Professional Documents
Culture Documents
Ventures, LLC and Ed Magedson (“Defendants”) move the court for an order
granting summary judgment as to all claims in this matter. This motion is based on
one basic point—in light of the undisputed material facts, Defendants are entitled
I. INTRODUCTION
Since the CDA was enacted in 1996, every state and federal court that has
exception—agreed that Xcentric and Magedson are entitled to immunity under the
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CDA for statements posted by third party users. See, e.g., GW Equity, LLC v.
Xcentric Ventures, LLC, 2009 WL 62173 (N.D.Tex. 2009) (holding Xcentric and
Magedson entitled to immunity under the CDA); Intellect Art Multimedia, Inc. v.
Milewski, 2009 WL 2915273 (N.Y.Sup. 2009) (same); Whitney Info. Network Inc.
Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929 (D.Ariz. 2008)
(same).
Like every prior case in which the CDA was found to protect Defendants,
allegations to accomplish exactly what the law does not permit—imposing liability
on Defendants for material they did not create or alter in any material respect.
Courts have unanimously determined the CDA expressly prohibits this result and
nothing about this case warrants a different result. As such, Defendants are
Plaintiffs Melissa A. Herman and David A. Russo are bankruptcy lawyers and
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partners in a firm, Herman & Russo, P.C., with offices in Woodstock, Georgia.
February 11, 2009 by an anonymous author identified as “John or Jane Doe”. The
DSOF ¶ 2. The report is written from the perspective of an unhappy former client
who stated that Plaintiffs accepted $30,000 to handle the author’s case but then
failed to return phone calls and otherwise neglected the case. DSOF ¶ 3. The
The Complaint does not allege that the substance of the report was created
by Defendants. Rather, the Complaint alleges that the report was created solely by
John/Jane Doe without any input from Defendants. DSOF ¶ 5. Defendants agree
that this allegation is entirely correct—the report was created solely by a third
Likewise, the Complaint does not allege that the title of the report was
John/Jane Doe created the report’s title without any input or co-development by
Defendants. DSOF ¶ 7. Again, Defendants agree that this is correct; every word
in the title as quoted in the FAC was created solely by a third party. DSOF ¶ 8.
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Thus far, it is undisputed that every word which forms the basis for
Plaintiffs’ claims was created solely by John/Jane Doe without any input or
not create the report or the title, what defamatory information did they create? The
“added” the words “Rip-off Report:” to the beginning of the title of John Doe’s
consumers…” and “Don’t let them get away with it.” DSOF ¶ 10. The exact
Text
“Added”
By
Defendants
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Based on these facts, Plaintiffs seek to hold Defendants responsible for every
word of the entire posting, even the portions which Plaintiffs admit were not
III. ARGUMENT
Before tackling specific points, the court should note that this motion relies
text created by a third party user of the Ripoff Report website. As a matter of
course and with one general exception,1 Defendants agree that the CDA does not
apply to text which they themselves created. This point is beyond dispute;
1
The exception is as follows: users of the Ripoff Report website may choose to
place their report into a category such as “lawyers”. Although the actual words for
each category choice were created by Defendants, the decision to select those
words for a particular report is a choice made by the author, not by Defendants. As
a matter of law, Defendants are still entitled to CDA protection as to user-selected
category choices even if the words were initially created by Defendants; “This
minor and passive participation in the development of content will not defeat CDA
immunity, which can even withstand more active participation.” Global Royalties,
2007 WL 2949002 at *3 (citing Batzel v. Smith, 333 F.3d 1018, 1031 note 19 (9th
Cir. 2003)); see also Whitney Information Network, Inc. v. Xcentric Ventures, LLC,
2008 WL 450095, *10 (M.D.Fla. 2008) (noting, “the mere fact that Xcentric
provides categories from which a poster must make a selection in order to submit a
report on the ROR website is not sufficient to treat Defendants as information
content providers of the reports ….”); see also GW Equity, LLC v. Xcentric
Ventures, LLC, 2009 WL 62173, *5 (N.D.Tex. 2009) (same).
