Myth about service providers liable for monetary relief upon claims of copyright violations vs. actual dispute between the parties directly affected.
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SL: That myth is used by some Administrators or Moderators to undermine or get rid of the targeted members for personal reasons. In my style of precision and evidence, I bring the proof. My goal is to protect you from violations your rights and shield you from what I have to go through at times. I would become stronger and better under assault on my Rights and Reputation, but, it is, also, better if I would help you not to go through the same. Any of you who may be targeted by anyone who holds the button: EDB: EDIT, DELETE, BAN should know real law not junked pretexts released in public. On with the facts.
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Copyright Law of the United States of America and Related Laws Contained in Title 17 of the USC Circular 92 Chapter 5 Copyright Infringement and Remedies § 512. Limitations on liability relating to material on-line 8 [8 In 1998, the Online Copyright Infringement Liability Limitation Act added section 512. Pub. L. No. 105-304, 112 Stat. 2860, 2877. In 1999, a technical correction deleted the heading for paragraph (2) of section 512(e), which was “Injunctions.” Pub. L. No. 106-44, 113 Stat. 221, 222.] (a) Transitory Digital Network Communications. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient
storage of that material in the course of such transmitting, routing, or providing connections, if — (1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person; (4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and (5) the material is transmitted through the system or network without modification of its content.
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SL: Clear enough. (5) also states that [read] on-line Administration/Moderators should not edit anything that may be disputed. Administration - since anything can be disputed; therefore, just play it safe - do not edit. The clause does not concern the members who edit contents posted, as that may become an issue between them and the alleged source, which may claim infringement. The Forum is kept out of it unless exceptions are at play.
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(j) Injunctions. — The following rules shall apply in the case of any application for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section: (1) Scope of relief. — (A) With respect to conduct other than that which qualifies for the limitation on remedies set forth in subsection (a), the court may grant injunctive relief with respect to a service provider only in one or more of the following forms: (i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider's system or network.
(ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. (iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose. (B) If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms: (i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is using the provider's service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order. (ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States. (2) Considerations. — The court, in considering the relevant criteria for injunctive relief under applicable law, shall consider — (A) whether such an injunction, either alone or in combination with other such injunctions issued against the same service provider under this subsection, would significantly burden either the provider or the operation of the provider's system or network; (B) the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement; (C) whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other online locations; and (D) whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available. (3) Notice and ex parte orders. — Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider's communications network. (k) Definitions.— (1) Service provider. — (A) As used in subsection (a), the term “service provider” means 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 user's choosing, without modification to the content of the material as sent or received.
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SL: When Administration modifies our Posts, it loses privileges of protection under Service Providers, assuming greater liability. (B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A). (2) Monetary relief. — As used in this section, the term “monetary relief” means damages, costs, attorneys' fees, and any other form of monetary payment. (l) Other Defenses Not Affected. — The failure of a service provider's conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider's conduct is not infringing under this title or any other defense. (m) Protection of Privacy. — Nothing in this section shall be construed to condition the applicability of subsections (a) through (d) on — (1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection (i); or (2) a service provider gaining access to, removing, or disabling access to material in cases in which such conduct is prohibited by law. (n) Construction. — Subsections (a), (b), (c), and (d) describe separate and distinct functions for purposes of applying this section. Whether a service provider qualifies for the limitation on liability in any one of those subsections shall be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualifies for the limitations on liability under any other such subsection.
3rd Circuit Decides Critically Important Case Concerning Tort Liability of Bloggers And Web Site Owners
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Dimeo II v. Tucker Max, No. 06-3171(3rd Cir. Sep't. 19, 2007)(n.o.r.), http://www.ca3.uscourts.gov/opinarch/063171np.pdf [SL: I would outline it by key parts] is an important case concerning tort liability of web site owners and bloggers for items they do not post on their web site or blog.
In this case, plaintiff sued Tucker Max who maintained a web site, www.tuckermax for comments that others made on his web site. The 3rd Circuit affirmed
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the dismissal
of the case under 47 U.S.C. Sec. 230, reasoning: We agree with the District Court that DiMeo’s defamation claim is barred by 47 U.S.C. § 230.
