The liability of Internet service providers and online services for hosting or transmitting material originating with their subscribers poses difficult policy problems. Everyone acknowledges that it is impossible for service providers to screen and review every post, video, image, or email message before allowing it to appear or travel to its destination. Imposing liability for subscribesr’ material, thus, imposes a legal burden that no amount of care could discharge. The rational online service faced with such a legal regime might simply decline to carry any material originated by consumers. If we want email services, and the ability to post content on the Internet, we need to think about the terms under which services should be answerable for material created by third parties. On the other hand, the assistance of Internet and online service providers is essential to helping individuals and businesses injured by online material identify the entities responsible for offending material and removing it from public view. Without the prospect of liability, will Internet and online service providers have any incentive to cooperate with injured individuals?
Congress has enacted two statutes limiting the liability of Internet service providers for their subscribers' posts. The statutes treat service providers differently, depending on the cause of action. Section 230 of the Communciations Decency Act limits service provider liability in defamation and other tort actions, while Section 512 of the Copyright Act limits service provider liability for copyright infringement. Why take two different approaches? Does one make more sense than the other?
Does section 230 strike the appropriate balance? How would you improve it? Should Congress revise Section 230? Should it enact the State Attorneys General proposal?
Some copyright owners insist that search engines and online services that invite individuals to post content should bear a greater share of the responsibility for removing infringing material. (See here, here, here, and here.) Others object that the current system allows rampant takedown abuse, allowing claimants to remove material even if it infringes none of their copyrights. (See here, here, here, and here.)