Another 512(f) Case Fails–Handshoe v. Perrett

This is a long-running series of cases. I first blogged a related dispute in 2013 (plus a second blog post in 2013 as well). Regarding this case, Handshoe posted a YouTube video that included a photo apparently owned by a Canadian entity. The Canadian entity submitted a takedown notice in Canada, and YouTube blocked the video in Canada. (The takedown notice was YouTube’s online form, and there is some dispute whether the form constitutes a 512(c)(3) takedown notice). Handshoe made a 512(f) claim based on the takedown notice. It failed:

Leary has submitted competent summary judgment evidence demonstrating that he believed that Trout Point Lodge owned the Canadian copyright to the Photograph at issue. As Trout Point Lodge’s director, Leary has sufficiently shown that he held a good-faith belief that Handshoe had no permission from Trout Point Lodge to use, reproduce, or publish the Photograph. Leary completed the online YouTube form only after receiving notification that the Nova Scotia Supreme Court had resolved a copyright infringement claim involving the Photograph in Trout Point’s favor. To the extent the Fifth Circuit would hold that a person must consider fair use under §512(f), according to Leary’s sworn Declaration he took into consideration principles of fair use when completing the YouTube form. The evidence here uniformly supports Leary’s defense of good faith, and he has carried his initial summary judgment burden of demonstrating that he is entitled to judgment as a matter of law on Handshoe’s claim in Count 5.

In response, Handshoe has not come forth with competent summary judgment evidence that calls into question Leary’s good faith belief. Even if Leary acted unreasonably and made an unknowing mistake in his submission of the online form to YouTube, Handshoe has not presented evidence that tends to demonstrate some knowing misrepresentation on Leary’s part.

No big surprises here. Indeed, the Nova Scotia court ruling seems to be as solid evidence of the defendant’s “good faith” as I can imagine seeing in a 512(f) case.

In a footnote the court acknowledges as dicta, the court has some interesting things to say about the international angles of the case:

In this case, the conduct at issue is Leary’s, all of which occurred in Canada. The parties have not directed the Court to any evidence in the summary judgment record demonstrating that any part of Leary’s conduct took place in the United States or that Leary’s completion, while in Canada, of an online form that did not reference the DMCA constituted a knowing material misrepresentation “under [§ 512]” that Handshoe’s YouTube video was infringing Trout Point’s Canadian copyright. The form required Leary to select the country in which the copyright was located, and he chose Canada. The video was apparently disabled by YouTube in Canada, but not in other countries. Handshoe has not presented any competent summary judgment evidence tending to show that Leary invoked the laws of the United States in submitting the takedown notice on Trout Point Lodge’s behalf, or that the video was ever disabled in the United States. Leary avers under penalty of perjury that he did not intend to invoke the DMCA when he completed the YouTube form, but instead believed that YouTube was acting under its own policies and Canadian law due to his selection of Canada as the applicable jurisdiction. According to Leary, “[i]t was not obvious to me, and in fact it was unapparent, that YouTube was having me fill out a DMCA notice.” Handshoe has not submitted any probative summary judgment evidence to contradict this evidence.

We don’t see enough 512(f) cases to believe this fact pattern will repeat often, but it’s an interesting thought exercise to consider how copyright’s territoriality affects the 512(f) exposure by non-US residents submitting takedown notices to global services.

Case citation: Handshoe v. Perrett, (S.D. Miss. Sept. 13, 2018)

Prior Posts on Section 512(f):

* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
9th Circuit Sides With Fair Use in Dancing Baby Takedown Case
Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
17 USC 512(f) Is Dead–Lenz v. Universal Music
512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
Biosafe-One v. Hawks Dismissed
Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
New(ish) Report on 512 Takedown Notices
Can 512(f) Support an Injunction? Novotny v. Chapman
Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment

Section 230 Helps Malware Vendor Avoid Liability for Blocking Decision–PC Drivers v. Malwarebytes

I’d rather post cat photos, but this blog post is about PUPs [photo by Anik Shrestha, https://www.flickr.com/photos/anikshrestha/]

We rarely see cases like this any more, so I think it’s worth blogging this April ruling even though it just showed up in Westlaw.

