Barnes v. Yahoo Survives Dismissal Motion on Remand

December 17, 2009 · by Eric Goldman · in Derivative Liability, Licensing/Contracts

By Eric Goldman

Barnes v. Yahoo!, Inc., 2009 WL 4823840 (D. Or. Dec. 11, 2009)

You recall Barnes v. Yahoo, the case where Yahoo promised to promptly take down a fake profile created by a third party but didn’t do so. The district court initially dismissed the case on 47 USC 230 grounds, but the Ninth Circuit reversed in an opinion that stirred up some trouble due to its sloppy 230 discussion. The Ninth Circuit subsequently fixed its worst excesses in an amended opinion and sent the case back to the district court with a revived promissory estoppel claim. Following that ruling, Barnes amended her complaint and Yahoo sought to dismiss it.

The district court opinion addresses three points:

1) The Ninth Circuit had not validated Barnes’ promissory estoppel claim but only concluded that a 230(c)(1) defense wasn’t available.

2) Barnes sufficiently alleged reliance when she diffused the media coverage of her story based on Yahoo’s takedown promise.

3) Barnes sufficiently alleged that she detrimentally changed her position due to Yahoo’s promise because the fake profiles were online longer.

I am a little surprised to see Yahoo even try the motion to dismiss. I think this case is a great candidate for settlement.

The case library:

* Amended Ninth Circuit Opinion

* Barnes’ petition for rehearing

* Public Citizen et al amicus brief in support of rehearing

* Yahoo’s petition for rehearing

* Ninth Circuit opinion and my blog post on it

* Ninth Circuit oral arguments