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Model Answers to briefing extra credit assignment

 
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PostPosted: Mon Nov 27, 2017 11:49 pm    Post subject: Model Answers to briefing extra credit assignment Reply with quote

To: Monday & Tuesday Students
From: S.Waterstone
Re: Sample Answers to Briefing Assignments

Below are MY sample answers to your extra credit briefing assignments. While ALL briefs are your own and are usually quite personal, the following answers contain items that MUST, in some form, have been included in your briefing.


Briefs are a personal creation. And while everyone's brief is somewhat different, with no totally "correct" brief. Certain aspects are usually seen throughout all briefs of the same case. I have listed below my briefs of each of the three cases assigned. They are merely given as a "suggestion" of how I brief each case.

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CASE NUMBER ONE:

CASE NAME AND CITATION:

KENNETH M. ZERAN, Plaintiff-Appellant, v. AMERICA ONLINE, INCORPORATED, Defendant-Appellee. 129 F.2d 327 (1997)

SUMMARY OF THE KEY FACTS IN THE CASE:

An unidentified person posted a message on an AOL bulletin board advertising "Naughty Oklahoma T-Shirts." These trivialized the Oklahoma Bombing. Those interested in purchasing the shirts were instructed to call "Ken" at Zeran's home phone number, which he used for his home business, in Seattle, Washington. Zeran received a high volume of calls, comprised primarily of angry and derogatory messages, but also including death threats. Zeran contacted AOL who assured Zeran the posting would be removed but could not be retracted. Despite AOL’s assurances new posting were submitted and additional threats made to Zoran. Zoran complained and even contacted the FBI. Eventually the phone calls came approximately every two minutes. A local radio station even perpetuated the story be urging listeners to phone Zoran’s home phone. He was threatened with death threats. After apologies were issued, and the revelation that this was all a hoax, the phone calls were reduced to fifteen per day.

Zeran argues AOL unreasonably delayed in removing and posting retractions, and failed to screen for similar postings thereafter, regarding defamatory messages posted by an unidentified third party on AOL. AOL claims protection under “The Communications Decency Act of 1996.” Zoran claims §230 of the act does not apply here because his claims arise from AOL's alleged negligence prior to the CDA's enactment.

ISSUE PRESENTED BY THE CASE

Does the Communications Decency Act of 1996 ("CDA") -- 47 U.S.C. § 230 -- bar Zeran's claims.

HOLDING

Section 230, immunizes computer service providers like AOL from liability for information that originates with third parties. Furthermore, Congress clearly expressed its intent that § 230 apply to lawsuits, like Zeran's, instituted after the CDA's enactment. Accordingly, the Court AFFIRMED the judgment of the district court which had granted AOL’s judgment on the pleadings.

SUMMARY OF THE COURT'S REASONING

"The Internet currently used by approximately 40 million people is accessed through interactive computer services, such as AOL. Much of the information transmitted originates with the company's millions of subscribers, via electronic mail, or publicly by posting messages on AOL bulletin boards, which are read by any AOL subscriber.

Congress has immunized interactive computer service providers from claims based on information posted by a third party. The relevant portion of § 230 states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

§ 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred.

Zeran’s claim that AOL was actually a distributor, which would leave it not open to the protection of § 230 was repudiated by the Court, which held AOL was not liable under this assertion.

Lastly, the Court made sure to hold that nothing in their decision protects the original culpable party who posts defamatory messages.

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CASE NUMBER TWO:

CASE NAME AND CITATION

STONER vs. EBAY INC., a Delaware Corporation, et al., Defendants. (THIS IS PURSUANT TO A COURT ORDER AND THERE IS NO CITATION)

SUMMARY OF THE KEY FACTS IN THE CASE:

EBay is an online auction company. Plaintiff claims it has developed a method of operation that allows it to knowingly reap massive profits from the sale of bootleg and other unauthorized 'infringing' sound recordings in violation of the law, by selling or advertises for sale these recordings. Plaintiff claims that Defendant, has full knowledge that the items offered for sale are illegal infringing products.

ISSUE PRESENTED BY THE CASE:

Whether e-Bay enjoys immunity under the Communications Decency Act ("CDA"), 47 U.S.C. §230, for the conduct underlying plaintiff's claims.

HOLDING

E-Bay is immune from any liability arising from plaintiff's claims, and therefore grants defendant's motion for Summary Judgment.

SUMMARY OF THE COURT'S REASONING

Based on 47 U.S.C. §230, which states that "[n]o provider or users of interactive computer service shall be treated as the publisher or speaker of any information content provider," and section 230(e)(3) which provides in part that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Section 230 "creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third party. Specifically, §230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions--such as deciding whether to publish, withdraw, postpone or alter content--are based.

The Court held that eBay qualifies under all aspects of these provisions. eBay’s postings are created entirely by sellers. EBay, therefore, is not an information content provider or joint information content provider with respect to the description of auctioned goods.

Despite plaintiff's attempt to characterize eBay as an active participant in the sale of products auctioned over its service, plaintiff is seeking to hold eBay responsible for informing prospective purchasers that illegal recordings may be purchased--information that originates with the third part sellers who use the computer service. The uncontroverted facts establish that eBay's role does not extend beyond the scope of the federal immunity.

Neither aggressive advertising nor the imposition of a fee--including a fee based in part on the price at which an item is sold--transforms an interactive service provider into a seller responsible for items sold.

The Court further held that holding eBay to the responsibility of monitoring the sales would place the kind of burden on them that Congress specifically wanted to avoid. If such an obligation is to be imposed, it is Congress that must be asked to re-evaluate the immunity conferred by section 230.

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CASE NUMBER THREE:

CASE NAME AND CITATION

Blumenthal v. Drudge and American Online, Inc. , 992 F. Supp. 44 (D.D.C. 1998)

SUMMARY OF THE KEY FACTS IN THE CASE:

This is a defamation case revolving around a statement published on the Internet by defendant on the Drudge Report, a gossip column focusing on gossip from Hollywood and Washington, D.C.) available to all with computers, as well as subscribers to “The Report” The posting at issue concerns: A White House employee, Sidney Blumenthal, stating he has a spousal abuse past that has been effectively covered up. The administration has stated that this report is totally false.

Through an agreement with AOL, “The Report” is readily available to AOL subscribers.

There was a posting by Drudge retracting the report, following Plaintiff’s counsel request for this action.

ISSUE PRESENTED BY THE CASE:

Whether Defendant AOL’s Summary Judgment Motion should be granted based on immunity under the Communications Decency Act ("CDA"), 47 U.S.C. §230, for the conduct underlying plaintiff's claims.

HOLDING

AOL is immune from any liability arising from plaintiff's claims, and therefore grants defendant's motion for Summary Judgment. It is clear that had AOL written the report, they would be liable.

SUMMARY OF THE COURT'S REASONING

Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, Section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content --are barred.

* The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.

In confronting the issue of AOL’s active role in allowing subscribers access to “The Report” the Court stated: Congress has made a policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others.

The Court made it clear that its holding does not immunize the original culpable party who posts defamatory messages.
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