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$122953 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA STEPHEN J. BARRETT, et al., Plaintiffs and Appellants, v. ILENA ROSENTHAL, Defendant and Respondent. BRIEF OF AMICI CURIAE AMAZON.COM, INC., AMERICA ONLINE, INC., EBAY INC., GOOGLE INC., MICROSOFT CORPORATION, YAHOO! INC., ABC, INC., ASK JEEVES, INC., CABLE NEWS NETWORK LP, LLLP, COMPUSERVE INTERACTIVE SERVICES, INC., EARTHLINK, INC., ESPN, INC., NETSCAPE COMMUNICATIONS CORPORATION, SBC INTERNET SERVICES, TIME WARNER CABLE INC., THE WASHINGTON POST COMPANY, ASSOCIATION FOR COMPETITIVE TECHNOLOGY, CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION, INFORMATION TECHNOLOGY ASSOCIATION OF AMERICA, INTERNET ALLIANCE, INTERNET COMMERCE COALITION, NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION, NETCHOICE, NETCOALITION, NEWSPAPER ASSOCIATION OF AMERICA, ONLINE NEWS ASSOCIATION, ONLINE PUBLISHERS ASSOCIATION, TECHNET, AND UNITED STATES INTERNET SERVICE PROVIDER ASSOCIATION After Decision by the Court of Appeal First Appellate District, Division Two, No. A096451 Alameda County Superior Court Case No. 833021-5, The Honorable James Richman WILMER CUTLER PICKERING HALE AND DORR LLP Patrick J. Carome Samir Jain (SBN 181572) C. Colin Rushing 2445 M Street NW Washington, DC 20037 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 Attorneys for Amici Curiae TABLE OF AUTHORITIES INTRODUCTION.. BACKGROUND... ARGUMENT L TABLE OF CONTENTS THE COURT BELOW MISCONSTRUED THE PLAIN MEANING OF THE STATUTORY PROHIBITION ON “TREAT[ING]” AN ONLINE INTERMEDIARY AS THE “PUBLISHER OR SPEAKER” OF SOMEONE ELSE’S CONTENT. ‘A. Imposing Liability on an Online Intermediary for Third- Party Content Necessarily Treats It as a “Publisher or Speaker.”.. B. The Court Below Erred in Holding that Liability May Be Imposed on a “Distributor” Without Necessarily Treating It as a “Publisher” Under Established Common Law Doctrine. . 1. The Lower Court’s Conclusion that So-Called “Distributor Liability” Is Distinct from “Publisher Liability” Is Contradicted Even by the Scant Authority on Which the Court Relied. 2. Legions of Authority Demonstrate that Imposing Tort Liability on an Intermediary for Other's Communications Treats It as a “Publisher” Within the Meaning of the Common Law. THE LOWER COURT'S UNPRECEDENTED INTERPRETATION OF SECTION 230(C)(1) WOULD DEFEAT THE STATUTE’S PRINCIPAL POLICY OBJECTIVES AND DEFY CONGRESS’S INTENT. .. A. The Settled Construction of Section 230(c)(1) Serves Congress’s Twin Goals of Promoting Free Speech and Eliminating Disincentives to Self-Regulation. 1. The Court Below Failed to Recognize that Notice-Based Liability for Online Intermediaries Would Severely Chill Online Speech in Direct Contravention of Statutory Policy. 2. The Court Below Failed to Recognize that Notice-Based Liability for Online Intermediaries Would Discourage the Very Sorts of Self- Regulation that the Statute Was Designed to Promote. B. Congress Has Explicitly Endorsed the Broad Construction of Section 230(c)(1) Uniformly Adopted by All Other Courts.... C. The Court Below Erroneously Second-Guessed the Policy Balance that Congress Struck... Ill. THE LIMITATIONS ON SECTION 230(C)(1) IMMUNITY DERIVE FROM THE STATUTE’S EXPRESS TERMS, AND ARE NOT FOUND IN EITHER A NARROW DEFINITION OF “USER” OR A DISTINCTION BETWEEN “ACTIVE” AND. “PASSIVE” INTERMEDIARIES. ... CONCLUSION...