2H 2019 and Q1 2020 Quick Links, Part 4 (Section 230)

* Clarks v. Private Money Goldmine, 2020 WL 949946 (D. Md. Feb. 26, 2020):

Plaintiff does contend, however, that Website Defendants are also content providers, and therefore not entitled to immunity in this case, because they published the Listing, provided advice on how to communicate with the prospective lenders, and disguised themselves as prospective lenders to perpetrate the fraudulent preliminary payment scheme. The Court disagrees.

First, the Amended Complaint is devoid of any factual enhancements demonstrating that Website Defendants disguised themselves as prospective lenders or otherwise published any original information about prospective lenders in the Listing that was not originally provided by the prospective lenders themselves. Such conclusory statements are not sufficient to plausibly plead that Website Defendants are internet content providers with respect to the Listing. Without these bare assertions, the allegations in the Amended Complaint demonstrate only that Website Defendants are the parties that “merely enable[ ]” the prospective lenders to post their information online. This is exactly the type of conduct that § 230 immunity is intended to protect.  Moreover, although Plaintiff is correct that Website Defendants do publish original content in the form of advice and instructions, the Amended Complaint contains no allegations that this content was unlawful or caused any harm to Plaintiff. Thus, even viewing the Amended Complaint in the light most favorable to Plaintiff, it plausibly alleges only that Website Defendants are service providers. They are therefore entitled to immunity under § 230 of the CDA and the state-law claims against them must also be dismissed on this basis

* Inventel Products, LLC v. Li, 2019 U.S. Dist. LEXIS 175943 (D.N.J. Oct. 10, 2019):

Invenlel seeks to hold Google liable for the Li Defendants’ publication of infringing materials-thus treating Google as the publisher or speaker. Third, the Li Defendants provided the actual information at issue.

InvenTel’s counterarguments are inapposite. While the CDA does not limit laws pertaining to intellectual property, 47 USC §230(e)(2), the CFA is not an intellectual property statute, see N.J.S. § 56:8-2 (banning use of improper business practices). Further, while the CFA is not “construed to prevent any State from enforcing any State law that is consistent with this section,” it also is explicit that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with [the CDA]. 47 USC §230(e)(3). The New Jersey CFA claim here would be inconsistent with the immunity provided under the CDA. Therefore, the CFA claim is DISMISSED.

* Igbonwa v. Facebook, Inc, 2019 WL 6327234 (9th Cir. Nov. 26, 2019):

The district court properly dismissed Igbonwa’s negligence, defamation, and discrimination claims as barred by Section 230 of the Communications Decency Act because interactive computer service providers are immune under the Act from civil liability from claims premised upon the provider’s role as “the publisher or speaker of any information provided by another information content provider.” Dismissal of Igbonwa’s breach of contract claim was proper because Igbonwa failed to allege facts sufficient to show that defendants violated any provision in the Terms of Service.”

* Sen v. Amazon.com, Inc., 2020 WL 708701 (9th Cir. Feb. 12, 2020):

The district court properly granted summary judgment on Sen’s Lanham Act claims based on the third-party review posted on defendant’s website because Sen’s claims are barred by the nominative fair use doctrine. See Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171, 1175-76 (9th Cir. 2010) (setting forth elements of doctrine and noting doctrine can apply “where a defendant uses the mark to refer to the trademarked good itself”).

The district court properly granted summary judgment on Sen’s claim for tortious interference with prospective and actual business relations, and interference with an economic advantage, based on the third-party review posted on defendant’s website. The Communications Decency Act (“CDA”) provides immunity from liability if a claim “inherently requires the court to treat the defendant as the ‘publisher or speaker’ of content provided by another.” Sen failed to raise a genuine dispute of material fact as to whether defendant is not a “publisher or speaker” of content within the meaning of the CDA.

* Murguly v. Google LLC, 2020 WL 907919 (D.N.J. Feb. 25, 2020):

Google is treated in the complaint as the publisher of the allegedly actionable content and that the allegedly actionable content originated from other information content providers, namely Moyosore Ajibodv and Seana Brown. Although Plaintiff alleges that Google acted negligently and violated its terms of service, by failing to “detect and protect against evolving online threats” and by failing to “prevent that [fraudulent internship] listing in the[ ] Google Search Job-Searcher Tool” . Section 230 “specifically proscribes liability” where a plaintiff “attempts to hold [Google] liable for decisions relating to the monitoring, screening, and deletion of content from its network.” The Court, accordingly, finds Plaintiff’s claims against Google barred by the CDA.

