Friday, October 03, 2014

America Income Life Ins Co v Google NDAL :: Dismissed Per Sec. 230(c) :: Case Summary


Facts Plaintiffs American Income Life Insurance Company and Scott Sonnenberg (collectively "plaintiffs") filed this action in the Circuit Court of Jefferson County, Bessemer Division, against Google and "X and Y, fictitious parties operating websites Google, Inc., chooses to reward with prominent placement in all its search engine results, known only to Plaintiff[s] as operators of `' and `'" Specifically, plaintiffs allege: The Fictitious Defendants' banners and content, broadcast via Defendant Google, Inc.'s search engine throughout Alabama, via hundreds of thousands of computer terminals, violates the Alabama Deceptive Trade Practices Act by falsely asserting that "American Income Life is a Scam."

Cause of Action: The substance of plaintiffs' Complaint is that certain business practices by defendants violate the Alabama Deceptive Trade Practices Act. Defendant moves to dismiss pursuant to 47 U.S.C. § 230(c), The Good Samaritan Provision of the Communications Decency Act.

Rule: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).

Analysis "Google cannot be held liable for search results that yield content created by a third party."

[T]he only allegations in the Complaint about actions taken by Google in support of the conclusory allegation that Google "intentionally disparaged the goods, services, or business of Plaintiff by false and/or misleading representations of fact" are that Google "offer[s] dozens of product and services, including various forms of advertising and web applications," "determine[s] which [web pages] offer `content of value,'" "assess[es] the importance of every web page," "touts its patented `Page Rank' algorithm," "analyze[s] which sites are the `best sources of information across the web' for its seller-assisted marketing plan," "afford[s] prominent placement in its search engine broadcasting to the Fictitious Defendants," and "broadcast[s]" the "fictitious defendants' banners and content." After careful review of the Complaint, the court finds that plaintiffs clearly allege that Google is an interactive computer service, but not an information content provider because there are no allegations that Google originated, developed, or modified the disputed content. Instead, the face of the Complaint alleges that Google assesses the value of content across the internet and "broadcasts" the content provided by and via its search engine. Without allegations that Google creates the disputed information, specifically the alleged false and misleading representations, plaintiffs' efforts to treat Google as the publisher of those representations fail under § 230. See [47 U.S.C.] § 230(f)(3).

The Complaint contains no allegation that Google created any content that represented American Income Life as a scam. Although the gripe sites's content was broadcast and/or returned as a result of keyword searches of "American Income Life" on Google's website, the Complaint does not allege that Google created or otherwise developed any content stating that American Income Life is a scam.

Thursday, October 02, 2014

Ugh! No! Trademarking a Few Letters Does Not Mean Any Domain Name Using Those Letters is a Cybersquatter!

In Plaintiff's corner we have Deckers Outdoor Corporation which sells footwear under its UGG brand. In Defendant's corner we have Ozwear, an Australian company that sells sheepskin footwear, and has the domain names and Plaintiff alleges, among other things, that Defendant is a cybersquatter.

Defendant has not responded and one of the things that is interesting about this case is that Plaintiff moves for default judgment. It is interesting because, even though Defendant did not appear, Plaintiff loses!

There are a couple of problems with Plaintiff's cybersquatter claim. As we know, in order to make out a cause of action for cybertsquatting, Plaintiff must
show that 1) Defendants have or had a "bad faith intent to profit from that mark" and 2) "registers, traffics in, or uses a domain name that" is identical or confusingly similar to a mark that was "distinctive" or "famous" at the time of registration of the domain name, or causes dilution of a mark that was famous at the time of the domain name's registration. 15 U.S.C. § 1125(d)(1)(A).
Plaintiff's trademark is three letters: "UGG." Defendant's domain name contains its own name "ozwear" plus those three letters "ugg" plus an "s."

And here's a problem. The term "uggs" is generic for sheepskin boots ~ while "UGG" itself is not generic but is Plaintiff's distinctive trademark.

So if I add an "s" to a distinctive trademark, is it no longer a trademark? Maybe. If adding an "s" turns a distinctive trademark into a generic term, then the trademark owner has a problem. For instance, notes the court, if "CHIP" is a distinctive trademark and you add "s" to make "chips" ~ then the trademark owner don't own every domain name that has "chips" in it.

