Pattishall IP Blog

February 1, 2011

Website That Solicits Potentially Defamatory Content Cannot Take Advantage of Immunity Under Section 230 of the CDA for User-Submitted Content

Filed under: Internet — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 11:31 am

Categories:  Internet
Tags: Communications Decency Act (CDA), user-generated-content, Phillip Barengolts

by Phillip Barengolts, Attorney

The Digital Millennium Copyright Act (DMCA) offers copyright owners and Internet service providers with new avenues to assert and avoid liability.  As part of the DMCA’s regime, a copyright owner can request that a service provider, e.g., a website, which hosts third-party content that the copyright owner deems infringing to take down such content.  However, a copyright owner who misrepresents to a service provider that third-party content is infringing can be held liable to the alleged infringer for any damages incurred by the improper takedown of the third-party content.  In particular, Section 512(f) provides in pertinent part: “[a]ny person who knowingly materially misrepresents under this section . . . that material or activity is infringing . . . shall be liable for any damages .. . incurred by the alleged infringer . . . who is injured by such misrepresentation, as the result of the service provider . .. removing or disabling access to the material or activity claimed to be infringing . . . .” 17 U.S.C. § 512(f). (more…)

October 4, 2010

Seventh Circuit Rules Section 230 of the Communications Decency Act Does Not Confer StubHub! Immunity from Chicago Tax Law

Filed under: Internet — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 4:15 pm

by Phillip Barengolts, Esq.

The Good Samaritan provision of the Communications Decency Act (“CDA”), 42 U.S.C. § 230(c), shields online service providers from liability for content third parties post on their web sites.[1] Specifically, this provision has been interpreted by numerous courts as conferring immunity for information services providers from tort liability for third-party materials posted to the providers’ web sites over which the providers have no control.  See, e.g., Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (“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 – are barred.”); Ben Ezra, Weinstein, and Co. Inc. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000) (affirming summary judgment finding AOL not liable for publishing inaccurate stock quotes); Doe v. MySpace 528 F.3d 413 (5th Cir. 2008) (MySpace not liable for failure to police its users).  The Fourth Circuit in Zeran stated it best: “[b]y its plain language, [section] 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”  129 F.3d at 330. (more…)

November 6, 2009

Online Service Provider’s Ownership of User Content Held Not to Eviscerate CDA Immunity

Filed under: First Amendment, Internet — Tags: , , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 3:37 pm

by Ian J. Block, Trademark Attorney

Online service providers that claim ownership of user-generated content can breathe easier because a court recently confirmed the broad scope of immunity available under the Communications Decency Act of 1996 (“CDA”).  In Finkel v. Facebook, Inc., 2009 N.Y. Slip Op. 32248 (N.Y. Sup. Ct. Sept. 15, 2009), a New York state court held social-networking giant Facebook immune from defamation liability by virtue of the CDA.  The court rejected plaintiff’s argument that CDA immunity should not apply because Facebook’s terms of service claim ownership of the content created by its users.

The CDA Immunizes Online Service Providers from Liability for Content Created by Third Parties

The “Good Samaritan Immunity” provision of the CDA, 47 U.S.C. § 230(c), grants online service providers immunity from liability for content found on, or taken down from, their networks.  Immunity here is sweeping, insulating service providers—such as Facebook, Craigslist, Twitter, and others—from liability created by third-party (i.e., user) content.  The statute explains that: “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.”  Id.  The statute’s grant of immunity explicitly preempts contrary state laws, such as state defamation and invasion of privacy claims.  See 42 U.S.C. § 230(d)(3). (more…)

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