Humane Society Barks at the Wrong Defendant–Humane Society v. Amazon

By Eric Goldman

The Humane Society of the United States v. (DC Superior Ct complaint filed February 8, 2007)

I’m going to start this post with two (relatively uncharacteristic for me) moralistic assertions that I think are largely beyond serious debate:

Proposition #1: dogfighting and cockfighting (and other types of animal fighting) are sadistic and disgusting “sports” that have no place in our society. I support laws prohibiting these activities to protect the unwilling animal victims of this sadism, and I further enthusiastically support the efforts of organizations like the Humane Society that attempt to shut down the purveyors of dogfighting and cockfighting.

Proposition #2: I think it’s disgusting that Amazon carries magazines and videos supporting the dogfighting and cockfighting “industry.” If I owned Amazon, I would drop those media products as a matter of principle, no matter how profitable (in fact, I doubt it’s very profitable). I don’t think a faux “free speech” justification for adding this to the magazine line really works here. Amazon exercises its right to speak by deciding what to carry; it has no compulsion to carry these media products, and it can and should choose not to do so.

But I am also very, very frustrated by plaintiffs who just don’t “get” 47 USC 230, so let’s reiterate (yet again) Cyberlaw 101. It’s not that complicated. Because of 47 USC 230, Amazon isn’t liable for third party content, PERIOD, unless it involves IP, the ECPA or federal criminal law. It’s really that simple. Yet, it seems like plaintiff after plaintiff must personally experience the ritual first-hand–plaintiff files complaint against Internet company for third party content, defendant files motion to dismiss, judge hands out emphatic loss. Why must plaintiffs go through this doomed dance? Why, why, WHY?

It’s particularly heartbreaking to see the Humane Society tee itself up for a resounding failure because it detracts mightily from its otherwise important and sad story. The Humane Society has launched an ambitious campaign against various providers of media catering to dogfighting and cockfighting clientele. Good for the Humane Society! I hope they succeed wildly. But, in a baffling display of legal ignorance, they also sued Amazon for selling the media, both for selling magazine subscriptions and for enabling merchants to advertise videos in its marketplace. WRONG, WRONG, WRONG. Amazon’s behavior here is fully covered by 47 USC 230, just like eBay is fully protected for auctions on its site. See, e.g., Gentry v. eBay (sale of fake sports memorabilia); Stoner v. eBay (sale of bootleg recordings).

Specifically, the Humane Society claimed violations of DC’s consumer protection law based on violations of various federal laws. These claims are preempted as a “state” law. The Humane Society can’t salvage the claims by asserting they are derived from federal criminal law; a civil claim based on a federal criminal law is still preempted by 47 USC 230. See Doe v. Bates.

It appears that the Humane Society is trying to get around this in part by claiming that Amazon is the merchant of record, so Amazon can’t claim that the media products are really third party content. I might be more sympathetic to this argument if Amazon took possession of the media products and sold them from its inventory for its own account. However, it appears that Amazon is just an ordering front for the magazine, which is fulfilled directly by the publisher, and with respect to the videos, these appear to be merchant listings delivered directly from the merchant to the buyer. It appears that Amazon is just the cheese in the sandwich, much like eBay. Therefore, I think it would be disingenuous to characterize Amazon as the seller.

The Humane Society also claimed violations of DC’s consumer protection laws based on misrepresentations (basically, saying the magazine/video content is legal, when it isn’t). I’m not sure the facts even support this claim; but if they do, I think these claims are also generally preempted by 47 USC 230 when based on third party content (although I don’t think John O. agrees).

News reports have also indicated that the Humane Society is trying to get state prosecutors to bring a civil enforcement action against Amazon. These, too, are preempted by 47 USC 230. Therefore, despite the multi-pronged legal attack against Amazon, all of the prongs look destined for failure.

While I’m sad that the Humane Society didn’t do its legal homework, I want to reiterate my Proposition #2. Amazon should voluntarily drop the magazines and wipe the videos off its site–not to minimize its own legal liability, but because the content of those media products is probably illegal and because it’s the right thing to do. Until Amazon makes this choice, I will think less (a LOT less) of its brand.