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“Essentially, the CDA protects website operators from liability as publishers, but
not from liability as authors.” Global Royalties, Ltd. v. Xcentric Ventures, LLC,
created by Defendants is not actionable, either because the text is not “of and
concerning” the plaintiff or because the text is non-actionable opinion, then claims
based on such content would fail even assuming the CDA does not apply.
On the other hand, if defamatory text was created by a third party without
Defendants for another person’s statements; “This is precisely the kind of situation
for which section 230 was designed to provide immunity.” Fair Housing Council
of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir.
2008). This distinction is pivotal because, “Under the CDA, website operators are
only considered ‘information content providers,’ for the information at issue that
Put another way, if a website creates 1% of a posting, the site is liable only
as to that 1%. If the other 99% was created solely by a third party, the website is
not responsible for that part of the text. See Gentry v. eBay, Inc., 99 Cal.App.4th
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816, 833 note 11, 121 Cal.Rptr.2d 703, 717 note 11 (Cal.App.4th 2002)
irrelevant if eBay did not itself create or develop the content for which appellants
provider and also an information content provider; the categories are not mutually
As explained further herein, the standard for CDA immunity is clear and
simple—in order to overcome the CDA, Plaintiffs must show that Defendants are
responsible for creating defamatory statements about them and that those
statements are the ones for which Plaintiffs seek to hold Defendants liable. This
1.) The undisputed facts show that Defendants did not create either the
third party. As such, the author may be liable to Plaintiffs for his/her
these statements;
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2.) To the extent Defendants “created” any content such as the words
and did not materially change the meaning of the original author’s
Plaintiffs.
These three dispositive points are based on facts which are entirely
author identified as “John or Jane Doe” logged into the Ripoff Report website and
posted a report about Plaintiffs. The full text of this report is quoted verbatim in
Not surprisingly, the web page containing the report includes some content
from the author and some generic content created by Defendants. SOF ¶ 11.
When the user submitted this posting to the site, the author’s content was
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combined with the existing generic material to create the final standardized page
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The FAC clearly recognizes this distinction by carefully and, for the most
part, correctly separating the allegedly defamatory text created by the author “John
Doe”, see FAC ¶ 39, from the other generic text which Plaintiffs claim was
matter, Plaintiffs have described the creation of the report in reverse order,
claiming that the author John Doe first created the text of his/her report, and that
after this was done, Defendants “then added their own original content to the
report.” FAC ¶ 39 (emphasis added). This presents the facts in backwards order
to in ¶¶ 41–46 of the FAC is nothing more than generic text contained in the
website’s code which was created first, long before “John Doe” wrote the report at
issue here. DSOF ¶ 13. This code is part of the preexisting layout and format of
the Ripoff Report website and it is common to all 600,000+ user-generated reports
on the site. DSOF ¶ 14. Every page on the entire website includes the same
generic meta tags “rip-off, ripoff and rip off” which are used to identify the Ripoff
technical skills who actively chooses to view the source coding for the website,
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meta tags such as “rip-off, ripoff and rip off” are not visible when viewing the
report page about Plaintiffs. DSOF ¶ 16. Moreover, the tags are not statements
about Plaintiffs; these are merely indexing tools used to accurately describe the
contents and location of the Ripoff Report site. DSOF ¶ 17. If these tags were
removed from the report about Plaintiffs, the report itself would appear completely
As such, Defendants did not “add their own original content” to material
from the third-party author. On the contrary, the reverse is true—the author added
his/her text to the pre-existing generic templates on the Ripoff Report website.
