Does a substantial percentage of their advertisers break the law by not having the appropriate licenses required in their countries? If no, then they shouldn't be receiving any ultimatums.
(the answer to that question, by the way, is "no" for most of these sites, as most of them are simply affiliates / marketing partners for a handful of companies that have, decades of history of dealing with the regulations properly when representing the property owners; I'm sure there are exceptions here and there, especially for smaller/newer operators)
You may not see this as "driven by any sort of guiding principle other than protectionist aversion", but a lot of others see this as driven by the respective organs duty to uphold various consumer protection laws.
> Okay, so you agree that in the absolute majority of cases users have no legal obligation whatsoever to watch ads, but you're interested in a hypothetical website that has constructive notice for terms of service that specifically include language which says users must watch ads. All right, let's discuss that.
I'm not sure exactly how hypothetical it is - I see websites doing this now. But yes, this is what i'm talking about.
> Furthermore, if we lived in the (in my opinion, dystopian) world you envision, what happens if due to, for instance, an ISP routing issue the third party advertisements you've "agreed to" aren't loaded onto your computer? Are you in breach of contract?
I think you can answer this question yourself :). This happens all the time in real world contracts. Some unforeseen, unspecified circumstances crop up, and an arbiter or judge decides whether and to what extent they fall under the existing terms. My personal opinion is that if this happened and it was a condition not explicitly spelled out in the terms, it would not be a breach. Because you basically acted in good faith, and factors beyond your control prohibited you from complying.
> Also, while this is an amusing legal question to ponder, I continue to hold that the finer points of contract law in a particular jurisdiction don't really serve to illuminate any underlying moral questions.
I agree, they don't. I think the basic moral principle is this: You create a thing. You say to the world "Hey world, i'll let you consume my thing, if you do this other thing". The world has the right to say "No thanks, we don't want your thing, because the other thing is too onerous". They do not have the right to say "The other thing is too onerous, but we're going to take your thing anyway, thanks."
Are you sure? Why do you think the content is being provided then? Presumably there's a reason they've put the effort forth to make it available?
> If these terms are expressed clearly at the top of every page then I agree that there is an understanding of the publisher's wishes. That doesn't mean I should feel obliged to honour them though.
You shouldn't feel compelled to honor a site's acceptable use policy? In some cases violating the AUP can result in legal action, so in at least some cases you are legally compelled.
> Look, a lot of people run websites because they have something they want to share with others...
> I for one would never want someone to think he wasn't welcome on my site because he chooses not to download certain assets
These aren't your sites. It's not your right to make choices for other people. You can accept what they want to bring to the table, or you can decline to trade.
> I'm not making it harder, I'm making it easier. I downloaded the content but not the ad, therefore I wanted the content but didn't want the ad.
You've made it easier on yourself. How have you helped anyone else out? The content provider wanted to trade you content for attention, and you took the content without providing the attention. In what way does that help anyone besides yourself?
> I don't even know what to make of this.
People are susceptible to rationalizing their current behavior, regardless of whether it's truly beneficial in the ways they think to the parties they think. Doubling down on behavior that a content provider may not like with the excuse you may feel morally obligated to save them money by doing so is ridiculous. What right do you have to dictate how they run their business, as long as it's within the law?
The law clearly states that the size of the company and the costs of the "measures" should be taken into account, so that shouldn't be an issue.
> if you make any mistake, you'll be sued out of a company?
If you can prove that you've tried that you're not liable anymore and therefore can't be sued.
> what makes this website not a "content sharing service provider"? All the site does is share links to content.
You kind of answered your own question there.
> And since linking to content will now obligate paying the person you link to
No idea where this linking myth comes from. Commercial websites now have to pay a license fee when they publish substantial portions of press publications.
> no site is going to send away a potential customer by saying “we don't want to follow your laws/regulations so can't do business with you”
Many local US-based TV news/newspaper sites do this albeit with a slightly more opaque message. And customer still mostly fits because these sites are ad-supported (usually with a mix of local/non-local ads.
