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Procedure matters. It matters whether a defendant can
dispose of a litigation right out of the gate, or whether the defendant must
suffer the slings and arrows of discovery, motions, and trial before presenting
a successful defense.
Procedurally, once a litigation has been initiated,
defendant has a chance to say, "hey, wait a minute, there isn’t actually a
cause of action here." It's like
someone suing me for being tall. Well,
yeah, but there is no recognized cause of action against being tall. And a motion to dismiss for failure to state a claim would end the litigation right out
of the gate.
Alternatively, defendant might have a defense, but must establish
evidence supporting that defense. For example, I may have said that Zim is an
Irken weenie, and Zim may sue me, but availing myself to truth-is-a-defense, I
can prove in court that Zim is in fact an Irken weenie. I may have been successful, but I will now
receive a successful legal defense bill from my attorney.
47 U.S.C. § 230(c) protects interactive services from
liability for third party content. But is this an immunity or an affirmative
defense? Can I use Sec. 230(c) to
exterminate a litigation right out of the gate, or must I wait for the facts of
the case to be developed?
Today's case, Evans v.
HEWLETT-PACKARD COMPANY, Dist. Court, ND California Oct. 10, 2013, explores
this question. It involves software
called "The Chubby Checker" which was produced by a third-party and offered
for sale through the HP App Catalogue. Suffice it to say that the title of the
software was, as the court stated, "a vulgar pun." Chubby Checker, the entertainer, sued.
Plaintiff alleged federal trademark infringement and
dilution, and state causes of action including unfair competition, unauthorized
use of his name, and unauthorized use of his likeness. Sec. 230(e) says that
Sec. 230(c) has no effect on intellectual property law; thus the court did not
dismiss those claims. However, the rest
of plaintiff's claims "were held barred by the preemption
provision in Section 230."
Defendant's app store is an online interactive service; the app in
question is content produced by a third party.
Plaintiff attempted to solve this problem
by amending its complaint and adding some more causes of action. Plaintiff argued, in the first place, that
Sec. 230 is an affirmative defense and not proper for a motion to dismiss. Before defendant can get out of this
litigation, we need to get into the facts of the case, argues plaintiff.
Some courts have been uncomfortable
with letting defendants cash-in their "Get Out of Litigation Free"
cards so easily. For these courts, Sec. 230(c) does not create an immunity. See City of Chicago v. StubHub!, Inc.,
624 F.3d 363, 366 (7th Cir. 2010); Barnesv. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009). On the other hand, "[o]rdinarily, courts
'aim to resolve the question of § 230 immunity at the earliest possible stage
of the case because that immunity protects websites not only from `ultimate
liability,' but also from `having to fight costly and protracted legal
battles.'' Nemet Chevrolet v. Consumeraffairs.com, 591 F.3d 250, 255 (4th Cir. 2009). And while some courts have been hesitant to cash in those "Get Out
of Litigation Free cards" (perhaps originally due to a lack of familiarity
with the plumbing and business models of the Internet), the Evans court recognizes that a consensus
has been developing across the courts of appeals "that § 230(c) provides
broad immunity for publishing content provided primarily by third
parties." Carafano
v. Metrosplash.com Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). Consideration of Sec. 230 preemption is appropriate
at the pleading state in a motion to dismiss; defendant can terminate the
litigation right out of the gate.
But then, maybe this "is it an
immunity or an affirmative defense" thing doesn't really matter. The Evans court leaves us with this thought:
[O]ur court of
appeals has held that "the assertion of an affirmative defense may be
considered properly on a motion to dismiss where the `allegations in the complaint
suffice to establish' the defense."
In other words, whatever you call it,
if plaintiff's complaint doesn't have a leg to stand on, there is no reason for
the litigation to proceed. If Sec. 230(c)
protects interactive services from liability, it would be nice if it also
protected interactive services from futile litigation expenses.
