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Using the CDA and the DMCA to Limit Liability for Publication Torts and Copyright Infringement

Lee T. Gesmer
aken together, the Digital Millennium Copyright Act (DMCA) and the Communications and Decency Act (CDA) provide significant protection against copyright infringement and publication torts that arise from postings made by third parties on Internet Web sites. This article discusses the protection that these statutes provide and what operators of Web sites must do to ensure that they take full advantage of the protection provided by these laws. The problem of whether interactive computer services that published third-party content would be treated as publishers (and therefore, according to common law principles, liable for illegal postings by their members) or distributors (and therefore not legally responsible for member postings unless they had knowledge of illegality) arose in the pre-Internet era of the early 1990s.The issue became more pressing as the Internet became a popular communications medium in the mid-1990s.The problem facing Internet Service Providers (ISPs) and other interactive computer service providers was how they could protect themselves from liability that might arise based on information that was posted by third parties without any direct involvement by the ISP. ISPs voiced concern that, given the millions of users and the enormous volume of communication passing through their computer systems, it was impossible for them to responsibly police all communications or investigate and act responsibly when receiving complaints. Cases pre-dating the CDA and the DMCA highlighted the tension between the policy goal of encouraging ISPs to transmit third-party content without fear of liability and the need to hold ISPs liable under certain circumstances. For example, in Playboy Enterprises, Inc. v. Frena,1 a pre-Internet case, the operator of a bulletin board service was treated as a publisher and held liable as a direct copyright infringer, despite its

Lee T. Gesmer is a partner in the law firm of Lucash, Gesmer & Updegrove, LLP, in Boston, MA.The firm specializes in all aspects of the representation of high-technology companies. Volume 2 Number 7 June/July 2002

lack of knowledge, based on the posting of materials provided by a customer, in effect imposing strict liability on the service. Two years later, a court took a different view of ISP liability based on third-party content. In Religious Technology Center v. Netcom On-Line Communication Services, Inc.,2 an ISP that transmitted material that infringed the plaintiff s copyright was held not liable when the ISPs system was used only to create a copy submitted by a third party, and the ISP could not verify a claim of infringement by the plaintiff.3 These cases all involve ISP liability for copyright infringement, while another line of cases addresses tort liability for third-party conduct. In Stratton Oakmont, Inc. v. Prodigy Servs. Co.,4 the plaintiffs sued Prodigy (an interactive computer service similar to that operated by America Online (AOL)) for defamatory comments made by an unidentified party on one of Prodigys bulletin boards.The court held Prodigy to the strict liability standard typically applied to original publishers of defamatory statements, rejecting Prodigys claims that it should be held only to the lower knowledge standard usually reserved for distributors. The court reasoned that Prodigy had acted more like an original publisher than a distributor, both because it had advertised its practice of controlling content on its service and because it had actively screened and edited messages posted on its bulletin boards. This case put online service providers in the awkward position of taking a hands-off policy to avoid liability for illegal third-party content posted on their sites until notified of an illegal posting, and then having to assess the validity of a complaint and respond promptly and reasonably to avoid liability. Congress soon took responsibility for encouraging the growth of the Internet, while at the same time trying to balance the publisher/distributor characterization problem by passing the CDA and the DMCA, two statutes that provide significant protection to online service providers for third-party publication torts and copyright infringement.
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Section 230 of the CDA The CDA5 was Congress first effort to regulate liability for content on the Internet. Although a part of the CDA that regulated the publication of indecent or patently offensive speech attracted a great deal of attention was ultimately struck down by the Supreme Court in 1997, the law contained other provisions that went unchallenged. The most important of these, for purposes of this article, is 230(c)(1) and (2) of the law. Section 230(c)(1) provides that interactive computer services are not the publishers or speakers of information provided by another content provider: (c) Protection for good Samaritan blocking and screening of offensive material (1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Although subsection (c)(1) provides that covered entities are not to be deemed publishers, the law does not stop there. Section 230(c)(2), the so-called Good Samaritan section of the CDA, provides even further protection, giving covered entities the kinds of editorial freedom traditionally reserved for publishers but without the additional burden of potential liability.This section of the law removes the disincentives to self-regulation created by Stratton Oakmont. It provides as follows: (2) Civil liability No provider or user of an interactive computer service shall be liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). Immunity under 230 of the CDA requires three things. First, the party seeking immunity must be an

interactive computer service. Second, the interactive computer service must not be an information content provider, with respect to the disputed activity; and third, the information at issue must originate with a thirdparty user.

