Should Internet application providers be liable for illegal material such as pornography, copyright violations and civil rights infractions that pass through their “pipes” or through their service?
The general principle has been that, so long as the provider passively allows traffic to flow through and does not look at or interact with the material, that provider exists within a “safe harbor” and is not legally liable.
But how passive is passive enough? This question is now in the weeds with recent decisions concerning civil rights and interactive web services like craigslist.
Craigslist, the Seventh Circuit ruled in March of 2008, is passive enough for the Communications Decency Act (CDA), in Chicago Lawyers v. Craigslist, a case based on civil rights claims against discriminatory housing ads posted by craigslist users.
But a roommate matching service that required users to fill out a questionnaire detailing their sexual orientation, whether they had children, and gender was not passive, the Ninth Circuit has ruled in FHCSFV v. Roommates.com.
Certainly the housing cases raise a vital issue (left undecided by either court). Does a single female really have no free speech right to publicly declare a preference for living with another female? This question is potentially much more important to daily life than the exact breadth of fair use or an Internet users' right to post or download mashups without licensing the content used. Or to what extent someone is entitled to the benefit of the doubt if posting something that might be pirated or not. Perhaps there will be some answers in later rounds of the litigation.
The Viacom case against YouTube seems even more critical, and will help define the safe harbor under the Digital Millennium Copyright Act (DMCA).
A ruling that lets YouTube turn a blind eye to copyright violators perpetuates a significant problem—licensing markets don't work if the boundaries aren't enforced. And that problem is at least in part a public problem, because consumers have an interest in markets, too.
Ironically, the Viacom case matters not because users ought to treasure the right to post the illegally copied content in question—but because they ought not to.