Section 230 Doesn’t Create a Cause of Action–Goodman v. Sharp

The underlying dispute involved a copyright and trademark enforcement action against Goodman over a parody/satire video. The court summarizes Goodman’s arguments in this collateral lawsuit:

Plaintiff alleges that Defendants abused process and engaged in attorney misconduct when the Academies sued MSD for copyright infringement in the NATAS Action, and that Esquenet [great name for a lawyer, BTW] failed in her “legal and ethical obligation” to tell her clients, the Academies, about “substantial defects” in their claims. Plaintiff argues that under Section 230(c)(1), his company, MSD, is “a provider and a user of interactive computer services,” that Plaintiff is individually “a separate legal entity” from MSD, and, therefore, under Section 230(c)(1), MSD could not be sued for content provided by Plaintiff. Accordingly, Plaintiff argues, Defendants abused process when they brought suit against MSD because MSD is immune from liability for Goodman’s infringing use of the Academies’ statuette.

As you already figured out from this passage, Goodman is proceeding pro se.

Read literally, Goodman is apparently arguing that Section 230 protects everyone from copyright and trademark infringement claims because they are ICS providers/users. Of course, Section 230 doesn’t say that at all, most obviously because it expressly excludes IP claims. (There’s also a problem of whether the content at issue was Goodman’s first-party content).

In any case, this is an easy dismissal. The court lets Goodman down rather gently (emphasis added):

A diligent review of case law in this circuit reveals that no prior plaintiff has premised an affirmative claim for relief on Section 230(c)(1). Rather, Section 230 has only been invoked as an affirmative defense….

Plaintiff attempts to use Section 230 as a sword on which his state-law abuse of process claim would be predicated. But Congress has not expressly provided for any federal cause of action under Section 230. Plaintiff’s invocation of Section 230(c)(1) as a basis for federal jurisdiction lacks any textual or precedential basis and is belied by Section 230(c)(1)’s clear legislative purpose to immunize interactive computer services from civil liability for content created by third parties, not to create a cause of action for content creators.

Although the court is correct about Section 230(c) not creating any cause of action, I remind you that there is no clear enforcement mechanism for 230(d), the mandatory disclosure requirement about filtering availability. That’s a good thing, because 230(d) is widely ignored in the field.

Case Citation: Goodman v. Sharp, 2022 WL 2702609 (S.D.N.Y. July 12, 2022)