The Internet Remains Broken In The Ninth Circuit And, At Least For Now, The Third

from the third-state dept

Hopes that the Ninth Circuit would correct its earlier awful ruling against HomeAway and Airbnb were dashed recently when the court denied the petition for rehearing. We had supported that petition because the original decision read in an exception to Section 230's statutory protection that is not present in the statute, is out of step with prior precedent (including in the Ninth Circuit itself), and threatens the Internet economy. Unfortunately, now that rehearing has been denied, any platform that facilitates commercial speech, and whose revenue model depends on facilitating the transactions arising from commercial speech, will no longer be able to reliably depend on Section 230's protection, at least not in the Ninth Circuit.

It also remains vulnerable in the Third. The Oberdorf v. Amazon case allowed a products liability claim to proceed against Amazon based on Pennsylvania law. Subsequently, a district court in New Jersey – a state within the Third Circuit, for which the Oberdorf would be binding precedent – decided to allow a similar products liability claim to proceed against Amazon based on New Jersey law, finding that, under its relevant statute, Amazon is a "seller" for purposes of its products liability law.

All these decisions are troubling, and the New Jersey one pointedly illustrates why. Not only does this decision incorporate the same analytical defects as the previous decisions, but it also reflects how all the ignorance about and hostility toward Section 230 of late has been infecting the courts.

As we explained before, all these decisions look past these platforms' role as an enabler of other people's speech. In the case of Amazon, it is other people who say they have something to sell. Denying these platforms Section 230 protection for this sort of user speech means that few, if any, platforms will be able to remain available to facilitate similar commercial speech offering something to sell. Before cheering how this state of affairs might hobble Amazon, however, bear in mind that it will hobble ANY platform that offers independent merchants a chance to offer their goods to a wider audience - including platforms that might be able to compete with Amazon. The more distaste we have for large, incumbent market players, either as platforms or even direct merchants, the more this turn of events should alarm us, because it will ensure we remain stuck with the ones who are already well-capitalized enough to endure this liability minefield and prevent us from getting any new ones.

In most of these cases the courts tried to pretend that there is something different about Amazon's relationship with third party vendors that should put them on the hook for their liability. In this case, the New Jersey court didn't like that Amazon fulfilled orders, or otherwise reserved the right to exercise editorial control over the listings it hosted.

It is true that the agreements did not make Amazon the ultimate decisionmaker as to the prices or physical qualities of the product. As to the sale process, however, the level of control was greater. For example, Amazon processed all payments. [The seller] was required to provide information about its product in the manner that Amazon prescribed. Amazon exercised control over the listing itself—in particular, it retained the right to change, suspend, prohibit or remove listings. If notified that a product was defective, Amazon had the power to take it off the shelf, i.e., to remove the website listing and thereby shield innocent consumers. Under the EBA program, Amazon even had the right to dispose of products that were defective. Compare Oberdorf in which the vendor did not use Amazon’s fulfillment services, so Amazon never physically possessed or shipped the product. Not so here. The vendor in our case signed the FBA and used the fulfillment services, so Amazon physically took custody of, packaged, and shipped the scooter which injured the plaintiff. [p. 26]

The above paragraph shows how a significant problem with this decision is how the court seriously overestimates just what sort of "control" Amazon actually has over the products sold through it. In reality there is no practical way for Amazon to police all the listings for all goods that all its users try to sell. The court confused Amazon's efforts to contractually reserve the right to try to police the listings anyway, which is exactly the sort of policing that Section 230 tries to encourage, with the actual ability to police each and every listing, which is functionally impossible. Just as Amazon could not possibly police all of its user reviews, and Section 230 exists to relieve them from the burden of this impossible task by shielding them from liability arising from these reviews, it could not possibly police all of its listings either, and so Section 230 should similarly insulate them from liability from this form of user expression too. Courts have been wrong to deny them this statutory protection, and especially so when this denial has been based on the unfounded and erroneous assumption that all this policing was something a platform could actually do.

Meanwhile, the fact that these decisions each quibble over the definition of "seller" under each individual state's law, on their way to deciding whether transactional platforms like Amazon should be liable for problems with their users' content, is itself further evidence that this sort of judicial inquiry should have been barred by the statute entirely. One of Section 230's most important provisions is its preemption provision, which forbids any state or locality from mucking about with its local law in a way that interferes with the reliable protection Section 230 is supposed to provide any online service provider, whose services are inherently available across the nation. It's easy to understand that this provision means that states can't change their definition of "defamation" in order to make a platform become liable for user content. But courts seem to be struggling to recognize that this provision should apply to any other state that would seek to make a platform liable for something wrong in their users' content (in this case the offer to sell a defective product). Allowing platforms' liability to hinge on the specific drafting of these state laws turns Section 230's protection into something inconsistent and provincial, instead of predictable and therefore useful, as Congress had intended.

