Is There A Downside To Limiting Third Party Liability?

from the still-looking-for-it... dept

Tue, Jun 1st 2010 8:51pm — Mike Masnick

We recent wrote about Brazil's very welcome decision to fix its widely abused third party liability issues, by saying service providers would only need to take down any kind of content with a court order (i.e., no simple "notice and takedown.") This is a very smart move that protects freedom of speech as a key principle, and assures due process before any kind of content (not just for copyright issues) is removed. However, not everyone agrees. Marcelo Thompson, a professor and acting co-director of the Law and Technology Centre at the University of Hong Kong sends in a write-up he did expressing serious concerns about such a policy, worrying that it would make Brazil a hub for service providers, where forms of "victimization," privacy violations and cyberbullying cannot easily be dealt with. He says:

Imagine if all online service providers decide to move to Brazil

While I can see Thompson's basic concern, I'm afraid I don't see how it's justified. The bill does still retain ways to take down that content under a court order. Thus, there is due process in place. Will the process sometimes be abused? Certainly. But that's the price one pays for supporting free expression.

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Filed Under: brazil, liability, notice and takedown, third party

17 Comments

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Anonymous Coward, 1 Jun 2010 @ 9:50pm

"privacy violations and cyberbullying cannot easily be dealt with."

and lets not forget about the cyberwar. Will someone please think of the children?!
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Anonymous Coward, 1 Jun 2010 @ 10:18pm

I'd actually argue that if having strong ISP protections induced ISPs to migrate to a particular country, it would make good sense as a pro-business policy.

But that's pretty nonsensical considering we do need the tubes.
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Jay (profile), 1 Jun 2010 @ 10:55pm

This makes sense
Obviously we can't have it in the US because it's too much fairness on both parties! I mean, really? The courts decide if something is fair use, not the copyright holder? I would love it if this became one of the exceptions in the ACTA. So how long until that piece of dog entrails is passed now?
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Freedom, 1 Jun 2010 @ 11:16pm

Imagine...
Yes, please imagine if all the hosting companies moved their business to Brazil - yes, please imagine that.

Only in a warped mind would someone complain about be the Internet hub for the planet!

Freedom
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Mike's Lapdog, 1 Jun 2010 @ 11:40pm

Thoughts on third party liability
I think Steve Jobs said it best: "My sex life is great. How's yours?"
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Mike's Lapdog, 1 Jun 2010 @ 11:42pm

Thoughts on third party liability
I think Steve Jobs said it best: "My sex life is pretty good. How's yours?"
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Anonymous Coward, 2 Jun 2010 @ 12:03am

"he bill does still retain ways to take down that content under a court order. Thus, there is due process in place." - copyright violation takes a second to do, and can take years of legal horseshit to undo. due process is fine, but there always needs to be an expedient way to stop the infringement until a court can rule. otherwise, the system is to unfairly balanced to the offender, not the owner. it would make brazil into a safe haven for all sorts of abuse.
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- MadderMak (profile), 2 Jun 2010 @ 2:41am
  
  Re:
  just my 2 cents...
  
  But why do they need a more expedient method - once a court is involved to remove the content surely the copyright holder would also prosecute the "infringer" for $$$$$$$$$$$?
  
  Thus they are recompensed for the delay and costs? I am sure if the courts receive a constant stream of these they would expedite or streamline the court process in response.
  
  Also how would it be a haven for "all sorts of abuse"... surely it would only be a haven for ISPs with infringing copyright content hosted by them?
  
  "...years of legal horseshit..." so you agree the system needs to be improved - finally TAM and I agree :)... er that is you TAM?
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- MadderMak (profile), 2 Jun 2010 @ 2:45am
  
  Re:
  Sorry - I also meant to say fair point. But I really think few infringers would actually front up to court (or file response) since they would likely be aware they could face prosecution... most likely a series of default judgements would occur for the illegal content but the "fair use" ones would have the opportinity to create clear case law and examples leading to perhaps less litigation in the future (for those types)?
  
  What are your thoughts on this?
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- Anonymous Coward, 2 Jun 2010 @ 10:32am
  
  Re:
  Allow me to try to educate you about why procedures must exist and be followed.
  
  ***
  
  Murder takes only takes a second to do, and can take years of legal horseshit to...uhm...undo.
  
  I suppose this means the system is biased towards the offender. I mean, it sometimes takes years to send the guy to the chair...why don't we remove that procedure and immediately kill the guy the moment we catch him to correct this bias?
  
  Ok good idea! Now you have a procedure problem: a police officer kills a suspect (with proper use of deadly force).
  
  Should his fellow officers terminate him on spot? Ok good, now you have a recursion problem, since they would also be committing the crime of murder. Cutting the recursion short, the entire population of earth would die (assuming we all followed the same rules).
  
  Now, given this, what would you prefer? Follow the correct procedure or get immediate satisfaction?
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  - Anonymous Coward, 5 Jun 2010 @ 9:54pm
    
    Re:
    You are saying no one should be allowed or, in certain cases, required to prevent murder from... uhm... happening?
    
    Very educational indeed and shows well up to which levels you would take your freedom of expression.
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Marcelo Thompson, 2 Jun 2010 @ 4:26am

Renrou Sousuo Yinqing
Mike -- may I ask what is your timing for due process?

http://nyti.ms/aHw8i8

Daniela Cicarelli's was short. Though she succeeded in the Court of Appeals of Sao Paulo, her video is online for the world to see: http://bit.ly/9KTjIc

It sounds to me there is no reason why OSPs, once made aware of the nature of what they host, should not be required to act as responsible agents of the communicative process.

http://bit.ly/btizt0

On top of that, there is no specific Data Protection Act (or Privacy Act, Privacy Tort ...) in Brazil, and generally very few statutes dealing with networked wrongdoing.

Also, the wording of the proposed Framework renders it extremely unlikely that OSPs will act autonomously and take down content even of the most patently illegal nature. They risk being held liable if they do so, whereas if they don't... they are invulnerable.

The only case where by law OSPs are expressly obliged to take illegal content down in Brazil is Child Porn. For all the rest... good luck to the victims.

Best,
MT
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- AdamR (profile), 2 Jun 2010 @ 9:32am
  
  Re: Renrou Sousuo Yinqing
  Whats with the those hyperlinks?
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- FormerAC (profile), 2 Jun 2010 @ 12:16pm
  
  Re: Renrou Sousuo Yinqing
  "Daniela Cicarelli's was short. Though she succeeded in the Court of Appeals of Sao Paulo, her video is online for the world to see: http://bit.ly/9KTjIc"
  
  Whats your point here? She got caught having sex in public and was unlucky enough to have it filmed. Bad for her, good for me.
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Anonymous Coward, 2 Jun 2010 @ 4:39am

lawyers need redundant and unnecessary laws so that they get paid.
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Cypheros, 2 Jun 2010 @ 7:35am

Free Expression is the Problem...
But that's the price one pays for supporting free expression.
This is the problem. Those who oppose laws like this want a rule of the "superior", or rule of the few. They don't support free expression, or even due process, for the rest of the world. They simply and purely wish to subjugate the rest of humanity under their rule.
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Anonymous Coward, 2 Jun 2010 @ 10:24pm

"It sounds to me there is no reason why OSPs, once made aware of the nature of what they host, should not be required to act as responsible agents of the communicative process."

TRANSLATION.

It sounds to me there is no reason why OSPs, once made aware of the nature of what they host by some authority moral, perceived or real, they should be required to act as agents of censorship for that authority to have the right to be called responsible.
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