Not Not Pleading That Defendant is a Content Producer Means Continued Friction of Sec. 230(c) Litigation :: Moretti v. The Hertz Corp., D. Del. 2017

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?

⚖ Host of Facebook Group Immune from Liability for Third Party Content - But Would Host Be Liable if "Perpetuated" Content?!?

FACTS: "As is by now commonplace, Facebook groups are the soapbox for community organizers. In the present action, Plaintiff [pro se] alleges that one such group—the "Volusia County Moms" ("VCM")—mounted a public relations campaign to oust him from Port Orange. Specifically, on or about January 7, 2014, Plaintiff Howard Porter moved in with his uncle and father due to financial hardship. " On January 17, 2014, an anonymous post appeared on the VCM Facebook page stating that a registered sex offender had recently taken up residence across the street from Sugar Mill Elementary School... The ensuing Facebook discussion included comments addressing Plaintiff's criminal past. In particular, Defendant Nicole Sanchez commented that:

[Plaintiff] gave up some rights when he decided he wanted to do sexual acts on a [four] year old!! And thank God this was a set up and he got busted.[] Who knows what the pictures of his own son looked like or who he sold them too [sic]!!! Convicted sexual predators should not be allowed to be so close to a school with all these innocent children!!"

"As a result of the alleged 'false' statements made in the Sanchez Response and the attendant media coverage" Plaintiff sued for defamation. " In his defamation claims, Plaintiff singles out ... Jacqueline Bodner, the owner of the VCM office and Nicole Sanchez, the author of the Sanchez Response.

Defendant " Bodner seeks dismissal of the Complaint on the ground that she is immune from suit under the Communications Decency Act, 47 U.S.C § 230 "

RULE: "[T]he CDA grants immunity to a "provider or user of an interactive computer service" for "any information provided by another information content provider"—that is, information posted by someone else. See 47 U.S.C. § 230(c)"

ANALYSIS: "[B]ecause Sanchez, not Bodner, posted the Sanchez Response, the Court finds that the policy behind the CDA warrants blanketing Bodner with immunity under the CDA at least as to Plaintiff's defamation claim. See Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) (interpreting the CDA as having established "broad federal immunity"); see also Regions Bank v. Kaplan, No. 8:12-cv-1837-T-17MAP, 2013 WL 1193831, at *18 (M.D. Fla. Mar. 22, 2013) (stating that "[a] `provider' of an interactive computer service includes websites that host third-party generated content")."

CONCLUSION: Defendant Bodner Motion to Dismiss Granted

NOTE: Plaintiff attempts to defeat the § 230 immunity by arguing that "Bodner is not a passive host; instead she is a content provider due to her 'collaboration' with Defendants to further the Sanchez Response." The Court entertains this argument sufficiently to respond to and dispose of it. The Court states, "nothing in the Complaint can be read to ensnare Bodner in a scheme to perpetuate the Sanchez Response."

M'kay. This begs a big question. If Defendant Bodner did something to "perpetuate the Sanchez Response," would this abrogate the § 230 immunity? Fair Housing Council (9th Cir. 2008) establishes that, at the far end of the spectrum, where a defendant requires third parties to fill out fields on a form with answers that violate housing law, defendant has moved from host enjoying § 230 immunity to participant developing third parties' content. In this case, the Court recounts no authority for Plaintiff's argument nor does the Court cite authority when it disposes of said argument.

It makes one uneasy. "Perpetuating third party content" does not abrogate § 230 immunity. There is no caselaw that would support that. Sure, the Court is here giving a short answer to dispose of an argument. But the frontier of § 230 immunity is furiously contested. The frontier is identified as that land where defendant can be seen not just guiding a third-parties' hand, but forcing that hand into making statements as a condition for speaking. Playing the role of host, selecting content, promoting content, and dare say, "perpetuating" content, has not in and of itself given rise to liability.



Porter v. City of Port Orange, Dist. Court, MD Florida 2016

Bollaert :: "Designed to Solicit Illegal Content" Removes Sec. 230 Immunity #Nope

I like this case.  Every now and then a judge puts it just right.  47 USC s 230 immunity applies, except where a site is "designed to solicit illegal content."  The court states Defendant's "actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims."

