This brief has been submitted, but not yet accepted by the court CONTENTS * NOTICE OF MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF * AFFIDAVIT OF ALFRED FERRER III * MEMORANDUM OF LAW OF THE COMMERCIAL INTERNET EXCHANGE ASSOCIATION IN SUPPORT OF MOTION FOR LEAVE TO FILE SUBMISSION AS AMICUS CURIAE AND MOTION FOR RENEWAL AND REARGUMENT OF DEFENDANT PRODIGY SERVICES COMPANY * PRELIMINARY STATEMENT * INTEREST OF THE AMICUS CURIAE * The Commercial Internet eXchange Association * The Internet * ARGUMENT The Conduit Liability Rule The Special Characteristics of Interactive Services Alter the Meaning of Editorial Control. The Court Erred in Finding Interactive service Providers to be "Publishers. The Impact on the Internet of the Court's Initial Ruling * CONCLUSION * Exhibit I-Commercial Internet eXchange Association Membership List * AFFIDAVIT OF ROBERT D. COLLET NOTICE OF MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF _________________________________________________________________ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU STRATTON OAKMONT, INC. AND DANIEL PORUSH, Plaintiffs, - against - PRODIGY SERVICES COMPANY, A PARTNERSHIP OR JOINT VENTURE WITH IBM CORPORATION AND SEARS ROEBUCK & COMPANY, "JOHN DOE" AND "MARY DOE", Defendants. _________________________________________________________________ Index No. 031063/94 (Ain, J.) IAS PART 34 PLEASE TAKE NOTICE that upon the annexed affidavit of Alfred Ferrer III, sworn to August 28, 1995, and the annexed affidavit of Robert Collet, sworn to August 25, 1995, the undersigned will move before this Court, at the Motion Support Office, Room 152, 100 Supreme Court Drive, Mineola, New York 11501, on the 15th of September, at 9:30 a.m. or as soon thereafter as counsel may be heard, for an order, pursuant to CPLR 2221 and the inherent powers of the Court, granting Commercial Internet eXchange Association leave to file a brief and affidavit as amicus curiae in support of the motion of defendant Prodigy Services Company for leave to renew and reargue its motion for partial summary judgment, for entry of partial summary judgment in defendant's favor, and for such other and further relief as the Court may deem just and proper. This action is for defamation, negligence, tortious interference and injunctive relief. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering papers, if any, shall be served upon the undersigned at least seven (7) days (if served by hand) or twelve days (if served by mail) before the return date. Dated: New York, New York August 29, 1995 PIPER & MARBURY L.L.P. Attn: Ronald Plesser, Esq. Andrew L. Deutsch, Esq. 53 Wall Street New York, New York 10005-2899 (212) 858-8900 OF COUNSEL: Emilio W. Cividanes, Esq. Julie A. Garcia, Esq. 1200 Nineteenth Street, N.W. Washington, D.C. 20036-2430 (202) 861-3900 Attorneys for Proposed amicus curiae Commercial Internet eXchange Association TO: SINGER, BIENENSTOCK, ZAMANSKY, OGELE & SELENGUT LLP 40 Exchange Place 20th Floor New York, New York 10005 (212) 809-8550 Attorneys for Plaintiffs FRANKFURT, GARBUS, KLEIN & SELZ, P.C. 488 Madison Avenue New York, New York 10022 (212) 980-0120 Attorneys for Defendants _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU STRATTON OAKMONT, INC. AND DANIEL PORUSH, Plaintiffs, - against - PRODIGY SERVICES COMPANY, A PARTNERSHIP OR JOINT VENTURE WITH IBM CORPORATION AND SEARS ROEBUCK & COMPANY, "JOHN DOE" AND "MARY DOE", Defendants. _________________________________________________________________ Index No. 031063/94 (Ain, J.) IAS PART 34 AFFIDAVIT OF ALFRED FERRER III STATE OF NEW YORK, COUNTY OF NEW YORK. ALFRED FERRER III, being duly sworn, says: 1. I am a member of Piper & Marbury L.L.P., attorneys for proposed amicus curiae Commercial Internet eXchange Association ("CIX"), and am admitted to practice before the courts of the State of New York. I make this affidavit in support of the motion of CIX for leave to file a submission as amicus curiae in support of the motion of defendant Prodigy Services Company for renewal and reargument of the Court's Opinion and Order dated May 23, 1995, granting plaintiffs Stratton Oakmont, Inc. and Daniel Porush partial summary judgment on their claims in this action. 2. Annexed hereto as Exhibit A is the proposed memorandum of law of amicus curiae CIX, with exhibits. 3. Annexed hereto as Exhibit B is the affidavit of Robert D. Collet, President and Chairman of the Board of Directors of CIX, which CIX proposes as part of its amicus curiae submission. 4. CIX respectfully requests that the Court accept and consider CIX's submission, and issue a new decision on plaintiff's motion for partial summary judgment, because the Court's May 23, 1995 decision establishes a rule of law that would dramatically chill the use of the part of the global "Information Superhighway" known as the Internet and be catastrophic to CIX members. CIX believes that the original briefs in this matter did not adequately inform the Court of the nature of the Internet, its importance as a method of communication and dissemination of ideas, or the stifling effect that would result were Internet access providers held to be publishers for purposes of defamation liability. 5. Furthermore, while Prodigy and amicus Interactive Services Association have fully discussed in this round of briefing the issues as they affect computer bulletin-board service operators and on-line service providers, CIX presents the point of view of Internet access providers, which raise different practical and operational issues. The legal issues, however, remain the same. Consequently, CIX members are vitally interested both in the specific dispute before this Court, and in its grave implications for the future of interactive media. Signed by Alfred Ferrer III Notarized by Doreen A. Gaines _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU STRATTON OAKMONT, INC. AND DANIEL PORUSH, Plaintiffs, - against - PRODIGY SERVICES COMPANY, A PARTNERSHIP OR JOINT VENTURE WITH IBM CORPORATION AND SEARS ROEBUCK & COMPANY, "JOHN DOE" AND "MARY DOE", Defendants. _________________________________________________________________ Index No. 031063/94 (Ain, J.) IAS PART 34 _________________________________________________________________ MEMORANDUM OF LAW OF THE COMMERCIAL INTERNET EXCHANGE ASSOCIATION IN SUPPORT OF MOTION FOR LEAVE TO FILE SUBMISSION AS AMXCUS CURXAE AND MOTION FOR RENEWAL AND REARGUMENT OF DEFENDANT PRODIGY SERVICES COMPANY _________________________________________________________________ PRELIMINARY STATEMENT The Commercial Internet eXchange Association ("CIX") hereby respectfully submits this brief in support of: 1. its motion for leave to file a submission as amicus curiae; and 2. the motion of Prodigy Services Company ("Prodigy") for renewal and reargument of the Court's opinion and order dated May 23, 1995. If, as seemingly required by the Court's May 23, 1995 decision, screening Internet sites for obscenity or similarly objectionable materials also requires CIX members to verify and guarantee the truth of the content of all communications transmitted through their facilities, they will either 1. avoid screening any communications or 2. cease functioning if failure to screen were to trigger liability for obscenity or other offenses. Either of these options will cripple the growth of the "information superhighway" and deny Americans the substantial benefits to commerce, education, and entertainment that the rest of the world enjoys. The Court should grant Prodigy's motion for reargument or renewal, vacate its prior determination, and issue an opinion holding that computerized bulletin-board service operators and others who facilitate interactive communications, including Internet access providers, may undertake screening of communications for obscenity, offensiveness, or other objectionable materials without being subject to liability as publishers. INTEREST OF THE AMICUS CURIAE CIX is the nation's largest nonprofit trade association comprised of commercial Internet access providers ("IAPs"). [footnote: A list of CIX members is attached as Exhibit 1. Prodigy is not among the members Of CIX]. The Internet, often referred to as the network of networks, is an enormous series of connected computer networks (over 10,000) that reaches 57 million users at nearly 5 million computers located in 90 countries. It grows by nearly 10 percent a month, resulting in a doubling in size about every 10 months. CIX presently consists of over 100 domestic members and over 50 international members, including large, dominant market participants as well as innovative, entrepreneurial niche providers. CIX's domestic members comprise over 75% of the nation's commercial Internet access providers. Nearly half a billion messages pass through the worldwide systems of CIX members daily. See Affidavit of Robert D. Collet 3, 4 (hereinafter "Collet Affid."). CIX has filed this brief because the Court's decision that Prodigy is liable as a publisher for defamatory postings affects not only computer bulletin-board service operators, but virtually every provider of computer communications that permits individuals to self-publish over its facilities. CIX believes that the original briefs in this matter did not adequately inform the Court of the nature of the Internet, its importance as a method of communication and dissemination of ideas, or the chilling effect that would result were Internet access providers also held to be publishers for purposes of defamation liability. Furthermore, while Prodigy and amicus Interactive Services Association have fully discussed in this round of briefing the issues as they affect computer bulletin-board service operators and online service providers, CIX presents the point of view of Internet access providers, which raise different practical and operational issues. [footnote: Prodigy and the members of the Online Policy committee of the Interactive Services Association provide Internet access as well as computer bulletin-board services]. The legal issues, however, remain the same. CIX members must be able to implement mechanisms for blocking the transmission of obscenity and other objectionable materials over their facilities without being liable for the substantive content of statements transmitted over those facilities. The Court's ruling on partial summary judgment holding that such transmission makes the transmitter a publisher for defamation liability purposes gives Internet access providers a strong incentive not to regulate such materials. On the other hand, failure of self-regulation will certainly lead to legislative intervention, as it already has done. [footnote: See infra note 12 and accompanying text]. Consequently, CIX members are vitally interested both in the specific dispute before this Court, and in its grave implications for the future of interactive media. The Commercial Internet eXchange Association CIX was formed to provide an alternative to the restricted nature of the Internet when it was controlled by the Defense Advanced Research Projects Agency ("DARPA") and then the National Science Foundation ("NSF"). Centers that receive government funding were at the time forbidden from transmitting commercial messages. As companies large and small began to connect to the Internet during the 1980s, the need grew for commercial IAPs that could handle all types of traffic -- commercial as well as noncommercial. See Collet Affid.6. CIX strives to facilitate global connectivity among commercial IAPS, to further the development and use of the Internet, and to foster fair and open environments for Internet commercialization. see id.7. The ubiquitous nature of the Internet is due, in part, to the open network approach fostered by CIX and its members. CIX member networks have a fundamental agreement to interconnect with all other CIX members. There is no restriction on the type of traffic that may be routed between member networks nor any traffic-based charges between CIX member networks. Each member network connects directly or indirectly to all other member networks. The lack of centralized control has been essential to the more recent development of the Internet. See Collet Affid. 