TalkTalk vs Mandy??

Two days ago Pangloss, commenting on Mandelson's newly elaborated plans to introduce a UK "3 Strikes", added;

Interesting thought from Twitter: "if my business was cut off for allegedly downloading illegally I'd be looking for someone to sue". Will any legislation have an immunity in it for ISPs a la the US DMCA? If not, start lobbying NOW, ISPs.."

This thought (which turns out to have originated from the helpful @futureidentity, aka Robin Wliton) seems to have occurred fairly swiftly to others too... According to the Grauniad, today:

TalkTalk, the second largest internet service provider in the UK, has threatened to launch legal action if business secretary Peter Mandelson follows through with his plan to cut off persistent illegal filesharers' internet connections.

Carphone Warehouse-owned TalkTalk, which has more than 4 million ISP customers and owns the Tiscali and AOL brands, claimed the government's plan was based on filesharers being "guilty until proven innocent" and constituted an infringement of human rights.

"The approach is based on the principle of 'guilty until proven innocent' and substitutes proper judicial process for a kangaroo court," said Andrew Heaney, the executive director of strategy and regulation at TalkTalk. "We know this approach will lead to wrongful accusations."

While the liberal blogosphere has on the whole greeted this news with unrestrained enthusiasm (Twitter is full of it), Pangloss is a litle sceptical as to whether it is any more than self-seeking good-PR sabre-rattling.

Firstly, what exactly is TalkTalk's title to sue here? Surely not anything mentioned in the interview above. The breach of human rights, if any, will surely be of the subscribers, not the ISP. Any wrongful accusations without due process will similarly be directed at users, not the conduit.

TalkTalk's (or any other ISP's) real worries seem obvious :

(a) the threat of being sued by aggrieved users for everything from breach of confidence, to acessory to false accusation, to co-publisher of a libel, as well as of course for breach of the actual contract for Internet services; and

(b) the costs of being involved in Mandy's Great Scheme, both in terms of actual money and loss of customer goodwill. The Guardian also usefully reports today that according to BT and Carphone Warehouse (ie TalkTalk) , Mandy's scheme might costs £420m pa, to be shared evenly between rightsholders and ISPs (and, incidentally, to solve an estimated loss to the music industry of half that - c £200m pa.)

These figures make it clear the latter is the real issue, not human rights, nor liability to customers. In fact, most ISPs will have extensive exclusion from liability clauses in their subscriber contracts already - although these may well be subject to challenge under the Unfair Terms Regulations and /or UCTA and thus unenforceable.

So what would be the ISP's actual grounds for an action? No one has a right in this country simply to dispute a statute because they don't like it. Victims of a human rights violation - an unlawful act under s 7 of the HRA 98 - may indeed question the validity of a statute in any domestic proceedings, though under HRA 98, no UK court has the right to strike down legislation, merely to make a declaration of incompatibility, leaving it to the governement then to sort out what the hell to do.

Is TalkTalk itself a victim of any ECHR or HRA human rights violation? I don't see how. (Indeed it was once controversial if a juristic person could suffer a human rights violation - though this now seems to be accepted in some cases.) What they might argue is the rather muzzy domestic law tort that the government has interfered with their business contracts. This would be controversial (doesn't a government have the right to do exactly that? case law mainly concerns dirty practice by commercial competitors) and would attract considerably less public sympathy of course.

Another more plausible line of attack would be that any legislation was in breach of EC law forbidding ISPs from being required to generally monitor the public under art 15 of the E-Commerce Directive - although this has not stopped the French passing HADOPI - twice :-)

Pangloss is glad to see ISPs like TalkTalk, whom she has always regarded as being stuck between a rock and a hard place in this matter, coming out firmly against Mandelson's proposals and even gladder to see them endorse her own arguments that 3 strikes is likely to be in breach of ECHR guarantees of due process and privacy. But frankly - sue Mandelson? Oh come on, as someone else might say...

EBay 3: Luxury Trade Mark Holders 2

Exciting breaking news from the IPKat that eBay have won their court case in the UK High Court , asserting that they are not liable for the trademark infringements of sellers on their site selling counterfeit goods. There are now three decisions in favour of eBay (UK, France and Belgium), one decision in favour of L'Oreal (Germany) and one decision (from Spain) still outstanding. The case is important to an understanding of how the immunities in Art 14 of the EC E-Commerce Directive operate in relation to "web 2.0" or user generated content sites. The case indicates that on both trade mark law and article 14, the issues will be referred to the ECJ for a clearer ruling.

