Well, Mike, you're good at WHAT again? Getting awards in public with gender bending traitors?
What the f*ck are you talking about?
How old is this web site?
Who cares?
How many comments are from either you posing as someone else or your close "insider" friends?
None. The “insider” just means they paid money to get that tag and some other bonuses. They don’t have any stronger connection to Mike or anyone else who actually runs Techdirt than anyone else here.
Parler, baby, they're good at it. Dan has over 1M followers. Think about that.
Again, who cares?
You have ... Stephen, That one Guy, the lesbian separatist, Chad and Uriel-238?
Among a number of others, myself included. And what “lesbian separatist” are you referring to, anyways? Also, yet again, what does it matter? That’s the classic argument-from-popularity fallacy.
I like Koby. His writing is better than yours.
Eh, his writing’s fine, I guess, but his arguments could use a lot of work.
Why can’t the corporation say, “I won’t remove this, but I don’t support it”? That’s their First Amendment right to free speech. If they want to “risk[] their credibility”, then let them. Why do you care?
Re: Re: Re: Re: Re: Grabbing a library before they burn Alexandr
None of us care. This isn’t a place to spout patriotic-sounding stuff or pro-Trump propaganda. This is a place to share thoughts and opinions on the article above, which in this case is about copyright, libraries, and the Internet Archives. It has nothing to do with Trump or Mt. Rushmore.
I’d also like to point out (separately) that even if gray areas may exist, that doesn’t necessarily mean that CDA §230 is a bad law or anything. The existence of a few edge cases (especially ones that are extremely rare or currently nonexistent) isn’t always an immediate disqualifier. It might mean some refinement is necessary, but that’s what the courts are for. They can help fill in the blanks.
So far, barring a couple of exceptions where physical goods were involved, I haven’t seen any non-overruled case where the courts have ruled wrongly IMO about whether or not a given publisher was acting as the provider of an ICS, and the only potentially gray areas I can think of that I don’t know or think have ever even come up in courts are letters to the editor for an online-only publication and where an otherwise typical ICS requires users to give the ICS provider an exclusive license to their content or give up their copyright/trademark rights to the ICS provider entirely, but the latter has never even happened to the best of my knowledge, while the former seems to be widely assumed to fall outside of §230 and is covered by the unofficial rule of thumb I presented where it’s third-party content iff the default decision is to publish before having human employees/paid contractors try to filter anything undesired out.
Basically, I don’t see any real issues with the current laws regarding this outside of a very select few cases that I feel were wrongly decided by the courts to deny §230 protections where I feel they should have applied.
No, they have not. Both of the original writers have recently said that their opinions on the matter have not changed. They have not “changed their opinion[s on this] with the time[s]”. They stand by it even today. That your opinions have changed over time and/or you think their opinions are or should be outdated is irrelevant. Neither of them have changed their minds.
They do exist, again see SE. Screening is done for all new users' posts. But it's outsourced to other high rep users.
Uhhh, that’s not SE doing the screening but the users. In other words, users (even if it’s just a segment of them) get to see the content soon after it gets submitted for publication without humans at SE doing anything. That’s very different from a “letter to the editor” being published by a traditional publisher or a traditional publisher deciding whether or not to publish a book/magazine or something, which is done by paid employees and where a lot of content gets rejected for reasons besides being objectionable (namely, it won’t sell enough to pay for the publication costs).
I also said that that particular “definition” of ICS (that ICSs publish by default while traditional publishers don’t) is just a rule of thumb that holds true more often than not. Another question is whether, if manual screening is done beforehand by the publisher (or its paid employees), the publisher/employee(s) ever make substantive changes or revisions to content after submission but before publication.
The HuffPost of old would be another example.
And what did “[t]he HuffPost of old” do? If it’s similar to or the same as what SE does, then my answer is the same here. Otherwise, what about it would place it in a gray area for §230.
