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Recent decisions applying � 230 of the CommunicationsDecency Act of 1996 (CDA) have extended � 230 immunity to Internet serviceproviders (ISPs) that offer services beyond traditional access, to individuals,to commercial and governmental entities and to interactive Web site operators.One recent decision, however, restrictively defined “interactive computerservice,” and two decisions denied � 230 immunity to ISPs that allegedlyparticipated in violations of trademark law. Section 230 states that “[n]o provider or user of aninteractive computer service shall be treated as the publisher or speaker ofany information provided by another information content provider.” 47U.S.C. 230(c)(1). Section 230 was passed in response to Stratton OakmontInc. v. Prodigy Services Co., 1995 N.Y. Misc. Lexis 229 (Nassau Co., N.Y.,Sup. Ct. 1995). There, a New York court held that an ISP could be held liablefor defamation as a publisher if it retained control over the postings on itssite, even though it did not create or assist in the creation of the allegedlydefamatory statements. Following its passage, � 230 immunity was principallyinvoked by ISPs that were sued for content posted by other individuals, usuallyon Internet bulletin boards or in “chat rooms.” See, e.g., Zeranv. America Online Inc., 129 F.3d 327 (4th Cir. 1997) (AOL immune fromliability for messages posted by individual); Doe v. America Online Inc.,783 So. 2d 1010 (Fla. Sup. Ct.), cert. denied, 151 L. Ed. 2d 148 (2001) (AOLimmune from liability arising from use of chat room for distribution ofpornographic videotape and photographs of minor child). Several recent decisions have applied � 230 immunity todefendants that were either not providing traditional Internet access servicesor were not ISPs. These courts have reasoned that the defendants are entitledto � 230 immunity because the defendants are providers or users of aninteractive computer service, they did not create the material at issue andimposing liability on them would treat them as the publisher or speaker. ADDITIONAL ISP SERVICES The first case to address the applicability of � 230 toInternet services that were not purely access related was John Does 1through 30 v. Franco Productions, 2000 U.S. Dist. Lexis 8645 (N.D. Ill.June 22, 2000). There, the ISP defendants were alleged to have hosted Web sitesthat offered for sale surreptitiously taken photographs and videos of majorcollege athletes in various stages of undress. The court held that ISPs that merely host Web sites are notliable for material posted on their sites by their customers: “The Court reiteratesits previous holding finding GTE, and now similarly PSINet, service providerswhose immunity or status as service providers under the CDA is not vitiatedbecause of their web hosting activities, whether viewed in combination withtheir roles as service providers or in isolation. … [B]y offering web hostingservices which enables someone to create a web page, GTE and PSINet are notmagically rendered the creators of those web pages.” Id. at *13-15.The court also rejected the plaintiffs’ theory that they were intendedthird-party beneficiaries, finding that there was no identification of theplaintiffs in the contract between the ISPs and the sites they were hosting. Id.at *16-17. See also Morrison v. America Online Inc., 153 F. Supp. 2d930 (N.D. Ind. 2001). In 1996, when � 230 was enacted, Web hosting was an infantindustry. It is by no means clear that Congress was even aware of its existencewhen it enacted the CDA. By 2000, when Franco Productionswas decided,Web hosting had become a major source of revenue for ISPs and a central part oftheir business models. Thus, even though Congress was likely ignorant of Webhosting in 1996, it would have made no sense for the court to hold that � 230immunized ISPs in one area of their operations but not in others. For thatreason, the broad interpretation that the court gave to the term”interactive computer service” to encompass Web hosting servicesseems to be warranted and consistent with the intent of Congress. Other courts have also declined to interpret � 230 narrowly.In Green v. America Online Inc., No. 00-3367 (D.N.J. Dec. 20, 2000), theplaintiff alleged that AOL allowed a computer program to be sent by anotherindividual that caused the plaintiff damages of $400. In response to AOL’sargument that his claims were barred by � 230 because AOL did not create thedestructive program, the plaintiff argued that the computer program felloutside the reach of � 230 because it was a “signal.” The courtrejected this argument: “By its