The judgment is available here. It comes only weeks after a French court reversed a previous French ruling finding for eBay and against L'Oreal. Does this show a turning against the theory that UGC sites are "complicit" with the infringing activities of their users and not deserving of immunity under Art 14, since their revenue is derived in part from such activity and they may have constructive knowledge thereof? Pangloss has not had time to read the ruling properly yet but the relevant conclusions appear to be:

"i) The Fourth to Tenth Defendants have infringed the Trade Marks. In the case of the Fourth to Eighth Defendants the goods they sold were put on the market outside the EEA and L'Oréal did not consent to those goods being put on the market within the EEA. In the case of the Ninth and Tenth Defendants the goods they sold were counterfeits.

ii) Whether the sale by sellers on the Site of testers and dramming products and of unboxed products amounts to an infringement of the Trade Marks depends upon questions of interpretation of the Trade Marks Directive as to which the law is unclear (see paragraphs 319-326 and 331-342 above). Although these questions are academic so far as the acts committed by the Fourth to Tenth Defendants are concerned, they are potentially relevant to the question of what relief, if any, L'Oréal are entitled to. Accordingly, guidance from the ECJ is required on these points.

iii) eBay Europe are not jointly liable for the infringements committed by the Fourth to Tenth Defendants.

iv) Whether eBay Europe have infringed the Link Marks by use in sponsored links and on the Site in relation to infringing goods again depends upon a number of questions of interpretation of the Trade Marks Directive upon which guidance from the ECJ is required (see paragraphs 388-392, 393-398 and 413-418 above).

v) Whether eBay Europe have a defence under Article 14 of the E-Commerce Directive is another matter upon which guidance from the ECJ is needed (see paragraphs 436-443 above).

vi) As a matter of domestic law the court has power to grant an injunction against eBay Europe by virtue of the infringements committed by the Fourth to Tenth Defendants, but the scope of the relief which Article 11 requires national courts to grant in such circumstances is another matter upon which guidance from the ECJ is required (see paragraphs 455-465 above).

I shall hear further argument on the precise formulation of the questions to be referred to the ECJ. The parties should exchange proposed drafts of the questions in advance of that hearing. The parties should also consider the guidance given by Arden LJ in Horvath v Secretary of State for Environment [2007] EWCA Civ 620 at [80]."

Pangloss Sez: Looking to the mentioned paras 436-443 we find little but the conclusion that the Art 14 defense is not acte claire and that this is born out by the range of decisions in cases across Europe and existing references to the ECJ. There is some interesting discussion of the German Internet Auctions cases however. It looks as if we may have to wait for the ECJ to finally speak for more guidance though .

France v eBay, part deux & the future of online intermediary immunity

France continues to be an entertaining source of Internet law. The Guardian reports (13 May 2009) that

"The world's largest online auctioneer, eBay, was today claiming a "victory for consumers" after a court in Paris ruled that it was not liable for counterfeit L'Oreal perfumes for sale on its website.

The perfume and cosmetics company has taken legal action against eBay in four other countries, but today's ruling is a major victory in France for eBay, which was fined €38.6million (£34.7million) in a similar case against the luxury goods manufacturer LVMH (Moet Hennessy Louis Vuitton) group and €20,000 against Hermès. The ruling reflects a Belgian court's decision last August, and a ruling is expected shortly on a similar case being brought in the UK.

L'Oreal has claimed that the eBay website profits from the sale of fake products and that brand owners are expected to help police online auctions. The cosmetics company told the hearing in Paris it believed that as many as 60% of the perfumes sold on eBay under its luxury brand names were fakes.

But the court ruled that eBay was meeting its obligations to combat the sale of fake products, and urged the companies to use mediation to develop a plan which would enable them to work together on the issue."

This is fascinating as yet another example of how completely the hosting immunity provisions of Art 14 of the EC E-Commerce Directive are failing to be interepreted in a harmonised manner across Europe. As the Guardian report notes, only a few months ago we saw a completely opposite ruling emerging from the French courts, which are regarded as the toughest courts in Europe on intermediaries "assisting" in IP violation (see eg previous DailyMotion and MySpace cases).

The problem is also not only about IP; in Italy, Google is being sued for allowing the posting of defamatory videos on its site, while in France also, several cases have held user-generated content sites liable for posting of private photos. Only in the UK, of the large commercial EU countries, are we yet to see a case holding a major web 2.0 intermediary liable in respect of user generated content.