Section 230 of the CDA provides broad protection by appearing to put interactive computer services in the unique position of distributors with editorial discretion, but cases decided under the statute and, indeed, the statute itself raise questions regarding the applicability of the law. For example, what exactly is an interactive computer service? What are the limits of protection provided by the CDA? What can an interactive computer service do to be sure that it does not inadvertently cross the line and become an information content provider? What affirmative actions must an interactive computer service take to ensure that it uses the protection provided by this statute?
What is an Interactive Computer Service? The term interactive computer service is defined in 230(f)(2) of the CDA: The term interactive computer service means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. It was at first uncertain whether the courts would extend the reach of 230 beyond traditional ISPs (i.e., Web sites, such as AOL, that enable access to the Internet). Later cases have viewed the definition expansively. The CDA has, in fact, been used to protect AOL more than any other company from liability for thirdparty tortious conduct, and unsurprisingly most of the early cases applying the CDA involve AOL as a defendant.6 The first case to address application of the CDA to entities other than traditional ISPs did not arise until 2000. In Stoner v. eBay, Inc.,7 the court held, without discussion, that eBay, an online auction site, was protected from liability under a California statute that prohibits the making of bootleg copies of sound recordings.This case was unusual in that the conduct at issue (making bootleg copies of sound recordings) arguably is preempted by federal copyright law, in

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which case the action should not have been heard in state court in the first place, and the CDA (which does not apply to violations involving intellectual property) should not have been applied. Nevertheless, Stoner was the first case to establish the precedent that the CDA protects a Web site that hosted third-party content that was not an ISP in the tradition of companies like AOL. Additional cases were quick to follow. In 2001, a California Superior Court extended the protection of the CDA to the operator of an Internet discussion group, concluding that 230 extends to users as well as to operators of an interactive computer service.8 In another case, Schneider v., Inc.,9 the court rejected the plaintiff s argument that 230 should not apply to protect Web site hosts that do not enable access to the Internet. Rather, the court explicitly concluded that the beneficiaries of the statutes immunity include interactive Web site operators such as In Patentwizard, Inc. v. Kinkos, Inc.,11 the court held that Kinkos, which rents computers with Internet access, was protected under 230. Thus far, only one case has limited the definition of an interactive computer service. In Batzel v. Smith,12 the court held that 230 did not protect the defendants, Museum Security Network (MSN) and its creator and operator, Tom Cremers, because MSN was not a true ISP. Nevertheless, the majority of cases decided in 2000 and 2001 have construed the definition to include Web site hosts, and this is the clear trend in the law. Any Web site that hosts third-party content and therefore is vulnerable to a tort claim should (1) assume that it is covered by the CDA, (2) take whatever measures the law requires to maintain that coverage, and (3) assert the CDA as an affirmative defense if accused of responsibility for tort-based behavior engaged in by third-parties on the hosts interactive site. What are the Limits of Protection Provided by the CDA? Not surprisingly, plaintiffs have been creative in attempting to circumvent the immunity provided by the CDA. However, assuming that the court has found the defendant to be an interactive service provider protected by the CDA, trademark infringement is the only area where plaintiffs have found success.

