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Monday, March 7, 2011

Counsel at Leading Social Sites Describe Crush of User Content Takedown Requests

by Thomas O'Toole

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Santa Clara Law School's High Tech Law Institute held an event March 4 to commemorate the 15th anniversary of the enactment of Section 230 of the Communications Decency Act, the landmark cyberlaw that gives internet publishers the freedom to police their networks and to publish the views of users without fear of creating legal liability. Mostly, CDA Section 230 insulates online companies from liability for publishing libelous material written by others, though it has been put to many other defensive uses during the last 15 years.

Most interesting to me were the reports from counsel Yelp, Twitter, and Linden Labs regarding the thousands of demands they receive to take down material from their websites, and they number of lawyers they have hired for the sole purpose of evaluating and responding to these complaints. It is difficult to imagine how these businesses could function without the legal protections afforded by CDA Section 230.

BNA's Silicion Valley reporter Joyce Cutler filed this report:

Counsel at Leading Social Sites Describe Crush of User Content Takedown Requests


SAN FRANCISCO—Well-known websites including Yelp, Twitter, and Second Life depend critically on the immunities from suit created by Communications Decency Act Section 230 in day-to-day operations and in dealing with thousands of complaints regarding objectionable material, attorneys said at a legal conference March 4.

Speakers at a Santa Clara University School of Law conference on the 15th anniversary of CDA Section 230, 47 U.S.C. §230, said that this federal law's grant of immunity to interactive computer services for unlawful material posted by third parties has benefited consumers, start ups, and publishers.

Yelp, where consumers review everything from dentists to diaper services, helps buyers make informed decisions about whom to patronize, said Yelp General Counsel Laurence Wilson.

"So you can guess that we get a ton of complaints from folks who think that those reviews might cross the line," Wilson said. "And indeed there certainly are cases where reviews do cross the line and other cases, again, where it's just valid negative commentary about a business that everyone should really hear about.''

"Complaints numbering in the hundreds each day, sometimes in the thousands wouldn't be odd at all,'' Wilson said. Yelp relies on Section 230 daily to assess whether reviews stay up or come down. "By and large we're more likely to keep a review up instead of take it down because we're not in a position to make factual determinations about whether the radiator in your car was properly fixed by your mechanic or not,'' he said.

CDA Section 230 was enacted to remove disincentives to self-regulation by fledgling online networks that were created by the court's ruling in Stratton Oakmont v. Prodigy Servs. Co., No. 94-31063 (N.Y. Sup. Ct. May 24, 1995). In Stratton Oakmont, an early internet law case in which a state trial court held that an Internet service could be liable for defamatory material posted by third parties. The court reasoned that Prodigy could be liable as a publisher of the defamatory material because it actively screened and edited messages posted on its bulletin boards—just as a traditional print publisher could be held liable for similar activities.

CDA Section 230 diminished the exposure of online businesses to liability for materials posted by third parties. The law provides that interactive computer services have immunity to state-law claims seeking to hold them liable as publishers of unlawful material submitted by third parties. CDA Section 230 also gives interactive computer services immunity from state-law suits arising from policing their networks for objectionable material.

Linden Labs receives thousands of complaints from users about the Second Life virtual world, many of which are dealt with by moderated discussion boards—a situation that CDA Section 230's drafters had very much in mind when the law was written.

Linden has community standards that "set out the normative behavior and guidelines for participation in our community. And we enforce those community guidelines in response to community policing, and Section 230 is important for that,'' Laura Pirri, senior counsel at Linden Labs, said.


Alleged or Actual Defamation?

Twitter fields about 10,000 policy complaints monthly, general counsel Alex Macgillivray said. And the number rises if spam, impersonation, harassment, copyright violation, and such are included. "The vast majority of them are completely unactionable,'' Macgillivray said.
Two dozen staffers at Twitter deal with the CDA 230-like complaints that come in about the 100 million tweets published daily, said Macgillivray.

"My thesis is that alleged defamation is among the most important and valuable stuff online," Macgillivray said. "I would contrast that to actual defamation which among the worst and least useful stuff online. But it's really hard for service providers to tell the difference.''

For example, a $600 oven that looked good had reviews complaining about a nonfunctioning oven door. "These are things that are helping people make good decisions about where to spend their hard-earned money,'' Macgillivray said.

For sites such as Avvo.com, which rates attorneys, Macgillivray said, "if there is actual defamation there, there is a way to get the justice you seek. There is a way to get the material taken down. But if it is only alleged defamation, in other words if the material is in fact true, there is a way for the service provider to be able to keep it up, which is the balance the bill strikes which is so important to both businesses and users.''

Chief Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit, was not as enthusiastic as Macgillivray and the other online service attorneys about freewheeling online speech. During a separate presentation, Kozinski observed that the impact of online commentary on businesses can be devastating.

"If you've never been any kind of target online, then you see only the benefit,'' Kozinski said, adding that he has colleagues who because of rulings made in case are subjected to a series of websites and YouTube videos "that are more than unpleasant.''

