Law Professor Pens Ridiculous, Nearly Fact-Free, Misleading Attack On The Most Important Law On The Internet

from the stop-this dept

Tue, Nov 3rd 2015 11:36am — Mike Masnick

For the last few years, we've noted a worrying trend of a few law professors, who have decided that the best way to make people nice on the internet is to do away with Section 230 of the CDA. As we've noted repeatedly, Section 230 of the CDA is without a doubt the most important law on the internet. The internet would be a massively different (and worse) place without it. Almost every site or service you use would be very different, and the internet would be a much more bland and sterile place. Section 230 is fairly simple. There are two key elements to it:

People cannot blame service providers for content posted by users.
Service providers who decide to moderate/delete content cannot be held liable for the content they choose not to moderate (or the content they choose to moderate).

The reasoning behind the law should be pretty straightforward. First, you should apply any liability to the person actually doing the speech, rather than the person providing the tool for the speech. We don't blame the phone company when someone makes a threat over the phone. We don't blame the postal service when someone sends mail we don't like. We blame the individuals who actually did the thing.

But, because there are still some people who do terrible things online, a group of people have decided that perhaps the problem is not enough censorship and moderation -- and that yanking away the protection of Section 230 will magically make everyone nice on the internet. This is wrong and ridiculously short sighted. A month ago, we wrote about just such an attack from a minor internet/TV celebrity who clearly just didn't know any better. But now there's a law review article penned by law professor Ann Bartow, and it's a nearly fact-free and clueless attack on Section 230, based on a number of ridiculous to dangerous assumptions.

As if to warn how bad the article will be, it literally starts off with an attack on free speech -- suggesting that we have too much of it, and mocking "First Amendment absolutists" and the US's "unique" view on free speech. It doesn't even begin to acknowledge the results that you get when you take away free speech. From there, she pivots to Section 230, citing Danielle Citron, who has provided inspiration to many other law professors to attack Section 230. Amazingly, Bartow suggests Citron doesn't go far enough:

What she touches on far too briefly are the revenue producing and money saving advantages that Section 230 provides for Internet businesses both big and small. She laments the disgusting websites that profit from hate speech and nonconsensual porn. She expresses less concern about the mercenary corporations that earn billions by hosting, indexing, promoting and advertising these abhorrent websites; huge, “respectable” companies like Yahoo, Google, Facebook, Twitter, Instagram and Microsoft. They launder the proceeds of hate speech, and happily cash the checks.

Arguing that it's all about money is ridiculous. And wrong. We'll get back to that in a second, but let's go on to the next paragraph, where I can say with 100% certainty, that Bartow has no clue what she's talking about:

Anyone hosting a small blog knows that a good flame war or pile on will increase your links and page views, and therefore your advertising income. On a much bigger scale the same incentives apply to the largest ISPs. They create and host platforms designed to attract as much online traffic as possible. They benefit monetarily from popular content that is often hostile and offensive to groups with less power in society, such as sexual minorities, racial minorities, religious minorities, and, as Citron describes in such harrowing detail, to women generally. Under Section 230 the financial incentives for ISPs all fall in favor of ignoring internet harassment. Controversial news reports, gossip blogs and sexy intriguing dating profiles, even when false, generate logons, eyeballs, and browser clicks, all the things that lead to revenue streams. Section 230 enables large ISPs to disclaim any legal or moral responsibility for the harms that online speech can inflict all the way to the bank.

I host a small blog. And Bartow is full of shit here. A "good flame war" does not increase links or page views. It generally involves a very small group of people who just yell at each other and drive most everyone else away. Why do you think so many news sites have been shutting down their comment sections? Furthermore, this shows a lack of understanding of how internet advertising works. Again, a flame war doesn't tend to attract more viewers to an article, it drives many away. It just attracts a small number of participants and those participants don't click on or look at ads. It does not increase ad revenue. This is a confused myth by people who have clearly never managed an ad-supported website.

Furthermore, if your site is nothing but harassment and flame wars, good advertisers stay the hell away. No one wants to be seen advertising on a site that is associated with harassment. And, in addition to that, public pressure has a way of pushing many sites to try to moderate out the worst behavior anyway. Bartow's article seems totally devoid of facts. Based on her description, you wouldn't even know that sites like Reddit and Twitter massively ramped up moderation efforts recently. To some, it's not enough (and to others it's way too much), but Bartow suggests that sites have no reason to do so. Clearly that's not true, because every major website does moderation -- and they have many incentives to do so, from not angering advertisers to general public perception and social pressure.

Bartow's law review article seems to be written in a parallel universe, in which she has no idea how internet sites or internet advertising actually operate.

But, armed with this near total misunderstanding of the internet, Bartow proceeds to suggest an absolutely horrific idea: make CDA 230 more like the DMCA notice-and-takedown process:

Reform must be bolder to have any measurable effect. A more conditional ISP immunity could be framed somewhat along the lines of the Digital Millennium Copyright Act (DMCA). Under the so called “notice and takedown” provisions of the DMCA, when an ISP takes down online information that has been used in a way that a copyright holder alleges was not authorized, it is essentially immune from copyright based liability for distributing infringing materials. If it chooses not to respond to the copyright holder’s demand, however, the ISP may later have to defend its decision not to takedown the disputed material on the merits. Risk aversion usually motivates takedowns. Even now, when victims hold the copyright in photos used to torment them, and ask ISPs to remove them for copyright reasons, ISPs generally remove them with great alacrity to avoid potential liability for copyright infringement. A recalibration of Section 230 immunity could establish a similar framework that creates potential liability when ISPs refuse to assist people whose victimization through online bullying, stalking and harassment they are facilitating and profiting from. Because speech torts are so much harder to prove than intellectual property infringement, takedowns in this realm are less likely to be routine.