That's not the issue here; it's the retroactive re-licensing of user-generated content. Users agree that their content posted at the ICS will be under license X. ICS decides later that they put the accumulated user-generated content under a different license Y.
So does SE think their users are some kind of unpaid employees? Interns?
No. When an employee/intern has their content published by their employer, the employer gets any legal rights to that content (with a possible license given to the human author(s)) or (possibly but fairly rarely) an exclusive license to publish that content. (The former because it’s a work-for-hire.) Either way, the ability of the original author(s) of the content to use the content they themselves created is restricted somehow.
On SE and other ICSs, on the other hand, the publisher gets a nonexclusive license to use and publish the content under conditions specified by the license. There are no restrictions on the author’s (in this case, the user’s) ability to use or publish the content they submitted. It basically means that the author cannot sue the service provider/publisher for making use of the content as long as that use is consistent with the license agreement, but the author doesn’t give up anything else that they otherwise would have had if they self-published.
If the terms of a nonexclusive license changes, even retroactively, the licensor still owns all the rights associated with copyright or trademark; the only change is with what the licensee can do.
But what if they were even more arrogant and retroactively changed it to a more restrictive license, maybe even exclusive?
Okay, a few things to unpack here.
First, as stated earlier, a nonexclusive license to content cannot restrict the licensor (in this case the user) at all. It can only specify the terms under which the licensee (in this case the ICS) can use the licensed content. That’s it.
As for changing to an exclusive license, that changes things dramatically. See, a license, like all contracts, require some sort of consideration (give and take) to be held valid. When someone is simply granting permission to the other party, as in a nonexclusive license to the first party’s content, you don’t really need much consideration for it to be valid. Nonexclusive licenses are generally presumptively valid, even if they’re clickwrap; in this case, the consideration is that the licensor (user) gets a nonexclusive license to make use of the other party’s platform (technically it’s the other way around, but whatever). For a retroactive license, the consideration would essentially be continued use of the platform and such.
However, an exclusive license changes the math considerably. In that case, the licensor is actually giving up rights that they would have had. More balanced/formal negotiations and more consideration from the licensee is generally required for such a license to be held valid. I’m fairly sure that retroactively changing the license from nonexclusive to exclusive like that would be held invalid in court. I honestly don’t know if a clickwrap contract granting the service provider/ICS an exclusive license to the users’ content would even be held valid in court to begin with, but a retroactive exclusive license would almost certainly not be.
But let’s say SE did it anyways and it somehow held up in court (highly unlikely as it may be). In that case, it might be more of a gray area in my opinion about how §230 would apply (if at all) to exclusively licensed content, or it may mean that it’s clearly not protected by §230. However, I’m unwilling to speculate on that without any real-world examples of it actually happening, and I think that the legality of such a thing is so questionable that I doubt that it’d ultimately matter anyways.
A traditional publisher doesn't give himself (or imagine) a right to just change the negotiated license.
Well, yeah, but that’s the thing: this wasn’t a negotiated license to begin with. It was a take-it-or-leave-it license. And frankly, whether or not the ICS provider maintains the right to make changes to the license unilaterally is more of a question of whether the changes are legally binding retroactively or not than whether or not a publisher is a provider of an ICS or not.
Basically, what you’re discussing doesn’t really change the §230 calculus at all. It’s more of an issue as to whether or not a publisher (traditional or not, ICS provider or not) and legally make unilateral changes to a license/contract like that and, if so, whether or not those changes would be held binding retroactively. It doesn’t really change whether or not the publisher is providing an ICS, whether or not certain content is third-party content, whether or not certain actions are considered moderation of third-party content they find objectionable, whether or not certain actions are providing users the ability to moderate content, or anything else regarding §230 definitions or protections.
Really, the license doesn’t have all that much to do with §230 at all.
if we accept that "otherwise objectionable" has been interpreted by courts as "anything the ICS doesn't like". Which probably was not the original intention behind that wording. Lawmakers have usually no qualms to write something like "as they see fit" into laws).