very nature, the use of the Internetentails using or sending a great many signals. A narrow interpretation of theterm ‘information’ would thus make interactive service providers, such as AOL,liable only for items that are written, and not the potentially more dangeroustransmissions such as computer viruses. Such a construction would run afoul ofthe protection Congress intended to give interactive service providers byenacting � 230.” These two cases demonstrate that � 230 protections applyto the full range of ISP services so long as the ISPs are not directly involvedin the creation of the content at issue. Section 230 immunity has also been extended to individuals,to governmental entities and to brick-and-mortar companies. In Marczeski v.Law, 122 F. Supp. 2d. 315 (D. Conn. 2000), the court held that individualdefendants who allegedly created a chat room where the plaintiff was libeledwere entitled to immunity under � 230. This is the first case extending � 230immunity to individuals. The court held: “[T]here is no basis for imposingany liability on either defendant for any defamatory statements made byothers.” Id. at 327. Similarly, Barrett v. Clark, No. 833021-5, 2001 WL881259 (Calif. Sup. Ct. July 25, 2001), extended � 230 protection to anindividual who “reposted” an allegedly libelous message to variousInternet newsgroups. The evidence demonstrated that the message was originallyposted by another individual, and then reposted by the individual claiming �230 immunity. The court agreed that the reposter was immune from liabilityunder � 230. Barrettrepresents an exceptionally broadinterpretation of � 230. The decision provides “reposters” ofinformation with complete immunity, even if it is alleged that the reposterknew the information was false or acted in reckless disregard of the truth. Inwords familiar to libel lawyers, even if the reposter acted with actual malice,he or she is still immune. That is an immunity that goes well beyond mostimmunities accorded to traditional media. In enacting � 230 Congress expressly intended to create incyberspace immunities that go well beyond those available in other contexts.Thus, there is nothing surprising about the fact that an immunity granted under� 230 conflicts with the law outside of cyberspace. Moreover, an actual maliceexception would largely eviscerate � 230 protection because plaintiffs couldmerely plead malice and thereby keep ISP defendants in cases for very longperiods of time. By contrast, in Batzel v. Smith, 2001 U.S. Dist.Lexis 8929 (C.D. Calif. June 5, 2001), the court refused to grant an individualand his Web site � 230 immunity. The plaintiff alleged that Ton Cremers, thecreator and sole operator of the Web site Museum Security Network, published anallegedly defamatory e-mail message sent by another individual withoutinvestigating the veracity of the contents. The defendants moved to dismissunder California’s anti-SLAPP statute. In response, the plaintiff argued thatthe individual defendant may have altered the contents of the allegedlydefamatory message, arguably making him the content provider, and that � 230was designed to protect only large Internet service providers. The court denied � 230 immunity apparently based upon thesecond argument. It held that Museum Security Network and the individualcreator/operator were not “an internet service provider within the meaningof the Act. … MSN … is clearly not an internet service provider, as it hasno capability to provide internet access. To the contrary, it is plainly an ‘informationcontent provider’ within the meaning of the Act.” 2001 U.S. Dist. Lexis8929, at *21-22. The defendant in Batzelis currently seeking review bythe 9th U.S. Circuit Court of Appeals. In Kathleen R. v. City of Livermore, 87 Cal. App. 4th684 (2001), � 230 immunity was extended to libraries. The case was brought bythe mother of a minor who allegedly used the library’s computers to link to theInternet and download sexually explicit photos. The court held that the librarywas immune, holding that it “is not an ‘information content provider’because it is not ‘responsible, in whole or in part, for the creation ordevelopment’ of any of the harmful matter accessible through itscomputers.” Id. at 692. The court rejected the plaintiff’sarguments that a governmental entity could not avail itself of � 230 immunity. The next logical extension of � 230 immunity was to abrick-and-mortar company that provided access to the Web. In PatentWizard Inc. v. Kinko’s Inc., 163 F. Supp. 2d1069 (D.S.D. 2001), the plaintiff, the owner of a software company, claimedthat he and his company were defamed during