Forums - Can you be held accountable?

[jmilley86]

I currently host a website where users pay a monthly or yearly fee for exclusive access to a private forum.
There are users in this forum who post links to what may be considered illegal downloads.

Question: Can the webmaster be held accountable for the actions of registered users.

I am not selling these files or links. The users pay for access to a private forum, that is what is advertised.
Nor do I host any content on the website. All links, illegal or not, that are posted by users point to a third-party file hosting company and are not contained on my site.

I have done a bit of research and what frequently keeps coming up is a relevant portion of S.230
"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." 47 U.S.C. §230(c)(1).

Another point that I frequently hear is that if you do not moderate or edit the forum, you claim no responsibility. As soon as you start editing content you are treated as something like a magazine editor, and may be held responsible to forum content.

If you have encountered this before or know any relevant information on this topic please post.

Thank you.

 

[Michael Wechsler]

What you are pointing to is a safe harbor for "common carriers." The easiest example is a telephone company that provides service. They can't be held liable if someone uses their service to commit a crime, that is provided they just provide the phone line. If they somehow would be censoring and controlling content of the users, then the telephone company could be held liable.

If I'm reading correctly you are thinking about potentially hosting a warez links site, a web site that doesn't host copies of pirated software but links where to obtain. In this instance, you know what your system is being used for. It's not like there are a few stray links being provided about how to commit copyright infringement. As such, you could be committing "contributory infringement" or "vicarious infringement." Contributory infringement could happen if you "with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." This means that:

1) you had knowledge of the infringing activity and
2) materially contributed to the infringing conduct.

The latter half could be you running a site that you know is a marketing point for warez sites. This is distinguished from Sony Corporation of America v. Universal City Studios, Inc. (a.k.a. the "Sony Betamax case") which held that a distributor is not liable for users' infringement so long as the tool is capable of substantial noninfringing uses.


There are many cases on contributory infringement:

Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F. 2d 1159, 1162 (2d Cir. 1971)

Church of Scientology v. Dataweb

MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005) is a United States Supreme Court decision in which the Court unanimously held that defendant P2P file sharing companies Grokster and Streamcast (maker of Morpheus) could be sued for inducing copyright infringement for acts taken in the course of marketing file sharing software. (Wikipedia)

Warez.at - A warez links site that was shut down by the Business Software Alliance
Heise: Slysoft Link - Ruling from Munich, Germany shutting down linking site.

Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.
Linking Liability. A federal court granted a preliminary injunction against critics of the Mormon Church finding that the defendants had engaged in contributory copyright infringement for posting an e-mail to their site which contained three links to web sites that they knew, or should have known, contained infringing copies of the Church Handbook of Instructions.

Universal Music Australia Pty. Ltd. v. Cooper
Australian court found that website operator and internet service provider (ISP) infringed record companies' copyrights by hosting a website that included hyperlinks to pirated music. Record companies sued Cooper, who operated mp3s4free.com, and Comcen, the ISP that hosted the website. Even though defendants claimed they were unaware of infringement, court found sufficient evidence.

You may also want to read more about the DMCA or the Digital Millennium Copyright Act

 

[jmilley86]

ok thanks for that information
what i'm hearing is that if we neither condone nor contribute to infringement activities, and advertise as a 'community' not a 'warez links' site, then it's more legally viable?

 

[Michael Wechsler]

I don't know what "legally viable" means. If it looks like a duck, walks like a duck and talks like a duck, then it's a duck even if you try to call it a chicken. If 70% of your content contains links to illegal software then call it what you will and take your own chances. Regardless of whether you may or may not be liable in fact, you will likely be sued once your site is large enough. You will have to deal with defending yourself against deeper pockets.

What I wrote said nothing about "conding" illegal activities, only that you are on notice of them and that users are taking advantage of them.

Many online service providers are trying to take advantage of the Safe Harbor Provisions of the DMCA and that means once you're on notice, you've got to act reasonably to remove infringing content. You can't turn a blind eye from what you're sponsoring on your site. User generated content sites like YouTube and others have these provisions in place.