Actually, the original authors have explicitly said that that’s what they meant and that the law is working as they originally intended.
But again, it's just tautologically true, because you've already stipulated that they qualify an ICS (for whatever reason. Your imagined definition is nowhere to be found in this much cited section 230 - you'd have to look up court rulings to find more precise definitions. Too bad they vary).
Actually, they don’t. Do they publish content provided by others using a computer to be viewed on a computer? Do they allow users to interact with a computer program to create/publish their own content? Then it’s an ICS. No court has ruled otherwise and not been overturned on appeal (unless the parties settled before any appeal was filed). They may not use the same words, but they are entirely consistent with each other with, like, two exceptions once physical goods get involved.
ICS often mandate certain licenses for their users' posts, and in a stronger way than traditional publishers did. Hairy issue. The Stackexchange network even mandated a retroactive re-licensing of old posts.
Again, no. The mandated licenses with ICSs are generally only nonexclusive licenses for the ICS to use the user’s content. In the case of traditional publishers, it’s often an exclusive license if not outright selling rights to the publisher with the author keeping a license.
In that particular case, the association of the content and "ICS" can't get any more stronger.
Did the ICS create the content themselves or pay someone else to produce that specific content? Are they claiming authorship? If not, then the association isn’t all that strong IMO.
Still, one remark: some of those presumed "Interactive Computer Service" do (for new users) selecting before an automatic publication. Or allow only a very short time frame till some checking by humans is done.
I did say that that particular distinction was only a rule of thumb. At any rate, note that I said the default decision is to publish in general for an ICS. Also, unless you have a specific example, I don’t have anything to add.
If you think that's a conceptually clear-cut distinction, you're far more forgiving than me.
I’ve yet to encounter much in the way of actual instances where the issue was not clear. I’m not terribly concerned with hypotheticals that don’t actually exist.
You're also damn close to a profound insight with your "create their own content" point.
Merely owning a nonexclusive license to all user content and publishing that content doesn’t mean you created it, so I don’t see what you’re talking about.
It's like Disney owning the copyright of the content a Disney employee (finally a natural person!) producers - but unlike Disney they're not responsible for it.
That’s not at all the same. That’s a work-for-hire, meaning that the Disney employee has no rights over the content and Disney is legally the copyright owner of the content. In fact, in that scenario, the employee isn’t even legally a third party. ICSs just have a license to publish it, and it’s all automatic. That’s completely different.
Look, I don’t think you get this. You haven’t provided any real-life instances that are actually a gray area or anything. It’s all clear-cut to me. I’m not great at explaining myself, though, so maybe that’s the problem. Or maybe we have some fundamental disagreement here.
Part of the issue is the question of the First Amendment, which also divides along many of the same lines as CDA §230.
I take exception to being called an anti-vaxxer. Did you miss the fact that the article with the most comments on it was about vaccines, where many of us argued with an anti-vaxxer on the issue?
I explained that, too. Basically, does it involve a computer, and does it involve the software interacting with users (as opposed to more one-way communication)? If so, then it’s an ICS/ISP. Is that broad? Yes, but it was supposed to be according to the original authors.
I often use the basic query of what the default decision for publishing third-party content in general is. If the default is to publish, then it’s probably an ICS/ISP. If not, then it probably isn’t. It’s a good rule-of-thumb.
And BTW, online newspapers are protected from liability for content provided by users, too, if they accept comments. The difference between that and letters to the editor is that the latter are picked by humans to publish specifically.
The point is that the relevant question is really more of the role of the publisher with respect to the specific content-at-issue rather than their role in general. And while there may be certain programs that fall in a gray area between ICSs/ISPs and traditional publishers (including online newspapers with comments like this one), it is fairly clear-cut with respect to particular content.
