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A group of college athletes filmed in various states of undress are barred from suing the Internet service providers that hosted Web sites offering the clandestine tapes for sale, a federal judge in Chicago has ruled. U.S. District Judge Charles P. Kocoras on Wednesday dismissed defendants PSINet and GTE Corp. from the civil rights suit, saying the companies are immune from liability under the Communications Decency Act of 1996. One of the attorneys representing the athletes said he is disappointed with the decision and may appeal. “Granting immunity to host service defendants only encourages this sort of activity,” said James R. Branit, the Bullaro & Carton Chtd. attorney who represents two of 30 plaintiffs identified in the litigation only as “John Does.” PSINet’s attorney, however, saw the ruling as significant and hopes it will discourage future cases. “If the case had gone the other way, it would have been really bad news because virtually all corporate Web sites are hosted,” said Laurin H. Mills, of the Washington, DC, firm Nixon Peabody. Mills and lawyers for GTE have maintained throughout that the proper remedy for such claims should be sought from the people who run the Web sites, not the conduit. “People use the telephone to commit fraud all the time, but you don’t sue the telephone company,” Mills explained. The decision, Mills said, goes one step further from previous court rulings, which have said companies are immune from liability when people post messages on bulletin boards or when, as in the case of Matt Drudge and America Online, service providers enter into agreements with content providers. The athletes, mostly wrestling and football players from schools such as Northwestern University, Indiana University, Illinois State University, Michigan State and the University of Pennsylvania, filed suit last year against the defendants after learning they had been secretly taped in locker rooms, and the tapes subsequently put up for sale on various Web sites. Kocoras already has issued an order of default against Web site operators Franco Productions, RODCO, AMO Video and Logan Gaines Entertainment for failing to respond to the complaint. Damages are pending. But Wednesday’s ruling means the athletes have no recourse against the companies that kept the sites on the Internet. In an amended complaint, the plaintiffs in essence alleged three things: that PSINet and GTE should not be considered service providers in their capacity as hosts; that the companies contributed to the conduct of the content providers by helping create or format the Web sites in question; and that the companies failed to restrict the content once they found out about it. “We are not seeking to hold the host server defendants liable for publication or speech, but rather for their failure to disassociate themselves from Web sites once they learned of their conduct,” Branit said, noting that “at least one of the sites continued to advertise videotapes for sale after the lawsuit was filed.” Regardless, Kocoras ruled, the companies should be excluded. “What plaintiffs ignore is that by seeking to hold GTE and PSINet liable for their decision not to restrict certain content it is seeking to hold them liable in a publisher’s capacity,” Kocoras wrote in a 15-page memorandum opinion. The judge cited Section 230 (c)(1) of the Communications Decency Act, which states, “No 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.” Kocoras further reasoned plaintiffs were incorrect to allege Web-hosting activities somehow transform an entity into an information content provider. “By offering Web hosting services which enable someone to create a Web page, GTE and PSINet are not magically rendered the creators of those Web pages,” Kocoras wrote. The judge also struck a third-party beneficiary claim against PSINet and GTE, and failed to state a claim against the two under the Electronic Communications Privacy Act. Kocoras is expected to respond in July to a separate defense motion seeking dismissal of university employees based on qualified immunity claims. The case is John Does 1 through 30 inclusive, and Unknown Illinois State University Football Players, v. Franco Productions, Dan Franco, individually and d/b/a Franco Productions, et al., No. 99 C 7885.

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