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.

In late March, the Ninth Circuit handed down an important holding about 47 U.S.C. § 230. This statute 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 it's not clear whether it covers state law rules that are sometimes characterized as intellectual property laws, for instance the state law right of publicity. The Ninth Circuit held that the § 230 exemption covers only federal intellectual property laws, not state ones.

Bruce Wessel reports that yesterday the Ninth Circuit amended the opinion to justify its conclusion further:

In its petition for rehearing, Perfect 10 claims that our decision on this point conflicts with Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir.2007). But neither party in that case raised the question of whether state law counts as “intellectual property” for purposes of § 230 and the court seems to simply have assumed that it does. We thus create no conflict with Universal Communication.

We note that Universal Communication demonstrates the difficulties inherent in allowing state laws to count as intellectual property for CDA purposes. In that case, the district court struggled with the question of whether the “trademark dilution” claim brought under Florida Law counted as intellectual property for purposes of the CDA, and concluded that it was more like a defamation claim than a trademark claim. Id. at 423 n. 7. Rather than decide how to draw the line between defamation and trademark, the First Circuit held that “because of the serious First Amendment issues that would be raised” if Lycos were found liable, defendant had not violated the Florida statute. Id. at 423.

The First Circuit was able to sidestep the question of what counted as intellectual property on First Amendment grounds. But we cannot do so here. States have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a few. Because such laws vary widely from state to state, no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue. And, of course, defendants that are otherwise entitled to CDA immunity will usually be subject to the law of numerous states. An entity otherwise entitled to § 230 immunity would thus be forced to bear the costs of litigation under a wide variety of state statutes that could arguably be classified as “intellectual property.” As a practical matter, inclusion of rights protected by state law within the “intellectual property” exemption would fatally undermine the broad grant of immunity provided by the CDA.