Groendahl on Tue, 16 Jan 96 21:14 MET

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CIS as carrier


>What is Compuserve -- a provider of access or a 
>provider of content? The courts have ruled that Prodigy (not much 
>different than Compuserve) is a privder of content. This means that they 
>are essentially a publisher. And as a publisher, they can say whatever 
>they like -- but also have the right to censor anything they like as well.

Since your claim that Compuserve acts as a publisher rather than a 
carrier appeared in another mailing before, I take the opportunity to 
jump in here.

You are right in quoting the Prodigy case (Stratton Oakmont et al. v. 
Prodigy, available at EFF's Website) as an example for an online service 
sued as content provider. But your notion of Prodigy being "not much 
different than Compuserve" is wrong.

Indeed, Compuserve was acquitted of defamation in the Cubby v. Compuserve 
case (available at five years 
ago. The alleged defamation had taken place in Compuserve's Journalism 
Forum, but Compuserve successfully argued that it acted as an "electronic 
library" not liable for the content in its Forums.

In 1995, in the Prodigy case, the jury argued that

>The key distinction between CompuServe and PRODIGY is two fold. First, 
>PRODIGY held itself out to the public and its members as controlling the 
>content of its computer bulletin boards.  Second, PRODIGY implemented this 
>control through its automatic software screening program, and the 
>guidelines which Board Leaders are required to enforce. By actively 
>utilizing technology and manpower to delete notes from its computer 
>bulletin boards on the basis of offensiveness and "bad taste", for 
>example, PRODIGY is clearly making decisions as to content (see, Miami 
>Herald Publishing Co. v Tornillo, supra), and such decisions constitute 
>editiorial control.

An interesting side aspect is an example of Prodigy's editorial control 
provided by Mike Godwin reporting on protests of B'nai B'rith against the 
online service: 

>On one level, the controversy stems from Prodigy's decision to censor 
>messages responding to claims that, among other things, the Holocaust 
>never took place. These messages--which included such statements as 
>"Hitler had some valid points" and that "wherever Jews exercise influence 
>and power, misery, warfare and economic exploitation ... follow"--were the
>sort likely to stir up indignant responses among Jews and non-Jews alike. 
>But some Prodigy members have complained [...] that when they tried to 
>respond to both the overt content of these messages and their implicit 
>anti-Semitism, their responses were rejected by Prodigy's staff of censors.
>The rationale for the censorship? Prodigy has a policy of barring messages 
>directed at other members, but allows messages that condemn a group.

Even in the recent censorship case following the German prosecution 
Compuserve acted consistently. The prosecutors handed them the list of 
some 200 newsgroups to "scrutinize". Compuserve rejected this demand, 
arguing that it would not scrutinize what it just carries (in contrast 
to, say, AOL, which "cleans" the newsgroups).

While one may be sceptical on whether it was necessary for Compuserve to 
ban the newsgroups, it is absolutely clear that once it decided to ban 
them, it did right banning the _entire_ list as long as the prosecutors 
provide another one, or terminate the investigation.


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