Update on Chicago Lawyers’ Committee v. Craigslist

For those of you unfamiliar with this case, check out my guest post that appeared on May It Please The Court just after Judge St. Eve ruled last year on Craigslist’s motion for judgment on the pleadings. After the court denied plaintiff’s subsequent motion to reconsider, plaintiff appealed, and for the last six months the Seventh Circuit has suspended briefing, presumably to allow for a negotiated resolution.

Apparently a quick settlement isn’t in the cards. Late last week the Court of Appeals jump-started the case by issuing a briefing schedule. Appellant Chicago Lawyers’ Committee for Civil Rights Under Law, Inc.’s (“CLC”) brief is due October 9, Appellee Craigslist’s brief is due November 20, and CLC’s reply brief is due December 7, 2007.

It will be interesting to see how the the Ninth Circuit’s Roommate.com decision figures in to the parties’ briefs.

Third Circuit affirms Section 230 dismissal of libel suit against website owner

Earlier this week the Third Circuit, citing Section 230, affirmed a lower court’s dismissal of a complaint that alleged the defendant had “published” defamatory comments about plaintiff on defendant’s website. The panel noted that plaintiff did not allege that defendant “authored” the comments or that defendant is an information content provider. “As such, the website posts alleged in the complaint must constitute information furnished by third party information content providers. Therefore, the requirements of §230 immunity are satisfied.”

The court’s ruling is short, straightforward, and basically unremarkable (perhaps why it was dubbed “not precedential”). However I note the opinion, after citing the Third Circuit’s earlier ruling in Green, refers to “§230 immunity from tort liability.” By that I assume the court believes that Section 230 immunity extends beyond defamation suits to include all tort claims. No surprise there. But whether the court is also of the opinion that Section 230 immunity applies to tort liability, and only tort liability, is another question. No doubt the Third Circuit will have an opportunity to opine on this point sometime down the road.

Cyberbullying and ISP immunity

The Yale Law Journal “Pocket Part” just published a short piece by Jenner & Block attorney Bradley A. Areheart that advocates narrowing Section 230 immunity to allow “recourse” for alleged cyberbullying victims. Mr. Areheart proposes a DMCA-like notice and take-down mechanism whereby an ISP with “actual knowledge through notice of an alleged tort” such as libel would lose immunity if it failed to remove the allegedly tortious content.

If adopted, my guess is that ISPs would quickly find themselves buried in notices resembling pro se defamation complaints. If a notice appeared to have any reasonable chance of surviving a motion to dismiss (forget about the merits here), chances are the ISP would not investigate further, but would promptly take down the objectionable material.

What would this mean for websites featuring user-generated content and future online innovation in general?

New York Times on prostitution ads appearing on Craigslist

Perhaps you read Bruce Lambert’s “Prostitution Targeted on Craigslist” piece in this morning’s New York Times. The title more or less tells the story, but one statement caught my attention.

The article states that “[e]xperts say that under the federal Communications Decency Act of 1996, the ads are legal and Web site owners are exempt from responsibility for content posted by users.” I generally agree with that statement, except, of course, that the folks who actually write and post the subject ads receive no protection from Section 230, and (separate issue) likely violated one or more state criminal statutes prohibiting the promotion and/or offer of prostitution.

But as to Craigslist’s potential liability, I would note that the experts mentioned in the article are apparently assuming that there are no federal criminal statutes (see Section 230(e)(1), which excludes such laws from Section 230 immunity) that speak to Craigslist’s role as an intermediary (accomplice?) in this particular context. I don’t know whether that is the case or not.  Also, even if the assumption is correct, we all know, as Lambert points out, that “prostitution is often linked to other crimes involving drugs, weapons, physical abuse and exploitation of minors and immigrants.” If the ads we are talking about here were to expand to promote/offer additional illicit activities (drugs, weapons, etc.), there again remains the possibility that Craigslist’s involvement – albeit as an intermediary – could trigger federal criminal liability.

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.