Erik Curran, who apparently served in combat (Iraq? Afghanistan?) as part of the West Virginia National Guard, filed a two count complaint for invasion of right of publicity and invasion of right of privacy against several defendants, among them CaféPress.com, Inc. (“CafePress”). Curran alleged that his image appeared, without his consent, on a book cover and related t-shirts, toys and dolls. CafePress sells t-shirts which have Curran’s image printed on them, and includes his image on its website.

Last week District Judge John T. Copenhaver Jr. of the Southern District of West Virginia ruled on several motions to dismiss filed in the case, Curran v. Amazon.com, et al. CafePress asserted in its motion that Section 230 grants it federal immunity from tort liability and preempts both counts of the complaint. In response, Curran argued that Section 230 is an affirmative defense, and “is not an appropriate basis for dismissal on a Rule 12(b)(6) motion.” The Court agreed that CafePress was asserting an affirmative defense, which the plaintiff is not obligated to plead around. However, Judge Copenhaver devoted most of his Section 230 discussion to the issue of whether CafePress could nonetheless proceed with the Section 230 defense at this stage of the litigation.

The Court referred to cases where “either the parties did not dispute that the defendant was an interactive computer service or there were allegations in the complaint upon which the court could reasonably conclude that the defendants were interactive computer services.” Noting that no such consensus exists here, and that the complaint “states merely that CaféPress sold t-shirts featuring plaintiff’s likeness,” the Court was left to consider CafePress’s assertion that it own terms of service agreement, posted on its website, demonstrates its ICS status.

If we accept the Court’s supposition (which it backs up with several citations) that establishing ICS status is a prerequisite to ruling on a Section 230 affirmative defense in this procedural posture, I’m not sure what the problem is. Is there any dispute that CafePress.com, an Internet website, is, at the least, a provider of an Interactive Computer Service? Perhaps its role as such is irrelevant here, and/or perhaps CafePress acted in more than one capacity here. But if ruling today on the Section 230 issue necessitates an initial finding that CafePress is an ICS/provider of an ICS, what’s the hold up? I’m curious whether the Court is under the impression that one is either an ICS or an Information Content Provider, but one cannot be both, and that such determination is outcome determinative. Note the following paragraph taken from the opinion:

Section 230 of the CDA creates a distinction between “interactive computer services,” which merely transmit information and “information content providers” that create or develop, in whole or in part, information eventually transmitted. See 47 U.S.C. § 230(f)(2) and (3). The former may be exempt from tort liability by the CDA, whereas the latter is not. See id. §§ 230(c)(1), (e)(3), (f)(2) and (3).

Regardless, after considering caselaw on the procedural point of whether the Court may properly consider CafePress’s TOS agreement on this issue, the Court declined to so consider it. Instead the Court directed that “CDA immunity is a question awaiting discovery and exploration, though plaintiff faces an uphill battle given the broad grant of immunity conferred by § 230, as interpreted in the seminal case of” Zeran.

It is not clear to me that Section 230 is even applicable in this case, but if it is, it sounds like the plaintiff is in for a fight.