eBay Gets 47 USC 230 Dismissal of Products Liability Claim–Inman v. Technicolor

By Eric Goldman

Inman v. Technicolor USA, Inc., 2011 WL 5829024 (W.D. Pa. Nov. 18, 2011)

Today, I’m thankful for 47 USC 230. Whenever I think about it, I am still incredulous the law is on the books. Nowadays, Congress’ agenda is bulging with proposals from rent-seeking monopolists seeking to break the Internet with the hope of goosing their short-run profits. But 15 years ago, Congress shockingly found a way to foster a new multi-billion dollar UGC industry by restricting lawyers rather than empowering them. And the benefits of the UGC industry make my life better every single day. So thank you to Congress and the foresighted members who recognized that they could do some good with a strong immunity. For more on the history of 47 USC 230 and how it helps today, see the materials we produced from our 15 year anniversary party for 47 USC 230 back in March.

What better way to give thanks for 47 USC 230 than to discuss a case where the 230 immunity got it right. Today’s case involves vacuum tubes that contain mercury, some of which third party merchants resold on eBay. Inman, the plainitff, allegedly bought these vacuum tubes and contracted mercury poisoning. He sued nearly two dozen defendants, including eBay, under product liability theories.

eBay defended on several grounds, but I’ll focus on 47 USC 230. This is a really easy 230 case; the immunity says eBay can’t be liable for what its merchants sell, and the court has little difficulty getting to that point. The court concludes:

the CDA protects eBay from liability for Tube Zone’s tortious activity in this case. Inman does not appear to dispute that eBay is an interactive computer service, as defined by 47 U.S.C. ยง 230(f)(2), or that Tube Zone is not affiliated with eBay beyond its use of eBay’s website. It is true that Inman was injured by tortious conduct. However, whether information disseminated through a website results in a tortious act has no effect on immunity under the CDA. Like the malicious program in Green and the gun sale in Gibson, the alleged sale of vacuum tubes in this case was facilitated by communication for which eBay may not be held liable under the CDA. Therefore, to the extent Inman seeks to hold eBay liable for Tube Zone’s tortious conduct, eBay is immune.

A number of prior cases have dealt, expressly or implicitly, with an attempted products liability workaround to 230’s immunity. For example, Gibson v. Craigslist dealt with a criminal who bought a gun via Craigslist; and Doe v. MySpace dealt with a “premises liability” type claim. Neither claim made any headway against the 230 immunity. This case also cites some older precedent on the same track, including Green v. AOL, Stoner v. eBay and Gentry v. eBay. However, I think this is the cleanest opinion rejecting a products liability attack on 230’s immunity.

The only sour note is that the court dismisses eBay without prejudice, so the plaintiff will get another opportunity to fail before 230 slams the door shut permanently.

This case is a prime example of why 47 USC 230 works so well. If eBay was liable under a product liability theory for every product sold in its marketplace, the potential liability would be enormous–eBay can’t inspect the goods its merchants sell, eBay merchants sells millions of unique goods, and who knows which goods will harm victims in what way. eBay could act as the ultimate insurer of all of these harms, but only at extreme cost; and requiring that level of insurance would erect enormous barriers to entry and suppress any possibility of innovation. Meanwhile, there are plenty of other defendants for a claim like this, starting with the manufacturers who put mercury into their vacuum tubes. So making eBay an additional defendant does little to help plaintiffs but would subtract a lot from our economy. Avoiding outcomes like that satisfies me even more than a (faux) turkey dinner. Happy Thanksgiving!