Nice. Clean. Wrong.

Okay, before we unpack it, lets go to the videotape:

In 2012, 2013 and 2014, a number of individuals discovered that photographs of themselves, including nude photographs, as well as their names, hometowns, and social media addresses, had been posted without their permission on a Web site, UGotPosted.com. Most of the pictures were taken by or for former significant others or friends. Some of the pictures the victims had taken on their own phones or placed on personal webpages for private viewing by themselves or select others. Some had been taken while the victim was drugged and in a compromised state or otherwise unaware of the photographing. Victims received harassing and vulgar messages from strangers. Many of the victims contacted the Web site administrator at UGotPosted.com to try to get their photographs and information removed without success. ...The UGotPosted Web site contained a link to another Web site, ChangeMyReputation.com, where victims were told that for payment of a specified amount of money, their pictures and information would be taken down. Six of the victims paid money to an account on ChangeMyReputation.com to have their pictures removed from the Web site.

The People brought charges of extortion and unlawful use of personally identifying information.

Defendant claimed immunity under 47 USC s 230.

If you are familiar with the Roommates decision, you know where this is going. In Roommates, defendant created a website which had a survey with required questions and answers.  These required inquiries were used to create a customer's profile.  Unfortunately, some of those questions appeared to have violated the Fair Housing Act.  The court held that yeah, if you requiring that people answer questions with answers that you supplied, you have become an Information Content Provider and are liable for the content you created.

In this instance, the court found that the Defendant was pretty much doing the same thing: Defendant

created UGotPosted.com so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims' personal identifying information and violated their privacy rights.

The court then slips: Defendant's

Web site was "designed to solicit"  content that was unlawful, demonstrating that [Defendant's] actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity. 

Yeah.  No.  Careful.

The court has conflated two questions - and in some ways the conflation does not matter - but in some ways it is important to acknowledge and bloggers need things to quibble about. The two questions:  (A) Is defendant an Information Content Producer and thus does not fall under 230 immunity and (B) Is the content in question legally actionable.

Say it the opposite way.  The fact that "the content was unlawful" did not make Defendant an Information Content Producer.  The whole purpose to 230 is to protect Interactive Computer Services from the bad content created by third parties. Consistently, if a defendant created a perfectly legal survey with required questions and pre-concocted answers - but legal - defendant would still potentially be an Information Content Producer under Roommates and not fall under 230 immunity (there would just be no liability because the content was not actionable). 

Sec. 230 immunity is lost, pursuant to Roommates, not, because the site was designed to solicit unlawful content.  Sec. 230 immunity is lost, pursuant to Roommates, because

By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not `creat[e] or develop[]' the information `in whole or in part.'

Roommates p. 1166.  

Whether the content is illegal is a different question from whether defendant is immune.

People v. BOLLAERT, Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2016

In Which We Ponder Whether Sec. 230(c) is an Immunity or an Affirmative Defense; Evans v. HP

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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.

The Boundary Between Sec. 230 Immunity and Liability: Jones v. Dirty World Entertainment Recordings

Out in the wilderness of cyberspace is a boundary, marking the limits of Sec. 230 immunity. On the one side roams interactive services hosting third party content immune from liability for that third party content. On the other sides is the frontier, where interactive content hosts and creators meet, merge, and become one. Here host and author blend, collaborating to give rise to new creations. Hosts herd authors towards a potentially desolate land desecrated with insinuation, defamation, and slanderous allegations. Here, Sec. 230 has no power to protect. 

Photo by Ed Schipul, Flickr (cc)

We have been to the frontier before. The lead case unfolded in 2008: Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1164-65 (9th Cir. 2008) (en banc). Here, according to the court, third-party authors that wished to post to Roommates.com were required to fill out a questionnaire and were required to answer questions that were alleged to violate federal and state housing discrimination laws. Where the host requires third-parties to answer certain questions, and answer in ways that are problematic, "such acts constituted the 'creation or development of information' and thus made the site an 'information content provider' within the scope of 47 U.S.C. § 230(c) and (f)(3)." Both host and third-party are now potentially liable for the created content. 

