Posted by Eugene Volokh:
47 U.S.C. § 230 and State Intellectual Property Rules:
http://volokh.com/archives/archive_2007_05_27-2007_06_02.shtml#1180714452
In late March, [1]the Ninth Circuit handed down an important holding
about 47 U.S.C. � 230. This statute 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 it's not clear whether it covers
state law rules that are sometimes characterized as intellectual
property laws, for instance the state law right of publicity. The
Ninth Circuit held that the � 230 exemption covers only federal
intellectual property laws, not state ones.
Bruce Wessel reports that yesterday the Ninth Circuit amended the
opinion to justify its conclusion further:
In its petition for rehearing, Perfect 10 claims that our decision
on this point conflicts with Universal Communication Systems, Inc.
v. Lycos, Inc., 478 F.3d 413 (1st Cir.2007). But neither party in
that case raised the question of whether state law counts as
�intellectual property� for purposes of § 230 and the court seems
to simply have assumed that it does. We thus create no conflict
with Universal Communication.
We note that Universal Communication demonstrates the difficulties
inherent in allowing state laws to count as intellectual property
for CDA purposes. In that case, the district court struggled with
the question of whether the �trademark dilution� claim brought
under Florida Law counted as intellectual property for purposes of
the CDA, and concluded that it was more like a defamation claim
than a trademark claim. Id. at 423 n. 7. Rather than decide how to
draw the line between defamation and trademark, the First Circuit
held that �because of the serious First Amendment issues that would
be raised� if Lycos were found liable, defendant had not violated
the Florida statute. Id. at 423.
The First Circuit was able to sidestep the question of what counted
as intellectual property on First Amendment grounds. But we cannot
do so here. States have any number of laws that could be
characterized as intellectual property laws: trademark, unfair
competition, dilution, right of publicity and trade defamation, to
name just a few. Because such laws vary widely from state to state,
no litigant will know if he is entitled to immunity for a state
claim until a court decides the legal issue. And, of course,
defendants that are otherwise entitled to CDA immunity will usually
be subject to the law of numerous states. An entity otherwise
entitled to § 230 immunity would thus be forced to bear the costs
of litigation under a wide variety of state statutes that could
arguably be classified as �intellectual property.� As a practical
matter, inclusion of rights protected by state law within the
�intellectual property� exemption would fatally undermine the broad
grant of immunity provided by the CDA.
References
1. http://volokh.com/posts/1175197134.shtml
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