DSOF ¶ 19. By doing so, the author caused the creation of the report about the
Plaintiffs (including the ‘meta tags’ and related contents) and caused Plaintiffs’
In fact, prior to the commencement of this lawsuit, Mr. Magedson had never
heard of the Plaintiffs, never saw the report about Plaintiffs, and he added nothing
whatsoever to that report. DSOF ¶ 21. In addition, every report submitted to the
DSOF ¶ 22. The content monitor who reviewed the report about Plaintiffs states
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that she did not create, alter, or add to the report in any way whatsoever. DSOF ¶
23. These facts are entirely undisputed and they are dispositive of all claims here.
To the extent Plaintiffs seek to dispute the facts by claiming that Defendants
somehow altered or added to the text created by “John Doe” after it was submitted
to the site, there is simply no evidence to support that allegation because it simply
is not true. Nevertheless, the question of whether Defendants created content such
motion because the fact that the posting at issue contains a combination of some
text from the third party author and some text from Defendants does not make
Defendants jointly liable for every word in the posting. This is not how the CDA
works. Rather, “Under the CDA, website operators are only considered
‘information content providers,’ for the information at issue that the operators are
(emphasis added). Because the undisputed fact is that Defendants only created the
generic portions of the Ripoff Report website and did not create or alter any part of
the report about Plaintiffs, the CDA applies to bar Plaintiffs’ claims against
on summary judgment in every previous case where the merits of the issue was
(N.D.Tex. 2009) (holding Xcentric and Magedson entitled to immunity under the
2009) (same); Whitney Info. Network Inc. v. Xcentric Ventures, LLC, 2008 WL
450095 (M.D.Fla. 2008) (same); Global Royalties, Ltd. v. Xcentric Ventures, LLC,
who dislike or disagree with the law (such as Plaintiffs) have attempted to
creatively plead their way around the CDA by falsely asserting that Defendants
In recent years, courts have strongly condemned such efforts and have explained
that the CDA must be broadly construed and interpreted to protect websites absent
clear evidence that the site directly contributed to the creation of illegal content:
spirit of protecting websites from claims based on little more than “creative
lawyering”, courts have frequently held that the CDA applies even when a
defendant adds his own original content to defamatory statements from another
person. See Hung Tan Phan v. Lang Van Pham, 182 Cal.App.4th 323, 105
Cal.Reptr.3d 791 (4th Dist. Ct. App. 2010). In Hung Tan Phan, the defendant
received an email which allegedly defamed the plaintiff in various ways. See
Hung Tan Phan, 182 Cal.App.4th at 325–26. The defendant forwarded the email
(which he did not write) to a third party along with an introductory comment
(which he did write). With these facts, the court framed the question as follows:
“What happens when you receive a defamatory e-mail and you forward it along,
but, in a message preceding the actual forwarded document, introduce it with some
language of your own?” Id. at 325 (emphasis added). This scenario is analogous
In arguing that the CDA should not apply, the plaintiff in Hung Tan Phan
suggested that because the defendant added his own comments to the defamatory
email before passing it along, he became responsible for the entire message
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including the text he did not create. See id. The trial court rejected this argument
and the California Court of Appeals affirmed, finding the defendant was entitled to
CDA immunity even though he added his own original content to the third party’s
email. This conclusion was based on “the rule that a defendant’s own acts must
lost.” Id. at 326 (emphasis in original). Because the defendant’s own words were
not defamatory, the Court of Appeals found the CDA applied because, “the only
possible defamatory content … found in the e-mail was the original content
defendant Pham was itself defamatory.” Id. at 328. For that reason, the appellate
As discussed in Hung Tan Phan, many other courts have agreed with this
result. See generally Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal.Rptr.3d 55, 146
P.3d 510 (2006) (CDA provided immunity to defendant who posted an article
authored by a third party to an online newsgroup); Batzel v. Smith, 333 F.3d 1018
(9th Cir. 2003) (defendant who posted message from third party to an online
message board entitled to immunity under the CDA). Consistent with these
standards, courts have routinely held that Xcentric and Magedson are entitled to
(N.D.Tex. 2009) where the court was asked to consider, among other things,
whether CDA immunity would be lost based on allegations that Defendants added
Adhering to the traditional rules that CDA immunity will not be lost unless a
defendant is shown to have been directly involved in the creation of the material
Defendants added information to the title of a report, this was not sufficient to
The Court notes that courts have construed immunity under the CDA
broadly in all cases arising from the publication of user-generated
content. In addition, even were Defendants to lose CDA immunity
with respect to geographical information in titles, the Court finds
summary judgment would still be appropriate. Under the CDA,
website operators are only considered “information content
providers,” for the information at issue that the operators are
responsible for creating or developing. Thus, even if Plaintiff could
prove by a preponderance of the evidence that Defendants added
geographical information to the allegedly disparaging titles of the
disparaging reports at issue in this case, the Court finds the addition
of geographical information alone would not be sufficient for
Defendants to be liable for defamation/libel, interference with
business relationship, business disparagement under Texas law,
disclosure of trade secrets and confidential information, and civil
conspiracy as a matter of law.
