How a court will view Airbnb's argument that the Communications Decency Act protects it from a New York law that could hold the online property rental company liable for users who place ads for short-term rentals is difficult to foresee and might have significant consequences for the sharing economy industry, some experts said in interviews this week. Two weeks ago, the home-sharing company filed a complaint in U.S. District Court for the Southern District of New York against the state and New York City invoking Section 230 of the 20-year-old CDA. That law was designed to shield website operators from lawsuits arising out of third-party content so it would allow freedom of expression and innovation to flourish on the internet.
Section 230
LeadClick, a now-defunct affiliate marketing network, is liable for deceptive advertising content it had no hand in producing and that was promoted on fake news websites, said the 2nd U.S. Circuit Court of Appeals, upholding a lower court ruling that sided with the FTC and Connecticut. But Judge Denny Chin, who wrote Friday's 3-0 opinion (in Pacer), reversed, in part, the summary judgment by the U.S. District Court for the District of Connecticut in New Haven, which said then-parent CoreLogic should be liable as a relief defendant. The FTC and Connecticut sued LeanSpa in December 2011 for selling purported weight-loss products. That case was settled in January 2014. But the District Court ruled LeadClick and CoreLogic should turn over $11.9 million gained through their arrangement with LeanSpa. Consumers were lured to LeanSpa's website through fake news websites developed by LeadClick's affiliates, wrote Chin. LeadClick said a defendant can be held liable for deceptive acts or practices under Section 5 of the FTC Act only if it created the deceptive content. But Chin, citing cases in the 9th and 11th Circuits, said a defendant can be held liable "if, with knowledge of the deception, it either directly participates in a deceptive scheme or has the authority to control the deceptive content at issue." He also rejected LeadClick's argument the FTC Act doesn't "expressly provide" for aiding and abetting liability. Chin said LeadClick also isn't entitled to immunity, as the company had sought, under Section 230 of the Communications Decency Act, which is designed to protect children from sexually explicit content. But he said the lower court erred in saying CoreLogic must disgorge $4.1 million it got from LeadClick, which closed shop in 2011, because CoreLogic had a "legitimate claim to repayment from its prior advances to LeadClick." CoreLogic declined to comment Monday.
The 9th U.S. Circuit Court of Appeals ruled in favor of Yelp Monday, affirming a U.S. District Court in Seattle’s 2014 rejection of Washington state locksmith business owner Douglas Kimzey’s lawsuit against the user-generated review website. Kimzey sued Yelp pro se over a 2011 negative review of his Redmond Locksmith business. A three-judge 9th Circuit panel affirmed District Judge Richard Jones’ rejection of Kimzey’s claim that Yelp is liable under Communications Decency Act (CDA) Section 230.
It's early to definitively say how either presumptive Democratic presidential nominee Hillary Clinton or presumptive Republican presidential nominee Donald Trump would handle copyright issues as president. An early reading points to neither deviating from the status quo, copyright lobbyists told us. Clinton's tech policy agenda, released Tuesday (see 1606280071), mentions copyright policy. Trump's campaign pointed us to its existing policy statements, which reference intellectual property policy only in the context of U.S. trade relations with China.
Backpage.com scored a victory last week when a federal court dismissed the case brought by three women in Massachusetts, saying that the online classified advertiser wasn't responsible for their appearance in prostitution advertisements posted by third parties. It faces a similar challenge in Washington state, and the company's troubles with Congress grew when the Senate unanimously held the company and its CEO in contempt for ignoring subpoenas to appear before an investigations subcommittee (see 1603170042). Some experts said Section 230 of the Communications Decency Act is doing what CDA was designed to do: protect website operators from lawsuits arising out of third-party content.
Net neutrality sparked familiar divisions but also some projections and legal analysis from attorneys on a Digital Policy Institute webinar Wednesday. While the FCC’s order faces many court challenges, Andrew Schwartzman, Georgetown Institute for Public Representation senior counselor, said he believes judges will likely focus on the commission’s authority to reclassify broadband as a Title II telecom service under the Communications Act and accord the agency’s view deference. But Brent Skorup, a George Mason University telecom research fellow, and Stuart Brotman, a University of Tennessee electronic media professor, questioned FCC deference in this case. Skorup suggested the commission was vulnerable on First Amendment grounds, but Schwartzman was skeptical. The three speakers did agree Congress is unlikely to pass a legislative compromise for now.
Critics of the FCC’s net neutrality order cited many reasons for believing it’s legally vulnerable, though none made a clear prediction on how the litigation would turn out. Speaking at a Phoenix Center teleforum, lawyers who helped file briefs against the order said the commission erred in reclassifying broadband as a telecom service under Title II of the Communications Act, failed to adequately explain its change in light of recent court precedent, ignored evidence it would harm investment, impermissibly set a “zero rate” for broadband traffic exchanges with edge providers, created an impermissibly vague Internet conduct standard and violated procedural requirements.
Some 1,997 public comments were filed with the FTC after its June workshop on competition, consumer protection and economic issues raised by the so-called "sharing economy." Most comments encouraged the FTC to regulate the sharing economy lightly and to end any practices that favor established companies. CEA, the Internet Association and other tech firms backed the sharing economy, which is often said to involve companies including Uber that have run into regulatory issues as they expand.
Congress should quickly take up, debate on and pass Rep. Jackie Speier’s, D-Calif., soon-to-be introduced revenge porn legislation, the Intimate Privacy Protection Act, said Information Technology and Innovation Foundation (ITIF) Vice President Daniel Castro and research assistant Alan McQuinn in a report Wednesday. While a number of states and private businesses have taken up the cause to reduce the online harassment known as revenge porn, Congress needs to take action because victims have inadequate means available to fight back, the report said. ITIF recommends Congress pass legislation criminalizing the nonconsensual distribution of sexually explicit images, create a special FBI unit to provide immediate assistance to victims of nonconsensual pornography, and direct the Justice Department to work with the private sector on developing best practices for online services to remove nonconsensual pornography quickly, the report said. To ensure the legislation doesn’t criminalize less malicious behavior or infringe on free speech it should include an intent clause and a knowledge standard, the report said. ITIF also recommended federal legislation not change Section 230 of Title 47 of the U.S. Code, which protects online providers from liability for the content posted by others, so law enforcement can focus on the perpetrators of the crime, and for “sexually explicit material” to be defined in a manner that can evolve over time. Nonconsensual pornography is an “egregious invasion of privacy” predominantly affecting women that “severely damages reputations, endangers safety, and inflicts unjust financial, emotional, and social costs,” Castro said in a news release. “While 24 states and some private companies have taken a stand to slow this insidious crime, we need a consistent, nation-wide policy that adequately brings remedy to the victims and dissuades future violations,” he said.
U.S. policies are continuing to aid the Internet’s exponential growth 20 years after the start of the commercial Internet, said John Morris, NTIA Office of Policy Analysis and Development director-Internet policy, in a Friday blog post. The National Science Foundation Network (NSFnet) was decommissioned April 30, 1995, ending the last restrictions on commercial traffic and “paving the way for the commercial use and private governance of the Internet,” Morris said. Key U.S. policies that have resulted in strong Internet growth include trusting in private sector innovation and a reliance on multistakeholder Internet governance, he said. NTIA and the Internet Policy Task Force have continually emphasized multistakeholder governance, including supporting ICANN’s ongoing process of spinning off its Internet Assigned Numbers Authority functions, Morris said. Other important U.S. policies have included “strong” IP rights policies, promoting high-speed broadband access and laws that protect against undue regulation like Communications Act Section 230, “which protects online platforms against claims arising from hosting information posted by users and other third parties,” Morris said.