> those that are linked in a website footer and purpose to bind you simply for visiting a site, are legally unenforceable.
Before going to other countries: are you referring to a very recent local Florida state law (after Vitacost.com, Inc. v. James McCants, found with a quick search), or is there an even newer federal US law?
> That said, I don’t know much about how other countries’ legal systems treat such agreements, but from what I’ve heard, they tend to be equally or more restrictive of them, not less.
Given no such law existed even in Florida until last year, I'd be more cautious before extrapolating this internationally.
> I'm not an expert on this by any means, but isn't this an admission that these companies act like publishers? Yet they have Section 230 protection?
Having some standards doesn't automatically make you a publisher. A site with user-uploaded videos that removed, say, all porn, would not make itself a publisher.
Now, obviously there's the question of, how many restrictions until you're a publisher? I'm not sure the law is clear on that.
> International websites have to respect local laws
No. A website doesn’t really exist unless a person visits it. It’s up to the user to respect local laws. If certain content is illegal somewhere, that’s not the fault of the website. The website isn’t in the country of concern. Why is it there problem? It’s up to the user to choose if they want to break local laws by consuming “illegal” content.
If I start a phone sex number in the Cayman Islands and such phone systems are illegal to use in Germany, then why is it my problem? I am not forcing people to call, nor why should I care where a call comes from. The end user is the one violating the law by calling my service. It isn’t like I am broadcasting.
Same concept. A website is no different than a phone number.
>If my website askes users for their permission to use GA and they click yes then is that still illegal here? I see this as yes it's still illegal.
The basis of regulations is that citizens are too stupid to consent to things even if they are fully informed. Whether that is a good or bad approach is up for debate.
You're apparently assuming the sites are all hosted in USA, not an entirely terrible assumption. [Though there is a similar Electronic Commerce Directive in Europe and probably other similar laws in other jurisdictions]
As I understand it DMCA Safe Harbour is for sites where they transmit media without interaction, users upload but the site is there to simply serve the media. If the site were selling the media (direct financial benefit) or offering a commercial license for it then Safe Harbour doesn't seem valid? Applying a license would possibly be considered transformative? Similarly if the site is selecting the images to meet their requirements - using a [partially] manual method then it seems DMCA Safe Harbour wouldn't cover it.
>It places an extra burden on the big, commercial sites to remove links (or stop linking on the first place) to content that is considered illegal in the EU.
Why did you insert the word "big" in front of "commercial sites"? There is no such qualification in the court's ruling.
Every small blogger who makes a little money through ads now has an obligation to check whether or not the owner of every single linked page owns the copyrights to the content they publish (or will publish on that page in the future).
I have no idea how anyone could possibly perform these checks. Do you ask the linked site for proof? But if anyone is going to find a way through this legal nightmare it's going to be the very biggest players with big legal departments.
> So if you co-located in a large ISP, you will still sign a contract which most of the time they put it very generic morality clause for types of content
I don't think that's true. Hurricane Electric for example is a major provider and the AUP [0] only prohibits illegal and/or technically damaging behaviour.
Some of the others have language like that in their AUPs but it doesn't seem to be universal.
> Does the law specifically carve out exceptions for hosting companies?
Does this law even apply to hosting companies? The description mentions people running websites, which in this case refers to customers of hosting companies such as AWS, Hetzner, and others. Expecting hosting companies such as Hetzner to be responsible or liable for content that a client posts on a service running on one of their vCPU would make as much sense as going after AWS just because a conspiracy nut posted a tweet.
This is precisely the point that I'm disputing, not the notion of property rights.
You still haven't given any definition of the terms you're trying to use to justify a distinction between the two. You claimed that any time someone requests something over http and the server sends data back, the person cannot have been doing anything illegal. You have not given any principled difference between that and the cases where courts found differently.
I've linked to lawyers making the same argument as me; I don't believe you've found any lawyers who agree with your claims here.