The New Jersey decision did not blaze new ground here, however; it ended up being fairly consistent with the Oberdorf decision that preceded it. But it is notable for its candid hostility toward, and, dare I say, ignorance about, Section 230. In particular, in a chilling footnote, it dismissed Professor Jeff Kosseff's well-researched book, "The Twenty-Six Words That Created the Internet," and instead cited one of the completely fictional diatribes recently published in the New York Times as one of its sources underpinning its erroneous belief in the limits of Section 230.

I am not oblivious to the context or the stakes here. It has been said that the “twenty-six words” of Section 230 of the CDA, enacted in 1996, made e-commerce itself economically feasible by permitting platforms such as Amazon.com to match sellers with buyers without taking on the seller’s liabilities. See, e.g., J. KOSSEFF, The Twenty-six Words that Created the Internet, Cornell University Press (2019). It would perhaps be more sober and accurate to say that the twenty-six words of Section 230 promoted or facilitated important aspects of the internet as we now know it. A recent New York Times article, to pick an example almost at random, is a useful backgrounder on Section 230’s evolution as a tool for promotion of e-commerce (whether sly or serendipitous depends on your point of view). https://nvw.nytimes.com/2019/08/06/technology/section-230-hate-speech.html The article notes that political leaders as ideologically diverse as House Speaker Nancy Pelosi (D-CaI) and Senator Ted Cruz (R-Tex) have publicly criticized Section 230 as a giveaway to the tech industry, and have raised the possibility of reform or abolition. [fn. 18]

The court does go on to say that it was only crediting the animus against Section 230 insofar as it applied to e-commerce.

These e-commerce issues are to be distinguished. however, from others that are driving the current debate, such as Section 230’s grant of immunity for speech-based harms such as hate speech or libel. Id.; see also Reno v. ACLU, 521 U.S. 844 (1997). [id.]

But this clarification is hardly reassuring. Not only does it ignore that commercial speech is inseparable from any other sorts of expression Section 230 reaches, but if the court was in any way relying upon this ignorant media coverage, which almost universally misunderstand the purpose, value, and mechanics of the statute, then no wonder it felt comfortable ignoring them itself in gutting this critical statutory protection.

Fortunately, the one bit of tentative good news is that, unlike the Ninth Circuit, the Third Circuit has now granted rehearing of its Oberdorf decision. And, as a result, the district court in New Jersey has stayed the effect of its own decision, pending that reconsideration. Hopefully on further review the Third Circuit will be able to recognize how Section 230 is supposed to apply to even these transactional platforms, and the importance of not interfering with this operation.

Filed Under: 3rd circuit, 9th circuit, housing, rentals, section 230, transactions
Companies: airbnb, amazon


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  • identicon
    Anonymous Coward, 10 Sep 2019 @ 4:10pm

    Amazon has lots of money and lawyers.

    Given that I am sure that Amazon will arrive at a solution that further enriches Amazon and causes a maximum amount of pain to all sellers on Amazon other than Amazon itself and also cause a maximum amount of pain to all competitors to Amazon.

    Given that I do not see how my opinion is going to matter is any way.

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    identicon
    Graze Anatomy - The Bovine Digestive Tract, 10 Sep 2019 @ 4:17pm

    "Commercial speech" is not First Amendment Speech.

    Because businesses are only PERMITTED ENTITIES which ask The Public for permission to exist, promising to abide by commercial law. Businesses / corporations are NOT persons. They are not in the Constitution, no matter how lawyers try to make them so.

    Here you made me giggle because YOU and Masnick claim that corporations are empowered to moderate or even stop "constitutionally protected" speech:

    As we explained before, all these decisions look past these platforms' role as an enabler of other people's speech.

    Now, first: in just WHAT way is a "platform" an "enabler" when it's a mere mechanical HOST? My car is an "enabler" of travel, right? You are simply picking friendly non-threatening words...

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      identicon
      Graze Anatomy - The Bovine Digestive Tract, 10 Sep 2019 @ 4:19pm

      "Commercial speech" is not First Amendment Speech.

      Second, in what possible way can you construe the absolute POWER that YOU and Masnick CLAIM corporations have:

      "And, I think it's fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."

      https://www.techdirt.com/articles/20170825/01300738081/nazis-internet-policing-content -free-speech.shtml

      as "enabling" speech when clearly that's STOPPING speech?

      All you're doing here is making clear that you believe CDA 230 should be effectively the supreme law of the land, conferring not just absolute immunity but CONTROL of everyone's speech.

