From: Jim Choate <ravage@EINSTEIN.ssz.com>
Date: Sat, 9 Nov 1996 15:47:32 -0800 (PST)
To: cypherpunks@toad.com
Subject: Mailing list liability
Message-ID: <199611092351.RAA01501@einstein>
MIME-Version: 1.0
Content-Type: text



Note:

Parts of the following are taken verbatim from (1) with some rewording on my
part to make the material flow better.




Cubby v Compuserve (1991)

The court reasoned,

"in essence an electronic, for profit library that carried a vast number of
publications and collected usage and membership fees from its subscribers in
return for access to the publications."

The court further ruled that Compuserve had no more editorial control over
Rumorville than "does a public library, book store, or newsstand, and it
would be no more feasible for Compuserve to examine every publication it
carries for potentialy defamatory statements than it would be for any other
distributor to do so."

The court also found, "A computerized database is the functional equivalent
of a more traditional news vendor, and the inconsistent application of a
lower standard of liability to an electronic news distributor such as
Compuserve than  that which is applied to a public library, a book store, or
a newsstand would impose an undue burden on the free flow of information.
Given the relevant First Amendment  considerations, the appropriate standard
of liability is whether it knew or had reason to know of the allegedly
defamatory Rumorville statements."

The court held that Compuserve was not liable because Compuserve was a
"distributor" and not a "publisher." The court concluded that because
Compuserve did not actively monitor the postings of the forum, it was a
distributor.

In summary, the court compared Compuserve to a bookstore selling the book
rather than the publisher of the book.



Cianci v New Times Publishing Co. (1980)

"one who repeats or othewise republishes defamatory matter is subject to the
liability as if he had originaly published it."



Lerman v Chuckleberry Publishing, Inc. (1981)

The court held that with respect to news vendors, book stores, and libraries
are not liable if "vendors and distributors of defamatory publications are
not liable if they neither know nor have reason to know of the defamation."



Stratton Oakmont v Prodigy (1995)

The critical issue in Prodigy was whether Prodigy exercised sufficient
editorial control over its computer bulletin boards to render it a publisher
with the same responsibilities as a newspaper or magazine.

The court reasoned that there were two distinctions in this case sufficient
to qualify Prodigy as a publisher. First, it held itself out to the public
and its members as controlling the content of its computer bulletin boards.
Second, Prodigy implimented this control through its automated software and
established guidelines  that board leaders were required to enforce. Prodigy
was clearly making decisions as to content. Such decisions constitute
editorial control.


(1)  ;login:, Oct. 1996, V21N5 pp27.