And this, boys and girls, is what happens when you FUBAR your common carrier status.
For those that don't know, the common carrier exemption (in relation to ISPs and webhosts) provides a limitation of liability to a host in the transmission, storage and linking of material on their servers. This was originally meant to cover transmission of copyrighted material, a la mp3s, but has since been used to cover other types of material, such as pornography.1 This exemption is part of title II of the Digital Millennium Copyright Act (DMCA): the “Online Copyright Infringement Liability Limitation Act.”
There are two parts that directly apply to what's going on now:
The limitation for storage of information on systems or networks limits the liability of ISPs for infringing material on websites hosted on their systems.
The limitation for information location tools relates to hyperlinks, online directories, search engines, and similar applications. This provision limits ISP liability for linking to a site containing infringing material.
In order to maintain their exemption of liability, ISPs and hosts must:
First, upon notification of infringing content, the ISP must take down or block access to the material (“Notice and Take-Down”). In addition: (i) ISPs cannot be the initiator of the infringing material or be actively involved in the transfer of such material (i.e., all activities must be automated), (ii) the content of the material transferred or retained may not be modified by the ISP, and (iii) the ISP cannot receive direct financial benefit from the infringing material. [source (http://strategis.ic.gc.ca/epic/site/ippd-dppi.nsf/en/ip01089e.html)]
Here's where LJ/6A current behavior comes in--up until now, when something has been reported to LJ, the standard response has been to say it's freedom of speech, they can't do anything about it. This has been the standard response in such cases for the vast majority of ISPs and web hosts. Instead, most carriers will wait until presented with a court order, law enforcement order, or C&D from a copyright holder. Why? Because if they don't put themselves up as the arbiters of what is and is not legal to have on their servers, then they have plausible deniability.
As soon as an ISP or web host starts removing content without a legal order, they are taking legal responsibility for a) knowing what is illegal for them to have on their servers and b) for making sure it's taken off. This is the slippery slope that 6A is now on.
If it's really a case of them not wanting this type of content on their servers, the smart thing to have done would have been to report the content to WB for copyright violation or, if they really thought it violated obscenity laws, to a law enforcement agency who would have then ordered them to take it down. I suspect, however, that 6A is trying to keep a lower profile than that and instead decided to remove it themselves rather than risking a stink over copyright or obscenity violations on their servers.
Unfortunately, in doing so, they may have sealed their fate in terms of their legal status.
1 I don't know if this has been tested in court yet.
no subject
For those that don't know, the common carrier exemption (in relation to ISPs and webhosts) provides a limitation of liability to a host in the transmission, storage and linking of material on their servers. This was originally meant to cover transmission of copyrighted material, a la mp3s, but has since been used to cover other types of material, such as pornography.1 This exemption is part of title II of the Digital Millennium Copyright Act (DMCA): the “Online Copyright Infringement Liability Limitation Act.”
There are two parts that directly apply to what's going on now:
In order to maintain their exemption of liability, ISPs and hosts must:
Here's where LJ/6A current behavior comes in--up until now, when something has been reported to LJ, the standard response has been to say it's freedom of speech, they can't do anything about it. This has been the standard response in such cases for the vast majority of ISPs and web hosts. Instead, most carriers will wait until presented with a court order, law enforcement order, or C&D from a copyright holder. Why? Because if they don't put themselves up as the arbiters of what is and is not legal to have on their servers, then they have plausible deniability.
As soon as an ISP or web host starts removing content without a legal order, they are taking legal responsibility for a) knowing what is illegal for them to have on their servers and b) for making sure it's taken off. This is the slippery slope that 6A is now on.
If it's really a case of them not wanting this type of content on their servers, the smart thing to have done would have been to report the content to WB for copyright violation or, if they really thought it violated obscenity laws, to a law enforcement agency who would have then ordered them to take it down. I suspect, however, that 6A is trying to keep a lower profile than that and instead decided to remove it themselves rather than risking a stink over copyright or obscenity violations on their servers.
Unfortunately, in doing so, they may have sealed their fate in terms of their legal status.
1 I don't know if this has been tested in court yet.