Quentin |
10-19-2007 03:08 PM |
I recently asked an attorney with extensive knowledge on the subject about the prospect of user-post sites fitting into the so-called "ISP exception" to 2257. Due to the complexity of the question, and the fact that it is so fact-specific, he declined to go on the record with his response... but here is what this attorney-who-shall-remain-nameless had to say, off the record:
You latch on to the issue I spend countless hours advising clients about. I can?t get deep into the answers to that question, because it is really an issue for competent legal advice, and not statements in an article.
Suffice to say that these social networking sites, along with all other kinds of user submission sites (swinger, dating, adult dating, forums, girlfriend, voyeur, etc) all want to fit into the exemptions carved out for hosts, ISP?s, search engines, and the like. This comes up in reference to 2257, Section 230 immunity, and DMCA safe harbor. Each evaluation is a little different, but the fact remains that these exemptions were written for certain types of Internet businesses.
While some user submission sites may fall into the exemptions for certain purposes, this is a highly factually-intensive analysis, and the law has not developed sufficiently to give a definite answer. Much depends on the specific content submission procedure followed by each website.
Fortunately, the cases interpreting Section 230 and DMCA have been fairly liberal in applying the protections to a variety of sites beyond the traditional ISP. Webmasters must be very careful when evaluating the 2257 exemptions, however, because we just have one case (the Connections Case dealing with the swingers site) interpreting that issue, and that decision came down before the Adam Walsh Act slightly modified the statutory exemptions. Even if a site can avoid the ?producer? definition, the ?distributor? definition may still apply.
In other words - these user-post content sites are taking a pretty big risk with respect to 2257. It's arguable that they qualify for the ISP 'loophole' - but if a court decides that they do not....
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