RipOffReport victorious (again) in Arizona

Last October I wrote about Global Royalties’ suit against RipOffReport (a website operated by Xcentric Ventures), which was dismissed on Section 230 grounds. The plaintiffs subsequently amended their complaint (still alleging defamation), Xcentric filed a motion to dismiss (still arguing Section 230 immunity), and, again, District Judge Frederick J. Martone, just last week, granted the motion, notwithstanding the Court’s belief that “[i]t is obvious that a website entitled RipoffReport encourages the publication of defamatory content.”

Plaintiffs made multiple attempts in their motion papers to neutralize Section 230’s protections here. First, relying on Batzel, plaintiffs argued that once the non-party poster requested removal of the allegedly defamatory content, “the statements were no longer ‘provided for publication,’ and defendants’ CDA immunity ceased at that point.” But as Judge Martone explained (recall that Mr. Sullivan is the non-party poster):

in Batzel, the court did not interpret “provided” as an ongoing process. The focus was on expectations regarding communications when they are made. The court was concerned that technology users would be discouraged from sending e-mails if website operators have no incentive to evaluate whether the content they receive is meant to be broadcast over the internet or kept private. [] There are no similar concerns in this action; Sullivan obviously meant his messages to appear on the website. Whether website operators have a duty to withdraw content when an author later changes his mind is another question-one that is not addressed by Batzel.

On the subject of notice, the Court, citing Zeran, also reminded plaintiffs that

[w]ebsite-operator liability based on notice has been rejected, because each “notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing continued publication. . . . We conclude that liability based on an author’s notice, workable or not, is without statutory support and is contrary to well-settled precedent that the CDA is a complete bar to suit against a website operator for its “exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content.

Judge Martone added that the notice argument remained moot, notwithstanding the fact that the poster of the allegedly defamatory post himself was purportedly the person requesting its removal.

Next, plaintiffs claimed that “defendants themselves constitute an “information content provider” with respect to the posted content.” The Court was not persuaded. “Plaintiffs allege only the most minor participation by defendants in actually composing the allegedly defamatory postings: Defendants provided a list of categories from which Sullivan selected the title “Con Artists” for his post. As in our order dismissing the original complaint, we conclude that this participation is insufficient as a matter of law to make defendants information content providers with respect to the postings.”

Plaintiffs also made the related argument that “defendants encourage defamatory postings from others for their own financial gain and, therefore, are partly responsible for the “creation or development” of the messages.” The Court dismissed this argument as not supported by the law (“[u]nless Congress amends the statute, it is legally (although perhaps not ethically) beside the point whether defendants refuse to remove the material, or how they might use it to their advantage”) or plaintiffs’ allegations (“plaintiffs have not alleged that defendants solicited Sullivan’s postings in particular, or that they specifically solicited any postings targeting Global. Nor have they alleged that defendants altered Sullivan’s comments, or had any more than the most passive involvement (providing a list of possible titles) in composing them”).

The Court was unwilling to stay the case to await the Ninth Circuit’s en banc decision. Fair enough. But it sure will be nice to get some more guidance on the implications of the use and content of material produced by a website operator.

Feds make a call to a domain name registrar, websites go dark

Last week it was a federal judge ordering a controversial website’s domain name registrar to effectively pull the plug on its customer.

This week it’s somebody at the U.S. Treasury Department directing a DNR to cut the cord to websites operated by an Englishman living in Spain, according to a piece by the New York Times’ Adam Liptak.

Website operators, civil liability obviously isn’t the only thing you need to be thinking about on the legal front. Given any thought recently to the arrangement you have with your domain name registrar?

UPDATE: Check out this timely post from an Irish IT law blog on the subject of domain name registrars.

Wikileaks updates

Here are two up to the minute posts, one at Declan McCullagh’s “the iconoclast” blog, the other at Wired’s Threat Level blog, both indicating that will soon be back online.

I may update this post at a later time/date, particularly when the Court enters a written ruling.

3/4/08 UPDATE: Here is Judge White’s order, entered last Friday, dissolving the permanent injunction.

3/6/08 UPDATE: According to the EFF, the plaintiff has asked the Court to dismiss its case.

Developments in lawsuit

I finally got around to looking over a New York Times article that my law partner Ron Teeple recently shared with me. The article describes, essentially, as inept, an attempt earlier this month by U.S. District Judge Jeffrey S. White to shut down, a website that encourages people to post “leaked” information for the purported purpose of deterring corporate and governmental misbehavior. According to the article, the site has previously posted some particularly sensitive military documents and other closely-held materials.

Judge White’s shut down order (the permanent injunction) was directed at the website’s domain name registrar, defendant Dynadot, and not the website itself, and is apparently full of workarounds for determined fans of the site. The Court also entered a temporary restraining order pertaining to the specific documents at issue in the lawsuit.

Earlier today I came across this article in the Los Angeles Times, highlighting efforts to persuade Judge White to reconsider his prior orders. Counsel for the Electronic Frontier Foundation is described in the article as expressing disappointment with Dynadot’s actions, noting that Section 230 protects the company from the plaintiffs’ claims here. Beyond simply complying with a court order (an order which clearly does more than just provide for the preservation of evidence), it would appear that Dynadot first entered into a stipulation with the plaintiff (the proposed order referred to in Paragraph 4 thereof, a/k/a the permanent injunction, was entered by the Court on February 15th and is linked to above), then became bound by the court’s permanent injunction, and, finally, was voluntarily dismissed from the case this past Monday. It would be interesting to know whether the Court would have entered the permanent injunction if Dynadot had not first stipulated to its terms.

We should know more about where this case is headed after a hearing scheduled for this Friday. In the meantime, here’s a copy of the plaintiffs’ six count complaint, filed earlier this month in the Northern District of California (link does not include exhibits).

On a related note, does anybody know whether the Second Circuit has ruled yet on the defendant’s appeal in a somewhat similar dispute involving

 See my 2/29/08 Update post

Court: Section 230 is an affirmative defense, thus it’s (generally) not an appropriate basis for a Motion to Dismiss

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 Café, 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., 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, 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.