The immunity provisions of the ECD in Arts 12-15 desperately need reviewed and reformed, yet the Comnmission shows no signs of wishing to initiate such a process. Pangloss, suprise, suprise, is currently rewriting her chapter on this whole area for Law and the Internet 3rd edn. My provisional conclusions are that a bright line of no liability on intermediaries for content provided by third party content providers, unless or until notice is given to take down (as in Art 14) can no longer be sustained.

We are seeing instead a move towards a new system, by court if not legislative creation, which

• uncouples the current horizontal scheme of immunities to reflect the very different pressures in the fields of , notably, copyright and pornographic material, as opposed to defamatory or private material
• recognises the increased demands both of IP rightsholders and law enforcement agencies for pre emptive filtering rather than ex ante takedown, possibly by taking advantage of the ECD's exemption of injunctive relief from the immunity provisions
• responds to the increased blurring between the notions of "intermediary" and "content provider", especially in the world of web 2.0 intermediaries such as eBay and YouTube etc, by removing immunity from such hybrid intermediaries, or imposing extra obligations
  
• in particular, relies heavily on looking at what financial gain an intermediary makes from hosting or linking activities, thus moving to a far more case by case assessment of immunity, which will be difficult to predct for intermediaries and hard to implement in automated take down or filtering systems
  
• finally, regulatory intervention may be needed to bolster public interest values like freedom of speech and privacy against defensive or industry-required take down, monitoring and/ or filtering by intermediaries.
  

Web 2.0 liability hits Europe - delete those borrowed cartoons fast, folks..

Rather more sensibly, via my dear colleague Judith Rauhofer.. interesting case reports of two summer French decisions on Web 2.0 liability, summarised by Bird and Bird in their EU IT law bulletin. I have been meaning to note these, so am indebted to both sources.

MySpace

In the first decision, on 22 June 2007, a French humorist successfully sued MySpace before the Paris first instance tribunal for infringement of his author’s rights and personality rights, as his name, image and some of his sketches were published on a MySpace webpage without his authorisation.

The court found that MySpace performed the role of an Internet host. However it also did other things: it provided "a presentation structure with frames, which is made available to its members" and significantly, it also "broadcasts advertising upon each visit of the webpage, from which it profits".

As a result MySpace did not benefit from the hosting immunity of the EC Electronic Commerce Directive, Art 14 , implemented in Article 6.I.2 of the French law “on Confidence in the Digital Economy” (dated 21st June 2004) . The French law provides that a hosting provider:

“may not be held civilly liable for the activities or information stored at the request of a recipient of these services if they are effectively unaware of the illegal nature thereof or of the facts and circumstances revealing this illegality or if, as soon as they become aware of them, they have acted promptly to remove these data or make access to them impossible"

MySpace were however deemed not a host but a "publisher". Lacking immunity, MySpace were thus ordered to pay substantial damages.

Dailymotion

The second decision concerns Dailymotion, who appear to be a kind of You Tube equivalent site.

In April 2007, the director and the producer of a French film entitled “Joyeux Noel” sued Dailymotion on the ground of copyright infringement, because their film could be viewed on Dailymotion’s website.

In a decision dated 13 July 2007, the Tribunal de Grande Instance of Paris ruled that Dailymotion, although classed as a hosting provider, under the French law quoted above, was still liable for providing internet users with the means to commit copyright infringement.

On the plus side for Dailymotion, the court agreed that it was a hosting provider, and so in principle entitled to the immunity above. This was so even though it operated a commercial activity supported by advertising revenues - factors which had lead earlier French courts (as in the MySpace case, above) to declare sites like Dailymotion, not hosts , but "publishers".

On the down side however, the court held that DM

"had still acted unlawfully in providing internet users with the means to commit copyright infringement. Indeed, the Tribunal de Grande Instance considered that the success of Dailymotion’s website depended upon the broadcast of famous works because, according to the judge, these works captured larger audiences and ensured greater advertising revenues. Moreover, the court specified that even if there is no general obligation for hosting providers to actively seek out illegal activities, this limitation does not apply where these activities are created or induced by the provider."

The Bird and Bird report also suggests the court found that DM were "necessarily aware" of the copyright infringing material on their site.

As a result the court appears to have found that DM should have exerted prior restraint on giving access to copyright infringing works - in other words, installed effective filtering tools. Since they had not, they were liable. DM has appealed.

