Indian Parliamentary Committee Tells The Government To Protect Intermediary Liability

from the good-for-them dept

Fri, Mar 29th 2013 4:04pm — Mike Masnick

Intermediary liability may sound like a boring legal concept but it's both pretty straightforward and important. It's the basic concept of whether or not the maker of a tool or service should be held liable for what someone else does with their product. That is, do we blame Ford for bad drivers? Most people, if they think honestly about this, will recognize that increased secondary liability can create a massive chill on innovation, because as people misuse your product, you get blamed for it. That doesn't seem right, but it means some new technologies don't get developed just because some people might misuse them. But if we look at all of the incredible useful technologies out there that can also be misused at times (cars, phones, the internet, computers, VCRs, etc. etc. etc.) I think most people will admit that we're better off letting these things exist, and dealing with any misuse directly.

Unfortunately, those threatened by such misuses often ramp up the moral panics to crazy levels and it leads to politicians putting liability burdens on intermediaries, meaning that less innovation happens. The Indian government, not too long ago, pushed out some "IT Rules" that seemed to increase intermediary liability and, like clockwork, we saw Indian courts holding service providers liable for actions done by their users. That's pretty dangerous.

Thankfully, however, it looks like there are some reasonable people who are leading India towards a rethinking on this one. A Parliamentary Committee has been studying the matter and "lambasted the government" for these rules and recommended massive changes. The report points to numerous problems with the existing rules, including "ambiguous and over-reaching language" as well as general confusion (even within the government) as to whether or not the rules are mandatory, or merely advisory. Oh, and some of the rules inevitably violate users privacy, because if you're expecting intermediaries to be online cops, you have to expect that some will take advantage of that. Finally, they point out that a big part of the problem is the near total "lack of representation" by the public as this policy was formed.

It's nice to see some significant push-back on bad, short-sighted rules that create chilling effects on innovation.

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Filed Under: copyright, india, intermediate liability, secondary liability

19 Comments

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Nick (profile), 29 Mar 2013 @ 4:24pm

I have never felt like we should blame the makers of a product for the misuse of it by its customers. Especially guns. I think it is just wrong for people to want to sue bushmaster for, say, a guy going on a shooting spree.

We need more of this here.
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Anonymous Coward, 29 Mar 2013 @ 4:57pm

Intermediary liability may sound like a boring legal concept but it's both pretty straightforward and important. It's the basic concept of whether or not the maker of a tool or service should be held liable for what someone else does with their product.

It's not really that at all, as Masnick 'should' know, or does know and just does not want to give an accurate description of it.

It is straightforward and important, but it's more about 'fit for use' and potential danger or risk caused by a product due to it's design. This is, UNDER NORMAL USE the product can cause abnormal damage.

The PINTO, for example, yes people drive into the back of car all the time, it's not the purpose of a car to be hit by another car from behind, but who is liable if your car is hit from behind and it blows up in flames.

That is what "Intermediary liability" means.

They are not liable for someone crashing into the back of a Pinto, but they are liable for designing a product that is able to burst into flames if hit from behind in another car.

Same applies to SUV's that easily roll over, yes the driver may have been going too fast or turning too hard, but they were not responsible for the design of the SUV that was not designed for enough level of margin to ensure that even if their product is misused (either on purpose or by accident) that the product would provide a suitable level safety by design that is expected.

If you produce a product you must also expect a certain degree of misuse, you are responsible for ensuring your product is able to take normal use and reasonable misuse and not itself contribute to that misuse.

You are liable for the design of a car that if hit from behind by another car (reasonable, expected misuse) that the car will not blow up.

You are liable for the design of a car that if it's reasonably misused (cornering too hard) that it will not roll over.

You are liable for the design of a gun that is designed to kill someone that with 'reasonable use, or expected misuse' could kill the shooter or someone else.

A lawnmower with open blades, might work really, really well in cutting grass, but if it also makes it really easy for someone to cut their toes off, or if it shoots out rocks at high speed and blinds someone the manufactures of that mower are liable for that.

Even though the mover is perfectly fit for use, it is the producer of that product who have the Intermediary liability.

whether or not the maker of a tool or service should be held liable for what someone else does with their product

It's not as simple as that Mr Masnick, as you know.