PC Drivers makes software designed to speed up users’ computers, an industry niche that’s known to be filled with sketchy vendors. Malwarebytes makes anti-malware software. Malwarebytes labeled PC Drivers’ software as a “potentially unwanted program,” or PUP. Depending on users’ configuration of Malwarebytes, the PUP label disabled PC Drivers’ software and blocked access to its website. PC Drivers sued Malwarebytes for 10 claims, then moved for a preliminary injunction, which the court denied.

Section 230(c)(2)(B)

This case resembles the 9th Circuit’s Zango v. Kaspersky decision from 2009, which held that Section 230(c)(2)(B) protected Kaspersky’s blockage of Zango’s adware. That ruling functionally ended lawsuits by blocked software against anti-malware/virus software makers, which makes this lawsuit a throwback.

PC Drivers made 3 arguments to get around 230(c)(2)(B):

  • Malwarebytes isn’t a provider/user of an interactive computer service. The Zango ruling held that Kaspersky qualified because its software pinged its central servers for updated listings of blocked programs. This court agreed.
  • Malwarebytes isn’t publishing third party content. The court correctly says third party content is relevant only to 230(c)(1), not 230(c)(2)(B).
  • Malwarebytes lacked good faith. The court correctly says “good faith” isn’t an element of 230(c)(2)(B), though it does show up in 230(c)(A).

Thus, Section 230(c)(2)(B) preempts all of PC Drivers’ non-IP claims.

Lanham Act False Advertising (43(a))

The court sidesteps whether a 43(a) claim is an “IP” claim for 230 purposes (courts have split on that question). Instead, the court says there’s no false statement of fact:

The designation itself—“potentially unwanted program”—inherently carries with it the acknowledgment that it is only a guess as to whether the program is or is not unwanted, as made clear by the inclusion of the word “potentially.” Moreover, the descriptor “unwanted” looks more like a subjective opinion than a factual assertion.

Trademark Infringement

PC Drivers claimed that referencing its software caused consumers to think that Malwarebytes endorsed or sponsored its products. The court correctly calls this “strange” argument:

PC Drivers has not produced evidence suggesting that Malwarebytes has used PC Drivers’ mark in any way other than listing the name of the website to explain what it is blocking. There is no evidence that suggests affiliation, sponsorship, or endorsement by PC Drivers. Indeed, Malwarebytes’ use of the label “potentially unwanted program” to describe PC Drivers’ products implies anything but endorsement; customers told by Malwarebytes that PC Drivers’ software might be unwanted are not likely to think that PC Drivers endorses Malwarebytes.

The court concludes that Malwarebytes’ usage qualifies as nominative use: “Malwarebytes is informing the user of the name of the website it is blocking; it is unclear how it could do so without using the domain name.”

After the Ruling

This is a complete win for Malwarebytes. The court understood the situation perfectly and made several clearly correct rulings. Thus, it seems like Malwarebytes is well-positioned to dismiss the case.

In an unexpected twist, AFTER this denial of the request for a preliminary injunction, Malwarebytes moved to transfer the case to its home court of Northern District of California. I’m sure there are good reasons for this, but I’m a little surprised Malwarebytes would want to change judges after such a decisive ruling in its favor. Either way, the facts and law are on Malwarebytes’ side, so perhaps victory is inevitable no matter where the case is heard.

Case citation: PC Drivers Headquarters LP v. Malwarebytes Inc., 2018 WL 2996897 (W.D. Tex. April 23, 2018)

Other Posts on Malwarebytes:

Section 230(c)(2) Protects Anti-Malware Vendor–Enigma v. Malwarebytes

Message Board Operator May Be Liable For Moderator’s Content–Enigma v. Bleeping

The Necessity of Geoblocking in the Age of (Almost) Unavoidable Geolocation (Guest Blog Post)

by guest blogger Marketa Trimble

Recent U.S. court decisions suggest that geoblocking might no longer be optional – the use of geoblocking might now be de facto mandatory for any website operator who wants to avoid being subject to the jurisdiction of courts in the United States. This month, another decision concerning geoblocking was handed down, joining the earlier cases I discussed here in May 2017 and March 2018: The U.S. Court of Appeals for the First Circuit’s decision in Plixer Intl. v. Scrutinizer GmbH suggests that courts are growing skeptical of arguments claiming infeasibility or unreliability of geoblocking at a time when many, if not most, website operators want or need to know where their users are located and at a time when geoblocking is becoming cheaper and more reliable.