      You want corporations to have arbitrary power to shunt persons off to tiny sites, IF they can find one, while not just their speech but their revenue is STOPPED. But separate is not equal.

      Businesses / money / selling are NOT protected under CDA 230. You simply try to ignore a whole panoply of commercial law and courts are not going along with your NEO-FASCISM.

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    • identicon
      Anonymous Coward, 10 Sep 2019 @ 4:42pm

      Re: "Commercial speech" is not First Amendment Speech.

      An enabler is any platform that says if you play by these rules, you can use the platform for its intended purpose. Your car is a possession, which you fully control, and are responsible for its safe use.

      However if you lend it to another driver, like Amazon lends its platform to other sellers, should you be expected to control how that driver drives your car, and be held fully responsible for their actions?

      Also, offer warehousing and logistics as a service, which is only differs from the mail and parcel delivery service in that they offer storage as well as delivery. Do You blame Fedex for the contents of the parcels that they deliver?

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      • identicon
        Anonymous Coward, 11 Sep 2019 @ 7:48am

        Re: Re: "Commercial speech" is not First Amendment Speech.

        Two words: "negligent entrustment." And, as the owner of a vehicle, you are responsible for all citations that are incurred by the vehicle. Your analysis falls apart under established law, and actually supports holding Amazon liable.

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        • identicon
          Anonymous Coward, 11 Sep 2019 @ 8:01am

          Re: Re: Re: "Commercial speech" is not First Amendment

          "Two words: "negligent entrustment." And, as the owner of a vehicle, you are responsible for all citations that are incurred by the vehicle. Your analysis falls apart under established law, and actually supports holding Amazon liable."

          The only reason the vehicle owner is responsible for all parking tickets (not all citations) is because the city needs revenue and is too lazy to do their own work, so they force it upon others.
          Not sure how you got to the all citations bit ... for example, a speeding ticket will show the drivers license number of the person caught speeding, not the license number of the owner.

          What established law are you referring to and how does it cause the falling apart thing? Please show your evidence in support of your claims, otherwise it is simply conjecture.

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        • identicon
          Anonymous Coward, 11 Sep 2019 @ 8:03am

          Re: Re: Re: "Commercial speech" is not First Amendment Speech.

          you are responsible for all citations that are incurred by the vehicle

          Only when the driver is not identified at the time the citation is issued, such as from speeding cameras or traffic wardens, and if you can prove who was driving, the citation is transferred to them. In the case of Amazon, the seller is always identifies right there in the listing.

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          • identicon
            urza9814, 11 Sep 2019 @ 8:42am

            Re: Re: Re: Re: "Commercial speech" is not First Amendment Speec

            "In the case of Amazon, the seller is always identifies right there in the listing."

            One of the arguments made in Oberdorf was that neither the buyer nor Amazon themselves were able to actually identify and get in contact with the seller. The listing contains an alias, sure, but that's all it is. It doesn't actually give you their true identity or any way to locate them.

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            • identicon
              Anonymous Coward, 11 Sep 2019 @ 10:33am

              Re: Re: Re: Re: Re: "Commercial speech" is not First A

              So amazon gets their hand slapped for a lack of diligence in the handling of their suppliers/contractors/whatevers, but negligence is not a given and negligence tends to be a hard sell in a us court of law - not sure about elsewhere.

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          • icon
            Tanner Andrews (profile), 13 Sep 2019 @ 7:07am

            Re: Re: Re: Re: "Commercial speech" is not First Amend

            if you can prove who was driving, the citation is transferred to them

            Alternatively, in many states, you can take it to court. There, the state has to prove who was driving and what they did, in many cases with admissible evidence.

            No, your report that someone else said they were driving is not admissible, it is hearsay. All you can competently testify to is that you were not driving, unless you were in the car at the time.

            The red-light camera companies would prefer that you just send money.

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    • identicon
      Anonymous Coward, 10 Sep 2019 @ 7:14pm

      Re: "blue balls speech" is not First Amendment Speech.

      “Commercial speech" is not First Amendment Speech”

      Bro there’s going to be a dozen people who school you on precisely how wrong you are. I just want to make fun of how stupid you are. That you can’t get the simple fact that you are wrong through your head because you are terribly damaged goods.

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    • identicon
      cpt kangarooski, 10 Sep 2019 @ 11:37pm

      Re: "Commercial speech" is not First Amendment Speech.

      "Commercial speech" is not First Amendment Speech

      Just in case anyone is led astray by our resident moron who made that claim, I assure you, he's wrong -- just as he's almost always wrong.

      The leading case is Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980), a US Supreme Court case. The Court wrote:

      The First Amendment ... protects commercial speech from unwarranted governmental regulation. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. In applying the First Amendment to this area, we have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech. ... Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all.

