...
  • Methinks the plaintiff took the wrong approach. Suing the imposter for something like wire fraud would seemingly make more sense; or if Prodigy had failed to act by removing the accounts involved upon showing that t'was an imposter, for negligence.

    Unless the plaintiff, however, could claim that Prodigy could decide when the accounts were applied for that this was the intent... I would suppose that Prodigy requires addresses and credit card numbers, which should have permitted some cross-checking. At the very least, one person registering several accounts should set off flags, regardless of the contents of messages. When these names match a non-relation, this again should set off more flags, before a single message is posted. Perhaps negligence there...
  • Agreed, it's a very good thing, ISP's can't be responsible because one out of a hundred thousand customers is bad, it's not like there's any type of pre-screening process (boy I wish).

    But I would change that to "Now my customers can put up all that porn", since end users are still responsible. :)
  • Unlike the internet, though, newspapers have physical control and editing responsibility for what goes into newspapers /they/ print, distribute, and sell. In contrast, nobody owns or is responsible for internet content...it goes when and where it wants upon request. The service ISPs provide is accessibility, not content. It would be like the phone company being liable for conversations held on the phone.
  • by davidu ( 18 ) on Sunday December 05, 1999 @01:53PM (#1477783) Homepage Journal
    The courts just needed to think about it. This was, however, the obvious answer. ISP are just the carriers.

    This is how I look at it:
    Saying they are responsible is like saying that Ma Bell is responsible for some flame on my answering machine. Um, NO!


    -Davidu
  • So would AT&T, MCI or Ma Bell be liable for someone placing a phone call and impersonating someoone else? Same Thing.
  • How is this a privacy issue? This was regarding liability for defamation of character.
  • "Given the extraordinarily rapid growth of this technology and its developments, it is plainly unwise to lurch prematurely into emerging issues, given a record that does not at all lend itself to their determination," Judge Rosenblatt wrote for the Court.

    Doesn't this make it seem silly to have so many legislators trying to make laws in these areas, when the judges don't even haved a context to stand on? CDA? Millenium Digital Copyright? etc.

    The Court held that Prodigy's power to exert editorial control does not alter its passive posture or render it a "publisher" of electronic bulletin board messages.

    Yay! Now you can outright delete the shitty posts from the total assholes who insist on posting goddam fucking bullshit cusswords, without being held liable by the bloodsucking law-banging lawyers because you didn't delete that one special post that pushed a suicidal grandma over the edge.

    Nice to see a ruling like this, gives me hope for some sane IP/copyright laws in the next century.
  • I wonder how this would apply to Slashdot? In Slashdot all of the messages are moderated. So is Slashdot more then just a conduit of information just like a telephone company is? Or are we doing more? While there is no real censorship, messages are never removed, by moderating a message down to -1 it is often not seen by the vast majority of slashdotters. Is this enough to make slashdot a publisher of information?

    What about the articals posted on the main page? They are checked before they get posted. Does that mean that Slashdot could be liable?

  • Slashdot doesn't moderate, people who are viewing the content moderate.

    You bring up an interesting point about liability for moderators. I wonder if it will become necisary to make moderators aware of the fact that *they* could be accused of censoring/obstructing/supressing information when they use the moderation tool?

    Is the party that provides the tool (/.) liable or is the user of that tool liable? (there's a parelell to the gun issue here, but that would be pulling this debate offtopic...blah blah blah moderation doesn't kill comments, people kill comments..blah blah blah)

    (I can see it now... 50k of text in an 8 point font with an I AGREE button down at the bottom just to moderate 5 articles)

  • Please see: http://slashdot.org/com ments.pl?sid=99/12/05/1252255&cid=11 [slashdot.org]

    What's even more interesting is, can MODERATORS be held liable for taking "Editoral responsibility". ?

  • Slashdot moderating is done by the readers, not the site owners. The moderation just conveys other readers views.
  • Just because something is offensive should it be bands? Kid porn should be banned becuase is hurts people. ISPs can't keep track of everything that is on thier systems. Some could have a newsgoup called alt.flowers but is could still have porn warze or what ever they want in it. For the sake of Freedom it's a good thing ISP aren't punished for not censoring thier users speech.
  • I understand that MP3s are not intrinsically illegal, but I would venture to say that 90% or more of MP3s are illegally obtained. The people behind Napster most probably know this. That was my argument. BTW, all my friends (but *cough* not me) use the file transfer feature of ICQ to transmit warez as well as MP3s.


    i dont display scores, and my threshhold is -1. post accordingly.
  • No, and they never will. The feds dont care because they cant tax it. The real impact will come from the postal services new effort to portray snail mail as the only "real" secure way to communicate. They love all the ECHELON noise.
  • If they do that, it puts them in position of being responsible, I think. See, if they say "Well, we don't carry alt.binaries.pedophilia, 'cause it obviously has child porn", then I think it makes them responsible for stuff that DOES get through. There have been some legal precedents for this. So the ISP industry as a whole has decided they don't really do this (although some do).
  • It looks as though this case could be used in an argument against UNISYS's idea of "contributory infringement" of their LZW-compression patent.

    UNISYS wants to hold web-site operators responsible for GIFs that appear on their site (search for "LZW" to see previous discussions here, or visit www.burnallgifs.org [burnallgifs.org]).