This has been suggested before by others, but again, it suggests someone who lives in the world of theory and has no experience with how the internet operates in practice. The DMCA notice-and-takedown process is regularly used as a tool for censorship of content people don't like. Expanding it beyond copyright would just multiply that massively.

Again, as someone who runs a small blog, the number of requests we get from people demanding content be taken down is fairly incredible. It's Tuesday of this week and we've already received requests to take down one story (entirely) and a dozen or so comments on other stories. If we had to follow through on those we'd shut down all comments, and it would take away this entire community. It's not about "making money." It's about not being burdened with constant legal threats and the risk of having to go court because someone is unhappy.

Bartow doesn't think this is a big deal, because she says internet companies can afford it:

The stentorian and self-serving ISP party line is that without Section 230, behemoth online presences like Google, Yahoo, Bing, Facebook, YouTube and Twitter would not exist. Citron appears to accept this argument. But I do not believe it for one second, and you shouldn’t either. If they had to actively respond when their cyber products were actively harming people, just like other companies that make things are usually forced by law to do, their businesses might be less profitable. But they would still be highly profitable. And as long as there is money to be made on the Internet, ISPs will be pursing those dollars.

Yes, perhaps Google, Yahoo, Microsoft (Bing?!?), Facebook and Twitter could afford to deal with it, but they're giant massive companies. Small independent content creators like myself could not. We barely make any money as is. Being liable for others' content would almost certainly force us to shut down.

And that's the real concern that Bartow doesn't seem to acknowledge. The internet is not just those giant companies. It's the fact that anyone can start their own site and have a voice. The people she thinks she's defending -- the marginalized and the harassed -- would be much worse off in the world she thinks she wants. It would turn the internet from an open communications platform that has allowed marginalized groups to speak out, to a broadcast style world, where only the elite had the ability to speak their minds. Perhaps she doesn't mind because she's an elite law professor -- but she should talk to some of the people she thinks she's saving, who have relied on these platforms to make their voices heard.

Bartow claims that she knows sites would still be profitable without Section 230 because these US companies operate outside the US where there is no Section 230. But again, that's a constant risk and more a result of the nature of the internet, rather than anything else. I'm fairly concerned that there are some countries I cannot travel to because of a lack of Section 230 outside the US. The last time I was in Germany I literally had someone accuse me of war crimes because of a comment on Techdirt, and I started counting the hours left until I could get out of the country. Bartow is so sure of herself that she insists she's right despite all the evidence to the contrary.

Section 230 saves ISPs money. That is its real value to them.

No, it protects free speech and enables sites to operate in the first place -- especially smaller internet sites. It's not about "saving money" to me. It's about being able to actually create a forum where people can speak freely. There are tons of other pressures to moderate out the worst of the worst content, and Bartow (again) is simply factually wrong about the "value" of "flame wars" and on how internet advertising works. You'd think that she'd maybe talk to someone who actually has experience in this field before penning such an ignorant law review article, but apparently the Boston University law review doesn't require anything akin to fact checking to publish articles.

From there, Bartow breezily dismisses the fact that execs at Google were found guilty on criminal charges for not taking down a video fast enough, because it was overturned on appeal:

Many multinational ISPs were alarmed when three Google executives were criminally convicted in absentia in Italy for a privacy violation because the company hosted a video in which an autistic child was being bullied. Ultimately, though, the convictions were reversed on appeal, and there is no evidence that a single Internet company stopped doing business in Italy, even though the possibility of future content related arrests remains.

If Bartow really thinks that this has had no impact, then she, again, does not know what she's talking about. Many internet companies are quite fearful of doing business in such countries. We would never open an office there out of fear for the liability. We can operate there from afar because we know we're protected by Section 230 and the SPEECH Act. Again, big companies can afford to fight the liability. Small ones and individual operators cannot.

Finally, Bartow closes with the fact that internet companies are trying to expand in China as a weird sort of "proof" that it's fine for companies to operate under authoritarian regimes that crack down on free speech:

If Section 230 style immunity was critical for any reason other than maximizing profits, no ISP would do business in China, which has a highly censored Internet infrastructure, and actively jails people for criminal speech offenses such as “spreading rumors.” Yet Google is actively trying to expand its presence there. So are Microsoft, Facebook, Linked In, and Twitter just to name a few. All the large Internet companies are operating in China to the maximum extent that the Chinese government will allow, because they can make a lot money there, in spite of the dangers.

When you're pointing to China as your "example" of how it's great to crack down on free speech, you've already lost your argument.

This article is a travesty of ignorance and confusion, culminating in an attack on free speech and the most important law on the internet.

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Filed Under: ann bartow, cda 230, censorship, danielle citron, free speech, immunity, innovation, lawsuits, liability, section 230

89 Comments

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Anonymous Coward, 3 Nov 2015 @ 11:47am

This is what we call an SJW Authoritarian.
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Michael, 3 Nov 2015 @ 11:49am

I literally had someone accuse me of war crimes because of a comment on Techdirt, and I started counting the hours left until I could get out of the country.

Based on many of the recent rulings in Germany, I'm pretty sure you were counting the hours as soon as you got there.
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Violynne (profile), 3 Nov 2015 @ 11:51am

This article is a travesty of ignorance and confusion, culminating in an attack on free speech and the most important law on the internet.
Which means it's going to be treated as fact by the other masses of ignorance.

Perhaps someone should send a copy to Jenny McCarthy to see if she approves.

