April 30th, 1995 marked the end of the wildly successful NSFNET. NSFNET was born out of the desire to expand the Internet community beyond a Department of Defense playground, extending it to the full academic community. It ended with the successful privatization of the Internet, transferring backbone services to commercial networks, and establishing key commercial Internet interconnection sites.
NSFNET gave us the early commercial topology of the Internet, with Tier 1 backbones, Tier 2 regional networks, and Tier 3 local networks. NSFNET gave us our first dedicated backbone and the first mbps backbone. It also gave us the crucial Network Access Points, known today as Internet eXchange Points. The contractors that bid for the opportunity to build and operate NSF's network learned from their experience and launched into the information economy as the leading commercial Internet networks. A government investment of millions of dollars had a Return on Investment of an entire new economy.
In 1995, MERIT published the NSFNET Final Report, in which it was stated:
"Infrastructures, for purposes such as transportation and communication, have long been vital to national welfare. They knit together a country's economy by facilitating the movement of people, products, services, and ideas, and play important roles in national security." p. 4.
The report concluded:
"Since the earliest days of the telegraph and the telephone, history tells us that the arrival of each new communications medium has been accompanied by grandiose claims of its potential benefits to society. In order to take advantage of the exciting opportunities afforded by today's technology, it is imperative that policy makers examine the development of the NSFNET and the Internet. We are still far away from a truly open, interoperable, and ubiquitous global information infrastructure accessible to all, "from everyone in every place to everyone in every other place, a system as universal and as extensive as the highway system of the country which extends from every man's door to every other man's door," in the words of Theodore Vail, president of AT&T in 1907. However, the Internet has brought us a giant step closer to realizing the promise of high-speed networking, one of the most revolutionary communications technologies ever created. As part of this phenomenon, the NSFNET backbone service provided a model for future partnerships as well as a legacy of technology for the world." p. 43.
Litigation is a painful friction. And an expense. And generally one wants to dispose of litigation as expeditiously as possible.
To understand today’s 47 U.S.C. s 230(c) litigation, we must go back to Civil Procedure 101. What is the difference between a motion on the pleadings, Rule 12(c), and a motion to for summary judgment, Rule 56? Friction and expense. If plaintiff files suit and alleges a claim that cannot result in a decision in plaintiff’s favor, regardless of the facts, then defendant can file a “You Got Nothing” motion for judgment on the pleadings. For example, if plaintiff sues defendant for being a raspberry cupcake, defendant can move to dismiss on the grounds that being a raspberry cupcake is not grounds for a lawsuit. Lawsuit ends before it even begins.
If, however, we are in the 9th Circuit where being a raspberry cupcake actually is a problem, then a motion to dismiss will not succeed. Defendant must defend, arguing that defendant is a blueberry cupcake, not a raspberry cupcake. To establish this, parties must engage in discovery (expense) and submit evidence (expense). Now, after discovery, if there are no relevant facts in dispute, defendant can move for summary judgment. “Plaintiff alleges that Defendant is a cupcake, but after discovery it is undisputed that Defendant is a blueberry cupcake. Therefore plaintiff’s cause of action should be dismissed.” Defendant wins again…. but after friction and expense.
Got it?
Now you are ready to understand today’s Sec. 230(c) case:
Moretti v. THE HERTZ CORPORATION, Dist. Court, D. Delaware 2017.
Plaintiff sued Hertz, Dollar Thrifty, and Hotwired on the grounds that, according to the court,
“The Hertz Corporation and Dollar Thrifty Automotive Group, Inc. supplied [] misleading information about car rental prices and terms to Hotwire, and Hotwire incorporated the content into listings on its website. Plaintiff alleges that Hotwire continued to do so despite consumer complaints and Hotwire's knowledge of the information's fraudulent content. Plaintiff characterizes Hotwire as a willing and ratifying participant in this arrangement, and alleges that Hotwire "directly profit[s]" from the scheme.”
