If legislatures, courts and policy makers fail to distinguish among the differing roles of ISPs, irrational liability decisions may be the result
THE rise of the Internet has challenges for the judiciary: they now will be required to apply laws that were written for the tangible world of paper and telephone to the new world factual setting created by computers. Can the old doctrines be boldly lifted and applied to the new concepts? This is the challenge.
It is vitally important to any intelligent discussion of Internet-related law that the participants understand the fundamentals of Internet transmission and the relationships between the parties. It also is important for the participants to understand the different services--World Wide Web, e-mail, Usenet--that collectively comprise what the end user perceives as the "Internet."
CONTENT CREATION V. DISTRIBUTION
There is a fundamental distinction between the entities that create Internet content and those that merely distribute it or provide access to content. With a few exceptions--for example, issues involving jurisdiction and applicable law--the Internet does not provide significant new legal challenges for content providers. Although there are some state-level common law issues, such as defamation, privacy, torts, etc., the substantive bodies of law that have generated the most reported litigation to date are typically federal and statutory--copyright, trademark, patent, etc. Conventional application of existing legal doctrines usually will be reliable in determining the liability of content providers. The Internet merely introduces problems of scale by amplifying content providers' potential scope of liability.
Most of the more significant unsettled Internet liability issues involve the vicarious or secondary liability of service providers or distributors. This introduces the classic "deep- pockets" policy concern. To what extent is it fair to impose secondary liability to ensure that a plaintiff can find a solvent defendant? The Internet introduces several unique considerations to the standard tort liability calculus.
First, there is the strong public policy consideration of maintaining free access to information. Lawmakers and courts are justifiably concerned about hampering the limitless potential benefits of friction-free Internet commerce and information exchange. Second, imposition of liability on service providers introduces problems of scale. If vicarious liability is aggressively imposed, it is difficult to articulate a legal standard that would not impose liability on every entity involved in the transmission of the offensive or illegal material. Finally, in order to preserve innovation, legislation must be flexible and minimal in order to provide needed technological and legal standardization while preserving the delicate balance between the private entities that comprise the Internet.
Since a service providers' liability for subscriber-generated content typically involves the degree of control that the provider can exercise over that content, some of the key issues are:
* What is a "copy" in the digital realm?
* How transient is the material (i.e., does the provider host content or merely pass digital data through its network)?
* Was the material posted by a subscriber, or was the material automatically forwarded by another provider's subscriber?
* How much similar material is present (i. e., is it feasible to monitor large volumes of data)?
* Is it possible for the provider to determine that a particular item of content is offensive or illegal (e.g., is the message unreadable or encrypted)?
* Should the fact that provider has voluntarily undertaken to monitor or screen content increase its liability?
In the United States, Congress attempted to respond to these concerns in late 1998 with the passage of the Digital Millennium Copyright Act (DMCA). …