At 05:08 PM 9/5/2001 -0700, Eric Murray wrote:
Is it no longer possible to consider a remailer (or an ISP or BBS) a common carrier and thus "publisher" is the best to hope for? Or is it that "publisher", while carrying fewer rights, is much less likely to be held invalid?
The "common carrier" argument never went anywhere - it was a reasonable early effort to discuss the liability rules which might be appropriate for online services; but that's not the way that the law has developed, and it's no longer considered a reasonable line of thinking. Even traditional common carriers (like phone companies) aren't likely to fit the definition of "common carrier" when they're operating as ISP's or other online service providers - e.g., pacbell.com, the company which provides local phone service as an SBC subsidiary, is still a common carrier for many purposes - but pacbell.net, the company which provides DSL connectivity, Usenet news, email, and web hosting for residential and business customers, is *not* a common carrier as that term has traditionally been used. That arm of the business is likely considered an "enhanced service provider", in FCC and PUC-speak, and doesn't get the benefit (or the burden) of traditional common carrier rules. (Don't forget, common carriers usually have to publish rate schedules, stick to published rates for all subscribers, seek regulatory permission to change their rates, participate in administrative proceedings concerning their rates charged to customers and rates of return on capital, etc - it is absolutely not some magic badge of publisher freedom which one can assume and then wield as a shield against any form of regulation. It's more like a deal with the regulatory devil, whereby one gains some short-term exemptions in exchange for eternal obesiance to a byzantine regulatory apparatus with no hope of salvation.) Even "publisher" is relatively outdated - the relevant definitions and liability rules are found in the Communications Decency Act (it wasn't all struck down; see 47 USC 230) and the Digital Millenium Copyright Act (17 USC 512), if you're talking about liability for online service providers. -- Greg Broiles gbroiles@well.com "We have found and closed the thing you watch us with." -- New Delhi street kids