More importantly, I’m more curious about what you have in mind as a (potentially) gray area. Aside from some decisions by lower courts about services like Amazon with regards to physical goods provided online by third parties, there hasn’t been any nonoverturned case law that I disagree with or think may be a gray area with regards to whether the defendant was acting as an ISP/ICS with regards to specific content in a way relevant to whether §230 immunity applies.
If you want a more particular definition, all I can say is read §230 and the relevant case law. Its definition is pretty clear-cut as far as I can tell.
For the record, what is considered “obscene” is itself extremely limited. Swearing and adult porn are still protected by the First Amendment in general.
Again, your premise is flawed. There is a ton of overlap between “interactive computer service” and “publisher” / “speaker”. Basically, §230 covers any content in the overlap between “interactive computer service” and “publisher” outside of “speaker”/“content creator” (except for sex trafficking, IP, and federal crimes). There is no “dividing line” here.
Furthermore, that wasn’t the distinction discussed here. It was the difference between “moderation” and “content curation”. You argued that there had to be a difference and that “content curation” would be outside what an ICS/ISP would do, but asked how we could say that the distinction is clear. Toom said there is no such distinction (or if there is, it’s a distinction without a relevant difference) and that “curation” doesn’t make an ICS/ISP liable for any content on their platform at all or for the curation itself. That is, you’re asking for a clear dividing line between two things that are not actually different from each other. Again, your premises are flawed.
As for Gawker, their actions there did not make them an ICS/ISP or a user of an ICS/ISP, making §230 inapplicable.
So here are the relevant distinctions/definitions: an ICS or ISP (interactive service provider) publishes any third-party content given to them by default, with any decisions to remove or not publish something being done after publication or using an automated algorithm to filter out certain things (like spam) (the default choice is to publish); a content creator/author/speaker is one who—as the name suggests—actively makes or materially modifies content (not just shortening, editing for mistakes, quoting, or republishing it somewhere else, especially if it’s done automatically without human input) or (arguably) who actively selects which content to publish beforehand (the default choice is not to publish); a publisher is simply anyone who outputs contents made by someone to the larger public.
The distinction between what content is published as an ICS/ISP versus what content is published as a content creator/author/speaker is clear-cut (at least in the vast majority of cases), as is whether or not someone is an ICS/ISP versus a traditional publisher. There is also a clear-cut distinction between moderation and what traditional publishers do. However, there is no distinction between an ICS/ISP and publishers in general, nor is there a relevant distinction between curation and moderation. None of us claimed that the latter two distinctions exist or are relevant to §230 at all.
It’s also worth noting that the authors of §230 stand by it as it is applied in the modern day. What you see today is exactly the sort of thing that §230 was intended to do, and the original supporters stand by it even today. So no, the times haven’t changed in such a way to make §230 have unintended consequences or become outdated (aside from excluding IP perhaps). The lines are no more blurred now than they were before.
What I am trying to say is that firing people when you "catch" them "showing that they are unfit for their position", if your bar for firing people starts as low as hearing racist rants among themselves, is extremely expensive.
I disagree. More importantly, I’d be willing to pay more in taxes to offset any costs in ensuring that we don’t have such racist cops.
There are limits to how much monetary costs can be imposed in a court-ordered civil sanction, as noted in the order itself. Even criminal sanctions are limited, and those are very, very rarely imposed on lawyers. They also require a number of additional procedural hoops before due process is satisfied, including a trial by jury.
On the post: Facebook Follows Twitter In Recognizing A 'More Speech' Approach Is Best For Newsworthy Liars
Re: Re: Re: Very Workable
What the f*ck are you talking about?
Who cares?
None. The “insider” just means they paid money to get that tag and some other bonuses. They don’t have any stronger connection to Mike or anyone else who actually runs Techdirt than anyone else here.
Again, who cares?
Among a number of others, myself included. And what “lesbian separatist” are you referring to, anyways? Also, yet again, what does it matter? That’s the classic argument-from-popularity fallacy.