If so, the internet is screwed.
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TasMot (profile), 3 Nov 2015 @ 11:57am

No Comments Allowed on BULR
Since the author and readers of the Boston University Law Review may not also be readers of TechDirt, I went to their website to post a comment so that they could react to your rebuttal of the author's claims. Funny, no comments allowed. It appears that the Law Review, you know, those lawyer types, don't want to deal with the pesky 1st Amendment problems of dealing with comments. They just want to post random opinions of lawyers, you know the ones that support the laws of the land in court. If they had some experience with comments, maybe they would have their own push back against her very one sided fact free article.
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Anonymous Coward, 3 Nov 2015 @ 12:04pm

"If they had to actively respond when their cyber products were actively harming people, just like other companies that make things are usually forced by law to do, their businesses might be less profitable."

As if the use of the term "cyber products" didn't tell you she was speaking outside of her area of expertise, the fact that she confuses the speech that she finds offensive with the medium used to convey that speech indicates that you shouldn't listen to a word she has to say on the matter. The medium is not, in this case, the message.
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Digitari, 3 Nov 2015 @ 12:08pm

simple answer
...."If they had to actively respond when their cyber products were actively harming people"....

Simple, if you think the internet is harming you, stay the fuck off it, dipshit!! It is not like you can catch a cyber virus......
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NoahVail (profile), 3 Nov 2015 @ 12:12pm

Not just any lawyer...
Ann Bartow is an IP lawyer. http://law.unh.edu/about/personnel/faculty/ann-bartow-bio
Of course she's hostile to free speech.

The whole point of her career field is to control speech so it can be properly monetized. Free speech is completely counter to everything she's ever studied and worked for.

Her bio says she is a Renowned IP Scholar.
She likely views free speech the same way the CIA viewed Communism, or the way the KKK viewed, well, everyone but the KKK.

Free Speech is her primal Boogie Man, the shadow horror in her repressed 4yo brain, the Great Devourer of Intellectual Property.

If Ann Bartow didn't crusade against free speech, she would be less than she is.
She would be us.
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teknosapien, 3 Nov 2015 @ 12:14pm

All this from a lawyer
She seems so focused on the finances of ISP's. Maybe she should look into her own chosen profession
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RTScot, 3 Nov 2015 @ 12:25pm

Looks like she's got a reason to kowtow to the Chinese
and hate 230: (Also, someone should let UNH know how she's discrediting their "top ranked" program)

Ann Bartow, a "highly regarded" intellectual property scholar who was awarded a Fulbright to teach law in China, has been named director of the Franklin Pierce Center for Intellectual Property at the University of New Hampshire School of Law. Currently a professor at Pace Law School, Bartow starts July 1. She also will hold the rank of professor of law.

“Ann Bartow is a well-respected leader in intellectual property law,” said UNH Law Dean Jordan C. Budd. “She brings to UNH Law an impressive portfolio of expertise both from the perspective of a practitioner and a scholar. We are thrilled to have an IP leader of her caliber among our already talented faculty ranks.” Budd also notes Bartow will be a valuable asset for UNH Law’s continuing outreach to prospective law students in China and around the globe.

The powerhouse intellectual property program at UNH Law again was named in the nation’s top 10 in the recently released U.S. News and World Report rankings. It has retained that status for the past 24 years. Alexandra J. Roberts, who has been at the helm of the center as its executive director, will join the law faculty as a tenure-track professor specializing in trademark law.
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Anonymous Coward, 3 Nov 2015 @ 12:25pm

Re: Not just any lawyer...
Given that, I think Mike hit the nail on the head in saying that her ideas would turn the internet into a broadcast medium... And I think she's well aware of it.
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Anonymous Coward, 3 Nov 2015 @ 12:28pm

Re: Looks like she's got a reason to kowtow to the Chinese
... UNH Law again was named in the nation’s top 10 in the recently released U.S. News and World Report rankings. It has retained that status for the past 24 years.
Weird. It's almost like they're proud of it.
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JD, 3 Nov 2015 @ 12:33pm

Author bio
Two things:

1) Apparently she's on the board of EPIC. What is EPIC's stance on Section 230?

2) "All the large Internet companies are operating in China to the maximum extent that the Chinese government will allow, because they can make a lot money there, in spite of the dangers."

From her bio:

"During the 2011-2012 academic year, Professor Bartow was a Fulbright Scholar at Tongji University in Shanghai, China."

So making money in China is evil when Facebook and Google do it, but not her?
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jim, 3 Nov 2015 @ 12:36pm

Re:
Just because, someone's a doctor, mean they know medicine. A lawyer know the law, or a cop be a cop. I have heard of the Chinese, but all I have met speak better English then the English?
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lars626 (profile), 3 Nov 2015 @ 12:43pm

Which law school is Ann Bartow a professor at?
Wherever she is the constitutional law prof. needs to have a serious talk with her.

If she mentioned the school in her bio for the article the school is in for a thumping for allowing her out of her box. Imagine someone like her running around out in the real world.
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Anonymous Coward, 3 Nov 2015 @ 12:44pm

If Section 230 was the whole of the law, it wouldn't exist! It's mere statute making exceptions to common law.
QED. No need to write more.
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bgmcb (profile), 3 Nov 2015 @ 12:47pm

Please add a "Take down requested" to Filed Under:
"It's Tuesday of this week and we've already received requests to take down one story (entirely)"
Because Streisand.
We can guess who sent it.
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Anonymous Coward, 3 Nov 2015 @ 12:49pm

Re: Re: Looks like she's got a reason to kowtow to the Chinese
Well, that comment would almost make sense if I'd left "The powerhouse intellectual property program at" in the quote.
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Nigel, 3 Nov 2015 @ 1:44pm

ughh
I asked her on twitter "who paid you to write this pile of stupid" and was greeted with this about 6 minutes later.

You are blocked from following @profabartow and viewing @profabartow's Tweets. Learn more
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Transmitte, 3 Nov 2015 @ 1:47pm

Great news! We can prevent cavities now! We'll just pull everyone teeth!

