Rationalizing Internet Safe Harbors
Internet intermediaries - service providers, Web hosting companies,Internet backbone providers, online marketplaces, and search engines -process hundreds of millions of data transfers every day, and host or linkto literally tens of billions of items of third party content.Some of this content is illegal. In the last 12 years, both Congress andthe courts have concluded that Internet intermediaries should not be liablefor a wide range of content posted or sent through their systems byanother. The reasoning behind these immunities is impeccable: if Internetintermediaries were liable every time someone posted problematic content onthe Internet, the resulting threat of liability and effort at rightsclearance would debilitate the Internet.While the logic of some sort of safe harbor for Internet intermediaries isclear, the actual content of those safe harbors is not. Rather, the safeharbors actually in place are a confusing and illogical patchwork. For someclaims, the safe harbors are absolute. For others, they preclude damagesliability but not injunctive relief. For still others they are dependent onthe implementation of a "notice and takedown" system. And for at least afew types of claims, there is no safe harbor at all. This patchwork makesno sense. In this article, I suggest that it be replaced with a uniformsafe harbor rule. A single, rationally designed safe harbor based on thetrademark model would not only permit plaintiffs the relief they need whileprotecting Internet intermediaries from unreasonable liability, but wouldalso serve as a much needed model for the rest of the world, which has yetto understand the importance of intermediaries to a vibrant Internet.