Eh, his writing’s fine, I guess, but his arguments could use a lot of work.
On the post: Facebook Follows Twitter In Recognizing A 'More Speech' Approach Is Best For Newsworthy Liars
Re: Very Workable
Why can’t the corporation say, “I won’t remove this, but I don’t support it”? That’s their First Amendment right to free speech. If they want to “risk[] their credibility”, then let them. Why do you care?
On the post: Research Libraries Tell Publishers To Drop Their Awful Lawsuit Against The Internet Archive
Re: That's Amazing!
Irrelevant. Stay on the topic at hand.
On the post: Research Libraries Tell Publishers To Drop Their Awful Lawsuit Against The Internet Archive
Re: Re: Re: Re: Re: Grabbing a library before they burn Alexandr
None of us care. This isn’t a place to spout patriotic-sounding stuff or pro-Trump propaganda. This is a place to share thoughts and opinions on the article above, which in this case is about copyright, libraries, and the Internet Archives. It has nothing to do with Trump or Mt. Rushmore.
On the post: Research Libraries Tell Publishers To Drop Their Awful Lawsuit Against The Internet Archive
Re: Re: Re: Re: Re: Re: Grabbing a library before they burn Alex
Please stay on topic.
On the post: As Predicted: Parler Is Banning Users It Doesn't Like
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I’d also like to point out (separately) that even if gray areas may exist, that doesn’t necessarily mean that CDA §230 is a bad law or anything. The existence of a few edge cases (especially ones that are extremely rare or currently nonexistent) isn’t always an immediate disqualifier. It might mean some refinement is necessary, but that’s what the courts are for. They can help fill in the blanks.
So far, barring a couple of exceptions where physical goods were involved, I haven’t seen any non-overruled case where the courts have ruled wrongly IMO about whether or not a given publisher was acting as the provider of an ICS, and the only potentially gray areas I can think of that I don’t know or think have ever even come up in courts are letters to the editor for an online-only publication and where an otherwise typical ICS requires users to give the ICS provider an exclusive license to their content or give up their copyright/trademark rights to the ICS provider entirely, but the latter has never even happened to the best of my knowledge, while the former seems to be widely assumed to fall outside of §230 and is covered by the unofficial rule of thumb I presented where it’s third-party content iff the default decision is to publish before having human employees/paid contractors try to filter anything undesired out.
Basically, I don’t see any real issues with the current laws regarding this outside of a very select few cases that I feel were wrongly decided by the courts to deny §230 protections where I feel they should have applied.
On the post: As Predicted: Parler Is Banning Users It Doesn't Like
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
No, they have not. Both of the original writers have recently said that their opinions on the matter have not changed. They have not “changed their opinion[s on this] with the time[s]”. They stand by it even today. That your opinions have changed over time and/or you think their opinions are or should be outdated is irrelevant. Neither of them have changed their minds.
Uhhh, that’s not SE doing the screening but the users. In other words, users (even if it’s just a segment of them) get to see the content soon after it gets submitted for publication without humans at SE doing anything. That’s very different from a “letter to the editor” being published by a traditional publisher or a traditional publisher deciding whether or not to publish a book/magazine or something, which is done by paid employees and where a lot of content gets rejected for reasons besides being objectionable (namely, it won’t sell enough to pay for the publication costs).
I also said that that particular “definition” of ICS (that ICSs publish by default while traditional publishers don’t) is just a rule of thumb that holds true more often than not. Another question is whether, if manual screening is done beforehand by the publisher (or its paid employees), the publisher/employee(s) ever make substantive changes or revisions to content after submission but before publication.
And what did “[t]he HuffPost of old” do? If it’s similar to or the same as what SE does, then my answer is the same here. Otherwise, what about it would place it in a gray area for §230.
No. When an employee/intern has their content published by their employer, the employer gets any legal rights to that content (with a possible license given to the human author(s)) or (possibly but fairly rarely) an exclusive license to publish that content. (The former because it’s a work-for-hire.) Either way, the ability of the original author(s) of the content to use the content they themselves created is restricted somehow.
