July 01, 2009
MySpace Wins Another 47 USC 230 Case Over Sexual Assaults of Users--Doe II v. MySpace
By Eric Goldman
Doe II v. MySpace, Inc., 2009 WL 1862779 (Cal. App. Ct. June 30, 2009)
Capping off a busy month for 47 USC 230 jurisprudence, MySpace has won another case over its role in facilitating sexual assaults of underaged female users. This victory follows the 2008 Fifth Circuit Doe v. MySpace case and Doe IX v. MySpace from May. (Note: although California is apparently lagging behind Texas in Doe complaints, this opinion consolidates 4 plaintiffs, including Julie Doe V). As with the previous lawsuits, this lawsuit is generally premised on MySpace's allegedly inadequate measures to protect its underaged users and use appropriate age-verification technology.
The court could have simply tossed the case by citing the Fifth Circuit opinion, which had already addressed and rejected these arguments. (I believe the plaintiffs’ attorneys are the same in both cases). As the court points out, the plaintiffs didn’t really try to work around the Fifth Circuit opinion: "Not surprisingly, appellants cannot and do not distinguish the Fifth Circuit's opinion…which is exactly on point. They only contend that the Fifth Circuit was wrong."
Nevertheless, after canvassing the federal precedent (all of which is adverse to the plaintiff), the court considers if California's 230 jurisprudence leads to a different result. The court cited three California cases that have used 230 to reject negligence claims against service providers (Barrett, Delfino, Gentry). The court then correctly concludes that plaintiffs seek to hold MySpace liable for user-to-user communications:
It is undeniable that appellants seek to hold MySpace responsible for the communications between the Julie Does and their assailants. At its core, appellants want MySpace to regulate what appears on its Web site.
That's precisely what 230 precludes plaintiffs from being able to do. The plaintiffs' attempt to focus on the offline physical harm doesn't change that analysis:
In all but one of these [precedent 230] cases, the harm actually resulted from conduct that occurred outside of the information exchanged, whether that information was actionable or not.
This is a crucial point that sometimes gets overlooked. The 1997 Zeran case involved online postings that led to offline harms--in that case, a high volume of angry telephone calls, including death threats. And Zeran was a negligence case, not a defamation case. So the MySpace cases, alleging the service provider was negligent in preventing offline harms, seem to be substantively indistinguishable from the Zeran precedent from a dozen years ago.
The plaintiffs also try a Roommates.com attack on 230, arguing that MySpace loses 230 protection because it helped users create profiles and structured the search of these profiles. Doe IX v. MySpace had already expressly addressed and rejected this argument. The court doesn't cite Doe IX (or any other cases interpreting Roommates.com, for that matter), but still rejects the argument:
Unlike the questions and answers in Roommates.com, however, Appellants do not allege that MySpace’s profile questions are discriminatory or otherwise illegal. Neither do they allege that MySpace requires its members to answer the profile questions as a condition of using the site.
The voluntariness of the profiles was the same ground relied upon in the Doe IX case. The lack of illegality in the questions is a new point.
So, yet again, Roommates.com is cited in a defense win. My updated scorecard on Roommates.com citations is 8-2 for the defense:
Roommates.com Cited for Defense: GW Equity v. Xcentric, Best Western v. Furber, Goddard v. Google, Joyner v. Lazzareschi, Atlantic Records v. Project Playlist, Barnes v. Yahoo (note: although the case was a partial loss for the defendant, the Roommates.com discussion came in the defense-favorable part), Doe IX v. MySpace and this opinion (Doe II v. MySpace)
Roommates.com Cited for Plaintiff: NPS v. StubHub, FTC v. Accusearch
Posted by Eric at 11:17 AM Permalink | Derivative Liability | TrackBack (0) | Printable Version
Securities Fraud Case Premised on Click Fraud Allegations Dismissed--Brodsky v. Yahoo
By Eric Goldman
Brodsky v. Yahoo, Inc., 2009 WL 1766002 (N.D. Cal. June 18, 2009).
The legal battles over click fraud are pretty much played out, but some legacy cases are still working through the system. This lawsuit was a securities fraud action alleging that Yahoo inflated its stock price by, among other things, deliberately ignoring some click fraud activity to grab quick revenue. The lawsuit was dismissed in October of last year with leave to amend. Having tried again, the plaintiffs still didn't satisfy the judge, so the judge booted the case permanently. However, given the plaintiffs’ investments in this case, it would not surprise me if the plaintiffs appeal.
