Well, PaulT, you might not like a pretty vast body of law in the United States and all other legal systems I've studied. Third party liability, contributory liability, vicarious liability, are all theories that are alive and well. I'd be pleased to direct you to resources on that, if you're interested.
Further, you seem to be ok with that concept -- you just draw the line at the wall (or website) owner being liable only after a court order. I'm not arguing for liability prior to a court order. I'm arguing that the website owner should get the choice - once put on notice - of either defending the content or complying with a takedown request (with appropriate safeguards and blowback for bogus complaints).
So you would say liability should attach to the wall owner never?
Including if the aggrieved party is willing to clean the graffiti off himself, but the wall owner says "nah, I like it there" -- or "well, I might not have written it, but so many people come by to see it, that it has actually improved my property values, so I am leaving it."
Should the wall owner be automatically or immediately liable? I say no. However, I see no reason why the wall owner should be able to reap the benefits of the content without enjoying the responsibility for it as well. That responsibility should not attach immediately, nor should the system have "clean the wall" as its default. But, if a party has a legitimate legal grievance, is willing to bear the cost of cleaning the wall, and asks the wall owner for permission to do so, then the wall owner should either have to permit it, or make the words his own.
The reflexive desire to protect Section 230, in its current form, at all costs, borders on irrational.
If you look at the court cases dealing with this, I think you might find yourself to be a little more optimistic. In general, the courts have not been too quick to pull the mask off of a speaker without the right level of proof.
That's a good question: I agree that you have a First Amendment right to speak anonymously. However, if you look at the line of cases dealing with this right, (Dendrite, Cahill, etc.) the right is not absolute. (Nor do I believe it should be absolute). Nevertheless, the cases (and I) agree that the aggrieved party must put forth some showing of liability for the speech, before the speaker may be legally unmasked.
The bottom line is, if the speech is truly actionable (and shows that before revealing the speaker's identity), then the speaker should not be able to evade liability only because the speaker manages to hide. On the other hand, I do not think that plaintiffs should be able to unmask anonymous speakers without making a showing that the speech is actionable, because First Amendment.
You're basically arguing that the owner of a wall should be liable for the content of the graffiti painted on it.
Is that such a bad standard?
I agree that it would be absurd to have strict liability for the owner of the wall to be liable for graffiti painted on it. But, lets agree that the graffiti is somehow violating a third party's rights.
Then, I think nobody would say the wall owner is liable at the moment that the graffiti is placed there. After all, he had nothing to do with creating the graffiti, and probably didn't even want it there.
But, would you argue that he should never become liable? If he gets a letter from the subject of the graffiti, bringing it to his attention? If it is easy to remove? And, yet, the wall owner decides that he just doesn't care? At some point wouldn't you want the wall owner to have any responsibility at all?
I think you may have very little experience with the legal system. I've defended cases on this very principle -- "go after the person who posted it." I've been paid to support the Section 230 arrogance. And, for as long as it is the law, then I'm fine doing so.
But, I can't say that I don't have personal feelings of sympathy for the poor bastards trying to deal with that. Did the original poster use Tor? Tough shit for you then. Is the original poster judgment-proof? Tough shit for you then.
And, if someone does wind up proving that the content violates some right, they do that after five-to-six figures in attorneys fees, and two years of fighting. Meanwhile, the OSP could have made a judgment call.
Now sometimes they do. I've represented Sect. 230 businesses who would act responsibly, and take clearly violative content down. I've also represented aggrieved parties, and sent Sect. 230 businesses letters stating "I know you're protected by Section 230, but here's why this should come down..." and I have had good results.
The current system is very nice for me, Google, and Facebook. I love the money I make defending Section 230. Google loves having as much content as it can, without giving half a shit about anyone else. But, to think that the current system is the best one is to think quite narrowly.
One exercise I like to engage in is to take something that I believe in dearly, and challenge myself on that belief.
Section 230 is one of those beliefs. When I look back at all the Section 230 cases that I have both handled and researched, it seems to me that it might be superior from a policy perspective to have some kind of notice and responsibility provision. If an OSP receives a notice that the content is somehow violative of the complainant's rights, then the OSP can either a) take it down, or b) accept legal responsibility for the content.
I would, however, suggest that it would not be that simple -- as there should be prevailing party attorneys' fees on both sides - so if the OSP takes responsibility and gets sued, the content had better be actually violative of some legal right. I'd also like to see a provision that the author would receive statutory damages (payable by the complaining party) if the content was taken down due to a bogus complaint. And perhaps even the right of the OSP to bill the complaining party for its fees in having a lawyer review the complaint, whether the complaint is bogus or legitimate (after all, the OSP should not be taxed with the cost of a letter writing campaign by someone with censorious intent).
Section 230 has been a good engine for development of countless services, and that is a good thing. Unfortunately, it has also been a good engine for harmful arrogance on the part of a lot of 650/415 area code businesses.
There are companies that exercise responsibility - in my experience, Automattic is pretty protective of its users' rights, but it will not simply cover its ears and say "Section 230, Section 230, Section 230" when concerns are brought to its attention. I've represented a number of companies that have internal responsibility policies that make me proud to represent them. I have Sect 230 clients who don't give a shit too, and for as long as that is the law, then I'll defend their right to not give a shit until they tell me to relent.
But, the problem with Section 230 is that it has become a license to not give a shit. The more irresponsible, the more profitable. That's not really desirable.
Perhaps, but that is because the song fucking sucks.
The Macarena didn't ignore copyright, and it was just as wildly successful and annoying.
Gangam Style exploded because most of the market is a bunch of idiots who will eat up auditory junk food like it is a tootsie roll handed out on Southwest Airlines.
