Legal Issues

by Mike Masnick

Filed Under:
cda, dmca, safe harbor

It's Time To Harmonize Service Provider Safe Harbor Rules

from the because-confusing-rules-are-bad dept

Eric Goldman points us to a relatively recent paper by Mark Lemley that takes a look at internet safe harbors for service providers. Lemley agrees with many of us around here that safe harbors make perfect sense, since there's no reason to put the liability on a third party who is simply providing a service, rather than the person actually breaking the law. However, his complaint is that there are different safe harbor rules written into different laws and they have different requirements. For example, copyright safe harbors are a part of the DMCA and require a specific process to receive protection. Safe harbors for libel, however, are in the CDA and work differently than the ones in the DMCA. Since the purpose of both safe harbors is the same, it makes sense, as Lemley suggests, that the various safe harbor rules be put under a single umbrella and harmonized. It's such a reasonable idea it'll probably never happen.

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  • identicon
    Anonymous Coward, 16 Aug 2007 @ 10:52am

    yeah but then ppl will require less specialized lawyers and lawyers wouldn't have that

    reply to this | link to this | view in chronology ]

  • identicon
    RandomThoughts, 16 Aug 2007 @ 11:09am

    Most people don't understand what safe harbor means today, it may make sense to harmonize it but as providers differ greatly it would be hard to come up with something for everyone.

    If folks in one specific area can't agree on what safe harbor means for their specific industry (YouTube v. Viacom and others) how can a standard cover all providers?

    I wonder when Michael Jackson goes after YouTube for the prisioner remake of Thriller? Kind of hard for YouTube doesn't know of the violation when its been on TV and has over 5 million hits. Can't imagine the warden got permission for that one.

    reply to this | link to this | view in chronology ]

  • identicon
    bored now, 16 Aug 2007 @ 11:24am

    There's horizontal and there's vertical...

    and it's important to know the difference.

    Establishing the possibility of safe habours is a horizontal measure. That's been done in many places (the EU E-Commerce directive is one example).

    Procedures for implementing safe harbour, processing allegations etc. are not suitable for the horizontal approach. Instead, we need a set of procedures, each designed vertically and tailored to the alleged offence.

    Or to put it another way, copyright infringement is not defamation is not images of child abuse.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2007 @ 12:17pm

    Bad idea

    Anything billed as harmonization tends to take the worst bits of the existing laws:

    Oh noes! Different states have different spam laws, so spammers might unexpectedly get in trouble -> CAN-SPAM.

    US has DMCA; other countries don't -> some WIPO and EU activity to `fix' this.

    Patent lengths are different -> lengthen them again in the US.

    Given this sort of history, I'd expect a harmonized safe harbor law to be designed as a barrier to entry for startups; perhaps it could even break the big players. The *AA could easily write a `reasonable' requirement that an online provider operate 24-hour complaint center which responds within 1 hour to notices of alleged violations or something.

    reply to this | link to this | view in chronology ]

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