That is an expectation that EVERY product will be used, but the liability is about WHAT THE PRODUCT DOES in response to that use. Not the use itself.

Again, this is a fundamental legal concept, Please Mr Masnick why not display a suitable understanding of it?

A car company is not liable if someone uses that car to kill someone, they are liable if the design of the car is such that if someone is hit by that type of car they have an 80% higher chance of being killed.

A car company is not liable for having another car crash into the back of one of their cars, but they are liable if that impact results in the car blowing up.

A car company is not liable for a SUV having to turn sharply, they are liable for the design of that vehicle if it causes it to roll over during that hard turn.

The car company is not liable for a tyre blowout, but is liable if a blowout results in a full crash and possible death because of the poor design of the product.

they are NOT liable for what someone does with their product. But the ARE liable for what the product does when it is used.

NOT "what someone else does with their product"
BUT IS "what the product does when someone else uses it"
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Anonymous Coward, 29 Mar 2013 @ 5:03pm

this is something else that has been instigated by the USA entertainment industries just as a further instrument in their fight against, not file sharing, but their own reluctance to join the digital age and give customers what they keep asking for. in other words, another way of convincing stupid politicians into believing the bullshit spouted and helping those industries to stop any technological advancements, just as they have done over the last 100 years so as to keep money flowing into their coffers at the expense of everyone else!!
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Anonymous Coward, 29 Mar 2013 @ 5:09pm

Re:
Guns are a different issue, and not really about intermediary liability, guns that are specifically designed to kill people are 'fit for purpose' it's the act of killing people that is seen as use of that "fit for use' product that they are objecting too.

you could charge or seek liability for the death's of people because of the effective design of the gun, the guns expected use is by definition a misuse.

Certainly, no one has talked about holding Boeing liable for 9/11.

Or a company that makes industrial explosives being liable for bombings. But they could be held liable if they did not take sufficient measures that their product could not be easily misused (in the case of explosives) restricting the use of it and requiring licenses and so on.

A car company cannot be held liable if a car runs over someone and kills them, but cars are not built and used for the purpose of killing people.

Planes are not designed and used to fly into buildings.

Guns are designed and used to kill people.

But if the car's brakes fail, and the car runs over someone and kills them, and the brakes failed due to poor design or product fault, the company would then be liable.

I hope that makes that clearer, but this is not about the liability of Gun manufacturers that is really another issue.

It is not an Intermediary liability issue.
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Anonymous Coward, 29 Mar 2013 @ 5:25pm

short-sighted rules that create chilling effects on innovation.

You could just as easily argue the opposite!

That intermediary liability actually promotes innovation, yes the Pinto used to blow up if hit from behind, but that resulted in the development of the fuel bladder that greatly increased safety and advanced innovation.

Knowing that you are responsible for the use and expected misuse of the products you sell ensures that they are designed to an appropriate level of safety and functionality and reliability.

Brakes on cars rarely fail, why ?? because car manufacturers know they are liable if the failure because of faulty design or manufacture or that product.

Same with software, there is a reasonable expectation of use and misuse of say an Operating System that means the design of the software needs to take reasonable measures to mitigate potential use and misuse, they have to design better products, MORE DESIGN, MORE INNOVATION and a better product.

we get better products, more innovation, higher safety, higher security, cars that don't easily blow up, SUV's that don't easily roll over, seat belts, air bags and an endless lists of progress, innovation, safety, security because those innovators know they are responsible and even liable if they don't get it right, or at least to be seen as trying to get it right.
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Anonymous Coward, 29 Mar 2013 @ 5:31pm

Re:
Right, so the USA entertainment industries are working with a Indian Parliamentary Committee, in a fight against "their own reluctance to join the digital age and give customers what they keep asking for".

That's quite a round a bout way of going about it I would have to say :)
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Anonymous Coward, 29 Mar 2013 @ 5:48pm

Re:
Finally started using spellcheck, eh darryl?
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Nick (profile), 29 Mar 2013 @ 6:08pm

Re: Re:
I understand your point, but while guns are designed to kill people, it is still up to the end user who voluntarily purchased the item to use it in a responsible fashion. To use another product... Ornamental swords and various "ninja items". Throughout time they had been used to more easily kill other people, yet you shouldn't blame the sword maker if someone buys it and uses it against people.