Plixer is a trademark infringement, unfair competition, and dilution case. Both the plaintiff and the defendant used the mark “Scrutinizer.” The plaintiff has a federal trademark registration for the mark in the United States. The German defendant, while having no U.S. trademark registration, used the mark on the Internet in connection with its own goods and services. At issue was whether the U.S. District Court for the District of Maine, in which the plaintiff brought the case, had specific jurisdiction over the German defendant per Federal Rule of Civil Procedure 4(k)(2), and the only disputed requirement of the Rule was whether the court’s exercise of personal jurisdiction comported with due process – meaning whether the German defendant had adequate minimum contacts with the United States.

The German defendant’s contacts with the United States stemmed from its Internet presence. It did not specifically target U.S. customers but ran a globally accessible website, was aware that some of its customers were from the United States, and drew income from the United States that the court described as “not insubstantial.” (Id., *6.) It would seem that under these facts the court could have made its conclusion on jurisdiction without addressing the German defendant’s failure to geoblock users accessing its website from the United States.

The court did, however, address the defendant’s failure to geoblock. It concluded that while the use of geoblocking is not necessary to limit the territorial scope of activity on the Internet for jurisdictional purposes (a conclusion that was also reached by the U.S. district court in Triple Up Ltd. v. Youku Tudou, Inc.), the use of geoblocking “is surely relevant to [a defendant’s] intent not to serve the United States.” (Id., *5.) Therefore, the court said, the defendant’s “failure to implement such restrictions, coupled with its substantial U.S. business, provides an objective measure of its intent to serve customers in the U.S. market and thereby profit.” (Id., *5.) The court rejected defendant’s argument that geoblocking (which was referred to as “access-blocking technology” in the decision) should be irrelevant because it is an “imperfect, developing technology.” The court called the defendant’s warnings about the state of geoblocking technology “misplaced based on the record before [the court].” (Id., *5.)

A failure to geoblock alone would not have been sufficient for personal jurisdiction in Plixer; the facts in the case regarding Scrutinizer’s contacts with the United States would have justified the exercise of personal jurisdiction over the German defendant even without the defendant’s failure to geoblock. Nevertheless, the court chose to address the issue of geoblocking, and the decision is additional evidence that courts are weary of arguments that geoblocking is infeasible, imperfect, or costly, when many or even most Internet actors do check their users’ location and frequently collect and utilize that location information.

The fact that website operators knew of their users’ location was important to courts’ decisions on personal jurisdiction. In Plixer, the defendant knew the location of its users; its privacy policy specifically referred to user location as the kind of information that the defendant stored. (Exhibit 4 to the Affidavit by James Goggin, plaintiff’s attorney, docket document 15.) In Mavrix Photo Inc. v. Brand Technologies, Inc., the U.S. Court of Appeals for the Ninth Circuit also took into consideration the defendant’s knowledge of its users’ location – even though the geolocation in the case was used by third-party advertisers who placed their ads on the defendant’s website based on the location of the users. (Id., 10352. For a different result on location-tailored third-party advertising see the unpublished July 17, 2018, appellate decision in Triple Up Ltd. v. Youku Tudou, Inc., where the facts were slightly different from those in Mavrix.)

Being oblivious, or choosing to be oblivious, to user location could be more difficult in the future. While collecting location information might have been optional in the past (and used merely for analytical and marketing purposes), the new European Union General Data Protection Regulation makes the determination of user location necessary; if a website operator, regardless of where the operator is located, collects and processes personal data of its users and some of the users are in the European Union, the EU Regulation, which reaches beyond the borders of the EU, requires the operator to comply with its requirements. Given that an operator will know the location of its users, the operator should consider how its decision not to geoblock, should it choose not to do so, might be viewed by the courts when they consider the reach of their adjudicatory jurisdiction.

Twitter Isn’t Liable for Impersonation Account–Dehen v. Doe

Tiffany Dehen is a 2016 alumna of University of San Diego’s law school. Her website declares that she is “a true American and Patriotic Trump Supporter,” and her photo album includes a photo of her smiling with Dinesh D’Souza. She claims that an unidentified person created a “parody” Twitter account that used her photo and posted objectionable content. She reported the account to Twitter and, after a few days, the account was disabled. You can read more about her motivations for filing this lawsuit in an Above the Law interview. Dehen sued several defendants; I’ll focus on Twitter’s liability.

