FYI -- there is no such thing as a "safe harbor letter" under Rule 11. Rather, FRCP 11(c)(2) requires you to actually prepare a motion for sanctions and serve it on the opposing counsel. You must then wait 21 days to see if the violator fixes the issue. If they don't, then you can file the motion.
However, I think the courts have largely abandoned Rule 11 -- judges simply do not enforce it except in the rarest of cases. As a result, lawyers have decided there's little to no risk of filing junk lawsuits, which is why we are seeing more and more of them each year.
At the end of the day, judges must follow the rules, and they must punish lawyers who don't. Because that's not happening, the legal profession remains largely a joke.
Hey guys -- what am I missing here? The entire premise of this article is wrong. The assumption is that if you are a user of an interactive computer service (i.e., Twitter) and you retweet content from another information content provider, you can be held criminally liable for doing so.
Not so fast. I realize that probably 99% of people don't understand this, but the CDA (47 USC 230) precludes not only civil liability, but it also bars criminal liability under state law in precisely this context. Yes, the statute has a section heading that says: "No effect on criminal law..." but that addresses only certain aspects of FEDERAL criminal law. State criminal laws are absolutely preempted by the CDA if they seek to punish a user for "publishing" content from another third party. See, e.g., Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D.Wash 2012) http://scholar.google.com/scholar_case?case=1859109590878296312&hl=en&as_sdt=6&as_v is=1&oi=scholarr
Although most of these types of cases deal with website owners attempting to avoid criminal liability under the CDA, the logic applies to users in exactly the same way. This is so because the CDA applies equally to both PROVIDERS and USERS of interactive computer services.
So, bottom line -- sorry, but there is absolutely no exposure to criminal liability under New Jersey or any other state law for retweeting something like this. Mike Masnik is an Internet god, but this time he made the mistake of trusting the legal analysis of someone who doesn't know what he's talking about.
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Re: Re: Re: Not the lawyer's fault
However, I think the courts have largely abandoned Rule 11 -- judges simply do not enforce it except in the rarest of cases. As a result, lawyers have decided there's little to no risk of filing junk lawsuits, which is why we are seeing more and more of them each year.
At the end of the day, judges must follow the rules, and they must punish lawyers who don't. Because that's not happening, the legal profession remains largely a joke.
Have you all forgotten about CDA 230?
Not so fast. I realize that probably 99% of people don't understand this, but the CDA (47 USC 230) precludes not only civil liability, but it also bars criminal liability under state law in precisely this context. Yes, the statute has a section heading that says: "No effect on criminal law..." but that addresses only certain aspects of FEDERAL criminal law. State criminal laws are absolutely preempted by the CDA if they seek to punish a user for "publishing" content from another third party. See, e.g., Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D.Wash 2012)
http://scholar.google.com/scholar_case?case=1859109590878296312&hl=en&as_sdt=6&as_v is=1&oi=scholarr
Although most of these types of cases deal with website owners attempting to avoid criminal liability under the CDA, the logic applies to users in exactly the same way. This is so because the CDA applies equally to both PROVIDERS and USERS of interactive computer services.
So, bottom line -- sorry, but there is absolutely no exposure to criminal liability under New Jersey or any other state law for retweeting something like this. Mike Masnik is an Internet god, but this time he made the mistake of trusting the legal analysis of someone who doesn't know what he's talking about.
Techdirt has not posted any stories submitted by DSG72.
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