Dark Bilious Vapors

But how could I deny that I possess these hands and this body, and withal escape being classed with persons in a state of insanity, whose brains are so disordered and clouded by dark bilious vapors....
--Rene Descartes, Meditations on First Philosophy: Meditation I

Home » Archives » September 2005 » Legal Asides...

[« We can but hope....] [Issue of National Preparedness is Still the Question... »]

09/06/2005: Legal Asides...

Speaking of comments and commentators [we *were* weren't we???] – I had come across this interesting *aside* over at Discourse.net from Michael Froomkin:

Can Bloggers Be Sued for Commentators' Postings?:

”Several people have been kind enough to send me pointers to this Slashdot item on a blogger being sued for defamation and trade secret disclosures which were (at least primarily) committed by posters to his blog.

I've posted my comment on this at slashdot, but I suppose I should reprint it here too. And while we're at it, I might as well improve and expand it a little...

Insofar as we're concerned with liability for the commentator's remarks, the Communications Decency Act, sec. 230(c)(1) says,

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.
And, in sect. 230 (f)(3),

"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.

if you read the full text of sec. 230 you will see that Congress intended fairly broad protection; in sec. 230(f)(3) it certainly wrote in very broad terms. Why a blog with comments would be treated differently from, say, a BBS or a chat room escapes me.

The leading case on sec. 230, Zeran v. America Online, Inc. 129 F.3d 327 (4th Cir. 1997) adopts a broad reading of it, some later cases in California state court and in the Seventh Circuit critique that breadth. And to the extent they wish to impose distributor liability as opposed to publisher liability -- ie you're liable if you keep it on line after being on notice as to the problem -- there may be some merit to their critique. Even so, I think that the publisher's liability for defamation claim is covered by sec. 230, and probably the distributor liability also.

The trade secret claim is a little harder. Congress didn't have trade secrets in mind when it wrote sec. 230. The CDA immunity in sec. 230 doesn't create a new protection for intellectual property claims (see 230(f)). So it's not an open-and-shut issue on the trade secrets. Nevertheless, unlike defamation law which applies to everyone, common law trade secret duties usually fall only on those who have a duty to keep the information secret, or who misappropriated it, not on innocent third parties.

A similar rule is found in the Uniform Trade Secrets Act, although the Act creates a civil right of action against third parties who "at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who had utilized improper means to acquire it." Whether that applies to this case is of course a factual question. I suspect it wouldn't apply in the ordinary case of a blog comment, but might if the blogger had a special knowledge about the situation.

In law there are few certainties until after a court rules, but absent unusual facts I think the balance here points towards a finding of non-liability both on CDA grounds and traditional trade secret grounds where innocent receivers of information, and especially journalists who receive information, are not usually liable.

Update: These issues and many more are discussed EFF's Legal Guide for Bloggers.
[Edited and re-ordered for clarity.]

Now, this is limited to issues about proprietary trademark information and trade secret violations. But it's an interesting topic to muse about.

Karen on 09.06.05 @ 10:57 AM CST

[ | ]

September 2005

Archives of Blogger site
Archives: May '04-Feb '05
Archives: Feb-March '05

Powered by gm-rss

Len's sidebar:
About Len (The uncondensed version)
Memorial to a dear friend
Frederick W. Benteen
The Web of Leonards
The St. Louis Cardinals
The Memphis Redbirds
The St. Louis Browns
The Birdwatch
Hey! Spring of Trivia Blog
BlogMemphis (The Commercial Appeal's listing of Memphis blogs)
The Guide to Life, the Universe, and Everything
George Dubya Bush Blows
asshat.org (be sure to refresh your window for more "wit and wisdom" from Our Beloved Leader)
Taking the Fight to Karl
Kraftwerk: Chicago, 6/4/2005
My Chicago: Part One
My Chicago, Part Two
Millennium Park
Miscellaneous Chicago
Busch Stadium Tour and BoSox/Cards Game: 6/6/2005
St. Louis Cardinals Hall of Fame Museum
Len's All-Busch Stadium Team
BP's Postseason Odds (Monte Carlo Simulations)

Len's extended blogroll:

Brock's Sidebar:
About Brock
The Agitator
Armchair Capitalists
Boing Boing
Brad DeLong
Crooked Timber
The Decembrist
Dispatches from the Culture Wars
Flypaper Theory
Heretical Ideas
John and Belle Have a Blog
Jon Rowe
Lawyers, Guns, and Money
Literal Minded
Marginal Revolution
Matthew Yglesias
Oliver Willis
Orin Kerr
Political Animal
Signifying Nothing
Unqualified Offerings

Moonbat Icon

Karen's Sidebar
About Karen
The Ig-Nobel Prizes
The Annals of Improbable Research
The Darwin Awards
EBaums World
Real Clear Politics
U.S. News Wire
Foreign Affairs
The Capitol Steps
Legal Affairs
Nobel Laureates for Change
Program On International Policy
Law of War
Sunday Times
Media Matters
Is That Legal?
Andrew Sullivan
Literal Minded
Jon Rowe
Freespace Blog
Thought Not
Publius Pundit
Blog Maverick
Rosenberg Blog
Crooked Timber

The Rocky Top Brigade:

A New Memphis Mafia

The Old Memphis Mafia

The liberal alternative to Drudge.

Get Firefox!

Take the MIT Weblog Survey

Len supports:
Operation Yellow Elephant:

"Because ranting is safer than enlisting"
Operation Yellow Elephant Blog

The Rebel Alliance of Yankee Haters
Blue Squadron (NL)
Babalu (Marlins)
Leaning Toward the Dark Side (Mets)
Ramblings' Journal (Cubs)
Mediocre Fred (Brewers)
Len Cleavelin (Cardinals)
Red Squadron (AL)
Obscurorama (Red Sox)
Frinklin Speaks (Mariners)
Steve Silver (Twins)
Steve the Llama Butcher (Red Sox)
Rob the Llama Butcher (Rangers)
MoatesArt (Red Sox)
Rammer (Tigers)
JawsBlog (Indians)
Ubi Libertas (Blue Jays)
Oldsmoblogger (Indians)
Mass Backwards (Red Sox)
Industrial Blog
Cry Freedom

How many visitors are here:

Blogrings/Blog indexes/Blog search:
« ? Verbosity # »

Listed on Blogwise
Blogarama - The Blog Directory
Popdex Citations
Blog Search Engine

Greymatter Forums Weblog Commenting and Trackback by HaloScan.com
template by linear