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Dyer v. Dirty World Summary Judgment Motion Reply

Dyer v. Dirty World Summary Judgment Motion Reply

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Published by Eric Goldman

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Published by: Eric Goldman on May 18, 2011
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06/23/2011

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REPLY ISO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
C
ASE
 N
O
.: 2:11-CV-00074-SRB
 
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David S. Gingras, #021097
Gingras Law Office, PLLC
3941 E. Chandler Blvd., #106-243Phoenix, AZ 85048Tel.: (480) 668-3623Fax: (480) 248-3196David@GingrasLaw.com Attorney for Defendant Dirty World, LLC
UNITED STATES DISTRICT COURTDISTRICT OF ARIZONADANIELLE DYER,Plaintiff,vs.DIRTY WORLD, LLC,Defendant.
Case No: 2:11-CV-00074-SRB
REPLY IN SUPPORT OFDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant DIRTY WORLD, LLC (“Defendant” or “Dirty World” or “DW”)respectfully submits the following Reply in support of its Motion for Summary Judgment.
I.
 
PREFATORY COMMENTS
This Court’s experience with Arizona’s SB 1070 notwithstanding, few laws inrecent memory have created as much controversy, criticism, and outright confusion as theCommunications Decency Act. The CDA has been deemed “bad policy,”
 Noah v. AOLTime Warner, Inc.
, 261 F.Supp.2d 532, 539 n.5 (E.D.Va. 2003), and some courts havewarned that the broad immunity afforded by the CDA can have “disturbing implications.”
 Barrett v. Rosenthal 
, 40 Cal.4
th
33, 63, 146 P.3d 510, 529 (Cal. 2006).Despite these concerns, no court in any CDA decision has
ever 
done what Plaintiff seeks here—imposing tort liability on a website operator for merely publishing speechcreated by an unrelated third party. It is apparent that Plaintiff fails to appreciate thesound logic and reasoning for the CDA, so a short discussion of this issue is appropriate.
Case 2:11-cv-00074-SRB Document 19 Filed 05/16/11 Page 1 of 15
 
 
REPLY ISO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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Plaintiff argues, and Defendant fully agrees, that “[t]he CDA was not meant tocreate a lawless no-man’s land on the Internet.” Plaintiff’s Opposition at 10 (quoting
 Fair  Housing Council v. Roommates.com, LLC 
, 521 F.3d 1157, 1164 (9
th
Cir. 2008)). Theobvious implication is that if the Court were to accept Defendant’s position and findDefendant entitled to immunity under the CDA, this would somehow leave Plaintiff without any remedy, stranding her in the “lawless no-man’s land on the Internet”.Despite some superficial appeal, this emotional plea is simply without merit.First, from a factual standpoint, if this Court finds that Defendant is immune under the CDA, Plaintiff would
 NOT 
be left without a remedy. Rather, as many courts have previously held, because the CDA
never 
applies to an author’s own words, Plaintiff always has the option of pursing her claims against the author; “Parties complaining thatthey were harmed by a Web site’s publication of user-generated content have recourse;they may sue the third-party user who generated the content, but not the interactivecomputer service that enabled them to publish the content online.”
Doe v. MySpace, Inc.
,528 F.3d 413, 419 (5
th
Cir. 2008) (emphasis added).Second, from a legal perspective and with all due respect, Plaintiff’s suggestionthat Defendant is advocating a “lawless no-man’s land on the Internet” reveals afundamental lack of understanding of the issues. Because these issues are admittedlysomewhat subtle if not wholly counterintuitive, an analogy might be helpful.To begin, imagine the Internet is like a large public swimming pool. For a varietyof reasons, some swimmers may encounter trouble and require assistance from alifeguard. Further imagine a person who cannot swim was deliberately pushed into the pool by a third party, either as a joke or perhaps even maliciously. In this hypothetical,Defendant’s websitewww.TheDirty.comis the pool, Plaintiff was pushed into the pool byher ex-boyfriend, Tommy Duecker, and Defendant is the lifeguard.Before the CDA was enacted in 1996, if it made any effort to help swimmers indistress, Defendant would be exposed to complete, unlimited liability for any harmsuffered by any user of the pool. Indeed, Defendant could be sued even if a third party
Case 2:11-cv-00074-SRB Document 19 Filed 05/16/11 Page 2 of 15
 
 
REPLY ISO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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 pushed someone into the pool without Defendant’s knowledge or involvement. On theother hand, if Defendant
never 
made any effort to monitor the pool and never made anyeffort to assist swimmers in distress, it would face no liability at all.The perverse incentive created by this scenario is obvious—pool owners wouldnever provide lifeguards and would never attempt to help swimmers under anycircumstances. In this situation, swimmers would be left to fend entirely for themselves.Without question, countless more deaths and injuries would result.Thankfully, this is not the law. Instead, Congress has taken a different approach.It wisely enacted the CDA to provide website operators like Defendant with a powerfulincentive to take an active role in allowing, reviewing, editing, and, when necessary,removing third party content without fear that doing so will lead to crippling civilliability; “In some sort of tacit
quid pro quo
arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive toInternet service providers to self-police the Internet for obscenity and other offensivematerial, even where the self-policing is unsuccessful or not even attempted.”
 Blumenthal v. Drudge
, 992 F.Supp. 44, 52 (D.D.C. 1998).To complete the analogy, again imagine two swimming pools. The first pool hasno lifeguard on duty and is entirely unmonitored. No rules exist against any form of misconduct, and swimmers in distress have no one to call for help. Deaths, near-drownings and swimmer-on-swimmer assaults are a daily occurrence. The pool isliterally a “lawless no-man’s land”. This is the pool Plaintiff’s logic would create.The second pool is manned by a lifeguard named “Nik”. Although popular withmany of the younger swimmers who find him hilarious, others feel Nik is rude, crass, andobnoxious. He occasionally makes harsh and insulting remarks about the appearance of swimmers. He blows wolf-whistles at passing females. However, when help is needed Nik springs into action. He constantly monitors activity in the pool to ensure at leastsome offensive conduct is prevented and curtailed. Nik also frequently rescues swimmersin distress and, when appropriate, he even ejects unruly patrons from the premises.
Case 2:11-cv-00074-SRB Document 19 Filed 05/16/11 Page 3 of 15

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