Tuesday, March 24, 2015

The Billion-Dollar Issue of Interactive Computer Services Versus Internet Content Provider

Special Notice: To any service company that is a victim, loss of business and revenue due to false advertising by an Interactive Computer Service (ICS), AKA the search engines. If a third party did not provide the information they display, they now become the Information Content Provider (ICP) and they lose immunity provided by Section 230. They should be prosecuted to the full extent under the law.

Definitions And Solutions
An Interactive Computer Service (ICS) is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.” Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. Wash. 2009)

The term Information Content Provider (ICP) means “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” (47 USCS § 230)

The New Category
The new correct term Interactive Content Provider is both an Interactive Computer Service (ICS) and Information Content Provider (ICP).  This means they are providing both functions. Some are search engines such as Google, Bing, Yahoo, Angie’s List, Yellowbook, Ziplocal and SuperPages or one of 160 others that are a dual-purpose entity under the above definitions. They say they are only an Interactive Computer Service (ICS) so they can claim immunity behind U. S. Code Section 230 of the Federal Communications Decency Act.  Unfortunately they have crossed the line by doing both, they provide information they originate making them also an Information Content Provider (ICP).

We Can Prove They Are The Same:
The case of Interactive Computer Services (ICS) disseminating false information comes down to a several critical issues. It seems the difference between an Interactive Computer Services (ICS) and an Internet Content Provider (ICP) remain two distinct entities in the eyes of the law. This needs to be analyzed correctly. Unfortunately the lines of distinction have become blurred. In fact an Interactive Computer Services (ICS) and an Internet Content Provider (ICP) have become one in the same accomplished by their own actions. We can prove this in court, with a jury trial, using witnesses, testimony, interrogatories, depositions and factual information stated under oath. Give us a chance in court to prove so!

The Four Tests:
Was the information purchased?
The Interactive Computer Services (ICS) procures the information which they purchased and inserted it themselves. It may be in the form of a listing, a directory or a map point. This transaction makes them the Internet Content Provider (ICP) as the information is under their control.

Was The Information Scraped?
Did the Interactive Computer Services (ICS) display, scrape, copy or plagiarize information from another web site without acknowledgement of the Information Content Provider (ICP)?
If yes, then they are guilty of being both an Interactive Computer Services (ICS) and Internet Content Provider (ICP). Maybe somewhere a third party originated the information but it never would have appeared unless actions taken by the Interactive Computer Services (ICS). At that point the definition and purpose of the search engine becomes dual, protection, and immunity is gone.

Do They Have A Public Portal?  
Is the damaging information placed via a public access portal? If not where did it come from?
Is the information presented in the form of directory or a map point without the source known?
If there is no public access portal to enter information the Interactive Computer Services (ICS) is also the Internet Content Provider (ICP). They are responsible for the content under current laws.

Can A Legal Servable Address Be Produced?
A legal servable address must be provided so one can bring legal action to bear to the true perpetrators of damaging information. If the Interactive Computer Services (ICS) cannot provide a legal address for the violating party(s) presenting false or damaging information it must assumed it is the their own material.
If it takes a court ordered subpoena to produce such an address then so be it.  They must produce the provider information, in the form of a legal servable address, which is more than an email address or their word can provide, in order to be immune Under 230. If contributing third party cannot be properly identified presenting the damaging information, the Interactive Computer Services (ICS) face consequences under the Lanham Act, and removal is mandatory, as it must be assumed they themselves are the source.

In Conclusion:
We believe Interactive Computer Services (ICS) in question have morphed also into Internet Content Provider (ICP). The courts to date, in spite of known false information presented, hold the Interactive Computer Services (ICS) immune from prosecution under Section 230. The courts so far, believe without proof, deem the information was sourced from a third party or Internet Content Provider (ICP) so they hold them non-responsible for the postings. That is unfortunate for those who suffer damage from the false information, as they are unable to prosecute under the Lanham Act.
But at what point do they cross the line and become both? We at Baldino’s Lock & Key and the Locksmith industry believe they have become one in the same. How, we apply simple proof and logic. Let us go to court with a jury, submit proof that in fact they are both, get a judgment, and stop this outrageous charade.
It is time the law the court system, congress, the search engines (ICS) and the public all recognize the fraud that they are allowing to occur and put an end to this practice.

Mark Baldino
Baldino’s Lock Key Inc.


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