User generated content (“UGC”) is the interactive marketing and promotion industry’s fixation du jour. And for good reason – UGC is being monetized on the Internet in various ways, from building multi-billion dollar valuations for social networking sites to driving consumer awareness of and enthusiasm for such products as Mentos candy and the next music single from Shakira. Other than the filters that users self-impose upon themselves, little stands in the way between users and the type of UGC that they post online in the first instance. As a result, UGC is rarely cleared for legal purposes before it is posted for the whole world to see, and a lot of UGC consists of content lifted wholesale from television shows or content that otherwise infringes upon the rights of third parties.
That reality has prompted content owners to bring several high-profile lawsuits against social networking sites and other website operators whose users have posted allegedly infringing UGC. As more websites allow users to post content to discussion boards, create assets in virtual worlds, post profiles on social networking and dating sites, or participate in UGC promotions, the number of lawsuits alleging defamation type claims and intellectual property claims (e.g., copyright, trademark, publicity, trade secrets) can be expected to multiply. Recent court decisions interpreting the Communications Decency Act (“CDA”) and the Digital Millennium Copyright Act (“DMCA”) are helping draw the lines between when the website operators can rest easy, and when they can’t.
To “promote the continued development of the Internet and other interactive computer services and other interactive media,” Congress enacted the Communications Decency Act (“CDA”) and the Digital Millennium Copyright Act (“DMCA”).
The DMCA — 17 U.S.C. § 512 — provides website operators with statutory safe-harbors against a copyright infringement claim for content that third parties post on their websites. To qualify for the safe-harbors, the online service must adopt and reasonably implement notice and takedown procedures that allow copyright owners to send a notice of infringing content and get it taken down. In addition, the protection only extends to third party content, not to content that the website operator is responsible in whole or in part for creating or developing. In that instance, the website operator is a content provider unable to invoke the safe-harbor.
Section 230 of the CDA, 47 U.S.C. § 230(c), offers robust protection to website operators against claims arising out of UGC. Section 230 provides that “[n]o provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(e)(3). The touchstone of Section 230(c) is that interactive computer services are immune from liability for content created by third parties.
Illustrating the broad scope of immunity offered by Section 230, a federal district court held earlier this year that neither notice nor delay in removing content will bar a website operator from raising a CDA immunity defense. Eckert v. Microsoft Corp., No. 06-11888, 2007 WL 496692, at *3 (E.D. Mich. 2007). The statements at issue in that case were personal attacks on an individual’s moral character, which were posted to an Internet message board entitled “Joe’s Christian Debate.” In granting a defendant’s Motion to Dismiss, the Eastern District of Michigan held that the mere fact that a website operator had received notice that defamatory statements were on its servers was not enough to strip a defendant of its Section 230 immunity defense. The court also held that the defendant was entitled to an immunity defense under the CDA despite a delay in removing the offensive material. The court recommended that the plaintiff pursue its claims against the actual speakers of such allegedly defamatory statements—the individuals who posted to the message board. The take away: Although complaints regarding content that may violate third-party rights should be handled judiciously, this ruling indicates that the CDA will likely provide protection for a website operator against claims that the website contains defamatory content provided by a third party, even if the injured party gives the website operator notice of the defamatory content, and even if the website operator does not quickly remove the offending material. See also Zeran v. America Online, Incorporated, 129 F.3d 327 (4th Cir. 1997) (holding that Section 230 of the CDA barred a lawsuit against an online service provider (AOL) for defamatory speech posted by a third party, even though the plaintiff claimed that AOL unreasonably delayed in removing defamatory bulletin board postings and refused to post retractions of those statements, even after the plaintiff had notified AOL of the existence of such third-party statements).
Similarly, in February of this year, another federal district court held that MySpace Inc. was immune under the CDA from injuries stemming from content posted to its site. Doe v. MySpace, Inc., 474 F.Supp.2d 843 (W.D. Texas 2007). The case was brought by a mother whose daughter was victimized by an online predator she “met” on MySpace (the child obtained the account by lying to MySpace about her age). The court found that the CDA protects interactive computer services from liability, not only for content posted to the site, but also for personal injuries stemming from such content. The take away: A website provider is immune under the CDA not only for the claims regarding content posted on its website by third parties, but also for personal injuries that stem from content posted on its website by third parties.