The actual opinion isn't all that remarkable. For the click fraud allegations, the plaintiffs rely principally on confidential witnesses who are former Yahoo employees. The cloak-and-dagger Deep Throat stuff is mildly interesting, but the court still wasn't convinced that these insiders had enough personal knowledge about Yahoo's revenue recognition practices (except for one witness, who didn't allege malfeasance). As I wrote in October, "it will be interesting to see if the plaintiffs can produce any witnesses who can testify about the rate of Yahoo's click fraud overcharging sufficient to satisfy legal standards." This ruling seems to answer that with a big "negative."
Posted by Eric at 09:53 AM Permalink | Licensing/Contracts , Marketing , Search Engines | TrackBack (0) | Printable Version
June 30, 2009
Roommates.com Infects the Tenth Circuit--FTC v. Accusearch
By Eric Goldman
F.T.C. v. Accusearch Inc., 2009 WL 1846344 (10th Cir. June 29, 2009). My blog post on the district court opinion.
Introduction
June has been an active month for 230 jurisprudence. Cases this month include Doe IX v. MySpace (actually a May opinion but I blogged it in June), Gibson v. Craigslist, the Barnes v. Yahoo amendment, and Zango v. Kaspersky--all defense-favorable outcomes. As I mentioned in my post on the Doe IX case, the Ninth Circuit Roommates.com en banc decision has not cast a long shadow on 230 jurisprudence; it has been cited less than 10 times in the past year, and prior to yesterday, only once in favor of the plaintiff. Unfortunately, those good times may be over. The Tenth Circuit has largely adopted the rule and reasoning of Roommates.com in FTC v. Accusearch, effectively making Roommates.com the governing law west of the Rockies.
The FTC's Enforcement Action Against Accusearch
This is a prime example of bad facts making bad law. Accusearch runs Abika.com, a website that tried to style itself as a matchmaker between customers seeking, and vendors selling, private/personal records about people. The specific records at issue here contain "customer proprietary network information" (CPNI), the metadata about telephone calls. CPNI resales were probably illegal at the relevant time periods; following the Hewlett-Packard pretexting scandals, Congress cleared up any confusion and criminalized the resale of CPNI via the Telephone Records and Privacy Protection Act of 2006, 18 U.S.C. §1039.
If Abika.com was structured as a pure advertising site to facilitate off-site transactions, like Craigslist or eBay, perhaps Abika.com would have a stronger case for qualifying for 47 USC 230 protection for the sale and delivery of CPNI reports from Abika's vendors to their customers. However, Abika.com apparently was structured as a classic retailer in that it advertised the third party reports, processed customer payments, and delivered the subsequent reports to customers as if the reports were its own (Abika.com even stripped out the third party vendor's identifying information). So the veneer of Abika.com simply being a passive intermediary between customers and vendors may have been overwhelmed by Abika's active and overwhelming presence in the transaction.
The FTC went after Accusearch claiming that Abika.com was engaged in "unfair" trade practices under the FTC Act. (Note: the FTC has the power to pursue unfair commercial practices, even when they are not deceptive. However, the standards for "unfair" are amorphous, making such enforcements potentially problematic and controversial. Fortunately, the FTC generally wields this power sparingly). Accusearch's principal defense was 47 USC 230 on the theory that Accusearch procures the CPNI reports from third party vendors and merely republishes the third party reports to Accusearch's customers.
It's really hard to defend CPNI resales, and the court says that Accusearch had the requisite scienter that such resales were illegal/impermissible. With the combination of scienter, illegal transactions, active intermediation and the FTC as a plaintiff, it really seemed to me that Accusearch had no chance of winning this case. But this combination also tempted the judges to use loose reasoning to reach that unavoidable result.
The Opinion’s Discussion of 47 USC 230
A defendant must establish three elements of a successful 230 defense, and the majority opinion muddles the discussion on all of them:
1) "provider or user of an interactive computer service." Based on the funky definition of ICS, the FTC argued that websites qualify for 230 protection only when they enable user-to-user communications. The majority declines to accept this argument but doesn't reject it outright either, basing its decision on another prong. Although the statute could be clearer (like, for example, saying that websites qualify for 230 protection), the caselaw is extremely thick that every website qualifies for 230 protection. Unfortunately, with the majority's pathetic response, I wouldn't be surprised if plaintiffs unnecessarily put this issue into play in future 10th circuit cases.
