On Mon, Jan 11, 2021 at 2:19 AM Danny O'Brien <danny@spesh.com> wrote:
On Sun, Jan 10, 2021 at 8:54 PM William Herrin <bill@herrin.us> wrote:
there have been some real post-CDA head scratchers where a court decided that an online service exercised sufficient control of the content to have made itself a publisher.
You really need to give citations here, because IMHO not only is this *exactly* the scenario that Section 230 was intended to provide legal clarity regarding (and so protect service providers from this kind of moderation double-bind), but as I understand it pretty much all the subsequent caselaw has *strengthened* the ability for providers to moderate and manage content, including user-generated content, without triggering liability.
Well, for example, Oberdorf v. Amazon.com, No. 18-1041 (3rd Cir. July 3, 2019) which found that Amazon was a seller of goods and not merely hosting information about a third party's sale, and thus subject to product liability law for the product that was sold. But in the Erie Insurance case, with similar circumstances, the court found the opposite, that section 230 barred the plaintiff from suing Amazon over a defective third-party product. Regards, Bill Herrin -- Hire me! https://bill.herrin.us/resume/
On Mon, Jan 11, 2021 at 02:33:08AM -0800, William Herrin wrote:
On Mon, Jan 11, 2021 at 2:19 AM Danny O'Brien <danny@spesh.com> wrote:
On Sun, Jan 10, 2021 at 8:54 PM William Herrin <bill@herrin.us> wrote:
there have been some real post-CDA head scratchers where a court decided that an online service exercised sufficient control of the content to have made itself a publisher.
You really need to give citations here, because IMHO not only is this *exactly* the scenario that Section 230 was intended to provide legal clarity regarding (and so protect service providers from this kind of moderation double-bind), but as I understand it pretty much all the subsequent caselaw has *strengthened* the ability for providers to moderate and manage content, including user-generated content, without triggering liability.
Well, for example, Oberdorf v. Amazon.com, No. 18-1041 (3rd Cir. July 3, 2019) which found that Amazon was a seller of goods and not merely hosting information about a third party's sale, and thus subject to product liability law for the product that was sold. But in the Erie Insurance case, with similar circumstances, the court found the opposite, that section 230 barred the plaintiff from suing Amazon over a defective third-party product.
These seem to be examples of situations where Amazon and Erie were selling things (other than Internet access/services), and were not merely acting as a service provider. I don't think that, back when the CDA was written, the service provider world ever expected random retailers or other sellers of products and services to be able to claim section 230 protections just because the transaction happened to be enabled by the Internet. It also isn't clear under what theory 230 protections would take precedence over other protections such as product liability law. I don't think that the fact that you might also sell Internet services creates an umbrella. Are there examples that do not conflate other areas of the law? Given the subject here, it seems relevant to want examples closer to what Parler and service providers providing them services or connectivity might need to consider. ... JG -- Joe Greco - sol.net Network Services - Milwaukee, WI - http://www.sol.net "The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that 'my ignorance is just as good as your knowledge.'"-Asimov
On Mon, Jan 11, 2021 at 2:51 AM Joe Greco <jgreco@ns.sol.net> wrote:
Are there examples that do not conflate other areas of the law?
Hi Joe, I expect so. Maynard v. Snapchat, for example, in which the court found that snapchat had no section 230 immunity in a lawsuit related to its speed overlay feature for user-generated content. Snapchat eventually won the case on a different theory. I don't expect to find much if anything that's both directly on point for Amazon/Parler and contrary to John's citations. But then I didn't claim there would be. What I actually said was that the "courts have been all over the place" on how much control an online service had to have over third-party content before section 230 no longer applied. I think the three cases I've now cited for you illustrate that. Regards, Bill Herrin -- Hire me! https://bill.herrin.us/resume/
In article <CAP-guGWOFB0udj7KcDSZpnzCeSqSoVv7H8-TVu6jkOPXk=Yt2A@mail.gmail.com> you write:
Well, for example, Oberdorf v. Amazon.com, No. 18-1041 (3rd Cir. July 3, 2019) which found that Amazon was a seller of goods and not merely hosting information about a third party's sale, and thus subject to product liability law for the product that was sold. But in the Erie Insurance case, with similar circumstances, the court found the opposite, that section 230 barred the plaintiff from suing Amazon over a defective third-party product.
Good citations, but really, an edge case if you are not an online marketplace hosting third-party sellers. R's, John
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William Herrin