Lycos Not Liable for Objectionable Message Board Posting–Universal Communication Systems v. Lycos
By Eric Goldman
Universal Communication Systems, Inc. v. Lycos, Inc., 2007 WL 549111 (1st Cir. Feb. 23, 2007)
47 USC 230
Just last week, I said that we no longer see lawsuits where plaintiffs sue a message board provider for users’ messages because everyone (except maybe pro se plaintiffs) have gotten the message that 47 USC 230 squarely preempts such lawsuits. Then, bam!–the next day, I learn that the First Circuit has just issued an opinion on precisely those facts. (In my defense, this case has bounced around the courts for a few years.)
In this case, some users of the Raging Bull website went after the plaintiff and its president. In response, the plaintiffs sued Lycos for operating Raging Bull, but the court had none of it per 47 USC 230. As the court says:
we have no trouble finding that Lycos’s conduct in operating the Raging Bull web site fits comfortably within the immunity intended by Congress. In particular: (1) web site operators, such as Lycos, are “provider[s] … of an interactive computer service”; (2) message board postings do not cease to be “information provided by another information content provider” merely because the “construct and operation” of the web site might have some influence on the content of the postings; and (3) immunity extends beyond publisher liability in defamation law to cover any claim that would treat Lycos “as the publisher.” [including, in this case, claims under Florida's securities laws and cyberstalking law]
To get around 230, the plaintiffs–analogizing to Grokster–argued that 230 doesn’t cover a website’s active inducement of its users to engage in illegal behavior (the plaintiff borrows the phrase “culpable assistance” from Doe v. GTE). The court didn’t reject this argument outright but instead pointed out that the plaintiffs’ pleadings don’t allege anything more than the standard operation of a message board, so the pleaded facts don’t support the assertion that Lycos made any such inducement or culpable assistance. See further discussion on this point from Thomas O’Toole. Further, the court rejected the plaintiff’s request for discovery about Lycos’ “construct and operation” of its website, saying that 230 protects Lycos’ construction of a standard message board, and it wasn’t going to sanction a fishing expedition for more concrete evidence of Lycos’ encouragement of its users. (For another example of a court rejecting discovery requests in the face of a 230 defense, see Doe v. Bates).
The few blogs that have picked up on this case have not mentioned its trademark aspects, but IMO the trademark ruling may be the more interesting part. The plaintiffs also alleged that the message board discussion diluted their trademark under Florida’s anti-dilution statute. The court correctly noted that 47 USC 230 doesn’t preempt the trademark dilution claim. Nevertheless, the court rejected the claim because any harm to the trademark was based on critical commentary, and the First Amendment limits the scope of dilution claims to avoid chilling such criticism.
The court also rejects the plaintiffs’ claim that Lycos made a commercial use of its trademark. Lycos displays ads on the message board pages, but the court said that Lycos’ use is still non-commercial. Instead, the use is what I characterize as “commercial referential use” (I have a blog post coming on this very soon), saying that “Lycos is not using the ‘UCSY’ trade name ‘on’ a product (or business) at all, but is simply referring to the existing company that has adopted that trade name.” Therefore, even though Lycos is a for-profit business displaying advertising on top of content that references the plaintiff’s trademark, Lycos still isn’t making a commercial use of the trademark.
This is an important defense win for at least two reasons. First, I believe that this is the first 1st Circuit case interpreting 47 USC 230. The First Circuit now joins such important authorities as the Third Circuit, Fourth Circuit, Ninth Circuit, Tenth Circuit, the California Supreme Court and the Florida Supreme Court in broadly construing 47 USC 230. No circuit has reached a contrary result, although the Seventh Circuit and Eleventh Circuit have expressed some discomfort with expansive interpretations of 47 USC 230.
Second, the court smartly constrained trademark law from automatically inhibiting the creation of a venue for user comments about a trademark. We need more cases like this to say that merely talking about a trademark in an ad-supported context is outside trademark law’s reach.