2) "publisher or speaker of content" The concurring judge argues for a speech/conduct distinction and argues that the FTC is pursuing Accusearch for its conduct, not its speech. The speech/conduct distinction is almost meaningless in this case given that Accusearch was reselling information, which means that Accusearch was electronically republishing that information. The majority disagrees with the speech/conduct distinction but otherwise doesn't discuss this prong.
3) "created or developed by another information content provider." Adopting the arguments from the Roommates.com case, the majority says that Accusearch didn't "create" the reports but it was "responsible" for "developing" the reports. To reach this conclusion, the majority defines "responsible" and "develop":
* citing old French, "develop" means to "unwrap." Huh? Thus, "when confidential telephone information was exposed to public view through Abika.com, that information was 'developed.'" Does this definition make "develop" a synonym for "publish"?
* the majority initially says when "responsible" doesn't mean: "to be 'responsible' for the development of offensive content, one must be more than a neutral conduit for that content." This reference to "neutral conduit" parallels the Roommates.com case, which used the term "neutral tools" five times but never defined the term once.
The majority then says "a service provider is 'responsible' for the development of offensive content only if it in some way specifically encourages development of what is offensive about the content." This phrasing allows the court to distinguish the old 10th Circuit Ben Ezra precedent, which absolved AOL of liability for republishing inaccurate stock quotes. There, AOL didn't ask its vendors to give it false reports; here, the majority says that Accusearch asked its vendors to get information it knew was illegal to obtain:
Accusearch solicited requests for such confidential information and then paid researchers to obtain it. It knowingly sought to transform virtually unknown information into a publicly available commodity. And as the district court found and the record shows, Accusearch knew that its researchers were obtaining the information through fraud or other illegality.
Implications
I doubt the literal holding of this case is all that troubling to most folks. If you're in the business of reselling illicit phone records and the FTC comes calling, 230 isn't likely to help you.
However, this opinion could be problematic for any online retailers who thought they could use 230 to insulate themselves. It's never been clear how much 230 protects online retailers when they are making sales for their own account (as opposed to advertising services like eBay or Craigslist), and this opinion raises the specter that 230 won't apply even when "retailing" involves republishing third party content. Indeed, the loose language means the case could be a major carveback of 230's coverage in the Tenth Circuit. As the concurrence points out, the majority's reading is "an unnecessary extension of the CDA’s terms 'responsible' and 'development,' thereby widening the scope of what constitutes an 'information content provider' with respect to particular information under the Act."
Then again, between its role as a retailer and the illicit nature of its goods, Accusearch was always at the periphery of 230's coverage. Today, 230 would be irrelevant if a federal government agency pursued a CPNI reseller under the new criminal provisions in 18 U.S.C. § 1039. So I think a better interpretation of this case is that where an online provider is dabbling too close to third party illegal activity, judges simply will ignore 230 as a bailout. Framed that way, this ruling is akin to Roommates.com, which was a largely a normative judgment by the Ninth Circuit that the Fair Housing Act should trump 230 regardless of 230’s precise statutory contours.
I'll conclude with a few more thoughts about the concurrence. Although the concurrence's proposal to distinguish between speech and conduct wasn’t a good one, there was a useful nugget embedded in it. To bypass 230, perhaps the case could have focused on first party content published by Accusearch--namely, copy written by Accusearch advertising the availability of CPNI records, including any express or implied statements that it was reselling legitimate records. I've repeatedly blogged on the challenges of first-party/third-party content distinctions in 230 (see, e.g., my recent discussion about 230 and consumer protection), but in this case, I think focusing on Accusearch's own representations may have led to a cleaner doctrinal result than the one we got.
Finally, in the concurrence's FN5, Judge Tymkovich says:
If Accusearch had run a traditional business out of a physical location and offered similar services, it would seem the FTC would have the same unfair business practices complaint. Nothing would immunize Accusearch’s conduct had it chosen to deliver the confidential telephone records to requesters through hard copy print-outs either in person or through the mail. Accusearch’s duty to refrain from engaging in the solicitation and distribution of unlawfully-obtained confidential telephone records should not depend on the medium within which it chooses to operate.
