[ih] legal models [was: there must be a corollary to Godwin's law about Sec 230, was ARPANET pioneer]

[Brian E Carpenter]

On 07-Mar-22 13:54, Bob Purvy via Internet-history wrote:
>> There are three models of distributor liability which we can call
> magazine, you're responsible for everything with minor exceptions,
> bookstore, you're responsible for what you know about or should
> reasonably know about, and Fedex, you're responsible for nothat thing.
> There are court cases for all of these.
> 
> Quite interesting. I have to admit I've never heard much about the
> "bookstore model." What are some of the
> court cases about that?
> 
> Personally, I believe the proposition that "every issue is brand new with
> the internet" is just wrong, and
> legal models that existed pre-internet were perfectly capable of handling
> it.

I used to think that, but there are at least three gotchas:

1) In Common Law countries such as the US and UK, arguing from
precedent about new  technologies seems to be generally accepted.
But in other jurisdictions, such as those based on Napoleonic law,
this is less clear.

2) You cannot assume that advocates and judges understand the
technology well enough to argue and adjudicate correctly. There's
been a persistent failure to distinguish value from reference, for
example, not helped by lousy terminology such as "address" when
a URL is meant (even without starting on the distinction between
URL, URN and URI).

3) Very few issues are really national; just note how DCMA has
affected countries other than the USA, or how GDPR has affected
countries outside the EU.

    Brian

> 
> On Sun, Mar 6, 2022 at 2:07 PM John Levine via Internet-history <
> internet-history at elists.isoc.org> wrote:
> 
>>> Steven Ehrbar wrote:
>>>> It's simple enough. You repeal Section 230.
>>>>
>>>> Under the court precedents prior to passage of the Communications
>>>> Decency Act, a system that moderated what users communicated (in the
>>>> specific court case, Prodigy) was legally liable for what the users
>>>> communicated, while one that didn't (in the specific court case,
>>>> CompuServe) wasn't. ...
>>
>> This is severely oversimplified and basically wrong.
>>
>> There are three models of distributor liability which we can call
>> magazine, you're responsible for everything with minor exceptions,
>> bookstore, you're responsible for what you know about or should
>> reasonably know about, and Fedex, you're responsible for nothing.
>> There are court cases for all of these.
>>
>> Compuserve v. Cubby which was in federal court, used the bookstore model.
>> Then Stratton-Oakmont vs. Prodigy, in NY state court, misread Compuserve
>> and assumed it was either publisher or Fedex so if you do anything
>> you're a publisher.  This was a mistake, not least because
>> the bad things said about Stratton-Oakmont turned out to be true.
>>
>> Section 230 said no, all online services are Fedex.  While this was
>> reasonable it was also not inevitable.  In the absence of Sec 230,
>> Compuserve is the precedent (outside of NY at least) and the bookstore
>> model fits a lot better than either of the other two.  Were 230 to
>> be repealed, the next few years would be pretty exciting particularly
>> due to all of the ignorant nonsense about what people imagine 230 to
>> say, e.g., that somehow without it online providers would be required
>> to publish everything anyone says which is absurd.
>>
>> In all likelihood we'd end up with the bookstore model, perhaps with
>> something like the notice and takedown process that OCILLA (part of
>> the DMCA) has for copyright violations.  It's far from perfect but
>> it wouldn't be the end of the world.
>>
>> On the other hand, most of the 230 "reform" bills introduced in recent
>> years would be awful, ill-specified carveouts that would only enrich
>> lawyers.  Look at SOPA/PIPA which was supposed to deter sex trafficking
>> and in fact had the opposite effect, just as its opponents predicted.
>>
>> R's,
>> John
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