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Rationalizing Internet Safe Harbors


Mark A. Lemley


Stanford Law School

April 10, 2007

Journal of Telecommunications and High Technology Law, Vol. 6, p. 101, 2007
Stanford Public Law Working Paper No. 979836
TPRC 2007

Abstract:     
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 link to literally tens of billions of items of third party content.

Some of this content is illegal. In the last 12 years, both Congress and the courts have concluded that Internet intermediaries should not be liable for a wide range of content posted or sent through their systems by another. The reasoning behind these immunities is impeccable: if Internet intermediaries were liable every time someone posted problematic content on the Internet, the resulting threat of liability and effort at rights clearance would debilitate the Internet.

While the logic of some sort of safe harbor for Internet intermediaries is clear, the actual content of those safe harbors is not. Rather, the safe harbors actually in place are a confusing and illogical patchwork. For some claims, the safe harbors are absolute. For others, they preclude damages liability but not injunctive relief. For still others they are dependent on the implementation of a "notice and takedown" system. And for at least a few types of claims, there is no safe harbor at all. This patchwork makes no sense. In this article, I suggest that it be replaced with a uniform safe harbor rule. A single, rationally designed safe harbor based on the trademark model would not only permit plaintiffs the relief they need while protecting Internet intermediaries from unreasonable liability, but would also serve as a much needed model for the rest of the world, which has yet to understand the importance of intermediaries to a vibrant Internet.

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Date posted: April 13, 2007 ; Last revised: December 23, 2013

Suggested Citation

Lemley, Mark A., Rationalizing Internet Safe Harbors (April 10, 2007). Journal of Telecommunications and High Technology Law, Vol. 6, p. 101, 2007; Stanford Public Law Working Paper No. 979836; TPRC 2007. Available at SSRN: http://ssrn.com/abstract=979836

Contact Information

Mark A. Lemley (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
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