Legal tides changing for user-generated content

Many civil libertarians will tell you that there were certain problems with the 1996 telecom Act, but there's one part of it that every ISP and owner of a UGC-based web site loves. Now two rulings threaten to weaken that part of the Act. Should you be concerned?

I'm referring to subdivision 230 of what has been normally called the communicating Decency Act. Wikipedia discusses it in layman's terms, more or less. The Electronic Frontier Foundation has an excellent page on subdivision 230 with an account of how it applies to bloggers.

The actual text of subdivision 230 that is relevant to supplier of user-driven sites such as Myspace and YouTube says that "No supplier or user of an interactive computer service shall be treated as the publishing house or talker of any info provided by another information content provider." In short, if I upload a nasty video to YouTube that makes fun of Walt Disney, the amusement company can't sue YouTube; they're supposed to sue me. (If I'm violating copyright, there's also the little matter of DMCA takedown notices, but that's another law and an wholly different can of worms).

subdivision 230 has helped the net become the wondrous raucous and contentious place that it is today. Where would we be without all the online forums, blogs, geological dating sites, and photo- and video-sharing sites with all their remark? Every single one of those boasting user-generated content, and thanks to subdivision 230, the owners of these kinds of sites don't have to worry about civil lawsuits for a wide range of potentiality offenses, including defamation. Sure, if the owner of one of these sites posts actionable content, he or she can still be sued; but if I own a UGC site and Mary Sue posts something that virtue a suit, those attorney won't be aimed at me.

It seems that good things never last, however, and a pair of rulings by federal district judges just might end the party. Both are being appealed, but as Ann Broache, writing for CNet, notes, "If those decisions are upheld on appeal, and if more judges follow suit, web site operators and Internet service providers may find themselves compelled to police what their users post - or face the unsettling prospect of being held liable for the contents."