a chat room session. Instead ofsuing the person who made the allegedly defamatory comments(“Jimmy”), the plaintiff sued Kinko’s, whose computers Jimmy used tolog onto the Internet. The parties agreed that Kinko’s was a provider of an”interactive computer service,” and that Jimmy was an”information content provider.” The only question before the courtwas whether the complaint sought to treat Kinko’s as a publisher or speaker ofinformation that Jimmy posted on the Internet. The court held that the complaint sought to treat Kinko’s asa publisher for purposes of � 230 in two different ways: “First, it seeksto treat Kinko’s as a distributor by imposing liability upon Kinko’s for itsconduct in disseminating Jimmy’s statements. … Second, the Complaint seeks toplace Kinko’s in Jimmy’s shoes, by holding Kinko’s responsible for allegeddefamatory matter that was published by Jimmy.” Id. at 1071. Basedon that reasoning, the court held that Kinko’s was immune for the postings madeby its customer, Jimmy. A trio of decisions in the past year has extended � 230immunity to commercial Web sites that post content developed by others. Thesecases are similar in many ways to the Zeranand Doedecisions inthat they immunize companies that provide a forum for the exchange of messages,but do not themselves create the messages. In Schneider v. Amazon Inc., 31 P.3d 37 (Wash. Ct.App. 2001), the court held that � 230 immunized Amazon from liability forallegedly defamatory comments posted by third parties on Amazon’s Web site. Theplaintiff alleged that Amazon posted visitors’ comments about him and his booksthat were allegedly defamatory. The plaintiff further alleged that Amazonagreed to remove the offensive comments because it violated Amazon’sguidelines, but failed to do so. Although the court noted that there were no decisionsdiscussing whether an interactive Web site operator, like Amazon, was entitledto immunity under the statute, it held that Amazon was an interactive computerservice: “According to Schneider’s complaint, Amazon’s web site enablesvisitors to the site to comment about authors and their work, thus providing aninformation service that necessarily enables access by multiple users to aserver. This brings Amazon squarely within the definition.” Id. at40. The court also rejected the plaintiff’s arguments that because Amazon hadthe right to edit the posting, and because Amazon claimed licensing rights inthe posted material, it should be construed as an information content provider. Similarly, in Stoner v. eBay Inc., No. 305666 (Calif.Sup. Ct. Nov. 7, 2000), the court held that eBay was immune under � 230 forcontent posted by other individuals. It was undisputed that eBay was aninteractive service provider, and that the content at issue, descriptions ofthe goods and services offered for sale, was developed entirely by others.Although the plaintiff claimed that eBay was participating itself in the saleof the contraband material by offering insurance and escrow services, the courtrejected this argument. These cases make clear that courts will reject attempts byplaintiffs to avoid � 230 by arguing that defendants should be treated as contentproviders because they provide services that are ancillary to the creation ofcontent. THE TRADEMARK CASES Two recent cases that have refused to grant � 230 immunityto ISPs both concern trademark law. In Gucci America Inc. v. Hall &Assoc., 135 F. Supp. 2d 409 (S.D.N.Y. 2001), the complaint alleged thatMindspring hosted another defendant’s Web page, that Mindspring was informedthat the other defendant was using Mindspring’s services to aid in trademarkand unfair competition, and that Mindspring failed to take any action to stopit. Mindspring maintained that � 230 immunized it from liability forinformation posted on the site because it was an interactive computer serviceand the other defendant was the content provider of the content at issue. The plaintiff agreed that Mindspring was an interactivecomputer service and the other defendant was the information content providerof the content at issue. It argued, however, that Mindspring was not immunebecause � 230 specifically provided that “[n]othing in this section shallbe construed to limit or expand any law pertaining to intellectualproperty.” Id. at 412 (citing 47 U.S.C. � 230(e)(2)). The courtnoted that under existing trademark law, publishers may, under certaincircumstances, be held liable for trademark infringement. Accordingly, it heldthat immunizing Mindspring from the plaintiff’s claims would “limit”the laws pertaining to intellectual property and refused to grant its motion todismiss. In