YouTube wins on personal jurisdiction, venue arguments in Washington state

My partner John Leonard, an avid fan of quirky YouTube videos, couldn’t resist penning a summary of this recent decision involving the website.

In an unremarkable but informative decision from the Federal Court sitting in the Western District of Washington at Tacoma, Judge Franklin Burgess, on April 15 of this year, declined to subject YouTube to the Court’s jurisdiction in that State merely because YouTube appears on the Internet in Washington.

In the case, Victoria S. Bowen vs. YouTube, Inc., the plaintiff, Ms. Bowen, a YouTube registered user, alleged that certain YouTube users posted harassing comments on YouTube directed at her. She also alleged that her “intellectual property rights have been repeatedly violated,” and that YouTube had engaged in negligent affliction of emotional distress upon her. She also, apparently, alleged that YouTube violated her civil rights under Section 1983 of Federal law.

The Court summarily disposed of her emotional distress claim stating that it was barred by Section 230 of the Communications Decency Act. The Court also dismissed her civil rights claim, saying that it could not proceed because YouTube was not acting under color of State law. As to her intellectual property rights claim, the Court similarly dismissed it because of its “infirmities,” without going into detail.

Most of the opinion, however, was devoted to a discussion of whether, under the facts as alleged in the Complaint, YouTube is subject to jurisdiction in the State of Washington.

The Court noted that in order for Washington State jurisdiction to attach, the defendant must have: (1) committed an act or transaction with the State; (2) the claim must have arisen out defendant’s activities in the State; and (3) the exercise of jurisdiction must be reasonable. Citing several Ninth Circuit cases as precedent, the Court ruled that there was no personal jurisdiction over YouTube in Washington because YouTube’s “presence” in the State was merely passive, and that the plaintiff’s use of YouTube in the State was not enough to render YouTube subject to Washington State jurisdiction.

The Court further found that under YouTube’s “terms of use,” to which plaintiff, by virtue of her being a registered user, had agreed, YouTube “shall be deemed to be a passive website that does not give rise to personal jurisdiction over [it]…in jurisdictions other than California,” and that, “any claim between you [the user] and YouTube that arises in whole or in part from the YouTube website shall be decided exclusively by a court…located in San Mateo County, California.” Therefore, said the Court, Ms. Bowen could not maintain a suit against YouTube in the State of Washington.

Interestingly, after YouTube had filed its motion to dismiss, the plaintiff, probably recognizing that her attempt to keep the case in Washington was doomed, moved to transfer the case to California. The Court, however, ruled that dismissal, not transfer, of the case was the proper way to go. Whether the plaintiff can get another shot at YouTube by re-filing the case in California was not discussed, but the success of any such subsequent case seems unlikely, absent any new facts or legal theories alleged, given the apparent substantive infirmities in plaintiff’s case.

The lesson of this case is clear and simple. If you, as a user, especially a registered user, of a website agree to that site’s posted terms of use, and you later wish to make a claim or file suit against the site, you most likely will be bound by the site’s designated forum where claims may be made and lawsuits can be brought. Furthermore, even in the unlikely event that the site’s terms of use do not designate a state or states where claims and suits must be brought, there is a chance you will be required to make an affirmative showing that the website had more than just a passive presence in the state where you choose to sue.

Section 230 does not shield website from state IP claims

Guest blogger John Leonard is at it again, this time summarizing a recent federal court decision construing Section 230 in the “adult website” context.    

An interesting decision came down last week from the United States District Court for the District of New Hampshire, Doe vs. Friendfinder Network, et. al. In that case, Judge Joseph LaPlante, in a well-reasoned opinion, replete with common sense, upheld the concept of CDA tort immunity for owners and operators of websites, as to information provided by other information content providers, while extending the intellectual property immunity exemption to state intellectual property laws.