    This case might apply when the only GIFs on a site are those that are passed through by an ad broker, leaving the ad broker and not the site operator responsible for paying the GIF tax, which is the way I think it ought to be.
  • The real reason the internet is looked upon differently from telcos is that now any Joe/Jane Prole can put his/her opinion up for the world to see... try doing that with a voice call :-)
  • Now, it's clear that identity theft and abuse should not be allowed. Clearly Prodigy acted accordingly when it found out about the problem, and this is the procedure that should prevail.

    If we wanted to prevent the possibility to use a fake identity to happen, the measures needed would be quite farreaching. I don't claim to be an expert, but it seems that the only way to accomplish this would be to mandate everyone about sign in to the message boards, use some secure digital signature. This signature naturally would have to be recognised by some gov't organisation to make sure that the signature would correspond to an actual identity.

    That, if anything, is a threat to our privacy, since if a government organ has 100% sure information about your identity, it could trace your tracks around the Net.

    This case would not necesserily be that dramatic in "democracies" where free speech and freedom of opinion are quite guarded. However, this kind of system would be a god-send to any gov't that would for example guard its national security with jelousness. Previous /. articles about Australia and Britain surely don't give too much hope???

    So, if this kind of regime would be implemented, the Right for Identity would have its meaning reversed to the Curse of Identity.
  • Umm yes alt.flowers could have kid porn, but it could also have umm, lets see... flowers. What other content could alt.pictures.erotica.pre-teen.hardcore have? I can't believe you are using free speech to defend kid porn. kid porn isn't speech. see speech involves saying something, not showing illegal pictures.

  • Agreed, and this is point may have unexpected ramifications. No-one
    can be held accountable for a plain newsgroup, but what about
    moderated groups? If an offensive email slips through onto a
    moderated group, are the moderators held responsible because they have
    editorial powers over that group? What about those moderated mailing
    lists that have `spam pages' that show all the posts rejected by
    moderators: an editorial process, albeit a negative one, is
    responsible for creating those pages...
  • *clap* *clap*
    It seems that finally a Judge believes in Personal Responsibility.

    If *YOU* don't like a site or find something offensive, then sue the human who MADE the post/site. If you can't get modivated enough to sue, then stop whining.

  • [applause] well said.
    This case is all about people willing to stand up for there actions and facing the other person face to face.

    Not to confront that person, but to have a dialog about *there* personal responsibility.

  • Regardless of what sick and perverted view you might take on the matter the content is ILLEGAL and the ISP's have a general idea what the content is when the support the newsgroup. And what is this 'sharing information' crap, if I give your kid some heroin all I am doing is sharing chemicals, or if I steal your car all I am doing is "sharing" it with you.
    Sharing information like anything else can be harmful, imagine if I gave secret US military info to the chinese government, would that not be wrong, I mean after all I am only sharing information, who cares if the chinese are going to use it to destroy the US? I was just sharing info right?
    As far as Warez goes you are just transferring bits but you are transferring copyrighted bits, which has never been legal, and rightfully so, if someone creates something then they have the right to say what is done with it.
    And kid porn, you don't think looking at that is harmful, I tell you what why don't we see what would happen to your opinion if your daughter or sister or whatever gets raped by some dirty old man that likes "'dem yung tings he seen online"
  • by DanMcS ( 68838 ) on Sunday December 05, 1999 @03:21PM (#1477814)
    ...Describing e-mail as "the day's evolutionary hybrid of traditional telephone line communications and regular postal service mail,"
    Yeah, ok, it's an Appeals court, a state one. But apparently, in New York, the court is prepared to view email as similar enough to postal mail to get some of the same legal protections. Tampering with postal mail goes into federal jurisdiction, and carries some fines, maybe jailtime. Are they prepared to give those protections to email as well? Privacy may have just received a small boost.
  • When you --the reader-- create an account at /. you are given an option to be a moderator. This makes it possible for a reader, moderator, and poster to be the same individual. Moderators are volunteers (aka. the public), NOT EMPLOYEES OF SLASHDOT.

    Bearing this in mind, your "expert legal opinion" give me the creeps (and is grieviously flawed). Good thing it was free. I would hate to have paid money for it.

    As far as your anonynimity is concerned, I could care less. In this particular case it costs you a great deal of credibility.

    Sorry, but that is how I feel.
  • This is important because cases like this are generally decided by state law, not federal law. This case, for instance, was decided entirely on state law grounds. Read the decision. [nycourts.com] Unless Congress passes a law that displaces that state law, each state can and will do what it wants.

    The Court of Appeals is the highest court in New York. (New York had to be different. The lowest courts in New York are the "Supreme Court.") It has enoromous influence across the nation, and the courts of other states, including their highest courts, will give weight to this decision when deciding other cases. Historically, because of Cardozo, the New York Court of Appeals has had an especially strong influence on tort law, the area of the law that covers cases like this.

    Absent a decision like this from the California Supreme Court (size does matter) I can't think of a court I'd rather have the support of in this area.