Pangloss sez

The Bird and Bird commentaries by (one asumes) French lawyers, suggest that the two cases are incompatible. This is formally true, in that MySpace were found to be a publisher, while DM was, it seems , not.

However from a UK/ECD perspective the two cases can be seen as pretty much on all fours at least as relating to liability and immunity. ECD Art 14 immunity from civil law liability requires three elements

• being a host
• not having actual notice (or taking down on receiving such notice)
• not having constructive notice (awareness of fact and circumstances such that they should have known copyright infringement was going on)(or take down as above)
  

Whether this analysis makes Daily Motion and MySpace "hosts", who nonetheless fail to gain immunity because of having constructive notice; or not hosts at all, but "publishers" , seems to Pangloss to not be of the essence (though no doubt the French do not feel that way).

The real and very exciting or worrying aspects of the case (depending on whether you are a content industry maven or a web 2.0 entrepeneur) are two fold.

First, these are judgments on the interpretation of a transposition of Art 14 of the ECD which seem to indicate (as Pangloss has suspected for some while) that a European court - perhaps even a UK court - would take one look at the My Space/You Tube etc business model, and fail to apply hosting immunity to them.

It seems more and more unreasonable that these sites' business model should be built around content much of which is clearly known to be infringing, and that they nonetheless escape all liability because that content was provided by third parties. This model was reasonable when applied to ISPs in the old days, who genuinely had little or no financial interest in what their users stuck on their server as long as it wasn't virus-ridden - it is not when applied to Web 2.0 and the user generated content business model.

Since these sites undoubtedly do perform a function as Internet hosts (tho quare how significant the streaming vs downloading model is here) a court thinking as above has to find a way to disapply the hosting immunity. And that way is via constructive knowledge - "they should have known".

Second and perhaps even more important, is the suggestion of the Dailymotion court that DM's knowledge or awareness was such that anti-infringement filters should have been installed.

This is now becoming familar as a remedy that has been ordered in P2P infringement cases: in the US in the Grokster case, and in Australia in the Kazaa case. But as many commentators have noted, in Europe, it seems to fly in the face of the ECD Art 15 injunction that service providers (including hosts and ISPs) cannot have obligations of prior active monitoring imposed on them.

The Dailymotion court was not unaware of this : the Bird and Bird report says that

"the court specified that even if there is no general obligation for hosting providers to actively seek out illegal activities, this limitation does not apply where these activities are created or induced by the provider." [Pangloss's bold added]

Leaving aside translational coincidences, this also has a ring of familiarity. In Grokster, the US Supreme Court, unlike the Court of Appeals, decided effectively that a Sony defense of "capable of substantial non infringing use" , even where there was no actual knowledge of infringement by the site, could not stand as a complete defence where there was out and out inducement of copyright infringement by the site. Thus Grokster was eventually found liable.

So where does this leave us in the UK? Interestingly, Art 15 was never transposed into UK law. This leaves it potentially even more open to the UK courts to come up with a formulation such as the French court did in Dailymotion. That leaves the normative question : should a finding of constructive knowledge also entitle a court to run against the clear words of the ECD in Article 15?

Clearly copyright owners would rather have proactive filtering than retrospect damages. But they want something even more: a share of the cake. The whole argument may thus soon become moot. As heavily covered on this blog, perhaps the technologically leading web 2.0 site, You Tube, has finally rolled its out long awaited copyright content filtering solution, Video Identification (RIP Claim Your Content?)

Instead of suing You Tube, or endlessly issuing take down notices, copyright owners can now ask YT to put their works onto its proactive filter database, or better still, leave its copyright content available on the YT site, but ask for a share of the revenue from the ads surrounding it.

The possible demise of Art 15 leaves other worries however. The UK government has been dropping hints hither and thither about imposing general obligations on ISPs in the UK to filter out everything from child porn, to terrorist material, to P2P traffic. If Art 15 is to be interpreted out of existence - or quietly ignored - there will be nothing to stop this. And although Google and You Tube may have come up with a tentative solution which may work for them (it is not yet tested) , there is no real evidence that rolling out large scale filters at ISP level is either technically feasible, or constitutionally desirable.

Let's face it, the law on hosting liability, as Trev Callaghan of Google put in the summer, is simply broken. It is time to reconsider everything in the upcoming review of the ECD.

In fact I very much doubt we will see a root and branch re-analysis. But that is clearly what is needed if Web 2.0 is not to entirely founder in Europe.