In the first significant case decided after enactment of the CDA, Zeran, the court rejected the plaintiff s argument that an interactive computer service could be held liable for defamatory statements because it had actual knowledge of the defamatory statements upon which liability was predicated, so-called notice-based liability.13 In Morrison v.America Online,14 the court rejected the plaintiff s attempt to avoid AOLs claim of immunity under 230 by arguing that she was a third-party beneficiary to the subscriber agreement between the anonymous speaker of the defamation and AOL. In Schneider,15 the court not only rejected the plaintiff s argument that a contract claim avoided the protection provided by 230 but also noted that nothing in the CDA limits 230 to tort claims. Other courts have also held that 230 extends to actions and claims for declaratory and injunctive relief.16 The only substantive context in which protection under 230 has been denied thus far is in cases when the plaintiff has alleged trademark infringement. In Gucci America, Inc. v. Hall & Associates,17 Gucci notified Mindspring (an ISP offering services similar to Prodigys and AOLs) that one of its subscribers was using Mindspring to advertise jewelry that infringed Guccis trademarks. After Mindspring took no action, Gucci filed suit on various federal and state trademark law theories. Mindspring raised 230 of the CDA as a defense in its motion to dismiss. Although the court acknowledged that Mindspring, an ISP, was an interactive computer service, it noted that 230(e)(2) of the CDA provides that [n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property. Rejecting the defendants argument that the CDA provided immunity, the court noted that, if the CDA had been intended to provide immunity from intellectual property infringement, enactment of the DMCA (which provides ISPs with conditional protection for copyright infringement and is discussed below) would have been superfluous. A short opinion by a federal district court judge in the Eastern District of Michigan applied the same rationale to deny dismissal to a vendor of domain names sued by Ford Motor Company on trademark infringement grounds.18 Because 230(e)(2) excludes intellectual property law violations from CDA immunity, the courts may find themselves drawn, as these cases proceed on the merits,

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into the pre-CDA/Stratton Oakmont analysis: Are the defendants publishers (who would be liable for infringement) or distributors (who, once having knowledge of an infringement, may be held liable for the infringement if they do not take adequate steps to curtail it)? The Gucci America and cases clearly leave interactive computer services companies potentially liable for contributory trademark infringement, but what about liability for direct copyright, patent, and trademark infringement? The scope of immunity for copyright infringement is determined by the DMCA and therefore is clearly excluded from CDA immunity. Patent infringement, being an intellectual property right created by federal law, almost certainly will be viewed as being outside of the scope of the CDA for the same reasons that trademark infringement was outside its scope in Gucci America. Whether the CDA will provide protection for violations of the fourth major branch of intellectual property law, trade secret law, is uncertain.Trade secret law has elements that lend themselves to both intellectual property analysis and tort analysis. Until the courts have the opportunity to consider the issue, it remains to be seen whether the CDA will immunize interactive computer services that are used by third parties to violate trade secret rights. In the meantime, interactive computer service providers should be alert to complaints that their systems are being used to expose trade secrets and react quickly to complaints. When is an Interactive Computer Service also an Information Content Provider? Section 230 of the CDA protects interactive computer services from liability for the acts of information content providers. Section 230(f)(3) of the CDA provides that the term information content provider means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. There is, of course, no reason that an interactive computer service cannot also be an information content provider, and most interactive computer services do provide content. For example,AOL,, and permit subscribers to publish on their sites, but they also publish their own content. Section 230 of the CDA provides immunity in the case of illegal post-

ings by subscribers, but it does not provide immunity with respect to material for which the service is itself responsible.Thus far, no plaintiff has successfully argued that companies such as eBay or are responsible for the development of the offending information, thereby turning an interactive computer service into an information content provider. In Stoner, for example, the plaintiff was unable to overcome immunity by arguing that eBay had moved itself into the position of an information content provider by informing prospective purchasers that illegal recordings were available on its site.The court found it dispositive that the information in dispute had originated with third-party sellers, not with eBay, and therefore it was the sellers, not eBay, that were the information providers. The court concluded that neither aggressive advertising nor the imposition of a fee including a fee based in part on the price at which an item is soldtransforms an interactive service provider into a seller responsible for items sold.19 Likewise, the fact that eBay provides insurance for many auctioned items as well as escrow and payment services did not render eBay a seller of the offending products.20 Do Interactive Computer Services Need to Take Affirmative Actions to Receive Immunity under 230 of the CDA? Section 230(d) of the CDA provides: Obligations of interactive computer service A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying current providers of such protections. Although the statute does not make immunity expressly contingent on disclosure of parental control protection availability, the cost of providing the disclosure is so minimal that it seems prudent for any entity that does business online and permits the publication of

