TechLaw

Bidding on eBay Live Actions is very safe. All live auctions are run by reputable international auction houses, which are carefully screened by eBay before being authorized to sell to you.

One bidder, who complained that an auction she participated in was spoiled by shill bids, pointed to the above statement in support of her legal claim for damages against eBay. You wouldn't think at first glance that eBay's declaration that its auctions are "safe" would be entitled to immunity under Section 230 of the Communications Decency Act. And you would be right, at least according to a recent opinion by Judge Marilyn Hall Patel in Mazur v. eBay Inc., No. 07-3967 (N.D. Cal., March 4, 2008).

eBay argued unsuccessfully that this case was like Gentry v. eBay, 99 Cal. App.4th 816 (2002), and Doe v. SexSearch.com, 502 F. Supp.2d 719 (N.D. Ohio 2007), a pair of cases in which Web sites turned user-submitted information into CDA-immunized assurances to users. In Gentry, the user rating information was derived from third-party submissions to eBay; in Doe, the Web site's assertion that its users were over 18 years old as also derived from user-generated data (users checked a box indicating they were at least 18 years old). The present case is distinguishable, Judge Patel said, because eBay's safety assurances were made by eBay alone and were not based on any information submitted by users.

Judge Frank Easterbrook is among the three judges scheduled to hear oral arguments today in Chicago Lawyers' Committee for Civil Rights Under Law Inc. v. Craigslist Inc., according to the argument schedule released by the Seventh Circuit this morning.

Also on the Craigslist panel is Judge Diane P. Wood, who joined Easterbrook's provocative (albeit in dicta) suggestions in Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003), that the online publisher immunity provided by Section 230 of the Communications Decency Act might not be as broad as many folks believe.

CDA Section 230, in a nutshell, provides users or providers of interactive computer services with immunity from lawsuits seeking to hold them responsible as publishers of unlawful content authored by third parties. Nearly all courts have interpreted CDA Section 230, a law written in 1996, as providing broad immunity to interactive computer services for third-party content -- regardless of whether the computer services provider exercised its statutorily protected right to screen objectionable content or whether it allowed third-party content to flow freely over its network.

Easterbrook's Doe opinion revealed a judge who is not particularly impressed with interpretations of CDA Section 230 that give online publishers no incentive at all to filter objectionable content submitted by third-parties.  Screening for offensive third-party content is expensive, so why would online publishers do it if they received immunity regardless. "If this reading is sound," he wrote, then a statute titled "Protection for `Good Samaritan' blocking and screening of offensive material" would, in practice, "induce ISPs to do nothing about the distribution of indecent and offensive materials via their services." Easterbrook suggested in Doe that a plausible interpretation of CDA Section 230 would be that it provides immunity only in those cases in which the publisher is in fact screening for objectionable third-party content.

As it turns out, this is the same argument being urged upon the court in today's Craigslist arguments.

Update: A recording of the oral argument is available at the Seventh Circuit's Web site.

Update: Chicago attorney Michael Erdman posted his impressions of the argument at his Online Liability blog. Erdman's account of the argument casts some doubt on my ruminations that Craigslist is in a little trouble here.

The disappointment is palpable at Prof. Eric Goldman's Technology & Marketing Law Blog over the district court's failure to say anything (other than "denied") about the merits of Google's motion to dismiss American Airline's trademark claim over Google's sale of trademarked terms as search keywords. Prof. Goldman would have liked a clear statement from the court that the sale of trademarked term as a search keyword is not a commercial use of the mark.

Also missed was an opportunity to hear the court's views on Google's argument that Section 230 of the Communications Decency Act immunizes Google from all of American Airline's state-law claims. Google also claims CDA Section 230 immunity to American's federal Lanham Act claim for false representation because, Google argues, a federal false representation claim is not an intellectual property claim; thus, it doesn't fall within CDA Section 230's exception for intellectual property claims.

CDA Section 230 immunity is the "Where's Waldo" of liability defenses: if you look hard enough you can find it. As far as I can tell Google has not claimed CDA immunity in any prior lawsuits (Geico, Rescuecom, American Blind) challenging its sale of trademarks to trigger advertising for the mark owner's competitor. In the American Airlines case, however, Google is claiming that the advertising content (links and text) triggered by searches on American's marks are third-party content -- similar to a comment on a blog or a message on an online bulletin board. Holding a provider or user of interactive computer services liable for third party content is forbidden by CDA Section 230. "American's complaint is an attempt to impose liability on Google for ads created and placed by third parties," Google argued in its motion to dismiss. "This admitted attempt to impose liability on Google as a publisher of third-party content is explicitly prohibited by the CDA."

