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CCR Symposium: Differences Among Online Entities

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  1. That’s very interesting, David, and I’m glad that you’ve approached these points so methodically, so I hope you’ll indulge me butting in again. You’re absolutely right, unfortunately, in that the differentiation question is an easier one when it comes to ISPs vs sites than between different kinds of site. I’d suggest that Frank Pasquale’s work on search engines gives us something to think about here, in that he (and others) have been tackling the power exercised by the search engine as non-ISP intermediary.

    On my earlier post today I pointed to the EU’s three-way distinction between ISP, cache and host as a possible approach, but something I left out was how this interacts with net neutrality/common carriers. I don’t have a problem with some sort of trade-off, something like (simplified for speed)

    - common carrier-type immunity (absolute or close to it) in return for actual common carrier behaviour (no packet inspection, etc),

    - limited immunity (or another way, enhanced obligations of scrutiny) in return for no common carrier-type obligations.

    Even though I see the huge value of going easy on hosts, especially when we see how responding to threats makes them trigger happy (this DMCA study has lots of useful data on that point), it does still seem puzzling (and, to those identifying threats to participation) that they can (knowingly) host and profit from stacks of actionable abuse regardless of knowledge – they do play a different role to the ISP, particularly in that the ISP’s business activities are more general than an individual site and the relationship between content and conduit is quite different.