Jones v. Dirty World Entertainment Recordings, LLC (Eastern District Kentucky Aug. 2013) is the latest case to explore the frontier, and this litigation has been explored through two trials.  From the first trial, we are informed that:

Defendant Dirty World, LLC operates, from its principal place of business in Arizona, an Internet web site known as "the dirty.com." This web site invites and publishes comments by individuals who visit the site, and defendant Hooman Karamian, a/k/a Nik Richie ("Richie"), responds to those posts and publishes his own comments on the subjects under discussion.

Plaintiff Sarah Jones is a citizen of Kentucky; a resident of Northern Kentucky; a teacher at Dixie Heights High School in Edgewood Kentucky; and a member of the Cincinnati BenGals, the cheerleading squad for the Cincinnati Bengals professional football team.

The conflicted ensued over comments posted to Defendant's website about plaintiff. 

[T]he evidence conclusively demonstrates that these postings and others like them were invited and encouraged by the defendants by using the name "Dirty.com" for the website and inciting the viewers of the site to form a loose organization dubbed "the Dirty Army," which was urged to have "a war mentality" against anyone who dared to object to having their character assassinated.

Specifically, defendant Richie added his own comments to the defamatory posts concerning plaintiff. For example, on December 7, 2009, a third-party posted, under a large photo of plaintiff:

Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals . . Most ppl see Sarah as a gorgeous cheerleader AND highschool teacher . . yes she's also a teacher . . but what most of you don't know is . . Her ex Nate . . cheated on her with over 50 girls in 4 yrs . . in that time he tested positive for Chlamydia Infection and Gonorrhea . . so im sure Sarah also has both . . whats worse is he brags about doing sarah in the gym . . football field . . her class room at the school she teaches at DIXIE Heights.

To this, Richie added his own tagline, in bold: "Why are all high school teachers freaks in the sack? — nik."  The tagline and original message appear on one page as a single story.

For the court, defendant's website has crossed into the frontier and is a participant in the content creation. Not only is defendant driving third-parties to make scandalous comments, defendant, by adding comments "effectively ratified and adopted the defamatory third-party post." According to the court, defendant continued to drive third parties by commenting: "I love how the DIRTY ARMY has war mentality;" "Never try to battle the DIRTY ARMY;" and "You dug your own grave here Sarah." The court concludes, defendant "played a significant role in 'developing' the offensive content such that he has no immunity under the CDA." 

There is a boundary between neutral host and content creator. When an interactive service traverses that boundary, the host potentially moves out from underneath the protection of Sec. 230 immunity. 

NJ Content Liability Law Ruled Inconsistent with Sec. 230 (just like a Washington Law and a Tennessee Law)

Unfortunate problems give rise to unfortunate solutions.

Back in a time before most members of Congress or prosecutors knew that there was an Internet, there was Prodigy. Prodigy, as part of its service, ran family-friendly chat rooms that it moderated in an effort to keep kids protected from unfortunate content. In a different Prodigy chat room, some unknown third party said something apparently bad about an investment firm Stratton-Oakmont. Stratton-Oakmont didn't like that very much, and sued. But not able to reach out and touch the third party, Stratton-Oakmont sued the intermediary Prodigy. The court observed Prodigy taking discretion with what could and could not be posted in the family-friendly chat room, and determined that Prodigy was acting in an editorial capacity, was a publisher, and was therefore responsible for all content published on its service - including the negative third-party comment about Stratton-Oakmont.

Parable of the Good Samaritan

Congress didn't like that very much. Congress had been warned that there was unfortunate content on the Internet. And Congress had been told that Prodigy, as a result of ifs efforts to make the Internet safer, was punished with liability. Congress was also told that it was next to impossible for online services to monitor the massive amounts of content that flowed through its pipes or is hosted on its servers. Therefore, Congress passed the Good Samaritan Provision, 47 U.S.C. § 230 (an amendment to the Communications Decency Act, which was in turn an amendment to the Telecommunications Act of 1996).

