GoDaddy Gets 230 Defense for Web Hosting–Kruska v. Perverted Justice Foundation

July 17, 2008 · by · in Derivative Liability, Trademark

By Eric Goldman

Kruska v. Perverted Justice Foundation Inc., 2008 WL 2705377 (D. Ariz. July 9, 2008). The CMLP page with lots of source material.

GoDaddy allegedly hosted some third party websites that said some not-nice things about Kruska (calling her a convicted child abuser, a convicted child molester and a pedophile). Kruska brought a pro se lawsuit against (among other defendants) GoDaddy for hosting the websites. This is squarely in 47 USC 230’s sweet spot, and the court notes that “this immunity has proved nearly limitless.” Claims dismissed.

More unusual is the court’s decision to dismiss a 43(a) Lanham Act claim per 230. The opinion isn’t very clear in its discussion (and maybe I missed them in my quick review, but I don’t see a 43(a) claim in the two complaints posted on the CMLP page), but I infer her claim is that GoDaddy puts its logo on pages hosted by it and therefore is confusing consumers about the source of the page. The court might have simply dismissed Kruska’s claim for lack of standing, but instead refers to 230 in dismissing this claim. I don’t believe Kruska was claiming trademarks in her own name (not that it would have improved her odds), but a federal trademark infringement claim is clearly not preempted by 230. Otherwise, I think it’s an open question about whether the false advertising parts of 43(a) are preempted by 230. See my slides recapping some of the developments through April. See also Rebecca’s blog post trying to sort through the 43(a)/230 interplay in a different case.

As I’ve now said repeatedly, the interaction between 230 and a website’s marketing activities is increasingly unclear and maybe reaching a point of incoherence, and this case certainly doesn’t reduce our befuddlement.