Worst Internet Laws EVER

Law Professor Eric Goldman has published a list of the best and worst Internet laws ever. Honestly, because Prof. Goldman could only come up with two good laws, its reasonable to say that our lawmakers have had a ridiculously hard time coming up with any legislation that has been beneficial. So how do some of the laws on his list work for web hosts? I'll focus on two laws: one good and one bad.

First off, the good news. The Communications Decency Act tops my list as the best news for web hosts. The CDA provides a "safe harbor" for businesses who are conduits for information. Basically, what the CDA does is apply the legal analysis used for telephone to providers of "ping, power and pipe." Just as a telephone company is not typically responsible for what its customers say over the telephone, so a provider of ping, power and pipe, is not typically liable for what its customers transmit using its facilities. Prior to the CDA, hosts used to face more frequent allegations that they were responsible for the content of their customers.

The second law is a bit of good news/bad news. The Digital Millennium Copyright Act or DMCA, was enacted to give copyright owners a quick and relatively painless way to police their copyrights. As a side benefit, it created a scheme to encourage Internet providers to comply with its provisions. If you comply with the statutory requirements of the DMCA, you will likely escape liability for contributory copyright infringement for your customer's copyright infringement. If you don't, you might be liable for treble damages under the law. Because of this carrot and stick approach, most hosts comply with the DMCA.

What the DMCA has unleashed is a virtual torrent of letters attempting to cajole web hosts into disabling websites. As noted in Prof. Goldman's article, and as I see on a daily basis, many of these notices are so poorly researched that the cost of compliance is extremely high. To begin with, many of the notices are simply computer generated letters based on buggy software that spiders the net looking for certain terms. The results are pasted into an often incoherent notice, and randomly sent to abuse@, admin@, legal@ and copyright@ e-mail addresses, without regard to the actual address designated by the host. Because these letters technically comply with the DMCA, hosts are required to process them. The resulting internal confusion, and questions generated by customers, drive up abuse costs significantly.

The DMCA has also created a class of notices that have nothing to do with copyright. Increasingly, owners of other types of intellectual property, particularly Trademark owners, are co-opting the phraseology of DMCA notices for their own infringement letters. The resulting letters are misleading at best, and often blatantly false. Indeed, some letters now come complete with asterisks and fine print that actually state that the notice is not made under the DMCA, I assume to avoid liability based on the "penalty of perjury" statement that must be included in a DMCA notice. Leave it to lawyers to use fine print to try to exempt themselves from a claim of perjury.