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Important Holding on Service Provider / Web Site Operator Immunity from State Intellectual Property Lawsuits:

47 U.S.C. § 230 immunizes Internet Service Providers, Web site operators, and others from being held liable for what their users post. Thus, for instance, if you post something defamatory in the comments, we won't be liable for it to the defamed party, though you would be liable, and though we would be liable for content we ourselves originate.

The statute, though, exempts "intellectual property." That clearly means the provider or operator could be liable for copyright infringement by its users (subject to the separate rules provided by the Digital Milennium Copyright Act, 17 U.S.C. § 512), and likely for federal trademark infringement.

But what about state law rules? The right of publicity (i.e., the right to control certain commercial uses of one's name, likeness, or identity) is a potential example. It's not clear whether it's an intellectual property rule, but if it is treated as an intellectual property rule, could AOL be sued because an AOL user puts up a commercial Web site that infringes a celebrity's right of publicity?

The Ninth Circuit has just held, in today's Perfect10, Inc. v. CCBill LLC that the "intellectual property" exception to the § 230 immunity covers only federal intellectual property claims; state intellectual property claims are preempted. Here's the relevant passage (some paragraph breaks added):

The Communications Decency Act states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," and expressly preempts any state law to the contrary…. The immunity created by § 230(c)(1) is limited by § 230(e)(2), which requires the court to "construe Section 230(c)(1) in a manner that would neither 'limit or expand any law pertaining to intellectual property.'" As a result, the CDA does not clothe service providers in immunity from "law[s] pertaining to intellectual property."

The CDA does not contain an express definition of "intellectual property," and there are many types of claims in both state and federal law which may -- or may not -- be characterized as "intellectual property" claims. While the scope of federal intellectual property law is relatively well-established, state laws protecting "intellectual property," however defined, are by no means uniform. Such laws may bear various names, provide for varying causes of action and remedies, and have varying purposes and policy goals.

Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state's definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress's expressed goal of insulating the development of the Internet from the various state-law regimes. See 47 U.S.C. §§ 230(a) and (b); see also Batzel, 333 F.3d at 1027 (noting that "courts construing § 230 have recognized as critical in applying the statute the concern that lawsuits could threaten the 'freedom of speech in the new and burgeoning Internet medium'").

In the absence of a definition from Congress, we construe the term "intellectual property" to mean "federal intellectual property."

A pretty important decision, and to my knowledge the first on the subject (though please correct me if I'm wrong). Many thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. 47 U.S.C. § 230 and State Intellectual Property Rules:
  2. Important Holding on Service Provider / Web Site Operator Immunity from State Intellectual Property Lawsuits:
Bored Lawyer:
Two Questions:

1) Under Section 43(a) of the Lanham Act, there is a cause of action for using any symbol or device which has the effect of falsely implying approval or sponsorship of the product or service.


Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, . . . which--


(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. Sec. 1125(a).


Many right of publicity claims can easily be cast as violative of the statute, a federal one. Is such a claim within the "intellectual property" exception or within the immunty?

2. How about state law claims which are cognates of federal ones -- e.g state law trademark infringement, which are routinely plead along with Lanham Act claims? Excepted or immune?
3.29.2007 6:31pm
Justin Levine:
The court got it right this time. If you allow states to define 'intellectual property' for purposes of the DMCA, then some states will go on to define it so broadly as to effectively make an end-run around the law. You can just recast your defamation claim as a 'publicity' claim instead.
3.29.2007 9:04pm
Kovarsky (mail):
i honestly dont understand why the proclamation regarding "federal intellectual property" was necessary. i haven't scrutinized the safe harbor provision decisional law in a few years, but i always understand the rule of immunity as one of just that - immunity.

and whether a party is immune from a cause of action is a separate question from the contours of the substantive law. you can enjoy immunity from a cause of action without altering its substantive scope. under this reading, thet service provider is also immune from federal copyright and patent infringement actions if that action is based on the service provider's role as a (re)publisher. i can only assume that there is now case law refuting this proposition - that liability as publisher can attach even under federal IP law - otherwise the interpretation offered by the 9th circuit seems completely unnecessary.
3.29.2007 11:04pm
Bored Lawyer:
The immunity has an exception: IP causes of action. The pertinent subsection states: “Nothing in this section [granting the immunity] shall be construed to limit or expand any law pertaining to intellectual property.” 47 U.S.C. § 230(e)(2).

Not to brag (well why not) but I was counsel in Gucci America, Inc. v. Hall and Assocs. in which the District Court held that Earthlink, the ISP for a website which was infringing Gucci's trademark, could not claim the immunity, because Gucci claimed that by allowing the website to use its services, the ISP was liable for contributory infringement. It's reported at 135 F.Supp.2d 409, 60 U.S.P.Q.2d 1714 (S.D.N.Y. 2001)

Theoretically, the ISP could be liable for contributory copyright infringement under the 1996 Act. But then Congress passed the DMCA in 1998, which closely regulates copyright liability for webhosting and such acts.

Patent liability is another theoretical application, but I have never seen any cases on it.
3.29.2007 11:41pm
Ben Coates:
I'm kind of disappointed that the phrase "intellectual property" got stuck into the law. It's a political buzzword and a terrible metaphor that unncessarily confueses patents, trademarks, copyrights, etc. Less loaded and more precice terminology wouldn't have put the courts in the position of trying to read Congress's mind in the first place.
3.30.2007 7:46am