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Section 230 provides, in relevant part, that
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“[n]o 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.” 47 U.S.C. § 230(c)(1) (emphases added).
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“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3); see also Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003) (stating that § 230
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“„precludes courts from entertaining claims that would place a computer service provider in a publisher‟s role,‟ and therefore bars „lawsuits seeking to hold a service provider liable for its exercise of a publisher‟s traditional editorial functions–such as deciding whether to publish, withdraw, postpone, or alter content.‟” (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)).
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SL: Typical, non-on-line editors-publishers can do the above pursuant to the contract; you enter with them, provided it is a bilateral contract. There is a window of opportunity for on-line editorial provisions but that involves
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selling your rights in exchange for editing at discretion of editor of publisher. I personally, have not sold any of my writings or rights to any one and believe - so didn't any of you. See 47 U.S.C. § 230(f)(2) (defining “interactive computer service” as
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“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”).
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SL: Instant analysis
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for Owners of Forums and Moderators. While, my analysis and predictions are not always welcomed or taken seriously, I err rarely. Fist of all, this development (law-case) is great news for you because it confirms that you are not responsible for Posts and comments by others who use the Forum. Yet, if you followed the logic and code closely, you can make a transitionally argument that, [I would proceed by descending order]
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1. ONCE YOU ALTER, EDIT; 2. BLOCK; 3. DELETE (*) (opened to more arguments and on a different subject of
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willful destruction
of someone else data-intellectual property
entrusted by user to be kept at the server)
you may be liable, as a publisher or editor since, 1. and 2. and (arguably, by another subject (*)- ) 3. - all INVOLVE EDITING.
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Editing is a part of publishing. As soon as you cross the line of Server-Forum-Blog provider and EDIT in any scope and such can be traced to your activity,
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you become liable and opened to lawsuit and collateral attack. Perception and ability "to pick up scent of law," being part of the Esoteric school, at times, give me a direction even before I find the actual cases. Sometimes, it makes sense to listen, as I can get "in a zone" ahead of time. I did warn of the liability of editing for others on-line before this case, which is dated Sept. 19, 2007. All who are in doubt, can check my warnings at the other Forum by date-time stamp.
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You are immuned as long as DO NOT EDIT, and that is what I have been petitioning for. Adhering to what I advocated so passionately, would have, also, protected your interests - not only ours, which brings us to the Esoteric concept:
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by treating others fairly, you, first of all, treat yourself fairly. Look how simple and short.
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The so called super-moderator- Akira http://www.suijuris.net/forum/members/akira.html edited, blocked, even banned me each time, I wrote that which did not please his Excellency. How more unmanly and cowardly can it get? I do not harass or stalk - I speak up! He could not win one intelligent debate with me, so deletion and banning began. An effective strategy is; thus, needed to be designed vs. unethical moderators who use delete-ban button as only pleases their agenda. I bet such acts are done toward others too, which brings him and what he subjects himself and, also, any Forum he "moderates" to:
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let's hope his cajones are in pair and as big as his ego because such manipulations may put him in some heavy - past enema state; for, his liability is wide open.
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cont... law-case: DiMeo’s complaint alleges that Max is a publisher of the comments on the website. Max’s website is an interactive computer service because it enables computer access by multiple users to a computer server. Under this statute, bloggers are immune from defamation based upon postings that others have made. By extension, this should apply to statements that a co-blogger may make on the same blog-but that issue is far from clear. The Third Circuit indicated that this decision is non-precedential. Therefore, this case may not be officially reported.
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Website posts alleged in the complaint must constitute
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information furnished by third party information content providers. Therefore, the 5 requirements of § 230 immunity are satisfied.
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The District Court concluded that, if added, the defamation and intentional infliction of emotional distress claims would be futile in view of § 230, see 47 U.S.C. §§ 230(c)(1), (e)(3), and that the RICO claim would be futile in view of DiMeo’s failure to plead that Max committed any of the predicate crimes enumerated in 18 U.S.C. § 1961.
