Online Forum Operator Gets Easy 47 USC 230 Win–Two Plus Two v. Jacknames

By Eric Goldman

Two Plus Two Publishing LLC v., 2010 WL 4281791 (D. Nev. Sept. 30, 2010). The complaint. Steve Green’s writeup of the initial complaint filing.

This one just showed up in my Westlaw queue. It looks like a cyberlaw brawl is going down in the poker community. Get a sense of the discussion here. That thread suggests this may be one of those lawsuits that makes no sense whatsoever.

Two Plus Two publishes poker-related content and runs (among other things) a poker-themed discussion forum. Jacknames and its principal Boyd appear to provide a variety of Internet services (hosting, registrar, domain name auction) to online poker-oriented businesses. Two Plus Two accused Jacknames of cybersquatting on the name Jacknames countersued Two Plus Two for defamation and related torts based on user postings to the Two Plus Two online forum. This counterclaim was completely unmeritorious, and the court requires only 2 sentences to apply 230:

In this case, Boyd has alleged that the content was provided by unnamed parties on the Forums. Therefore, Plaintiff is immune from liability for Boyd’s causes of action for defamation and intentional infliction of emotional distress.

Two other small points of note:

* Boyd claims to have registered the domain name in question in 2004, but the plaintiff didn’t initiate the lawsuit until 2009. Boyd claimed laches, but the court credits the plaintiff’s assertion that it didn’t actually learn about the domain name until 2009, after which it sued within 5 months. I’d have to do some research on the appropriate starting point for an ACPA statute of limitations, but if the ACPA problem was registration of the domain name, it seems odd to see a lawsuit brought 5 years after registration.

* In the same paragraph where it acknowledges the 230 immunity, the court says:

Plaintiff incorrectly argues that the Digital Millenium Copyright Act (“DMCA”) provides a safe harbor provision for internet content providers and Plaintiff is essentially immune from suit on these causes of action. The DMCA only covers alleged acts of copyright infringement, not the defamatory statements at issue here.

Normally in a low-stakes dispute like this, I would brush off the doctrinal mistake as the product of typical lay person legal misunderstandings. However, the Westlaw report lists the national powerhouse law firm of Greenberg Traurig as plaintiff’s counsel. Did they really make such an obvious mistake? Or were they trying to make some exceptionally clever argument? Hmm…

[Note: I will blog another 230 case, Swift v. Zynga, soon.]