  • I'm no lawyer, but I've been known to write a bit so I know a little about copyrights. In the scenario you describe, your really have no right to order the ISP to monitor the files of their clients, and it might even be illegal to listen to you (even if you were willing to pay for such a "monitoring service") as it would violate the privacy of the clients. All you can do is, once you are aware of specific violations of your copyright, compel them to remove the illegal material. Any ISP who begins working outside the common-carrier scope opens up an even bigger can of worms for themselves than if you decide to sue them should you discover a violation.
  • There are a couple points here that show that moderators are in no way liable for the content of posts.

    1. No post is ever deleted. All posts are available to all users at all times. Some users just prefer to filter their posts.

    2. In many cases, there would be no clear way to determine which moderator or group of moderators to hold liable. For example, if a specific post slanders John Doe. That post is never moderated. John Doe then, attempts to sue either /. or the Moderators for not removing the post and not moderating the post below the "standard" threshhold. /. takes a 'No Edit' policy, thus is not the publisher of the post, and is therefor not accountable. The Moderators are not paid employees. Moderation is not their job, or their responsibility. They can only be held accountable for the moderation they do, not the moderation they do NOT do. If the Moderators were paid for Moderating, they would be held accountable for both their action AND their in-action in their job. In this case however, only action could make them accountable for the action taken. If Moderators could be sued for not moderating, then every other user of /. could be sued too (every user has the option to be a moderator).


    I believe this concept could be expanded to deduce that moderators could not be held accountable for any action they may take as well, but I'm not going to attempt to go into that here.
  • > If *YOU* don't like a site or find something offensive, then sue the human who MADE the post/site.

    Or rather, if you are offended looking at a particular web site, DON'T DO THAT THEN! You can't make a good website that isn't going to offend anyone. Nor should you try.

  • And kid porn, you don't think looking at that is harmful, I tell you what why don't we see what would happen to your opinion if your daughter or sister or whatever gets raped by some dirty old man that likes "'dem yung tings he seen online"
    The argument that we should not portray anti-social behaviors because someone might take the depiction is an example is specious. It's the classic argument for censorship, adaptable to most any type of content - but perhaps best suited to "protecting the children." ("You don't hate children. Do you?")

    Sexually abusing people - children or adults - is wrong. (Duh.) Murdering people is wrong. Stealing is wrong. Driving recklessly is wrong. That doesn't make it wrong to create or view images depiciting these things. If it did, we'd have no more action movies.

    Child pornography is not some magic exception to the rights of free speech. Any reasonable laws against it must be based on the sexual abuse involved (if any) and on the inability of a child to enter into a binding contract to allow the distribution of their image and likeness, and not on the fact that the activities depicted may be abhorant.

  • Just so you don't get too enthusiastic... this ruling doesn't apply in California, Texas, or any of the other states outside New York

    The Court of Appeals has authority over all of the lower courts in New York (it's their highest court), but has only a "persuasive" value in courts in other states. In other words, you'll have to fight this fight in the 49 other states too...
  • Scary stuff. . .

    Especially with the rate technology is moving. I really think that in 40 years we will look back on today as the good old days when we had the privacy we do now and wonder where it went.

  • by shirro ( 17185 ) on Sunday December 05, 1999 @03:24PM (#1477825) Homepage
    The trouble is that governments don't want the Internet to be judged by the same rules as telephone and mail.

    They view it as a threat to internal security because it promotes true democracy. So they will introduce legislation so that Judges don't have to think about common law rights and precedent.

    If you don't believe me, come to Australia. People elsewhere think our government is backward because of some recent policies - wrong - they are way ahead of the game.

    The Aus government has already figured out that the way to curb unbridled democracy is to have ISPs running scared over draconian content laws and then to have a politically controlled internal security organisation (read secret police) legally authorized to hack into said ISPs (or any one else) and to change data on their computers.

    Note that ASIO (the security org) is not answerable to a judge to get a warrant but to a political master. So if an someone hosts unsavoury political commentry that the government sees as a threat to national security (ie it threatens the government of the day or some political or economice interest) they can legally compromise the providers computers.
  • What's even more interesting is, can MODERATORS be held liable for taking "Editoral responsibility". ?

    Hardly likely. All moderators are doing is entering an opinion of the article. You can choose to ignore their opinion if you desire, by setting your filtering level appropriately. Opinions are not censorship.


    ...phil

  • FWIW, most (?) state antispam laws include a clause that indemnifies ISPs from their users' actions -- as well they should, IMHO. See suespammers.org [suespammers.org] for details.

    --Tom Geller
    Founder, The Suespammers Project

  • In case you hadn't noticed, that's the motivation behind a lot of tort suits, and it's one of the reasons that the court system is overflowing with them.

    You bring up a very good point behind to many lawsuits today. Moreover, I think there is an even larger sociological force at work here. People that always view differences with strong duality and think of differences of opinion as solved via 'confrontation'. There is a serious lack of respect for skills that bring people together, skills that foster a solution, appreciation for the beauty of a ompromise.

  • It is always the question of where to draw the fine line. For example, if the ISP stops carrying the alt.binaries.pedophilia group should it also stop carrying other questionable groups? Few groups do "obviously" carry illegal material but many groups, for example alt.binaries.pictures.girls, alt.sex.teens, alt.anarchism and alt.binaries.warez.commadore64 "may" carry illegal material (at least in some countries) but perhaps the majority of the postings on the group are legal. If the ISP starts monitoring the newsgroups list for illegal material where should it stop? Should it stop carrying alt.binaries.warez.commadore64?
  • heh, acutally it could have altogether different content. I've seen the case on IRC (ok, it's not the same, but the principle applies) where people who want some privacy from the general luser but who still want curious people to be able to find them create a channel with as offensive (or boring) a name as possible and then talk about things completely unrelated to the purported topic of the channel. (how's that for a convoluted, long, almost unreadable sentence?)