* American Trigger Pullers LLC  v. Shawn Wylde, 2020 WL 1809724 (S.D. Tex. April 9, 2020):

Wylde argues “that Print Brains is a software ordering system” that simply sends orders to third party vendors and that Print Brains is “immune in light of 47 U.S.C. § 230, which states: ‘No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’” Contrary to Wylde’s contentions, “Section 230(c)(1) does not provide immunity for either federal or state intellectual property claims.”

* Davidson v. Xcentric Ventures, 1:18-cv-11394-JCB (D. Mass. Aug. 15, 2019). Ripoff Report gets easy Section 230 win in pro se lawsuit.

* Meyers v. Certified Guaranty Company LLC, 2019 PA Super 316 (Penn. Superior Ct. Oct. 18, 2019):

As an agent of CGC and CCS, Nelson’s statements clearly may be imputed to those corporate entities. CGC argues that it has no liability for statements posted on its message board under the Communications Decency Act, 47 U.S.C. § 230. The Act shields a provider of an interactive computer service from liability for content posted on the online service, but only if the service provider did not itself generate the content. The content at issue here was provided by Nelson, in his capacity as a member of CGC, so CGC was both a service provider and a provider of the subject content, making the Act inapplicable.

* Corker v. Costco Wholesale Corp., 2019 WL 5895430 (W.D. Wash. Nov. 12, 2019)

The reach of CDA immunity in this case is unclear. As plaintiffs point out and defendants concede, the immunity does not apply to goods stocked and sold in a physical store, and it does not apply to private label products sold on-line by Cost Plus or Kroger. In addition, plaintiffs argue that once an on-line sale is made, any act the retailer defendant takes in the physical world to deliver the offending package to the purchaser would not be covered by the CDA. Defendants have not responded to this argument. To the extent shipping a supplier’s allegedly false designation of origin to a customer generates liability under Section 43(a)(1)(A), defendants have not established that the CDA’s immunity provision would apply.

* Laake v. Dirty World LLC, 2020 WL 1091217 (D. Ariz. Jan. 8, 2020): “Plaintiff fails to state a claim against GoDaddy Inc. upon which relief may be granted because GoDaddy Inc. is immunized from the libel claim in the proposed First Amended Complaint pursuant to the Communications Decency Act (“CDA”).”

* National Association of the Deaf v. Harvard University, 2019 WL 6699449 (D. Mass. Dec. 9, 2019). Case settled. Prior blog post.

* Elliot Harmon: In debate over internet speech law, pay attention to whose voices are ignored

* NY Times: Many Are Abandoning Facebook. These People Have the Opposite Problem

* Leiser and Harbinja, Content Not Available: Why the UK Proposal for a ‘Package of Platform Safety Measures’ Will Harm Free Speech:

To mitigate against the nonsense proposed in the White Paper, the government should drop the concept of duty of care entirely…Without a doubt, the Internet is a complicated space; however, it also makes us look at humankind’s most unsavoury characteristics in a way never thought of ten years ago. Accordingly, we should look at platforms as a blessing, not a burden. How else could we know that so many people think like us at the same time as hold such divergent, even abhorrent views? The Internet is not a safe space, nor was it intended to be. Yet the White Paper goes beyond turning the Internet into a giant, cuddly, soft play area where everyone has to watch what they say, what they do, and how they act. It burdens the platform with a duty of care to police the speech of its patrons, under the threat of sanctions for what might be offensive or intimidating and might cause harm. This is a prime example of ‘chilling effects’ of content moderation

* Washington Post: YouTube’s arbitrary standards: Stars keep making money even after breaking the rules

* BuzzFeed: As Marc Benioff Calls For A Better World, Salesforce Lawyers Are Doing The Opposite

* Reason: Score One for Trump’s Trade Policy: Putting Online Speech Protections in Trade Deals Makes Sense

* DisCo: Why Do So Many Section 230 Stories Contain Corrections?

* Lina M. Khan & David E. Pozen, A Skeptical View of Information Fiduciaries, 133 Harv. L. Rev. 497 (2019)

* Brent Skorup & Jennifer Huddleston, The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online Curation, 72 Okla. L. Rev. 635 (2020). My partial response.