Uh, NO. As with some other bright judges dealing with 230 cases, Judge Tymkovich has fallen into the mental trap that smart common law judges applying their powers of reasoning can simply intuit what the law should be. Congress has made it abundantly clear that it did exactly what Judge Tymkovich rejects; via 230, Congress created medium-specific rules that make some activities online permissible even if their offline analogue would not be. As challenging as it may be, judges should resist the temptation to make these kinds of normative assumptions in the face of clear Congressional intent.
Posted by Eric at 10:28 AM Permalink | Derivative Liability , E-Commerce , Privacy/Security | TrackBack (0) | Printable Version
June 29, 2009
Sixth Lawsuit Filed Over Google AdWords, Plus an Assault on Google's Organic Search Results--Ascentive v. Google
By Eric Goldman
Ascentive, LLC v. Google, Inc., 2:09-cv-02871-JS (E.D. Pa. complaint filed June 25, 2009)
Guess who got sued again? Google now has 6 pending lawsuits challenging its AdWords service. The previous five are:
* Rescuecom v. Google
* FPX v. Google
* John Beck Amazing Profits v. Google
* Stratton Faxon v. Google (this wasn't a trademark case last I checked)
* Soaring Helmet v. Bill Me
The latest lawsuit has a different spin than the others. Ascentive makes software that it claims will improve the speed of its users' computers and combat spyware. Earlier this year, Ascentive had a run-in with StopBadware, which initially labeled Ascentive as a scamware-like offering that hyped the threats on users' computers to induce them to pay to upgrade their Ascentive software. (See the initial StopBadware alerts 1, 2). StopBadware has since reached a compromise with Ascentive and repealed its warning, a move that appears to have been fairly unpopular in some segments of the security community. (This post gives a sense of the sentiments towards Ascentive and StopBadware).
Around the same time, the Ascentive-Google relationship deteriorated, which Ascentive speculated was due to StopBadware's classification (Google's correspondence just cryptically cited "multiple policy disapprovals"). After Ascentive had spent over $645k as an AdWords customer in 2008, Google kicked Ascentive out of the AdWords program. A week later, Google completely dropped Ascentive's website from its search index. As a result, Ascentive was frozen out of both Google's organic search results and sponsored links, and not surprisingly, Ascentive suffered a "severe drop in online sales" from this double-whammy. Ascentive's entreaties to Google were rebuffed.
Ascentive makes two broad legal attacks on Google. First, as has become typical, Ascentive alleges that Google commits trademark infringement and related torts by selling competitive ads keyed to its trademark and by suggesting that advertisers buy Ascentive's trademarks in Google's keyword suggestion tool. Among other specific issues, Ascentive complains that Google didn't respond to its trademark appearing as a third-level domain in a competitor's ad copy or the inclusion of "Finally Fast" in ad copy (Ascentive's applicable trademark is "FinallyFast.com"). Overall, these complaints don't break much new ground compared to prior allegations against Google's AdWords program.
Second, Ascentive alleges a variety of legal violations because Google kicked Ascentive out of its organic search results index. This is a bit like KinderStart redux. The allegation that really caught my attention starts in Para. 83, which reads "Google's refusal to list Ascentive's website in its natural search result listings violates the Lanham Act" as a false designation of origin. Whoa! The complaint doesn't explain this allegation thoroughly, but the theory seems to be that consumers expect to see the trademark owner in organic search results for the trademark and therefore consumers will be actionably confused if the trademark owner doesn't appear there.
Framed that way, of course we know such a claim is DOA. Indeed, as exciting as it would be to see some meaty discussion on the topic of Google's liability (or lack thereof) for deciding who gets into its search index, I'm guessing Google will beat this prong of the complaint quickly and completely. One way Google could get there is through 47 USC 230(c)(2) (which I just blogged about last week), which completely protects Google's ranking decisions as a subspecies of filtering choices generally. However, to get there, a court will have to conclude that a false designation of origin claim isn't an "IP claim" which is excluded from 230's coverage. If it doesn't want to reach that doctrinal issue, the court has a wide smörgåsbord of other doctrinal choices to squash this claim.
