April 05, 2011
Online Booksellers Get 47 USC 230 Immunity for Publisher-Supplied Marketing Collateral--Parisi v. Sinclair
By Eric Goldman
Sinclair self-published a book that Parisi believes defamed him. The book showed up in Books-a-Million, B&N and Amazon. All of the retailers published an allegedly defamatory promotional statement supplied by the "publisher" (in this case, the author). In B&N and Amazon's cases, it appears that Sinclair's self-publication venue, Lightening Source, supplied a data feed that they used to automatically build a display page containing the allegedly defamatory statement.
With respect to the publisher-supplied promotional statement, the online booksellers claimed 47 USC 230 immunity. This proves to be an easy case because the online booksellers simply republished the third party-supplied content. The court explicitly rejected an argument that Books-a-Million "adopted" the publisher's collateral as its own. This is consistent with the uncited Black v. Google opinion. The court also explicitly granted Books-a-Million's 12(b)(6) motion to dismiss, saying that was appropriate when the immunity is apparent on the complaint's face, as it was here. (B&N and Amazon brought summary judgment motions).
Despite this being an easy 230 case, the court delineates two 47 USC 230 boundaries. First, it refuses to embrace the Perfect 10 v. ccBill conclusion that 230 preempts state IP claims, but it doesn't accept the alternative proposition (from the Project Playlist and Friendfinder cases) either. Instead, it dismisses the false light claim (which the court liberally construed as a publicity rights claim) on newsworthiness grounds.
Second, in FN3, the court says that B&N and Amazon can't claim 47 USC 230 immunity for the online sale of physical books delivered in realspace. The court distinguishes the republication of marketing collateral, which are covered by 230, from sale and delivery of the physical books themselves, which are not. This seems like a sensible distinction. Even though 230 immunizes offline conduct when the claim is based on online communications (see, e.g., Doe v. MySpace), offline deliveries of tortious material by the defendant should be outside the scope of 230. For more on this, see the uncited Curran v. Amazon.com case. The court suggests that a Kindle sale--where the online retailer sells third party materials but delivers them electronically--would also drop out of 230's protection. This is consistent with the uncited the Accusearch case, although I personally think 230 can apply in that situation.
Even though 230 isn't availing for the book sales themselves, the booksellers exit the case because they lacked the required actual malice.
Despite the two 230 limits identified by the court, this case is a good 230 win for the defense. Among other things, it reminds us that online retailers are fully eligible for 47 USC 230's immunity if they meet the requisite elements. Also, at our 230 retrospective, Kai Falkenberg of Forbes expressed a worry that this case may require online publishers to clearly demarcate their content from third party content. As it turns out, the consumers' perceived source of the allegedly defamatory content didn't come up in the court's discussion.
TrackBack URL for this entry: