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Pastimes : Investment Chat Board Lawsuits
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To: SI Dmitry (code monkey) who wrote (12193)4/11/2017 12:24:18 PM
From: Jeffrey S. Mitchell  Read Replies (1) of 12465
 
An Appeals Court is only concerned with the rule of law. All they are saying is that it does make sense that moderators could make decisions based not on the type of content (i.e. whether it meets the stated terms of use) but rather the content itself, thus making said site inapplicable to the Safe Harbor provisions of the DMCA.

For example, if an SI moderator deleted a huge number of posts critical of a company because he was long that company or perhaps because they were a paid advertiser, it's quite possible a court might find that to disqualify SI from said Safe Harbor protection. However, if the SI moderator could make the case that the reason he removed the critical posts was because they were in violation of the terms of use, then no worries. Only when that sort of distinction is determined by a lower court can an appeals court determine what rule of law may (or may not) be applicable.

When your terms of use include words like "trendy", I would think that puts you into a very bad gray area. Youtube might naturally highlight trendy videos, but they surely don't delete or not approve "normal" cringe-worthy ones. Imagine if SI decided certain tech companies were not worth covering or that certain posts on their boards were just plain boring and should never see the light of day. That for sure could be seen as editorial control over the content itself as opposed to whether the content in general met the terms of use.

In sum, Mavrix is arguing there has to be a line drawn somewhere to distinguish which moderated sites qualify for Safe Harbor protection under the DMCA. They do have a point. But even if they do, all the Appeals Court will do is say is whether Mavrix has crossed that line. If they have, a line will have been established. If they have not, then we'll only have a sense of where that line might be. For sure an interesting case.

- Jeff
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