The court's answer to that argument would have made for interesting reading.

The case is American Airlines Inc. v. Google Inc., No. 07-cv-487 (N.D. Tex. Oct. 24, 2007).

The U.S. Supreme Court today declined to review Delfino v. Agilent Technologies Inc., No. 06-1561, a case out of California that contained a handful of disputed issues involving Section 230 of the Communications Decency Act. The lower court opinion is mostly known for the court's conclusion that the defendant, a technology company not in the business of providing online services, was nevertheless a "provider ... of interactive computer services" and thus entitled to CDA immunity in a tort suit arising out of its employee's computer use.  The court was persuaded that the defendant's provision of e-mail and Internet connectivity to employees was enough to make it an "interactive computer services" provider.

I'm sure most attorneys were surprised -- but pleased -- to see Delfino anoint each and every Internet-connected business with CDA immunity. Likely few wanted -- or expected -- the high court to spend a precious cert grant on this issue.

Still on the high court's docket is Perfect 10 v. CCBill LLC, No. 07-266 (cert. petition filed Aug. 27, 2007), a case seeking review of the Ninth Circuit's conclusion that the CDA immunizes interactive computer services providers from state-law intellectual property claims. The CDA exemption for "any law pertaining to intellectual property" is properly construed to mean federal intellectual property only, the Ninth Circuit decided.

Thomas R. Burke and Ambika K. Doran at Davis Wright Tremaine published a nice article today summarizing the state of CDA Section 230's publisher immunity for user-generated content following the Ninth Circuit's decision in Fair Housing Council of San Fernando Valley v. Roommates.com, No. 04-56916 (9th Cir. May 15, 2007).

Roommates.com held that an online roommate matching service was not eligible for CDA immunity from fair housing claims arising from user messages posted in response to structured, profile-building questions about roommate preferences. The ruling surprised traditional publishers, who are scrambling frantically to climb aboard the Web 2.0 bandwagon by incorporating user-generated content into their Web sites, because it created liability under circumstances where most attorneys had been counseling there was ems.bna.com. Roommates.com, in a very tiny nutshell, held that the Web publisher/defendant's involvement in shaping its users' comments through profile-building questions made it "responsible ... in part" for the users' comments; accordingly, under 47 U.S.C.§230(f)(3), the Web publisher was an "information content provider" fully liable for the legal consequences of the user comments.

Burke and Doran note that, even after Roommates.com, the basic principle that Web publishers enjoy CDA immunity for most causes of action arising from user-generated content remains intact. The acts of creating online bulletin boards, or seeking comment on a particular news story, are still protected by CDA immunity. The CDA's "good Samaritan" protection for instances in which Web publishers take steps to remove or filter offensive or libelous material also continues to be available to publishers. Finally, Web publishers still retain the ability to promote the presence of user-generated content on their sites without fear of losing their CDA immunity.

However, the article advises, "website operators should remain cautious about allowing users to post their own comments if the space provided for doing so overtly urges readers to post information that a court might deem illegal."

The Ninth Circuit is currently considering a petition seeking en banc rehearing of the Roommates.com decision.

With so many CDA Section 230 decisions already on the books, the First Circuit did not have to break any new ground when it ruled, in Universal Communication Systems Inc. v. Lycos Inc., No. 06-1826 (1st Cir. Feb. 23, 2007), that Lycos is immune to a defamation claim arising from user posts made on its Raging Bull message boards. Yes, Lycos is a "provider ... of an interactive computer service." Yes, the plaintiff's complaint is based on "information provided by another information content provider." Yes, the plaintiff's defamation claim would treat Lycos "as the publisher or speaker" of that information -- a legal claim for which CDA Section 230 clearly provides immunity. So ruled the First Circuit in this case.

However, along the way, the court disposed of a novel attempt to plead around a clear case of CDA immunity. Draping itself in language borrowed from the copyright infringement case of MGM Studios Inc. v. Grokster Inc., 125 S. Ct. 2764 (2004), the plaintiff claimed that Lycos "actively induced" the spread of disinformation by its message board users. Even assuming that CDA Section 230 could be read to contain an "active inducement" exception, the court said, Lycos did not do anything that would qualify as active inducement of defamatory postings by its users.

The court specifically rejected the contention that Lycos' history of taking legal steps to protect its subscribers from attempts to uncover their identities -- including moving to quash subpoenas and intervening in court cases -- amounted to an inducement of unlawful activity.