The Good Samaritan Provision established two principles: First, interactive online services (broadly defined) are not liable for third party content. Second, interactive services are not liable for actions taken to make the Internet safer. Sec. 230 has been wildly successful, has been described as the greatest Internet law, and as the necessary legal condition to make the interactive Internet possible (of course, back in the real good old day, when the communications network was not liable for the content it carried, this was a tenant of 'common carriage.').

Unfortunately, as Miss Texas Teen USA observed in 1998*, "There's a lot of weirdos on the Internet." The Attorneys' General job is to fight those weirdos and the unfortunate things they do. In order to promote their unfortunate behavior, weirdos place ads on services like Craiglist, Backpage, and other online advertisement services. The Attorneys General want this unfortunate activity stopped, and since they have trouble sometimes reaching out and touching those weirdos, the Attorneys General reach out and touch the intermediary online services. The Attorneys General have tried very hard to change the rules, to change Sec. 230, and to make online services liable for the unfortunate content of third-party weirdos, out of the belief that this will somehow make things better.

The Attorneys General reached out to state legislatures and convinced them that something needed to be done. And therefore several states passed laws that would make online services liable for third-party weirdo advertisements of unfortunate things. These states include Washington, Tennessee, and New Jersey. Online Services didn't like that very much - and sued.

The Attorneys General lost in Washington and they lost in Tennessee. And now the Attorneys General have lost in New Jersey. And they lost big. In Washington, Backpage.com sued and a temporary injunction was immediately granted. Its request for a permanent injunction was granted after a hearing. The state of Washington agreed not to pursue the matter further and agreed to pay Backpage.com's attorneys fees.

Tennessee passed similar legislation. Backpage.com again sued and again received an injunction. The trial court wrote

The Constitution tells us that when freedom of speech hangs in the balance—the state may not use a butcher knife on a problem that requires a scalpel to fix. Nor may a state enforce a law that flatly conflicts with federal law. Yet, this appears to be what the Tennessee legislature has done in passing the law at issue.

Tennessee agreed not to pursue the matter further and the entered into a final judgment invalidating the law.

But we're not done. In early 2013, New Jersey enacted legislation making a crime if

the person knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor;

This NJ law was modeled after the Washington law. And while the unfortunate content in question makes the heart cry of anyone who reads it, it does not mean that making interactive online services liable for the unfortunate content of third parties is coherent, feasible, effective, or consistent with the First Amendment.

Once again a federal court in Backpage.com v. John Jay Hoffman, Acting Attorney General of the State of New Jersey (D.N.J. Aug. 20, 2013) struck down the law. There are multiple problems with the NJ law.

First, when a state law and a federal law conflict, the federal law preempts the state law pursuant to the Constitution's Supremacy Clause. The state law would make interactive services liable for the content of third parties; the federal law 47 U.S.C. § 230 states that interactive services are not liable for third party content. The Federal law preempts the state law.

But there is a further Sec. 230 problem that the court highlights. Sec. 230 was designed to protect interactive services that seek to make their services safer. The NJ law would have made it a crime to knowingly publish unfortunate content. This creates an unintended and unwanted incentive on the part of interactive services to not know what they are publishing - or in other words, to take no steps toward making their services safe. Again, this is a conflict between the state law and the federal law, and the federal law trumps.

The NJ statute also runs afoul of the First Amendment. According to the First Amendment, to the extent that you actually can be liable for publishing content, you must knowingly publish that content. The statute as written, in addition to knowing publications, would make an online service liable if it, without knowledge, directly or indirectly, causes the content to be published, disseminated, or displayed. As Congress concluded with the passage of Sec. 230, interactive services have little ability to monitor, review, or know all the content that flows over, is hosted on, or is posted to their services. The NJ statute is unconstitutional to the extent that it would make interactive services liable for the posting of content of which they have no knowledge.

Second, the law is not the least restrictive means of achieving a compelling government interest (going after individuals engaged in abuse of children would be more effective and less restrictive, than indirectly going after intermediary communications services). Third, the NJ statute is filled with vague terms and overbroad requirements. Finally, the Court finds that the NJ statute would violate the Commerce Clause.

Unfortunate problems give rise to unfortunate solutions. Too often when confronted with unfortunate problems, those in authority feel that they must do "something," regardless of whether that "something" is such a good idea. Frequently the "something" is a thing that is immediate and visible, and gives a false sense of security. It gives the feeling that the government has acted, where in fact it has not - and it may have even made things worse.