Ford Motor Co. v. GreatDomains.com Inc., No. 00-CV-71544-DT(E.D. Mich. Sept. 25, 2001), the court came to a similar conclusion. These cases arguably conflict with the broad interpretationsgiven � 230 by other courts. Moreover, it seems to make little sense toimmunize ISPs from virtually every other tort claim while keeping thempotentially liable as publishers for trademark claims. Nevertheless, � 230specifically carved out intellectual property claims. Given that expressstatutory language, these cases may have been correctly decided. But theseholdings are certain to inspire some strained trademark claims as creativeplaintiffs’ attorneys attempt to circumvent the � 230 immunities in search ofdeep pockets. There is, however, an argument that was either overlooked bythe parties or ignored by the court. That argument is that trademark claims arenot “intellectual property” claims. While the cases are legiongrouping trademark under the rubric of intellectual property, and there is aU.S. Patent and Trademark Office, trademarks are, in many respects,fundamentally different from intellectual property. Patent and copyright lawsare designed to foster and reward innovation and invention. Aronson v. QuickPoint Pencil Co., 440 U.S. 257, 262 (1979). By contrast, the purpose oftrademark protection is to avoid consumer confusion and to protect the goodwillof the trademark owner’s business. Park ‘N Fly Inc. v. Dollar Park and FlyInc., 469 U.S. 189, 198 (1985). They also differ historically. Congress’ power over patentsand copyrights is derived specifically from Art. I, � 8, cl. 8 of theConstitution (the “intellectual property clause”), which authorizesCongress to “promote the progress of science and useful arts, by securingfor limited times to authors and inventors the exclusive right to their inventionsand discoveries.” Trademark, however, is merely a branch of unfaircompetition law and was recognized by the common law prior to the Constitution.Moreover, federal legislation with respect to trademarks is authorized underthe commerce clause, not the intellectual property clause. United States v.Steffens, 100 U.S. 82, 93-94 (1879). Congress did not define “intellectual property” in� 230 or elsewhere in the CDA. In at least one major statute, however, whereCongress did define the term, it specifically defined it to exclude trademark. See,e.g., 11 U.S.C. 101(35A) (excluding trademarks from the definition ofIntellectual Property for purposes of the Bankruptcy Code); accord In reGucci, 126 F.3d 380, 394 (2d Cir. 1997) (noting that “protection oftrademarks [was] deliberately not conferred” by Congress when it defined”intellectual property” in the Bankruptcy Code; but see 15 U.S.C.4711(7); 19 U.S.C. 2411 and 2901 (defining intellectual property to includetrademark). The bottom line is that trademark was not lumped under therubric of “intellectual property” either at common law or in theConstitution. Congress has inconsistently defined the term in other statutes.Thus, the most that can be said is that it is unclear whether Congress intendedto exclude trademark from � 230 protection. It is, nevertheless, clear that Congress did intend � 230 tohave a very broad sweep with respect to other causes of action. The Guccidecisionwould appear to leave ISPs with a Hobson’s choice when notified of a clientthat is allegedly violating trademark laws: take down the Web site containingthe allegedly offensive material, and risk inviting a lawsuit from the clientif the material did not violate trademark laws, or leave the Web site runningand risk being forced to defend a suit alleging violations of trademark law. Given the historical underpinnings of trademark law, andCongress’ intent that ISPs should not be forced to make on-the-spot decisionsthat could expose them to potential liability, there is some justification toinclude trademark claims within the coverage of � 230. The clear trend in the law is toward increasingly expansiveinterpretations of � 230 to encompass new applications of Internet technology,new “interactive computer services” and increasingly novel factualscenarios. Unless expressly required by the statute to do so, courts have beenuniformly reluctant to carve “backdoors” into � 230 to circumvent itsimmunities. Laurin H. Mills is a partner, and Leslie Paul Machado isan associate, in the Washington, D.C., office of Nixon Peabody, www.nixonpeabody.com. Both arefounding members of the firm’s media and communications team. The authorsrepresented PSINet Inc. inJohn Does 1 through 30 v. Franco Productions, acase discussed in the article.

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