    So, while it's unlikely that alt.pictures.erotica.pre-teen.hardcore will carry anything other than what's advertised (I certainly haven't checked), it's possible.

    So in order to determine whether the material is indeed objectionable, they'd have to check, and possibly violate the law by posessing (for however a short time) child pornography. Ugly situation for the censors to be in.
  • It is good that they are finally figuring out that the maintainers of "data depositories" can not possibly be held liable for content stored on them. Think about it- holding prodigy responsible for allowing deflamatory content to be stored on their servers would be equivicable to suing a keyboard maker for letting you type it, a modem maker for letting you transmit it, and a printer maker for allowing you to print it.

    I would hate to imagine:
    "Blondes vs Lexmark" or
    "Ugly Fat Chicks vs Logitech" on the docket.

    Just my 2(cos(0)) cents.
  • So i'm a troll for stating my honest opinion? You may disagree with me, but that does not make me a troll, and it most certainly is not cause to lower my karma. Moderators, please gain maturity.
  • Well I have to say it is nice to finally have a logical argument to my query. For a minute there I was beginning to think Slashdot was full of child molestors.
    I guess you make a valid point. I don't guess the ISP's can look at the content of every group on a regular basis. But I don't know have you ever seen some of the names of these groups? Things like alt.binary.pictures.erotica.pre-teen.hardcore and stuff. I know if I was an ISP a name like that would definetly be red flag and I would stay away from it.
    I guess to answer your question they should not IMHO carry stuff that the government deems legal enough to have like task forces for and stuff. I mean kid porn is practically it's own branch of the police office and there are arrests everyday. Pirating brand new software is something that arrests are made for I am sure on a frequent basis. I don't think anyone has EVER been arrested for carrying commadore64 binaries in modern times.
    Maybe the best way to do it would be to let the government decide. I know everyone here is against government regulations but it just disgusts me that some scumbag could take nude and or x rated photos of my kid sister or later on my daughter and post them on the internet for all to see. I admit I don't know how much of the content of those groups really is illegal and I don't really want to find out, but with such an illegal "gateway" staring us in the face I would think there would be something we could do.

  • There are several interesting issues here. Like the judge said himself, this case doesn't warrant a decision on these issues, so there will be more debating and more lawsuits to come before a body of case law is established.

    The way I see it, these are some of the major issues we are debating about:

    1. Ownership (Copyright vs Authorship)
    ... most bullitain boards claim ownership of anything posted on them.
    Most bulletin boards do say that they own the copyright on the posts, so you can't go and freely copy the bulletin board posts without their consent. But, BBSes won't (or can't) claim authorship of the posts. If they did, they would have to ensure that the content is non-offensive (which is a big headache for them). Copyright is (by default) owned by the author of original work, so the "Terms and Conditions" of the site probably say something like "you hereby relinquish all copyrights on the posts you make and instead transfer them to so-and-so.com". This protects them from getting sued over objectionable content, yet gives them power to sue you for copyright violation. Sort of like the editorials or opinion columns in magazines. The magazine will claim copyright, but say something like "these opinions don't necessarily reflect those of the official blah blah". But I do agree with you that claiming such things doesn't make BBS/website hosts invulnerable. They probably can be successfully sued with the help of a sympathetic jury.

    2. Editing/Moderation (Power vs Obligation)
    I think the power to edit doesn't necessarily constitute an obligation to do so. To take the oft repeated telephone example, surely the carriers have the power to edit, but they make it a policy not to, so they are really not liable for the content they carry. Again, I don't think this will insulate all. This will probably be decided on a case-by-case basis depending on whether the defendant is a publisher or a carrier, whether there was intent (for the objectionable material) or not, whether there was opportunity to edit or not (like someone pointed it out and the ISP still didn't do anything), etc.

    3. Amount of editing
    This seems to me the most ambiguous issue. ISPs can protect themselves to a large extent through Content Neutrality [slashdot.org]. But it is unclear how this applies to, say the newsgroups that they carry. Because (usually) ISPs don't moderate the newsgroups they carry, they are thus "content neutral" as far as each newsgroup is concerned. However, most ISPs don't carry a lot of the alt.some.really.objectionable.newsgroups, so can they be held liable if they let one of such newsgroups slip through (by accident or not)?

    I am sure there are more and finer issues, but things are hazy as it is in my head, I better stop now.

    Sreeram.

  • You said basically what I said, only sooner. :)

    Should'a read more of the posts. :)

  • I think that there should be a more definitive law on this subject. Personally I believe that ISPs should only allow one account per customers so this sort of thing couldn't happen. Why would you need more than one account? I think ISPs should be held responsible if someone pretends to be someone else through their service, especially if threats of this nature are made. But, I think that information passing through the ISP should not be held responsible by the ISP. Imposters are one thing as you can find out if you have one person on more than one account with a simple Perl script, but if a child pornographer used Prodigy there is no way they could know unless they stumbled upon one of his sites (what would they be doing there anyways) or constantly monitored items in his account (I see this as a breach of privacy). Well, I don't know how to end this without lines upon lines of nothing so I think I'll end rather abr...

