Mark Lemley’s article on rationalizing safe harbors for internet intermediaries is a must-read for those interested in secondary liability in cyberlaw. Worried about the absolutism of the CDA and unfair vulnerabilities generated by a patchwork legal regime, Lemley argues that
An ideal safe harbor would take the middle ground approach of the DMCA, but would avoid some of its pitfalls. It would be general rather than specific in its application to Internet intermediaries. It would give plaintiffs the information they needed to find tortfeasors, and would give them a mechanism for quickly and cheaply removing objectionable content from the Web, but it would also discourage intermediaries from automatically siding with the plaintiff, and would give them real immunity against the specter of damages liability.
Google is probably hoping that Lemley’s paper gets some traction in India, as it is facing some opposition from the Indian Parliament’s Standing Committee on Information Technology regarding proposed safe harbors there. The Committee recommends:
that a definite obligation should be cast upon the intermediaries/service providers in view of the immense/irreparable damages caused to the victims through reckless activities that are under taken in the cyberspace by using the service providers’ platform. Casting such an obligation seems imperative . . .
The Google Public Policy blog argues that it would be “technologically infeasible for ISPs and web companies to pre-screen each and every bit of content being uploaded onto our platforms, especially as the amount of information coming online increases exponentially in India and around the world.” However, less formal dispute resolution methods like the UDRP may make post-hoc conflicts easier to resolve outside of intermediaries themselves.