That has got to be some of the most mind numbing, stupidest shit I have ever read.
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Anonymous Coward, 3 Nov 2015 @ 1:49pm

Mike Masnick posts fact-free defense of SillyCon Valley leech's most popular business model.
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Anonymous Coward, 3 Nov 2015 @ 1:55pm

Re:
Clown shoes commenter posts fact free rebuttal doing nothing more then personally attacking those who he disagrees with. Must be a day that ends in outdated business model denial.
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Gwiz (profile), 3 Nov 2015 @ 2:08pm

Re:
Mike Masnick posts fact-free defense of SillyCon Valley leech's most popular business model.

Gotta love the irony in that comment.

If Section 230 didn't protect Techidrt from liability you wouldn't be able to express that sentiment here because this comment section wouldn't exist.
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Nigel, 3 Nov 2015 @ 2:38pm

Sorry kids but i seem to have created a ruckus.
https://twitter.com/BruceBoyden
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JD, 3 Nov 2015 @ 2:42pm

My Twitter discussion with her
Wow. Just wow.

In summary her position is that copyright misuse is a successful defense against false takedown notices, and that websites simply won't respond to unnecessary takedown notices because there's no risk to them.

Me: "Large companies may be able to survive in a world where 230 looks more like 1201, but it would strangle smaller websites."

Her: "A revised 230 would not have to map the DMCA, and speech torts have a very different liability threshold."

"Your article explicitly mentions the conditional liability in the DMCA as a potential model for 230 reform, right? How does that "not map to the DMCA"?"

"The procedure could be very different; just informal like the DMCA with some sort of incentive for ISPs to address threats/harassment"

"As an IP professor you should be familiar with the voluminous abuses of 1201 to enable censorship."

"Yes but also the rise of "copyright misuse" to push back. Part of the 1201 problem is the ease with which infringement is found."

"In how many cases in the last 5 years has a finding of (c) misuse punished a copyright holder for filing a false takedown?"

"I am sure you can research this yourself. I know the doctrine can lead to quick resolutions."

"As someone who doesn't have a subscription to Lexis/Nexus or Westlaw, no, I can't. Google searches for terms surrounding copyright misuse yield nothing useful, whereas articles on invalid DMCA takedowns abound."

"You should try something called Google, it is free."

"You should try reading my tweets, which describe using Google to no avail."

"Is it your opinion then that the informal and conditional liability of the DMCA notice-and-takedown does not lead websites to perform blatantly unnecessary takedowns in order to avoid the risk of potential liability?"

"No idea what you are asking or why you care what my opinion is. If a take down is blatantly unnecessary then there is no risk if potential liability."
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Anonymous Coward, 3 Nov 2015 @ 2:49pm

I see someone's already done the background work on this, and found out that the "Professor" is an advocate for the big-money corporate copyright fascists.

But is anyone really surprised by this? It was obvious from the ranting-points what paw was jerking the sock-puppet. Look again. It's all about how rich the internet companies are, and they can afford to take financial responsibility for everything that passes through their servers.

Take her rant, scratch out the pejoratives: "free" (i.e. "hate" speech, "flames", "violent images", "dating sites", and replace with "pirated" (i.e. "shared") "music files"--and you'd have, word for word, the same diatribe that the MPAA/RIAA preach 24 hours a day.

This rent-a-ranter is simply using what she thinks her audience might consider "abhorrent" as a stalking horse for what her masters really want.
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Anonymous Anonymous Coward, 3 Nov 2015 @ 2:56pm

Re: Looks like she's got a reason to kowtow to the Chinese
Isn't that called a circle jerk in some corners?
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Matthew Cline (profile), 3 Nov 2015 @ 3:31pm

Small independent content creators like myself could not. We barely make any money as is. Being liable for others' content would almost certainly force us to shut down.

And that's the real concern that Bartow doesn't seem to acknowledge. The internet is not just those giant companies. It's the fact that anyone can start their own site and have a voice.
I wonder if maybe the people supporting this think independent content creators shutting down would be a small price to pay if it "cleaned up" the giant companies.
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New Mexico Mark, 3 Nov 2015 @ 3:41pm

Drivel
When I read things like this law professor posted, the only thing that comes to mind is the fictitious headline, "World Ends Tomorrow. Women and Minorities Affected Most." Tripe like this is a direct result of an "education" that is mostly indoctrination.
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Matthew Cline (profile), 3 Nov 2015 @ 3:42pm

"copyright misuse"
If "copyright misuse" is such a great way to push back against bogus DMCA requests, why would its use be something that's just recently "rising"? Are the attorneys that defend against DMCA requests that stupid, that just recently it occurred to them to use that tactic?
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Anonymous Coward, 3 Nov 2015 @ 4:32pm

Re: Re:
Or Techdirt would just moderate their comments section, like plenty of people do without "breaking the internet".

Masnick's pleas that busy comments sections don't fuel traffic and that the lifeblood of web 2.0 isn't data mining for advertising purposes is laughable. He knew it was a lie when he wrote it.
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Anonymous Coward, 3 Nov 2015 @ 4:40pm

"The Most Important Law On The Internet"

Rule 34 ?
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Anonymous Coward, 3 Nov 2015 @ 4:41pm

Re: Re: Re:
Have a DMCA vote.
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Anonymous Anonymous Coward, 3 Nov 2015 @ 4:43pm

Re:
Nah, catch 22!
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Anonymous Coward, 3 Nov 2015 @ 4:45pm

Re: Sorry kids but i seem to have created a ruckus.
So... Bartow's not an anomaly. And it's weird how people with an affinity for copyright are the ones most interested in legislating speech that's unrelated to IP issues. It's almost like they're simply obsessed with control. Which, I suppose, is related to IP in that having full control of something, and having laws in place that enforce that control, is functionally equivalent to ownership. If only the big boys can legally afford to operate on the internet, then they own the internet.
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Anonymous Coward, 3 Nov 2015 @ 4:46pm

Re: My Twitter discussion with her
"No idea what you are asking or why you care what my opinion is. If a take down is blatantly unnecessary then there is no risk if potential liability."