Dehen’s allegations create an easy Section 230 defense. The court says “Twitter is an interactive computer service, and the offending content— the tweets —was posted by another information content provider, John Doe.” The only remaining issue is whether Dehen’s allegations treat Twitter as the publisher/speaker of the account. Dehen argued that her lawsuit was based on Twitter’s delayed removal instead of the account’s content; plus Twitter’s response to the removal request allegedly breached its TOS, giving rise to a breach of contract claim. Of course, Twitter’s TOS reserves its discretion to remove content. The court summarily concludes that “Twitter complied with its own monitoring policies and removed the offending account in a matter of days. Without a breach of contract, Twitter’s decision to remove the content, and the speed at which it did so, is publisher conduct that satisfies the second prong of the CDA.”

As a result, the court dismissed the claims against Twitter and will tax costs against her. On the plus side, Twitter brought a motion to dismiss rather than an anti-SLAPP motion to strike, so Dehen may avoid paying Twitter’s legal fees.

This case reminded me of two other cases. First, Franco Caraccioli’s lawsuit against Facebook analogously involved a negative social media account targeting a San Diego law student that took longer than expected to be removed. Is something going on in San Diego? Like Caraccioli, Dehen’s lawsuit met a quick Section 230 dismissal, and attempts to use a breach-of-contract workaround failed. Second, the case reminds me of the seminal Zeran v. AOL case, which also involved the allegedly slow removal of attack impersonation accounts. In that case, Zeran tried to frame AOL’s (allegedly) slow removal of the accounts as negligence, but it also didn’t change the Section 230 outcome.

Two other thoughts about the case. First, I consider this lawsuit as part of a broader upswell in litigation related to Trump. Say what you will about Trump, at least he’s been great at spurring litigation. Yay for the Trump Bump in our industry! #MAGLA. Second, Dehen is a self-labeled “conservative,” and I remain fascinated by how many “conservatives” are bringing Internet law-related suits predicated on legal *regulations* that historically conservatives bitterly fought to prevent or circumscribe. I’m especially baffled by how many conservatives believe that private Internet companies are engaged in discriminatory viewpoint-based censorship against them and are advocating for additional regulations to circumscribe the Internet companies’ First Amendment-protected rights to free speech and free press. I’m not sure if that’s Dehen’s position–check this page and form your own opinion–but my eyes started tearing up when I saw she uses the hashtag #EndtheCDA and #EndCDA230 on her Facebook page. 🙁

Case citation: Dehen v. Doe, 2018 WL 4502336 (S.D. Cal. Sept. 18, 2018). Dehen’s website has an archive of case filings.

 

Departing Employee Required to Transfer Social Media Accounts–Hyperheal Hyperbarics v. Shapiro

This is an ownership dispute over a departing employee’s right to use social media accounts and trademarks of an employer. The facts are somewhat atypical.

Shapiro founded a company called Hyperheal Hyperbarics to provide “hyperbaric oxygen therapy”. In 2014, the business was struggling and raised money from an investor, Samer Saiedy. Saiedy again put in money in 2015. Due to these cash infusions, Shapiro became a minority shareholder (owning 2.38%) and employee. In 2016, he was terminated. He was rehired in 2017 as an employee (he still retained his minority stake) but terminated again in 2018. Before being hired in 2017, he signed an employment agreement restricting his participation in social media on behalf of Hyperheal and agreeing to turn over unspecified social media accounts relating to Hyperheal. As part of the agreement, Shapiro also relinquished all rights in Hyperheal’s intellectual property.

After his 2016 termination, Shapiro filed a trademark application for “Hyperheal Hyperbarics, Inc.” In February 2017, prior to being rehired, the USPTO sent Shapiro an office action refusing his registration due to a previously filed mark (filed by Dr. Tommy Love).

After being hired in 2017, Shapiro ostensibly transferred over some social media accounts and domain names to the company. He did not mention the pending trademark application or office action. Because he never responded to the office action, the PTO deemed his application abandoned.

