Live Blog of the Fordham Center for Law & Information Policy “Third Law & Information Society Symposium” — Intermediaries in the Information Society

Panel, “Practical Tips for Advising Intermediaries”
Moderator: Thomas D. Halket
Panelists: Ian C. Ballon, Jay Westermeier

[Blogged live by Jason Lunardi, citations edited subsequently]

[4:20] Moderator Thomas D. Halket:  [Introduces the panelists]

[4:21] First Speaker, Ian Ballon:
Urban legend is that all you have to do is comply with notice/takedown to be within DMCA safeharbor … this is a myth; There are many other requirements.

Varying standards for takedown of material:

Trade secrets– “reason to know” material is trade secret is the standard. From standpoint of intermediary, reason to act. In 9th cir. these claims are pre-empted by the CDA.

Obscene material –No reporting requirement. Best practice is to take down. Hard thing is determining what is obscene.  But, for child porn– Reporting requirement.

Material harmful to minors — This is an area Congress has repeatedly tried to regulate. ACLU repeatedly fights it and wins. However, state AGs have been successful at looking at this area. Binding on MySpace and Facebook. Guide of best practices of what sites should do to protect minors.

Copyright Claims:
DMCA sets up more than notice/takedown. Must also adopt policy of handling repeat infringers. Don’t need to publicize what the policy is, but must tell people you have it. Must be able to terminate repeat infringers (at least 2 notices). Parameters are not crystal clear. Almost all of the holdings ate 9th Circuit, some 4th Circuit. Most all ate D.Ct. rulings.
Important to note that these things are etched in stone only in those circuits! 9th Cir. says as long as you keep track of who is infringing it is OK.
When conduct raises a red flag, must take action. But what is a red flag? In 9th Cir. “stolencelebritypics.com” the argument was that the name of the site raised a red flag. However, court held that it was not a red flag. the name raises the salicious quality, and draws more visitors.
“stolen passwords” site. also, not a red flag. This policy is extremely supportive of service providers!
When counseling them, either tell them to follow Perfect10, or similar.

Case law: UMG v. Veoh. Addressed transcoding. When user posts video, video is transcoded and then made available to view. Argument was that this transcoding destroyed the DMCA safeharbor. Court said that the DMCA still applied. It was “stored at the direction of the user”

Issues in the DMCA:
“Knowledge”
“Vicarious liability” – how direct must financial benefit be?
What is a “red flag”
What type of “repeat infringer” policy is required?
Is filtering required? Grokster court said in footnote said, unwillingness to filter may be a factor in the analysis of inducement.  In Perfect10 v. Amazon, refusal to filter could be contributory infringement.
Also, UGC principles.

Trademark Liability
Grounds are narrower; No “DMTA” like a DMCA. No notice/takedown to get safeharbor. Even though no safeharbor, the case pending in the 2d Cir. If upheld could say that notice/takedown is a factor to weigh against liability.
As a best practices for advising intermediaries, do not rely on the 9th Circuit decisions!
Look at Doe v. Friendfinder, the court criticizes 9th circuit CDA exemption applying to intellectual property.

[4:41] Second Speaker, Jay Westermeier:

Concept that trust is a critical success factor with the Internet environment. Brands are even more important.
Must think of website terms of use — that it is pro-customer, pro-user. that it gives you a “warm fuzzy feeling”.
Recognize the importance of website reliability, server up-time.
When you set up a dispute proceeding with one of your customers, it should be pro-customer, that way it creates trust.

Websites terms of use. Lawyers need to think more about contracts. they are a unique way of dealing with risk. Through contracts you can allocate risk. Lawyers should think about how risks are handled in their contracts. Right to update and revise the terms of use, because the risks are always changing.

Talking about DMCA, CDA, it is important not to have contract terms that are inconsistent with these laws! They should actually restate the laws. Edit them to be consistent.

One principal of contract drafting is to rebut any implied contracts. for example, by posting a website, it is implied that you are inviting people to that site. You must include a warranty disclaimer that there is no guarantee that service will be uninterrupted, or that all content is accurate.

The most efficient way to deal with it is “Browse-Wrap” agreement. That if you visit the site, you agree to the terms of use.

Example of American Airlines had a website with term of use that required that all use be non-commercial. Court said that defendant was using it for profit. It was appropriate to grant injunctive relief.

With regard to information content coming in, the individual to submits is responsible for content — warrants that he owns and has rights.
Also, Publicity rights; To the extent that a user is accessing site and providing content, you need right to use their likeness, persona, and right to obtain necessary data if it becomes necessary. Right of successor to information as well.
Acceptable use policies, getting longer and longer; No unlawful or harmful use.
How do you deal with spiders and crawlers? Normal to have a prohibition. If you don’t, there is an implied right to have it spidered! For example, if you go to Whitehouse.gov, the president has implemented the no-spider protocol.
Indemnities; No obligation to use ideas submitted, or finance or compensate the person.

With regard to DMCA, important to designate an agent to receive notice. An $80 charge at the copyright office.

With regard to the CDA, think of it as being a passive conduit. that is the rationale. this applies to third-party content, but NOT content that is COLLECTED by the intermediary. Immunity only applies to conduit. Not collection, there is clear case law on this.

[5:01] Moderator:  Thanks Jamela and Joel Reidenberg.

Member of Audience question: Do you discourage clients from putting in blanket contract terms, indemnities?

Westermeier: Dont discourage them, but make them more concrete. It is important to make user responsible for their own content. One thing I advocate is that the privacy policy be part of the terms and conditions of use. Most people don’t recognize that the damages don’t have to be foreseeable to be recoverable under UCC; better to indemnify.

Ballon: In California, the standard of unconsciability is lower–but that is California. Where you sue or are sued plays a big part.

[5:08] Moderator [concludes panel]