There is no denying that there is darkness out there that needs to be confronted. But as Congress rightly determined almost 20 years ago, attacking communications intermediaries for third party content is not the solution.

No Virginia, You Have No Duty to Secure Your WiFi Access Point

Every now and again a report flies across the network about the police breaking down someone's door and attempting to arrest the home owner for bad things online - assuming that whatever happened from that person's Internet connection is their fault. Now their are lots of problems with this - lots of problems. But one of the big ones is that anyone can access an open access point; there is no way of knowing who did what at an open access point or ascribing that activity to the owner. And all the police have to do is pull out the WiFi device they probably have in their pocket to determine whether an access point is open or secured.

Stories such as this generally results in a flurry of phobic posts by friends warning each other to lock down their access points. This is not necessarily the right solution. There are lots of legitimate reasons for having an open access points - and the technology was specifically designed to permit open access points. The right solution would be for the legal community to mature in its comprehension that what transpires on an open access point cannot be ascribed to anyone.

A federal court in California recently considered the question of whether the owner of an access point has a duty to secure it. In AF HOLDINGS, LLC v. Doe, NDCA 2012, plaintiff sued John Doe for illegally downloading plaintiff's copyright protected video, and sued Defendant Hatfield for Defendant's negligent failure to secure the access point.

Okay first year law students, what are the elements of negligence? Duty, breach, cause, and damage. Does Defendant have a duty to Plaintiff? 

Plaintiff is arguing that Defendant failed to act - failed to secure his network. A failure to act is called "non-feasance." To have a duty that is breached by inaction, says the court, requires Defendant to have a special relationship to Plaintiff. Or, to say it another way, you are not required to be a Good Samaritan - you are not required to act - unless there is a special relationship. The court states

Plaintiff has not articulated any basis for imposing on Defendant a legal duty to prevent the infringement of Plaintiff's copyrighted works, and the court is aware of none. Defendant is not alleged to have any special relationship with Plaintiff that would give rise to a duty to protect Plaintiff's copyrights, and is also not alleged to have engaged in any misfeasance by which he created a risk of peril.

The allegations in the complaint are general assertions that in failing to take action to "secure" access to his Internet connection, Defendant failed to protect Plaintiffs from harm. Thus, the complaint plainly alleges that Defendant's supposed liability is based on his failure to take particular actions, and not on the taking of any affirmative actions. This allegation of non-feasance cannot support a claim of negligence in the absence of facts showing the existence of a special relationship.

It aint Defendant's job (or anyone else for that matter) to protect Plaintiff's copyrights.

The court further notes that Plaintiff has attempted to recharacterize a copyright claim as a negligence claim. Such attempts to recharacterize copyright claims are preempted by the copyright act. Either someone is liable under the copyright act or not; recharacterizing such a claim as negligence doesnt work.

Finally, Defendant argues that he is immune from liability pursuant to 47 USC 230, the Good Samaritan Provision of the Communications Decency Act, which states that no provider of an interactive computer service shall be liable for the actions of a third party. In this case, Defendant arguably was a provider of Internet service to John Doe - the alleged downloader - and is not liable for whatever John Doe might have done. The court appeared persuaded by this argument, but concluded that since there was no negligence cause of action, and since the negligence cause of action was preempted, it was unnecessary to rule on the question of Sec. 230 immunity.

In short, according to this court:

• No duty to secure a WiFi access point;
• Any claim of breach of such duty resulting in copyright infringement would be preempted by copyright law; and
• Any attempt to impose liability on the WiFi access point owner would likely be defeated by Sec. 230 immunity.

Of course, there are good reasons to secure your WiFi access point. For one thing, it encrypts your communications from your computer to your WiFi access point, protecting against main-in-the-middle attacks or someone intercepting your communications. The Federal Trade Commission's Onguard Online project provides some helpful advice.

Asia Econ Inst v Xcentric :: Sec 230(c) defense successful (again)

Asia Economic Institute v. Ventures LLC, et al. Case No. CV 10-01360 SVW (PJWx). United States District Court, C.D. California. May 4, 2011.