Re contracts: as I've said, that applies to scenarios when you've agreed to TOS. If you know a website has certain terms, then accessing it is agreeing to them. So your point is only valid if you can credibly claim that you didn't know the website doesn't allow ad blocking. If you think you can convince a judge that you had no idea some websites don't allow ad blocking, and that you therefore had no intention of breaking any agreements by browsing the web with your ad blocker installed, do whatever you want. But the very fact that we're having this conversation and you aren't telling me "no website would ever outlaw ad blockers in their terms" means that you recognize it as a possibility. It would be an interesting legal question as to whether mere probable knowledge (i.e. negligence) can suffice to be liable, or one would need to demonstrate actual knowledge: if the latter is found to be the legal interpretation, then I suspect ad blockers could be required to recognize when a site refuses to be viewed with an ad blockers, and not show the site at all then. Installing an ad blocker that doesn't do this would then be malicious.
This is admittedly speculation, although it gets closer as to what the actual legal question would be here. If you can cite precedent that bears on this directly, that would be better.
> You are basically saying you are entitled to using DO's legal staff and financial resources in addition to the hosting you've paid for.
No, what I'm saying is that DO must already do this to some degree if they are handling requests, as otherwise I could send letters claiming trademark/copyright infringement for any number of things and get many customers shut down. If they have internal guidelines for what they do in cases when trademark/copyright infringement, I expect they follow those. I also expect that those policies do the minimum legally required of them. That's not because it's cheaper and garners good will from customers (it does), but because to do otherwise is taking sides in a legal situation without being an appointed arbiter of the law. Not only is this excessive, but it's anti-customer.
If DO is doing what they think they must by law, I have no problem with that, as long as that is clearly explained. In the case we were previously talking about, the statement from DO (at the motherboard article) is somewhat ambiguous as to why they did what they did. Per DigitalOcean’s terms of service, a final reminder was issued to our customer and, when no action was taken, access to the content was disabled. Was the take down required by law, or was DO overly aggressive in handling it? Without a statement as to why, (and I think that given some people's assertion that they went beyond what was legally required of them), their reasoning is somewhat ambiguous, and harder to call into question. If they clearly define they enforced their TOS based on what they believe is a legally required of them, then we can look at the law and their actions and evaluate whether that's true, and if it's not, DO can learn from the experience or be called out as a company that is capricious in their execution of the law.
What it boils down to is that "We received a complaint infringement. We enforced our TOS and shut down access to the content in question." leaves a lot open for assumption. I would be much happier if it was "We received a complaint infringement and as we believe is legally required of us we enforced our TOS and shut down access to the content in question." It's a small change, but it allows customers (and critics) a much clearer view on how DO handles situations like this, and allows for the public to make an informed choice on whether they think DO was correct in their actions (whether they really were legally required to do so). It's subtle, but I think it's a very, very important distinction.
> If you're going to have a policy of what is and what is not allowed, the reason why it will be so difficult is because you need to enforce the policy on every website equally. You cannot cherry-pick one website, cite the policy, and then forget that it exists.
Is perfect enforcement necessary? Of course you need to be _consistent_, but only acting when the content becomes known to you doesn't seem wholely unworkable.
That said, I much prefer it if registrars remained neutral on content (with the possible exception of the domain itself being the problem - consider, e.g., assassinateUSPrez2018[.]com).
e: typo fix "prefer registrars remain" -> "prefer it if registrars remained"
Does a substantial percentage of their advertisers break the law by not having the appropriate licenses required in their countries? If no, then they shouldn't be receiving any ultimatums.
(the answer to that question, by the way, is "no" for most of these sites, as most of them are simply affiliates / marketing partners for a handful of companies that have, decades of history of dealing with the regulations properly when representing the property owners; I'm sure there are exceptions here and there, especially for smaller/newer operators)
You may not see this as "driven by any sort of guiding principle other than protectionist aversion", but a lot of others see this as driven by the respective organs duty to uphold various consumer protection laws.
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