    If you think you know what the hell is going on you're probably full of shit.
  • Of course you could do IP address lookups and find someone who was committing apparently illegal acts. That's just a technical capability issue. What I'm interested in is whether the Federal courts in the United States will have savvy necessary to comprehend what's going on in an on-line community like Slashdot.
    --

    Dave Aiello

  • The point is, we don't know this. How many studies can you point to that show the number of illegal mp3 downloads as compared to the number of legal ones? None, it's untraceable, and as long as a piece of software, or just about any invention, has a legitimate use it's just about impossible to 'ban' it for lack of a better word. Just look at guns...
  • by dave_aiello ( 9791 ) on Sunday December 05, 1999 @03:41PM (#1477842) Homepage
    One thing I think about occasionally when I read decisions like this is, how would courts deal with a situation where an Anonymous Coward commits slander or libel? This is the same kind of thing that people like Yahoo! and fool.com have to deal with in their financial bulletin board areas.

    I guess one of the reasons that this has come up with respect to those sites is that losses are sometimes more immediate and quantifyable.

    --

    Dave Aiello

  • heh, acutally it could have altogether different content.
    As I said in another reply, I like you, don't know how much illegal stuff is in there and don't really want to look and see, but I just think a *sign* like that is worth looking into. Kinda like if I were to open a store with the name "John's Big 'Ole House a' Marijuana" I wouldn't be offended if cops came in everday with a search warrant.

    So in order to determine whether the material is indeed objectionable, they'd have to check, and possibly violate the law by posessing (for however a short time) child pornography. Ugly situation for the censors to be in
    Well I would agree that censors might not want to look at that kind of stuff, I can imagine the kind of bitterness for the world you could develop if it was your job to look at little kids getting abused all day, but as far as them possessing it, isn't it already on the ISP's servers?

  • This is a fair ruling.
    Are owners of shopping malls held responsible if people perform illegal activities within them?
    This is a topic that the current generation will debate forever, until computers are integrated so tightly into our society that it is no longer an issue.
    The issue here, and also in a lot of other stories that appear here, is that of whether real-life ethics and laws should apply to this "electronic world" that has been created following the rapid spread of networks, in particular, the Internet.
    This Prodigy ruling, as well as many others in the same vein as it, will continue to happen.
    Scott182
  • I thought this suit was pretty tacky - when the forged email and postings were brought to Prodigy's attention, they did a good job of responding quickly and deleting them. It was clearly not their negligence, and especially after cases like Cubby vs. Compuserve, which also found the ISP not liable, this was a good solid decision by the judge.


    While the US courts did the right thing in this case (yay!), one implication of the Internet going everywhere on the planet is that almost anything you post can upset someone, somewhere, in a jurisdiction you'd rather not travel to for a trial. One famous case involved an Australian saying bad things about a Brit, who sued for defamation in a British court and won against the respondent, who mailed in a response but didn't show in person for a defense. British libel laws seem biased toward the plaintiff, at least compared to US laws, and many jurisdictions without strong traditions of press freedom will also rule against ISPs (at least unless the ISP has a deal with the local telco monopoly.)


    Some countries care about defaming their citizens, at least prominent citizens. Some governments ban defaming the government or government officials ("The King is a fink!"). Some governments ban propagating unapproved religions (non-Islam in many Islamic countries, Scientology in Germany, Fulan Gong in China, Jehovah's Witnesses almost everywhere, lots of things in Singapore.) Some governments ban pictures of women without veils on their faces - your web site could cause you big trouble in Afghanistan, next time you're there. Some governments don't like capitalist activities unless you pay them a


    Fortunately, most governments don't care about libel against non-citizens, and most governments don't enforce court judgements against their citizens by other governments for things that aren't illegal at home. But states in the US are pretty cooperative with each other - a New York court may very well hear a defamation suit against a Californian who doesn't want to take the time and money to show up.


    On the other hand, you can avoid much of this problem by using internet privacy technologies,
    like freedom.net, which make it more trouble to track you down and sue you than to respond appropriately, e.g. by flaming back at you on the Internet, or setting up a web page explaining why you're an lying loser and scribbling your pages using Third Voice, or by ignoring you if that's a better approach.


    Oh, by the way, all those stupid things allegedly posted by billstewart, that wasn't me, that was somebody else :-)

  • I understand that MP3s are not intrinsically illegal, but I would venture to say that 90% or more of MP3s are illegally obtained. The people behind Napster most probably know this. That was my argument. BTW, all my friends (but *cough* not me) use the file transfer feature of ICQ to transmit warez as well as MP3s.

    And this was probably the same argument the RIAA used to try and nuke Diamond for the Rio... and lost, becuase you *can* use the Rio legally, it's not illegal. Same with Napster - you can use it legally, and it was designed to be used legally - just because 90% of the people are going to use it illegally doesn't mean that the creators of it are responsible for that usage.

    Whether or not you agree with that is another story.

  • I believe that a very strong argument could be made for 'suppressed' information if the default setting on the 'Threshhold' was 0 or higher.

