That was an incredibly detailed answer. I read it over but I don't actually understand it all. I am going to have to study it a bit more. The Judge I worked for over the summer said much the same thing about Law School vs. the Courtroom. Apparently Law Professors and the actual field of Law live in two seperate dimensions.
Thanks for the awesome answer, though. The concepts are just starting to crystalize in my head. Hopefully I'll understand it better at the end of my cram session. @_@
I actually just did a paper on this for internet law, in the context of online defamation and service provider and/or end-user liability in New Jersey specifically.
Service providers (aka Zilvia.net) will rarely be held liable for the comments (or activities) made by users because user activity is often so high it would be unreasonable to expect the forum operator and his staff (moderators) to patrol each and every post and edit for content.
Nor will liability be imposed if moderators make a good faith effort to monitor the content of the forum. Section 230 of the Communcations Cecency Act nearly immunizes service providers for comments posted on forums and blogs and whatnot; because Congress thinks good faith efforts to patrol internet content should not be discouraged.
So when can a service provider be held liable for the actions of its end-users? Only when it is clear that they 1) knew what was going on and 2) purposely turned a blind eye or 3) encouraged the illicit activity. Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. App. Div. 2005) (holding that the owner of an internet forum was not responsible for defamatory statements made on the forum even though he controlled the forum by banning users, editing posts, and commenting with approval and disapproval on ceratin posts). Although this standard is used for online defamation, I believe it can be used as a parallel for distribution of illegal copyrighted material over online forums.
On the other hand, e1 of CDA 230 says 230 has "no effect on intellectual property law." I wonder if that means forums would be under strict secondary liability for enabling the illict sharing of copyrighted material... i.e. keep the mp3s off zilvia please. I like this forum.
disclaimer: not intended as legal advice. not necessarily an accurate statement of the law. this post is merely the opinion of this particular authoring end-user.