      So long as the commercial speech is truthful, and concerns lawful activity, it is protected under Central Hudson. There can be some minor regulation but only if there is a substantial government interest that is directly promoted by the regulation and the regulation is not broader than it needs to be. For example, food packaging can be required to list ingredients.

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    identicon
    Graze Anatomy - The Bovine Digestive Tract, 10 Sep 2019 @ 4:24pm

    "erroneous belief in the limits of Section 230", eh?

    I've asked before how many times you're going to flatly refuse to accept the rulings of actual courts, besides now nearly all states Attorney Generals "probing" your precious GOOGLE, besides the obvious trend that people HATE being tracked and controlled, and it becoming obvious that a handful of billionaires in Silicon Valley have no scruples about trying to gain more power to surveil, track, and "UN-person" than ever in any country except current Communist China.

    You are a paid hack for corporations, period.

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    • icon
      Stephen T. Stone (profile), 10 Sep 2019 @ 4:48pm

      "Commercial speech" is not First Amendment Speech.

      [citation needed]

      Businesses / corporations are NOT persons.

      For the purposes of American law, they are considered “persons”.

      Here you made me giggle because YOU and Masnick claim that corporations are empowered to moderate or even stop "constitutionally protected" speech

      They are. Section 230 was written with the specific intent to allow moderation of speech on privately-owned platforms without facing legal liability for doing so. That the speech being moderated is “constitutionally protected” doesn’t matter. I mean, it’s 100% legal for me to write/say the word “faggot”, but if a platform wanted to ban me for doing so, I have literally no legal recourse to prevent that ban.

      in just WHAT way is a "platform" an "enabler" when it's a mere mechanical HOST?

      That’s…kinda the whole point. When the platform exists, it enables people to use it so long as they obey the rules for using it.

      My car is an "enabler" of travel, right?

      No, your car is an enabler of driving. Travelling and driving are two different things. Don’t you pay attention in SovCit 101?

      in what possible way can you construe the absolute POWER that YOU and Masnick CLAIM corporations have … as "enabling" speech when clearly that's STOPPING speech?

      Moderating bad speech and bad users allows for better speech and better users to flourish. Think of it like the paradox of tolerance, but for speech.

      All you're doing here is making clear that you believe CDA 230 should be effectively the supreme law of the land, conferring not just absolute immunity but CONTROL of everyone's speech.

      And herein lies your fatal mistake: A platform can only “control” speech on the platform itself. If Twitter boots me from Twitter, it can’t then boot me from Discord, Tumblr, 4chan, YouTube, or any other platform. Only Discord, Tumblr, etc. can do that. CDA 230 not only gives platforms the right to boot me for violating the TOS, it was written specifically to encourage moderation.

      You want corporations to have arbitrary power to shunt persons off to tiny sites, IF they can find one, while not just their speech but their revenue is STOPPED.

      Twitter isn’t responsible for my revenue. If I violate the TOS and get booted, my Twitter revenue stream going dry is my own damn fault.

      Also: The First Amendment doesn’t allow me to force my speech onto Twitter, and it doesn’t make Twitter host my speech against the desires of its owners. If you can point out a court ruling that says otherwise, you’d be the first.

      Businesses / money / selling are NOT protected under CDA 230.

      Seems like the courts may be divided on that issue, so your I-wanna-play-God proclamations aren’t exactly the final word on the matter.

      I've asked before how many times you're going to flatly refuse to accept the rulings of actual courts

      I would ask the same of you, if I thought you would answer. I mean, you’re already ignoring the court rulings (and the actual text of the law) that lay out what CDA 230 allows in terms of moderation and legal liability. What’s your excuse for that, Mr. “Common Law Is The Best Law”?

      now nearly all states Attorney Generals "probing" your precious GOOGLE

      1. So what?

      2. You can find plenty of Google criticism on Techdirt. That you ignore it or write it off as false-flagging is your problem, and we’re not here to solve it for you. (I suggest hiring a therapist.)

      besides the obvious trend that people HATE being tracked and controlled

      What are you doing to stop it besides rehashing your tired-ass SovCit act here on Techdirt, A1 citizen?

      You are a paid hack for corporations

      As it once was, so shall it ever be;
      This, I promise, is the only relevant decree:

      [citation needed]

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      • icon
        PaulT (profile), 10 Sep 2019 @ 5:27pm

        Re:

        "Twitter isn’t responsible for my revenue"

        Or, if it was you had a very poor business model, where all your revenue was dependent on using another company's property free of charge.

