47 U.S.C. § 230 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 what about state law rules? The right of publicity (i.e., the right to control certain commercial uses of one's name, likeness, or identity) is a potential example. It's not clear whether it's an intellectual property rule, but if it is treated as an intellectual property rule, could AOL be sued because an AOL user puts up a commercial Web site that infringes a celebrity's right of publicity?

The Ninth Circuit has just held, in today's Perfect10, Inc. v. CCBill LLC that the "intellectual property" exception to the § 230 immunity covers only federal intellectual property claims; state intellectual property claims are preempted. Here's the relevant passage (some paragraph breaks added):

The Communications Decency Act states that "[n]o 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 expressly preempts any state law to the contrary…. The immunity created by § 230(c)(1) is limited by § 230(e)(2), which requires the court to "construe Section 230(c)(1) in a manner that would neither 'limit or expand any law pertaining to intellectual property.'" As a result, the CDA does not clothe service providers in immunity from "law[s] pertaining to intellectual property."

The CDA does not contain an express definition of "intellectual property," and there are many types of claims in both state and federal law which may -- or may not -- be characterized as "intellectual property" claims. While the scope of federal intellectual property law is relatively well-established, state laws protecting "intellectual property," however defined, are by no means uniform. Such laws may bear various names, provide for varying causes of action and remedies, and have varying purposes and policy goals.

Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state's definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress's expressed goal of insulating the development of the Internet from the various state-law regimes. See 47 U.S.C. §§ 230(a) and (b); see also Batzel, 333 F.3d at 1027 (noting that "courts construing § 230 have recognized as critical in applying the statute the concern that lawsuits could threaten the 'freedom of speech in the new and burgeoning Internet medium'").

In the absence of a definition from Congress, we construe the term "intellectual property" to mean "federal intellectual property."

A pretty important decision, and to my knowledge the first on the subject (though please correct me if I'm wrong). Many thanks to How Appealing for the pointer.