Guns come with all kinds of safety measures. By themselves, they cannot injure anyone (fingers caught in the action not counting), and must take an additional step of purchasing another item and loading it into the device. As well, most guns come with safety catches, some with multiple (grip safety, trigger safety, etc) to try to minimize accidents as much as possible.

Not to mention the many MANY warnings in the manual stating to never point a device at another person (which means they intend these devices for other than killing, such as for entertainment at a shooting range or for hunting) whether loaded or not, whether the action is open or not.

I still feel that even devices designed to be hazardous and deadly, if surrounded with enough warnings, instructions, and safety measures, should not cause the maker to be liable. If they were negligent in advertisement ("GUARANTEED NEVER TO MISFIRE!") or instructions, then sure, blame them. But don't do it just to add another name to the inevitable mass party lawsuit that comes from the persons own negligence ("I thought I had blanks in it when I pointed it at my friends face and fired!")
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Anonymous Coward, 30 Mar 2013 @ 2:24am

Re:
The Pinto case is more direct that secondary liability. Car are meant to meet defined safety standards, and meeting them is a direct liability on the manufacturer.
If you hand the keys of your car to someone obviously drunk, you could have secondary liability for any accident thay have. However if they appear to be sober at the time, you have no responsibility if the get drunk latter and have an accident.
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techflaws (profile), 30 Mar 2013 @ 3:25am

Re: Re:
Maybe the next time he'll also figure out paragraphs. I won't hold my breath though.
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Adam Bell, 30 Mar 2013 @ 10:07am

Even a threat of liability stops innovation
Some years ago I was working on a prosthesis for above-knee amputees in a university lab and part of the design required a small diameter ball-screw. We ordered the one we needed but the company, seeing our address, called to ask if the screw would be used in a prosthesis. Admitting that it would, we were told that they were sorry but their lawyers advised against supplying the part because of potential liability if an amputee was hurt. Shortly after that they put a "not for use..." notice in their catalogue. That design was never tested.
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Anonymous Coward, 30 Mar 2013 @ 1:40pm

Re: Re:
I can see that you're desperately trying to make it out as if it's a different issue that intermediary liability even though it's not...
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Anonymous Coward, 30 Mar 2013 @ 1:43pm

Re: Re:
What's 'round a bout' about going to governments and asking for favors? The fact that they refuse to enter the digital age willingly is just the reason they need to ask for favors.
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Anonymous Coward, 30 Mar 2013 @ 1:45pm

Re:
I love how you toss out a bunch of public safety issues as examples when we all know what you're really arguing for, toolmakers who create 'fit for the purpose of piracy' tools being liable, isn't a public safety issue at all.
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Anonymous Coward, 30 Mar 2013 @ 1:50pm

Re:
On the contrary. Even with intermediary liability is working well it chills innovation because that is its function. You pretend as if protecting from liability is 'innovation' even though it isn't. There would be far more experimentation with innovative designs in car if there weren't safety standards to worry about. The thing is we've decided that the public safety concern is worth chilling some of that innovation so cars aren't death traps or a danger to the people around them. That's where the crux of the issue always lies though: is it worth the negative side effects. With public safety issues it often can be. With issues that have nothing to do with public safety or any direct public benefit at all not so much.
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btrussell (profile), 31 Mar 2013 @ 3:39am

Re:
"Brakes on cars rarely fail, why ??"

Because everyone buys from the manufacturer whose brakes aren't failing.
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thuoc giam can, 1 Apr 2013 @ 7:12am

Right, so the USA entertainment industries are working with a Indian Parliamentary Committee, in a fight against "their own reluctance to join the digital age and give customers what they keep asking for".

That's quite a round a bout way of going about it I would have to say :)
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Cerberus (profile), 7 Apr 2013 @ 10:47pm

"Indian Parliamentary Committee Tells The Government To Protect Intermediary Liability": a typo?

I think instead of "protect" Mike means "scrap" or "revise", since "protect" would mean the exact opposite of what the committee is doing.
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cham soc sau sinh, 29 Mar 2014 @ 7:57pm

On the contrary. Even with intermediary liability is working well it chills innovation because that is its function. You pretend as if protecting from liability is 'innovation' even though it isn't. There would be far more experimentation with innovative designs in car if there weren't safety standards to worry about.
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