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third-party content to provide disclosure. Figure 1 provides an example of a Model Minor Access Policy. Section 230 of the CDA has been interpreted to give interactive computer service providers the best of both worlds. By being given the legal status of distributors, providers are immunized from tort claims based on information posted by third parties; at the same time, they cannot be held liable for the exercise of functions traditionally performed by publishers, such as deciding whether to publish, withdraw, postpone, or alter content, and they are free even from liability on notice. Notice of postings that indicate illegality does not defeat immunity, and interactive service providers can choose not to act in response to complaints from victims of alleged third-party torts. None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability.Though the CDA keeps government regulation of the Internet to a minimum by providing immunity for tort liability on the part of companies that serve as intermediaries (at least in the area of tort liability), persons who engage in harmful online speech (such as defamation, stalking, and harassment by means of a computer) have no special protection by reason of the fact that they use a computer to engage in these wrongs. Meanwhile, service providers must remain vigilant with respect to complaints involving copyright, trademark, patent, and trade secret violations. Section 512 of the DMCA Even though 230 of the CDA requires almost no affirmative steps by interactive computer services to be immunized against publisher liability (apart from liability for intellectual property violations), Congress took a very different view of liability for copyright infringement, creating a complex system that establishes strict requirements for immunity from copyright liability based on third-party postings. Title II of the DMCA added 17 U.S.C. 512 to the US copyright statute. Section 512 is intended to give service providers greater certainty regarding copyright infringement risk by creating a safe harbor from liability. Not every aspect of this complex law will be discussed in this article.21 Section 512 of the Copyright Act limits liability in connection with four types of activities as follows: 1. Service providers that act essentially as a data conduits, transmitting material at the request of

Figure 1 Model CDA Minor Access Clause Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. If you are interested in learning more about these protections, information is available at http://www.worldvillage. com/family/parental.html, as well as at a number of other Internet sites that provide information on this form of protection. others.The best example is the conventional ISP. ( 512(a)). 2. Service providers that provide system caching as a temporary service. System caching is typically an appliance technology used by ISPs and others to decrease Internet wait times by caching frequently demanded information locally.This is a relatively narrow service provided by specialized communications companies. ( 512(b)). 3. Service providers that permit third parties to store information. This is the broadest category; it includes any Web site that hosts third-party content. ( 512(c)). 4. Search engines. Examples are Yahoo! and Google. ( 512(d)). Because the vast majority of practitioners are likely to encounter demands for legal services from companies in the third category, we will discuss application of 512(c) of the Copyright Act to that group in some detail.The other categoriesISPs, caching services, and search enginesare highly specialized, small in number, and are likely to have in-house counsel who are trained to deal with issues arising under the DMCA on a somewhat regular basis. Section 512(c)Conditions to Protection Section 512(c) creates an exemption from copyright liability by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider . . . . Who qualifies for protection under this exemption? Two provisions of 512 provide the definition of a service provider for purposes of 512(c). First, 512(a) defines a service provider as:

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an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the users choosing, without modification to the content of the material as sent or received The definition of a service provider under the remaining three exemptions is expanded further by 512(k)(1)(B) to include a provider of online services or network access, or the operator of facilities therefore . . . . Taken together, the definition of a service provider for purposes of 512(c) is very broad and encompasses any entity that provides online services, whether a traditional ISP or simply a conventional Web site that permits the posting of third-party content. Unlike the CDA, however, the DMCA establishes strict requirements and conditions in exchange for this immunity. A service provider must satisfy three conditions to take advantage of the exemption provided by 512(c). Knowledge. First, the provider must lack knowledge that it is hosting infringing material.The provider must lack actual knowledge that the material is infringing, it must not be aware of facts and circumstances from which infringing activity is apparent (known as the red flag test), and finally, after the red flag is waved, it must act expeditiously to remove, or disable access to, the material.22 Financial Benefit. Second, the provider cannot receive a financial benefit directly attributable to the infringing activity when the provider has the right and ability to control such activity.The legislative history suggests that set-up fees, monthly service charges, charges for connect time, and the like should not be deemed directly attributable to infringing activity under this section.23 However, sales or commissions based on sales or licenses of the infringing work would constitute such a financial benefit and strip the provider of protection under this section. Notice and Take Down. Third, upon notification of claimed infringement, the provider must respond expeditiously to remove or disable access to the material.24 This is referred to as a notice and takedown procedure. The details of the notification provisions of the law are discussed below. Notice and Take DownA Closer Look The concept of notification, or notice and take down, is critical to 512.The statute provides a detailed
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procedure for such notification and requires a service provider seeking protection under the law to appoint a designated agent for purposes of notice and to register the agent with the US Copyright Office. To be effective, notification of infringement must be written and contain the following: Signature. The notification must be signed (either physically or electronically) by a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.25 Identification of Material. The copyrighted work claimed to have been infringed must be identified, and the complaining party must identify the material claimed to be infringing and provide information reasonably sufficient for the provider to locate the material (e.g., the Web site address).26 Contact Information. The complaining party must provide the service provider with information such as its address, telephone number, and email address.27 Good Faith. The complaining party must state its good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.28 Authorization. The notification must state, under penalties of perjury, that the complaining party is authorized to act on behalf of the owner.29 Although these elements are a required part of the notification, the statute does not require perfection, except with respect to the requirement that notification be in writing. Substantial compliance with the other requirements is adequate.The statute describes the criteria for partial notification in detail.30 In addition to its takedown provisions, the statute also describes a put-back procedure that permits the service provider to restore the offending material upon certification of legality by the poster following notification to the poster.31 In order to rely on 512, a service provider must designate an agent to receive notification under the law. The provider must publicize its agents identity in two ways. First, the service provider must provide basic contact information to the US Copyright Office.32 The Register of Copyrights is required to maintain a directory of agents available for inspection.This directory is available on the Internet at Copyright Office proVolume 2 Number 7 June/July 2002