On SE and other ICSs, on the other hand, the publisher gets a nonexclusive license to use and publish the content under conditions specified by the license. There are no restrictions on the author’s (in this case, the user’s) ability to use or publish the content they submitted. It basically means that the author cannot sue the service provider/publisher for making use of the content as long as that use is consistent with the license agreement, but the author doesn’t give up anything else that they otherwise would have had if they self-published.
If the terms of a nonexclusive license changes, even retroactively, the licensor still owns all the rights associated with copyright or trademark; the only change is with what the licensee can do.
Okay, a few things to unpack here.
First, as stated earlier, a nonexclusive license to content cannot restrict the licensor (in this case the user) at all. It can only specify the terms under which the licensee (in this case the ICS) can use the licensed content. That’s it.
As for changing to an exclusive license, that changes things dramatically. See, a license, like all contracts, require some sort of consideration (give and take) to be held valid. When someone is simply granting permission to the other party, as in a nonexclusive license to the first party’s content, you don’t really need much consideration for it to be valid. Nonexclusive licenses are generally presumptively valid, even if they’re clickwrap; in this case, the consideration is that the licensor (user) gets a nonexclusive license to make use of the other party’s platform (technically it’s the other way around, but whatever). For a retroactive license, the consideration would essentially be continued use of the platform and such.
However, an exclusive license changes the math considerably. In that case, the licensor is actually giving up rights that they would have had. More balanced/formal negotiations and more consideration from the licensee is generally required for such a license to be held valid. I’m fairly sure that retroactively changing the license from nonexclusive to exclusive like that would be held invalid in court. I honestly don’t know if a clickwrap contract granting the service provider/ICS an exclusive license to the users’ content would even be held valid in court to begin with, but a retroactive exclusive license would almost certainly not be.
But let’s say SE did it anyways and it somehow held up in court (highly unlikely as it may be). In that case, it might be more of a gray area in my opinion about how §230 would apply (if at all) to exclusively licensed content, or it may mean that it’s clearly not protected by §230. However, I’m unwilling to speculate on that without any real-world examples of it actually happening, and I think that the legality of such a thing is so questionable that I doubt that it’d ultimately matter anyways.
Well, yeah, but that’s the thing: this wasn’t a negotiated license to begin with. It was a take-it-or-leave-it license. And frankly, whether or not the ICS provider maintains the right to make changes to the license unilaterally is more of a question of whether the changes are legally binding retroactively or not than whether or not a publisher is a provider of an ICS or not.
Basically, what you’re discussing doesn’t really change the §230 calculus at all. It’s more of an issue as to whether or not a publisher (traditional or not, ICS provider or not) and legally make unilateral changes to a license/contract like that and, if so, whether or not those changes would be held binding retroactively. It doesn’t really change whether or not the publisher is providing an ICS, whether or not certain content is third-party content, whether or not certain actions are considered moderation of third-party content they find objectionable, whether or not certain actions are providing users the ability to moderate content, or anything else regarding §230 definitions or protections.
Really, the license doesn’t have all that much to do with §230 at all.
On the post: As Predicted: Parler Is Banning Users It Doesn't Like
Re: Re: Re: Re: Re: Re:
Okay, but that’s still a breach-of-contract issue, and I wasn’t 100% sure on that.
On the post: As Predicted: Parler Is Banning Users It Doesn't Like
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Actually, the original authors have explicitly said that that’s what they meant and that the law is working as they originally intended.
Actually, they don’t. Do they publish content provided by others using a computer to be viewed on a computer? Do they allow users to interact with a computer program to create/publish their own content? Then it’s an ICS. No court has ruled otherwise and not been overturned on appeal (unless the parties settled before any appeal was filed). They may not use the same words, but they are entirely consistent with each other with, like, two exceptions once physical goods get involved.