7. Through access and participation in the emerging global information infrastructure, the citizens of our country can contact others electronically, with virtually no delay, whether they are in the next state or on another continent. This "information superhighway" has opened cultural, educational, and commercial horizons that only a decade ago seemed unattainable. The commercial Internet access services industry is one of the fastest growing, most innovative industries in America. See Collet Affid. [footnote: According to a recent report by the Goldman Sacho & co. securities firm, revenue from the Internet-access business will grow to more than $ 1 billion by 1997. Kara Swisher, "Getting Rich on the Back of the Internet: Investment Wave Breeds New Tycoons," Wash. Post, July 24, 1995, at Al]. CIX forms one of the necessary foundations of the emerging global information infrastructure and offers some of the critical tools that corporations, educational institutions, individuals, and others require to communicate and access otherwise unavailable information. The Internet IAPs connect individuals, companies, and other entities to the Internet. The Internet is a series of computer networks in which any existing network can participate. Its transmission facilities encompass satellites, cable, fiber, and telephone lines. originally funded by DARPA and the NSF, the Internet was once the sole domain of United States Government-sponsored research scientists, providing a mechanism for the scientific, university, and governmental communities to exchange computer communications. See Collet Affid.6. The Internet is now almost wholly in the private sector and has grown to a ubiquitous service, making vast amounts of information on other computer systems around the world available to anyone with a computer and a modem. Access to the Internet may be obtained through public libraries, IAPS, and online service providers such as Prodigy, CompuServe, and America Online. The Internet is a public forum in the truest sense of the word, one of unparalleled scope and utility. While the most popular and widespread applications of Internet services include electronic mail and file transfers, the fastest growing segment of the global Internet is its graphics- filled portion, known as the World Wide Web. See Collet Affid. 4. As one commentator described it: "The Web is like a landscaped subdivision on the wilder, more primitive Internet. It brings a semblance of order to a vast and unorganized mass of electronic information by dividing it into 'home pages,'-each with customized data banks that can contain text, graphics, voices, music, and even video." [footnote: Kara Swisher, "'Web, opens a World of On-Line Commerce: Fast-Growing Segment of the Internet offers Businesses, Customers a Way to Connect," Wash. Post, March 26, 1995, at Hl.] The World Wide Web functions by linking distant document, picture, or sound files to each other through a system known as "hypertext." Simply clicking on highlighted text (hypertext) with a mouse causes the software to travel the Internet to the connected document, wherever it may be, without the need to enter the arcane commands earlier cross- referencing systems required. About 8 million people access over 16,000 Web "sites," as the computers in which Web information resides are known. See Collet Affid. 1 4. Web sites vary widely. They cover diverse subject areas and include: 1. "Pathfinder," Time-Warner Inc.'s service containing information from Time, People, Time-Life Books, and Court TV; 2. Cornell Law School's Legal Information Institute with collections of recent decision of the U.S. Supreme Court and the New York Court of Appeals, the text of the U.S. Code and various state statutes, and an index to the Papers of Louis Brandeis; and 3. "home pages" sponsored by more than half of the presidential candidates. Phil Gramm Democratic National Committee ARGUMENT Although the Court expressed its "full agreement" with the holdings in Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) ("Cubby") and Auvil v. CBS 60 Minutes, 800 F. Supp. 928 (E.D. Wash 1992) ("Auvil"), its conclusions are at odds with the holdings of both cases and their correct application of the long-established "conduit liability" rule. The Court erred in finding Prodigy, and by extension any interactive services provider, subject to defamation liability as a "publisher" solely for taking steps to eliminate obscenity, hate speech, and speech that could impede or obstruct the flow of information. However, even if they were to screen communications, IAPs are not publishers. Rather they are intelligent, digital conduits that permit their users to transfer and publish information next door and throughout the world. A requirement that makes IAPs liable for the truth of the content of their transmissions jeopardizes the very structure of their industry. A. The Conduit Liability Rule The "conduit liability" rule deserves much closer consideration than it received in the Court's opinion. The rule arose in recognition that the common law was unduly harsh in imposing liability on all persons who are not the original authors of a defamatory statement, but who "republish" it by delivering it or transmitting it to others. The "conduit liability" rule distinguishes between those who can readily determine and control whether a communication is defamatory before they transmit it, such as book and newspaper publishers, and "those who perform a secondary role in disseminating defamatory matter authored and published by others in the form of books, magazines and the like.1" -Presser & Keeton on Torts, 113, p. 810 (5th ed. 1984). Publishers have sufficient pre- publication access to and control over what they print to be subjected "to the same liability rules as are the author and originator of the written material." Id. Accord Restatement of Torts (Second) S 581, comment c (1977) ("Restatement"). In contrast, secondary transmitters of material are those who "only deliver() or transmit[] defamatory matter published by a third person." Restatement, S 581(l) (giving