    What do you mean "if the default setting...was 0 or higher"? The default threshold is 0.
  • If the ISP _ever_ monitored or removed offensive information, then they are showing that they are not carries. Lots of ISPs don't allow certain types of webpages and remove the offending ones. If Free-Web-Service X doesn't allow poronography and removes any pornographic webpages that they find on their site, then they are not longer just carries.

    That's debatable. One could argue it depends on why they deny such use. If it's because they disaprove of "that kind of content", then you're probably right. If it's because such content tends to cause serving the web page in question to use up 98% of their available bandwidth so that they can't provide good service to the other users, then they may be able to close it down on those grounds without loosing their status as a simple carrier. Pages of that sort tend to do that for small ISPs. Larger ISPs may have difficulty making the same argument, though...

    --

  • Sometimes you give up hope that the legal process will ever pull through, or that it will do so in time. There are plenty of cases where our courts are just too slow to keep up. But given the choice of letting them rush things and make a mistake, or having them dawdle and let the horses out the gate, I guess slowness is the better option, frustrating though it might otherwise appear. Do the least harm, and all. (Assuming that slow does less harm than fast.)

    Indeed. It's much better that they take a long time getting around to the issue than that they make a mistake early, since once they've ruled on something the first time they've set a precedent! Once a precedent is set, correcting the error becomes more difficult. Better they take their time and make the right decision the first time around. I'm not sure if they would have made this same decision 5 years ago when ISPs weren't a dime a dozen. Not understanding the revolution that was coming, they may have insisted ISPs take editorial control over what "they publish" or some such nonsense.

    --

  • I'd guess that the past editing would only create a problem if one of those past posts in the archives were deemed to be illegal. Since slashdot currently does not edit the contents of its posts, it probably isn't liable for them. Of course, you never know...
  • I remember way back when, AOL was sued by the courts in some state (I think it was Virginia) because there was some illegal content uploaded to a server and the reason they were being sued by the state was because the server was located there. Now if someone uploads illegal pornography or warez the isp wont get in trouble (now people can upload even more illegal pornography and warez and the isp wont give a damn cause they wont get in trouble for it). Oh well...
  • Why should ISPs be required to ID their users?

    Maybe we should have a law that all print shops must ID all their customers and maintain a register containing the customer's identity and a sample of the item printed. Next, we can mandate the registration of all typewriters and photocopy machines with the government.

  • GadZooki dun said: Child pornography is illegal to own, produce or sell just like narcotics. Except in your inane reply to your own banal post, my analogy works. The government doesn't need special censorship powers to remove such content, the same way it doesn't need new laws to get my crack rock. A legal warrant will do.

    ObDisclaimer: I m'self don't like the idea of child porn, and strictly IMHO the government is probably in the right in banning it seeing as most child porn probably involves molesting kids in the process of making it. (Just to get that out of the way.)

    As a minor aside--the definition of "child pornography" and/or "narcotics" can vary quite a bit from country to country. (Yes, I realise we're talking about the US and whether ISPs are to be considered common carriers or not. However, the Internet is an international forum, and hence anytime you talk about the Internet you are necessarily going to be talking about international agreements. :) For example, if memory serves some things which are considered kiddie-porn in the US (i.e. simulated pics of kids, teenagers, etc.) aren't illegal in parts of Scandinavia and (possibly) Japan; conversely, some stuff that is not considered illegal porn in the US (i.e. teens in bikinis, adult lesbians, etc.) IS considered illegal in other countries. Same goes for narcotics, too; qat (a common drug used in Middle Eastern countries) is illegal here in the US but actually sold on the streets legally in Ethiopia, and contrariwise most antihistamines and decongestant drugs are considered controlled substances in Japan (yes, you really CAN be busted for entering Japan with a package of Sudafed; pseudoephedrine is a controlled substance there and even the US State Department Travel Advisory for Japan [state.gov] warns about this).

    For that matter, laws aren't all that uniform in the United States. Things which are perfectly legal in some states aren't in others; there was a very unfortunate case that proved this out several years ago (in which a postmaster general (?) in Tennessee got an adult BBS in California busted for violating Tennessee's obscenity laws with some of the piccies on the board). I'll also remind folks that the issue of "illegal sexual material" often doesn't have to do with kiddie porn at all; among other things, if a provider was held responsible for content prosecutors in Alabama could hold liable any site that sold dildos or most sexual material (yes, the sale or advertisement of marital aids is illegal in Alabama, and quite a few cities and counties in the Bible Belt have blue-laws that darn near make anything much racier than the Sports Illustrated swimsuit issue illegal to sell in town; some of these are fairly large cities [Cincinatti has tried repeatedly to make ALL adult bookstores illegal as well as prohibit the sale of nearly all adult material--it ain't just Larry Flynt and Hustler they've gone to loggerheads with] at that. I won't even go into those states that still have sodomy laws on the books, because a few of those states also ban depictions of sodomy and/or "crimes against nature"...which can include literally everything from zoophilia, to oral/anal sex, to [in a few states] even consensual unmarried heterosexual sex in the missionary position...)

