Those early days in the growth of the Internet saw Congress passing several laws that freed the Internet from potential liability – the DMCA “safe harbors” provisions, Section 230 of the Communications Decency Act, and the Internet Tax Freedom Act of 1998 – to name just a few. And the Internet responded to this light touch by growing exponentially both within the U.S. and around the world – with almost two billion users today!

Unfortunately, during the last decade, the Internet has lost its luster – at least as far as politicians and the courts are concerned – and is being subjected to ever-increasing regulation and liability. Many politicians blame all of society’s ills on the Internet. (See here and here for just two examples.) As a result, they are openly hostile to the idea of an open, global forum for the exchange of information and ideas, as well as for global commercial activity, and seem intent on killing the “goose that laid the golden egg.” Just a look at today’s online news sites will confirm that the Internet is under increasing attack worldwide.

Fortunately, the Internet is extremely resilient – both from a technical, as well as a social and economic, perspective. So far the Internet (and those who dwell within it) have been able to “work around” many of these new laws and regulations or adapt to them without significant damage to the “business as usual” nature of the system. But it’s difficult to tell from our vantage point whether real, permanent damage is being done to the Internet – as both a communications medium and a platform for e-commerce. A decade from now analysts may look back at the Internet as a failed experiment – killed off by politicians, judges and self-serving business interests, who thought the Internet had to be “tamed,” and in doing so destroyed its ultimate potential.

Only time will tell….

The court is sympathetic to the Blockowiczs’ plight; they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view. Nevertheless, Congress has narrowly defined the boundaries for courts to enjoin third parties, and the court does not find that Xcentric falls within those limited conscriptions based on the facts presented here.

– Blockowicz v. Williams, 675 F.Supp.2d 912, 915 (N.D. Ill. 2009).

One possible solution would be to amend Section 230 so that a website would continue to enjoy immunity from third party defamations posted on their site, conditioned on the website owner offering the victim a “right of reply.” If the website owner refused to do so, then it would lose its Section 230 immunity.

This is similar to the DMCA, that conditions immunity from copyright infringement claims on the website owner’s obligation to comply with the notice and takedown procedures of the Act. The website owner can choose not to comply, but will lose its immunity from copyright infringement claims.

While the U.S. Supreme Court has held that a mandatory right of reply statute violated the First Amendment (Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)), no case has ever found that a voluntary right of reply statute would not be found constitutional.

Obviously, a right of reply should not be open-ended, since it could be misused, as the DMCA notice and takedown provisions have been misused, to stifle certain positions or promote a particular point of view, instead of merely replying to a defamatory statement. But that is simply a matter of fine tuning the text of whatever legislation might be enacted.

Do I expect a right of reply amendment to be introduced in Congress in the near future? Probably not. But if the perceived shortcomings of the current Section 230 continued to be emphasized by the courts and commentators, at some point a congressperson will take note. The danger is that Congress may not merely stop at amending Section 230 immunity, but repeal it entirely. That would be devastating.

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Here are the show notes for this week’s episode:

Shownotes for The Singularity Law Podcast: Episode 8 for December 8, 2008

Our Panel for Today:

• Prof. Michael Scott of The Singularity Law Blog
• Josh Kagan of The Josh Kagan Blog

Video Game Law as a Hot New Practice Area: Hype or Reality?

• Wall Street Journal: Video-Game Law: The Niche Legal Practice Du Jour
• LA Times: These Lawyers Got (Video) Game
• Michael Scott’s blog: Videogame Law: New Legal Specialty or Marketing Hype?

The Limits of Section 230 Immunity, Part 1: Malware

• 47 U.S.C. §230
• Venkat Balasubramani’s SPAM NOTES blog: Could Facebook Be Liable for Spreading the Koobface Virus?
• Green v. AOL

The Limits of Section 230 Immunity, Part 2: Trademarks

• Alleyinsider: Amazon, Google: eBay Shouldn’t Have To Hunt For Trademark Infringers
• EFF: Jewelry Company Quest to Expand Trademark Law Could Quash Internet Commerce

Practice Pointer: The Continued Importance of Forum Selection Clauses

• “Internet Cases” blog: Court enforces forum selection clause in web hosting agreement
• Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)

Turning Piracy Into Profit: The Myspace Experiment and Other DMCA Issues

• Reuters: MySpace, MTV Test Piracy-Profit Plan
• Michael Scott’s blog: Priming the Pump – Copyright Style

Final Thoughts: Entrapment by Emoticon

• Wall Street Journal: Emoticons on Trial at the Nebraska Supreme Court

This recording is an informational resource only. It is not designed to offer legal advice.

This is a QuickTime video, so to view it in a larger window simply click “download” below instead of playing it in your browser. It will also be available in our iTunes podcast feed.

We’re also ramping up a new episode of our podcast for today. Episode 7: “The Global Perspective” will be available tonight, so stay tuned!