The plaintiff Doe, unwilling, for obvious reasons, to use her real name in the lawsuit, filed a multi-count complaint based upon the appearance on the defendant’s website of her name, purported information, and a purported nude photo of her, for purposes of showing her availability for dating, and, presumably, sexual relationships and activities. In her complaint charging, among other things, invasion of privacy, defamation, infliction of emotional distress, and violations of the New Hampshire Consumer Protection Act and the Federal Lanham Act, the plaintiff denied that she had ever provided any information to the website, that some of the information included in her profile on the website was false, and that the nude photo accompanying the information was not of her.

Interestingly, among the plaintiff’s charges were allegations that the defendants caused portions of the allegedly bogus profile to appear on search engines and as advertisements, or “teasers”, on other unaffiliated sites. Plaintiff’s bogus profile also allegedly appeared on similar websites that are operated by the defendants. She also alleged that, in response to her request that the profile be removed from the website, the defendants then posted the statement that, “this member has removed her profile,” thereby implicitly, if not actually, stating that the allegedly bogus profile was of the plaintiff.

The judge began his analysis by affirming the principle, adopted by most Federal Circuits, that, stemming from Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), sections [47 U.S.C.] 230(c)(1), (f)(3), and (e)(3) of the CDA bar state law claims (except those relating to intellectual property) against interactive computer services for publishing content provided by another information content provider. This immunity, according to the judge, applied even to the complaint that the website operator posted the allegedly bogus profile of the plaintiff on other websites. As to this charge, citing the First Circuit decision of Universal Comm’n. Sys. v. Lycos, 478 F.3d 412 (2007), the judge held that the mere re-posting or repetition of information received from another did not render the defendants “information content providers” on their own behalf so as to subject them to state and common law liability.

As to the charge that the defendants, in their statement regarding the removal of the profile, affirmatively acknowledged that the profile was in fact that of the plaintiff, the judge opined that because the association of the plaintiff with the profile originally came from another content provider, the defendants (in repeating that association) were not responsible for creating the association, and therefore “cannot be considered an ‘information content provider’ under the statute because no profile has any content until a user [here, someone other than the defendants] actively creates it.”

Judge La Plante did, however, rule in favor of the plaintiffs on two not insignificant counts of her complaint, one complaining of a violation of her right to publicity, another charging a violation of the Federal Lanham Act (the statute generally concerned with trademark and trade name issues). As to her invasion of privacy claim, the judge noted that insofar as one of the plaintiff’s four invasion of privacy sub-claims involved the violation of plaintiff’s right to publicity, that sub-claim was one concerning intellectual property, and was therefore exempt from the immunity provision of the CDA. In so holding, the judge explicitly rejected the decision of the Ninth Circuit Court of Appeals in Perfect 10 v. CC Bill, LLC, 488 F.3d 1102 (2007) which held that the intellectual property exemption to CDA immunity applied only to Federal and not to state, intellectual property claims. As Judge LaPlante explained, that interpretation was contrary to the express language of the statute, and in effect constituted a judicial re-writing of the CDA.

Finally, the judge held that the plaintiff’s Lanham Act claims, asserting false advertising and false designation, could proceed because they also were subject to the intellectual property exemption. The judge emphasized that the defendants’ use of the plaintiff’s allegedly false and bogus profile as unauthorized “teasers” for marketing (advertisement) purposes “falls directly” with the language of the Lanham Act preventing such unauthorized use. The judge rejected outright the defendants’ argument that such “false endorsement” claims can only be made by celebrities and did not apply to the common folk, as being totally unsupported by any authority.

In the introduction to this short review, I praised Judge LaPlante’s decision as being well-reasoned and consistent with common sense. I must here, however, add one exception, perhaps just a minor quibble over language but nonetheless, I believe, important. This relates to that portion of his ruling where he found that the defendants’ statement that “this member has removed her profile.” Given that this statement was made after the plaintiff had contacted the defendants and told them that the profile was in fact false, and that she was not a member, were the defendants out-of-bounds when they then affirmatively created the statement that she was a member and that this was in fact her profile? I wonder if this conduct by the defendants did not go beyond the mere repeating of information provided by another, and in effect constituted an affirmative statement authored by the defendants themselves. While the defendants may not have been under an obligation to launch an investigation into who, the original provider of the profile or the plaintiff, was telling the truth, surely they did not have to phrase the removal language in such a way as to continue to identify the plaintiff as “a member” of the service and the subject of the profile. Neutral words such as “this profile removed upon request” would certainly have been sufficient to satisfy the defendants’ need for an explanation without specifically referring to the plaintiff’s person. In this author’s humble opinion, in this specific and limited situation, the court may have extended the CDA tort immunity a little too far.