Background: Plaintiff filed multiple claims against defendant dba RipOffReport based on unfavorable reports written by third parties on Defendants website. See sample Asia Economic Institute reviews on RipOffReport.

Procedure: Defendant's Motion for Summary Judgment based on Communication Decency Act's Good Samaritan Provision, 47 USC 230(c) Immunity

Issue: 47 USC 230(c) provides immunity for online services where the online service is not the author of the content. Specifically, Sec 230(c) provides that "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). Further, "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(e)(3).

Def, who runs a website hosting third party reviews, has repeated been found to be a provider of interactive computer services, and immune from liability.

The reviews in question were written by third parties without involvement of the defendant. Minor style guide recommendations, insertion of tags and codes does not alter def as not the publisher of the content. The insertion of tags serves to promote online visibility of content and does not alter defendants status (citing Roomates.com in accord).

"In determining which of Plaintiffs' claims should be barred by the CDA, the CDA should be given the expansive reading that Congress intended. See 47 U.S.C. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.")."

Holding: Def Motion for Summary Judgment Granted; Case Dismissed pursuant to 47 USC 230(c)

ReTweet ReLawsuit? Novins v. Cannon, Civ. No. 09-5354 (DNJ April 27, 2010)

I am grateful for the new Web 3.0 era of Facebook and Twitter. I am grateful because my email inbox is no longer filled with stupid crap that my friends were constantly forwarding. I think that's why so many old folk like Facebook and Twitter – it is the institutionalization of forwarding crap. All those old jokes and hoaxes and puppies needing adoption and cancer patients in England who wish to be sent letters – that has all migrated to Facebook posts and Tweets. And instead of getting forwarded half of a billion times, now it gets retweeted. And now my email inbox is merely filled with offers of money making opportunities.

Which brings us to today's question: What happens when I retweet (forward, repost, whatever) a post which is defamatory? Sec. 230, the Good Samaritan Act, protects internet hosts which host content written by someone else that is defamatory. The internet host does not become a publisher of the content just by merit of hosting it (much in the same way that the telephone network does not become a publisher by transmitting defamatory statements, or the postal service does not become a publisher merely by delivering a defamatory message). What happens when I receive a message, written by someone else, that might be defamatory (regardless of whether I know it or not), and I forward it, retweet it, or repost it. And what if, hypothetically speaking, my last name is Cannon. Today's story involves just such a saga.

As always, in our review, the names have been changed – largely 'cause we never like to hear about anyone named "Cannon" being a defendant – and the story has been reformatted to fit your screen.

The facts of this case are relatively simple. Defendant Gilligan allegedly wrote a post that allegedly stated that Plaintiff Thurston Howell hires drug addicts, his clients suffer identity thefts, and that Plaintiff is mentally ill. Gilligan sent this message to Mary Ann, Ginger, and Skipper, who forwarded on to three friends (and so on and so on). Thurston Howell took his coconut satellite phone that the Professor had made for him, and used it to immediately call his attorney who was on retainer. The attorney sued everyone in sight for publication of a defamatory message about Thurston. The cause of action for defamation falls not only on those who voice the defamatory utterances, but also those who might then dare to "publish" those utterances.

Before the District Court in New Jersey (yes, somehow although our castaways are stranded in an island in the south Pacific, their case is heard in Jersey – makes sense doesn’t it?) is a motion to dismiss by defendants. In a Rule 12(b)(6) Motion to Dismiss, defendants argue that taken the alleged facts in light most favorable to Plaintiff, Plaintiff still has stated nothing that adds up to a legal cause of action.

The Court made quick work of this. Normally Sec. 230 protection is discussed in the context of the protection of a web host, such as a review site where a third party has posted a negative comment about a plaintiff. This case does not involve a host but instead "users of an interactive service." As Sec. 230(c)(1) states, "[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." The Court affirms the well established principle that potential liability for third party content falls upon the third party, and not on others on the Internet.