vides an Amended Interim Designation of Agent form at Second, the service provider must provide the same information directly to the public,through its service, including on its Web site in a location accessible to the public.33 Figure 2 is a copy of a model form of agent designation. Figure 2 Model DMCA Copyright Act Policy

Cases Interpreting 512(c) of the DMCA As a relatively recently enacted statute, there is little interpretive case law involving 512(c) of the DMCA. The cases that have been decided apply the notice and takedown provision in the statute.

1. Introduction.This policy is intended to implement the procedures described in Title II of the Digital Millennium Copyright Act, 17 U.S.C. 512 (DMCA) for the reporting of alleged copyright infringement. It is the policy of [Company Name] (Company) to respect the legitimate rights of copyrights owners, their agents, and representatives. Users of any part of the Company computing system are required to respect the legal protections provided by applicable copyright law. 2. Designated Agent.The Companys Designated Agent to receive notification of alleged infringement under the DMCA is [name, address, telephone number, and email]. Upon receipt of notification of claimed infringement, Company will follow the procedures outlined herein and in the DMCA. 3. Complaint Notice Procedures for Copyright Owners. A notice of alleged copyright infringement to the Designated Agent must include the following: A. An electronic or physical signature of the copyright owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; B. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notice, a representative list of such works at that site; C. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material; D. Information reasonably sufficient to permit the Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; E. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and F. A statement that the information in the notice is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Failure to include all of the above information may result in a delay of the processing of the DMCA notification. 4. Notice and Takedown Procedure. It is expected that all users of any part of the Company computer system will comply with applicable copyright laws. However, if the Company is notified of claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond expeditiously by removing, or disabling access to the material that is claimed to be infringing or to be the subject of infringing activity. Company will comply with the appropriate provisions of the DMCA in the event a counter notification is received by its Designated Agent. 5. Repeat Infringers. Under appropriate circumstances, the Company may, in its discretion, terminate authorization of users of its system or network who are repeat infringers. 6. Accommodation of Standard Technical Measures. It is Company policy to accommodate and not interfere with standard technical measures it determines are reasonable under the circumstances (i.e., technical measures that are used by copyright owners to identify or protect copyrighted works).