TITLE 47 > CHAPTER 5 > SUBCHAPTER II > Part I > §230 § 230. Protection for private blocking and screening of offensive material (a) Findings
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The Congress finds the following: (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b) Policy It is the policy of the United States— (1) to promote the continued development of the Internet and other interactive computer services and other interactive media; (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; (4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to
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restrict their children‟s access
to objectionable or inappropriate online material; and The Title is cont. after my comments in the next Post
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SL: Be aware that the following is more applicable to the protection of minors on-line.
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The intent has not been to restrict adults in adult environment. Adult means age - not sexual contents, unless involves such subject. The key words are:
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restrict their children's acess...
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(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in
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obscenity, stalking, and harassment by means of computer.
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SL: Criminal matters are once again:
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1. stalking and 2. harassment. Obscenity - usually falls under the 1st Amendment unless becomes criminal whereas adults cross the line with minors.
(c) Protection for “Good Samaritan” blocking and screening of offensive material
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SL: One has to classify what constitutes offensive material precisely without wide range of interpretation subject to opinions. (1) Treatment of publisher or speaker
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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.
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SL: Again, the provisions below were intended to protect minors on-line. Keep that in mind. Adult Forum and such for minors are treated differently.
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The 1st Amendment is not applicable to minors as soon as questionable offensive material enters the scene. Reasoning is that minors are not mature enough to make a reasonable or in full awareness determination of what may or may not be inappropriate. Thus, adults, particularly management of Forums/Blogs are encouraged to step in as "good Samaritans" and block and/or inform the Authorities of any hint of minors being subjected to obscenity, particularly porno, leading to encounters.
(2) Civil liability No provider or user of an interactive computer service shall be held 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
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SL: Exactly as I outlined - the 1st Amendment was implied. (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).[1]
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SL: Practically everything here revolves around porno and minors. (d) 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
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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
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harmful to minors.
Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections. (e) Effect on other laws (1) No effect on criminal law Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to of title 18, or any other Federal criminal statute.
sexual exploitation of children)
(2) No effect on intellectual property law Nothing in this section shall be construed to limit or expand any law pertaining to
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intellectual property.
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SL: Key phrase is clearly stated above. It separates sovereignty of intellectual property i.e. others may not edit and destroy our data without our permission when minors are not involved in context of sexually explicit material: words and/or images or any obscenity reasonably classified as objectionable by parents, whereas least sophisticated Consumer/parent standard applies.
(3) State law Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. (4) No effect on communications privacy law Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
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(f) Definitions As used in this section: (1) Internet The term “Internet” means the international computer network of both Federal and nonFederal interoperable packet switched data networks. (2) Interactive computer service 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. (3) Information content provider 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. (4) Access software provider The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following: (A) filter, screen, allow, or disallow content; (B) pick, choose, analyze, or digest content; or (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
[1] So in original. Probably should be “subparagraph (A).”
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The good faith fair use defense [17 USC 504(c)(2)] allows courts to refuse awarding any damages at all if it so chooses, even if the copying at issue was not a fair use. It only applies if the person who copied material reasonably believed that what he or she did was a fair use
Anyone may freely use [Infra(*)]:
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1. Works that lack originality 2. logical, comprehensive compilations (like the phone book) 3. unoriginal reprints of public domain works 3. works in the public domain 4. freeware (not shareware, but really, expressly, available free of restrictionsware -this may be protected by law, but the author has chosen to make it available without any restrictions) 5. US Government works 6. facts 7. ideas, processes, methods, and systems described in copyrighted works
The presence or absence of a copyright notice no longer carries the significance it once did because the law no longer requires a notice. It is assumed that your work is copyrighted. Older works published without a notice may be in the public domain, but for works created after March 1, 1989, absence of a notice means virtually nothing. __________________________________________________ _______________ [Infra(*)] Even if all or part of a work is not protected by copyright law, it may be protected by other laws.
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For example, you may need to consider: 1. 2. 3. 4. 5. 6. rights of privacy and publicity, ask permission to use a trade or service mark, or get a license to practice a patented process or system.
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