Doe v. MySpace–Same Case Name, Different Plaintiff, Same Result

June 1, 2009 · by · in Derivative Liability

By Eric Goldman

Doe IX v. MySpace, Inc., 2009 WL 1457170 (E.D. Tex. May 22, 2009). The Justia page.

This is yet another lawsuit involving an underage sexual assault where MySpace mediated some communications between abuser and victim. The flagship decision involving this fact pattern is Doe v. MySpace, a Fifth Circuit case granting an unambiguous win to MySpace per 47 USC 230. We’re up to Doe IX v. MySpace, but the results are no different; and this case gets quickly tossed per 230 as well.

Knowing it had to overcome the 230 immunization, Doe IX tried two arguments. First, the plaintiff argues that MySpace had a duty to police its premises. However, this exact argument was addressed and soundly rejected by the Fifth Circuit, and it’s easily dismissed.

Second, the plaintiff argued a Roommates.com-style attack, saying that MySpace was an information content provider because it allowed users to build a structured profile (and even converted user-supplied birthdays to corresponding zodiac symbols) and allowed other users to browse and search these profiles by defined attributes. The court rejects these arguments as well, construing Roommates.com as applicable only when the service provider mandates the completion of the profiles. MySpace made users’ completion of the profiles voluntarily, thus (according to the court) rendering Roommates.com inapplicable.

As Tom O’Toole notes, this is yet another case where Roommates.com was cited in favor of the defendant. I think the citation count is even more stacked for the defendant than he indicates, though–I am aware of at least seven cases doing so, compared to only one case where Roommate.com was cited for the plaintiff. My census:

Roommates.com Cited for Defense: GW Equity v. Xcentric, Best Western v. Furber, Goddard v. Google, Joyner v. Lazzareschi, Atlantic Records v. Project Playlist, Barnes v. Yahoo (note: although the case was a partial loss for the defendant, the Roommates.com discussion came in the defense-favorable part) and this opinion

Roommates.com Cited for Plaintiff: NPS v. StubHub

Irrespective of the exact count, I fully agree with Tom’s conclusion: “it’s fair to say that while Roommates.com was a loss for one particular online publisher, it is causing very few problems for the rest of the Web.”