Perfect 10 seeks Supreme Court review of Section 230 ruling

Jeffrey N. Mausner, counsel for Perfect 10, Inc., has kindly shared with me the Petition for a Writ of Certiorari filed last week with the United States Supreme Court on behalf of his client in Perfect 10, Inc. v. CC Bill LLC, et al (Docket No. 07-266). He also permitted me to post the 143 page filing on my blog.

Perfect 10’s Petition seeks review of the Ninth Circuit’s March 2007 ruling, as modified one month later, in Perfect 10, Inc. v. CC Bill LLC, et al. as it relates to 47 USC 230(e)(2). As you may know, Paragraph (2) provides that nothing in Section 230 “shall be construed to limit or expand any law pertaining to intellectual property.” The Petition presents the question of whether “the Ninth Circuit err[ed] in reading any law to mean only any Federal law, in conflict with a decision of the First Circuit and statutory construction rules of this Court.” (internal quotations omitted, italics and hyperlink added).

Perfect 10 is concerned that the Ninth Circuit’s ruling, which grants Section 230 immunity for state IP claims, “will sharply erode the ability of those in the entertainment industry to seek meaningful legal recourse for the violation of their valuable publicity rights.” The company would appear to have good reason to be concerned with the treatment of publicity rights, and other state intellectual property rights, under Section 230, given the obstacles it has faced in attempting to protect its federal copyrights under the DMCA framework.

Here are the three main arguments offered by Perfect 10 in support of its Petition:

1. The Ninth Circuit erroneously broadened Section 230 immunity by effectively amending (e)(2) to read “any Federal law” instead of “any law.” Relatedly, the Ninth Circuit also disregarded statutory construction principles when it effectively narrowed the (e)(2) exception from “any law” to “any Federal law.” (noting that when Congress meant ‘just federal’ in another Paragraph of the same statute, it said so).

2. The Ninth Circuit’s decision conflicts with the First Circuit’s UCS ruling and other courts holding that state IP claims are not barred by Section 230.

3. Congress did not adopt the argument – embraced by the Ninth Circuit – that because state IP laws are not uniform they should not “dictate the contours of [Section 230 immunity].”

Although it understandably did not not delve into the impact of having fifty states’ laws to consider, I thought the Petition was quite persuasive. It surely goes without saying that were the Supreme Court to rule that Section 230 does not immunize state IP claims, we would see more of these types of actions filed, which would presumably result in a (desirable?) chilling-effect on certain online conduct (at least with respect to non-judgment proof companies), especially given the fact that few (any?) states have enacted protections from state IP claims comparable to the DMCA takedown provisions.

One last observation. In a footnote, Perfect 10 maintains that, in addition to its rights of publicity and wrongful use of trademark claims, its unfair competition and false advertising claims also “arise under laws pertaining to intellectual property, as they are both based on, among other things, rights of publicity violations.” If another federal appellate court considering the issue rules that Section 230 does not immunize state IP claims, or if the Supreme Court takes this appeal and reverses, online companies and the courts alike will obviously need some guidance as to what constitutes state IP law/claim.

On brief with Mr. Mausner was Daniel J. Cooper, General Counsel for Perfect 10, Inc. Responses to the Petition are due September 28, 2007.



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