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USER POLICING ON WEBSITES: Should Ebay, Napster And Other Sites Use Their Users?

Monday, Jun. 04, 2001

In the offline world, there are a limited number of statutes that provide funding for what are known as "private attorneys general." That is, they provide monetary rewards to those private citizens who have taken the trouble and expense to sue wrongdoers.

And more informally, of course, there are the law enforcement personnel who rely every day on "confidential informants": private citizens who turn in lawbreakers, often in exchange for favorable treatment.

In short, while pretending to be a complete alternative to vigilanteism, the law and its enforcers actually routinely depend on it. The only difference is that while the gathering of information (this includes, in a private attorney general suit, civil discovery) is done by private citizens, it is generally only the government — the executive branch, in particular — that is allowed to impose punishment.

Meanwhile, in the online world, sites have rarely cast users as either informants or private attorneys general able to punish breaches of website contracts and rules. Yet, because the Internet has far worse, and more endemic, policing problems than the world offline, we can expect to see much more user policing in the near future.

owners, to have a monopoly on punishing those who commit wrongdoing online. Indeed, penalties like being banned from a site — the online equivalent of a court injunction — or having to pay money — the online equivalent of a civil damages award — could theoretically be imposed, with a keyboard strike, by users themselves.

Why Policing on the Web is Hard

As is well known, policing the web for wrongdoers is much harder than policing for them in the real world.

Complete anonymity makes wrongdoing far more difficult to detect, and sometimes impossible to punish — particularly since the website owner frequently cannot (and should not) be held liable, since there is nothing he, she, or it could have done to prevent the wrongdoing.

Moreover, standard legal rules often end up watered down on the web. For example, as I wrote in an earlier column, it is only the first discloser of a trade secret that may truly be at risk for punishment. Subsequent disclosers may get off scot free, because the information is no longer "secret." Trade secret law that is effective offline thus becomes ineffective online. This dilution effect — the scope of which is much broader than trade secret law alone — only increases the difficulties of enforcing the law online.

How eBay Uses Its Users

Could sites’ deputizing of users as private attorneys generals and police solve this enforcement problem? To some extent, perhaps. Consider, for example, eBay’s use of user deputies.

As The Standard’s Eric Young recently reported, eBay has admitted that it will not directly police its coming ban on hyperlinks. (EBay objects to hyperlinks because they can be used to complete transactions elsewhere on the Net, thereby evading eBay commissions.)

Rather, eBay will expect users to turn in wrongful hyperlinkers to eBay so they can be banned from using the site. EBay has some reason to think this strategy will work; in the past, its users have dutifully turned in to eBay bidders who have submitted fake bids solely to increase an item’s price. As most users benefit if bids are solely bona fide, this strong commonality of interest between eBay and most of its users worked in the site's favor to ensure policing would work.

EBay and most of its users also share a strong, if somewhat lesser, commonality of interest in the goal of getting rid of hyperlinks. If eBay’s commissions are routinely evaded using hyperlinks, soon eBay will not be able to afford to pay to maintain the services that users enjoy and expect.

are too high, and lead eBay to lower them. If so, users should be pro-hyperlink, for it is in their interest to have eBay make as little extra profit, consistent with maintaining needed services, as possible.

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

Changing User Incentives

How can eBay — or another site — increase user policing in cases where users may not have a natural incentive, based on the architecture of the site, to police? The answer is that the site can create new rules to change user incentives, and can even offer users a bounty for successful policing.

EBay could, for example, reward users who turn in hyperlinkers with special, lower commissions — or the ability to conduct a single, free auction. Even those eBay users who approve of hyperlinking probably do not believe that "auctions want to be free" — just that they should be cheaper.

What about Napster, whose users would probably view policing each other as anathema, and which allows, as one of its primary purposes, for the MP3 sharing that courts have held violates copyright law? Could its users ever be convinced to police each other? Perhaps not.

But suppose Napster had evolved differently — as a site where new bands could disseminate their MP3s free, with permission, and sharing of copyrighted songs had only sprung up as a sideline.

On this alternative site — call it Bandster — users eager to protect the bands they loved might have been willing to police against infringers, to keep out the copyright-sharers. Accordingly, this site might have implemented a mechanism by which one user could ban another if the latter made a copyrighted song available without permission

This might have been much more efficient than any number of filters — for it would be the user, not the song, that would be targeted, and the targeters would be legion. Leaving copyrighted songs open for copying on one’s hard drive would pretty much guarantee annoying, repeated banishment from the site by Bandster private attorneys general.

However, in our universe, we have Napster, not Bandster. Napster was initially promoted with an ethic of law violation — as a music "pirating" site. In court, that satisfied the intent element of the copyright law tests. Online, it pretty much guaranteed that user policing would never be instituted, at least without a court order.

The upshot? A website will only be able to use its users as police if — and to the extent that — they want to act as police. And a site will be able to alter what its users want, but only up to a point.

The result is that a generally rule-abiding site like EBay will probably only become more so, and a generally rule-breaking site like Napster will probably only become more so. Call it the law of entropy of the Internet.

Julie 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.

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