Because he's one of those dbags that steals movies and music and is constantly looking for rationalizations for doing so.
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Anonymous Coward, 3 Nov 2015 @ 4:48pm

Did anyone actually read the whole article, and check for a '[/sarc]' at the end?
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Anonymous Coward, 3 Nov 2015 @ 4:49pm

Re: Re: Re: Re:
See folks? Techdirt comes pre-packaged with their own "moderators".
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Anonymous Coward, 3 Nov 2015 @ 5:08pm

Re: Re: Re: Re:
Fool
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ChurchHatesTucker (profile), 3 Nov 2015 @ 5:35pm

Re: Re: Re: Looks like she's got a reason to kowtow to the Chinese
It still works as a critique of USN&WR's rankings.
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Anonymous Coward, 3 Nov 2015 @ 5:37pm

Idiot not professor
This law idiot wants to eliminate the same law that allows them to post their offensive ideas on how laws should be changed.

Yes, I do find it offensive to suggest a third party should be held liable for another's speech.
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cpt kangarooski, 3 Nov 2015 @ 5:53pm

Re: Re: Re:

If Section 230 didn't protect Techidrt from liability you wouldn't be able to express that sentiment here because this comment section wouldn't exist.
Or Techdirt would just moderate their comments section, like plenty of people do without "breaking the internet".

Nope! Without section 230, the safe road is to not allow users to post anything at all; the second best choice is not to edit it at all. The last thing anyone would do would be to moderate comments; that would be a litigation minefield.

Section 230 was enacted in order to encourage ISPs and sites to engage in moderation. Under the pre-CDA rules, the traditional approach for this sort of litigation applied online was that of newspapers and other periodicals, in which anything that appears is the responsibility of the publisher as well as the actual author. Some courts were looking at a model that treated online services more like a piece of equipment; the owner of a xerox machine will not be liable for libelous matter that is copied using the machine, at least provided that the owner doesn't know what's going on.

This led Congress to pass section 230 as part of the Communications Decency Act, which was aimed at encouraging, empowering, and requiring the removal of a lot of smut online. Without it, an ISP that dared to allow user posting would never edit anything since it would guarantee total liability; the CDA was meant to protect ISPs from that liability so that they would feel safe to engage in censorship.

Turns out, much of the CDA was unconstitutional and ISPs are lazy and don't want to spend money censoring things if they can avoid it. So while there were a lot of protests against the CDA (blacking out pages and posting blue ribbon gifs) it turned out to be a massive reversal that has been quite good for free speech online.

tl;dr -- The troll has it completely backwards -- no one would ever moderate comments without the protection of the CDA
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cpt kangarooski, 3 Nov 2015 @ 5:56pm

Re: Re: Sorry kids but i seem to have created a ruckus.
Not all of us. I think that copyright is a genius idea, if totally screwed up in its current implementation. But I'm well aware that it's a form of censorship and must be handled gingerly and must be clearly shown to be more useful for society than it is inherently bad.

Generally though, I favor free speech and have long been flirting with an absolute approach to the First Amendment.
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Anonymous Coward, 3 Nov 2015 @ 5:59pm

Re: Re: Re: Re:
Yes, moderating comments is such a "minefield". uh huh.

tl;dr -- FUD
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Anonymous Coward, 3 Nov 2015 @ 6:36pm

Re: Re: Re: Sorry kids but i seem to have created a ruckus.
I should clarify that I don't think that censorship for the sake of preventing people from saying 'bad & hurtful things' on the internet has even the slightest relationship to their actual goal. The goal is simply to use any method available to make sure that the internet is "owned" by the proper people. They're not upset by what we say, they're upset that we have a forum to say anything at all.

If turning the internet into nothing but goatse meant that they'd gain control, Bartow would be arguing for the proliferation of assholes. As long as they're corporate assholes.
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Anonymous Coward, 3 Nov 2015 @ 6:48pm

Re: Re: Re: Re:
tl;dr -- The troll has it completely backwards -- no one would ever moderate comments without the protection of the CDA

I used to think you were a pretty smart guy, but calling people who express opinions 'trolls'? I think TD has gotten to you, in a bad way.
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That One Guy (profile), 3 Nov 2015 @ 7:09pm

Practice what you preach
So, sites should be liable for user submissions, and given great incentives to remove 'offensive' content, or block it altogether.

Awesome.

I find her stand towards free speech and the internet offensive. According to her logic, it should therefore be removed.

If someone's going to advocate for censorship, they should be the first affected. Maybe once they're on the receiving end of it, they'll change their tune. And if not, at least people don't have to listen to hypocrites.
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cpt kangarooski, 3 Nov 2015 @ 7:31pm

Re: Re: Re: Re: Re:
Yes, moderating comments is such a "minefield". uh huh.

Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 N.Y. Misc. Lexis 229, (N.Y. Sup. Ct. Nassau Co., 1995)

At issue in this case are statements about Plaintiffs made by an unidentified bulletin board user or "poster" on PRODIGY's "Money Talk" computer bulletin board on October 23rd and 25th of 1994. These statements included the following:

(a) STRATTON OAKMONT, INC. ("STRATTON"), a securities investment banking firm, and DANIEL PORUSH, STRATTON'S president, committed criminal and fraudulent acts in connection with the initial public offering of stock of Solomon-Page Ltd.;
(b) the Solomon-Page offering was a "major criminal fraud" and "100% criminal fraud";
(c) PORUSH was "soon to be proven criminal", and,
(d) STRATTON was a "cult of brokers who either lie for a living or get fired."

