{"id":54279,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/user-policing-on-websites.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"user-policing-on-websites","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/user-policing-on-websites.html","title":{"rendered":"User Policing On Websites"},"content":{"rendered":"\n
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USER POLICING ON WEBSITES: Should Ebay, Napster And Other Sites Use Their Users? <\/h1><\/td>\n <\/tr>\n

By JULIE HILDEN <\/h2>
<\/a>\njulhil@aol.com<\/a>
\n—-\n
Monday, Jun. 04, 2001<\/div><\/td>\n\n <\/tr>\n <\/table>\n

\tIn the offline world, there are a limited number of statutes that provide \nfunding for what are known as “private attorneys general.” That is, \nthey provide monetary rewards to those private citizens who have taken the trouble \nand expense to sue wrongdoers. <\/p>\n

And more informally, of course, there are the law enforcement personnel who \nrely every day on “confidential informants”: private citizens who turn \nin lawbreakers, often in exchange for favorable treatment. <\/p>\n

In short, while pretending to be a complete alternative to vigilanteism, the \nlaw and its enforcers actually routinely depend on it. The only difference is \nthat while the gathering of information (this includes, in a private attorney \ngeneral suit, civil discovery) is done by private citizens, it is generally only \nthe government \u0097 the executive branch, in particular \u0097 that is allowed \nto impose punishment. <\/p>\n

Meanwhile, in the online world, sites have rarely cast users as either informants \nor private attorneys general able to punish breaches of website contracts and \nrules. Yet, because the Internet has far worse, and more endemic, policing problems \nthan the world offline, we can expect to see much more user policing in the near \nfuture.<\/p>\nowners, to have a monopoly on punishing those who commit wrongdoing online. Indeed, \npenalties like being banned from a site \u0097 the online equivalent of a court \ninjunction \u0097 or having to pay money \u0097 the online equivalent of a civil \ndamages award \u0097 could theoretically be imposed, with a keyboard strike, by \nusers themselves. \n

Why Policing on the Web is Hard<\/b><\/p>\n

As is well known, policing the web for wrongdoers is much harder than policing \nfor them in the real world. <\/p>\n<\/span>\n\n \n \n
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Complete anonymity makes wrongdoing far more difficult to detect, and sometimes \nimpossible to punish \u0097 particularly since the website owner frequently cannot \n(and should not) be held liable, since there is nothing he, she, or it could have \ndone to prevent the wrongdoing.<\/p>\n

Moreover, standard legal rules often end up watered down on the web. For example, \nas I wrote in an earlier column,<\/b> it is only the first discloser of a trade \nsecret that may truly be at risk for punishment. Subsequent disclosers may get \noff scot free, because the information is no longer “secret.” Trade \nsecret law that is effective offline thus becomes ineffective online. This dilution \neffect \u0097 the scope of which is much broader than trade secret law alone \u0097 \nonly increases the difficulties of enforcing the law online. <\/p>\n

How eBay Uses Its Users<\/b><\/p>\n

\n\nCould sites\u0092 deputizing of users as private attorneys generals and police \nsolve this enforcement problem? To some extent, perhaps. Consider, for example, \neBay\u0092s use of user deputies.<\/p>\n

As The Standard<\/i>\u0092s Eric Young recently reported, eBay has admitted \nthat it will not directly police its coming ban on hyperlinks. (EBay objects to \nhyperlinks because they can be used to complete transactions elsewhere on the \nNet, thereby evading eBay commissions.) <\/p>\n

Rather, eBay will expect users to turn in wrongful hyperlinkers to eBay so \nthey can be banned from using the site. EBay has some reason to think this strategy \nwill work; in the past, its users have dutifully turned in to eBay bidders who \nhave submitted fake bids solely to increase an item\u0092s price. As most users \nbenefit if bids are solely bona fide, this strong commonality of interest between \neBay and most of its users worked in the site’s favor to ensure policing would \nwork.<\/p>\n

EBay and most of its users also share a strong, if somewhat lesser, commonality \nof interest in the goal of getting rid of hyperlinks. If eBay\u0092s commissions \nare routinely evaded using hyperlinks, soon eBay will not be able to afford to \npay to maintain the services that users enjoy and expect. <\/p>\nare too high, and lead eBay to lower them. If so, users should be pro-hyperlink, \nfor it is in their interest to have eBay make as little extra profit, consistent \nwith maintaining needed services, as possible.\n

As a result, eBay can probably expect users to faithfully rat out phony bidders, \nbut to squeal on hyperlinkers only sometimes. People who take the long view and \nthink commissions are fair will reveal hyperlinks; those who take a short-term \nview, or who are angry about paying commissions, might not. <\/p>\n

Changing User Incentives<\/b><\/p>\n

\tHow can eBay \u0097 or another site \u0097 increase user policing in cases \nwhere users may not have a natural incentive, based on the architecture of the \nsite, to police? The answer is that the site can create new rules to change user \nincentives, and can even offer users a bounty for successful policing. <\/p>\n

EBay could, for example, reward users who turn in hyperlinkers with special, \nlower commissions \u0097 or the ability to conduct a single, free auction. Even \nthose eBay users who approve of hyperlinking probably do not believe that “auctions \nwant to be free” \u0097 just that they should be cheaper. <\/p>\n

What about Napster, whose users would probably view policing each other as \nanathema, and which allows, as one of its primary purposes, for the MP3 sharing \nthat courts have held violates copyright law? Could its users ever be convinced \nto police each other? Perhaps not. <\/p>\n

But suppose Napster had evolved differently \u0097 as a site where new bands \ncould disseminate their MP3s free, with permission, and sharing of copyrighted \nsongs had only sprung up as a sideline. <\/p>\n

On this alternative site \u0097 call it Bandster \u0097 users eager to protect \nthe bands they loved might have been willing to police against infringers, to \nkeep out the copyright-sharers. Accordingly, this site might have implemented \na mechanism by which one user could ban another if the latter made a copyrighted \nsong available without permission <\/p>\n

This might have been much more efficient than any number of filters \u0097 \nfor it would be the user, not the song, that would be targeted, and the targeters \nwould be legion. Leaving copyrighted songs open for copying on one\u0092s hard \ndrive would pretty much guarantee annoying, repeated banishment from the site \nby Bandster private attorneys general. <\/p>\n

However, in our universe, we have Napster, not Bandster. Napster was initially \npromoted with an ethic of law violation \u0097 as a music “pirating” \nsite. In court, that satisfied the intent element of the copyright law tests. \nOnline, it pretty much guaranteed that user policing would never be instituted, \nat least without a court order. <\/p>\n

The upshot? A website will only be able to use its users as police if \u0097 \nand to the extent that \u0097 they want to act as police. And a site will be able \nto alter what its users want, but only up to a point. <\/p>\n

The result is that a generally rule-abiding site like EBay will probably only \nbecome more so, and a generally rule-breaking site like Napster will probably \nonly become more so. Call it the law of entropy of the Internet. <\/p>\n<\/span> \n\n

\n\n\n<\/a>\nJulie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir “The Bad Daughter.” She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.\n\n

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