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EBay Inc. cannot be sued for auctioning sound recordings over its Web site that may infringe on a copyright, a San Francisco superior court judge ruled on Tuesday. Attorney Randall Stoner filed suit against eBay claiming the company’s sale of “bootleg” recordings constituted unfair business practices in violation of Business and Professions Code 17200. Judge Stuart Pollak ruled in a motion for summary judgment that the online auction company is immune from liability from such claims under the Communications Decency Act. Pollak said the law specifies that the provider of an interactive computer service cannot be treated as the publisher of information provided by another content provider. In addition, he said, the legislation creates “a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third party.” Pollak’s application of the Communications Decency Act to this case is novel. “The ruling is the first of its kind to apply the CDA immunity provision to a 17200 claim on a business like eBay,” said Jay Monahan, eBay’s associate general counsel for intellectual property. However, he added, “it’s entirely consistent with prior cases in this area.” But the plaintiff’s counsel believes the application of the CDA is inappropriate and could provide grounds to appeal Pollak’s decision. “This is an issue of first impression,” said Charles Perkins, of Jenkins, Goodman & Neuman. “The applicability of this act to an online auction house like eBay” is questionable. He said he needs to discuss whether to appeal the ruling with his client and co-counsel but “my suspicion is that we will appeal.” Stoner claimed in his suit that eBay is liable for failing to inform prospective purchasers that the recordings auctioned on its site may be illegal. But Pollak disagreed. “Plaintiff’s attempt to impose responsibility on eBay as the seller of items auctioned over its service is no different from the unsuccessful attempts that have been made to hold computer service providers liable as distributors rather than as publishers of defamatory or pornographic materials,” he wrote. Pollak added that if eBay was held liable for the sale of unauthorized recordings, there is no reason why liability would not extend to the auction of any other form of contraband. “The burden that such an obligation would place on a service such as eBay likely would force it to cease, or at least significantly restrict, its operations,” Pollak wrote. “If such an obligation is to be imposed, it is Congress that must be asked to reevaluate the immunity conferred by” the Communications Decency Act. Stoner, a solo practitioner in Encinitas, made the news three years ago when he represented a client who claimed to use marijuana for migraine headaches. First District Court of Appeal justices questioned why Stoner failed to raise the recently passed Proposition 215 medical marijuana defense. Christopher Ottenweller, a partner at Orrick, Herrington & Sutcliffe’s Palo Alto office, served as eBay’s counsel in the case. Stoner was represented by Perkins and John Feeney, of Murphy, Pearson, Bradley & Feeney.

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