How Third Party Liability Can Stifle An Industry

from the things-we-don't-want dept

Wed, Apr 14th 2010 6:51pm — Mike Masnick

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

24 Comments

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ChurchHatesTucker (profile), 14 Apr 2010 @ 6:54pm

Ice Ice ...
Iceland, baby.
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Anonymous Coward, 14 Apr 2010 @ 7:41pm

they should not be blamed for third party content but they also should not create a haven for it.
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Jaws4theRevenge, 14 Apr 2010 @ 7:54pm

Man, what you think you know...
I was completely unaware of this. I had presumed, because it's just common sense, that Ireland would have a system in place to prevent secondary liability.

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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Hugh Mann (profile), 14 Apr 2010 @ 8:07pm

...sigh...
From the original post: "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 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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:Lobo Santo (profile), 14 Apr 2010 @ 8:15pm

Re: ...sigh...
Exactly! Every time a bank robber drives away in a car; we should find whoever sold him that car and penalize them something fierce! (Or, if it's a stolen car, find the previous owner and penalize them...)
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Anonymous Coward, 14 Apr 2010 @ 8:45pm

Re:
TAM logic: They should not be blamed for third party content but they should be blamed for third party content.

Nice.
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:Lobo Santos Ugly Ferret, 14 Apr 2010 @ 8:52pm

Re: Re: ...sigh...
bad analogy. everytime a bank robber is driven away in a car, we should find whoever was driving the car and prosecute them. They didnt go into the bank, they didnt hold the gun, but they are part of the process of committing the crime.
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:Lobo Santo (profile), 14 Apr 2010 @ 8:57pm

Re: Re: Re: ...sigh...
Yeah, but we already have laws covering that; it's called "being an accomplice." Secondary liability is about prosecuting that car dealer...
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Anonymous Coward, 14 Apr 2010 @ 9:01pm

Re: ...sigh...
It is indeed disappointing that so many who post comments on matters such as this do so viscerally, and not after some basic research and reflection on what secondary liability actually encompasses.

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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Anonymous Coward, 14 Apr 2010 @ 9:46pm

I HATE THE RIAA!!! I WISH THEY BURN!!!!
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Atkray (profile), 14 Apr 2010 @ 10:21pm

Re: Re: Re: ...sigh...
Ok, so what happens when the bank robber comes out of the bank, runs to the underground, removes his mask and then comes back up to street level and takes a taxi back to get away? ¿Do we lock up the cabbie?
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Anonymous Coward, 14 Apr 2010 @ 10:31pm

Re: Re: Re: ...sigh...
Furthermore, something as harmless as copywrong infringement isn't really worthy of any punishment. The laws themselves are unjust, punishing people for breaking unjust laws is not justice.
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Any Mouse, 14 Apr 2010 @ 10:43pm

Re:
So what you're saying is that they should just close down, right? If we wanted static media, we'd be reading books, not the internet.
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Yogi, 14 Apr 2010 @ 11:17pm

Right
This is why I expect innovation to move from the US to places with a more reasonable attitude towards legislation of technology.

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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abc gum, 15 Apr 2010 @ 5:22am

Re: Re: Re: ...sigh...
And because finding this driver is too difficult and expensive, you would like to send all drivers a presettlement letter. Collateral damage is not in your dictionary and you could not care less about the hardship incurred by those you would take advantage of.

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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Chris (profile), 15 Apr 2010 @ 6:46am

Enough with the ridiculous analogies.
Secondary liability for service providers on the internet amounts to outright censorship (by a private party) of possibly protected speech.
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RD, 15 Apr 2010 @ 6:58am

Re: Re: Re: Re: ...sigh...
"Ok, so what happens when the bank robber comes out of the bank, runs to the underground, removes his mask and then comes back up to street level and takes a taxi back to get away? ¿Do we lock up the cabbie?"

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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DH's love child, 15 Apr 2010 @ 7:13am

Re: Re: Re: ...sigh...
Wrong. Secondary liability means that when someone robs a bank, we get to prosecute (in addition to anybody who actively took part such as the getaway driver), the gun manufacturer, the clothing company that makes the ski mask, the car manufacturer, the city for providing the road, the bank employee(s) who hand over the money because they didn't actively prevent it, etc...
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Hephaestus (profile), 15 Apr 2010 @ 7:21am

Re: Right
"The RIAA and MPAA will set back the united states by 50 years."

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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kirillian (profile), 15 Apr 2010 @ 8:02am

Re: Re: Right
Hence the issue...it kinda sucks when you have to rely on the greed of corporations to protect you from the greed of other corporations...
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John Fenderson (profile), 15 Apr 2010 @ 8:48am

Re: Re: ...sigh...
"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."

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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Valkor, 15 Apr 2010 @ 1:07pm

Re: Re: Re: Right
Well, that is sort of what makes the world go 'round. I'd expect that most of us have *jobs* because of the greed of corporations. (If you hire someone and pay them all of the additional money they generate for you, you're starting a commune, not a business.)
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BearGriz72 (profile), 15 Apr 2010 @ 4:46pm

Another "Ridiculous" Analogy
A gangbanger gets on a bus & pays the fare for said transportation service. A few blocks later a member of a rival gang also boards the bus and pays his fare. As he walks to the back of the bus the first 'banger pulls a gun and shoots the second. The bus driver stops the bus (because he just heard a gunshot) and the perpetrator flees the scene.

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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Anonymous Coward, 16 Apr 2010 @ 3:33am

Re: Re: Re: Re: ...sigh...
What about suing the bank, for having money in the first place?
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