    Personally, I think it's a damn good thing the courts ruled that a provider can't be held liable. Otherwise, a lot of ISPs and online services (cough cough ahem AOL cough ahem) would be in rather serious trouble and waiting for cops from the Fundamentalist Theocracy of Alabama to shut them down :P I'll also note, btw, that this does NOT give ISPs common carrier status...not yet, anyways. The only group that can formally do that is the FCC, who grants what services are and aren't common carriers (it is a specific status under the law which also has specific responsibilities--technically, under the Telecommunications Reform Act of 1996, if ISPs were declared common carriers they'd have to open up (for example) cable modem service and ADSL service to ALL ISPs at the same price and couldn't do sillybuggers like making one pay for two accounts--one with @Home and one with one's home ISP [as @Home is fond of doing] or making one pay MORE for ADSL service if one doesn't use bellsouth.net as one's ISP [which Bellsouth does, illegally I might add, in the Louisville area with its ADSL service--they actually make you pay MORE if you don't go with hellsouth.net--as if I actually needed another reason to pray to the gods of thunder that the headquarters would be hit by an F5 tornado :P]. They'd have to open it up to everyone.)

    Now...what's needed now is some way to determine on a national basis where jurisdiction is when something that really IS illegal occurs. (Hell, internationally if possible, but I don't think that's happening in this lifetime :P) If someone runs a website in California which has adult material on it which is legal there--and someone in the Fundamentalist Theocracy of Alabama downloads that material--whose law applies? California's? Alabama's? (Kentucky is one of the very few states I know of that DOES list in its laws who has jurisdiction in computer crimes--it's basically [for example] if someone mailbombs you from another state the offense is supposed to have occured in that state and not Kentucky). For that matter, if I order beer from an online site (under a rather draconian law in Kentucky--meant mostly to prop up liquor warehouses and county sheriffs in dry counties--it is now illegal to mail-order ANY alcohol in Kentucky...this actually caused the famous Beer Camp at Oldenberg Brewery (in Covington, KY) to have to be cancelled last year, and arrangements made to have the beer from microbrews (some who mostly ship by mail order) to be shipped to a warehouse there...this is now literally the only way you can order beer, through a warehouse, because it's illegal to ship it :P) whose law trumps the other (especially if the online beer salesman is in a state where it's quite legal, and it'd be legal if I were driving there and shipping it across myself)? Can the other state tell Kentucky's Attorney-General to perform a auto-sexual act requiring DEX 25 when the Attorney-General decides to file a felony charge against the shipper and the company? (Yes, it's even illegal for UPS to ship--which is probably illegal, since UPS is a common carrier)

  • Sometimes you give up hope that the legal process will ever pull through, or that it will do so in time. There are plenty of cases where our courts are just too slow to keep up. But given the choice of letting them rush things and make a mistake, or having them dawdle and let the horses out the gate, I guess slowness is the better option, frustrating though it might otherwise appear. Do the least harm, and all. (Assuming that slow does less harm than fast.)

    Still, it makes some situations unassailable by the legal process. I'm thinking of cases with gigabucks to tie up courts while technological changes render the matter moot.

  • by Money__ ( 87045 ) on Sunday December 05, 1999 @01:57PM (#1477861)
    Thank god Slashdot doesn't edit it's posts.

    It's a good thing there's no censorship here.

    Once you "edit" comments, you take over liability for the content of that article.
    Is the moderatrion system currently in use here on slashdot /. the same as editing content?

    Do Moderators have "Editoral Control"?

    From the article:

    Describing e-mail as "the day's evolutionary hybrid of traditional telephone line communications and regular postal service mail," the Court noted that while commercial on-line services like Prodigy transmit electronic mail, they do not exercise any editorial control. It evaluated Mr. Lunney's claim in the context of existing tort precedents, and found that "these settled doctrines accommodate the technology comfortably."

  • by pen ( 7191 ) on Sunday December 05, 1999 @01:58PM (#1477862)
    The French ISP Altern [altern.org] was found responsible for the content someone posted on its servers. The judge said that just like a newspaper is responsible for what people print in it, an ISP is responsible for the content others post on its servers. The Slashdot article is here [slashdot.org]

    I am not sure about the outcome of the case. Altern was down for quite a while, but is now back up. You now must provide an email address (that is confirmed) to open an account. There was a petition, and as the case was posted on Slashdot, quite a few people signed it. I do remember the ISP owner (it's a one-person operation, on a Linux server BTW) thanking everyone for the support.

  • However, how much effect does this have for those unfortunate ISPS in the UK? (J/K) I haven't kept track, but The-ISP-I-Can't-Remember-the-Name-of that removed an article from its news spool for being libellous is still fighting its appeal IIRC, is there a precedent for using an example from an American court in British ones? I don't think so, but who knows IANAM.

    This has some very good implications, although as far as I can see this only really applies to Boards where the owners merely reserve the right to edit and email, only a brain dead judge wouldn't apply this to usenet.

    However, does this apply to webpages? I tend to think the ISP's would be free from liability for evil things on a page, but I don't see that spelled out in this ruling.
  • Napster [napster.com] is currently named in a law suit filed by the RIAA [riaa.org] in regards to illegal MP3 distribution. Perhaps this case can be overturned with the help of this new ruling? Of course, Napster isn't a common carrier, but it isn't providing the information, either. It is only providing a means for people to exchange information ... just like ISPs.
  • In the last half of 1998, We had a similar case. Here is an extract that is available on the IIA (Internet Industry Association) [iia.net.au]

    In summary, the Australian Performing Rights Association took OzEmail to court because OzEmail refused to pay for a license fee to APRA, at the rate of $1 per subscriber per annum, for allowing the downloading of music over the Internet. APRA represents the interest of artists and is responsible for the collection and distribution of royalties to them for 'performances' of their works. They hold that an ISP is allowing the transmission of a work and therefore should pay a license fee for such.