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      • identicon
        Anonymous Coward, 10 Sep 2019 @ 5:30pm

        Re:

        I understand you feel that you need to feed the trolls to to get your rocks off, but if you absolutely feel the need to smack down the troll, could you do it in a way that doesn't result in a wall of text providing the same sentence-by-sentence counterpoints to the same shit he's been repeating for years on end?

        That'd be nice, thanks.

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    • identicon
      Blue Balls, 10 Sep 2019 @ 7:03pm

      Re: "erroneous belief in the limits of Section 230", eh?

      Any court with judges lacks authority to issue rulings against actual people. Law is a fiction created to enforce slavery.

      Why won't you minions stop basking in the so-called rulings of judges who hold no actual power??

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    • identicon
      Anonymous Coward, 10 Sep 2019 @ 7:19pm

      erroneous belief in the limits of Ignorant motherfuckers” eh

      “You are a paid hack for corporations, period.”

      You’re just jelly that no one will pay for anything you produce.

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    • identicon
      Dave P., 11 Sep 2019 @ 11:22am

      Re: "erroneous belief in the limits of Section 230", eh?

      Are you, by any chance, going to the same psychiatrist as ol' Trumpy boy? I'd get a refund if I were you.

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  • identicon
    Anonymous Coward, 10 Sep 2019 @ 4:49pm

    "Not only does it ignore that commercial speech is inseparable from any other sorts of expression Section 230 reaches..." How exactly is it "inseparable"? Seems pretty separable to me.

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    identicon
    Anonymous Coward, 10 Sep 2019 @ 5:10pm

    Oh, okay. So if I buy something from a seller on Amazon and it causes harm to me or my family, but I can't locate the seller because they were a fly-by-night company that vanished without a trace, you want Section 230 to make it impossible for me to seek recompense from Amazon for allowing a shady fly-by-night seller onto their store that sells defective products. Got it.

    Why should Section 230 shield Amazon from being taken to court for running their store like shit to the point where it gets overrun by defective and harmful garbage? Why is it so much to ask for Amazon to improve its standards and vetting so that I and many others don't have to spend our time scrolling through pages of results to find what we need? I thought the promise of the Internet and technology in general was that it was supposed to save us time? To me it looks like the opposite has happened, and now people have to spend more time than ever before making sure they get a quality product and/or service, all because late-stage capitalism regards permissionless innovation and the freedom of companies to do what-the-fuck-ever with little to no consequences as sacrosanct.

    I'm real excited for y'all to inevitably wring your hands at lawsuits being filed against and regulations being aimed toward e-scooter companies as injuries keep piling up. Are y'all gonna claim that the e-scooter companies are protected by Section 230 and that they're a publisher of the scooters or some shit? "We feel really, really bad that all of these people are getting injured because some tech company decided to dump these vehicles all over cities with zero oversight, but you need to understand that the concussions people suffer as a result of scooter riders colliding with them is the price of innovation. So yeah, basically we at Techdirt are saying you should go fuck yourself."

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    • icon
      PaulT (profile), 10 Sep 2019 @ 5:21pm

      Re:

      "Are y'all gonna claim that the e-scooter companies are protected by Section 230 and that they're a publisher of the scooters or some shit? '

      No, because only people trying to make up some idiotic false equivalence would pretend that a law that explicitly states that it applies to "provider(s) or user(s) of an interactive computer service" would apply to electric scooters.

      Don't you guys have any objections based in reality to offer, or do you have to make shit up because you know that what the law actually says and does is something you can't really oppose?

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    • identicon
      Anonymous Coward, 10 Sep 2019 @ 5:51pm

      Re:

      You can wipe that Ajit Pai off your mouth now, Jhon Smith.

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

    • identicon
      Anonymous Coward, 10 Sep 2019 @ 7:17pm

      Re:

      Yo bro. All the farms in Kansas called and said they want their strawmen back.

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

    • identicon
      Anonymous Coward, 11 Sep 2019 @ 1:53pm

      Re: no liability

      “If it causes harm to me or my family”

      I don’t see you as a competent murderer lol
      Accidental maybe but not competent so amazon has no issue with harm

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  • identicon
    Paul B, 10 Sep 2019 @ 11:24pm

    Product Liability in a Digital Age

    I, for one, think the courts are having a hard time squaring product liability, one of the most litigated things in US history, with digital store fronts marketplaces and section 230. Section 230 says the seller is liable but the seller is in China, masking its location via Amazon, and going out of business before Amazon or the courts or really anyone can do anything about it. It's gotten so bad that entire classes of products like batteries or hoverboards are wastelands of firms open for a few weeks and going out of business as soon as they see a few returns.