as examples newsdealers, bookstores, libraries, and telegraph companies). Secondary transmitters are essential facilitators of the flow of information; without them, there could be no commercial press or telephone service. Because their basic function is to transmit many statements originating from many sources, they cannot realistically monitor for defamatory content all statements prior to transmission. Nor can they alter those statements; they can only choose not to transmit them. In recognition of their important societal function, secondary transmitters have been exempted from liability for transmitting a defamatory statement except in narrowly defined circumstances. Well before Cubby and Auvil, the conduit liability rule had been extended in the United States and United Kingdom to such conduits as news agents, Balabanoff v. Fossani, 192 Misc. 615, 81 N.Y.S.2d 732 (Sup. Ct. N.Y. Co. 1948) (first New York decision to consider the question), magazine distributors, see Lerman v. Flynt Publishing Co., 745 F.2d 123, 139 (2d Cir. 1984), cert. denied, 471 U.S. 1054 (1985); Lerman v. Chuckleberry Publishing Co., 521 F. Supp. 228, 235 (S.D.N.Y. 1981)); libraries, see Vizetelly v. Mudie's Select Library, (19003 2 Q.B. 170 and commercial printers, see Maynard v. Port Publications, Inc., 98 Wis.2d 555, 297 N.W.2d 500 (1980). [footnote: A related privilege protects telegraph and telephone companies that transmit defamatory messages. See Anderson v. New York Telephone Co., 35 N.Y.2d 746, 361 N.Y.S.2d 913 (1973), reversing on dissenting opinion in Appellate Division reported at 42 A.D.2d 151, 345 N.Y.S.2d 740 (4th Dept 1973) (adopting privilege of Restatement of Torts (second) 612); Western Union Telegraph Co. v. Lesesne, 182 F.2d 135 (4th Cir. 1950); Mason v. Western Union Telegraph Co., 52 Cal.App.3d 429, 125 Cal.Rptr. 53 (2d Dist. 1975); Annot., 91 A.L.R. 3d 1005 (1979))] Cubby and Auvil simply applied this doctrine to today's technologies. See Cubby, 776 F. Supp- at 140 ("it would be no more feasible for Compuserve to examine every publication it carries for potentially defamatory statements that it would be for any other distributor to do so"). Auvil, 800 F. Supp. at 932 (CBS affiliates held to be mere conduits of a television program when they did not know of the program's content until it was broadcast even though they had occasionally censored other broadcasts and West Coast affiliates had a several-hour hiatus from East Coast broadcast to review the program's content before airing it). B. The Special Characteristics of Interactive Services Alter the Meaning of Editorial Control. The appropriate legal analysis applicable to regulation of expression varies from medium to medium depending upon the special characteristics of each. See FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978) ("each medium of expression" presents its own set of issues). This is certainly the case with Internet access where, unlike traditional electronic media, the service provider is not the publisher.[footnote: See J. Berman & D. Weitzner, "Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media," 104 Yale L. J. 1619 (1995).] IAPs are utilities for accessing content on the Internet. [footnote: See, e.g., Sean Gonzalez, 'Routes to the Net, PC Magazine, Feb. 21, 1995, at 166 ("Now that anyone can use the Internet, how do you access it? What you need is a new type of utility company -- an Internet provider.")] They route and convert information from individual computers and networks to other computers and networks so that information appears in a readable form when accessed by consumers searching for information on the Internet. See Collet Affid 5. Unlike a traditional distributor arrangement where, for example, a bookseller chooses the content that it will offer for sale and makes these titles available to the buyer, or a cable TV company chooses the programming it will offer to its subscribers, customers of IAPs transport themselves to the content: they access the Internet through IAPs and navigate, through their own "browser" software or one provided by the IAP, to the publishers whose content they wish to read (or the discussion group in which they wish to participate). [footnote: David R. Johnson, 'Traveling in Cyberspace," Legal Times, April 3, 1995, at 26 ("[I]f we think of the reader of electronic messages as less of a passive 'recipient, and more as an active 'traveler' to a new shared space, much will immediately become clear.").] A user's ability to exercise control over precisely what information he or she accesses (or publishes) highlights the status of IAPs as "access" providers. In this regard, Internet access differs fundamentally from broadcast technology because the user, not the originator, determines what information is transmitted and when the transmission occurs. [footnote: See supra note 7] The "Publisher" in the Internet context is the Web page provider or any user who posts material on the Internet. [footnote: Users can post messages to newsgroups in shared public message networks. Newsgroups are electronic 'meeting places' organized around particular subjects that permit users to exchange information on a variety of topics of shared interests. users can post to a certain group simply by designating its name on their messages. See L. Rose, NetLaw at 22-26 (Osborne McGraw Hill 1995).] The IAP is the means through which these "publishers" communicate with each other. In providing Internet access, IAPS, at least in the case of CIX members, are not publishers. Rather, they are essentially passive transmitters of interactive communications even if they occasionally store information as an incident to their switching and transmitting functions. The nature of the service that IAPs offer, including the instantaneous nature of digital communications, precludes them from viewing, judging, or editing the content of the messages posted or accessed by their subscribers. They lack control over the users of their services and the content transmitted over their facilities. Currently, IAPs can only respond to complaints