Guest Post: Lawsuit challenges online gambling ban in Washington state

In addition to being a skilled chess player, my partner John Leonard is also no stranger to the inside of a casino. While I don’t think he’s ever made a virtual wager, I thought he’d enjoy summarizing the following case, which challenges Washington’s Internet gambling prohibition. Thank you to Mr. Rousso for sharing the discovery request linked to below. -MHE

On the first day of the 2007 World Series of Poker Main Event, Lee Rousso, a resident of King County, State of Washington, filed a lawsuit in the King County Circuit Court asking that that State’s law barring internet gambling be declared unconstitutional. The law was passed in 2006, and became effective in June of that year.

According to the complaint filed in the suit, Rousso, from June, 2003 to June, 2007, regularly logged on to pokerstars.com, described as the “world’s leading internet poker site,” and played poker against other Pokerstar customers. Although most of Rousso’s internet poker playing involved “play money,” some of the games were allegedly played for virtual chips that represented real money.

Noting, among other things, that internet poker is not illegal under federal law, and that gambling, including poker, are legal in the State of Washington, Rousso charged in his suit that the Washington law outlawing internet poker was unconstitutional in that it violated the Commerce Clause of the United States Constitution because it: (1) discriminates against internet poker in favor of legal “brick-and-mortar” casinos in the State of Washington; (2) places an undue burden on interstate commerce; (3) places an undue burden on international commerce; and (4) infringes upon the federal regulation of internet gambling, and violates the General Agreement on Trade & Tariffs (the “GATT Treaty”). Rousso also charged that the law violates the U.S. Constitution’s prohibitions against cruel and unusual punishment, and because of its vagueness, violates the 14th Amendment’s guarantee of due process of law to citizens of the several states.

Unfortunately for Rousso, despite his impressive complaint, the suit has thus far not gone well. In response to his complaint, the State of Washington served upon him a demand for production of information that, according to Rousso, is confidential and protected from disclosure by the Fifth Amendment’s protection against self-incrimination. The lower court then denied Rousso’s request for a protective order with respect to the production of the requested information, a decision that Rousso has appealed to the Division One Court of Appeals.

However, conceding that the State had won the first round of the case, Rousso has stated that he has waiting in the wings a substitute plaintiff who could come in to the case, or perhaps file a new case, pursuing the same constitutional challenges to the Washington law that are at issue in the present lawsuit.

I’ll be watching this one closely, and will update as further information becomes available. Knowing, however, how difficult it is to get a state statute declared violative of the U.S. Constitution, I believe that Mr. Rousso is in for an uphill fight.

One question that comes to mind is why Mr. Rousso did not seek to have the statute declared invalid under the Washington State Constitution. While I readily admit that I am not a Washington lawyer, and know nothing about the Washington Constitution, I am aware of the growing trend of citizens of the states seeking relief from allegedly oppressive statutes under their respective state constitutions, which in many cases offer expanded constitutional protections not available under the Constitution of the United States. Just a thought.

I pressed John for an example, and here’s what he came up with:

It appears to me that the following articles from Article I, Declaration of Rights, of the Washington Constitution apply directly to Mr. Rousso’s case. This is especially true of Article 12. Article 8 may not be directly applicable because it deals with the irrevocable grant of privileges and immunities, which I don’t think is what is involved in the statute that Mr. Rousso is challenging. I don’t understand why he didn’t raise these State Constitutional provisions in his Complaint.

SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED.
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

SECTION 8 IRREVOCABLE PRIVILEGE, FRANCHISE OR IMMUNITY PROHIBITED.
No law granting irrevocably any privilege, franchise or immunity, shall be passed by the legislature.

Thanks again, John, for the guest post. For anyone interested, here’s the press release Mr. Rousso issued when the suit was first filed.

Guest Post: Sloan v. Truong, et al (S.D.N.Y.)

While he may not be a “Grandmaster,” my law partner John Leonard is our office chess wizard. So naturally I asked him to guest post on the recently filed Sloan v. Truong, et al case, which raises at least one Section 230 issue. Of course one read of the complaint will tell you that this case is about much more than intermediary liability, but I asked John to try to confine his summary to the Section 230 issue.

Please note that the documents linked to in John’s post are not court-filed versions, thus he/I cannot attest to their authenticity. My understanding is that because Mr. Sloan filed pro se, the Clerk will not post certain filings on PACER.

Take it away, John.

For those of you who play chess, or follow the Machiavellian twists and turns in the world of professional chess, and are interested in issues involving online liability, an interesting story is evolving in Federal Court in New York. There, in the United States District Court for the Southern District of New York, former U.S. Chess Federation board member Sam Sloan has filed a multi-million dollar lawsuit against former Women’s World Chess Champion Susan Polgar, her husband Paul Truong, and many others, alleging, among other things, that Ms. Polgar and Mr. Truong falsely posted over the Internet “thousands of obscene messages,” under the name of Sam Sloan. (The author or authors of said postings being referred to by Mr. Sloan as the “Fake Sam Sloan.”) Although Mr. Sloan’s 27-page long pro se complaint is quite a read, and the author of this post expresses no opinion on the merits of his case against Ms. Polgar and Mr. Truong, or any of the other defendants save one, of interest to those who follow this site is the fact that Mr. Sloan also named as a defendant Texas Tech University, where Ms. Polgar and Mr. Truong are presently (according to Sloan’s complaint) employed.

In his complaint, at paragraph 6, Mr. Sloan alleges that Polgar and Truong have posted obscene Fake Sam Sloan messages from the university computers at Texas Tech, and that (at paragraph 41) “Texas Tech University has allowed Polgar and Truong to use [its] computers to impersonate Sam Sloan…and to post Fake Sam Sloan…messages on the Internet.”

Obviously, these allegations raise questions under the “immunity” provisions of the CDA. Significantly, and perhaps fatally to Mr. Sloan’s complaint in its present form, Sloan’s complaint does not allege that Texas Tech knowingly allowed the use of computers to post and transmit the alleged obscene Fake Sam Sloan messages, although perhaps knowledge could be implied from the above-quoted language from the complaint. No doubt such an allegation would be difficult to prove. But perhaps the more fundamental question is whether Texas Tech qualifies for Section 230(c)(1) immunity in the first place.

I believe that it does, following the reasoning of the California Sixth District Court of Appeals decision in Delfino v. Agilent Technologies, 145 Cal. App. 4th 790, 52 Cal. Rptr.3d 376 (Dec. 14, 2006). There, the Court considered whether a corporate employer that makes its computers available to its employees is a “provider of an interactive computer service” within the meaning of the CDA. While acknowledging that there is no case directly on this point, the Court also noted that “several commentators have opined that an employer that provides its employees with Internet access through the company’s internal computer system is among the class of parties potentially immune under the CDA.”

Interestingly, the Court in Delfino also addressed the question of whether the employer who provided the computer access could be liable for misuse of the same under the common law theory of respondeat superior, by which an employer can be held responsible for the misdeeds of its employees. However, as the Court observed, in order for this doctrine to apply, the employer must have ratified the employees’ wrongful conduct; it must have, in effect, treated the employees’ conduct as its own. In the Sloan case, given that the case seems to derive from a long-simmering feud between Mr. Sloan and the individual defendants, it seems to me that it would be an almost impossible burden for Sloan to prove that Texas Tech University adopted the alleged conduct of Polgar and Truong as its own.

Based on the above, I predict that Texas Tech will soon be out of the lawsuit.