Defendant Hotwired said, “Plaintiff’s Got Nothing.” Plaintiff has alleged that Defendant Hotwired has published third party content. Pursuant to Sec. 230(c), Defendant Hotwired as an Interactive Computer Service is not liable for third party content on its website. Easy get out of litigation free case.
Before we move forward, let’s review some precedent. There is no “notice and takedown provision” to Sec. 230(c); notice to an interactive computer service that third party content is problematic does not obligate the interactive computer service to remove that content and does not give rise to a cause of action. Zeran v. American Online, Inc., 958 F. Supp. 1124, 1134-36 (E.D. Va. 1997), aff'd 129 F.3d at 333 ("Liability upon notice would defeat the dual purposes advanced by § 230 of the CDA" as it would "reinforce[] service providers' incentives to restrict speech and abstain from self-regulation"; notice-based liability "would provide third parties with a no-cost means to create the basis for future lawsuits."). Furthermore, making a profit also does not give rise to a cause of action and does not transform an interactive content service into a content producer (see caselaw involving interactive content services that made money off of hosting third party content). The only relevant allegation with regards to Defendant Hotwired is that it published third party content.
Not so fast, says the court. And this is where the tension between a motion to dismiss and motion for summary judgment grows. Even though, according to the facts as presented by the court, plaintiff did not allege that defendant Hotwired was a content provider, plaintiff also did not allege that defendant Hotwired was not (yes a double negative) a content provider. It is not on Plaintiff to anticipate every affirmative defense and plead facts sufficient in the complaint to defeat those affirmative defenses. There is no evidence that Congress wanted to convert Sec. 230(c) from an affirmative defense to a pleading requirement.
Really?? REALLY!! I mean come on! The court would rather encumber defendants with the slings and arrows of pissed off plaintiffs rather than dispose of unnecessary litigation out of the gates? We have been here over and over and over again and yet plaintiff’s attorneys seem unable to learn that interactive computer services ARE NOT LIABLE for third party content. But hey, on the one hand we could have plaintiff easily amend its complaint and add like three words that say defendant is a content provider - something the court said plaintiff indicated it could do - but the court did not require of the plaintiff in order to continue the litigation - or we can let defendants out of litigation (without prejudice) that they allegedly have no business being dragged through, wasting their time and money.
Let’s be clear. According to the Rules of Civil Procedure, Rule 8(a)(2): the complaint must plead “a short and plain statement of the claim showing that the pleader is entitled to relief.” Defendant Hotwired gets to know why it’s being sued. According to the facts as presented by the court, the content in question came from third party defendants; the only relevant factual allegation is that defendant Hotwired hosted the third party content. And from that, the only way Defendant can respond is that Defendant is an Interactive Computer Service protected under Sec. 230(c). Compare Levitt v. Yelp! Inc., Case No. C10-1321, 2011 WL 5079526, at *2 (N.D. Cal. Oct. 26, 2011) (Mere speculation is insufficient to overcome a motion to dismiss).
The court weasels:
“The Court recognizes the friction between its holding and Congress's stated goals in enacting Section 230. The Court is sensitive to the expense of litigation and the public policy arguments in favor of requiring plaintiffs to plead around immunities from suit like Section 230.“
Nevertheless, “Hotwire has not ‘clearly established that no material issue of fact remains to be resolved.’” Yeah, establishing that there are no disputed facts is the summary judgment standard. The motion to dismiss standard is that “Plaintiff’s Got Nothing.” And when on the pleadings all that Plaintiff has alleged is that a third party supplied content and defendant has that content on its website, then Plaintiff has nothing and the court should not be putting defendants through litigation that cannot lead anywhere (or make plaintiff amend its complaint).
Unless, off course, it’s just the case that the judge feels that Congress through Sec. 230(c) inappropriately shielded defendants and that Interactive Computer Services really should face responsibility for publishing third party content.
Or did I get that wrong?