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(quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003))
(citing Doe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)).
Applying the GW Equity court’s logic to the present case, Defendants are
entitled to summary judgment under the CDA because to the extent Plaintiffs are
undisputed fact that Defendants did not create and did not alter either the body or
the title of the report. As such, Defendants are entitled to CDA immunity as to
Of course, as the creators of the words “Ripoff Report:” and the website
agree they created that material. However, this does not mean that summary
judgment should be denied. On the contrary, and bearing in mind that these same
facts were present in every past case in which summary judgment was granted in
anyone else.
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First, as a matter of law, except in cases where the term implies the existence
an expression of opinion, not fact, and for that reason the term cannot support a
claim for defamation under Georgia law. See Jaillett v. Georgia Television Co.,
238 Ga.App. 885, 891 (Ga.App. 1999) (holding the term “rip off” was an opinion
Ga.App. 190, 192, 483 S.E.2d 648 (Ga.App. 1997) (explaining, “The expression of
opinion on matters with respect to which reasonable men might entertain differing
opinions is not slanderous.”); see also Phantom Touring, Inc. v. Affiliated Pub.,
953 F.2d 724 (1st Cir. 1992) (article referring to an obscure production of Phantom
constituents was “colorful epithet, [which] when taken in context with the other
Baker, 168 Ill.App.3d 603, 608, 523 N.E.2d 179, 182-183, 119 Ill.Dec. 711, 714 -
715 (Ill.App. 3 Dist. 1988) (finding use of the terms “sleazy”, “cheap”, “pull a fast
Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 379-380, 522 N.E.2d 959,
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“engaged in insurance fraud” and “blatant and dramatic schemes ... to rip-off
v. Nexxus Products Co., 641 F.Supp. 473, 477 (S.D.N.Y. 1986) (statements
accusing plaintiff of being just “another company trying to RIP YOU OFF!” and
warning “DON’T LET THEM RIP YOU OFF!” were non-actionable opinions
because “even the most careless reader must have perceived that the word[s were]
considered themselves unfairly treated and sought to bring what they alleged were
the true facts to the readers.”) (quoting Greenbelt Cooperative Publishing Ass'n v.
Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 1541, 26 L.Ed.2d 6 (1970)); Telephone
Systems Int’l, Inc. v. Cecil, 2003 WL 22232908 (S.D.N.Y. 2003) (“The defamatory
statements, as alleged, are that Bayat said that Bentham and/or Cecil were ‘ripping
him off.’ These statements are figurative and hyperbolic, and are not capable of
being disproved.”)
Second, as a factual matter, the term “Ripoff Report”, the website address
www.RipoffReport.com and the general slogans appearing on the site (i.e., “Don’t
let them get away with it!”) are not defamatory as to Plaintiffs because these
statements are not about Plaintiffs; they are merely the name of the website
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Report” is Defendants’ trademark registered with the United States Patent &
Trademark Office. DSOF ¶ 24. In order to establish a claim for defamation, “the
plaintiff has the burden of showing, inter alia, that ‘the publication was about the
plaintiff, that is, whether it was of and concerning her as a matter of identity.’”