Plaintiffs' allegations in this case—as against all of the defendants other than Gilligan —are very similar to the situation where a person operates a website that displays other people's comments. Defendants are alleged to have republished a defamatory web posting or email originally authored by Gilligan. As multiple courts have accepted, there is no relevant distinction between a user who knowingly allows content to be posted to a website he or she controls and a user who takes affirmative steps to republish another person's content; CDA immunity applies to both. As the Ninth Circuit aptly noted in Batzel v. Smith, "The scope of immunity cannot turn on whether the publisher approaches the selection process as one of inclusion or removal, as the difference is one of method or degree, not substance." Similarly, it does not matter how Defendants republished the alleged defamatory statements—whether by email, website post, or some other method. The point is that all the Defendants in this case—with the exception of Gilligan—acted as re-publishers of another person's information, and as such they are protected by the CDA.

Retweet, repost, forward – it's all the same. According to this Court, you are not a publisher and therefore not liable for third party content. The cause of action as against everyone – but Gilligan the author – gets the boot.

Let's see what today's lesson is: "Wheel of Morality, turn, turn, turn - Tell us what lesson we should learn." [Whirl, Click, Click, Clock]: Skipper's real name was Jonas Grumby! That might explain why they got ship wrecked.

[Disclaimer]

Caselaw Construing 47 USC 230 Immunity is Surprisingly Scant

At least according to one Arizona Superior Court: Children of America v. Magedson, CV 2007-003720 (AR Superior Court Oct. 31, 2007).

The court's order itself is "surprisingly scant," thus we know little of the facts surrounding this case. What we do know is that once again it involves Ripoffreport.com. Jinkees! The Sec. 230 caselaw for this one defendant is surprisingly robust. Ripoffreport.com must have some well paid attorney on retainer that does little more than mash the print button for the proforma Sec. 230 Motion to Dismiss form... merely taking a bit of time to scrawl in the name of the latest plaintiff.

Of course, if the court's law clerks are too busy researching water rights cases, we are glad to refer them to our "surprisingly scant" list of Sec. 230 cases.

Anyway, we here at Cybertelecom are likewise into automation and have developed our proforma blog post for these Ripoffreport.com cases. Here it is:

Some plaintiff [FILL IN BLANK] got irked by what some disgruntled third party wrote about them at Ripoffreport.com. Ripoffreport.com "is a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals." Ripoffreport.com did not write the disgruntled comment. Ripoffreport.com filed a Rule 12(b)(6) Motion to Dismiss pursuant to 47 USC § 230. The Court granted the motion and dismissed the complaint as against defendant Ripoffreport.com.

Of course it never goes proforma, does it.

Plaintiff apparently alleged that Ripoffreport.com either edited or authored the headline of the disgruntled comment - and that headline could be actionable. The court has to take the facts as alleged by plaintiff as true for a motion to dismiss (the court is merely deciding whether there is a potential claim for which relief can be granted -- it is not deciding the merits of the case as to whether in fact relief should be granted - it's like if I sued you in court for being short - while this may be true, it is not a cause of action for which relief can be granted). Therefore the court dismisses the complaint against Ripoffreport for the disgruntled third party comment, but denies the motion to dismiss with regard to the headline. But the Court made clear, if plaintiff cant prove that Ripoffreport authored the disgruntled headline, then plaintiff will face pretty much the same outcome as the rest of the complaint.

So what's cool about all this. I go looking at Ripoffreport.com for a bit of deep research in preparation for this post, and I find a page entitled Want to Sue Ripoff Report? The page states:

If you are considering suing Ripoff Report because of a report which you claim is defamatory, you should be aware that to date, Ripoff Report has never lost such a case. This is because of a federal law called the Communications Decency Act or "CDA", 47 U.S.C. § 230. Because this important law is not well known, we want to take a moment to explain the law, and to also explain that the filing of frivolous lawsuits can have serious consequences for those who file them, both parties and their attorneys. The CDA is part of our federal laws.An excellent Wikipedia article discussing the history of the law can be found here. In short, the CDA provides that when a user writes and posts material on a website such as Ripoff Report, the site itself cannot, in most cases, be held legally responsible for the posted material.

Do the plaintiff's in these cases get to file RipoffReport.com disgruntled comments about their attorneys who advised them to file these pointless complaints?