...

A finding that PRODIGY is a publisher is the first hurdle for Plaintiffs to overcome in pursuit of their defamation claims, because one who repeats or otherwise republishes a libel is subject to liability as if he had originally published it. Cianci v New York Times Pub. Co., 639 F2d. 54, 61; Restatement, Second Torts Section 578 (1977). In contrast, distributors such as book stores and libraries may be libel for defamatory statements of others only if they knew or had reason to know of the defamatory statement at issue. Cubby Inc. v. CompuServe Inc., 776 F. Supp. 135, 139; see also Auvil v CBS 60 Minutes, 800 F. Supp. 928, 932. A distributor, or deliverer of a defamatory material is considered a passive conduit and will not be found liable in the absence of fault. Auvil supra, see also Misu v. Mooney, 124 Misc2d 95 (claims against printer of weekly newspaper containing allegedly libelous articles dismissed in absence of any evidence that printer knew or had reason to know of the allegedly libelous nature of the articles). However, a newspaper, for example, is more than a passive receptacle or conduit for news, comment and advertising. Miami Herald Publishing Co. v Tornillo, 418 US 241, 258. The choice material to go into a newspaper and the decisions made as to the content of the paper constitute the exercise of editorial control and judgment (Id.), and with this editorial control comes increased liability. (See Cubby, supra.) In short, the critical issue to be determined by this Court is whether the foregoing evidence establishes a prima facie case that PRODIGY exercised sufficient editorial control over its computer bulletin boards to render it a publisher with the same responsibilities of a newspaper.

...

First, PRODIGY held itself out to the public and its members as controlling the content of its computer built an boards. Second, PRODIGY implemented this control through its automatic software screening program, and the Guidelines which Board Leaders are required to enforce. By actively utilizing technology and the man power to delete notes from its computer built an boards on the basis of offensiveness and "bad taste", for example, PRODIGY is clearly making decisions as to content (see, Miami Herald Publishing Co. v. Tornillo, supra), and such decisions constitutes editorial control. (Id.) that such control is not complete and in enforced both as early as the notes arrive and as late as a complaint is made, does not minimize or eviscerate the simple fact that PRODIGY has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its built an boards. Based on the forgoing, this Court is compelled to conclude that for the purposes of plaintiffs' claims in this action, PRODIGY is a publisher rather than a distributor.

So yeah, specifically because Prodigy moderated their discussion boards, they were subject to liability for the alleged libel (actually it was true -- Stratton Oakmont was riddled with fraud, and the movie Wolf of Wall Street was about them) whereas if they had refused to moderate at all, they might have escaped liability, as in Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), which the Prodigy court distinguished specifically on the basis of moderation here and no moderation there.

Or you could read the law under discussion, which specifically states that this part of the CDA is intended to encourage moderation by removing the liability of sites that engage in it:

(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Willful obliviousness to easily established facts, failure to research anything, goal of disrupting the site: That's why everyone identifies you as a troll.
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That Anonymous Coward (profile), 3 Nov 2015 @ 7:49pm

Law professor wants to create cottage industry to keep students enrolling in her courses because suing the big names on the internet pays well.
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Anonymous Coward, 3 Nov 2015 @ 8:09pm

Re: Re: Re: Re: Re:
Still trying to get "Most Insightful" comment for the week, I see. It's amusing to see you think this will get you anywhere, but sure.
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Anonymous Coward, 3 Nov 2015 @ 8:11pm

Re: Re: Re: Re: Re:
Not surprising you would consider insults to be insightful.
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Tice with a J (profile), 3 Nov 2015 @ 9:36pm

DMCA Unleashed
Here's the thing about using the DMCA model for anything besides copyright: it would remove all the sanity checks still contained within the DMCA.

As long as the notice-and-takedown system is confined to copyright, anyone wanting to take something down has to connect the targeted information to some specific copyrighted information. This isn't a very good sanity check, hence all the abuses of the DMCA, but it ensures that, at least some of the time, takedowns have to be justified by their connection to some very specific piece of information.

But what if you apply this to true threats? Or libel claims? Or invasions of privacy? Or the nebulous category of "hate speech"? The limit is gone. "Take down this information because it looks too much like that information" has been replaced with "take down this information because it hurts my feelings". The monster has broken free of its last chain, and is now set to devour everything. The new ContentID would have to programmed to destroy all content, just in case.

Of course, that wouldn't really happen. What would happen, after the huge initial surge of takedowns, is that the major players - the ones with money and connection - would have unchecked power to destroy anything they didn't like. Think of the recent showdown between Mother Jones and VanderSloot, but imagine Mother Jones being completely censored during the three years of litigation. Could Mother Jones even survive three years of silence? I think not.

I suspect that this is what Ann Bartow wants. And maybe Arthur Chu wants it, too.
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Omnitech, 4 Nov 2015 @ 1:32am

Nitpick'ish
First time commenter.

While I generally agree with Mike's argument here and Techdirt's positions in general (and am tickled to read about the professor's IP-law background), I think there's something that was missed here when comparing eg the phone company or postal service to internet websites.

While I have many times used similar analogies when discussing free speech matters, neither the telephone company or the postal service's snail mail provide the speaker with an instantaneous, real-time audience of billions of people at the click of a button, and for virtually zero cost at that.

And since so many of these "offensive comments" are sent anonymously, this further exacerbates the problem of agitprop and trolls of various sorts.