from other users by barring certain subscribers from the service. Nevertheless, the Internet -- like other media -- has the potential for communications that are unlawful or otherwise objectionable. Families may not want certain words or ideas to enter their homes via the computer terminal. Certain sites on the Internet may carry obscenity or post pirated material that infringes the intellectual property rights of others. Providers of online services, IAPS, and others have been struggling to respond appropriately to consumer demands to eliminate or isolate this type of offensive material. Simultaneously, pressures continue to build on IAPs and other interactive service providers to exercise some control over the content transmitted over their facilities. The U.S. Senate, for example, recently passed a bill that would hold IAPs and online service providers, such as Prodigy, immune for obscene or indecent content that travels across their networks if they have taken reasonable, good faith steps to block or screen prohibited communications. [footnote: S. 652, Title IV, 104th Cong., 1st Sess. (1995)] CIX members do not presently screen communications transmitted over their facilities, see Collet Affid. 1 8, and most solutions for controlling messages transmitted over the Internet are implemented at the user's end. WebTrack, for example, is a World Wide Web monitoring and control application that gives corporations the ability to continue providing their employees with valuable online Internet access while restricting access to some or all of 15 categories of Internet sites, including pornography, gambling, hate speech, criminal skills, sports, games, and personal pages. It is marketed to corporations concerned with controlling unwanted content and the productivity impact of non-business related Internet Sites. [footnote: Nick Wingfield, "WebTrack lets IS managers monitor corporate Web use," Infoworld, July 10, 1995, at 10.] Notably, even these solutions do not rewrite content; they simply block access to "sites" of content. At present some CIX members are considering implementation of new mechanisms to protect the integrity of the communications system from obscenity and other undesirable communications. See Collet Affid. 1 8. These developing technologies would be implemented at either the user's or IAP's end. For example, technology may permit some CIX members to respond to the current public concern about pornography on the Internet by doing for their subscribers what WebTrack does: blocking certain sites known to post obscene or sexually offensive materials These IAPs would engage in a type of "traffic control," preventing subscribers from communicating with certain newsgroups [footnote: See supra note 11.] or Web sites because of complaints about material posted at such sites. Like credit card companies who refuse to honor a credit card debit because the card has been reported stolen, or the account holder has been delinquent in its payments, these IAPs would refuse to honor subscriber requests to be transported to certain destinations on the Internet. C. The Court Erred in Finding Interactive service Providers to be "Publishers. This Court's original opinion strayed from the settled doctrine of the "conduit liability" rule in finding providers of interactive services who screen and remove obscene, harassing, or offensive messages transmitted by others to be publishers exercising "editorial control," and thus subject to defamation liability. The ruling has catastrophic implications for CIX members who must be able to implement mechanisms for eliminating the transmission of obscenity and pirated materials over their facilities without being liable for the substantive content of statements transmitted over those facilities The access to and control over communications that interactive service providers such as Prodigy and amici have on their systems is starkly different from the pre-publication access and control book and newspaper publishers have. For example, publishers have the power to substantially rewrite the material provided by reporters or contributors before publishing it. Interactive service providers do not; at most, they can bar materials from their service after a complaint is received or, as with Prodigy, remove an already-posted note from a bulletin board. Publishers can review every word of a work, and can require an author to substantiate the truth of factual assertions, before they print it. They can control when material will be published and refrain from publishing if assurances of veracity cannot be obtained. Interactive service providers transmit messages between thousands of sources virtually instantaneously. They cannot act as a censor, reviewing and editing all messages to eliminate nuances of possibly defamatory meaning before they are transmitted, and still operate an interactive service. [footnote: As Prodigy's additional affidavits on its motion for reconsideration show, the Court was in error in finding that Prodigy's Board Leaders "have the ability to continually monitor incoming transmissions."] They are far closer in structure to a telephone or telegraph company (albeit without the status of regulated common carriers) than to a newspaper publisher. This Court concluded that making post-publication "decisions as to content . . . constitute(s] editorial control." By focusing on the talisman of "editorial control," this Court lost sight of the underlying principle. Publishers are subject to defamation liability because they regularly exercise detailed control over content before a defamatory message is communicated, and are thus in as good a position as the original author to detect and prevent damage to reputation. Interactive service providers, like other secondary transmitters of information, cannot feasibly exercise such control. 