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In ALS Scan, Inc. v. Remarq Communities, Inc.,34 a court was presented for the first time with the issue of imperfect notice under the DMCA. The plaintiff complained to an ISP that hosted an online newsgroup that published multiple copies of the plaintiff s copyrighted photographs. Remarq obtained dismissal based on the fact that ALS had failed to provide a specific list of the infringing works or identify the works with sufficient detail to enable the ISP to locate and disable them. Reversing summary judgment for the defendant, the Fourth Circuit held that notice was sufficient when it gave the ISP the ability to identify the multiple infringing copies in the form of a list of representative works that could easily be identified by the service provider. In a second imperfect notice case, eBay v. Hendrickson,35 the owner of the 1976 documentary Manson complained to eBay that it was selling copies of the film in violation of the owners copyright. eBay requested proper notice under the DMCA, which the plaintiff refused to give, instead filing suit against eBay. In this case, the court found that the plaintiff s pre-suit demand did not satisfy the substantial compliance requirement of 512(c)(3) since it lacked a statement attesting to the good faith and accuracy of the claim and inadequately identified the material claimed to be the subject of the infringing conduct. The court also found that eBay had not had, prior to filing the lawsuit, actual or constructive knowledge of the infringing postings. Accordingly, the plaintiff s claim for copyright infringement was dismissed. The DMCA creates a safe harbor from copyright infringement, but entry to that harbor is narrow. In contrast to the CDA, the provider must comply with detailed statutory regulations and be prepared to take immediate action in response to a legitimate complaint. It is clear that application of 512 is in its infancy, and that readers (and attorneys advising clients on proper behavior under this statute) must be alert to case law developments that pertain to application of this law. Notes
1. Playboy Enter., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993). 2. Religious Tech. Cntr. v. Netcom On-Line Commun. Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995). 3. See also Marobie-FL, Inc. v. Nat. Assn. of Fire Equip. Distributors, 983 F. Supp. 116 (N.D. Ill. 1997) (finding no direct, contributory, or vicarious liability, despite finding that an ISP that immediately transmitted data over the Internet but did not maintain a copy, nevertheless had made a copy, for purposes of copyright infringement determination, following Netcom). 8 E-Commerce Law

4. Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995). 5. 47 U.S.C. 230. 6. See Zeran v. America Online, 958 F. Supp. 1124 (E.D.Va. 1997). 7. Stoner v. eBay, Inc., 2000 WL 1705637 (Sup. Ct. Cal. 2000). 8. Barrett v. Clark, 2001 WL 881259 (Cal. Sup. Ct. 2001). 9. Schneider v., Inc., 31 P.3d 37 (Wash. App. 2001). 10. Id. at 40. 11. Patentwizard, Inc. v. Kinkos, Inc., 2001 WL 1148254 (D. S.D. 2001). 12. Batzel v. Smith, 2001 U.S. Dist. LEXIS 8929 (C.D. Cal. 2001). 13. Id. at 333. Accord Stoner, 2000 WL 1705637 (the courts have recognized that imposing liability based on notice of content in the interactive computer service context would create an incentive for providers to restrict speech and abstain from self-regulation, thereby defeating the purposes of the section). 14. Morrison v. American Online, 153 F. Supp. 2d 930 (2001). 15. Schneider, 31 P.3d 37. 16. See Kathleen R.. v. City of Livermore, 87 Cal. App. 4th 684 (2001). 17. Gucci Amer., Inc. v. Hall & Assoc., 135 F. Supp. 2d 409 (S.D.N.Y. 2001). 18. Ford Motor Co. v., Inc., 2001 WL 1176319 (E.D. Mich. 2001). 19. Id. at 6. 20. See also Ben Ezra Weinstein and Co. v.America Online, Inc., 206 F.3d 980 (10th Cir. 2000) (holding that AOL was not a content provider even though it had communicated with provider of stock market information regarding errors in date); Blumenthal v. Drudge, 992 F. Supp. 44, 51-52 (D. D.C. 1998) (finding AOL immune from liability even though it had paid Drudge). 21. For a more comprehensive treatment of the DMCA (including the anti-circumvention provisions in Title I), see Lee T. Gesmer and Jennifer Eilers, Copyright Protection and Management and Online Copyright Infringement Under the Digital Millennium Copyright Act, available at pdf/26.pdf. 22. 17 U.S.C. 512(c)(1)(A)(i)-(iii). 23. Id. at 512(c)(1)(B). 24. Id. at 512(c)(1)(C). 25. Id. at 512(c)(3)(A)(i). 26. Id. at 512(c)(3)(A)(ii-iii). 27. Id. at 512(c)(3)(A)(iv). 28. Id. at 512(c)(3)(A)(v). 29. 512(c)(3)(A)(i). 30. 512(c)(3)(B)(i-ii). 31. Id. at 512(g)(2)-(3). 32. Id. at 512(c)(2). 33. Id. 34. ALS Scan, Inc. v. Remarq Communities, Inc., 2001 WL 98364 (4th Cir., Feb. 5, 2001). 35. eBay v. Hendrickson, 2001 WL 1078981 (C.D. Cal., Sept. 4, 2001). Volume 2 Number 7 June/July 2002