I don't worry much about being bombarded daily with paper junkmail from lone-wolf psychopaths admonishing me to DIAF or whatever floats their demented boat-du-jour (much less everyone in my city/state/nation receiving the same junk from the same person at the same time), but this happens every second of the day online. (In fact, so much so that young people today who have grown up online now tend to regard the vast majority of sincere expression online with some combination of snark and suspicion, as they have learned to basically distrust almost everything they read from strangers online)

So the matter of scale makes the internet a sort of megaphone for this sort of behavior, on a very large scale. In short, not only is the audience vastly greater and instantaneous, the "social cost" of being a troll or abusive pest online is very low, so trolling and abusive/threatening speech is rampant.

Which I think partly explains why it tends to lead to different attempts at social control (eg going after the website operator) as the speaker themselves may be difficult to even identify, much less apprehend.

Not that that's an ideal mechanism by any means, but I do think it explains why the issue is not necessarily a simple either/or question that can be directly mapped back to "meatspace".
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Anonymous Coward, 4 Nov 2015 @ 4:00am

antidirt just hates it when due process is enforced.
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Anonymous Coward, 4 Nov 2015 @ 4:15am

Re: Re: My Twitter discussion with her
That the best you got bro?
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Anonymous Coward, 4 Nov 2015 @ 4:42am

Re: UNH Law again was named in the nation’s top 10
Um, no it wasn't.

#1 Yale University
#2Tie Harvard University
#2Tie Stanford University
#4Tie Columbia University
#4Tie University of Chicago
#6 New York University
#7 University of Pennsylvania
#8Tie Duke University
#8Tie University of California—Berkeley
#8Tie University of Virginia
#11 University of Michigan—Ann Arbor
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Anonymous Coward, 4 Nov 2015 @ 4:50am

They want a sterile, proffessional, pre approved internet......screw inovation
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Anonymous Coward, 4 Nov 2015 @ 4:51am

Re:
Screw evolution
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Just Another Anonymous Troll, 4 Nov 2015 @ 5:10am

Re: Re: Re: Re: Re:
We don't auto-report anything we disagree with. I think I've even seen the little lightbulb icon next to one of Antidirt's posts. But if you come here just to throw shit, insult Masnick regardless of whether or not he is the author, and set up strawmen everywhere, you are a troll, your comments will be reported, and you will be mocked.
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Tommy, 4 Nov 2015 @ 5:33am

Re:
From her bio:

"Her scholarship focuses on the intersection between intellectual property laws and public policy concerns, privacy and technology law, and feminist legal theory, and she has published numerous articles and book chapters on these subjects."

Quelle surprise.
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Just Another Anonymous Troll, 4 Nov 2015 @ 6:01am

The last time I was in Germany I literally had someone accuse me of war crimes because of a comment on Techdirt,
I am insanely curious as to what that comment was. Please share.
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Wendy Cockcroft, 4 Nov 2015 @ 6:03am

Re:
Is it too late to introduce the term "Political protectionist?" That's what I call people like her. They think they're flippin' Boudicca taking on the bad guys but the truth is they're just shouty harpies trying to Make 'Them' Behave.
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Wendy Cockcroft, 4 Nov 2015 @ 6:05am

Re: Re: Not just any lawyer...
What she actually wants is a giant echo chamber.
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Wendy Cockcroft, 4 Nov 2015 @ 6:05am

Re: Please add a "Take down requested" to Filed Under:
Mike, I hope you told them to get bent.
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Ed (profile), 4 Nov 2015 @ 6:13am

Re:
I prefer to just call people like her "cunt".
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Tommy, 4 Nov 2015 @ 6:38am

Re: Not just any lawyer...
Not only that...

"Her scholarship focuses on the intersection between intellectual property laws and public policy concerns, privacy and technology law, and feminist legal theory, and she has published numerous articles and book chapters on these subjects."

Yikes.
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Mike Masnick (profile), 4 Nov 2015 @ 7:03am

Re:
I'd have to dig up the exact comment, but it was on some story about Germany and copyright law (perhaps GEMA) and someone had made a silly comment pointing out that you had to expect that kind of thing from Germany with a reference to WWII/Nazis. It was a pure Godwin's Law kind of thing, and while it was written in a childish manner, I have no idea how this person thought it was a war crime. But he was adamant that under German law *I* was responsible for it. It was a fairly uncomfortable moment.
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Anonymous Coward, 4 Nov 2015 @ 8:50am

Re:
They wouldn't even really have to be "cleaned up". Marketing is very rarely controversial or in "need" of being censored, and once the little guys are gone, the internet will be nothing but an advertising medium.
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Anonymous Coward, 4 Nov 2015 @ 9:21am

If there isn't harrassment on the internet, then it's not the internet; it's a place where freedom doesn't exist.
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383bigblock (profile), 4 Nov 2015 @ 9:57am

The new world order
Imagine the world in which Ann Barstow lives, we could create an entire cottage industry of angry Astro Turfers making negative comments on every communication that they want taken down by utilizing the bastardized DMCA process.

I think Ann and a whole lot of others need to re-read the constitution because no-where anywhere does it say you have the right to not be offended....... Life, Liberty and the pursuit of happiness maybe....... but being offended that's going to happen no matter what glass bubble you live in.
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btr1701 (profile), 4 Nov 2015 @ 10:31am

Harassment
> Furthermore, if your site is nothing but harassment and
> flame wars, good advertisers stay the hell away. No one
> wants to be seen advertising on a site that is associated > with harassment.

The problem is that more and more, "harassment" is being ridiculously defined as "you disagreed with me", or "you challenged my ideas", or "you proved me wrong".

Basically, these social justice warriors want the ability to sling as much shit as they like for their cause, then claim they're being harassed by anyone who fights back or challenges them in any way.
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btr1701 (profile), 4 Nov 2015 @ 10:36am

Shut down
> Being liable for others' content would almost certainly
> force us to shut down. And that's the real concern that
> Bartow doesn't seem to acknowledge.