'See Auvil, 800 F. Supp. at 931 (refusing to impose a "duty to censor" on network affiliates). [footnote: CIX acknowledges that distributors of information may have a different legal obligation if they actually know or have reason to know of defamatory materials. The Restatement gives examples of when a conduit should be on notice: a news dealer who sells "a particular paper or magazine that notoriously persists in printing scandalous items," 581, comment d, or a bookstore or library that offers the works of a "particular author or a particular publisher (that) has frequently published notoriously sensational or scandalous books." Id., comment e.] The Court held that because Prodigy has "uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards," it is "a publisher rather than a distributor." This is profoundly mistaken, both as fact and law. First, the Court's opinion points to no evidence suggesting that at the time of this particular posting Prodigy reviewed messages for content before transmission. At most, it used software to screen incoming bulletin board postings for offensive language. Second, this highly limited form of selectivity, which does not amount to rewriting messages for content (much less reviewing them for defamatory content), does not turn a distributor into a publisher. For example, interactive service providers may choose not to carry a particular publication or refuse to allow access to a particular source without becoming a publisher, as Cubby illustrates. The court there treated Compuserve as a conduit even though it had the power to "decline to carry a given publication altogether." 776 F. Supp. at 140. Nor does a "conduit's" knowledge before transmission that a publication may contain controversial statements or matter offensive to some equate to the primary publisher's ability to know, before publication, that matter is defamatory. For example, in Auvil, the court refused to impose liability on network affiliates who broadcast an allegedly defamatory 60 Minutes broadcast, even though they had received prior notice from the network of facts suggesting that the broadcast might be controversial: "There was not a hint, however, that the content would be defamatory. All defamatory material may be controversial, but the converse is not true." 800 F. Supp. at 932. The fact that Prodigy, or other interactive service providers, may (before or after transmission) read some of the material it transmits neither imposes on it a duty to read all such works, nor gives it any reason to know that unread materials are defamatory. For example, libraries and bookstores are within the protected class of "conduits.." As a natural consequence of their functions, librarians and bookstore owners read some of the books they lend or sell, and retain the power not to sell, acquire, or lend a book viewed as offensive or defamatory. This does not, however, give them the power to rewrite those books. It does not come close to the content-based control exercised by a newspaper or book publisher, who read and screen everything they print, and exercise the rewriting, pruning, and legal review that is the essence of "editorial control." The rule that emerges from this Court's ruling is that IAPs and other interactive service providers become publishers when they protect themselves from criminal liability or public offense by screening material for obvious obscenity or racial slurs. This conclusion is directly contrary to the case law. For example, in Maynard v. Port Publications, Inc., supra, the contract printer had twice refused to print photographs for the defendant newspaper publisher when it deemed the materials obscene. The Wisconsin supreme Court found that 'sit would be unreasonable to infer from those two instances that (the printer] exercised editorial control over the content of (the newspaper]." 297 N.W.2d at 506. Similarly, in Auvil, the court found that the affiliates "exercised no editorial control over the broadcast," even though they had occasionally censored programming in the past where it offended local standards. 800 F. Supp. at 931. Control over overt sexual references and other offensive materials can be automated; indeed, given the volume of data flowing through online service providers such as Prodigy, automation is essential to the task. There are common community understandings about the words and phrases that fall in these categories, and there are readily available sources of reference. See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (FCC may restrict "indecency" of comedian George Carlin's "seven dirty words" monologue to broadcasting hours when few minors listen). Once judgments of inclusion or exclusion of particular words and phrases are made, programming software to flag or block such material is not technically difficult. The same cannot be said of defamation, which is not a matter of words and phrases that a computer can identify. Words may be defamatory or entirely innocent, depending on the context; indeed, almost any word can be defamatory in a particular setting. No software exists to determine the truth or falsity of factual statements about the external world. No programmer could encode instructions that could determine who is a public figure, or acted with malice, or uttered an opinion rather than a factual claim; the Supreme Court itself has often wrestled with these distinctions. See. e.a. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (public figures); St. Amant v. Thompson, 390 U.S. 727 (1968) (malice); Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (fact or opinion). D. The Impact on the Internet of the Court's Initial Ruling The Internet, the "Information Superhighway," is the publicly acknowledged communications system of the future. A rule of law that subjects IAPS, and similar secondary transmitters, to liability for defamation resulting from their transmission of communications would dramatically chill the use of the Internet and be catastrophic to CIX members. The nature of the service that IAPs offer, including the speed and extraordinary volume of digital communications transmitted via the Internet, precludes them from exercising editorial control over the content of the messages posted or accessed by their subscribers. The fact that IAPs may, for example, elect to refuse to honor subscriber requests to be transported to certain destinations on the Internet that notoriously persist in publishing obscene or pirated materials [footnote: Cf. Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552 (M. D. Fla. 1993) (infringement litigation involving a systems operator who stored copyrighted and trademarked material and allowed subscribers to copy the material from files titled "Playboy" and "Playmate" without the permission of the copyright owner).] does not mean that they have assumed editorial control over the communications transmitted over their facilities. An IAP is expected by its customers to transmit every day millions of messages simultaneously and instantaneously. Like telegraph and telephone companies, IAPs offer prompt communications. Like commercial printers, IAPs offer inexpensive means of communications for authors and publishers who would otherwise be unable to reach their audiences. Like the offset printing process, transmission of material over the.Internet does not require IAPs to read the material or check its content in any way before transmitting it. As with these previous technologies for facilitating the flow of information, the law of defamation will adapt to place liability only where fault exists on the part of the defendant. [footnote: Indeed, to ensure breathing space for the dissemination of truthful information, the First Amendment requires adequate proof of fault prior to the imposition of liability. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-348 (1974); Smith v. California, 361 U.S. 147, 152-153 (1959).] Like the courts in Auvil and Cubby, this Court should find that Prodigy, and similarly situated secondary transmitters who do not and cannot screen for the truth of the content of the material they transmit, cannot be subject to liability for defamation resulting from such transmissions. CONCLUSION For the foregoing reasons, this Court should grant Prodigy's motion for reargument and/or renewal, and grant summary judgment in favor of Prodigy on the issue of whether it is a publisher. Dated: New York, New York August 28, 1995 Respectfully submitted, PIPER & MARBURY L.L.P. Attn: Ronald L. Plesser, Esq. Andrew L. Deutsch, Esq. 53 Wall Street New York, New York 10005-2899 (212) 858-8900 OF COUNSEL: Emilio W. Cividanes, Esq. Julie A. Garcia, Esq. 1200 Nineteenth Street, N.W. Washington, D.C. 20036-2430 (202) 861-3900 Attorneys for Proposed amicus curiae Commercial Internet eXchange Association _________________________________________________________________ _________________________________________________________________ Exhibit I Commercial Internet eXchange Association Membership List 202ONet (Electronic Systems of Richmond) Virginia & Washington D.C. Able Tech San Jose, California Advantis National U.S. Agate Internet Services Bangor, Maine Aimnet California Allied Access Illinois AlphaNet Wisconsin alpha-web Japan AlterNet National U.S. American Network New York ANS CO+RE Systems, Inc. National U.S. Apex Global Info Systems (AGIS) Michigan Ashton Communications Mexico and National U.S. Asociados Espada C.A. Venezuela AuroraNet Canada a2i Communications San Francisco Bay Area California alpha-web Japan BARRNet Northern California Berbee Information Networks California Best Internet Communication Wisconsin BTnet United Kingdom Bull HN Information Systems Inc. Massachussetts CA*net Canada Cable Online United Kingdom Cable & Wireless, Inc. National U.S. Capcon Library Network Virginia, Maryland CentNet Boston Area, Massachussetts Cerberus United Kingdom CERFnet West Coast U.S. Commonwealth Telephone Company Pennsylvania Communique New Orleans, Louisiana Compuserve National U.S. and International connect.com.au Australia ConnectedNet Washington State CRL National U.S. Crocker Communications Greenfield, Massachusetts Crossroads Communications National U.S CS & W, Inc. Minnesota CUATENET Guatemala. Honduras, El Salvador Cybergate Florida, Southeast U.S. Cyberstore Systems Canada DataBank Kansas Datalytics, Inc. Ohio DataNet Hungary DataXchange Florida Dayton Network Access Company Ohio Demon Internet United Kingdom Destek Group, Inc. Northern New England Digital Express Group East Coast, U.S. Direct Net Corporation National U.S DRAnet National U.S., Canada,Far East, Europe, and SouthAmerica ElectriCiti, Inc San Diego, California Electo-Byte Technologies Canada EMi Communications New York Area Emirates Internet United Arab Emirates ESInet Virginia Eskimo North Western Washington State EUnet Europe EuroNet Internet Europe EZnet New York Fibernet National U.S. FIBRCOM Texas Fujitsu Japan Global Enterprise Services/JvNCNet National U.S. Globalcenter.net National U.S. and Canada HiNet (formerly DCI) Taiwan HLC-Internet National U.S. HoloNet National U.S. & Canada Hong Kong Supernet Hong Kong HookupNet Canada HTP Services New York, Long Island 1-2000 New Jersey, New York City, IDT Arizona, California, Massachusetts,New York, New Jersey,Pennsylvania, and Washington D.C. IIJ Japan I-Net Technologies Korea Ichthus Access Networking West Virginia and Southern Ohio Inacom Nebraska Infinite Access, Inc. Florida InfoTek South Africa INS Info Services Iowa/Midwest U.S. INSINC Canada INTAC Access Corporation Northeast U.S. InterCon Japan Intermind Corp. Nevada Internet Africa South Africa Internet Atlanta, Inc. Southeast U.S. Internet Exchange Europe Netherlands InternetKDD Japan The Internet Mainstreet San Francisco Bay Area, California Internet Media Network, Inc. Southern California Internet Oklahoma Oklahoma Internet Public Access Corp. San Jose, California The Internet Solution South Africa Internet Technology Systems Rocky Mountain U.S. Internetworks, Inc. Northwest U.S. Interpath Southeast U.S. ITnet Italy Iunet Italy Jax Gateway to the World Florida JC Information Systems California JTnet Japan Kornet Korea Lincoln Telephone & Telegraph Nebraska Logical Net New York LYNX Bermuda MagicNet Southern California MCI National U.S. & International MISNET Kentucky NW Communications New Hampshire Nando.net Raleigh, North Carolina NEARNET New England NEC Japan Net 99 National U.S. and International