Plus, notes the court, Defendant uses its own name in the domain name attached to "uggs" to make quite clear that the consumer is not going to Plaintiff's Decker's website but to Defendant Ozwear's website.
After reviewing Plaintiff's allegations, the Court finds that Plaintiff does not allege sufficient facts to show that Defendants' use of the term "uggs" in Defendants' domain names is "confusingly similar" to Plaintiff's UGG Trademark. Plaintiff also does not allege sufficient facts to show that the term "uggs" in Defendants' domain names dilutes Plaintiff's famous UGG mark.
Even in a default judgment case, Plaintiff loses. Tip O' The Hat to the Judge on this one.

Joseph v., WDWA :: Dismissed per Sec. 230(c) :: Case Summary

Joseph v. Amazon. com, Inc., Dist. Court, WD Washington 2014 (granting Defendant's motion to dismiss based on 47 U.S.C. 230(c), Good Samaritan Provision of the Communications Decency Act).*

Dr. Rhawn Joseph, Ph.D., proceeding pro se, brings this action against, Inc. ("Amazon") and its CEO Jeff Bezos. … Dr. Joseph is an "author and science book publisher" who has sold his books online through Amazon`s website. He relies on "print on demand" ("POD") technology to print the books he sells.

Dr. Joseph filed this putative class action lawsuit on December 10, 2012 in the Northern District of California. …Plaintiff also alleges that Amazon regularly "publishes and copyrights defamatory and libelous statements about competitors including Plaintiff." He argues in his Complaint and briefing that Amazon is responsible for reviews that he believes to be defamatory, though the allegations are scattered and unclear.

D. Plaintiff's State-Law Defamation and Libel Claims are Barred by Section 230 of the CDA

As the Court understands the Complaint, Plaintiff alleges that Amazon unlawfully published defamatory anonymous reviews of Plaintiff`s books (and Plaintiff) on its website. Amazon argues in its opposition and cross-motion that Dr. Joseph`s claim fails as a matter of law because (i) Amazon is protected from liability under the Communications Decency Act of 1996, 47 U.S.C. § 230, for statements made by reviewers on its website; and (2) the alleged statements are all matters of opinion and are thus not actionable. Upon review, the Court agrees that Section 230 immunity bars Dr. Joseph`s claim against Defendants. Amazon and Mr. Bezos are entitled to judgment on the pleadings on this claim, or in the alternative, summary judgment.

Section 230 of the Communications Decency Act ("CDA") "immunizes providers of interactive computer services against liability arising from content created by third parties." Fair Hous. Council of San Fernando Valley v., LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc); Carafano v., 339 F.3d 1119, 1122 (9th Cir. 2003). The statute provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). Ultimately, a defendant is entitled to § 230 protection as long as (1) it is a provider or user of an "interactive computer service," (2) the asserted claims "treat the defendant as a publisher or speaker of information," and (3) the challenged communication is "information provided by another content provider." Batzel v. Smith, 333 F.3d 1018, 1037 (9th Cir. 2003).

Amazon is entitled to § 230`s protection from Plaintiff`s defamation/libel/slander/trade libel claim. Amazon constitutes an "interactive service provider," which the CDA defines as a provider of an information service or system that "enables computer access by multiple users to a computer server." 47 U.S.C. § 230(f)(2); see Corbis Corp. v., Inc., 351 F.Supp.2d 1090, 1118 (W.D. Wash. 2004) (no dispute that Amazon is an interactive service provider for CDA purposes); Schneider v. Amazon, 108 Wn.App. 454, 463 (Wash. 2001) (finding Amazon to be an interactive service provider and entitled to immunity from claims based on defamatory reviews by third parties). Plaintiff`s Complaint alleges that Amazon operates a website that allows consumers to purchase items online, i.e., to access Amazon`s servers by placing orders and browsing its online store. (See Dkt. No. 1 at ¶ 5.) Second, Dr. Joseph`s claim, whether labeled as a defamation, libel, slander or trade libel cause of action, faults Amazon for acting as the publisher of the reviews. (See, e.g., Dkt. Nos. 1 at ¶ 60 ("Amazon published, copyrighted and claimed ownership" of the allegedly libelous statements); 43 at ¶ 85 ("The above are just a few examples of anonymous[,] defamatory, libelous reviews published by the Defendants."). The CDA`s express terms preclude him from treating Amazon as a publisher or speaker of the information at issue, which is necessary for his state-law claims to succeed. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (recognizing that "the cause of action most frequently associated with the cases on section 230 is defamation[,]" but explaining that the statute`s protection extends beyond defamation causes of action); Kimzey v. Yelp Inc., ___ F.Supp.2d ___, 2014 WL 1805551 (W.D. Wash. 2014) (unfair business practices, malicious libel, and libel per se claims barred against website that allowed users to post reviews of businesses). Finally, the statements alleged were made by third-party reviewers commenting on Dr. Joseph`s books and videos, and Dr. Joseph himself. (See generally Dkt. Nos. 1 at ¶¶ 25-26, 60; 43 at ¶ 85.) They accordingly constitute "information provided by another content provider" under the CDA`s terms. See 47 U.S.C. § 230(f)(3) (defining "information content provider" as "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."). In sum, Plaintiff`s claim against Amazon is barred under § 230 of the CDA.

