How Third Party Liability Can Stifle An Industry
from the things-we-don't-want dept
The entertainment industry has been pushing really hard for greater secondary liability for third parties, lately -- hoping to roll back some of the vastly important safe harbors found in both the DMCA and Section 230 of the CDA. Both of those safe harbors (though, they work in different ways) are designed to make sure that liability is properly applied towards the party that actually broke the law. Secondary liability is a dangerous concept that applies the liability to a third party because it's difficult to find the actual perpetrator. But, in what world does it make sense for you to blame an innocent bystander just because it's hard to find the actual person responsible?The consequences of secondary liability (both intended and unintended) are incredibly dangerous for both free speech and for the ability to create new and useful services online. We've already seen how the Chinese have taken secondary liability to a new level by using it as the core mechanism for censorship. But still the entertainment industry pushes forward.
They should be careful what they wish for. An article in the Times Online highlights the situation in Ireland, where there aren't safe harbors against secondary liability for defamation -- and it's leading internet companies to blatantly censor or to avoid doing business in Ireland out of fear for the liability. Now, some in the entertainment industry seem to think this is just fine -- because they think that the internet should be a broadcast medium for the big "professional" producers of content, and all these internet companies and user-generated content things should really all fade away.
But for people who recognize that freedom of communication online is important, and who recognize that third parties who create services should not be blamed for their misuse by users, this should be quite troubling. Trying to increase secondary liability on service providers through things like ACTA is an attempt to strip away basic legal common sense in the proper application of liability, in an effort to crowd out new online services, in favor of old school broadcast entertainment firms.
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Filed Under: cda, dmca, entertainment industry, liability, safe harbors
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Ice Ice ...
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Nice.
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Man, what you think you know...
Welp, I'd write a letter to my TD, if I thought it would do any good, (or that he'd have the slightest idea what I was on about)
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...sigh...
The concept of secondary liability is not about blaming "innocent bystanders". The concept is that even this third party has in some significant way participated in and/or contributed to the commission of the offense.
Yes, its application can be mis-used, but please don't start off by "explaining" the concept in a false light.
HM
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According to hollywood, ACTA, and the RIAA/MPAA, absolutely YES! He is guilty of secondary liability, and MORE importantly, HE can be found, whereas the ACTUAL criminal cant be, ergo he needs to be prosecuted. Its all about control and creating FUD.
This is the essential slippery slope when it comes to this third-party liability nonsense, and I really wish you people (and by "you people", I mean "idiot shills") posting would get a CLUE and understand the PRINCIPLE behind such things, instead of rolling out ridiculous analogies that dont apply.
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Typical myopic view shared by those who feel entitled to trample the rights of others, but are outraged when their rights are slightly infringed.
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I can only wonder what would be the reaction to an article discussing the Felony Murder Rule? Imagine the reaction to a situation where two perpetrators of a felony shoot it out with the police, one of the perpetrators is killed in the shoot-out, and then the other perpetrator is prosecuted for the "murder" of his compatriot at the hands of the police.
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You don't have to imagine it -- I think this is very, very wrong. I understand the law, I simply think that it is wrong. The law and what's right & wrong are independent variables.
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Right
If ACTA does pass, in ten years the center of technological innovation will move to the Far East, unless the US manages to force its views on the entire world. It is possible but it would be like stemming the tide of a great sea of innovation - it would take great effort and lots of money and will ultimately be doomed to failure.
The RIAA and MPAA will set back the united states by 50 years.
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Actually you can only push so far before people push back. The IP industry (copyright-Patent) is a small part of a very large economy.
When the unintended consequences, fines, three strikes, ISP monitoring, and the arrests begin there will be a public uproar but it will be mostly inconsequential. What the IP industries have to worry about is the rest (>>90%) of the nations industries saying "enough, its time to reform IP law, this is affecting our bottom line".
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Enough with the ridiculous analogies.
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Another "Ridiculous" Analogy
Now most people (and the Police for that matter) would say that the other people on the bus are "innocent bystanders" and are nothing more than witnesses to a horrible crime. Secondary Liability would say (and the really scary thing is I could actually see this lawsuit happening, because our society has become so stupidly litigious) that The Bus Driver is also at fault for not knowing (Psychically?) that the first man had a weapon, and that the Bus Company is at fault for not installing metal detectors on the bus. If they did install metal detectors it would be the fault of the company that manufactured the detectors, or a personal favorite (That has actually happened - bless the idiots involved) the company that manufactured the gun.
Now a reasonable and sane human being would know that the person at fault in this scenario is the criminal who picked up a weapon and used it against another person, but that might actually involve work to locate and prosecute that person. [Side Note: A job that our police departments and prosecutors work at every day.] However the people who think that secondary liability is a good idea don't want to be bothered to do that job so they will go after the "innocent bystanders" because they don't have to find them (After all they are still standing there) and the "Service Provider" because it has the deeper pockets.
There is no justice to be had here only greed.
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