Smith v. Stewart, 291 Ga.App. 86, 660 S.E.2d 882 (Ga.App. 2008) (quoting Pring
it does not), the term “ripoff” is a common epithet conveying the speaker’s
context, no reasonable reader could conclude that the use of the term “Ripoff
Report” implies the existence of other undisclosed facts beyond the true fact that a
so given that the front page of the website clearly explains that the term “ripoff”
stories, no matter where you see them, may have a bias slant. Being
short on space or only having less than 2 minutes to do a story where
important facts are left out can change the entire story. Rip-off Report
feels consumers reading the unedited experiences of other consumers,
without editorial involvement, are getting the best consumer
opinion/news available.
would believe that the application of the term “Ripoff Report” implies the
existence of any facts beyond those contained in the specific report(s) appearing on
the site. Ripoff Report clearly discloses to readers that reports on the site are the
opinions of the author, are not verified for accuracy, and should not discourage the
reader from patronizing the reported business. Whether or not it may have a
negative connotation, taken in context the undisputed facts show the term “ripoff”
Although the exact issue presented has not been addressed before in
Ventures, LLC, 544 F.Supp.2d 929 (D.Ariz. 2008). There, the plaintiff argued that
Xcentric and Magedson “encourage defamatory postings from others for their own
financial gain and, therefore, are partly responsible for the ‘creation or
development’ of the messages [posted by users of the site].” Global Royalties, 544
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explained, “It is obvious that a website entitled Ripoff Report encourages the
proposition that this makes the website operator responsible, in whole or in part,
for the ‘creation or development’ of every post on the site.” Id. at 933 (emphasis
added). For this reason, the Global Royalties court agreed that Defendants were
As the court held in Global Royalties, generic aspects of the Ripoff Report
site (such as its name and web address) may be negative and/or derogatory, but
ultimately the decision to post a complaint about someone on the site originates
entirely with the author who creates the complaint, not Defendants. Here, there is
create the report about Plaintiffs because they simply did not do so. The decision
to create the report about Plaintiffs originated entirely within the mind of the
author, and to the extent anything in the report is inaccurate, Plaintiffs’ remedy is
against the author, not against Xcentric or Magedson; “under § 230, plaintiff may
not seek recourse against [the website operator] as publisher of the offending
statements; instead, plaintiff must pursue his rights, if any, against the offending
[website] members themselves.” Noah v. AOL Time Warner, Inc., 261 F.Supp.2d
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532, 540 (E.D.Va. 2003) (citing Ben Ezra, Weinstein, & Co. v. America Online,
of website code or Defendants’ creation of indexing tags used to make the Ripoff
Report site easier to find in search engines such as Google. Such efforts to
“generally augment” content from a third party is insufficient to defeat the CDA’s
generally.’” Goddard v. Google, Inc., 640 F.Supp.2d 1193, 1198 (N.D.Cal. 2009)
true here.
IV. CONCLUSION
The material facts of this case are not disputed. A third party posted a
undisputed. The complaint was not created by Defendants nor was it altered in
any material way. This is undisputed. Defendants created the website name
www.RipoffReport.com, generic code such as meta tags “rip-off, ripoff, and rip
off”, and the general slogans which appear on the site. This is undisputed.
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judgment in their favor as to any/all statements contained in the body of the report
as described in Paragraph 39 of the First Amended Complaint and the title of the
Defendants did not create any of this information, and as such, the CDA precludes
Plaintiffs from imposing liability upon Defendants for the accuracy of these
statements. To the extent Defendants did create content such as the website name
are not actionable because they are not statements “of and concerning” Plaintiffs
For the above reasons, Defendants move the Court for an order granting
them summary judgment as to all claims in this case pursuant to Fed. R. Civ. P. 56.
/s Megan K. Ouzts
Cameron Hill, Esq.
GA Bar No. 353447
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
1800 Republic Centre
633 Chestnut Street
Chattanooga, Tennessee 37450-1800
Phone: (423) 209-4160
Fax: (423) 752-9545
chill@bakerdonelson.com
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CERTIFICATE OF COMPLIANCE
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CERTIFICATE OF SERVICE
I hereby certify that I have this day caused to be served the foregoing
DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR
MOTION FOR SUMMARY JUDGMENT by filing a copy of same via the
Court's CM/ECF system, which will automatically send notification to the
following attorney(s) of record for Plaintiffs:
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