    So a very fair question is what is a citizen to do in this case? Amazon so far refuses to put safeguards on its own, as its right with Section 230. The courts are almost right out, as the seller is in China or elsewhere. The only place left is an agency like the CFPB or FTC, or baring an agency from trying to fix things on its own, you will see new laws related to product liability.

    I am not sure I would like to see what laws the current administration comes up with to fix the liability issue right now.

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    • icon
      PaulT (profile), 11 Sep 2019 @ 12:25am

      Re: Product Liability in a Digital Age

      "Amazon so far refuses to put safeguards on its own, as its right with Section 230. The courts are almost right out, as the seller is in China or elsewhere"

      There are other laws that apply to them for wilful negligence, etc. Or, if there aren't there certainly should be. Section 230 doesn't absolve them of their own wrongdoing, it only means they cannot be held responsible for someone else's.

      The answer to the kind of issue you describe is to increase consumer protections, not forcing people to be held directly liable for things they didn't do.

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    • identicon
      Anonymous Coward, 11 Sep 2019 @ 6:51am

      Re: Product Liability in a Digital Age

      "squaring product liability"

      Is this anything like squaring the circle?

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

  • identicon
    cpt kangarooski, 10 Sep 2019 @ 11:48pm

    Oberdorf is correctly decided and complaining about it is very counter-productive.

    Amazon isn't facing liability for speech as if it were the publisher. It's facing products liability in a quite conventional manner because it is involved in the sale of the goods at issue. US products liability law typically hits everyone involved in the actual transaction, because they are always in a better position (or could be in a better position, if they exerted an effort) to stop products from harming consumers than the consumers themselves are.

    If Amazon were not an online business but otherwise operated in an identical manner -- just you have to go to a brick and mortar store and pick out the product you want, which might come from a third party via Amazon -- there would be no question of their liability. This is just the cost of doing business, and if Amazon doesn't like it, they're free to not let unvetted third parties sell things on their site (in just the same way that a store or other retail venue like a flea market doesn't have to let third parties set up stalls within it).

    The safe harbor stuff is a red herring, and efforts to protect the safe harbor are harmed by trying to go too far and extend it into situations like this one.

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

    • identicon
      Paul B, 11 Sep 2019 @ 12:02am

      Re:

      Not quite, if Amazon ran a Mall or even Vendor fair (a collection of vendor booths) then Amazon would still not be at risk for selling bad goods. Even if they assisted with a single payment system at the end of the day the vendors are the liable partys.

      We do not make landlords liable for bad products, nor do we make payment processors. Sometimes the government asks payment networks to not process some types of transactions, but they have to be told first.

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      • identicon
        cpt kangarooski, 11 Sep 2019 @ 5:04am

        Re: Re:

        We do not make landlords liable for bad products

        This is so where the sale is occasional in nature, which describes eBay (at least in its classical application; there seems to be plenty of people who just sell stuff regularly via eBay) but not really Amazon so much. And Amazon's role is far more involved than a simple landlord. They're a sophisticated seller of goods in their own right, list specific products rather than storefronts, and take a cut of the sale, rather than charging a flat rent.

        Also while it's a separate thing than products liability, some landlords like flea markets are routinely held liable under vicarious liability for the sale of copyright infringing goods on the premises, which has also been happening on Amazon lately. (And which 47 USC 230 also does not protect them against)

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

    • icon
      PaulT (profile), 11 Sep 2019 @ 12:33am

      Re:

      "(in just the same way that a store or other retail venue like a flea market doesn't have to let third parties set up stalls within it)"

      Would the flea market owner really be held liable for the goods sold by every vendor, and be expected to vet everyone as they come in? I'm no expert on US law in this area but that sounds like a weird situation to me compared to just holding the person selling the goods responsible. Although, with the sue-happy culture there I can imagine there's some extra liability thrown in for whatever reason.

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

      • identicon
        Anonymous Coward, 11 Sep 2019 @ 1:29pm

        Re: Re:

        Flea market operators are basically landlords. It's obvious to customers that they're dealing with individual vendors, and the market operator doesn't handle the products. Amazon is handling them. Why shouldn't their warehouses be held to the same standard as a company like Wal-mart or Costco? They handle a lot of disparate third-party products too.

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

        • identicon
          Anonymous Coward, 11 Sep 2019 @ 1:40pm

          Re: Re: Re:

          Fedex handles packages as well, should they be responsible for the contents? For Market place products, Amazon does not select the product, they simple temporarily hold packages in their warehouse while waiting for delivery instruction.

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

          • icon
            PaulT (profile), 12 Sep 2019 @ 1:13am

            Re: Re: Re: Re:

            They might not even do that. It's common for marketplace sellers to use Amazon services for delivery, but they can . use their own. In those cases, nobody at Amazon have ever seen the product. But, that's true of a lot of things. Nobody asked newspapers to be responsible for the items sold through classified ads if they turned out to be not as advertised or otherwise unsuitable for use.