I'm reasonably certain that if Alex Chilton's estate released all of his works to the public domain, that we wouldn't have an explosion of Alex Chilton's popularity. You'd just have a few less people buying it on iTunes.
I can't disagree with your conclusion - yes, there is no magic pill, and what works for one might not work for another. Let the artists make the decision to abandon their rights or not. If they do, and it works for one, maybe it works for 10, and maybe it works for so many that the market changes.
He didn't make $8.1 million by ignoring copyright infringements. He made $8.1 million while or despite ignoring infringements.
But, what is important here is that he made that choice. And, perhaps it shows the wisdom of making that choice. On the other hand, he's also lost a lot of the ability to control the use of his work - and he may not care about that. But, he ought to have the right to make that his choice.
If other musicians take the opposite approach, we very well may find that the free market shows us the right way to do this.
But, lets remember that the plural of "anecdote" is not "data." If we examine every musician (or a statistically significant sampling of musicians) and try and figure out whether just giving the music away is a smarter business move, or if PSY is a statistical outlier, we might come to a different answer. (Maybe not, but you have to do the work -- don't just be lazy and say "look! guy ignores copyright, gets money! The end!)
I think your statement that the artist sued "just to get publicity" is unfounded and unfair. I know the plaintiff's attorney, and she's not going to sign a complaint that is for no reason but a PR stunt.
If I walk into a city, get some random artist to paint my portrait and buy it, then he does not hold copyright to that portrait. He did it for me, using me, and the job will be unique to me.
The presumption is that the artist owns the copyright. You can take that portrait home, but you can't start selling prints of it. You don't own the copyright in a work just because it is a picture of you.
However, if you're smart, you tell the artist to sign a "work for hire" agreement before he starts. Then you own the painting and the copyright to the painting, and you can do as you like with both the physical object and reprints of it.
I am a proponent of the "open wifi=negligence" theory. I still think it is a sound theory, but I also acknowledge that it is now 0-3, and it isn't likely to go anywhere soon -- at least not until someone other than a porn company raises it.
I think that the decisions that say it is pre-empted are erroneous, and the result of judicial laziness, at best. I don't see how a common law claim can pre-empt another common-law claim. Further, negligence requires an additional element, beyond the infringement, which places it outside of pre-emption. But, when your judge is lazy or simply hostile to torrent actions, then you're not going to get anywhere with that.
The Section 230 analysis is just plain stupid - especially when we consider it in light of the pre-emption analysis.
Extending section 230's definition of a "service provider" to a residential subscriber, who leaves their wi-fi open, has neither a textual nor logical basis, nor does the legislative history of the Act support such a reading.
Further, if we understand that Section 230 exempts IP claims, but we say that it applies nonetheless, because the negligence claim is a state law claim, then the pre-emption analysis' weakness shows itself. If it is an IP claim, then Section 230 doesn't apply. So, if it is pre-empted, then Section 230 can't apply. On the other hand, if it is not an IP claim, then it can't be pre-empted. You can only have Section 230 or pre-emption, no matter how much you want to screw over Prenda to get them the hell out of your district.
On the other hand, the weak link in the open wi-fi negligence theory is proving the existence (or non-existence) of a legal duty. Whether there is a legal duty is for the courts to decide, as stated in the "tugboat case." That's what The TJ Hooper case stands for - it is the province of the courts to recognize, or reject, new duties of care in tort actions.
If the court finds no duty, then there is no duty. In part, I like this AF Holdings case, because this court, unlike the two before it, finally did the work of analyzing whether or not a duty exists. It may not bind any other court, but at least it finally devoted some thought to that element. That is where the debate really should be focused.
A recent Wyoming Supreme Court case tends to support the logic that open wifi would not expose the subscriber in a negligence claim. It has some good analysis of both the duty analysis and the causation analysis.
In Lucero v. Holbrook, 2012 WY 152 (Wy. 2012) the defendant left a running car in the driveway, and a meth-head walked by, stole it, and crashed it into the plaintiff after a high-speed chase. The plaintiff argued, logically, that had she not done something so foolish as leave her car running, unattended, no harm would have come to her.
The Wyoming Supreme Court found that not only was there no duty, but that the harm was not proximately caused by the defendant's carelessness. These are arguments that might also fly in a defense against an open wifi negligence case. Of course, the Wyoming case might have turned differently, had the car been left on a public street, instead of in the owner's driveway - as there is a statute that prohibits leaving the car unattended and unsecured on a public highway. But, that's a matter of state law. Compare State v. Eckhardt, 165 Vt 606; 686 A.2d 104 (Vt. 1996) (Private driveway considered to be a "public highway" for purposes of enforcing DUI statute).
Naturally, all legal analogies break somewhere. So, we might one day find that a court gets past the lazy issues, and then finds that leaving your residential wi-fi open is different than a car accident, and the harm is foreseeable. Or, the thread may continue, with proximate cause or duty (or both) turning against the theory. We may see a sliding scale for forseeability - that in an urban area, the harm is almost certain to occur, and in a rural area, almost impossible that it would occur. A court might find that it applies to a residence, but that a commercial establishment with public wifi might fall under another standard. (Personally, I think that a commercial establishment should not be held negligent for having an open wifi, but I think that a residential customer should be, under the right facts).
Before you open your wi-fi to celebrate this case, wait for an appellate court to weigh in. One will have to, sooner or later, and it might conclusively reject the existence of a duty, but it might not. I am confident that the pre-emption analysis will eventually be rejected by an appellate court. But, then you're going to be left with some heavily fact-based analysis of duty and proximate cause.