After his 2018 termination, Shapiro again applied to register a “Hyperheal Hyperbarics” trademark. This time, he bought Dr. Love’s interests in the trademarks. Shapiro also convinced GoDaddy to transfer the Hyperheal domain names back to him. He also told LinkedIn that Hyperheal infringed on Shapiro’s mark. Linkedin transferred control of the company account to Shapiro. Shapiro similarly contacted Twitter and Facebook. (The court does not describe the outcome of his efforts to pressure those companies into transferring accounts to Shapiro.)

Hyperheal sued, asserting various state law and trademark claims. It also moved for a preliminary injunction.

The court grants the injunction, focusing largely on the contract claims. Shapiro signed an agreement agreeing to relinquish rights to intellectual property and social media accounts. This he clearly did not do. The court finds particularly damning his failure to disclose the pending trademark application (that was facing an office action) at the time he purported to transfer ownership of the social media accounts to Hyperheal.

The court also finds Hyperheal likely to succeed on two other claims. It says that in wrestling away the domain name, not disclosing the trademark, and pursuing investors on his own, he “acted with the tortious intent to harm Hyperheal financially.” Similar conduct also supported Hyperheal’s claim that he tried to “misappropriate” Hyperheal’s products.

Finally, the court says that the injunction would not prevent Shapiro from earning his livelihood. He’s free to work in the industry, provided he doesn’t use any of Hyperheal’s marks and social media assets.

__

Previous employee social media cases have focused on different aspects of online accounts, such as followers (PhoneDog) underlying content (Ardis Health) or account credentials or right to access (Maremont). Litigants advance different theories and claims depending on what aspect of the account they are focused on. The plaintiff in this case appeared to focus on the branding for the accounts, and thus brought trademark and contract based claims. The court ultimately focuses on the latter.

This case emphasizes the importance of having a written agreement address a company’s social media assets that may be controlled by employees (or founders). Hyperheal dodged a bullet here in that it was able to get Shapiro to sign an agreement–after he parted ways with the company–that conveyed ownership of his trademarks and social media assets to the company. Most employees would not be so willing to sign such an agreement absent some consideration.

The language of the agreement itself was not terribly precise about the social media assets, but the court nevertheless found that Hyperheal was entitled to relief. Among other things, this was likely premised on Shapiro’s conduct that was not so above board.

Case citation: Hyperheal Hyperbarics v. Shapiro, 2018 WL 4257331 (D. Md. Sept 6, 2018).

Related posts:

“Social Media and Trademark Law” Talk Notes

Court Denies Kravitz’s Motion to Dismiss PhoneDog’s Amended Claims — PhoneDog v. Kravitz

An Update on PhoneDog v. Kravitz, the Employee Twitter Account Case

Another Set of Parties Duel Over Social Media Contacts — Eagle v. Sawabeh

Employee’s Claims Against Employer for Unauthorized Use of Social Media Accounts Move Forward–Maremont v. SF Design Group

Courts Says Employer’s Lawsuit Against Ex-Employee Over Retention and Use of Twitter Account can Proceed–PhoneDog v. Kravitz

Ex-Employee Converted Social Media/Website Passwords by Keeping Them From Her Employer–Ardis Health v. Nankivell

Court Declines to Dismiss or Transfer Lawsuit Over @OMGFacts Twitter Account — Deck v. Spartz, Inc.

Employee’s Twitter and Facebook Impersonation Claims Against Employer Move Forward — Maremont v. Fredman Design Group

* “MySpace Profile and Friends List May Be Trade Secrets (?)–Christou v. Beatport

Section 230’s Success in Under-the-Radar Cases

For every high-stakes Section 230 case that gets widespread coverage, I see many other low-profile cases–often pro se–where Section 230 works as we all expect. These rulings usually aren’t super-interesting because they confirm the status quo. However, they provide a good barometer of Section 230’s health as an immunity. Without Section 230 quickly cleaning up these cases, the courts would likely be flooded with thousands of similar cases, most of which would be flatly unmeritorious, and the collective effect of which would be to move defendants closer to death-by-one-thousand-duck-bites.

In this post, I’ll share four recent Section 230 cases that flew under the radar but, collectively, demonstrate the quietly powerful role that Section 230 plays in managing our litigious society. Because their complaints are so convoluted and pro se litigants love to threaten me with defamation, I’m just going to blockquote the courts’ applicable discussion.