    This case was settled out of court with Ozemail not accepting liability. Here is the settlement.
    APRA agreed to cease the action in the Federal Court on the following terms:
    A payment by OzEmail on behalf of the industry to be made on 30 June 1998. Each party agreed to meet their own costs
    There was no admission of liability by OzEmail Limited
    APRA would not sue any other ISP in Australia, which joins in the settlement agreement.
    OzEmail, the Internet Industry Association and APRA would work together to advise the government on the appropriate form of new legislation covering their copyright which recognises that those who make available content through the Internet are responsible for the copyright liability of any material they make available. The parties agree that it be clearly enshrined in the legislation that ISPs are not liable for material they host or which passes through their services.
    OzEmail makes available on a regular basis information regarding the hosting of sound files, which may assist APRA, with due regard to the privacy of customers and obligations under the IIA Code and the Telecommunications Act. OzEmail will use their best endeavours to have other IIA members provide information to assist APRA in protecting the intellectual property of their members.
    OzEmail's terms and conditions reflect the responsibility of content providers to ensure they do not make available material for which they do not have authorisation from the copyright holder.
    Should no legislation be enacted by 30 June 1999 the parties agree to renegotiate in good faith

    The full offer to Australian ISP's is at http://www.iia.net.au/news/apra.html [iia.net.au]
  • Child pornography is illegal to own, produce or sell just like narcotics. Except in your inane reply to your own banal post, my analogy works.
    The government doesn't need special censorship powers to remove such content, the same way it doesn't need new laws to get my crack rock. A legal warrant will do.

    Most ISP's will accept by default a new newsgroup given the right control message, and a lot will also ignore remove group control messages also. alt.i.like.8.year.old.poontang on your newserver only self-criminalizes the posters who, if breaking the law, should be sought out by the police.

    So please spare me your 'save the children!' hysterics. The disregard here isn't for human decancy as this is already illegal. The disregard here is in the lack of thinking and ignornace of the rights of others when it comes to your hot button issues.
  • This was a decision local to New York, not a binding precedent on the rest of the country. Until we see a Supreme Court decision about this, there will be no case law binding on the entire US, just on the particular district in which the decision was made.

    Granted, New York has a sizable chunk of people. But it won't affect the rest of us for now.
  • Methinks the plaintiff took the wrong approach. Suing the imposter for something like wire fraud would seemingly make more sense; or if Prodigy had failed to act by removing the accounts involved upon showing that t'was an imposter, for negligence.

    You're missing the point of the lawsuit. The defendant wanted lots and lots of money. The imposter (who is not named in the article, and perhaps is still unknown) doesn't have lots and lots of money. Prodigy does. It would make more sense to sue the person who was responsible if your aim in filing suit was retributive, or even preventative (see my earlier comments in a different story on punitive, preventative, and rehabilatative punishments), but clearly, the plaintiff just thought this would be a good way to make a shitload of money.

    In case you hadn't noticed, that's the motivation behind a lot of tort suits, and it's one of the reasons that the court system is overflowing with them.


    * mild mannered physics grad student by day *

  • Just think about if the telco was screening all phone calls to make sure that "bad" content wasn't on their network. There would be a loss of privacy. Plus I guess the phone bill would have to go up considerably to conver the cost of all that monitoring (just as if an ISP had to hire staff to monitor content on their servers).

    I'm glad the courts ruled the way they did in this case.
  • Although I agree that ISPs should not be held accountable for content on subscribers pages, it is different from your Ma Bell example.

    If Ma Bell were to listen in on every phone call and terminate those that it found to be obscene, offensive, or otherwise bad then it would be something different. Because Ma Bell is simply a carrier for the information, they are not held responsible.

    If the ISP _ever_ monitored or removed offensive information, then they are showing that they are not carries. Lots of ISPs don't allow certain types of webpages and remove the offending ones. If Free-Web-Service X doesn't allow poronography and removes any pornographic webpages that they find on their site, then they are not longer just carries. If a defametory web site is posted there should they be responsible for it?

  • According to the article; "Mr. Lunney, through his father, sued Prodigy contending that the company negligently allowed accounts to be opened in his name. He sought damages for defamation and intentional infliction of emotional distress. " Now, should it be perfectly legal to *impersonate* someone online? This Lunney dude had the right to contend against Prodigy opening the accounts in his name. Yes, ISPs are only carriers, but they should implement stronger checks to prevent this kind of harrasment. IMHO, ISPs should be held liable for something such as a web site containing illegal content. They should also be liable for impersonation/fraud, which is what happened here. They should *not* be liable for the content of message boards, email, and other such temporary content or public forums, which is also what happened. Yadda, yadda.
  • Slashdot doesn't moderate, people who are viewing the content moderate. I think it would be different if someone like Rob or Hemos moderated everything. I believe it's the people who moderate that are responsible, but since it is distributed there's no chance of laying blame on anyone.

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