Posted by Eric at 07:32 AM Permalink | Derivative Liability , Search Engines , Trademark | TrackBack (0) | Printable Version
June 26, 2009
Anti-Spyware Company Protected by 47 USC 230(c)(2)--Zango v. Kaspersky
By Eric Goldman
Zango, Inc. v. Kaspersky Lab, Inc., 2009 WL 1796746 (9th Cir. June 25, 2009)
The case involves Kaspersky, an anti-spyware software vendor, and Zango, the former purveyor of adware (I say "former" because Zango shut down a few months ago). Kaspersky classified Zango's software as adware and did some other things that allegedly interfered with Kaspersky users' ability to download and enjoy Zango software. Zango sued Kaspersky, and Kaspersky defended on 230(c)(2) grounds.
Note: 47 USC 230(c)(2) is the underlitigated/under-discussed sibling of 230(c)(1), which provides nearly absolute immunity for third party online content and actions.
In my opinion, 230(c)(2) fairly clearly protects all types of online filtering decisions, and this panel confirms that it protects anti-spyware classifications. As the court concludes:
a provider of access tools that filter, screen, allow, or disallow content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable is protected from liability by 47 U.S.C. § 230(c)(2)(B) for any action taken to make available to others the technical means to restrict access to that material.
While I think this is the right result, both normatively and descriptively, 230(c)(2) is not exactly the best-drafted statute, and this panel (being the first appellate court to work through the language) appeared to struggle with some of its frayed edges.
For example, to become eligible for 230 protection, the defendant must be a provider or user of a service that "provides or enables computer access by multiple users to a computer server." [In this case, Kaspersky didn’t claim it was a user.] How does this language apply to an anti-spyware software provider? Typically, anti-spyware software phones home for new spyware definitions, but if a phone-home capability qualifies for 230 protection, then many/most software vendors should qualify (so long as they offer some filtering capability). I’m personally OK with that result, but I suspect it takes the statute beyond the drafters’ initial intent.
The panel also sidestepped some other drafting problems in 230(c)(2), including:
* does it immunize decisions to filter other software, as opposed to filtering content? The drafting clearly meant to immunize filters of porn and similar kid-unfriendly content, but the language doesn’t apply as clearly to software filtering.
* must the filtering provider make its categorizations in good faith? The court ducks this question. However, Judge Fisher’s concurrence expresses concern that 230(c)(2) might literally protect a vendor’s anti-competitive or capricious blocking. He gives an example of “a web browser configured by its provider to filter third-party search engine results so they would never yield websites critical of the browser company or favorable to its competitors. Such covert, anticompetitive blocking arguably fits into the statutory category of immune actions.” I agree with this, although I’m also confident that any such browser provider would lose its customer base if such biases were ever publicly exposed. Therefore, legal liability may not be necessary to discourage this behavior.
Ultimately, this ruling may not affect the litigants very much, as Zango has already gone belly-up, making this effectively an advisory opinion. However, I think this ruling is important for everyone else for two reasons:
First, the Ninth Circuit's last two 230 opinions (Roommates.com and Barnes) have exhibited some hostility to expansive 230 readings. In refreshing contrast, this opinion gives a robust interpretation to 230’s immunizations.
Second, this opinion is terrific news for vendors of anti-spam/anti-spyware/anti-virus services. Although we have long suspected that they would be protected under 230(c)(2), this opinion codifies their immunization as Ninth Circuit law. As a result, these vendors should continue to have a high degree of freedom to make judgments about how to best serve their customers. On the flip side, this opinion confirms that anyone blacklisted by these software vendors can’t use judicial proceedings to change the classification. Fortunately, most reputable vendors offer an extra-judicial mechanism to correct their misclassification errors.
It remains less clear if this opinion protects search engines for their ranking determinations. The statutory words interpreted in this opinion aren’t germane to search engines. Even so, the panel’s broad reading of 230(c)(2) can’t be bad news for the search engines.
The case library:
* Ninth Circuit oral arguments
* Zango's reply brief [warning: 3+ MB file]
* Amicus brief by CDT in favor of Kaspersky
* Kaspersky's answering brief [warning: 5MB file]
* National Business Coalition on E-Commerce and Privacy amicus brief in favor of Zango
* Zango's appeal brief [warning: 2.1MB file]
* The district court's dismissal and my commentary
* TRO Denial and my commentary
* Kaspersky's Response to TRO Motion
* Zango's TRO motion
Posted by Eric at 01:13 PM Permalink | Adware/Spyware , Derivative Liability | TrackBack (0) | Printable Version
June 24, 2009
47 USC 230 and Consumer Protection Talk Notes
By Eric Goldman
Last week I made a very short presentation on 47 USC 230 and consumer protection at the ABA Antitrust Section’s Consumer Protection Conference. (I was scheduled for 6 minutes, but I think I took about 8). My talk notes:
47 USC 230 tries to divide online content into first party content and third party content. In its simplest form, 230 says that online actors can’t be liable for third party content unless (1) ECPA, (2) federal criminal enforcement, or (3) IP claims.