"Where is it written that you have a right to speak anonymously and commit defamation or anonymously release trade secrets or anonymously invade people's privacy?'' Kozinski said.

Asserting IP Claims Where None Exist.

A notable exception to CDA Section 230 immunity is a claim alleging infringement of an intellectual property right. Wilson said business owners who do not like negative reviews that they are getting will frequently recast their objection as an intellectual property violation.

"Obviously that's poppycock," Wilson said. "That's not going to fly. It frankly has nothing to do with CDA Section 230. At the end of the day it's really a misunderstanding of copyright and trademark law.''

Complaints can frequently involve allegations that a particular user is infringing a business's trademark or infringing copyright—something that implicates the Digital Millennium Copyright Act's take-down provisions rather than under CDA Section 230, Wilson said.


Pirri said that Linden Lab has had a similar experience. "They might strategically claim a copyright claim rather than submitting an abuse report,'' Pirri said. "We see this in context of when someone who has created their avatar … and find their content that they created is being associated with content they find objectionable or distasteful,'' she said.

Such complaints require more lawyering time than complaints that clearly fall under CDA Section 230, Pirri said. Counsel wants "to make sure the valid ones are processed quickly and the ones that may be questionable or false get reviewed and a judgment gets made on them in the interest of discouraging those kinds of bogus complaints, but at the same time not exposing the company to undue liability by waiving statutory immunity,'' she said.

View From Washington.

Several federal legislators, also speaking at the conference, used their remarks to cast the CDA Section 230 discussion against the background of the larger issue of intermediary liability for intellectual property infringement, a very hot topic early in the 112th Congress.


"Hollywood, the recording industry, and the FBI are always present," Rep. Zoe Lofgren (D-Calif.) said. "And they're always looking for ways to protect themselves, to game an advantage, to control technology.''

Lofgren observed that the fledgling internet industry did not have a large presence in Washington 1996 when the CDA Section 230 was enacted.

"Hollywood was everywhere and the [Silicon] Valley was nonexistent,'' Lofgren said. She described herself as part of the group that "was making sure that the technology innovation didn't become so distracted by liability that either the FBI or Hollywood or RIAA [Recording Industry Association of America] wanted to impose that it could not actually achieve.''


"Piracy is something that we are opposed to and need to take steps to combat, but we should not do it at the expense of innovation and technology growth,'' Lofgren said.


Rep. Ron Wyden (D-Ore.) who co-authored CDA Section 230, said "the war against the network'' is coming from telecommunication companies that increasingly provide content and oppose each effort to promote the interest of the network as a whole "because they want the option to throttle and discriminate against one form of content against another. We cannot allow that to happen.''

IP, Tax Threats.

A handful of states want to tax internet access fees and sales. Thousands of discriminatory taxes laid one on top of another "simply wouldn't be worth the cost of compliance,'' Wyden said. "We cannot let the internet become the means by which state and local governments finance budget shortfalls.''


Former Rep. Christopher Cox (R-Calif.), who co-authored CDA Section 230 with Wyden when they were both in the House, said the goal was that they "didn't want this to suffer crib death.'' The internet was seen as "a game changer that needed to be incorporated into society.''


Wyden and Lofgren said Congress must get the balance right on intellectual property. "Protection of intellectual property rights cannot mean destroying the integrity of the internet'' and stifling speech, Wyden said.


Continuing Threat to Technology, Innovation.


Last September, Sen. Patrick Leahy (D-Vt.) and Sen. Orrin G. Hatch (R-Utah) introduced the Combating Online Infringement and Counterfeits Act (S. 3804), which sought to authorize the U.S. Department of Justice to file an in rem civil action against a domain name, and seek a preliminary order from a federal court that the domain name is being used to traffic infringing material. The bill would also have provided for safeguards allowing the domain name owner or site operator to petition a court to lift the order, and safeguards against abuse by allowing only the Justice Department to initiate an action, and by giving the court the final say about whether any particular website would be cut off.


The Senate Judiciary Committee in November reported favorably a substitute version of the bill, but the full Senate failed to act on the legislation the congressional term ended.

"The threat is not gone,'' said Lofgren. A measure to be introduced in the Senate would allow complete take down of domain names systems "that engineers are telling me would have a very adverse impact on the technology of the internet but also without protection for free speech, fair use, or technology innovation. It's not going to do anything about piracy because the pirate sites will just pop up someplace else,'' she said.


"I do think based on what happens in the Senate, if there's a change, it's a change for the worse when it comes to the First Amendment and technology innovation,'' Lofgren said.
And pornography, said Lofgren "is always fronted as the reason for violating privacy'' with measures to require internet service providers keep IP addresses for eternity for investigative use.


Lofgren called on Silicon Valley companies to step up and make arguments about threats to innovation the way they argue about patent reform and taxation. While the issue may not be as immediate as a tax code impact, "I will argue this will be more deadly to companies and innovation that provisions in the tax code.''


By Joyce E. Cutler
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