Website Operator Can Be Held Liable for State Intellectual Property Violations

A federal district court in New Hampshire recently ruled that Section 230 of the Communications Decency Act of 1996 (“CDA”) does not prevent a state law right of publicity claim against a Website operator. In Doe v. Friendfinder Network, Inc., No. 07-286, 2008 WL 803947 (D.N.H. March 27, 2008), a profile of the plaintiff, including a nude photo and biographical information, was posted by an unknown third party on, an online swingers community, without the plaintiff’s knowledge or consent. The plaintiff asserted eight claims against the Website for, among other things, invasion of privacy (including violation of her right of publicity), defamation and false designation in violation of the Lanham Act. On the site’s motion to dismiss, the district court found that all of plaintiff’s claims were barred by the CDA, except her false designation and right of publicity claims. In so holding, the district court challenged and criticized a recent Ninth Circuit decision regarding the CDA’s immunity.

Section 230 Does Not Bar Federal or State IP Claims

Under Section 230 of the CDA, “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,” and thus, “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”  Section 230(e)(2), however, states that the CDA should not “be construed to limit or expand any law pertaining to intellectual property.” Consequently, the CDA will not bar IP claims asserted against a site operator. 

The defendant argued that the Ninth Circuit Court of Appeals’ decision in Perfect 10 v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) limited Section 230(2) merely to federal IP claims and not state claims. The district court in Friendfinder, however, was not convinced that the Ninth Circuit interpreted that provision of the CDA properly.  

Instead, the court concluded that the plain language of Section 230(e)(2) suggested that neither federal nor state IP claims fall under the scope of the CDA. According to the district court, “The Ninth Circuit made no attempt to reckon with the presence of the term ‘any’ – or for that matter, the absence of term “federal” – in § 230(e)(2) when limiting it to federal intellectual property laws.” Thus, Section 230(e)(2) “applies simply to ‘any law pertaining to intellectual property,’ not just federal law.” 

Right of Publicity Is An IP Claim

The court then turned to the issue of whether the plaintiff’s invasion of privacy claim arises from intellectual property laws. An invasion of privacy claim encompasses four separate theories:  (1) the defendant intruded on the plaintiff’s solitude; (2) the defendant publicly disclosed private facts about the plaintiff; (3) the defendant cast the plaintiff a false light; and (4) the defendant appropriated plaintiff’s identity for their own benefit. According to the court, only the fourth theory (the right of publicity) has been recognized as an intellectual property right. Section 230 therefore would not prevent plaintiff from asserting such a claim against Friendfinder.

The court then held that in establishing a right of publicity claim, “some damage to the commercial value of an identity is presumed once it is proved that defendant has made an unpermitted use of some identifiable aspect of identity in such a commercial context that one can state that such damage is likely.” Since the plaintiff alleged that the site used portions of the plaintiff’s profile in search engine “teasers” and advertisements, the court found that the plaintiff had sufficiently set forth the claim. 

Ninth Circuit Maintains Limits on CDA Protection

In Fair Housing Counsel of San Fernando Valley v., LLC, No. 04-57173 (9th Cir. April 3, 2008), another decision involving the CDA, the Ninth Circuit, sitting en banc, upheld its earlier decision that an online roommate matching website was not immune from liability under the CDA. In the prior opinion, the Ninth Circuit held, in part, that was not immunized from liability for posting questionnaires seeking information that could allow users to discriminate against other users in violation of the Fair Housing Act (“FHA”).

Writing for the 8-3 majority, Chief Judge Alex Kozinkski indicated that the Website lost immunity provided by the CDA because it facilitated discrimination rendered unlawful under the FHA. Judge Kozinkski stated, “Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business.”  Moreover, according to Judge Kozinkski, “This is no different from a real estate broker in real life saying, ‘Tell me whether you’re Jewish or you can find yourself another broker.’”  By facilitating unlawful discrimination, was rendered a publisher of discriminatory third party content, and therefore fell outside of the CDA’s immunity. 

For more information on the Ninth Circuit’s original opinion, see Proskauer’s blog entry here.