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Neeley v NameMedia Ruling on Google's Liability Jan. 31, 2011

Neeley v NameMedia Ruling on Google's Liability Jan. 31, 2011

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Published by Eric Goldman
Court refuses to order Google to reorganize its search results to prevent nude photos from showing up on a search for Curtis Neeley (photos that apparently Neeley himself uploaded to the web).

For more on this case, see

http://www.scribd.com/doc/32940294/Neeley-v-Namemedia-Summary-Judgment-Ruling

http://www.scribd.com/doc/32940299/Neeley-v-Namemedia-Dismissal

http://www.scribd.com/doc/32940301/Neeley-v-Namemedia-Motion-for-Reconsideration
Court refuses to order Google to reorganize its search results to prevent nude photos from showing up on a search for Curtis Neeley (photos that apparently Neeley himself uploaded to the web).

For more on this case, see

http://www.scribd.com/doc/32940294/Neeley-v-Namemedia-Summary-Judgment-Ruling

http://www.scribd.com/doc/32940299/Neeley-v-Namemedia-Dismissal

http://www.scribd.com/doc/32940301/Neeley-v-Namemedia-Motion-for-Reconsideration

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Published by: Eric Goldman on Feb 04, 2011
Copyright:Attribution Non-commercial

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03/17/2011

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSASFAYETTEVILLE DIVISIONCURTIS J. NEELEY, JR.PLAINTIFFv.Civil No. 09-5151 NAMEMEDIA, INC., NETWORK SOLUTIONS, INC.; and GOOGLE, INC.DEFENDANTSO R D E R 
Now on this 31st day of January, 2011, come on forconsideration the following:*plaintiff's
Motion For Search Engine Party Injunction
(document #184);*
 Magistrate Judge's Report And Recommendation
with regardthereto (document #225);*plaintiff's
Objection To Report And Recommendation OfDocket 225
(document #226);*
Google Inc.'s Response In Opposition To Plaintiff'sObjection To Report And Recommendation Of Docket 225
(document#229); and*plaintiff's
Supplement To Objection To Report And Recommendation By Honorable Erin L. Setser From The December 6thHearing Regarding Docket 184
(document #232),and from said documents, and other matters and things appearing,the Court, being well and sufficiently advised, finds and orders asfollows:1.Plaintiff Curtis Neeley ("Neeley") alleges trademarkrights in two internet domain names, eartheye.com and
Case 5:09-cv-05151-JLH Document 233 Filed 01/31/11 Page 1 of 6
 
sleepspot.com. He alleges that NameMedia, Inc. (NameMedia)registered these domain names in bad faith, and licensed them toGoogle, Inc. ("Google") in violation of the anti-cybersquattingprovisions of
15 U.S.C. § 1125(d)
. He further alleges thatNameMedia and Google conspired to cybersquat the two domain names,and to violate his trademark rights in these domain names. He also
1
alleges a claim for intentional infliction of emotional distress(also known as "outrage") under Arkansas law.2. Neeley's outrage claim is based on allegations thatNameMedia and Google have conspired to allow, and are currentlyallowing, minors access to nude photographs taken by Neeley, whilecontending that such access was allowed by Neeley himself.Neeley moved for injunctive relief against Google, Inc.;Yahoo, Inc.; Microsoft Corporation; and IAC/InterActiveCorp, to-wit, that they:be ordered not to allow nude photos to be returned whenimage searches include the terms "Curtis" or "Neeley"regardless of other terms entered unless entering useris known to be an adult and not a Muslim. 3.This motion was denied as to Yahoo, Inc.; MicrosoftCorporation; and IAC/InterActiveCorp, those entities not beingparties. The motion as to Google was referred to United StatesMagistrate Judge Erin L. Setser for report and recommendation,pursuant to
28 U.S.C. § 636(b)(1)(B)
.4.Judge Setser conducted a hearing on the motion, and filed
Neeley's claims against defendant Network Solutions, Inc., were dismissed with
1
prejudice on May 20, 2010.
-2-
Case 5:09-cv-05151-JLH Document 233 Filed 01/31/11 Page 2 of 6
 
a Report And Recommendation, wherein she reports that Neeley'srequest for injunctive relief is not supported by his pleadings,and is subject to denial for that reason alone.Notwithstanding that barrier to relief, Judge Setser furtheranalyzed Neeley's claim for injunctive under the criteria set outin
Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8thCir. 1981)
, and recommended that his claim be denied on the merits.Judge Setser reported that the photos in question were takenby Neeley, were uploaded to the internet by Neeley, and areaccessible on sites other than Google because of actions taken byNeeley. She reported that Neeley conceded that he could remove thephotographs himself, but had chosen not to do so. She concludedthat Neeley could not show irreparable harm.Judge Setser then outlined the elements of a claim of outrageunder Arkansas law, as set out in
Rees v. Smith, 2009 Ark. 169, 301S.W.3d 467 (Ark. 2009)
, and concluded that there is littlelikelihood that Neeley could succeed on such a claim.Judge Setser further found merit in Google's contention thatthe outrage claim is preempted by the Communications Decency Act,
47 U.S.C. § 230
.4.The Court agrees with Judge Setser that the pendingmotion is subject to summary denial because it does not fall withinNeeley's pleadings. It has, however, chosen to address theobjections Neeley asserts to the Report And Recommendation.5.Neeley first objects that the referral of his motion to
-3-
Case 5:09-cv-05151-JLH Document 233 Filed 01/31/11 Page 3 of 6

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