In Gucci, America, Inc. v. Hall and Associates, 135 F.Supp.2d 409 (NY SD 3/14/2001), the Federal District Court for the Southern District of NY held that "[defamation] lawsuits seeking to hold a service provider liable for the exercise of a publisher's traditional editorial functions, such as deciding whether to publish, withdraw, postpone or alter content -- are barred." However, lawsuits for copyright and/or trademark infringement are allowed.
In my view, the injection of any
editorial control (i.e., paying attention to what users post, before a third party files a DMCA complaint
), is sufficient to create liability in an ISP for copyright/trademark infringment. In other words, the DMCA is intended to relieve an ISP from the substantial costs of having to patrol its website for infringing material, and leaves it to the copyright or trademark owner to do so. But, if the ISP engages in the preemptive control of user activities, then the ISP is acting in a traditional publishing role, and may be held liable for copyright/trademark infringement.
Hope this helps.
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