NETCOM National U.S. NetNet, Inc. Wisconsin netspace Japan NetVision Israel Netway Communications, Inc. California New York Net Northeast U.S Nordic Carriers Scandinavia NorthWestNet Northwest U.S. Novia Internetworking Nebraska netspace Japan Open Business Systems Illinois Packet Works, Inc. Florida Pilot Network Services San Francisco Bay Area, California PIPEX United Kingdom Portal Communications National U.S. PSINet National U.S. and Japan Qwest Communications Western U.S. RACSAnet Costa Rica RGnet Oregon and California RINNET Japan Singapore Telecom Singapore Sovam Teleport Russia SpinNet (AT&T Jens) Japan SprintLink National U.S. STARnet St. Louis, Missouri Sun Microsystems Inc. National U.S. Superlink New Jersey SURAnet Southeast U.S. Synergy Communications National U.S. Tachyon Communications Corp. Florida TCHUIdata Kenya, Africa Technet Singapore THEnet Texas ThoughtPort National U.S. TogetherNet Vermont and New York City Tokai Communication Platform Network (TCP-NET) Japan TokyoNet Japan TOPNET Netherlands Total Connectivity Providers Ltd United Kingdom Treadline Information and Communication Services, Ltd. Israel TWICS Japan US Cyber National U.S. USIT Tennessee VisiCom Network Services (TNCNet) California and Florida VISTAnet Vermont West Publishing Corporation Minnesota Wyoming.com Wyoming xs4all Europe _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ AFFIDAVIT OF ROBERT D. COLLET SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NASSAU STRATTON OAKMONT, INC. AND DANIEL PORUSH, Plaintiffs, - against - PRODIGY SERVICES COMPANY, A PARTNERSHIP OR JOINT VENTURE WITH IBM CORPORATION AND SEARS ROEBUCK & COMPANY, "JOHN DOE" "MARY DOE", Defendants. _________________________________________________________________ Index No. 031063/94 Assigned to Justice Stuart Ain IAS PAPT 34 STATE OF VIRGINIA) COUNTY OF FAIRFAX) ROBERT D. COLLET, being duly sworn, deposes and says: 1. I submit this affidavit in support of the motion by Commercial Internet eXchange Association ("CIX") for Leave to File Amicus Curiae Brief in the above captioned case. The motion and attached brief support the motion of Prodigy Services Company ("Prodigy") for reargument and/or renewal in connection with the Court's Order, dated May 23, 1995, granting plaintiffs Stratton Oakmont, Inc. and Daniel Porush partial summary judgment on their claims in this action. I have personal knowledge of the facts stated. 2. I am the President and Chairman of the Board of Directors of CIX, a not-for-profit trade association incorporated under the laws of the state of Delaware and having its principal place of business at 31 1 0 Fairview Drive, Suite 5 90, Falls Church, Virginia 22042. 3. CIX is the nation's largest nonprofit trade association comprised of commercial Internet access providers ("IAPs"). CIX presently consists of over 100 domestic members and over 50 international members, including large, dominant market participants as well as innovative, entrepreneurial niche providers. CIX's domestic members comprise over 75% of the nation's commercial Internet access providers. Nearly half a billion messages pass through the worldwide systems of CIX members daily. 4. The Internet is a series of over 10,000 connected computer networks, in which any existing network can participate. It is estimated that the Internet reaches 57 million users at nearly 5 million computers located in 90 countries, and doubles in size about every 10 months. The Internet's transmission facilities encompass satellites, cable, fiber, and telephone lines. The most popular and widespread applications of Internet services include electronic mail and file transfers. The fastest growing segment of the global Internet is its graphics-filled portion, known as the World Wide Web. About 8 million people access over 16,000 Web "sites," as the computers in which Web information resides are known. 5. IAPs route and convert information from individual computers and networks to other computers and networks so that information appears in a readable form when accessed by consumers searching for information on the Internet. Customers of IAPs access the Internet through IAPs and navigate, through their own "browser" software or one provided by the IAP, to the publishers whose content they wish to read or the discussion group in which they wish to participate. 6. CIX was formed to provide an alternative to the restricted nature of the Internet when it was controlled by the Defense Advanced Research Projects Agency and then the National Science Foundation. The Internet was then the sole domain of United States Government-sponsored research scientists, providing a mechanism for the scientific, university, and governmental communities to exchange computer communications. Commercial messages were at the time forbidden from centers that receive government finding. As companies began to connect to the Internet during the 1980s, the need grew for commercial IAPs that could handle all types of traffic -- commercial as well as noncommercial. The commercial Internet access services industry is now one of the fastest growing, most innovative industries in America. 7. CIX strives to facilitate global connectivity among commercial IAPS, to further the development and use of the Internet, and to foster fair and open environments for Internet commercialization. CIX member networks have a fundamental agreement to interconnect with all other CIX members. There is no restriction on the type of traffic that may be routed between member networks nor any traffic-based charges between CIX member networks. Each member network connects directly or indirectly to all other member networks. 8. while CIX members do not presently screen communications transmitted over their facilities, some CIX members are considering implementation of new mechanisms to protect the integrity of the communications system from obscenity and other unlawful activities, and to remove postings that violate intellectual property rights. These developing technologies would be implemented at either the user's or IAP's end. Signed by ROBERT D. COLLET