Again, no. The mandated licenses with ICSs are generally only nonexclusive licenses for the ICS to use the user’s content. In the case of traditional publishers, it’s often an exclusive license if not outright selling rights to the publisher with the author keeping a license.
Did the ICS create the content themselves or pay someone else to produce that specific content? Are they claiming authorship? If not, then the association isn’t all that strong IMO.
I did say that that particular distinction was only a rule of thumb. At any rate, note that I said the default decision is to publish in general for an ICS. Also, unless you have a specific example, I don’t have anything to add.
I’ve yet to encounter much in the way of actual instances where the issue was not clear. I’m not terribly concerned with hypotheticals that don’t actually exist.
Merely owning a nonexclusive license to all user content and publishing that content doesn’t mean you created it, so I don’t see what you’re talking about.
That’s not at all the same. That’s a work-for-hire, meaning that the Disney employee has no rights over the content and Disney is legally the copyright owner of the content. In fact, in that scenario, the employee isn’t even legally a third party. ICSs just have a license to publish it, and it’s all automatic. That’s completely different.
Look, I don’t think you get this. You haven’t provided any real-life instances that are actually a gray area or anything. It’s all clear-cut to me. I’m not great at explaining myself, though, so maybe that’s the problem. Or maybe we have some fundamental disagreement here.
Part of the issue is the question of the First Amendment, which also divides along many of the same lines as CDA §230.
On the post: Parler Speedruns The Content Moderation Learning Curve; Goes From 'We Allow Everything' To 'We're The Good Censors' In Days
Re: Re: Re: Re: Re: Re: Isn't That Why They Left Twitter
Dude, let Hillary go. It’s been nearly four years.
On the post: Parler Speedruns The Content Moderation Learning Curve; Goes From 'We Allow Everything' To 'We're The Good Censors' In Days
Re: Re: A safe space
I take exception to being called an anti-vaxxer. Did you miss the fact that the article with the most comments on it was about vaccines, where many of us argued with an anti-vaxxer on the issue?
On the post: NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book
Re: I find it highly unlikely…
I, for one, never heard of this book or knew it would ever exist had it not been for this lawsuit.
On the post: Parler Speedruns The Content Moderation Learning Curve; Goes From 'We Allow Everything' To 'We're The Good Censors' In Days
Re: Re: Re: Re: Isn't That Why They Left Twitter
Same with Twitter as far as I can tell. More to the point, you’re moving the goalposts. What you said before was:
You did not limit that to politics. You said, flat out, that the corporation makes moderation decisions, not the people.
On the post: As Predicted: Parler Is Banning Users It Doesn't Like
Re: Re: Evil, Fascism and Hives
Since when has having a majority in one half of one branch of the government meant you rule the country?
On the post: As Predicted: Parler Is Banning Users It Doesn't Like
Re: Re: Re: Re: Re: Re: Re: Re:
I explained that, too. Basically, does it involve a computer, and does it involve the software interacting with users (as opposed to more one-way communication)? If so, then it’s an ICS/ISP. Is that broad? Yes, but it was supposed to be according to the original authors.
I often use the basic query of what the default decision for publishing third-party content in general is. If the default is to publish, then it’s probably an ICS/ISP. If not, then it probably isn’t. It’s a good rule-of-thumb.
And BTW, online newspapers are protected from liability for content provided by users, too, if they accept comments. The difference between that and letters to the editor is that the latter are picked by humans to publish specifically.
The point is that the relevant question is really more of the role of the publisher with respect to the specific content-at-issue rather than their role in general. And while there may be certain programs that fall in a gray area between ICSs/ISPs and traditional publishers (including online newspapers with comments like this one), it is fairly clear-cut with respect to particular content.