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

        • icon
          PaulT (profile), 12 Sep 2019 @ 1:11am

          Re: Re: Re:

          "Amazon is handling them. Why shouldn't their warehouses be held to the same standard as a company like Wal-mart or Costco?"

          They are. The things Amazon have complete control and responsibility over are covered in the same way. You're asking them to have further responsibility over transactions they have no control over.

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

  • identicon
    Private frazer, 11 Sep 2019 @ 12:03am

    Possible good thing?

    If this does destroy Amazon and eBay, then that makes room for an Amazon 2, a more distributive system where sellersake more money using standard tools to sell your stuff on your site but amalgamators/ amazon2+ others list it for a small cut.?

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

    • icon
      PaulT (profile), 11 Sep 2019 @ 12:37am

      Re: Possible good thing?

      "If this does destroy Amazon and eBay"

      It won't. It will just make selling on those sites more expensive and limited to a small group of sellers. If it destroys anyone it will be smaller traders who depend on those services to reach customers. Amazon 2 wouldn't rise from that, because the removals of section 230 means that nobody's going to risk funding a startup that's going to get sued into the ground the moment someone has a beef with one of the sellers, justified or not.

      That's the problem with this kind of talk - the big guys might be damaged, but it's the ecosystems made up of thousands of smaller companies that have grown up around them that will be killed - and there will be zero competition from anyone not already as big as Amazon.

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

      • identicon
        Anonymous Coward, 11 Sep 2019 @ 2:09am

        Re: Re: Possible good thing?

        It's like mentioning Section 230 is a dog whistle for these idiots.

        "Will this anti-230 hammer help break up Google?"
        "Not likely, it'll actually make things a lot harder for the content creators/little guys you say you want to protect. But there is a small chance that - "
        "Then I'll SMASH IT WITH A HAMMA"

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

    • identicon
      Anonymous Coward, 11 Sep 2019 @ 4:06am

      Re: Possible good thing?

      What if Amazon2 deals with the payment processing, do they become responsible for what is being sold?

      The payment processing is a big contributor to Amazon gaining such an online presence. People do not have to give their card details to unknown sellers, which significantly reduces the risk of card fraud.

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

  • identicon
    Anonymous Coward, 11 Sep 2019 @ 6:12am

    A truly terrible argument

    In reality there is no practical way for Amazon to police all the listings for all goods that all its users try to sell.

    Consider: If Amazon had only one user, and one good, it could police all the listings. If it had two, it could. If it had 200, it could, but it would take more people.

    Continue scaling up. Did the people needed to police the scaled up listings also scale up? No? Why not?

    Now, who is responsible for Amazon having "too many listings to police"?

    Stop using the "can't police at that scale" argument, it's a bad argument.

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

    • identicon
      Anonymous Coward, 11 Sep 2019 @ 6:20am

      Re: A truly terrible argument

      If you insist on online services strictly policing their sites you will end up with no sites on which you can sell, or publish your works. Strict policing is what publishers and brick and mortar stores do, and they severely limit the people who can get their works published, or reach a market larger that passing trade to their premises.

      It is not possible for Amazon, YouTube or Facebook etc. to manually police a large part of the human race.

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

    • icon
      PaulT (profile), 11 Sep 2019 @ 6:23am

      Re: A truly terrible argument

      "If Amazon had only one user, and one good, it could police all the listings."

      Yes, because they would be quickly out of business so it wouldn't matter any more. This is your counterargument?

      "Continue scaling up."

      Yes, you need to, because the arguments . are about how things work at scale. It doesn't matter how easy things are when you have your own little coffee shop, the realities of running the whole company of Starbucks involves some rather different things to deal with, enough tp make the comparison rather stupid.

      "Did the people needed to police the scaled up listings also scale up?"

      Yes. They also invested in software to automate much of it so that it's more efficient than a human team could do it. But, the fact is that they cannot guarantee 100% accuracy, especially since they don't see the actual goods with many sellers.

      "Now, who is responsible for Amazon having "too many listings to police"?"

      So, you're saying that sites need to have a limit on what user content they can accept now? How is that determined? How is that policed?

      "Stop using the "can't police at that scale" argument, it's a bad argument."

      No, it's reality. You just choose not to understand why.

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

    • icon
      Stephen T. Stone (profile), 11 Sep 2019 @ 6:24am

      To police at scale, Amazon would need to…

      • hire at least three people who can police an individual seller at any given time of day

      • craft a set of rules with objective outlines that can be applied equally across all sellers

      • train all those new hires on how to follow those rules in an objective way

      Never mind how hiring and training thousands upon thousands of people would be costly in terms of both money and time. How can you reasonably expect those thousands of people to all follow the same set of rules with absolutely no subjective “edge case” calls?