Sure, she does. It's what she and other like her *want*. They want to be able to shut you down for hurting their feelz. They won't come out and say so directly, but that's their holy grail-- the ability to wipe out any contrary opinions or speech. They're right and they know it, and so you shouldn't be allowed to contradict them.
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Robert Beckman (profile), 4 Nov 2015 @ 10:39am

The Professor is right
The Professor is right, 4chan couldn't exist without section 230, which I assume is her entire point.

On the other hand, who spends so much time on 4chan that they think that's all the internet is....?
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Anonymous Coward, 4 Nov 2015 @ 11:40am

"This article is a travesty of ignorance and confusion, culminating in an attack on free speech and the most important law on the internet."

She don't care. She got paid well for the attack.

And it will now be used by the USG and others to do exactly that - end free speech - soon to be labeled as "radicalization" - on the internet.

The Five Eyes never sleeps.

War On, Suckers

---
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Niall (profile), 4 Nov 2015 @ 1:16pm

Re:
This looks like the rare example of the right-wing feminist. Scary. Even Phyllis Schafley makes more sense!
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DRL, 4 Nov 2015 @ 2:00pm

Re: No Comments Allowed on BULR
Of course there isn't a place for comments. Boston University Law Review is an academic journal, not a blog. With few exceptions, academic journals accommodate comments thorough subsequent papers, not open comments. It's a feature inherited from the print world.
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DRL, 4 Nov 2015 @ 2:02pm

Re: Not just any lawyer...
In the world of IP law, Ann Bartow has performed admirably on the side of the good. She is the furthest thing from a copyright maximalist.
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Derek Kerton (profile), 4 Nov 2015 @ 3:57pm

Re: ughh
The suspense is killing me...what did you learn when you clicked "learn more".
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nasch (profile), 4 Nov 2015 @ 4:54pm

Re: Re: Re: Re: Re:

I used to think you were a pretty smart guy, but calling people who express opinions 'trolls'?

Reposted from above: "Willful obliviousness to easily established facts, failure to research anything, goal of disrupting the site: That's why everyone identifies you as a troll." Not because he (you?) expressed an opinion.
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Marc John Randazza (profile), 4 Nov 2015 @ 7:06pm

Re: Not just any lawyer...
she is not an IP lawyer. she's a fucking idiot who managed to get hired as an IP "professor." Find me one IP case she has ever worked on. I'll wait....
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cpt kangarooski, 4 Nov 2015 @ 10:56pm

Re: Re: Not just any lawyer...
Based on some casual reading of her published work, I would agree.

She is against the majority opinion in Eldred, she is against the majority opinion in Harper & Row v. Nation, and has written in favor of copyright reform so as to have the law better comply with how people actually behave.

Of course, her admirable positions on copyright don't excuse her lousy positions on free speech, but half a loaf is better than none.
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Anonymous Coward, 4 Nov 2015 @ 11:13pm

Re:
antidirt just loathes it when due process is enforced.
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Emelio Lizardo, 5 Nov 2015 @ 4:03am

Feminists (gender Marxists) in action. They'd love to have this tool to shut up critics.
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Anonymous Coward, 5 Nov 2015 @ 6:20am

Re: Re:
Where are you going with this? I'm lost.
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Anonymous Coward, 5 Nov 2015 @ 8:50am

Re: Drivel
The only indoctrination that the author of this drivel has yielded to is that of corporatism. Other than her own shameless and transparent attempt to promote herself as an advocate for minority groups (despite that her chosen specialty, previous "accolades", and the actual thrust of the paper clearly mark her as a corporate mouthpiece), where do you find the connection you are claiming.? Maybe the headline should read, "World Ends! Corporations suffering truly heartrending! Real people may have also experienced some discomfort."
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anon, 5 Nov 2015 @ 5:18pm

TL:DR
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bugmenot (profile), 5 Nov 2015 @ 5:32pm

For those who think it so idiotic to hold platforms of search engines liable for other peoples' speech: those same companies also argue that third-party speech is their (the company's) speech, at least when the government comes in to regulate them.

section 230 is premised on the idea that it isn't their speech; First Amendment arguments are premised on the fact that it is.

http://www.dmlp.org/blog/2014/baidus-political-censorship-protected-first-amendment-raises-broader-i ssues
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Seb_Bluetooth (profile), 7 Nov 2015 @ 10:00am

The Bigger Concern..
A free internet is a significant threat to many....large corporations, politicians, some lawyers with special interests. Just like special interest groups formulated sneaky long term strategies to occupy governments and overthrow laws for LGBT, government freedom from religion, etc, I'd be watching for the same thing happening to internet freedom. This could be one opening salvo in that attempt.
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Anonymous Coward, 7 Nov 2015 @ 2:17pm

https://twitter.com/profabartow/status/661658821014781952

Did she seriously suggest somehow Nigel_Lew and/or TechDirt must be sexist for criticizing her because he didn't criticize a man with the same opinion? How could she possibly assume he never criticized McGeveran, or that he was even aware of his piece from a few days prior?
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Anonymous Coward, 7 Nov 2015 @ 2:26pm

Re: Sorry kids but i seem to have created a ruckus.
Boyden implying that people being mean on the Internet gets monetized sounds reminiscent Bartow herself wrote:

Ann Bartow, Internet Defamation as Profit Center: The Monetization of Online Harassment, 32 Harv. J. L. & Gender 383 (2009)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1447472

Which frames it as being monetized via the commercial white knight services that 'protect' people, like some kind of Repairer of Reputations.

And, funnily enough, it actually mentions the danger of 'protecting women from internet misogyny' being a smokescreen for bad actors to censor the Internet right in the abstract. Can 2015 Bartow maybe listen to 2009 Bartow?
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