Dr. Joseph counters this inevitable conclusion with a number of arguments. First, he alleges and argues that the CDA does not apply because Amazon makes "editorial" decisions about which product reviews to publish and which to delete. This argument is without merit. The Ninth Circuit has made clear that such editorial acts (even assuming they are true) are protected: "[S]o long as a third-party willingly provides the essential published content, the interactive services provider receives full immunity regardless of the specific editing or selection process." Carofano, 339 F.3d at 1124. Whether the website operator removes certain reviews, publishes others, or alters the content, it is still entitled to CDA immunity, since those activities constitute a publisher`s traditional editorial functions., 521 F.3d at 1179-80 ("[A]ny activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230."). It is no surprise then that Courts have repeatedly barred similar claims against websites that allow anonymous reviews or other allegedly defamatory content to be posted by third parties. See, e.g., id.; Black v. Google Inc., 457 Fed. Appx. 622 (9th Cir. 2011) (unpublished) (Google not liable for anonymous negative business reviews posted in its online business directory); Kimzey, 2014 WL 1805551, at *2-3 (Yelp! website entitled to CDA immunity from claims based on reviews posted on its site).

Dr. Joseph also argues that Amazon is the "owner" of statements because it "copyrights" them after they are posted. As Defendants' point out, this argument appears to be factually incorrect—Amazon`s standard Conditions of Use expressly state that customers posting reviews own the content and merely grant Amazon a license to use it—and in any event, is unpersuasive as a legal argument because Dr. Joseph still alleges nothing more than Amazon`s fault for publishing content first created and posted by third-parties. On a different note, Plaintiff argues that CDA cannot apply because the reviews make defamatory statements about him as a person rather than about his books. Such an argument is without merit. The essential elements of CDA immunity do not turn on the substance of the alleged statements, but rather, on the party who is allegedly liable for them and whether that party must be deemed a "publisher" to incur liability. See, e.g., Gavra v. Google Inc., Case No. C12-6547, 2013 WL 3788241, at *2-3 (N.D. Cal. July 17, 2013) (claims based on allegedly defamatory videos about other individuals posted on YouTube barred under § 230).

Finally, Dr. Joseph implies that the individuals who posted the allegedly defamatory and libelous statements about him online were "directly associated with the Defendants and may be an employee of Amazon." (Dkt. No. 1 at ¶ 71.C.) This argument fails for a number of reasons. First, Dr. Joseph`s Complaint itself contains insufficient allegations to support a conclusion that Amazon authored any content. Plaintiff relies on nothing more than "mere speculation" to allege that some unidentified Amazon employee might have authored the negative commentary about him without explaining why or how that might be the case. Such allegations are wholly insufficient to avoid § 230`s reach. See, e.g., Levitt v. Yelp! Inc., Case No. C10-1321, 2011 WL 5079526, at *2 (N.D. Cal. Oct. 26, 2011) (rejecting similarly speculative assertions that unidentified Yelp employees authored allegedly defamatory reviews). Additionally, even if the Court accepted this conclusory allegation as sufficient, summary judgment against Plaintiff would be warranted because he provides absolutely no evidence to support his assertion that any Amazon employee posted the reviews at issue. On the other hand, Amazon has provided a sworn declaration clarifying that Amazon neither creates nor controls the content of any third-party reviews, except that it reserves the right to delete reviews that violate its published policies. That alone would be sufficient to justify summary judgment for Amazon.

In sum, the Court concludes that Amazon is entitled to § 230 immunity for Plaintiff`s "libel/defamation/slander/trade libel" claim.

* The case involved several causes of action. Cybertelecom focuses only on the federal internet causes of action.