But the CDA is not without limits. The first limit – interactive computer services are not immune for publishing materials that they are responsible, in whole or in part, for creating or developing. That principle arises from the plain language of Section 230 itself, and was illustrated in May of this year by the case Fair Housing Council v. Roommates.com, LLC, 04-56916, 04-57173, 2007 WL 1412650 (9th Cir. May 15, 2007). Roommates.com is an online service that helps individuals find roommates based on their descriptions of themselves and their roommate preferences. Users respond to questionnaires by choosing answers in a drop down menu (gender, children, age, ethnicity), the service sends email newsletters listing compatible roommates and channeling users to the profiles they are permitted to access, and users can provide “Additional Comments” through an open-ended essay prompt.
The Fair Housing Council sued, claiming that the questionnaires and compatibility newsletters violated California’s fair housing laws. The issue was whether the service involved itself in the user postings to such an extent that it affected the scope of immunity under the CDA. The Ninth Circuit held that the CDA offered no immunity for claims based on publication of the questionnaires or based on publication and distribution of the profiles because the website operator had involved itself to such an extent that it should be considered the content provider, but the website operator was immune for claims based on content provided by members in the “Additional Comments” area of the service because content posted in that area was truly the users’ own. Cf. Carafano v. Metrosplash Inc., 339 F.3d 1119 (9th Cir. 2003) (recognizing that online dating service was involved in content creation by asking questions, but all content deemed provided by individual users, so CDA immunity applied); but see MCW v. badbusinessbureau.com, L.L.C., No. 3:02CV2727-G, 2004 WL 833595, *10 n. 12 (N.D. Tex. Apr. 19, 2004) (holding that defendant website operator “created and developed” the information giving rise to the plaintiff’s claim because it actively encouraged and instructed a consumer to gather specific detailed information for inclusion in the “Rip-Off Report” it posted on its site, and therefore the defendant was an “information content provider” with respect to the defamatory consumer complaints that it posted and was not entitled to immunity under the CDA).
The second limit of the CDA – courts are directed to construe the immunity created by the CDA in a manner that would neither “limit or expand any law pertaining to intellectual property”. Perfect 10 v. CCBill, Nos. 04-57143, 04-57207, 2007 WL 1157475 (9th Cir. May 31, 2007), quoting Section 230(e)(2) of the CDA. Although it would be reasonable to construe this language as simply clarifying that the CDA did not create a new intellectual property right or limit any intellectual property rights that were already recognized under existing law, the courts that have addressed the issue thus far have viewed this language as substantive, as opposed to merely clarifying. As a result, the CDA does not clothe service providers in immunity from claims under “any law pertaining to intellectual property.” The Ninth Circuit interpreted what this means at the end of May in the closely-followed case of Perfect 10 v. CCBill.
In that case, a content publisher (Perfect 10) brought claims against a web hosting and payment service provider (CCBill) claiming the defendant had violated copyright, trademark, and state right of publicity laws. At issue was the scope of the intellectual property exception to CDA immunity. The court held that the CDA offered immunity only against state law “intellectual property” claims (which includes publicity claims), but not federal intellectual property claims. Perfect 10 recently filed a petition for a writ of certiorari to the United States Supreme Court, but unless and until the Supreme Court decides differently, the takeaway in the Ninth Circuit is that the CDA offers immunity against state law intellectual property claims, but federal copyright and trademark infringement claims can stand (though the DMCA, discussed above, offers protection against copyright claims). But see Universal Communications Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (creating a circuit split by holding, after the Perfect 10 v. CCBill case had been argued and submitted to the Ninth Circuit, that a Florida state trademark law claim was not barred by the CDA because such a claim falls within the intellectual property exception to CDA immunity set forth in Section 230(e)(2)).
Although the CDA and DMCA offer robust protection to website operators who run UGC promotions or otherwise allow UGC to be posted on their sites, recent cases have shown there are limits to how much a website operator can rely on those protections. When the website operator sponsors a UGC promotion and picks and posts the finalists, some care should be taken. At first blush, even if the finalist submissions infringe upon the rights of a third party, the sponsor isn’t using the infringing content. The entrants are. And the sponsor hasn’t granted the entrants permission to use the infringing content; that’s something the entrants decided to do on their own, often against the sponsor’s wishes. The sponsor is simply arranging for an online forum for the content. Under ordinary circumstances, the CDA would protect the online forum against almost all claims except copyright and trademark infringement, and the DMCA would protect against copyright claims. Unfortunately, those protections do not extend to federal trademark claims (or state trademark claims in the First Circuit), and arguably do not apply at all where the sponsor takes such an active role that the sponsor itself is deemed to be the information content provider. Those in the interactive marketing and promotions industry should recognize that there is an important line between interactive service provider and information content provider, and that line (and the contours of the corresponding protections offered under the DMCA and CDA) will continue to be drawn by the courts.
*This article originally appeared in the 2007 Promotion Marketing Association 27th Annual Law Conference Forms Guidebook, 7th Edition*