DeLima v. YouTube

Magistrate R&R: DeLima v. YouTube, LLC, 2018 WL 4473551 (D.N.H. Aug. 30, 2018)

District court approval of R&R (verbatim): 2018 WL 4471721 (D.N.H. Sept. 18, 2018)

First Amendment: “DeLima alleges that by censoring and deleting content she has posted on the defendants’ internet platforms, and otherwise inhibiting her ability to express herself, the defendants have violated her right to free speech and engaged in viewpoint discrimination. Defendants are all private companies. DeLima has failed to allege any state action giving rise to the alleged violations of her First Amendment rights, and the district judge should dismiss DeLima’s First Amendment claims.”

Reallocating Third Level Domain Name to Subsequent User: “DeLima asserts that she bought a domain name from Blogspot.com, a blog hosting service owned by Google. She says that she later shortened the name of her personal blog and stopped using the longer name, but that she retains the copyright in the longer domain name. [Eric’s note: this is almost certainly a trademark concern, not a copyright one] DeLima alleges that, when she ceased to use the longer domain name, Google and Blogspot.com allowed it to be used by a third party, identified by DeLima as “Bruce Bot,” the moniker used by the blog’s present author. DeLima state that Bruce Bot has cyberbullied her, used her virtual property, harassed, defamed, libeled and slandered her, and infringed upon her copyright in the domain name. DeLima states that by allowing her domain name to be “recycled,” rather than placing it in “internet trash,” Blogspot.com and Google are liable for the harm she alleges has been caused, both to DeLima and her audience, as a result of Bruce Bot’s use of that domain….Google is an ICS, and Blogspot.com, which is owned by Google and serves as an online venue for Google’s interactive computer services, and is thus also an ICS. Both of those defendants are therefore afforded immunity under the CDA “for the publication of defamatory content prepared or posted by others.” The fact that Bruce Bot may have been improperly using a domain name that belongs to DeLima does not serve as a basis to hold Google or Blogspot liable for the content posted by Bruce Bot using that domain name.”

FOSTA-SESTA: “The FOSTA-SESTA amends the CDA to remove immunity from suit for interactive computer services under limited circumstances, concerning sex trafficking, that are irrelevant to this action, or to any assertion by DeLima.” One of the first court discussions about FOSTA!

Lee v. OfferUp, Inc., 2018 WL 4283371 (E.D. La. Sept. 7, 2018):

“Lee alleges that OfferUp is liable for negligence because it allowed third-parties to post an advertisement on OfferUp’s app, which is a website, that lured Lee to a location where he was allegedly robbed and shot. Essentially, Lee alleges that if OfferUp had not published the advertisement, he would not have gone to the meeting with the third-parties and would not have been harmed. Lee’s complaint seeks to hold OfferUp liable for its publishing, editorial, and/or screening capacities, which is barred by the CDA. See MySpace, 528 F.3d at 419-222 (finding that plaintiffs were alleging publication claims that were barred by the CDA when an underage girl met a man through MySpace and he sexually assaulted her when they met in person). Because Lee’s claim are barred by the CDA, OfferUp’s motion to dismiss is GRANTED, and Lee’s claims against OfferUp are DISMISSED.”

Another example where Section 230 protected the defendant against offline personal injury.

Fehrenbach v. Zeldin, 2018 WL 4242452 (E.D.N.Y. Aug. 6, 2018):

“the actions to which Fehrenbach objects fall squarely within the statute. The complaint charges the Facebook defendants with enabling users to restrict access to material. In fact, Fehrenbach’s opposition papers make clear that “[t]he complaint against Mr. Mark Zuckerberg and Facebook is that they created a platform and provided tools on that platform which enabled Representative Lee Zeldin, Mr. Lee Zeldin’s Staff and IT Staff the ability to hide Mr. Charles Fehrenbach’s Comments….”  In other words, Fehrenbach seeks to hold the Facebook defendants accountable for their role in making that service available. Consequently, Section 230(c)(2)(B) of the CDA also immunizes the Facebook Defendants from liability.”

A rare 230(c)(2)(B) win.

Shulman v. Facebook.com, 2018 WL 3344236 (D.N.J. July 9, 2018):

“In sum, Section 230 “precludes courts from entertaining claims that would place a computer service provider in a publisher’s role, and therefore bars lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone, or alter content.” Therefore, instead of providing Plaintiff with a cause of action, Section 230 instead shields Defendant Facebook from civil liability.”