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This page responds to one of the ten recommended laws proposed by C-Net to regulate the Internet.

  The problem:  Internet service providers serve more than one function in the online world.  They are at one level not more than a means of communication, a local switchboard to connect the subscriber to the network, through which the subscriber sends and receives information around the world.  Yet at another level they are themselves sources of information, and there is an ambiguity related to when an ISP is responsible for the material found on its server, and when liability does not attach.

The proposal:  "ISPs shouldn't be liable for content they merely transmit--for example, e-mail, chat, or newsgroup messages--or the content of subscribers' web pages.  But they should be responsible for content they pay for and publish."


The survey:  At the time of my visit, 14,530 "netizens" had voted, with 94% supporting the proposal, against 6% opposing it.
And your verdict on the matter?
  The proposal appears nearly self-evident--I'm not certain what the 6% opposed are thinking.  But perhaps we should clarify what the problem is.

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  All of these words which I have written are stored in a computer which is not mine.  Originally they were on a computer that belonged to Jaguar Systems (and I have moved to a new ISP since they closed), and I pay a monthly fee which includes, among other things, space on that computer which is available to the rest of the Internet; I connect these pages to and from other pages elsewhere on that Internet, making them part of the World Wide Web.  But if the folks at Jaguar have even glanced at any of my pages, they've never mentioned it to me--and if you have any complaints, objections, responses, or arguments to levy against the material here, both I and they would appreciate it if you would send it to me, and leave them out of it.  (Also, if you have anything good to say, I'd love to hear it--but I'd rather you told others, so that more people will find their way here.)  That's because I've written these words, expressed these ideas, crafted these concepts, and I am responsible for it all.  They are uninvolved in, possibly unaware of, all of this.

  On the other hand, they use quite a bit of space themselves.  From their central page they extend links into many pages of basic information about the Internet.  They've written most of this material, and put it on their pages of the server.  It will surprise no one if I tell you that I have little control over what they put there; in theory, I could threaten to organize a boycott or other action if there were something I didn't like (there isn't, as far as I'm aware), but such extreme measures are difficult and not always fully effective.  No, on the pages which are on the central portion of the site, the responsibility--and the liability--is theirs, not mine.

  This is black and white; it's easy to see who is responsible for what in this case.  No legislation is needed for this--it's built into the common law of many countries around the world, including ours.  But C-Net calls our attention to a case which is not black and white, a case in which the shades of gray which define the law are quite apparent:  the suit against America Online related to The Drudge Report.  In this case, the material which is on the site is written by Matt Drudge, apparently with no interference from AOL; but the server isn't paid to publish it.  America Online pays him for the right to put the material on its server--in the full expectation that at least some subscribers will regard this a valuable aspect of AOL's service, and so stay with the giant online service, or even subscribe to the service to obtain access to the report.  The question becomes, is AOL responsible for what Matt Drudge says in material they buy from him?

  And the plot thickens.  You see, if AOL was the publisher, and Matt Drudge was effectively their employee, it would be an easy case:  AOL would have full control over what Drudge reports, as the city editor oversees his reporters, and the editor in chief oversees all that appears in the paper.  But the Drudge Report is an independent publication, and at a certain level AOL can argue that they are merely reporting the contents of an independent source, and that their payments to him make them subscribers to his service, not employers.  So the case is not so straightforward as C-Net pretends.

  And that's why our legal system has trial courts and appellate courts.  Juries--finders of fact--determine what everybody did, thought, said, believed.  Judges are charged with the task of defining what the law is, and how it should be applied to a given set of facts.  In this case, I expect that the court will charge the jury that if they find that AOL in placing the Drudge Report on their service took responsibility for and benefit from the content of the page, they should be considered liable as partners with or employers of Mr. Drudge; but if they find that AOL merely reported the content of the independent publication, they should be acquitted.  I could be wrong about this--and whether the trial court says this or something else, one side is sure to appeal, and the appellate court will decide whether the judge's instructions were correct.  In the end, it may be that AOL will be held liable, and it may be that they won't--and it may be that no one will be liable, and the question will become moot.  But that's the way the trial system works:  when the issues are not completely clear, the courts clarify them.  And the next time a server is sued for material which it claims is not within its control, there will be another trial to determine whether that server is liable or not.

  And liability insurance is a way of life, a necessity of the world today.  A few years back, I heard that good obstetricians pay about $800,000 a year for malpractice coverage--not because they are usually liable, but because lawsuits are brought with alarming frequency when less than perfect infants are born.  The law proposed by C-Net won't prevent lawsuits or obviate the need for liability insurance; nor will it cause instant judgments of the difficult cases like the AOL/Drudge case.  Still, it's good to keep things clear, and a legislative mandate which clarifies the distinctions given in this law would be worthwhile.  Thus, I voted for it.  The courts will still have to decide the tough cases--and the easy cases--and there will still be lawsuits, some of them frivolous; but it will help ISP's better understand where they stand.


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