Common carriers
Greg Broiles
gbroiles at well.com
Wed Sep 5 19:22:42 PDT 2001
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Even "publisher" is relatively outdated - the relevant definitions and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 at well.com
"We have found and closed the thing you watch us with." -- New Delhi street kids
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