More importantly, I’m more curious about what you have in mind as a (potentially) gray area. Aside from some decisions by lower courts about services like Amazon with regards to physical goods provided online by third parties, there hasn’t been any nonoverturned case law that I disagree with or think may be a gray area with regards to whether the defendant was acting as an ISP/ICS with regards to specific content in a way relevant to whether §230 immunity applies.
If you want a more particular definition, all I can say is read §230 and the relevant case law. Its definition is pretty clear-cut as far as I can tell.
On the post: As Predicted: Parler Is Banning Users It Doesn't Like
Re: Re: Re: Are you GasLighting Me?
What does golf have to do with anything?
On the post: As Predicted: Parler Is Banning Users It Doesn't Like
Re: Brandenburg and Miller cases
For the record, what is considered “obscene” is itself extremely limited. Swearing and adult porn are still protected by the First Amendment in general.
On the post: As Predicted: Parler Is Banning Users It Doesn't Like
Re: Re: Re: Re: Re: Re: Re: Re:
Again, your premise is flawed. There is a ton of overlap between “interactive computer service” and “publisher” / “speaker”. Basically, §230 covers any content in the overlap between “interactive computer service” and “publisher” outside of “speaker”/“content creator” (except for sex trafficking, IP, and federal crimes). There is no “dividing line” here.
Furthermore, that wasn’t the distinction discussed here. It was the difference between “moderation” and “content curation”. You argued that there had to be a difference and that “content curation” would be outside what an ICS/ISP would do, but asked how we could say that the distinction is clear. Toom said there is no such distinction (or if there is, it’s a distinction without a relevant difference) and that “curation” doesn’t make an ICS/ISP liable for any content on their platform at all or for the curation itself. That is, you’re asking for a clear dividing line between two things that are not actually different from each other. Again, your premises are flawed.
As for Gawker, their actions there did not make them an ICS/ISP or a user of an ICS/ISP, making §230 inapplicable.
So here are the relevant distinctions/definitions: an ICS or ISP (interactive service provider) publishes any third-party content given to them by default, with any decisions to remove or not publish something being done after publication or using an automated algorithm to filter out certain things (like spam) (the default choice is to publish); a content creator/author/speaker is one who—as the name suggests—actively makes or materially modifies content (not just shortening, editing for mistakes, quoting, or republishing it somewhere else, especially if it’s done automatically without human input) or (arguably) who actively selects which content to publish beforehand (the default choice is not to publish); a publisher is simply anyone who outputs contents made by someone to the larger public.
The distinction between what content is published as an ICS/ISP versus what content is published as a content creator/author/speaker is clear-cut (at least in the vast majority of cases), as is whether or not someone is an ICS/ISP versus a traditional publisher. There is also a clear-cut distinction between moderation and what traditional publishers do. However, there is no distinction between an ICS/ISP and publishers in general, nor is there a relevant distinction between curation and moderation. None of us claimed that the latter two distinctions exist or are relevant to §230 at all.
It’s also worth noting that the authors of §230 stand by it as it is applied in the modern day. What you see today is exactly the sort of thing that §230 was intended to do, and the original supporters stand by it even today. So no, the times haven’t changed in such a way to make §230 have unintended consequences or become outdated (aside from excluding IP perhaps). The lines are no more blurred now than they were before.
On the post: North Carolina Cops Fired After Their In-Car Camera Catches Them Talking About Wiping Black People 'Off The (Expletive) Map'
Re: Re: Re: Re: Re:
I disagree. More importantly, I’d be willing to pay more in taxes to offset any costs in ensuring that we don’t have such racist cops.
On the post: Copyright Troll Richard Liebowitz Benchslapped And Sanctioned AGAIN In A Massive Filing Detailing Pages Upon Pages Of Him Lying Under Oath
Re: Fart In A Windstorm
There are limits to how much monetary costs can be imposed in a court-ordered civil sanction, as noted in the order itself. Even criminal sanctions are limited, and those are very, very rarely imposed on lawyers. They also require a number of additional procedural hoops before due process is satisfied, including a trial by jury.
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