230 is the flagship example of cyberspace exceptionalism. As a result, its outcomes can challenge our traditional notions of tort law. This befuddles bright lawyers.
Despite 230, websites always remain liable for first party content.
* Ex 1: if they post their own content, they are liable
* Ex 2: if they make marketing representations, they are liable under standard doctrines like contract and false advertising law. Even so, some courts have been giving websites a pass for marketing representations which are rendered untrue by third party actions.
* Ex 3: Barnes v. Yahoo: website can by liable under promissory estoppel theory if it promises to remove third party content
Plaintiffs often try to argue that third party content becomes first party content.
* Ex 1: website contract may take ownership of user-supplied content
* Ex 2: SEC says that issuers endorse/adopt content that they link to
However, these arguments generally fail under 230. If content starts out as third party content, there is almost nothing the website can do that will convert the content into first party content. As a result, agency civil enforcement actions can unexpectedly run afoul of 230 when they collapse the distinctions between first party and third party content.
However, there is a possible workaround. In the Roommates.com case, the Ninth Circuit said that websites can lose their 230 protection in civil cases if they “encourage illegal content” or “require users to input illegal content.” The FTC is relying on this language in its recent Pricewert/3FN enforcement action against an Internet access provider who facilitated customers allegedly engaged in illegal activities. From my perspective, the Pricewert enforcement action could make sense in the following postures:
* if the FTC is bringing a criminal enforcement action, 230 is irrelevant
* if the FTC’s civil enforcement action is premised on Pricewert’s actual illegal behavior, 230 is irrelevant
* otherwise, if the civil enforcement action is premised on the illegal behavior of Pricewert’s customers, then this might fit into the Roommates.com exception if such an exception exists. However, I am troubled by such an exception, especially given that the enforcement action might also adversely affect Pricewert’s customers who only engaged in completely legal activity.
Two concluding observations:
1) 230’s basic division between first party content and third party content sounds great in theory but is tough to apply in practice.
2) In light of 230, enforcement agencies should rethink their expansive liability theories that basically assume that everyone should be responsible for a common set of online behavior (unless the agency is pursuing a criminal enforcement action).
Posted by Eric at 10:08 AM Permalink | Derivative Liability , Marketing | TrackBack (0) | Printable Version
June 22, 2009
Ninth Circuit Helpfully Amends Barnes v. Yahoo Opinion
By Eric Goldman
Barnes v. Yahoo, Inc., 05-36189 (9th Cir. Amended Opinion June 22, 2009)
The Ninth Circuit has issued an amended opinion in last month's Barnes v. Yahoo opinion. The amended opinion makes two changes to the initial opinion, both of significant value.
First, the opinion deletes the entire old section II, a two paragraph section where the panel declared that, under Ninth Circuit law, 47 USC 230 is an affirmative defense that could not support a 12b6 motion to dismiss. That discussion was poorly researched, sloppy and completely gratuitous. Rather than try to fix the section, the panel wisely decided just to kill it. This still leaves open the possibility that a district court will reject a 230 defense to a 12b6 motion, although I think the better result is that 230 can support a 12b6 motion as the Gibson v. Craigslist case just held.
Second, the panel added a new footnote to its recap of the prima facie elements of a 47 USC 230 defense. You may recall that in my initial blog post, I excoriated the panel for saying, in plain language, that 47 USC 230 only applied to state law claims. To fix this obvious error, the panel added the following footnote:
"We limit our restatement of section 230(c)(1) to state law claims because we deal in this case with state law claims only. We have held that the Amendment’s protection also extends to federal law causes of action, see, e.g., Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) (en banc) (applying the Amendment to a cause of action under the Fair Housing Act, 42 U.S.C. § 3601 et seq.). Because no federal law cause of action is present in this case, we need not decide how or whether our discussion of section 230(c)(1) would change in the face of such a federal claim."