E-Commerce Meets Terrorism

Via Naked Law, belated but important:

"A new anti-terror law has come into effect as of 21 June 2007 : the Electronic Commerce Directive (Terrorism Act 2006) Regulations 2007. Under these new provisions (which operate in conjunction with the Terrorism Act 2006), encouraging acts of terrorism and the dissemination of terrorist publications is an offence, including where such actions occur online. If a third party posts material which is an offence under these provisions, the police may notify a blog operator and require them to take the offending material down promptly (within two days). Failure to do so without cause could result in the Directors going to prison."

The most interesting part of this to me is the 2 day takedown. My own as yet unofficial research indicated that takedown periods for ISPS and hosts varied between about 24 hours up to a week, depending on the legal risk associated with the material (child porn might be removed more quickly than alleged libels, for example.) One wonders if "2 days" for terrorist material may create a nascent standard of 2 days as the outside edge for "expeditious" removal under the general E-Comm Regs?? Could this have informed the rather mysterious decision of the defendants, already blogged here, that Mumsnet might not have taken down expeditiously when they removed in about 24 hours??

Rate My Blog, no, Hang On..

Interesting new German case reported by Tobias Escher of the Oxford II. Sadly Pangloss has no German at all (stoopid Brit) so has to rely on Tobias's word for the quoted comment.

Scurrilous remarks on the German version of the web 2.0 site, Rate My Professor (or MeinProf.de) (an innovation which luckily does not seem to have penetrated Southampton law School yet:-) lead to demands from one particularly annoyed professor that certain posts be removed. Although the website took down hastily, the professor in question then went to court demanding the operators pay 3,000 Euros (about £2,000) for any similar comments about him that might appear on the site in the future. The court demurred.

"The court has decided that a general “cease and desist” for unacceptable comments is against the law. As a professor one has to face public criticism that cannot be prohibited ex ante. ..."

and Tobias comments

"Several things have to be noted: In general this is a positive outcome for web sites that leverage the wisdom of the crowds as it offers some protection for the often not-for-profit operators of these sites. However, this does not justify defamatory comments on those sites and the court has emphasized the operators’ duty to remove those entries as soon as they are recognized. Last but not least, the subject under public scrutiny does matters as professors might well be made to face personal criticism in their role as public figures while teachers and nurses might have to be treated differently. "

Interesting but not radical: it is apparent that the E-Commerce Directive Art 14 should protect websites like Rate My Etc Etc from liability for defamatory words posted by a third party. The ECD does not, however, as is well known, prevent the seeking and gaining of injunctions or interdicts to stop such posting; it merely immunises host sites or ISPs against damages. But the ECD does provide in Art 15 that web hosts cannot be commanded by law to monitor pro-actively on a blanket basis, which seemsd to be what was being demanded here. That rule was explicitly not implemented in the UK, interestingly, but only because it was understood to already exist at common law.

In the US as Wendy Seltzer notes, the site could not even have put on notice by the professor, due to the blanket immunity granted by the CDA. Rate My P could have kept the posting up without fear of suit. Whether in this case, as Wendy suggests, free speech should trump the desire of a scholar not to have his reputation casually trashed without any comeback but the self same Internet "right of reply" .. well, Pangloss will go back to her marking :-)

On the other other hand this decision is rather good news for eBay in its continuing desire to have no duty to check pre-emptiovely on the legality of the goods it sells on its various European sites, even where there is a known history and pattern of , say, the sale of Gucci counterfeit goods .. and Pangloss has said before that she is uncertain whether THAT is fair.

Mum's The Word

Another late catch up from my hols, mainly for own benefit. Mumsnet, the non-profit site run part-time by single mothers to advise on parenting, has capitulated to Fearsome Lawyers without going to court. Pangloss is rather sad.

From OUT-LAW:

"Mumsnet was sued by Gina Ford, who is famous for espousing strictly regimented baby routines, over comments made in the site forums. The long-running case has been settled with a Mumsnet apology and a payment to Ford, but Mumsnet founder Justine Roberts has asked the DCA to reform the law.

"Though we don't accept that any of the comments made on Mumsnet were defamatory, we took the decision to settle at least in part because of the distinct lack of clarity about how the defamation law applies to web forums," [said Roberts]..

The main problem seems to have been uncertainty about what "expeditious" removal on notice means under the EC E-Commerce Regulations.

"Roberts explained her dilemma: "How expeditious is expeditiously?" she asked. "We settled because there were some comments left up there for longer than 24 hours – though not much longer than 24 hours."