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

      • icon
        PaulT (profile), 11 Sep 2019 @ 6:35am

        Re:

        Yes, that's the problem. Some people seem to think that just throwing more people at the issue would work. But, it doesn't. When things get to a certain scale, there's logistical and other issues to consider. Some are things that aren't big problems until you get to a certain scale. Some are massive hurdles that didn't exist at a smaller size.

        It's not impossible, but anyone who thinks it's trivial to hire a few thousand people and keep consistency and efficiency the same as it would be on a one to one basis is living in a fantasy land.

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

        • identicon
          Rocky, 11 Sep 2019 @ 7:04am

          Re: Re:

          Yes, that's the problem. Some people seem to think that just throwing more people at the issue would work.

          Yupp.. I've had this argument with a co-worker that isn't the brightest. I pointed out to him if we wanted police everything 100% it would require an infinite amount of people. He didn't get it until I pointed out that to be 100% sure everything is policed correctly those doing the policing would need people policing them and those people would need people policing them and so on.

          I know my reasoning is absurd, but it also quite handily explains why the proponents that want policing with 100% efficiency at scale are certified torchbearers of the absurd and they will happily use the torches to slash and burn businesses that can't conform to their distorted reality without going under.

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

          • icon
            PaulT (profile), 11 Sep 2019 @ 7:33am

            Re: Re: Re:

            "I know my reasoning is absurd"

            Well, not really it's just that what happens in reality is that as you start scaling like that, you're not just hiring those people. You're hiring managers, trainers, HR staff, IT staff and all the other support staff that's required to keep them running. At that scale you're also taking on new premises, and all the staff those require. You also have the realities of large teams to work with - staff turnover and training of new recruits, keeping up with work consistency across continents and so on. Not to mention that as soon as you've managed to get 99.999% efficient, at scale that still means thousands of items will likely slip through the net and you'll be sued anyway. It's just guaranteed at that volume of traffic.

            100% efficiency is impossible. Amazon should try and improve a lot of things they do, and get as close to that as possible. But saying "throw more people at it" is deluded, and only betrays a lack of experience with what happens above basic ground level at any large company.

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

      • identicon
        Anonymous Coward, 11 Sep 2019 @ 2:09pm

        Re:

        hire at least three people who can police an individual seller at any given time of day

        Make that 4 to 5, so as the hires can have days off and someone is available for sickness cover, unless you expect the hires to work sixty hour weeks and 12 hour shifts to allow 2 days a week off, but no holidays.

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

      • icon
        Tanner Andrews (profile), 13 Sep 2019 @ 7:23am

        Re: [police at scale]

        [] hire at least three people who can police an individual seller at any given time of day

        Actually, 5. You have to allow for week-ends and so the usual rule of thumb for 24/7 is 5 FTE.

        [] train all those new hires on how to follow those rules in an objective way

        And, there will need to be an appeals process because that many humans will screw up frequently. My experience is that appeals processes are unreliable, perhaps due to the inclination of panelists to prefer golf over analysing the files. So you may need some provision beyond first level appeals.

        Amazon may be large and profitable enough to be able to design and implement such a system. It is possible, nay, certain!, that many companies setting up such a process would be willing to cut corners.

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

  • identicon
    Anonymous Coward, 11 Sep 2019 @ 8:13am

    the problem is, as far as the entertainment industries are concerned, it isn't broken enough! they want it 'back doored', in other words, so it is totally fucked for everyone else with the only way to fix it being give it to them! when that happens (and we are fast approaching that scenario!), you watch how the attitude towards torrent files, towards high speed downloading/uploading, etc etc changes! suddenly everything they despise, supposedly, atm, how bad they are, how virus full they are, how murderous they are, how much they affect kids and encourage copyright infringement and pornography, will become the best thing since meat could be bought cooked and in boxes!!

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

  • icon
    BernardoVerda (profile), 11 Sep 2019 @ 1:24pm

    Would it be useful to compare this to (for example) swap meets?

    Does someone who puts together a swap meet become responsible, because they may take action against shady dealers (barring certain transactions or even booting the dealer)?

    Or what about one of those food fairs or beer fests where customers buy tokens, rather than pay cash at each individual booth? If someone gets food poisoning, is the organizer responsible, because they organized the event and handled the financial transactions?

    I'm not following the logic, here.

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

  • identicon
    Anonymous Coward, 11 Sep 2019 @ 2:02pm

    Definition of "seller"? What about the damn manufacturer? We in wtfland now.

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


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