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I am a Professor of Law and the Director of the Program on Information Justice and Intellectual Property at the American University, Washington College of Law and am a founding member of the Creative Commons board.

Thursday, March 20, 2008

RFA 1: Copyright, Defamation, and Liability for Business Models

In the wake of the Supreme Court's Grokster opinion, legal scholars are analyzing when a business can be held secondarily liable for copyright infringement based on the likelihood or actuality that a business model requires a certain amount of infringing activity to be financially sustainable.

I would be interested to read an article considering the policy options related to business models that foreseeably attract, and apparently rely on, defamatory content. Shielded by Section 230 of the Communications Act, sites like Auto Admit, Juicy Campus, and Rotteneighbor invite users to post comments about other members of their respective communities. Relying on the pseudonymity offered by these sites, users have apparently been fairly brazen in posting defamatory comments harming the reputations of others.

Assuming Section 230 generally gets it right with respect to service provider liability, should a different standard apply when one starts a site that foreseeably attracts defamatory statements? Are these businesses using the reputations of others as part of their start-up capital? Is this just the price of free speech? This inquiring mind would like to know.


Anonymous Brian Holland said...


I am writing in this neighborhood. I am publishing an article this month in the Kansas Law Review in defense of section 230. Here are a few words from the abstract:

By mitigating the imposition of certain external legal norms in the online environment, Section 230 helps to create the initial condition necessary for the development of a modified form exceptionalism. With the impact of external norms diminished, Web 2.0 communities, such as wikis and social networks, have emerged to facilitate a limited market in norms and values, and to provide internal enforcement mechanisms that allow new communal norms to emerge. Section 230 plays a vital role in this process of building heterogeneous communities that encourage collaborative production and communication.

After talking a bit with Danielle and others, I decided that my next step was to define how law might step in when those communities are structured to facilitate the type of "negative" norms you've identified.
This triggers the precise issue you suggest and, although I am in the early stages, the analogy to the Grokster case has been part of my thinking.

H. Brian Holland
Visiting Associate Professor of Law
Penn State University
Dickinson School of Law

7:14 PM  

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