I don't know why the last sentence of the footnote is there. I guess this is super-CYA, but everyone knows that the 230(c)(1) analysis doesn't change one bit between federal and state law claims. Nevertheless, this footnote should eliminate any efforts by plaintiffs' lawyers to misuse the prior unnecessarily sloppy language.
Both of the changes in this amended opinion were directly responsive to the requests Yahoo and its amici made. I suspect both groups are pleased with these changes. I certainly am, although I remain disappointed that the entire exercise was necessitated by the panel's sloppy work up-front. Given that this is the second time in 2 years that the Ninth Circuit has had to fix badly drafted 47 USC 230 opinions, I remain (over?)optimistic that the Ninth Circuit will be more careful with its 230 jurisprudence in the future.
In conjunction with the amendments, the Ninth Circuit rejected both sides' request for an en banc hearing, although the amendments were so responsive to the defense requests that they largely mooted the defense's requests. (My intuition is that the plaintiffs never expected to get an en banc hearing but made their request just because Yahoo and the amicis had put an en banc hearing in play). I would be surprised if there are further appeals to the Supreme Court at this point. As a result, I believe this case is now effectively ready for further proceedings on remand on the promissory estoppel claim. Personally, from the limited material I've seen, Yahoo might find it prudent to cut short further proceedings and settle up rather than have its choices scrutinized too carefully. So I would not be surprised if this amended opinion prompts a settlement soon.
The case library:
* Amended Ninth Circuit Opinion
* Barnes' petition for rehearing
* Public Citizen et al amicus brief in support of rehearing
* Yahoo's petition for rehearing
* Ninth Circuit opinion and my blog post on it
* Ninth Circuit oral arguments
* District court opinion and my blog post on it
* Barnes' response to Yahoo's motion to dismiss
* Yahoo's brief in support of its motion to dismiss
* Yahoo's motion to dismiss
* Yahoo's notice of removal to federal court (which contains Barnes' initial complaint)
The Justia page has even more materials from the district court proceedings.
Posted by Eric at 11:57 AM Permalink | Derivative Liability | TrackBack (0) | Printable Version
June 18, 2009
47 USC 230 Can Support 12b6 Motion to Dismiss-Gibson v. Craigslist
By Eric Goldman
Gibson v. Craigslist, 2009 WL 1704355 (SDNY June 15, 2009). The CMLP page. The Justia page.
In my lengthy deconstruction of the Barnes v. Yahoo case, I criticized the Ninth Circuit for concluding that 47 USC 230 was an affirmative defense (and thus could not support a 12b6 motion to dismiss) without proper briefing or analysis. First, this was sloppy work by the court. Second, the elimination of a 12b6 possibility for the defendants creates a real risk that defendants will be exposed to expensive and time-consuming discovery to eliminate plainly meritless cases. Yahoo and a group of amici have asked the Ninth Circuit to reconsider this aspect of the ruling, and I hope they do so.
Meanwhile, today’s case does a competent job reviewing whether or not 47 USC 230 can support a 12b6 motion to dismiss. Unlike the Ninth Circuit, it actually cites and discusses the numerous cases in the area although, remarkably, it does not cite or address the Barnes v. Yahoo case…! The court reaches the sensible positions that (1) 47 USC 230 does support a 12b6 motion, (2) as a result, the plaintiff was not entitled to discovery, and (3) the case should be dismissed. For more discussion on why 47 USC 230 supports a 12b6, see Paul Levy's excellent brief.
Substantively, today’s lawsuit is brought by a shooting victim who claims that the shooter bought the gun via Craigslist. The complaint argues that Craigslist had a duty to prevent the sale of guns to future criminals and therefore Craigslist breached the duty. This argument is similar to the Doe v. MySpace cases (1, 2) in which the plaintiffs argued that MySpace had a duty to police its website "premises" to prevent online communications that lead to offline crimes. The plaintiff's argument here fares no better here than it did in the MySpace cases. 47 USC 230 precludes the imposition of liability for any breach of duty by failing to police its users' communications (putting aside the also-relevant inquiry of whether Craigslist could have any duty that would have prevented this offline tragedy). The plaintiff tries to get around 230 by arguing it's just trying to hold Craigslist accountable as a "business" rather than as a speaker or publisher of third party content, but the court rejects this goofy argument as "unpersuasive."
More on the case from Eugene Volokh.
Posted by Eric at 06:41 PM Permalink | Derivative Liability | TrackBack (0) | Printable Version