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Gang Videos Spur Call For State Legislation

Publication Date: 
April 30, 2008
Monterey County Herald
Julia Reynolds

Professor Mark Lemley is quoted in a Monterey County Herald story about an attempt by lawmakers to remove violent and criminal content from websites such as YouTube, MySpace or Facebook."

But efforts to censor Web content face unique legal opposition, said Stanford University professor Mark Lemley, who teaches Internet law and has represented YouTube's parent company Google on unrelated matters.

"There's a safe harbor law that immunizes (providers) from having to police their content," Lemley said.

That provision came about as part of the Digital Millennium Copyright Act, passed by Congress in 1998.

"The courts have basically said that if you didn't create your content, you're not liable if someone is harmed," Lemley said.

If a user's posting is determined to be offensive, the site is not required to take it down, he said, "although from a business point of view, YouTube usually tries to."

However, Lemley said, the safe harbor provision does not permit sites to post child pornography and copyright infringements. "They're immune from liability, but they do have to take it down," he said.

He points out that the Internet can sometimes serve as law enforcement's ally.

"People who think they are anonymous may not be as anonymous as they think," he said. "You can actually track down who posted that."

Still, Lemley said, the Salinas video hit lists show that "in some cases, there's some real harm being done."

For practical reasons many user-generated content sites don't screen postings. One reason is the sheer volume of material posted.

"One content owner sent 100,000 content violation notices to YouTube," he said.

If MySpace or YouTube ever begin to closely screen user content the way many online "bulletin boards" currently do, the sites would be radically different from the wide-open forums they are today.

"It wouldn't be everyone who can post. I think we'd lose something," Lemley said. "There are some things that wouldn't get posted at all."


"People regularly bring cases against Internet service providers. They all lose, but they keep bringing cases," he said. "The market can have an impact. It's likely not legal liability, it's sort of YouTube may act more quickly in responding (to complaints)."


"At some point Congress might well revisit this issue," Lemley said.