This is madness. My own recent empirical (as yet unpublished) research has shown a wide variation in time taken to remove content among UK ISPs and websites , from about 24 hours to a week, depending on the type of content, the urgency of the request and who is doing the asking. Pangloss agrees that more guidance is vital, in code of practice if not in law.

In the US, the moderator of a mailing list or website forum is exculpated under s 230 (c) of the CDA in respect of the content of posters- see Batzel v Cremers. Although s 230(c) is often seen as over wide, this is a ruling we could emulate, especially where the moderator makes no commercial gain from the site; it could always be subject perhaps to a removal of immunity where there is egregious breach of care (eg the email posted is forwarded from someone else and says DO NOT DISTRIBUTE in large capital letters.) Moderators of "public advice" websites are more like archivists than publishers; they rarely if ever make money from adverts or subs and do a good public service.

(It is fun to look back at this case today and compare it to whether Live Journal should be held liable in respect of members posting fiction containing under age rape. ISP liability is a wonderful area.)

Web 2.0 sites beware!

Interesting decision from the States yesterday on immunity of hosts ("service providers") under CDA s 230 (c).

The Ninth Circuit Court of Appeals just determined that Roommates.com - a networking site for people looking for, housesharers, did not deserve immunity under Section 230 of the US Communications Decency Act for information that users of the site provide on questionnaires during registration.

The Register reports that "Section 230 of the CDA gives providers of an interactive computer service, such as a website, immunity from lawsuits relating to the publication of information on the site by a person other than the site's provider. Thus, information posted to a blog's comments or on an online forum won't put the site provider on the hook for damages if the publication of the content happens to break the law someplace.

Someone who, in whole or in part, creates or develops the published information, however, qualifies as a "content provider," and falls outside the bounds of the immunity. The Ninth Circuit panel determined that Roommates.com, by filtering the kind of information that visitors to the site would see, had developed the information provided, and could not claim immunity for the publication of the information...

The key quote from J Kozinski is "By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing." [bold added]

In other words, Rommmates .com were, it seems, held to have "created" , in part though not in whole, the information that users themselves supplied via structured drop down menus; (eg "do you want to live with [options] straight men/gay men/straight women/gay women/anyone")but not information supplied by users themselves in freeform comments. That information was then held to have breached the anti-discrimination provisions of the Fair Housing Act.

This is rather reminiscent of the debate in the UK before the E Commerce Directive about whether sites were "editors" under the Defamation Act 1996 s 1 if they undertook any kind of filtering or editing of content - and the even earlier debate in the US about whether ISPs like Prodigy were putting themselves at risk of liability by undertaking similar editorial work to create "family-safe" content. Basically, if you are a user-generated content site, do you dare to mess with the content at all, even if the result is a better or more searchable/manageable/less offensive product for your users? Section 230 (c) was designed to put an end to such worries, as was in Europe, the ECD. From that perspective this is a very regressive step.

On the other hand, it has become increasingly clear that s 230(c) was too widely drawn in giving absolute immunity to ISPs/hosts in respect of criminal liability and non-copyright-related torts (cf the later DMCA, whose scheme is akin to the EU ECD in allowing limited immunity subject to notice and take down and other requirements) - and a series of cases have attempted to rein in that immunity by, eg, re-introducing distributor liability.

This case is a logical progression, but it is unfortunate. (A better solution would be legislative reform of s 230 (c) - but that ain't going to happen.) As the Register point out, what will the implications be for all the sites which "facilitate" or "edit" or "structure" or "filter" or even perhaps "tag" user-generated content - the MySpaces , Facebooks, and even the Googles? MySpace and Facebook both "structure" (some) information via menus and questions. So do many dating sites. What if some of this content is defamatory or obscene? In particular the word "categorized" is worrying. What might this do to the liability of new tagging sites like Digg and Delicio.us so valuable to the Internet at large?

In most these cases - especially the Diggs and Delicio.us es - I think the argument can be developed that they do not "thin down" or restrict or impose structure on the information generated by a third party content provider - which seems the nuance of the case - but merely add value to it separate from the actual text of the third party content. (What will AACS be thinking reading this, I wonder?) Similarly Google can argue that they do not themselves filter content but merely respond to user (ie third party) instruction. Nonetheless Google is usually made available with default on Safe Search, ie filtering out obscene content - so the position is not all that clear.

I await the appeal:-)

ps other views: Eric Goldman ; Eugene Volokh - neither happy.